State Of Washington v. William Witkowski ( 2019 )


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  •                                                                                                    Filed
    Washington State
    Court of Appeals
    Division Two
    January 15, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                                   No. 49708-5-II
    Respondent,
    v.
    WILLIAM HOWARD WITKOWSKI,                                            Consolidated with
    Appellant.
    In the Matter of the Personal Restraint                                No. 50725-1-II
    Petition of
    WILLIAM HOWARD WITKOWSKI,
    UNPUBLISHED OPINION
    Petitioner.
    WORSWICK, J. — William Witkowski appeals from his convictions of two counts of
    unlawful possession of a controlled substance with intent to deliver and unlawful possession of a
    stolen vehicle, asserting that (1) the trial court erred by failing to enter written findings of fact
    and conclusions of law following CrR 3.5 and CrR 3.6 hearings, (2) his judgment and sentence
    contains a scrivener’s error incorrectly stating he was tried on the State’s original information,
    and (3) his judgment and sentence contains a scrivener’s error in that it fails to state the trial
    court’s same criminal conduct finding.
    In his statement of additional grounds for review (SAG), Witkowski asserts that (4)
    evidence seized from his vehicle should have been suppressed based on a faulty search warrant
    and because the State failed to produce a record of the telephonic affidavit in support of the
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    warrant, (5) his defense counsel was ineffective at the suppression hearing and at trial, (6) the
    trial court violated his state and federal constitutional rights by conducting the CrR 3.6 hearing
    prior to the CrR 3.5 hearing, (7) the State violated his due process and equal protection rights by
    failing to timely prepare proposed findings of fact and conclusions of law from the CrR 3.5 and
    CrR 3.6 hearings, (8) his right to counsel was violated when he was unrepresented at
    postjudgment proceedings, and (9) cumulative error denied his right to a fair trial. Additionally,
    Witkowski has filed a personal restraint petition that we have consolidated with his direct appeal,
    in which he raises several claims of ineffective assistance of counsel. He also appears to argue in
    his petition that the warrantless search of the vehicle’s trunk and the contents therein exceeded
    the scope of a permissible scope of a Terry1 stop or scope of a search pursuant to an arrest.
    The State concedes that Witkowski’s judgment and sentence contains scrivener’s errors
    by incorrectly stating that he was tried on the State’s original information and by failing to reflect
    the trial court’s finding that his unlawful possession of a controlled substance with intent to
    deliver convictions constituted the same criminal conduct. We accept the State’s concessions
    and remand for a correction of Witkowski’s judgment and sentence consistent with this opinion.
    In all other respects we affirm. We also deny Witkowski’s petition.
    FACTS
    On July 2, 2015, Pierce County Sheriff’s Deputies Martin Zurfluh and Lucas Baker
    stopped a green Volkswagen Passat that Witkowski was driving. Zurfluh told Witkowski that he
    had received information that the vehicle was possibly stolen. Witkowski handed Zurfluh a
    1
    Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968).
    2
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    vehicle registration for a white 2000 Volkswagen Passat that listed the same license plate on the
    vehicle and the vehicle identification number (VIN) on the dashboard. Witkowski told Zurfluh
    that the vehicle had been repainted green.
    Zurfluh saw that the VIN on the dashboard had edges on it, making it appear as if a
    different VIN had been placed over the original VIN. Zurfluh checked the VIN located under
    the hood of the car and saw that it did not match the VIN on Witkowski’s registration. Zurfluh
    ran a check of the VIN located under the hood and saw that it matched the VIN for a reported
    stolen vehicle. Zurfluh impounded the vehicle and had it towed to a secure facility.
    On July 6, 2015, Zurfluh obtained a warrant to search the Passat. Zurfluh saw backpacks
    in the trunk of the vehicle that contained $8,956 in cash, a substance later tested and confirmed
    to be 13.3 grams of methamphetamines, a substance later tested and confirmed to be 66.3 grams
    of heroin, a scale, drug paraphernalia, unused packaging material, and a notebook with names
    and numbers written in it. On August 6, 2015, Witkowski called the Pierce County Sheriff’s
    Department to inquire about how he could retrieve the car and cash seized by law enforcement.
    In October 2015, Zurfluh searched Witkowski’s home during an unrelated investigation and
    found the Passat’s original license plate in a closet.
    On May 27, 2016, the State charged Witkowski by amended information with two counts
    of unlawful possession of a controlled substance with an intent to deliver and unlawful
    possession of a stolen vehicle. Before trial, Witkowski filed a motion to suppress “all evidence
    and statements obtained as a result of an unlawful search and seizure.” Clerk’s Papers (CP) at 3.
