State Of Washington v. Quezon Poor Thunder ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
January 3, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50266-6-II
Respondent,
UNPUBLISHED OPINION
v.
QUEZON LUCAS POOR THUNDER,
AKA
QUEZON LUCAS WILDSPIRIT,
QUEZON LUCAS PENSON,
QUEZON LUCAS POOR-THUNDER,
QUEZON LUCAS POORTHUNDER,
Appellant.
MAXA, C.J. – Quezon Poor Thunder appeals his convictions of four counts of second
degree child rape.
We hold that (1) the trial court did not err in denying Thunder’s requests to represent
himself because the court could not ascertain whether his waiver of the right to counsel was
knowing and intelligent due to Thunder’s persistent refusal to meaningfully answer the court’s
questions; (2) the trial court did not violate the CrR 3.3 time for trial requirements because each
of the continuances granted was proper; (3) the trial court did not violate Thunder’s
constitutional speedy trial right because the length of the delay was not disproportionate to the
needs of preparing his case for trial; (4) the community custody conditions prohibiting the use of
alcohol, requiring an alcohol and chemical dependency evaluation, and prohibiting access to the
Internet were improperly imposed, but conditions prohibiting Thunder from entering sex-related
businesses, and accessing sexually explicit materials were crime related and therefore proper;
No. 50266-6-II
and (5) regarding legal financial obligations (LFOs), the criminal filing fee was improperly
imposed on Thunder because he was indigent but Thunder does not show that the DNA
collection fee was improperly imposed. We also decline to address Thunder’s claims in his
statement of additional grounds (SAG) because they do not meaningfully explain how the trial
court allegedly erred.
Accordingly, we affirm Thunder’s convictions, but we remand for the trial court to strike
a portion of community custody condition 11 and community custody conditions 22, 23, and 24
and to strike the criminal filing fee.
FACTS
The State charged Thunder with four counts of second degree child rape after his
girlfriend’s 13-year-old daughter reported to law enforcement that he had sexual intercourse with
her on at least four separate occasions.
Thunder’s Requests to Represent Himself
During the time leading up to his trial, Thunder made several statements regarding
dismissing his attorney and representing himself. Thunder apparently made his first request to
represent himself at his arraignment in March 2016, which was denied.
On October 5, 2016, the court addressed Thunder’s request to represent himself. The
court attempted a colloquy with Thunder to assess his level of education and any legal training,
his ability to prepare for trial, his knowledge of criminal procedure and the rules of evidence, and
what he had studied to determine his legal rights. Thunder answered that he had an 11th grade
education, but responded to the rest of the court’s questions either by stating “I want to represent
myself” or by accusing the court of violating his rights. Report of Proceedings (RP) (Oct. 5,
2016) at 6-7. He also denied that any charges had been filed against him.
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No. 50266-6-II
At the end of this exchange, the trial court stated that given Thunder’s responses, “this
court does not believe that it can allow [Thunder] to represent himself in this matter because it
would be detrimental for him to do so.” RP (Oct. 5, 2016) at 9. However, the court later stated,
“So we will continue to attempt to inquire into [Thunder’s] understanding and ability to
articulate the requisite matters before granting him the right of self-representation in this
circumstance.” RP (Oct. 5, 2016) 18-19.
Thunder appeared before a different judge on November 7, the scheduled trial date.
Defense counsel informed the court that Thunder again was requesting to represent himself.
The trial court asked Thunder a series of questions aimed at determining how much he
understood about his case and about representing himself at trial. Thunder repeatedly refused to
acknowledge that he had been charged with any crime and repeatedly claimed that he would be
enslaved if convicted. Specifically, he failed to answer whether he understood the charges
against him, the seriousness of the charges, and the fact that he potentially could be incarcerated
for the rest of his life if convicted.
When the court asked if Thunder could abide by courtroom rules of procedure as a
lawyer would, he replied, “Can you show me a certification of oath that you withhold the rights
of my land, instead of trying to push the maritime laws on me?” RP (Nov. 7, 2016) at 8-9.
When asked whether his waiver of counsel was the result of any coercion or threats, Thunder
replied, “By your system.” RP (Nov. 7, 2016) at 9.
After this colloquy, the trial court found that based on Thunder’s responses, Thunder did
not understand the consequences of his waiver of the right to counsel. Therefore, the court
concluded that Thunder’s waiver of his right to counsel was not intelligently given and denied
his request to represent himself.
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A third judge addressed Thunder’s request to represent himself on February 28, 2017,
shortly before jury selection began. The issue had been raised in court the day before.
The trial court advised Thunder of the charges against him and stated that he could be
sentenced up to life in prison if convicted. When the court asked Thunder if he understood this
risk, he replied “I comprehend that it is a fee that you guys are trying to charge me with and
trying to use the jail time to pay the fee off when I have the right to pay the fee off and not do jail
time.” RP (Feb. 28, 2017) at 35. The court again asked if Thunder comprehended how serious
the charges were, and Thunder responded, “I comprehend a fee.” RP (Feb. 28, 2017) at 35.
Regarding the conduct of the trial, Thunder stated that he comprehended that the court
would treat him like lawyer and would give him no special favors. Thunder stated that he was
familiar with the rules of evidence and rules of criminal procedure, and comprehended that if he
testified he would have to break the testimony into questions.
The court stated that if it did allow Thunder to represent himself, the court would appoint
his defense counsel as standby counsel and asked Thunder if that would be acceptable. Thunder
failed to answer, instead responding, “Like I said, I’m here as a special appearance.” RP (Feb.
28, 2017) at 43.
The court asked Thunder if he could conduct himself in front of the jury without being
disruptive. Thunder responded that the jury were not his peers because he was Native American,
that he did not “grant” the court jurisdiction over him, and that the State could not bring criminal
charges against him because it was “a nonliving fictitious entity.” RP (Feb. 28, 2017) at 43-44.
The court then stated that self-representation with standby counsel could be a possibility.
