State Of Washington, Respondent V. Bogdan Fedas, Appellant

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STATE OF WASHi?!Gfc'
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
BOGDAN VASELEVEH FEDAS,
Appellant.
No. 67658-0-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 11, 2013
Becker, J. — Bogdan Fedas appeals his judgment and sentence for
second degree burglary, theft of a motor vehicle, first degree theft, and second
degree malicious mischief. 	He argues his four convictions encompassed the
"same criminal conduct" and should have counted as a single crime in calculating
his offender score at sentencing. We find no error in the court's exercise of its
discretion to count the four convictions as three current offenses and affirm.
According to testimony at trial, when one of the owners of Metropolitan
Appliance Store in Seattle, Washington, arrived to open the store on the morning
of November 2, 2009, he discovered that it had been burglarized in the night.
The alarm system was damaged, the office door was off its hinges, the 800-
pound safe was missing from the office, and around $40,000 in high-end

No. 67658-0-1/2
appliances were gone. A delivery truck that was usually parked behind the store
was missing as well.
The truck was discovered empty and abandoned in a parking lot later that
day. 	Months later, police linked Fedas to the crime. 	A three-day trial was held,
and the jury convicted Fedas as charged. 	The court entered concurrent,
standard range sentences on the four convictions, totaling 33 months in prison.
Fedas appeals, seeking a remand for resentencing.
SAME CRIMINAL CONDUCT
Fedas contends the court erred in calculating his sentence. 	Under the
Sentencing Reform Act of 1981, an offender's sentence range for each
conviction is ordinarily calculated by counting "all other current and prior
convictions as ifthey were prior convictions for the purpose of the offender
score." 	RCW 9.94A.589(1)(a). The act provides an exception to this general rule
if the court finds that some or all of the current offenses encompass the "same
criminal conduct":
Whenever a person is to be sentenced for two or more current
offenses, the sentence range for each current offense shall be
determined by using all other current and prior convictions as if they
were prior convictions for the purpose of the offender score:
PROVIDED, That if the court enters a finding that some or all of the
current offenses encompass the same criminal conduct then those
current offenses shall be counted as one crime. 	Sentences
imposed under this subsection shall be served concurrently.
Consecutive sentences may only be imposed under the exceptional
sentence provisions of RCW 9.94A.535. "Same criminal conduct,"
as used in this subsection, means two or more crimes that require
the same criminal intent, are committed at the same time and
place, and involve the same victim.

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RCW 9.94A.589(1)(a). All three prongs of the "same criminal conduct" definition
must be met in order for the convictions to be counted as a single current
offense. 	State v. Lesslev. 118Wn.2d 773, 778, 827 P.2d 996 (1992). 	In the
absence of any one of them, the convictions will be counted separately. 	See
Lesslev. 118 Wn.2d at 778.
At sentencing, Fedas asked the court to count his four convictions as only
one offense since each crime furthered a single criminal purpose: 	"to deprive
Metropolitan Appliance from its property." The State conceded that the burglary
and first degree theft counts were the same criminal conduct, but argued that the
remaining convictions for stealing the delivery truck and dismantling the office
door to remove the office safe were "crimes of opportunity based on what the
burglars were able to access inside the business (vehicle keys, tools, the safe)."
The court adopted the State's reasoning. 	The court concluded that
Fedas's original intent was "to break in and steal the appliances" and that he
expanded his intent to include stealing the truck and the office safe only after
breaking into the store.
I did listen to the trial in this case and it was apparent to me that the
intent of Mr. Fedas and his [compatriots] whom he has never
bothered to help identify for anyone, that their intent was to break in
and steal appliances. He appears to have a kind of a history of
that. 	He broke into new homes and stole appliances and he broke
into this appliance store and then in February 2010 he stole high-
end barbecues and then tried to steal appliances. 	There is a
consistent pattern that he had. 	So it seems clear to me that his
intent was to break in and steal the appliances. 	And then when he
got there they found the car, they found the safe, anddecided to
expand their intent. 	I would merge the burglary and the theft
because I think those did involve the same criminal intent, but
breaking outside of that and taking the van, destroying the door

No. 67658-0-1/4
frame, taking the safe - that was clearly separate, opportunistic
activities and I don't think it's fair to merge those and I am not going
to do that.
(Emphasis added.) The court counted the burglary and first degree theft as one
offense, and counted the other two convictions separately, totaling three current
offenses. 	Fedas was sentenced to 33 months, at the bottom of the standard
range.
A trial court's ruling on "same criminal conduct" is reviewed for abuse of
discretion or misapplication of law. State v. Graciano, No. 86530-2, 2013 WL
376076 at *1 (Wash. Jan. 31, 2013). A trial court abuses its discretion only if no
reasonable person would adopt the view espoused by the trial court. State v.
Demerv, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). 	Where reasonable persons
could take differing views regarding the propriety of the trial court's actions, the
trial court has not abused its discretion. 	Demerv. 144 Wn.2d at 758.
We observe no abuse of discretion in the court's "same criminal conduct"
analysis, which resulted in the four convictions being counted as three offenses
for sentencing purposes. 	The record supports the court's conclusion that
stealing the delivery truck and the office safe were not part of the burglars'
original criminal intent when they broke into the store. A police detective testified
that the burglars drove the delivery truck using keys taken from inside the
business in a location not visible to customers; the keys had been hanging on a
rack on the warehouse wall. 	A store owner testified that the office safe was not
visible to the public, and the tools the burglars used to dismantle the office door

