State v. Aquiningoc

STATE OF WASHINGTON, Respondent, v. ANTHONY AQUININGOC, Appellant.

No. 71539-9-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

July 6, 2015

UNPUBLISHED OPINION

SPEARMAN, C.J. — Anthony Aquiningoc was charged and convicted of multiple counts of assault, witness tampering, and violation of a no-contact order following a violent incident involving his wife. The trial court imposed an exceptional sentence and a no-contact order protecting his daughter, who was present during the assaults. Aquiningoc appealed and we remanded the case for vacation of one of two witness tampering convictions, reconsideration of the exceptional sentence, and consideration of alternatives to the no-contact order.

On appeal from the resentencing hearing, Aquiningoc challenges his fourth degree assault conviction on double jeopardy grounds. He also challenges his sentence, arguing that his waiver of the right to counsel at the resentencing hearing was ineffective, his offender score was improperly calculated, and hisexceptional sentence was improperly based on facts not proved to the jury. He raises additional issues in a statement of additional grounds. We affirm.

FACTS

On April 11, 2011, Anthony Aquiningoc went to the apartment of his estranged wife Ashley and their daughter to discuss the possibility of moving into a new home together. Aquiningoc and Ashley had previously talked about reconciliation and Ashley had already applied to several apartments for the family. Initially, the couple interacted calmly. However, after about fifteen minutes, Aquiningoc confronted Ashley about an old social media profile, which contained pictures of her and comments from other men. He yelled at her for not deleting the account. He began to verbally attack her, spewing racially and sexually charged insults. He also accused her of lying and being unfaithful. Ashley testified that he was "[v]ery forceful, very upset and angry, and he was standing in front of me in my face, and when he was yelling, he was basically spitting in my face." Verbatim Report of Proceedings (VRP) (7/19/11) at 26-27.

Aquiningoc calmed down for a short time and the couple sat down in the living room to discuss their finances and living situation. While the couple talked, Aquiningoc held their young daughter in his lap. When the little girl spilled some milk on Aquiningoc, he became angry again and poured the remainder of the milk down Ashley's back. Ashley was "in shock" and went into the bedroom to change her shirt.

A short time later, the couple resumed the discussion of their finances and living arrangements. When Ashley told Aquiningoc their apartment rentalapplications had been unsuccessful, he became angry again. He accused Ashley of making mistakes on the application, not trying hard enough to find a cosigner, and lying about her efforts to find housing for the family. Each time she tried to respond, he interrupted and screamed at her. He called her a liar and a bad mother.

Ashley moved from the living room to the master bedroom in an effort to shelter their daughter from the argument. Aquiningoc, who was seated on the bed, continued to insult Ashley and threatened to take their daughter away from her. Aquiningoc got up and tried to push Ashley. She tried to push back, but missed and hit Aquiningoc in the face. In response, Aquiningoc yelled, "You want to fucking hit me, bitch?" VRP (7/19/11) at 39. He grabbed Ashley by the throat, pulled the collar of her shirt down, threw her on the bed, and put his hand around her neck. He got on top of her and strangled her and shook her head up and down. Aquiningoc squeezed her throat so hard and so long that she blacked out. Eventually, he released his hold and told Ashley, "I could have killed you." VRP (7/19/11) at 43.

Aquiningoc left Ashley on the bed and went to the closet, where he began gathering his clothes. He also threw many of Ashley's belongings around the room, ripped her clothes, tore photos, and knocked over a television. Ashley became concerned that their young daughter might get into the items Aquiningoc had strewn on the floor and began to pick them up. Eventually she made her way to the master bathroom and sat on the floor.

After some time, Aquiningoc finished packing and left the closet. He went into the bathroom where Ashley was seated and slapped her in the face, saying, "You lie to me. This is why I hit you. You lie to me and make me mad, and that's why I hit you." VRP (7/19/11) at 46. The force of the slap knocked Aquiningoc's wife backwards and caused her to bang her head on the toilet.