But the court stated, “I don’t want a situation where we’re here in the middle of the trial and
you’re being disruptive.” RP (Feb. 28, 2017) at 46. Thunder responded by reiterating his
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No. 50266-6-II
assertions that “Washington State is a nonliving fictitious entity that ain’t even a real human
being as the plaintiff” and asked if the flag was going to take the stand. RP (Feb. 28, 2017) at
46. When the court asked if he was ready to proceed to trial if he represented himself, Thunder
responded, “They’re not my peers. They may not judge me.” RP (Feb. 28, 2017) at 46.
The trial court denied Thunder’s motion to represent himself. The court first stated that
the motion was untimely. The court then stated that Thunder did not have an adequate
understanding of the law, that his waiver of the right to counsel was not knowing or intelligent,
and that the court was unable to obtain an assurance from Thunder that his conduct in court
would not be an issue.
Multiple Trial Continuances
Thunder’s arraignment initially was set for March 7, 2016. However, he was apparently
so disruptive that he was removed from the courtroom and the arraignment was continued until
the next day. The court entered a scheduling order setting the omnibus hearing for April 15 and
the jury trial for May 3.
On April 15, both the State and defense counsel requested additional time to prepare for
trial. The court entered an order continuing the trial until August 4. Thunder objected to the
continuance and refused to sign the order. The new time for trial deadline was September 3.
On June 13, the court set a competency hearing for Thunder at defense counsel’s request
and over Thunder’s objection to take place on June 30. At the June 30 hearing, the court found
Thunder competent to stand trial. The court also entered another scheduling order, setting the
omnibus hearing for July 25 and moving the trial date up to July 28. Thunder wrote over his
signature line acknowledging receipt, “I object under the treat [sic] of slavery.” Clerk’s Papers
(CP) at 292.
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No. 50266-6-II
At the July 25 hearing, both the State and defense counsel requested a trial continuance
because the case had been reassigned to a new deputy prosecuting attorney and because defense
counsel required time to complete trial preparation. Thunder wrote “I object under slavry [sic]
treat [sic] never sign from attorney” on his signature line. CP at 285. Trial was continued to
September 20. The new time for trial deadline was October 15.
The State learned in July that DNA evidence from the rape kit was available to compare
to Thunder’s DNA. On August 5, the State served Thunder with a warrant for a swab of his
DNA. The swab was taken on the same day. Thunder physically resisted. He repeatedly
refused to comply willingly, pressing his lips together and turning his head away to prevent
officers from swabbing the interior of his cheek. Though Thunder was handcuffed and in leg
irons, four officers were required to subdue him sufficiently to collect the sample. Thunder then
continued to resist by biting down on the buccal swab and again moving his head away. He
finally released the swab after one officer “applied pain compliance to the pressure point near the
back of the jaw.” CP at 131.
At an August 19 hearing, the parties requested a six day trial continuance because of
defense counsel’s preplanned vacation and because the State still was waiting on DNA analysis
results from the Washington State Patrol (WSP). The court found good cause and granted the
continuance, setting trial for September 26, within the time for trial deadline.
At the September 16 status conference, the State informed the court that, despite its
efforts to seek updates with the WSP, DNA test results were not yet available. Both parties also
were still waiting for Child Protective Services records, which defense counsel wished to review
before trial. The court set the matter for status conference and possibly trial on September 26.
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No. 50266-6-II
At the September 26 status conference both the State and defense counsel requested a
trial continuance. The State still was waiting for the DNA testing results from WSP. Defense
counsel asked for a one-and-a-half week continuance because of his unavailability. The court
continued the trial date to November 7 and set a status conference hearing for October 14.
Thunder objected and refused to sign the order. The new time for trial deadline was December
7.
The State requested a hearing on October 5 to provide the court with further explanation
regarding why the DNA analysis was not yet complete. The State notified defense counsel of the
DNA analysis results on October 24.
The parties next appeared on November 7 ready for trial, but the assigned judge was in
trial on another case. Thunder also had filed a motion to dismiss for speedy trial violations and
the State requested a few days to respond to the motion. The court found good cause to continue
the matter two days to November 9 to allow the State time to respond to Thunder’s motion.
On November 9, defense counsel stated that he may need to request a trial continuance to
have an expert review the DNA evidence. After the hearing, the court entered a scheduling order
setting the trial, continuance hearing, and status conference hearing for December 9. Thunder
wrote over the copy received signature line “I reserve my rights without prejudice UCC 1-308”
and “I’m not the vessel.” CP at 293. The court also denied Thunder’s motion to dismiss for
speedy trial violations. The new time for trial deadline was January 8, 2017.
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No. 50266-6-II
At the December 9, 2016 status conference, the court continued the trial until February 23
to give the State time to respond to Thunder’s request for supplemental discovery regarding the
WSP’s DNA analysis. The new time for trial deadline was March 25.1
The parties were present in court and ready for trial on February 23. Because of court
congestion, the trial court placed Thunder’s case in trailing status until February 27. The trial
began on February 27.
Conviction and Community Custody Conditions
Thunder was convicted at trial of all four counts of second degree child rape. The trial
court’s sentence imposed several post-release community custody conditions. The conditions
included requirements that prohibited Thunder from using alcohol, required an alcohol and
chemical dependency evaluation, prohibited his Internet usage without approval, and prohibited
him from entering sex-related businesses or accessing sexually explicit material.
Thunder appeals his convictions, the imposition of certain community custody
conditions, and the imposition of the criminal filing fee and the DNA collection fee.
ANALYSIS
A. RIGHT TO SELF-REPRESENTATION
Thunder argues that the trial court erred in denying his repeated requests to represent
himself. We disagree.
1
There is an apparent scrivener’s error on the December 9, 2016 continuance order, incorrectly
recording the new time for trial deadline as February 13, 2017, despite the fact that trial was
continued to February 23, 2017 at the December 9 hearing. Per CrR 3.3(b)(5), the new time for
trial deadline was actually March 25, 2017 (30 days after the continued trial date of February
23).
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No. 50266-6-II
1. Legal Principles
Article I, section 22 of the Washington Constitution and the Sixth Amendment to the
United States Constitution guarantee a criminal defendant both the right to assistance of counsel
and a right to self-representation. State v. Howard, 1 Wn. App. 2d 420, 424, 405 P.3d 1039(2017). The right of self-representation is “so fundamental that it is afforded despite its
potentially detrimental impact on both the defendant and the administration of justice.” State v.
Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).
There is a tension between the right of self-representation and the right to counsel. State
v. Curry, 191 Wn.2d 475, 482, 423 P.3d 179 (2018). A defendant’s request to represent himself
or herself waives the right to counsel. Howard, 1 Wn. App. 2d at 425. Consequently, self-
representation is not an absolute right. Id. A trial court must first determine that the defendant’s
waiver of the right to counsel is voluntary, knowing, and intelligent before allowing self-
representation. Id. If this waiver is proper, a criminal defendant has a right to represent himself
or herself. Id.Preferably, the trial court will determine the validity of a waiver of counsel through a
colloquy on the record with the defendant. Id. “[T]he trial court should assume responsibility
for assuring that decisions regarding self-representation are made with at least minimal
knowledge of what the task entails.” City of Bellevue v. Acrey, 103 Wn.2d 203, 210, 691 P.2d
957 (1984). The trial court must advise the defendant of the potential dangers and disadvantages
of self-representation, ensuring that the defendant “ ‘knows what he is doing and his choice is
made with eyes open.’ ” In re Pers. Restraint of Rhome, 172 Wn.2d 654, 659, 260 P.3d 874(2011) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 5629
No. 50266-6-II
(1975)). The trial court also must ensure that the defendant knows the maximum penalty for the
charged crime. See Howard, 1 Wn. App. 2d at 429.
In addition, when determining whether the defendant’s waiver is proper, the trial court
must make every reasonable presumption against a waiver of the right to counsel. Madsen, 168
Wn.2d at 504. If the defendant’s request is “made without a general understanding of the
consequences,” the trial court may deny that request for self-representation. Id. at 505.
On the other hand, a defendant’s ability to represent himself is irrelevant in addressing a
motion for self-representation. See Madsen, 168 Wn.2d at 505. The court in Madsen
emphasized that, “[a] court may not deny a motion for self-representation based on grounds that
self-representation would be detrimental to the defendant’s ability to present his case.” Id. For
example, a trial court “may not deny pro se status merely because the defendant is unfamiliar
with legal rules.” Id. at 509. And the trial court may not consider the defendant’s skill and
judgment in assessing the right to self-representation. Rhome, 172 Wn.2d at 663. As long as the
defendant’s waiver of his constitutional right to counsel is voluntary, knowing, and intelligent, a
defendant is free to exercise his or her constitutional right to self-representation even if
exercising that right is not in his or her best interests. See Madsen, 168 Wn.2d at 504-05.
Further, the fact that a defendant’s behavior impedes the orderly administration of justice
is not a sufficient basis for denying a defendant’s request to represent himself. Id. at 509.
“Courts must not sacrifice constitutional rights on the altar of efficiency.” Id. And the fact that
the defendant is “obnoxious” also is not a proper basis for denying self-representation. Id.Finally, the court in Madsen emphasized that the presumption against waiver of the right
to counsel does not mean that the trial court can deny a request for self-representation without a
proper basis. 168 Wn.2d at 504-05.
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No. 50266-6-II
The grounds that allow a court to deny a defendant the right to self-representation
are limited to a finding that the defendant’s request is equivocal, untimely,
involuntary, or made without a general understanding of the consequences. Such a
finding must be based on some identifiable fact.
Id.We review for an abuse of discretion a trial court’s decision to grant or deny a request for
self-representation. Curry, 191 Wn.2d at 483. Abuse of discretion occurs where the trial court’s
decision is manifestly unreasonable, based on facts unsupported in the record, or based on an
application of the wrong legal standard. Id. at 483-84. We give deference to the trial court’s
decision because trial courts have more experience than appellate courts in considering self-
representation requests and “are better equipped to balance the competing considerations.” Id. at
485. In addition, “trial courts have the benefit of observing the behavior and characteristics of
the defendant, the inflections and language used to make the request, and the circumstances and
context in which it was made.” Id.
2. Thunder’s Requests to Represent Himself
Thunder argues that the trial court erred in denying his three formal requests to represent
himself. Because of Thunder’s persistent refusal to meaningfully answer the court’s questions
each time a colloquy on the record was attempted, the trial court could not ascertain whether his
waiver of the right to counsel was knowing and intelligent. Accordingly, we hold that the trial
court properly denied each of Thunder’s requests to represent himself.
a. October 2016 Request
Thunder argues that the trial court erred in denying his October 2016 request to represent
himself on the ground that “it would be detrimental for him to do so.” Thunder emphasizes that
the court did not enter a finding that his request was equivocal, untimely, or not voluntary,
knowing, or intelligent.
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No. 50266-6-II
As Thunder correctly points out, the fact that self-representation would be detrimental to
the defendant is not a proper basis for denying a self-representation request. Madsen, 168 Wn.2d
at 505. “A court may not deny a motion for self-representation based on grounds that self-
representation would be detrimental to the defendant’s ability to present his case.” Id. The trial
court erred in suggesting otherwise. However, we can affirm on any grounds supported by the
record. State v. Jameison, 4 Wn. App. 2d 184, 203, 421 P.3d 463 (2018). We hold that the trial
court did not commit reversible error for two reasons.
First, Thunder’s failure to cooperate with the trial court’s attempted colloquy regarding
his self-representation request prevented the court from determining whether the request was
made with “a general understanding of the consequences.” Madsen, 168 Wn.2d at 505. The
court asked Thunder whether he had any legal training, what he knew about preparing a case for
trial, what he knew about criminal procedure and the evidence rules, and what he had studied to
determine his legal rights. Thunder refused to answer any of these questions, simply repeating
after each one that he wanted to represent himself. When Thunder did answer a few questions,
he demonstrated a lack of understanding regarding the case against him. When asked about the
charges, he stated, “There is no charges.” RP (Oct. 5, 2016) at 7. When asked about the State’s
burden of proof, he stated, “Burden of proof? What do you mean by burden of proof?” RP (Oct.
5, 2016) at 7.
