Personal Restraint Petition Of Paul Jason Burks ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
June 11, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 52798-7-II
Personal Restraint of
PAUL JASON BURKS,
Petitioner.
UNPUBLISHED OPINION
GLASGOW, J. -- Paul Burks seeks relief from personal restraint imposed as a result of his
2016 conviction for felony violation of a court order. We deny the petition.
FACTUAL BACKGROUND
Burks and Tanya Bierlein were in a relationship for about three years. After they broke
up, a domestic violence no-contact order prohibited him from contacting her. Nevertheless, Burks
called and texted Bierlein. She testified that he then arrived at her house uninvited. She alleged
when she saw Burks in her home, she attempted to call 911 but he took the phone from her. She
testified she went to yell for help but he grabbed her, started to choke her, and threatened her. He
eventually let go and left the room. Bierlein contacted the police the next day.
Burks was charged with felony violation of a court order, first degree burglary, and
interfering with reporting of domestic violence, with a domestic violence special allegation for
each charge. Prior to trial, Burks stipulated to two prior convictions for violating a court order,
which elevated the current violation of a court order to a felony charge. Burks certified that he
No. 52798-7-II
was making the stipulation freely and voluntarily. After a colloquy, the trial court found Burks
entered into the stipulation knowingly, intelligently, and voluntarily.
The jury convicted Burks of violating a court order. The jury acquitted him of first degree
burglary and interfering with reporting domestic violence. Burks was sentenced to 47 months
followed by 12 months of community service.
Burks appealed and this court affirmed his conviction and sentence. Burks then filed this
timely personal restraint petition.1 He raises 16 issues.
ANALYSIS
Granting a personal restraint petition is an extraordinary remedy, and therefore a petition
must meet a high standard. In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450(2013); In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011). If the
petitioner claims constitutional error, he must show the error resulted in actual and substantial
prejudice. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). If the
petitioner claims nonconstitutional error, he must show the error resulted in a fundamental defect
that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Schreiber,
189 Wn. App. 110, 113, 357 P.3d 668 (2015). The petitioner must show error by a preponderance
of the evidence. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).
Issue 1. Burks argues that a “‘Smith’ affidavit” sworn by the victim was improperly
admitted because it violated the “Crawford Confrontation Clause.” Pet. at 4. An affidavit was
1
This court issued the mandate of Burks’s direct appeal on March 19, 2018, making his December
3, 2018 petition timely filed. RCW 10.73.090(3)(b).
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No. 52798-7-II
discussed in case the victim could not testify. However, the victim did testify and the disputed
affidavit was not admitted. Therefore, there is no factual basis for this claim.
Issues 2 and 3. Burks argues that the trial court erred in admitting inflammatory
photographs of the victim’s injuries and screenshots showing he called and texted her. Burks states
that under a “photographic inflammatory evidence rule” and ER 403 the prejudicial effect
outweighed the probative value. Pet. at 4.
He seems to say the photos of the victim’s injuries lack probative value because there is no
date and time to show when the injuries occurred. Additionally, he argues the screenshots showing
that his number called and texted the victim should not have been allowed because the photos did
not include the date, day, or time. He argues these photos are highly prejudicial and the prejudice
outweighs any probative value.
We review a trial court’s ruling on admissibility of evidence for abuse of discretion. State
v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). Abuse of discretion occurs when the trial
court’s decision is “manifestly unreasonable or based upon untenable grounds or reasons.” State
v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Burks did not object to the foundation laid for admission of the photographs at trial.
Furthermore, although there was not a date or time on the photos, they were entered into evidence
during the victim’s testimony and the victim identified each one. Finally, Burks has not offered
any arguments as to why the trial court’s ruling was manifestly unreasonable or based on untenable
grounds. He fails to show the trial court abused its discretion in admitting the photographs.
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No. 52798-7-II
Issue 4. Burks argues that the no-contact order he was convicted of violating was “invalid
on its face” because it did not list the address of the residence, school, or workplace of the person
he was restrained from approaching. But he does not identify any such requirement of a specific
address. Burks provides no citation to authority, and we will not consider this passing treatment.
RAP 10.3(a)(6).2
Issue 5. Burks argues that the prosecutor misstated the law when he referred in closing
argument to proof beyond “‘a’ reasonable doubt” instead of beyond “‘any’ reasonable doubt.’”
