State Of Washington v. Tim Duggins ( 2015 )

FILED
COURT OF APPEALS
DIVISION Id
2051 Y E9 Ali 9{ 0i
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STA E OF ASHJHOTON
DIVISION II BY
STATE OF WASHINGTON, No. 46068 -8 -II
Respondent,
v.
TIM MICHAEL DUGGINS, UNPUBLISHED OPINION
Appellant.
LEE, J. — Tim Michael Duggins appeals his convictions and sentence for second degree
burglary and second degree theft that followed his termination from drug court. Duggins argues
that ( 1) his jury trial waiver was invalid, (2) his charging document was constitutionally deficient,
and ( 3) he received ineffective assistance of counsel when his attorney failed to argue during
sentencing that his offenses constituted the same criminal conduct. Duggins makes additional
assertions of ineffective assistance of counsel in his pro se statement of additional grounds ( SAG).
Because the record shows that Duggins signed the drug court contract with the jury waiver
provision and acknowledged understanding that contract, his jury trial waiver was valid. And,
because the charging document sets forth the essential elements of his offenses and the necessary
supporting facts, Duggins' claim of deficiency fails. Duggins cannot show with any reasonable
probability that his sentence would have differed had trial counsel argued same criminal conduct,
so his claim of ineffective assistance of counsel fails. His remaining claims also fail because
Duggins shows no deficiency in his attorney' s performance. We affirm the convictions and
sentences.
No. 46068 -8 -II
FACTS
Duggins was arrested on suspicion of taking merchandise from an unlocked shed behind a
consignment store. His arrest occurred after a witness identified him as the man who approached
the closed store empty handed, looked into the windows and walked to the rear, and then left
carrying two full grocery bags. After being read his Miranda rights,' Duggins admitted taking 75
pairs of designer sunglasses worth $1, 500 that were stored in the shed. Officers obtained a warrant
and found two bags of sunglasses in the trunk of his car.
The State charged Duggins with second degree burglary and second degree theft. The
information described the charges as follows:
COUNT I - BURGLARY IN THE SECOND DEGREE, RCW 9A.52. 030( 1) -
CLASS B FELONY:
In that the defendant, TIM MICHAEL DUGGINS, in the State of Washington, on
or about June 19, 2013, with intent to commit a crime against a person or property
therein, did enter or remain unlawfully in a building.
COUNT II - THEFT IN THE SECOND DEGREE, RCW 9A.56. 040( 1)( a),
RCW 9A. 56. 020( 1)( a) - CLASS C FELONY:
In that the defendant, TIM MICHAEL DUGGINS, in the State of Washington, on
or about June 19, 2013, did wrongfully obtain or exert unauthorized control over
property or services of another or the value thereof, with intent to deprive said
person of such property or services, the value of which exceeds seven hundred and
fifty dollars ($ 750. 00).
Clerk' s Papers ( CP) at 3.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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No. 46068 -8 -II
Pursuant to his request, Duggins was admitted into a drug court program. He signed a
contract that specified his obligations under the program and the consequences of breaching those
obligations. Item 18 of the contract explained:
If he /she is terminated from the program, he /she agrees and stipulates that the Court
will determine the issue of guilt on the pending charge( s) solely upon the law
enforcement /investigative agency reports or declarations, witness statements, field
test results, lab test results, or other expert testing, or examination such as
fingerprint or handwriting comparisons, which constitute the basis for the
prosecution of the pending charge( s). He /She further agrees and stipulates that the
facts presentedby such declarations, statements, and /or expert
reports,
examinations are sufficient for the Court to find him/ her guilty of the pending
charge( s).
CPat6.
The contract also explained that in signing the contract, Duggins acknowledged that he
understood and agreed to waive the following rights:
a. The right to a speedy trial pursuant to C. R. [ sic] 3. 3;
b. The right to a public trial by an impartial jury in the county where the crime
is alleged to have been committed;
c. The right to hear and question any witness testifying against the defendant;
d. The right .at trial to have witnesses testify for the defense, and for such
witnesses to be made to appear at no expense to the defendant; and
e. The right to testify at trial.