If Thunder had answered that he had no legal knowledge or skills but wanted to represent
himself anyway, the court may not have been able to deny the request on that basis. Madsen,
168 Wn.2d at 509; see also Rhome, 172 Wn.2d at 663. But Thunder’s refusal to answer
prevented the court from assessing whether his request was knowing and intelligent. And the
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No. 50266-6-II
few questions he did answer showed that he did not understand the case against him. Therefore,
we hold that the trial court had adequate grounds to deny Thunder’s request to represent himself.
Second, the trial court did not make a final ruling on the self-representation issue at the
October 2016 hearing. The court did initially state that it did not believe that it could allow
Thunder to represent himself. But at the conclusion of the hearing, the court stated that it would
“continue to attempt to inquire into [Thunder’s] understanding and ability to articulate the
requisite matters before granting him the right of self-representation in this circumstance.” RP
(Oct. 5, 2016) at 18-19. By doing so, the court both properly indulged the presumption against
finding a waiver of counsel and allowed Thunder a future opportunity to show that his desire to
represent himself was knowing, voluntary, and intelligent.
We hold that the trial court did not abuse its discretion in denying Thunder’s October
2016 request to represent himself.
b. November 2016 Request
Thunder argues that the court erred in denying his November 2016 request to represent
himself. He claims that the record shows that his request was knowing and intelligent.2 We
disagree.
During his colloquy with the court, Thunder refused to acknowledge that any charges
were filed against him, the nature of the charges, or the seriousness of the charges. Further,
Thunder failed to demonstrate an understanding of his maximum penalty if convicted, which the
court was required to address. See Howard, 1 Wn. App. 2d at 429. When the court asked
Thunder if he understood that if convicted he potentially could be sent to prison and incarcerated
2
Thunder also argues that the trial court erred in ruling that his November 2016 request was
untimely. However, the State does not rely on untimeliness to support the trial court’s denial of
the November 2016 self-representation request. Therefore, we do not address this argument.
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No. 50266-6-II
for the rest of his life, Thunder simply repeatedly answered, “Slavery.” RP (Nov. 7, 2016) at 7-
8.
These exchanges support the trial court’s finding that Thunder did not understand the
consequences of waiving his right to counsel and that Thunder’s waiver was not made
intelligently. Thunder stubbornly refused to give the court enough information during the
colloquy to determine whether his waiver of counsel was knowing and intelligent. Because of
Thunder’s failure to answer questions, the court could not determine whether he understood that
he had been charged with four counts of second degree child rape or that he could face life in
prison if convicted.
Accordingly, we hold that the trial court did not abuse its discretion in denying Thunder’s
November 2016 request to represent himself.
c. February 2017 Request
Thunder argues that the court erred in denying his February 2017 request to represent
himself. He claims that he recognized the risks of self-representation and the seriousness of the
charges, but wanted to represent himself anyway.3 We disagree.
The trial court based its denial of Thunder’s motion in part on a concern that Thunder did
not have an adequate understanding of the law. A court may not deny self-representation
“merely because the defendant is unfamiliar with legal rules.” Madsen 168 Wn.2d at 509. In
making a determination about whether the defendant has properly waived his right to counsel,
the trial court may not consider the defendant’s skill and judgment. Rhome, 172 Wn.2d at 663.
3
Thunder also argues that the trial court erred in ruling that his February 2017 request was
untimely. Once again, the State does not rely on untimeliness to support the trial court’s denial
of the February 2017 self-representation request. Therefore, we do not address this argument.
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No. 50266-6-II
Therefore, the trial court erred to the extent it based the denial of Thunder’s self-representation
request on Thunder’s lack of legal knowledge.
However, the trial court based its decision on two other grounds. First, the court
concluded that Thunder’s waiver of the right to counsel was not knowing and intelligent.
Although Thunder did answer some of the questions he refused to answer in earlier proceedings,
he still failed to demonstrate an understanding of important concepts. When the court asked if he
understood that he could be incarcerated for life if convicted, Thunder answered, “I comprehend
that it is a fee that you guys are trying to charge me with and trying to use the jail time to pay the
fee off when I have the right to pay the fee off and not do jail time.” RP (Feb. 28, 2017) at 35.
The court followed up by asking if Thunder understood what was at stake, he responded, “I
comprehend a fee.” RP (Feb. 28, 2017) at 35.
Thunder also failed to understand or accept the fact that the court planned to appoint
standby counsel if Thunder represented himself. See State v. McDonald, 143 Wn.2d 506, 511,
22 P.3d 791 (2001) (noting that the trial court has authority to appoint standby counsel even over
the defendant’s objection). When the court asked if appointing Thunder’s current defense
counsel as standby counsel would be a problem, Thunder answered, “Like I said, I’m using
myself as a special appearance underneath Rule E8 [sic] without granting jurisdiction. I don’t
grant you guys jurisdiction.” RP (Feb. 28, 2017) at 42.
Second, the trial court based its ruling on a concern about Thunder’s conduct in court and
his refusal to confirm that his conduct would not be an issue. A defendant’s disruptive behavior
in the courtroom can preclude the defendant from representing himself. State v. Hemenway, 122
Wn. App. 787, 792, 95 P.3d 408 (2004). A defendant cannot seek self-representation in order to
cause delay or obstruct the administration of justice, and a defendant can waive self-
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No. 50266-6-II
representation by disruptive words or misconduct. Id.; see also State v. Thompson, 169 Wn.
App. 436, 468-69, 290 P.3d 996 (2012) (holding that the defendant’s purposefully disruptive
conduct supported the trial court’s denial of a self-representation request).
Thunder’s behavior during the entire case – before, during, and after trial – was
extremely volatile, disruptive, and obstructionist. Thunder’s outbursts and other disruptive
conduct was so severe that the court authorized correction officers to use a stun belt on him in
order to maintain order and decorum during trial.
The trial court attempted to obtain assurances from Thunder that he would conduct
himself appropriately, but Thunder refused to answer the court’s questions. Instead, he
responded with rambling answers that had nothing to do with his conduct.
Had Thunder represented himself at trial, he likely would have used the opportunity to
delay and frustrate the proceedings in the same manner he had delayed and frustrated his
arraignment, the collection of DNA evidence, and all three of his colloquies with the court on the
issue of self-representation. Thunder gave the court no indication that his behavior would
improve if allowed to represent himself.
