State v. Swarers

STATE OF WASHINGTON, Respondent, v. THOMAS ALVIN SWARERS, Appellant.

No. 36066-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

December 5, 2019

UNPUBLISHED OPINION

FEARING, J. — Thomas Swarers challenges on appeal only his sentence, and not his convictions on two counts of attempted rape of a child in the first degree. He attacks the sentence indirectly through the assertion of ineffective assistance of counsel. He contends that his trial counsel performed deficiently when failing to request that the sentencing court score his two convictions for attempted rape of a child as one because the two crimes constituted the same criminal conduct under RCW 9.94A.589(1)(a). After traveling a morass of Washington decisional law regarding the same intent element of same criminal conduct, we reject Swarers's claim of ineffective assistance of counsel. Swarers cannot establish prejudice because, even assuming his counsel forwarded the request, we do not conclude that the trial court would likely have ruled that the two convictions entailed the same intent for purposes of the same criminal conduct statute.

FACTS

The only assignments of error in this appeal concern sentencing. Nevertheless, the underlying facts of the crime bear relevance because Thomas Swarers claims the sentencing court should have combined both of his crimes as one crime for sentencing purposes because the two entailed the same criminal misconduct.

The Washington State Patrol operates the Missing and Exploited Children Task Force (MECTF), which investigates sexual exploitation of minors. In August 2015, MECTF started conducting "Net Nanny" operations. Report of Proceedings (RP) at 379. Net Nanny intends to recover children and identify people looking to sexually exploit children. As part of such an operation, law enforcement officers post ersatz Craigslist ads that offer taboo and illegal sex, such as sex with children.

In July 2017, Washington State Patrol Detective Sergeant Carlos Rodriguez and other members of MECTF conducted a Net Nanny operation in the Tri-Cities. The task force rented three apartments to run the operation: one for a command post, one as an undercover house to which to send potential offenders, and a third for conducting postarrest interviews.

On July 7, 2017, at some unknown time but early in the morning, MECTF posted the following advertisement on Craigslist:

Mommy likes to watch—young family fun—420 friendly—w4m (kpr).

[S]till looking for that special man. Young family fun. experience with taboo is best. Replies with phone numbers get answers from me more quickly. change the subject line to your name and favorite color so I know you are not a bot. 2 dau 1 son

lg for daddy here

Clerk's Papers (CP) at 12 (punctuation and spelling in original). "Kpr" refers to Kennewick, Pasco, and Richland. RP at 433. "W4m" means woman for men. RP at 433. "420 friendly" references someone who enjoys marijuana. RP at 433. "Dau" stands for daughters, and "lg" abbreviates "little girl." RP at 434.

At 6:24 a.m. on July 7, Thomas Swarers responded to the Craigslist ad:

What does mommy like to watch daddy do? Is you[r] family invoked [sic] in this? If so, I may be interested. Get back to me before I give out a number. Tom.

CP at 12; RP at 437. The subject line of Swarers's message read "Tom Blue." RP at 437.

Detective Carlos Rodriguez, playing the role of the mother, responded to Tom Swarers. The fictitious mother responded with improved grammar and explained that she had three children of varying sexual experience:

My girls are 11 and 6. Oldest is not totally active but still likes to play and is very ready and mature. Younger is not very active at all. My boy is 13. Son is very active. I'm single and looking for someone that is open and free to new ideas.

RP at 438-39.

The messages between Thomas Swarers and the fictitious mother of three continued:

[SWARERS]: 'So I'm more for the girls than mom?'

[MOTHER]: 'yes this is for my kids. not you and me sorry hun.'

. . . .

[SWARERS]: 'That's ok, as long as your good with it.'

[MOTHER]: 'Yes of course. i can teach them some but its good for them to have a man to show them what feels good and how to do things.'

[SWARERS]: 'Yes, that's true. I can show them what a man likes and teach them also.'

. . . .

[MOTHER]: 'i just like to be able to prepare my kids for what may or may not happen. Especially the girls you know?'

[SWARERS]: 'I understand, that's why I said 'play it by ear.' They may not even like me.'

[MOTHER]: 'oh I think they will. I already showed them your picture and they thought you looked very nice. The friend I had before was an older gentleman, they called him pappa and they liked him a lot. He was very gentle with them.'