CP at 6. The contract also contained the following paragraph:
My attorney has explained to me, and we have fully discussed, all of the
above paragraphs. My attorney has explained that my potential sentencing range
is 22 to 29 and 12+ to 14 months. I understand them all and wish to enter into this
Drug Court Program Contract. I have no further questions to ask the Judge.
CP at 7. Immediately below that paragraph is Duggins' signature, followed by this language and
defense counsel' s signature:
No. 46068 -8 -II
I have read and discussed this Drug Court Program Contract with the
defendant and believe that the defendant is competent to fully understand the terms
of.the Contract.
CP at 7. When the request to enter drug court was made, defense counsel referred to Duggins as
the " driving force" behind the request to participate in the program and stated that Duggins had
spent " a long time with that contract this afternoon." Verbatim Report of Proceedings ( VRP)
Nov. 26, 2013) at 4. Defense counsel added that the contract included " all the standard language"
and that he believed Duggins was signing it "with a full knowledge of the requirements of this
court and what he' s getting into." VRP ( Nov. 26, 2013) at 4.
The trial court found that Duggins had read the entire contract, that defense counsel had
read the contract to Duggins, and that Duggins understood the entire drug court contract. Noting
that Duggins had " put a lot of thought into it," the trial court entered the drug court contract. VRP
Nov. 26, 2013) at 5..
The trial court terminated Duggins' participation in drug court after he failed to appear at
a scheduled hearing and was arrested on a separate matter. The trial court found that the State had
met its burden of proof and that Duggins was guilty as charged. The trial court then rejected
Duggins' request for a DOSA sentence.2 Based on an offender score of 6 that counted his current
offenses separately, the trial court imposed concurrent standard range sentences of 25 months and
14 months.
Duggins appeals his convictions and sentences.
2 DOSA is an abbreviation for a Drug Offender Sentencing Alternative imposed under RCW
9. 94A.660.
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No. 46068 -8 -II
ANALYSIS
A. JURY TRIAL WAIVER
Duggins argues that his convictions were entered in violation of his right to a jury trial
and that reversal is required because the record does not show that he made a personal expression
of his desire to waive that right. We disagree.
A criminal defendant may waive [ his] constitutional right to a jury trial, as long as the
waiver of that right is voluntary, knowing, and intelligent." State v. Hos, 154 Wash. App. 238, 249,
225 P.3d 389, review denied, 169 Wash. 2d 1008 ( 2010). " The State bears the burden of establishing
the validity" of such a waiver, and " we must indulge every reasonable presumption against waiver,
absent a sufficient record." Hos, 154 Wash. App. at 249 -50. We review the validity of a defendant' s
jury trial waiver de novo. State v. Ramirez -Dominguez, 140 Wash. App. 233, 239, 165 P.3d 391
2007).
A written waiver is not determinative but is strong evidence that the defendant validly
waived the jury trial right. State v. Pierce, 134 Wn. App. 763, 771, 142 P.3d 610 ( 2006).
Washington courts do not require an extended colloquy on the record; the defendant' s personal
expression of waiver is sufficient. State v. Stegall, 124 Wash. 2d 719, 725, 881 P.2d 979 ( 1994) ( no
colloquy or on- the -record advice as to the consequences of a waiver is required for waiver of a
jury trial "); see also State v. Downs, 36 Wn. App. 143, 146, 672 P.2d 416 ( 1983) ( finding waiver
valid where defendant and his attorney signed waiver form), review denied, 100 Wash. 2d 1040
1984).
Duggins' drug court contract explained that he acknowledged an understanding of, and
agreed to waive, "[ t]he right to a public trial by an impartial jury in the county where the crime is
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alleged to have been committed." CP at 6. Defense counsel stated in court that Duggins had spent
considerable time studying the contract and that he believed Duggins signed it with full knowledge
of its requirements. The trial court found that Duggins had read the entire contract, that his attorney
had read it to him in full, and that Duggins understood all of the contract' s provisions. The record
demonstrates that Duggins knowingly, voluntarily, and intelligently waived his right to a jury trial.