As the Supreme Court emphasized in Curry, we must give deference to trial courts in
addressing self-representation requests in part because “trial courts have the benefit of observing
the behavior and characteristics of the defendant.” 191 Wn.2d at 485. The trial court here was
in the best position to determine whether Thunder’s waiver of his right to counsel was knowing
and intelligent, and we defer to the trial court’s conclusion that the waiver was not. Accordingly,
we hold that the trial court did not abuse its discretion by denying Thunder’s February 2016
request to represent himself.
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B. TIME FOR TRIAL/SPEEDY TRIAL RIGHT
Thunder argues the 12-month delay between his arraignment and trial violated both CrR
3.3, the time for trial rule, and his constitutional right to a speedy trial. We disagree.
1. Time for Trial Under CrR 3.3
a. Legal Principles
CrR 3.3 governs a defendant’s right to be brought to trial in a timely manner. CrR
3.3(b)(1) and (c)(1) provide that a defendant who is detained in jail must be brought to trial
within 60 days of arraignment. The purpose of this rule is to protect a defendant’s constitutional
right to a speedy trial. A charge not brought to trial within the time limits of CrR 3.3 generally
must be dismissed with prejudice. CrR 3.3(h).
CrR 3.3(e) provides that certain time periods are excluded in computing the time for trial.
These excludable time periods include continuances the court grants under CrR 3.3(f), CrR
3.3(e)(3) and “[u]navoidable or unforeseen circumstances affecting the time for trial beyond the
control of the court or of the parties.” CrR 3.3(e)(8). Under CrR 3.3(f), the trial court may
continue the trial date on motion of the court or a party “when such continuance is required in the
administration of justice and the defendant will not be prejudiced in the presentation of his or her
defense.” CrR 3.3(f)(2). In granting a motion for a continuance, “[t]he court must state on the
record or in writing the reasons for the continuance.” CrR 3.3(f)(2). When any period is
excluded under CrR 3.3(e), the time for trial period extends to at least 30 days after the excluded
period ends. CrR 3.3(b)(5).
We review an alleged violation of the time for trial rule de novo. State v. Kenyon, 167
Wn.2d 130, 135, 216 P.3d 1024 (2009). However, we review the trial court’s decision to grant a
continuance for an abuse of discretion. See id. In addition, once a continuance is properly
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No. 50266-6-II
granted the trial court has discretion in selecting the new trial date. See State v. Flinn, 154
Wn.2d 193, 200-01, 110 P.3d 748 (2005). A court abuses its discretion if its decision is
manifestly unreasonable, based on untenable grounds, or based on untenable reasons. Kenyon,
167 Wn.2d at 135.
b. Thunder’s Objections to Continuances
Thunder argues that the court abused its discretion by granting continuances over his
objections, even though his attorney on his behalf brought or joined many of the continuance
motions. We disagree.
Moving for a continuance “by or on behalf of any party waives that party’s objection to
the requested delay.” CrR 3.3(f)(2). Under the time for trial rule, defense counsel has authority
to make binding decisions to seek continuances. State v. Ollivier, 178 Wn.2d 813, 825, 312
P.3d 1 (2013).
A trial court does not necessarily abuse its discretion by granting defense counsel’s
request for more time to prepare for trial to ensure effective representation and a fair trial, even
over defendant’s objection. State v. Saunders, 153 Wn. App. 209, 217 n.8, 220 P.3d 1238(2009). This rule applies where defense counsel’s requests are adequately supported by reasons
designed to avoid prejudice to defendant, even in the case of multiple requests for such
continuances. See Ollivier, 178 Wn.2d at 824-25.
Thunder analogizes his case to Saunders, where the appellate court dismissed a
conviction based on CrR 3.3 after the trial court granted multiple continuances requested by both
the State and defense counsel despite the defendant’s objections. 53 Wn. App. at 220-21.
However, in Saunders the continuances at issue were granted to facilitate ongoing plea
negotiations contrary to the defendant’s desire to go to trial. Id. And the appellate court
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ultimately reversed not because the defendant objected to the continuances, but because the trial
court did not give an adequate explanation for granting them. Id. at 221.
Here, the continuances were not granted to permit plea negotiations. Instead, every
continuance was to allow for either substitution of counsel, ensuring Thunder’s competency to
stand trial, ongoing developments in the trial evidence, or short periods of court congestion.
Each continuance was granted with the goal of ensuring Thunder’s right to a fair trial. And the
trial court gave explanations for each continuance, either on the record or in a scheduling order.
Although Thunder made repeated objections, his attorney was authorized to request the
continuances in order to avoid prejudice to him.4
c. Reasonableness of the Continuances
Thunder argues that the trial court abused its discretion by granting continuances that
were manifestly unreasonable. He argues that although both the State and defense counsel
claimed they needed more time to prepare for trial, none of the continuances had a valid basis.
We find that each continuance was reasonable.
First, the trial court granted continuances in April and June 2016 to allow both parties
additional time to prepare for trial. In both instances, a new attorney had recently appeared in
the case: new defense counsel in April and a new prosecutor in July.
Second, the trial court granted a continuance in August because defense counsel had a
preplanned vacation and because the State was still waiting for DNA analysis results from WSP.
Under CrR 3.3(f), the trial court can consider scheduling conflicts in granting continuances.
4
Thunder also argues that defense counsel’s motions for continuance were inconsistent with his
ethical obligations under RPC 1.2(a), which requires counsel to “abide by a client’s decisions
concerning the objectives of representation.” But Thunder has not asserted an ineffective
assistance of counsel claim. Therefore, we need not address this argument.
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Flinn, 154 Wn.2d at 200. And granting a short continuance to accommodate defense counsel’s
vacation plans is not abuse of discretion, in the absence of any showing that defendant was
prejudiced by delay. State v. Selam, 97 Wn. App. 140, 143, 982 P.2d 679 (1999). Here, trial
was only continued six days, during which time nothing occurred to prejudice Thunder’s case.
In fact, the State was still awaiting test results and likely would have secured a continuance on its
own even without the conflict with defense counsel’s vacation.
