State Of Washington v. Andrew Merkel, 47978-8

On Aug. 22, 2014, a neighbor saw Andrew Merkel enter the Wittenbergs’ property, look through a window, and walk into their backyard; jewelry was later found missing from the bedroom.
Mike Wittenberg discovered Merkel rifling a bedroom drawer; Merkel ran out a back door to a parked car.
Mike chased, grabbed the steering wheel as Merkel started the car; Merkel reversed, dragging Mike about 20 yards across gravel and causing scrapes and abrasions, then fled.
Police linked the vehicle to Merkel (registered to his grandmother), observed damage and paint transfer, and pursued Merkel (who fled). Merkel was charged with first degree burglary alleging an assault during immediate flight.
At sentencing, defense and the State agreed to a joint recommendation including $500 in discretionary legal financial obligations (LFOs) for appointed counsel recoupment; Merkel was convicted by jury and appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for assault element of first-degree burglary	The State: Merkel’s driving that dragged Mike and his flight supported intent to assault (apprehension/injury) during immediate flight.	Merkel: Evidence only showed intent to escape, not intent to assault or create apprehension.	Affirmed: Evidence sufficient for intent to create apprehension of harm; supports first-degree burglary conviction.
Ineffective assistance for agreeing to discretionary LFOs without ability-to-pay inquiry	State: Joint recommendation acceptable; no showing counsel’s conduct was deficient or prejudicial.	Merkel: Counsel was ineffective for recommending $500 discretionary LFOs without asking the court to inquire into ability to pay.	Affirmed: No ineffective assistance — joint recommendation is a conceivable legitimate strategy; claim fails.
Appellate costs waiver	State sought appellate costs if it prevailed.	Merkel sought waiver based on indigency.	Court exercised discretion to waive appellate costs given Merkel’s indigent status.

State v. Hosier, 157 Wn.2d 1 (standard for sufficiency review)
State v. Elmi, 166 Wn.2d 209 (definitions of assault)
State v. Byrd, 125 Wn.2d 707 (specific intent required for assault definitions involving attempt or apprehension)
State v. Wilson, 125 Wn.2d 212 (intent may be inferred from circumstances)
State v. Grier, 171 Wn.2d 17 (ineffective assistance claim framework)
State v. Reichenbach, 153 Wn.2d 126 (concerning conceivable legitimate tactic standard)
State v. Nolan, 141 Wn.2d 620 (appellate-costs waiver discretion)