. . . .

[SWARERS]: 'And will be too, babe.'

RP at 477-80 (punctuation and spelling in original). The two continued to discuss sex acts. Swarers mentioned both girls performing oral sex and his attempting partial penetration of the eleven-year-old girl.

[MOTHER]: 'the oldest has had a penis partially pushed in but it was hurting so he stopped and they did other stuff.'

[SWARERS]: 'That's the same thing that we'll do, don't want to hurt anyone.'

RP at 487-88 (punctuation and spelling in original).

In later messages, the fictitious mother invited Thomas Swarers to come to her apartment for the sexual encounters. The mother directed Swarers to a nearby 7-11 convenience store, asked him to buy the girls Slurpees, directed him to take a picture of himself, and asked him to send the photograph to her. Swarers complied with all requests. The mother then sent Swarers her supposed address. Officers arrested Swarers on his arrival at the undercover apartment. Swarers possessed, on arrest, two nipple clamps, two bottles of lubrication, three condoms, a blister pack of two Viagra pills, and a remote-controlled sex toy.

In a postarrest interview, Thomas Swarers denied any intention of having sex with children. He claimed he only traveled to the apartment to meet the mother in hopes of developing an intimate relationship with her.

PROCEDURE

The State of Washington charged Thomas Swarers with two counts of attempted rape of a child in the first degree. The State charged one count for Swarers's intended sexual encounter with the fictitious six-year-old girl and another count for the envisioned sexual encounter with the invented eleven-year-old daughter.

Thomas Swarers did not testify at trial, but the court played his postarrest interview for the jury. The jury found Swarers guilty of both counts.

As part of sentencing, both defense counsel and the State calculated Thomas Swarers's standard range sentence as ninety to one hundred and twenty months based onan offender score of three. The offender score included two crimes based on the two convictions for attempted rape. Defense counsel did not ask that the court score the two crimes as only one criminal conviction for purposes of sentencing. Defense counsel sought a mitigated exceptional sentence downward based on Swarers's harming no children. The sentencing court sentenced Swarers to 108 months' confinement. The court found Swarers indigent and imposed only mandatory legal financial obligations.

LAW AND ANALYSIS

As his principal assignment of error on appeal, Thomas Swarers contends his trial counsel performed ineffectively for failing to argue at sentencing that his two convictions constituted the same criminal conduct for purposes of calculating his offender score. He promotes the same criminal conduct theory as a winning argument before the sentencing court. The State argues that the two charges do not comprise the same criminal conduct and, even assuming the same criminal conduct, defense counsel's performance was not deficient for failing to raise the argument.

Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel raises an issue of constitutional magnitude that this court may consider for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To demonstrate ineffective assistance of counsel, a defendant must make two showings. First, the defendant must establish that defense counsel's representation was deficient in that the performance fell below an objectivestandard of reasonableness based on consideration of all circumstances. Second, a defendant must show that defense counsel's representation prejudiced the defendant. This entails showing a reasonable probability that, except for counsel's errors, the result of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). A reviewing court need not consider both prongs of the ineffective assistance analysis if a defendant fails on one. In re Personal Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012). We address only the prejudice prong.

To support his claim of prejudice, Thomas Swarers argues that the high end of his sentence would have been approximately fifteen months lower than his current sentence had the charges been viewed as same criminal conduct. His offender score would have been two, rather than three. We agree with this calculation. Nevertheless, Swarers forwards the wrong understanding of prejudice. Swarers's argument assumes the trial court would have agreed with defense counsel had counsel asserted the argument. The failure to make a same criminal conduct argument is only prejudicial if the defendant shows that, with the argument, the sentence would have differed. State v. Munoz-Rivera, 190 Wn. App. 870, 887, 361 P.3d 182 (2015); State v. Beasley, 126 Wn. App. 670, 686, 109 P.3d 849 (2005).

We generally would now analyze the notion of same criminal conduct for purposes of an offender score at sentencing. Because of the length of this analysis andbecause of the abhorrence toward lengthy opinions, we reserve this analysis for an appendix. We also place the analysis in an appendix because not all members of the panel agree with the analysis. We all conclude, however, that ...