Third, the trial court granted a continuance in September to allow time for WSP to
complete the DNA analysis. A continuance necessary for the State to obtain DNA evidence does
not deprive a defendant charged with rape of his statutory right to speedy trial where no harm
was done to defendant’s case in the interim. See State v. Cauthron, 120 Wn.2d 879, 910, 846
P.2d 502 (1993). Here, nothing occurred during the additional time the State requested to wait
for the DNA results that harmed Thunder’s case. In fact, during this time, defense counsel
prepared and filed a motion to dismiss for speedy trial violations and late disclosure of DNA
evidence.
Fourth, the trial court granted a two-day continuance on November 7 to allow the State
time to respond to Thunder’s motion to dismiss based on speedy trial violations. When the
parties returned to court on November 9, the court denied this motion and granted defense
counsel a continuance to secure a DNA expert to review the State’s evidence. Thunder himself
seems to have condoned this request, because the record reflects that he verbally authorized his
attorney to find an expert.
Fifth, in December, the trial court granted the State a continuance in order to comply with
the defense’s request for supplemental discovery regarding the DNA analysis from WSP.
Allowing for discovery is a reasonable basis for a continuance. See Ollivier, 178 Wn.2d at 825.
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No. 50266-6-II
Given the trial court’s broad discretion in addressing continuances and the absence of any
prejudice, we hold that the trial court did not abuse its discretion in granting the continuances in
Thunder’s case. The proper continuances extend the time for trial deadlines, meaning that no
time for trial violations occurred. Accordingly, we hold that the trial court did not violate the
time for trial requirements under CrR 3.3.
2. Constitutional Right to Speedy Trial
a. Legal Principles
Both the Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee a criminal defendant the right to a speedy trial. State v.
Iniguez, 167 Wn.2d 273, 281-82, 217 P.3d 768 (2009). The analysis for speedy trial rights under
article I, section 22 is substantially the same as the analysis under the Sixth Amendment.
Ollivier, 178 Wn.2d at 826. We review questions of constitutional speedy trial rights de novo.
Iniguez, 167 Wn.2d at 280-81.
We use the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.
Ed. 2d 101 (1972) to determine whether the defendant’s constitutional right to speedy trial was
violated. Ollivier, 178 Wn.2d at 827. Among the nonexclusive factors to be considered are the
“ ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice
to the defendant.’ ” Id. (quoting Barker, 407 U.S. at 530). None of these factors alone is
sufficient or necessary to find a violation, but they assist in determining whether the right to a
speedy trial has been violated. Ollivier, 178 Wn.2d at 827.
In order to trigger the analysis under Barker, the defendant must make a threshold
showing that the time between the filing of charges and trial exceeded the ordinary interval for
prosecution and crossed into presumptively prejudicial delay. Id. (citing Doggett v. United
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No. 50266-6-II
States, 505 U.S. 647, 651-52, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). The longer the delay
and the less complex the case, the more likely the court will find presumptive prejudice. See
Ollivier, 178 Wn.2d at 828. If this threshold showing is met, the court then considers “ ‘the
extent to which the delay stretches beyond the bare minimum needed to trigger judicial
examination of the claim.’ ” Id. at 828 (quoting Doggett, 505 U.S. at 652). In addition, courts
generally have found presumptively prejudicial delay at the point where the delay approaches
one year. Ollivier, 178 Wn.2d at 828.
Here, there was a period of 357 days between Thunder’s arraignment and the start of his
trial. The charges against Thunder, four counts of second degree child rape, were relatively
straightforward. Because the length of the delay is at odds with the complexity of the case, the
delay is presumptively prejudicial and triggers the Barker analysis.
b. Length of Delay
The first Barker factor is length of delay. Ollivier, 178 Wn.2d at 827-28. Thunder
argues that the 12-month delay in his case weighs in his favor because his case was not complex
and because he objected to the continuances requested by both attorneys.
But we disagree that this was a case where the delay was highly disproportionate to the
complexity of the issues and both parties’ need for preparation. Early on, Thunder’s volatile and
uncooperative behavior necessitated a competency hearing to ensure he was able to stand trial.
The State did not learn until July 2016 that DNA evidence from the rape kit was available to
compare to Thunder’s DNA. The trial court concluded that the three months it took to test the
DNA was not unduly lengthy. Defense counsel then requested additional time to secure an
expert and subsequently filed a supplemental discovery request on the DNA evidence for which
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No. 50266-6-II
the State required additional time to respond, delaying the trial from November 2016 to February
2017.
In Ollivier, the Supreme Court concluded that a 23-month delay weighed against the
defendant when the delay was sought by defense counsel and was reasonably necessary for
defense preparation. 178 Wn.2d at 828-31. Similarly, nearly all of the continuances here were
sought in order to ensure that defense counsel was fully prepared and to ensure that Thunder
received a fair trial after new issues came to light. We conclude that the length of delay was
reasonably necessary for defense counsel’s trial preparation and therefore weighs against
Thunder.
c. Reason for Delay
The second Barker factor is the reason for the delay. Ollivier, 178 Wn.2d at 827, 831.
Thunder argues that this factor in the Barker analysis weighs in his favor because he objected to
each continuance requested by his attorney and was ready to represent himself at all times.
However, even where continuances are sought over the defendant’s objection, delay caused by
the defendant’s counsel can be charged against the defendant under the Barker balancing test if
the continuances were sought in order to provide professional assistance in the defendant’s
interests. Ollivier, 178 Wn.2d at 834.
A number of reasons factored into the delays in Thunder’s case: new attorneys appearing
in the case on both sides, a competency hearing to ensure Thunder could stand trial, the wait for
DNA test results, occasional court congestion, the defense’s request for more time to find a DNA
expert, and the State’s request for additional time to provide the defense with supplemental
discovery. Of the seven continuances granted in this case, defense counsel brought or joined five
of them for the sake of being better prepared for trial. The two continuances defense counsel did
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No. 50266-6-II
not join were both for purposes of allowing the State to respond to filings by the defense made
shortly before trial was scheduled.