No. 67658-0-1/5
had also been found inside of the office.
Where the record supports a finding that the defendant, upon completing
one crime, "had the time and opportunity to pause, reflect, and either cease his
criminal activity or proceed to commit a further criminal act," the court does not
abuse its discretion in counting the offenses separately at sentencing. 	State v.
Grantham. 84 Wn. App. 854, 859, 932 P.2d 657 (1997). 	In Grantham, after the
defendant raped the victim, he "had the presence of mind" to threaten his victim
not to tell anyone about the assault, heard her plead with him to take her home,
and then "had to use new physical force" by beating and kicking her to
accomplish a second rape. 	Grantham, 84 Wn. App. at 859. Though the two
rapes were committed against the same victim, in the same bedroom, and in
short succession, the court did not abuse its discretion by concluding that the two
rapes involved separate criminal intent. Grantham. 84 Wn. App. at 859-60. Both
rape convictions were counted separately at sentencing.
The burglars here had the presence of mind to search for and discover the
truck keys in the warehouse, the safe in the office, and a toolbox for dismantling
the office door. They had to use new physical force to take the office door off its
hinges and heft the 800-pound safe out of the office and into the truck—a task
the store owner testified should have required much the same effort as was
needed to bring the safe into the office: "five or six professional movers almost
three hours and a lot of dollies and jerry-rigging." Testimony at trial showed that
the theft must have required a number of hours to complete. The burglars had

No. 67658-0-1/6
ample time and opportunity to pause, reflect, and decide how far they would take
the crime.
Fedas suggests it was unreasonable to view the theft of the delivery truck
as separate from the original plan to steal appliances. 	He argues it is obvious
that it would not have been possible to cart away $40,000 in appliances in his
Ford van.1 	This argument assumes facts not in evidence. Nothing in the record
establishes that Fedas's van was too small to transport appliances—indeed,
police later discovered Fedas in that van outside of an appliance store late at
night. 	Because the truck keys were located inside of the store warehouse, itwas
not unreasonable for the court to regard the truck theft as arising from a newly
formed intent.
BURGLARY ANTIMERGER STATUTE
As sentencing, the State asked the court to exercise its discretion under
the burglary antimerger statute, RCW 9A.52.050, to count the four crimes
separately even if the court concluded they were same criminal conduct. The
antimerger statute affords trial courts discretion to separately punish other crimes
arising out of a burglary:
Every person who, in the commission of a burglary shall commit
any other crime, may be punished therefor as well as for the
burglary, and may be prosecuted for each crime separately.
1 Fedas's white Ford econoline van with a black lift gate was discussed at trial at
great length. Asurveillance camera in the parking lot where the delivery truck was
abandoned caught footage of a man stepping out of the delivery truck and being driven
away from the scene by a van generally matching Fedas's.

No. 67658-0-1/7
RCW 9A.52.050. 	Crimes may be separately punished even where found to
encompass the same criminal conduct under RCW 9.94A.589(1)(a). 	Lesslev,
118 Wn.2d at 779-82.
The court's decision to treat the vehicle theft and malicious mischief
convictions separately was an appropriate exercise of its discretion under this
rule. Applying the statute, the court could have counted the first degree theft
conviction separately as well, had it chosen to.
Fedas contends we should not consider the antimerger statute in this
appeal because the trial court "decided that it would not apply the anti-merger
statute, and it did not do so."2 The record does not support this characterization.
The State squarely asked the trial court to apply the antimerger statute to count
the crimes separately. 	The court did not decline the State's request, and its oral
ruling reflects that itconsidered it inappropriate to "merge" all of the convictions:
/ would merge the burglary and the theft because I think those did
involve the same criminal intent, but breaking outside of that and
taking the van, destroying the door frame, taking the safe . . . / don't
think it's fair to merge those and I am not going to do that.
(Emphasis added.) The court's use of the term "merge" indicates that itagreed
with the State that the antimerger statute was applicable. 	Fedas offers no
argument that the trial court was barred from considering the statute at
sentencing.
Appellant's Brief at 10.

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The sentencing decision was a proper exercise of the court's discretion.
Affirmed.
WE CONCUR:
CcKtJ''
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