In re Glant

523 P.3d 1206

IN RE the Matter of the Personal Restraint of Bryan Earle GLANT, Petitioner.

No. 56383-5 II

Court of Appeals of Washington, Division 2.

Filed February 7, 2023

David L. Donnan, David Donnan, Attorney At Law, P.O. Box 55026, Shoreline, WA, 98155-0026, for Petitioner.

Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw Bldg. 2, Olympia, WA, 98502-6045, for Respondent.

PART PUBLISHED OPINION

Glasgow, C.J.

¶1 Law enforcement made a post on Craigslist suggesting the person posting could arrange sexual contact with children. Bryan Earle Glant responded to the post and texted with an undercover detective about sexual intercourse with her two fictional daughters, ages 11 and 6. He then drove to an apartment with personal lubricant in his pocket to meet "Hannah" and the children, where he was arrested. The State charged him with two counts of attempted first degree rape of a child. Glant was 20 years old at the time.

¶2 Glant waived his right to a jury trial and the parties proceeded to a bench trial on stipulated facts. The trial court found Glant guilty of both charges and found that he was not entrapped by law enforcement. At sentencing, the trial court ruled that youthful impulsivity did not contribute to Glant's offenses, and it imposed an indeterminate sentence with a minimum sentence within the standard range and a maximum of life.

¶3 Glant appealed and this court affirmed. Glant then filed this timely personal restraint petition (PRP). He argues the State withheld impeachment evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). He contends that his trial counsel provided ineffective assistance by inadequately investigating his case, advising him to waive a jury trial, and failing to raise a same criminal conduct argument at sentencing. He further argues that the trial court misapplied the law of entrapment, that his convictions violate double jeopardy, that his convictions constituted the same criminal conduct, and that the trial court abused its discretion by declining to impose a determinate sentence based on youth.

¶4 We deny the PRP. In the published portion of this opinion, we conclude that Glant's conduct supported two convictions for attempted first degree rape of a child and did not violate double jeopardy. We resolve the remainder of the issues Glant raises in the unpublished portion of this opinion.

FACTS

¶5 The Washington State Patrol's Missing and Exploited Children Task Force (MECTF), headed by Sergeant Carlos Rodriguez, conducted undercover stings, known as Net Nanny operations. State v. Glant , 13 Wash. App. 2d 356, 360, 465 P.3d 382 (2020). In 2016, as part of a Net Nanny operation, a detective made a post on Craigslist titled, " ‘Family Play Time!?!?—w4m,’ " which advertised, " ‘Mommy/daughter, Daddy/daughter, Daddy/son, Mommy/son ... you get the drift. If you know what I'm talking about hit me up [and] we'll chat more about what I have to offer you.’ " Clerk's Papers (CP) at 772. Glant responded, writing, "I'm interested in what you say you have to offer, let's talk more about it?" PRP, App. B.

¶6 Glant, a 20-year-old, began e-mailing and then texting with the fictional Hannah, a mother with three children. Glant asked, "What're your rules?" and was told, "[M]y rules depend on what you are looking to do with the kids and which ones, this is where your honesty comes into play." PRP, App. D at 1. Hannah then told Glant she had a teenaged son and two daughters ages 11 and 6. Glant stated, "I'm primarily interested in the daughters," and that he would like to "[p]robably use toys with them and introduce some touching and then work towards oral." PRP, App. D at 1. When Hannah instructed Glant that her rules were "no pain, no anal," Glant asked, "What about like a finger in the bum though?" PRP, App. D at 2. Hannah responded, "[I]f you promise to bring lube and put lube on your finger, yes you can put one to two fingers in their bum." PRP, App. D at 2. Glant agreed, "Ok no problem." PRP, App. D at 2.

¶7 When Hannah asked if he had "any other questions on what you want to try or do," Glant responded, "No I'm fine, but to be frank I'm new to this and don[’]t know how to approach this." PRP, App. D at 2. When Hannah suggested they exchange pictures "so we know each[ ]other is real," he agreed. PRP, App. D at 2. Hannah then told Glant that she lived in Tumwater, causing him to reschedule because, "Tumwater is pretty far away." PRP, App. D at 6. He tried to reschedule for the next morning then, at Hannah's suggestion, agreed to meet the following afternoon.

¶8 Overall, Glant exchanged messages with Hannah for two days before driving from Mercer Island to an apartment in Thurston County to meet her and the fictional children. He was arrested after entering the apartment. Glant had a bottle of personal lubricant in his pocket when he was arrested. The State charged Glant with two counts of attempted first degree rape of a child.