Thunder also argues that the government negligently mismanaged DNA evidence,
disclosing the results of DNA testing so close to trial that he was forced to choose between a
waiver of his speedy trial right and his right to effective assistance of counsel. However,
Thunder’s defense counsel made this same argument in his November 2016 motion to dismiss,
which the trial court denied. The court found that the delay in completing DNA test results was
not attributable to the State’s negligent handling and that the results were acquired within a
normal time frame. Thunder does not challenge this finding on appeal, and unchallenged
findings of fact supported by substantial evidence are verities on appeal. State v. Chambers, 197
Wn. App. 96, 124, 387 P.3d 1108 (2016), review denied, 188 Wn.2d 1010 (2017).
Given the fact that most of the continuances in this case were granted to accommodate
the trial preparation of both parties, we conclude that the reason for delay factor should weigh
against Thunder.
d. Assertion of Right
The third Barker factor is the defendant’s assertion of his speedy trial right. Ollivier, 178
Wn.2d at 827, 837. Thunder argues that because he requested to represent himself and objected
to each continuance, this factor of the Barker analysis should weigh in his favor.
However, as stated above, continuances sought by defense counsel in the defendant’s best
interest can be charged against the defendant in a Barker analysis even if the defendant himself
objected to the continuances. Ollivier, 178 Wn.2d at 834, 838. Nothing in the record suggests
that defense counsel requested the continuances for any other reason than to be more adequately
prepared to present Thunder’s defense at trial. In Ollivier, the fact that defense counsel
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No. 50266-6-II
requested many of the continuances and furthered the defendant’s right to counsel meant that this
factor did not weigh in favor of the defendant. Id. at 838-40.
We conclude that the assertion of rights factor does not weigh in Thunder’s favor.
e. Prejudice
The fourth Barker factor is whether the delay has prejudiced the defendant. Ollivier, 178
Wn.2d at 827, 840. Thunder argues that this factor weighs in his favor because the delays in his
case subjected him to heightened anxiety and concern while enduring lengthier pre-trial
incarceration caused by continuances requested by his unwanted counsel.
Prejudice to the defendant as a result of delay may consist of (1) oppressive pretrial
incarceration, (2) the defendant’s anxiety and concern, and (3) the possibility that dimming
memories and loss of exculpatory evidence will impair the defense. Ollivier, 178 Wn.2d at 840.
Prejudice is not always presumed. Id. A defendant ordinarily must establish actual rather than
theoretical prejudice. Id. “ ‘When the government prosecutes a case with reasonable diligence, a
defendant who cannot demonstrate how his defense was prejudiced with specificity will not
make out a speedy trial claim.’ ” Id. at 841 (quoting United States v. Howard, 218 F.3d 556,
564-65 (6th Cir. 2000)).
Here, Thunder has not pointed to any specific way in which his defense was prejudiced as
a result of any of the continuances granted in his case beyond a generalized claim that he was
exposed to heightened anxiety about his case. We conclude that this argument is not sufficient to
show prejudice to Thunder and that this factor weighs against him.
f. Balancing the Factors
We must balance the individual Barker factors. Ollivier, 178 Wn. 2d at 846. Taking all
the Barker factors together, we find that the balancing test weighs against Thunder.
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No. 50266-6-II
Accordingly, we hold that Thunder’s speedy trial rights under the United States and Washington
Constitutions were not violated.
C. COMMUNITY CUSTODY CONDITIONS
Thunder argues, and the State concedes, that the trial court acted without authority in
imposing community custody conditions prohibiting the use of alcohol, requiring an alcohol and
chemical dependency evaluation, and prohibiting access to the Internet because they were not
crime-related. We agree. Thunder also argues that community custody conditions prohibiting
Thunder from entering sex-related businesses and possessing or viewing sexually explicit
material were not crime-related. We disagree.
1. Standard of Review
We review de novo the sentencing court’s statutory authority to impose a particular
community custody condition. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526 (2010).
However, we review a challenge that the condition is not crime-related for abuse of discretion.
State v. Nguyen, 191 Wn.2d 671, 683-84, 425 P.3d 847 (2018).
If we determine a sentencing court imposed an unauthorized condition on community
custody, we remedy the error by remanding to the sentencing court with instruction to strike the
unauthorized condition. State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008).
2. Crime-Related Community Custody Conditions
Thunder argues that the trial court imposed several community custody conditions that
were not crime related. RCW 9.94A.703(3)(f) provides the sentencing court discretionary
authority to order Thunder to “[c]omply with any crime-related prohibitions.” A “ ‘crime-related
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No. 50266-6-II
prohibition’ means an order of a court prohibiting conduct that directly relates to the
circumstances of the crime for which the offender has been convicted.” RCW 9.94A.030(10).
“A court does not abuse its discretion if a ‘reasonable relationship’ between the crime of
conviction and the community custody condition exists. . . . The prohibited conduct need not be
identical to the crime of conviction, but there must be ‘some basis for the connection.’ ” Id. at
684 (quoting State v. Irwin, 191 Wn. App. 644, 657, 364 P.3d 830 (2015)).
a. Use of Alcohol
Condition 11 states, “Do not use or consume alcohol.” CP at 243. Where the underlying
crime is not alcohol related, an instruction not to “consume” alcohol is proper, but an instruction
not to “use” alcohol is not. State v. Norris, 1 Wn. App. 2d 87, 100, 404 P.3d 83 (2017), aff’d in
part, rev’d in part sub nom. State v. Nguyen, 191 Wn.2d 671, 425 P.3d 848 (2018). Here, there
is no evidence that alcohol played a role in Thunder’s offense. The State concedes that the
sentencing court did not have authority to order Thunder to refrain from the “use” of alcohol.
Therefore, the trial court erred by prohibiting the “use” of alcohol in condition 11.
b. Alcohol and Chemical Dependency Evaluation
Condition 22 requires Thunder to obtain an alcohol and chemical dependency evaluation
and to follow through with all recommendations of the evaluator. Conditions imposed as
“rehabilitative programs” such as alcohol and chemical dependency interventions “must be
supported by evidence in the record or found by the trial court to be related to the underlying
offense.” State v. Munoz-Rivera, 190 Wn. App. 870, 892, 361 P.3d 182 (2015). The State
concedes that nothing in the record supports the contention that drugs or alcohol contributed to
Thunder’s crimes. Therefore, the trial court erred in imposing condition 22.