    The trial court held a CrR 3.6 hearing addressing Witkowski’s suppression motion on September
    1, 2016.
    3
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    Zurfluh testified at the CrR 3.6 suppression hearing that several weeks prior to stopping
    Witkowski, a citizen informant had told him that Witkowski was driving a stolen green Passat
    with switched license plates and VINs. Zurfluh stated that he worked with the informant on
    several different occasions for approximately a year and a half and that the informant had
    previously provided accurate information. Zurfluh further stated that the informant personally
    knew Witkowski and had been to his residence. Zurfluh said that he and Baker saw a green
    Passat on July 2 and ran the license plate, which came back as registered to Witkowski. Zurfluh
    stated that Witkowski was cooperative during the stop and had exited the vehicle after handing
    over his registration; Zurfluh did not order Witkowski out of the vehicle or restrain him in any
    manner. At some point during the stop, Witkowski opened the hood to the vehicle. Zurfluh
    stated that he could not recall whether he had asked Witkowski to open the hood but that he
    knew he did not order Witkowski to open it.
    Zurfluh further testified at the suppression hearing that after receiving a search warrant,
    he searched the trunk of the Passat and found a substance resembling heroin. After finding the
    suspected heroin, Zurfluh applied for, and received, an addendum to the search warrant to
    expand the scope of his search. After receiving the addendum, Zurfluh searched backpacks
    located in the trunk of the vehicle and found $8,956 in cash, 13.3 grams of suspected
    methamphetamines, 66.3 grams of suspected heroin, a scale, drug paraphernalia, unused
    packaging material, and a notebook with names and numbers written in it. Witkowski did not
    testify at the CrR 3.6 hearing.
    The trial court denied Witkowski’s motion to suppress in an oral ruling, stating that
    Zurfluh had a reasonable suspicion sufficient to justify the initial Terry stop of the vehicle based
    4
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    on information provided by the informant, Witkowski had voluntarily opened the hood of his car
    revealing in plain sight the VIN therein, and the VIN inside the hood that was associated with a
    reported stolen vehicle supplied Zurfluh with probable cause in support of the warrant to search
    the contents of the vehicle.
    The trial court also conducted a CrR 3.5 hearing to determine the admissibility of
    Witkowski’s pre-Miranda2 statements during the stop, at which Zurfluh testified. The trial court
    orally ruled that Witkowski’s statements were admissible at trial, finding that he was not in
    custody up until the point he was placed in handcuffs and read his Miranda rights. At the
    conclusion of the CrR 3.5 hearing, the trial court requested the State to draft proposed findings of
    fact and conclusions of law, stating that the State should submit the proposed findings and
    conclusions prior to jury deliberations, but the trial court did not enter findings of fact and
    conclusions of law for either the CrR 3.5 or CrR 3.6 hearing at this time.
    At trial, witnesses testified consistently with the facts stated above. Additionally, Yelena
    Girzhu testified at trial that her husband’s car dealership had purchased a green 2004
    Volkswagen Passat in 2015. Girzhu reported the vehicle as stolen after she had taken it to a
    paint shop and it was never returned. In her 2015 written statement to police, Girzhu identified
    the VIN of the stolen vehicle as the same VIN located in the hood of the vehicle Witkowski had
    been driving.
    The jury returned verdicts finding Witkowski guilty of two counts of unlawful possession
    of a controlled substance with intent to deliver and unlawful possession of a stolen vehicle.
    2
    Witkowski did not make any statements after being advised of his rights under Miranda v.
    Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).
    5
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    Witkowski appealed. After Witkowski filed his opening brief in this appeal, the trial court
    entered written findings of fact and conclusions of law in support of its CrR 3.5 and CrR 3.6
    rulings.
    ANALYSIS
    I. LATE ENTRY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
    Witkowski first contends that we must remand to the trial court to enter written findings
    of fact and conclusions of law as required under CrR 3.5 and CrR 3.6. Because the trial court
    entered the required written findings and conclusions while this appeal was pending, and because
    Witkowski does not claim any prejudice from the trial court’s delayed entry, we find no error.
    A trial court is required to enter written findings of fact and conclusions of law following
    a CrR 3.5 or CrR 3.6 hearing on the admissibility of evidence.3 But a trial court may submit
    written findings and conclusions while an appeal is pending “if the defendant is not prejudiced
    by the belated entry of findings.” State v. Cannon, 
    130 Wash. 2d 313
    , 329, 
    922 P.2d 1293
    (1996).
    And we do not infer any prejudice from delay alone. State v. Head, 
    136 Wash. 2d 619
    , 625, 
    964 P.2d 1187
    (1998).