¶9 Glant waived his right to a jury trial and agreed to a bench trial on stipulated facts. The trial court found the elements of two counts of attempted first degree rape of a child were met based on the acts Glant described in texts to Hannah. It found that Glant "took at least one substantial step" toward committing rape of a child "when he drove from Mercer Island to Thurston County and had in his pocket lubricant, which was needed to engage in sexual activity with the daughters, as referenced in the text messages." CP at 773. The trial court found Glant guilty of both counts of attempted first degree rape of a child.

ANALYSIS

¶10 To receive relief, a personal restraint petitioner who has filed a timely petition must demonstrate "either a constitutional error that resulted in actual and substantial prejudice" or a nonconstitutional error that is "a fundamental defect which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Swagerty , 186 Wash.2d 801, 807, 383 P.3d 454 (2016) (quoting In re Pers. Restraint of Cook , 114 Wash.2d 802, 811, 792 P.2d 506 (1990) (internal quotation marks omitted)).

¶11 Glant contends that he was convicted twice for a single unit of prosecution, violating double jeopardy. He compares attempt to solicitation, where the unit of prosecution is "the act of promoting or facilitating a crime rather than the specific crimes the defendant was soliciting," and conspiracy, where the unit of prosecution is "an agreement to engage in a criminal enterprise," not the individual crimes therein. PRP at 23-24. Because an attempt conviction requires a defendant to take a substantial step with the intent to commit a specific crime, Glant reasons that he "engaged in a single and unified course of conduct in his attempt to have sex" with fictional victims. PRP at 25. We disagree.

¶12 When there are multiple alleged violations of a single statute, we inquire what unit of prosecution the legislature intended under the statute. State v. Bobic , 140 Wash.2d 250, 261, 996 P.2d 610 (2000). " ‘When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.’ " Id . (quoting State v. Adel , 136 Wash.2d 629, 634, 965 P.2d 1072 (1998) ). We will construe any ambiguity in favor of lenity for the defendant. Id . at 261-62, 996 P.2d 610.

¶13 "A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime," they do any act that is "a substantial step toward the commission of that crime." RCW 9A.28.020(1). "Mere preparation to commit a crime is not an attempt." State v. Wilson , 1 Wash. App. 2d 73, 83, 404 P.3d 76 (2017). A substantial step requires conduct that is strongly corroborative of the defendant's criminal purpose. State v. Aumick , 126 Wash.2d 422, 427, 894 P.2d 1325 (1995). This court has recognized that where there were two separate attempts involving the same victim and the same crime, the unit of prosecution was "the act necessary to support the inchoate offense, not the underlying crime." State v. Boswell , 185 Wash. App. 321, 329, 340 P.3d 971 (2014). For example, in Boswell, an attempt to kill by poisoning and an attempt to kill the same victim by shooting were two separate units of prosecution. Id. at 332, 340 P.3d 971.

¶14 The State argues that we should follow a recent Division One case with similar facts, State v. Canter , 17 Wash. App. 2d 728, 487 P.3d 916, review denied , 198 Wash.2d 1019, 497 P.3d 375 (2021). In Canter, a Net Nanny case with two fictitious victims, Division One rejected the same double jeopardy argument, concluding instead that the legislature intended for the child molestation statute to protect each child from sexual contact. Id. at 739, 487 P.3d 916. The Canter court held that the facts established two units of prosecution because Canter took substantial steps to have sexual contact with two different, albeit fictional, children. Id. We agree that Canter is similar and follow Division One's reasoning in that case.

¶15 In Canter, the defendant relied on Boswell ’s reasoning that for attempt, the unit of prosecution was the act necessary to support the inchoate offense, not the underlying crime. Id . at 738, 487 P.3d 916. Canter asserted that the unit of prosecution for his attempted child molestation was "the single substantial step he took toward molesting two children." Id.

¶16 Division One instead looked to cases involving more than one victim. Division One explained that in State v. Diaz-Flores , 148 Wash. App. 911, 914, 201 P.3d 1073 (2009), the court found no double jeopardy violation where the defendant was convicted of two counts of voyeurism for peeking into a bedroom window to watch two people having sex. Canter , 17 Wash. App. 2d at 739, 487 P.3d 916. Diaz-Flores argued the unit of prosecution was his single act of viewing, regardless of the...