A short time later, police officers knocked on the front door of the apartment, apparently in response to a domestic disturbance call. They arrested Aquiningoc, who was subsequently charged with second degree assault arising from these incidents. Prior to trial, the State amended the charges, adding one count of fourth degree assault and one count of third degree malicious mischief arising from the April 11, 2011 incidents as well as four counts of violation of a no contact order, three counts of tampering with a witness, and one count of bribing a witness arising from subsequent events. The State alleged two aggravating circumstances with respect to the second degree assault charge: that Aquiningoc had prior unscored criminal history under RCW 9.94A.535(2)(b) and that the crime was a domestic violence offense under RCW 9.94A.535(3)(h)(i) and (ii).

The jury found Aquiningoc not guilty on the malicious mischief charge and one of the three witness tampering charges; he was found guilty as charged on all other counts. By special verdict, the jury found that the second degree assault was a domestic violence offense under RCW 9.94A.535(3)(h). At sentencing, the trial court determined that Aquiningoc's "prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence [on the second degree assault] that is clearly too lenient in light of the purpose of the[Sentencing Reform Act of 1981] as expressed in RCW 9.94A.010." CP at 29. And, in written findings of fact and conclusions of law, the court concluded that the "aggravating factors found by the court and jury support[ed] the imposition of an exceptional sentence above the standard range." Id. Accordingly, the trial court imposed an exceptional sentence of 102 months confinement on the second degree assault conviction. The trial court imposed standard range sentences on the witness tampering convictions, 364 days each on the fourth degree assault and violation of a no contact order convictions, and entered a no contact order protecting Aquiningoc's daughter. The terms of confinement were to be served concurrently.

Aquiningoc appealed the judgment and sentence to this court. Finding several errors, we remanded for vacation of one of his two witness tampering conviction, consideration of less restrictive alternatives to the no-contact order, and reconsideration of the exceptional sentence.

At the resentencing hearing, Aquiningoc maintained that appointed counsel had not conferred with him sufficiently in preparation for the resentencing hearing. He also disagreed with defense counsel's advice that he was unlikely to receive a different sentence on remand and objected to his attorney's alleged refusal to present mitigating factors to the court. Accordingly, Aquiningoc moved the court for permission to discharge appointed counsel and proceed pro se. The court granted Aquiningoc three continuances so that he could either retain private counsel or prepare to represent himself, as requested. After the lastcontinuance, Aquiningoc informed the court that he had not been able to retain private counsel and wished to represent himself.

Before granting Aquiningoc's request to proceed pro se, the trial court conducted a brief colloquy. The judge cautioned Aquiningoc that certain technical requirements would govern the proceedings and that appointed counsel would be better equipped to meet these challenges. At the end of this colloquy, the court warned Aquiningoc that it "would be better if you have an attorney," but granted Aquiningoc's request to represent himself. VRP (02/14/14) at 31-32. Aquiningoc refused to allow appointed counsel to remain as standby counsel.

Following argument from Aquiningoc and the State, the trial court vacated one witness tampering conviction and modified the no contact order. The trial court also concluded that the exceptional sentence originally imposed was justified based solely on the domestic violence aggravating factor found by the jury. The court entered a new judgment and sentence, which imposed the same exceptional sentence of 102 months that had been imposed previously.

Aquiningoc appeals.

DISCUSSION

I. Double Jeopardy

The double jeopardy provisions of the federal and state constitutions "protect a defendant from being punished multiple times for the same offense." State v. Allen, 150 Wn. App. 300, 312, 207 P. 3d 483 (2009) (citing State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998); see also, U.S. Const. amend. V; Wash. Const. art. I, § 9. In his first appeal, Aquiningoc unsuccessfully argued thathis convictions for both second and fourth degree assault violated the protections against double jeopardy because there was no clear finding from the jury that its verdicts were based on separate acts of assault. We rejected his argument because the record revealed that the prosecutor had made a clear election to the jury of which act supported each charge.

On appeal from the resentencing hearing, Aquiningoc asks us to reconsider our ruling on the double jeopardy issue in light of State v. Villanueva-Gonzalez, 180 Wn.2d 975, 980-81, 329 P.3d 78 (2014), which the Supreme Court decided after remand. But the case is unhelpful to Aquiningoc.

In Villanueva-Gonzalez, the Court held that when the acts underlying two assault convictions occur as part of the same course of conduct, they are part of the same unit of prose...