    Here, the trial court entered its written findings of fact and conclusions of law after
    Witkowski filed his opening brief. The trial court’s belated findings and conclusions are
    consistent with its oral rulings following the CrR 3.5 and CrR 3.6 hearings, and Witkowski does
    3
    CrR 3.5(c) provides, “After the hearing, the court shall set forth in writing: (1) the undisputed
    facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to
    whether the statement is admissible and the reasons therefor.” CrR 3.6(b) provides, “If an
    evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact
    and conclusions of law.”
    6
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    not claim that the delayed entry caused him prejudice. See 
    Cannon, 130 Wash. 2d at 329-30
    (finding no prejudice when late-filed findings and conclusions were consistent with the trial
    court’s oral ruling). Accordingly, we find no error in the trial court’s late entry of written
    findings and conclusions.
    II. SCRIVENER’S ERRORS
    Next, Witkowski asserts that his judgment and sentence contains scrivener’s errors in that
    it (1) incorrectly states he was tried on the State’s original information, and (2) fails to reflect the
    trial court’s same criminal conduct finding. The State concedes that Witkowski’s judgment and
    sentence contains these scrivener’s errors. We accept the State’s concessions and remand to the
    trial court for a correction of Witkowski’s judgment and sentence consistent with this opinion.
    A scrivener’s error is a clerical mistake that, when amended, would correctly convey the
    trial court’s intention as expressed in the record at trial. State v. Davis, 
    160 Wash. App. 471
    , 478,
    
    248 P.3d 121
    (2011), superseded by statute on other grounds as recognized in In re Pers.
    Restraint of Combs, 
    176 Wash. App. 112
    , 119, 
    308 P.3d 763
    (2013); see also Presidential Estates
    Apartment Assocs. v. Barrett, 
    129 Wash. 2d 320
    , 326, 
    917 P.2d 100
    (1996). The remedy for a
    scrivener’s error is remand to the trial court for correction. State v. Makekau, 
    194 Wash. App. 407
    ,
    421, 
    378 P.3d 577
    (2016); CrR 7.8(a).
    Witkowski is correct that his judgment and sentence states he was tried on the State’s
    original information when, in fact, he was tried on an amended information. We accept the
    State’s concession.
    Witkowski is also correct that his judgment and sentence fails to state the trial court’s
    finding that his two convictions for unlawful possession of a controlled substance with intent
    7
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    deliver constituted the same criminal conduct. Here, the State asserted at sentencing that
    Witkowski’s two unlawful possession of a controlled substance with intent to deliver convictions
    constituted the same criminal conduct for purposes of calculating his offender score at seven for
    those convictions. The trial court agreed with the State’s offender score analysis and imposed a
    standard range sentence for Witkowski’s unlawful possession of a controlled substance with
    intent to deliver convictions based on an offender score of seven. Thus, the trial court implicitly
    found that Witkowski’s two convictions for unlawful possession of a controlled substance with
    intent to deliver constituted the same criminal conduct for purposes of calculating his offender
    score.4 The trial court, however, did not reflect its same criminal conduct finding in Witkowski’s
    judgment and sentence.5 Accordingly, we accept the State’s concession and remand to the trial
    court for a correction of Witkowski’s judgment and sentence to correctly reflect that he was tried
    on the State’s amended information and to correct Witkowski’s judgment and sentence to reflect
    4
    RCW 9.94A.589(1)(a) provides in relevant part:
    [W]henever a person is to be sentenced for two or more current offenses, the
    sentence range for each current offense shall be determined by using all other
    current and prior convictions as if they were prior convictions for the purpose of
    the offender score: PROVIDED, That if the court enters a finding that some or all
    of the current offenses encompass the same criminal conduct then those current
    offenses shall be counted as one crime. . . . “Same criminal conduct,” as used in
    this subsection, means two or more crimes that require the same criminal intent, are
    committed at the same time and place, and involve the same victim. . . .
    5
    Witkowski’s judgment and sentence contains preprinted language that states, “Current offenses
    encompassing the same criminal conduct and counting as one crime in determining the offender
    score are (RCW 9.94A.589): . . . .” CP at 31. The trial court did not check the box next to this
    preprinted language and did not complete the preprinted language to state that Witkowski’s two
    current offenses for unlawful possession of a controlled substance with intent to deliver
    encompassed the same criminal conduct.
    8
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    its finding that his two unlawful possession of a controlled substance with intent to deliver
    convictions constituted the same criminal conduct.
    III. SAG
    A.     Search Warrant
    Witkowski appears to contend in his SAG that evidence seized from the Passat should
    have been suppressed based on an invalid search warrant. Specifically, Witkowski contends for
    the first time on appeal that the search warrant was invalid because the issuing court did not sign
    the warrant until four days after it was executed. Witkowski also contends for the first time on
    appeal that the trial court was required to suppress evidence seized from the vehicle because the
    State failed to produce a record of the telephonic affidavit in support of the search warrant.