B. CHARGING DOCUMENT
Duggins argues next that the information was constitutionally deficient because it failed to
include critical facts. We review this challenge de novo. State v. Williams, 162 Wash. 2d 177, 182,
170 P.3d 30 ( 2007).
An information must contain all essential elements of a crime to give the accused proper
notice of the crime charged so that he can prepare an adequate defense. Williams, 162 Wash. 2d at
183; State v. Kjorsvik, 117 Wash. 2d 93, 101, 812 P.2d 86 ( 1991). To satisfy this requirement, the
information must allege every element of the charged offense and the facts supporting the
elements. State v. Nonog, 169 Wash. 2d 220, 226, 237 P.3d 250 ( 2010).
We distinguish between charging documents that are constitutionally deficient and those
that are merely vague. State v. Leach, 113 Wash. 2d 679, 686 -87, 782 P.2d 552 ( 1989). A
constitutionally deficient information is subject to dismissal for failure to state an offense by
omitting allegations of the essential elements constituting the offense charged. Leach, 113 Wash. 2d
at 686 -87. An information that states each statutory element of a crime, but is vague as to some
other significant matter, may be corrected under a bill of particulars. Leach, 113 Wash. 2d at 687. A
defendant may not challenge an information for vagueness on appeal if he did not request a bill of
particulars at trial. Leach, 113 Wash. 2d at 687.
No. 46068 -8 -II
When a charging document is challenged for the first time on appeal, as it is here, we must
construe it liberally in favor of its validity. Kjorsvik, 117 Wash. 2d at 105. In applying this liberal
construction standard, we read the words in the charging document as a whole and consider
whether the necessary facts appear in any form. Williams, 162 Wash. 2d at 185; Kjorsvik, 117 Wash. 2d
at 109. If they do, we consider whether the defendant was "`` nonetheless actually prejudiced by
the inartful language which caused a lack of notice. ' Williams, 162 Wash. 2d at 185 ( quoting
Kjorsvik, 117 Wash. 2d at 105 -06).
An information may rely on the language of a statute if the statute defines the offense with
certainty. Leach, 113 Wash. 2d at 686. There is no additional requirement that the State allege facts
beyond those that support the elements or that the State describe the facts with great specificity.
State v. Winings, 126 Wash. App. 75, 85, 107 P.3d 141 ( 2005).
The information in this case charged in the language of the burglary and theft statutes
defining Duggins' crimes. It alleged that on or about June 19, 2013, Duggins entered or remained
unlawfully in a building with intent to commit a crime against a person or property therein. RCW
9A. 52. 030( 1). It alleged further that on or about June 19, 2013, Duggins wrongfully exerted
control over property or services of another, with intent to deprive said person of such property or
services, the value of which exceeded $ 750. RCW 9A.56. 020( 1)( a); former RCW 9A.56. 040( 1)( a)
2012). This language was sufficient to apprise Duggins of the elements of the charged crimes
and the conduct that constituted those crimes.
But Duggins complains that the failure to specify the building he entered, the items he
allegedly stole, and the victim of his crimes were critical facts that rendered the information vague
and indefinite. Informations alleging crimes that involve an act against another person, as opposed
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to a specific person, do not need to state the name of the victim. City of Seattle v. Termain, 124
Wn. App. 798, 805, 103 P.3d 209 ( 2004). Nor did the information need to identify the property
taken. State v. Tresenriter, 101 Wn. App. 486, 494 -95, 4 P.3d 145, 14 P.3d 788 ( 2000), review
denied, 143 Wash. 2d 1010 ( 2001). The remedy for any lack of specificity concerning these details
was .to request a bill of particulars.
Having found that the information contained all of the essential elements, we would
normally proceed to the second prong of the Kjorsvik test to ask whether vague or inartful language
prejudiced the defendant. 117 Wash. 2d at 106. But Duggins has not argued that he was actually
prejudiced. Rather, he asserts that no showing of prejudice is required. This showing is eliminated
only if the information fails to include the essential elements, which Duggins' information did not.
See Termain, 124 Wash. App. at 803 ( if charging document fails essential elements test, prejudice
test is not reached). Nor did Duggins request a bill of particulars, which is the proper mechanism
for obtaining additional information. We hold that the information gave Duggins sufficient notice
of the charged offenses and that his allegation of vagueness is waived.