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No. 50266-6-II
c. Use of Internet
Condition 23 states, “No [I]nternet access or use, including email, without the prior
approval of the supervising [community corrections officer].” Condition 24 prohibits “use of a
computer, phone, or computer-related device with access to the Internet.” CP at 244.
Internet use is crime related if there is evidence that Internet use “contributed in any way
to the crime.” O’Cain, 144 Wn. App. at 775. Here, there was no evidence that the Internet use
contributed in any way to Thunder’s offense. The State concedes that conditions 23 and 24 are
not crime related. Therefore, the trial court erred in imposing conditions 23 and 24.
d. Sex-Related Businesses and Sexually Explicit Material
Community custody conditions 9 and 10 are special conditions that apply to sex offenses.
They provide as follows:
9. Do not enter sex-related businesses, including: x-rated movies, adult bookstores,
strip clubs, and any location where the primary source of business is related to
sexually explicit material. – Absent approval of treatment provider[.]
10. Do not possess, use, access or view any sexually explicit material as defined
by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material
depicting any person engaged in sexually explicit conduct as defined by RCW
9.68A.011(4) unless given prior approval by your sexual deviancy provider.
CP at 243.
Thunder argues that these conditions both must be stricken because they are not crime
related and RCW 9.94A.703 does not explicitly authorize them. However, the Supreme Court in
Nguyen held that a trial court did not abuse its discretion in imposing a condition prohibiting the
defendant from entering sex-related businesses when the crime of conviction was child
molestation. The court noted that there was no evidence the defendant in that case met her
victim in a sex-related business or that her presence in such a business played a role in her
crimes. Nguyen, 191 Wn.2d at 687. But the court stated that “this condition has more to do with
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No. 50266-6-II
[the defendant’s] inability to control her urges and impulsivities than it does with the specific
facts of her crimes.” Id.
Similarly, the court in Nguyen held that a trial court did not abuse its discretion in
imposing a condition prohibiting the defendant from possessing or viewing sexually explicit
material when the crime of conviction was child rape and child molestation. Id. at 686. The
court stated that access to sexually explicit material was reasonably related to the defendant’s
crimes. Id. at 684. The court stated, “It is both logical and reasonable to conclude that a
convicted person who cannot suppress sexual urges should be prohibited from accessing
‘sexually explicit materials,’ the only purpose of which is to invoke sexual stimulation.” Id. at
686.
Based on the court’s analysis in Nguyen, we hold that the trial court did not abuse its
discretion in imposing community custody conditions 9 and 10.
D. IMPOSITION OF LFOS
Thunder argues in a supplemental brief that under recently enacted legislation, we should
strike the criminal filing fee and DNA collection fee the trial court imposed on him. The State
concedes that the criminal filing fee should be stricken but argues that Thunder has made no
showing that a prior DNA collection occurred. We agree that the criminal filing fee should be
stricken, but we affirm the imposition of the DNA collection fee.
The trial court imposed as mandatory LFOs a $200 criminal filing fee and a $100 DNA
collection fee. In 2018, the legislature amended (1) RCW 36.18.020(2)(h), which now prohibits
imposition of the criminal filing fee on an indigent defendant; and (2) RCW 43.43.7541, which
established that the DNA collection fee no longer is mandatory if the offender’s DNA previously
had been collected because of a prior conviction. The Supreme Court in State v. Ramirez held
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No. 50266-6-II
that these amendments apply prospectively to cases pending on direct appeal. 191 Wn.2d 732,
749-50, 426 P.3d 714 (2018).
Here, the trial court found that Thunder was indigent at the time of sentencing.
Therefore, under the current version of RCW 36.18.020(2)(h) the criminal filing fee imposed
upon Thunder must be stricken.
Thunder argues that the DNA fee must also be stricken because his DNA was collected
before trial in this case. But this collection of Thunder’s DNA does not affect the DNA
collection fee imposed here because the amended RCW 43.43.7541 applies only if the offender’s
DNA has been collected as a result of a prior conviction.
Thunder also argues that his previous convictions would have resulted in the State’s
collection of his DNA in connection with those convictions. Thunder was convicted of a
misdemeanor in 2008 and again in 2010. Under RCW 43.43.7541, the 2010 misdemeanor
harassment conviction should have resulted in the State’s collection of Thunder’s DNA and the
imposition of the $100 collection fee. However, despite a search of WSP records, the State was
unable to find evidence of a prior felony conviction or that Thunder’s DNA was previously
collected, and Thunder presents no evidence that the DNA fee previously was imposed on him.
Therefore, Thunder has not shown that under the current version of RCW 43.43.7541 the
trial court erred in imposing the DNA collection fee.
E. SAG CLAIMS
In his SAG, Thunder identifies two claims: “Allocution Statement of Fraud” and “Notice
of Forgery.” SAG at 1. Also included is a “Certificate of Exemption on Indigenous Grounds
Denial of Corporate Status and Negative Areument [sic] /Affidavit.” SAG at 1. And the SAG
contains a heading stating, “Notice to the Agent is Notice to the Principle [sic] and Notice to the
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No. 50266-6-II
Principle [sic] is Notice to the Agent.” SAG at 9. The SAG contains many of the same opinions,
assertions, and nontraditional legal theories that Thunder expressed in the form of outbursts
during proceedings on the record.
RAP 10.10(c) states that an “appellate court will not consider a defendant’s statement of
additional grounds for review if it does not inform the court of the nature and occurrence of
alleged errors.” Thunder’s claims essentially are unintelligible, and the SAG does not
meaningfully explain how the trial court erred. In addition, RAP 10.10(c) states that “the
appellate court is not obligated to search the record in support of” the defendant’s SAG claims.
Thunder’s SAG does not contain any specific references to the record.
Accordingly, we decline to consider Thunder’s SAG claims.
CONCLUSION
We affirm Thunder’s convictions, but we remand to the trial court to strike a portion of
community custody condition 11 and community custody conditions 22, 23, and 24 and to strike
the criminal filing fee.
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.
MAXA, C.J.
We concur:
WORSWICK, J.
MELNICK, J.
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