Pet. at 4. Burks does not identify why he believes the correct standard should be “beyond any
reasonable doubt.” 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
4.01, at 93 (4th ed. 2016) refers to “beyond a reasonable doubt.” And instruction no. 3 in Burks’s
trial correctly stated the law as requiring proof “beyond a reasonable doubt.” Clerk’s Papers (CP)
at 33. Finally, Burks cites to no authority requiring the burden to be stated as “beyond any
reasonable doubt.” This argument fails.
Issue 6. Although this claim is unclear, Burks appears to be arguing that under the last
antecedent rule and comma corollary rule, he had to have committed an act of violence within 500
feet of the victim’s residence, school, or workplace to violate the court order. But the last
antecedent rule and comma corollary rule are rules of statutory interpretation. Berrocal v.
Fernandez, 155 Wn.2d 585, 593, 121 P.3d 82 (2005). Additionally, the court order separately
states that Burks is not to contact the victim “directly, indirectly, in person or through others, by
2
RAP 10.3 applies to personal restraint petitions through RAP 16.10(d).
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No. 52798-7-II
phone, mail, or other electronic means.” CP at 7. Therefore, the last antecedent and corollary rule
did not limit the court order as Burks suggests.
Issues 7 and 10. Burks argues that the trial court erred in not giving a Petrich3 unanimity
jury instruction. Although the jury instruction does not mention Petrich itself, the court gave the
unanimity instruction discussed in that case.
Issue 8. Burks appears to argue that the trial court erred in not providing the jury an
instruction defining violation of a court order that required proof of an act of violence within 500
feet of the victim’s residence, school, or workplace. He also seems to assert that the prosecutor
improperly argued the same. He seems to say the court and prosecutor improperly argued only
that he violated a term of the order, and instead they should have defined which terms of the order
that Burks violated. He argues the alleged error precluded the jury from finding him guilty of only
a gross misdemeanor, since that is the punishment for violating a term.
But as addressed above, there is no requirement of violence to support a conviction for
violation of a court order. The prosecutor correctly argued the order also prohibited any contact
with the victim. Therefore, the facts do not support this claim.
Issue 9. Burks argues that he did not understand the consequences of his stipulations to his
predicate convictions, which elevated his charge to a felony. He also claims that his attorney
coerced him into signing. The only facts Burks gives to support that he was coerced is that his
attorney told him signing the stipulation was in his best interest.
3
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled in part on other grounds
by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).
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No. 52798-7-II
But the trial court conducted an extensive colloquy with Burks before accepting the
stipulations in which Burks stated that he discussed the stipulations with his trial counsel, did not
have any questions about them, had not been promised or threatened into signing them, and was
freely and voluntarily entering into them. Additionally, the stipulation included a certification that
clearly told Burks the stipulation was a substitute for the State submitting certified copies of
previous judgments. The certification also had a section that acknowledged he entered into the
stipulation freely and voluntary and that he understood.
Valid guilty pleas must be knowingly, intelligently, and voluntarily made, which is
determined from the totality of the circumstances. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d
1228 (1996). Even applying the same standard to this stipulation that elevated Burks’s crime to a
felony, a defendant’s signature is a strong indication of voluntariness. Id. Additionally, to
overcome the defendant’s in-court admissions, more is required than bare allegations by the
defendant. State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984). Burks does not present
evidence sufficient to undermine the trial court’s finding that he stipulated knowingly and
voluntarily.
Issue 11. Burks argues that cumulative evidence was admitted against him because
exhibits 8, 9, 10, and 11 were admitted more than once. While the exhibits were used more than
once, they were only admitted once. And there is no prohibition against referring to admitted
exhibits more than once during trial.
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No. 52798-7-II
Issue 12. Burks argues that the trial court erred in admitting photographs showing the
victim’s bruising that he asserts were not taken by the police and were provided to him four days
before trial after he had been incarcerated for four and a half months. He also argues this is a
violation of ER 403 because the photos were highly prejudicial and the prejudice outweighed their
probative value. We have addressed Burks’s ER 403 argument about the photographs above. And
Burks does not allege facts to establish how any late disclosure of pictures of the victim’s injuries
prejudiced him. This claim is not supported by sufficient facts or argument. RAP 10.3(a)(6).