C. SAME CRIMINAL CONDUCT
Duggins argues that he received ineffective assistance of counsel when his attorney failed
to argue during sentencing that his two crimes counted as one offense under the same criminal
conduct rule: A claim of ineffective assistance of counsel is a mixed question of law and fact that
we review de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 ( 2009).
To demonstrate ineffective assistance, Duggins must show that his counsel' s representation
was deficient and that the deficiency was prejudicial. State v. Hendrickson, 129 Wash. 2d 61, 77 -78,
917 P.2d 563 ( 1996). Counsel' s performance was deficient if it fell below an objective standard
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No. 46068 -8 -II
of reasonableness. State v. McFarland, 127 Wash. 2d 322, 334 -35, 899 P.2d 1251 ( 1995). Matters
that go to trial strategy or tactics do not show deficient performance. State v. Rainey, 107 Wn.
App. 129, 135 -36, 28 P.3d 1.0 ( 2001), review denied, 145 Wash. 2d 1028 ( 2002). To establish
prejudice, a defendant must demonstrate a reasonable probability that, but for counsel' s errors, the
result of the proceeding would have been different. Hendrickson, 129 Wash. 2d at 78. We strongly
presume that counsel was effective. McFarland, 127 Wash. 2d at 335.
As stated, Duggins contends that he received ineffective assistance of counsel when his
attorney failed to argue during sentencing that his burglary and theft convictions constituted the
same criminal conduct. Multiple current offenses are counted separately for offender score
purposes unless they encompass the same criminal conduct. RCW 9. 94A. 589( 1)( a). Current
offenses involve the same criminal conduct when they " require the same criminal intent, are
committed at the same time and place, and involve the same victim." RCW 9. 94A. 589( 1)( a).
The State does not dispute Duggins' assertion that his crimes constituted the same criminal
conduct. The State argues, however, that when one ofthe current offenses is burglary, the burglary
antimerger statute gives the sentencing judge discretion to punish a defendant separately for
burglary, even where the burglary and an additional crime encompass the same criminal conduct.
State v. Lessley, 118 Wash. 2d 773, 781, 827 P.2d 996 ( 1992).
The burglary antimerger statute, RCW 9A. 52. 050, provides that "[ e] very person who, in
the commission of a burglary shall commit any other crime, may be punished therefor as well as
for the burglary." Accordingly, the trial court properly exercised its discretion by counting both
of Duggins' convictions toward his offender score. Although the trial court also had discretion to
count the convictions as one, Duggins does not explain why the court would have exercised its
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discretion in his favor had his attorney objected to the State' s calculation of his offender score.
Because Duggins does not show a reasonable probability that an objection would have caused the
trial court to exercise its discretion differently, he cannot demonstrate prejudice. Therefore, his
ineffective assistance of counsel claim fails.
D. SAG
Duggins makes additional allegations of ineffective assistance of counsel in his SAG. He
argues first that counsel should have argued that the value of the sunglasses was less than $ 300,
thus making any theft conviction a misdemeanor instead of a
felony. Duggins asserts that the
sunglasses sold for only $6 to $ 10 in the consignment store.
The police reports show, however, that the sunglasses sold for $20 a pair and that Duggins
confessed to taking 75 pairs. As part of the drug court contract, Duggins conceded that the trial
court could consider the police reports in determining whether the State had proven the crimes
charged. We see no deficient performance in this regard.
Duggins also argues that his attorney should have argued that he committed only
misdemeanor trespass because he did not enter a building that was either open or closed. The
record shows, however, that the sunglasses that Duggins admitted taking were stored in a closed
shed. Here again, we see no deficiency in counsel' s failure to make this argument.
Finally, Duggins asserts that his attorney talked him into the drug court program instead of
fighting his charges at trial. The record shows that Duggins was the driving force behind his entry
into drug court. As he informed the court, " It' s something I want. Every time I hear these people
come
up and they have this certain amount of time clean, that' s what I want too.... it' s something
I need to do, something I need to do for me and my family." VRP (Nov. 26, 2013) at 4 -5. The
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fact that Duggins did not succeed in drug court does not mean that his attorney rendered ineffective
assistance in urging the court to accept him into that program.
We affirm the convictions and sentences.
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.
We concur:
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