Issue 13. Burks argues that the prosecutor engaged in misconduct when he stated in closing
argument that Burks “‘couldn’t keep a straight story when questioned by [l]aw enforcement.’”
Pet. at 6. Burks then states it “is improper for a prosecutor to step into the shoes of a defendant
and represent his thought process when those facts are not in evidence.” Pet. at 6.
To prevail on prosecutorial misconduct, the defendant must prove the statement was
improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). If the
defendant failed to object, then “the defendant is deemed to have waived any error, unless the
prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could not have cured
the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
Burks claims that the prosecutor should not have pointed out inconsistencies in his
statements to law enforcement, but the prosecutor’s arguments in closing were supported by
testimony. Burks does not cite to any authority establishing that it is misconduct for a prosecutor
to point out inconsistencies in the defendant’s story. Burks does not further explain how the
prosecutor misrepresented his thought process. Burks provides no other explanation as to why he
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No. 52798-7-II
believes the prosecutor’s comment was improper, let alone flagrant or ill intentioned. Burks fails
to explain how the statement was improper or prejudicial.
Issue 14. Burks argues that the victim was not credible because she has a prior forgery
conviction. Evidence that a witness has committed a crime can be admitted if it involves
dishonesty or a false statement and the conviction is less than 10 years old. ER 609. Here the
victim’s conviction was more than 10 years old. Moreover, such evidence would go to the
credibility of the witness and would not prevent her from testifying as Burks seems to argue. Her
credibility was an issue for the jury not reviewable by this court. State v. Thomas, 150 Wn.2d 821,
874-75, 83 P.3d 970 (2004).
Issue 15. Burks argues that due to ineffective assistance of counsel, the stipulation caused
him to receive “five extra points.” Pet. at 7. But he does not offer proof he did not have the prior
convictions that the trial court relied upon in sentencing. And this court found his standard
sentence range was correctly calculated in his direct appeal, State v. Burks, No. 49359-4-II. Thus,
he provides nothing to establish that his counsel’s representation was deficient.
Burks also argues his 12 months of community supervision was incorrect because he was
found guilty of only a text message, not violence. His crime was a crime against persons under
former RCW 9.94A.411(2) (2006), even though it was not a violent crime, so a 12-month term of
community custody was required. RCW 9.94A.701(3)(a).
Finally, Burks challenges a “High Violent Classification” because he says the victim was
not credible and the State did not prove violence. Pet. at 7. But Burks provides no citation to the
record for this classification and this court was unable to find such a classification in his judgment
and sentence. The trial court did check the “Serious Violent / Violent Offense, Crime Against a
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No. 52798-7-II
Person and/or Drug Offense” box. CP at 81. As stated above under former RCW 9.94A.411(2),
violation of domestic violence court order is a crime against a person so this box was appropriately
checked.
Issue 16. Burks stated in his petition that his appellate counsel provided ineffective
assistance. He attached a declaration by his appellate counsel which detailed conversations the
appellate counsel had with Burks regarding his statement of additional grounds (SAG) on direct
appeal. Burks sent his appellate counsel his SAG and a motion for extension of time. However,
the attorney was on vacation when the documents arrived. The attorney did not realize Burks
wanted him to file the SAG and motion since he had told Burks that Burks needed to file it himself.
The appellate attorney told Burks he could attempt to bring an ineffective assistance of counsel
claim arguing the appellate counsel was ineffective because he failed to raise those SAG issues in
the direct appeal.
Burks did not provide any argument regarding the ineffective assistance of his appellate
counsel. It is unclear if he believes the failure to raise the SAG issues in the direct appeal or file
his separate SAG was the basis of the ineffective assistance claim. This court will not review
issues if inadequate arguments have been made. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d
1082 (1992); State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995). And even assuming Burks
intended his argument to track counsel’s declaration, appellate counsel told Burks he had to file
the SAG himself. Accordingly, ineffective assistance of appellate counsel does not warrant
granting the petition.
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No. 52798-7-II
In sum, Burks does not establish any error and thus, he fails to present any valid grounds
for relief from restraint. We therefore deny his petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
GLASGOW, J.
We concur:
WORSWICK, P.J.
SUTTON, J.
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