    1. RAP 2.5
    In general, we do not address claims of error raised for the first time on appeal. RAP
    2.5(a). But RAP 2.5(a)(3) provides an exception to this general rule where an appellant can
    show a manifest error affecting a constitutional right. State v. Gordon, 
    172 Wash. 2d 671
    , 676, 
    260 P.3d 884
    (2011). To show manifest error, Witkowski must demonstrate actual and identifiable
    prejudice to his constitutional rights at trial. State v. Kirkman, 
    159 Wash. 2d 918
    , 926-27, 
    155 P.3d 125
    (2007). To demonstrate actual prejudice in this context, Witkowski must show that the trial
    court would have excluded evidence in response to a suppression motion raising these claims and
    that such exclusion would have had a practical or identifiable consequence at trial. State v.
    McFarland, 
    127 Wash. 2d 322
    , 333-34, 
    899 P.2d 1251
    (1995); 
    Gordon, 172 Wash. 2d at 676
    . To
    determine whether Witkowski has made this threshold showing, we necessarily must preview the
    merits of his alleged error. State v. Walsh, 
    143 Wash. 2d 1
    , 8, 
    17 P.3d 591
    (2001).
    9
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    2. Preview of Arguments
    A preview of Witkowski’s claim that the search warrant was invalid because it was
    executed prior to it being signed by the issuing court shows that it clearly lacks merit and, thus,
    he fails to demonstrate manifest error warranting review of the claim for the first time on appeal
    under RAP 2.5(a)(3). Witkowski does not identify any evidence in the record showing that
    Deputy Zurfluh had executed a search warrant prior to it being signed by the issuing court.6 And
    Zurfluh’s uncontroverted testimony at the CrR 3.6 hearing and trial was that he did not search
    the vehicle until after obtaining a search warrant on July 6, 2015. Because Witkowski fails to
    show manifest error, we decline to review this claim under RAP 2.5(a)(3).
    A preview of Witkowski’s claim that the State failed to produce a record of a telephonic
    affidavit in support of the search warrant also clearly lacks merit based on the limited record
    before us. CrR 2.3(c) permits evidence in support of a search warrant to be in the form of sworn
    testimony, but the rule states that “[a]ny sworn testimony must be recorded and made part of the
    court record and shall be transcribed if requested by a party if there is a challenge to the validity
    of the warrant or if ordered by the court.” The failure to record sworn testimony supporting
    probable cause to issue a search warrant may violate a defendant’s rights under the Fourth
    Amendment to the United States Constitution and article 1, section 7 of the Washington
    Constitution. See State v. Myers, 
    117 Wash. 2d 332
    , 344, 
    815 P.2d 761
    (1991).
    Here, the record before us does not reveal whether the court issuing the search warrant
    had relied on sworn telephonic testimony or, instead, had relied on a written affidavit. Further,
    6
    Witkowski has not designated a copy of the search warrant at issue for the record on appeal.
    10
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    even assuming that the issuing court had relied on sworn telephonic testimony, there is nothing
    in the record showing that it failed to record such testimony. Because the facts necessary to
    address Witkowski’s claim are not in the record before us, he cannot show actual prejudice and,
    thus, he fails to show manifest error. See 
    McFarland, 127 Wash. 2d at 333
    (“If the facts necessary
    to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and
    the error is not manifest.”). Accordingly, we decline to review this claim under RAP 2.5(a)(3).
    B.       Ineffective Assistance of Counsel
    Next, Witkowski contends in his SAG that his counsel was ineffective at the suppression
    hearing and at trial. Specifically, Witkowski contends his counsel was ineffective for (1) failing
    to request a Franks7 hearing, (2) failing to request a Casal8 hearing, (3) failing to interview
    State’s witnesses, (4) failing to call witnesses to testify at trial, (5) failing to request a lesser-
    included offense jury instruction, (6) failing to appeal the trial court’s denial of motion to hire an
    investigator, and (7) requesting that he sign postjudgment findings of fact and conclusions of law
    absent sufficient consultation.
    We review ineffective assistance of counsel claims de novo. State v. Sutherby, 
    165 Wash. 2d 870
    , 883, 
    204 P.3d 916
    (2009). To demonstrate that he received ineffective assistance of
    counsel, Witkowski must show both (1) that defense counsel’s performance was deficient and (2)
    that the deficient performance resulted in prejudice. State v. Reichenbach, 
    153 Wash. 2d 126
    , 130,
    
    101 P.3d 80
    (2004). Performance is deficient if it falls below an objective standard of
    reasonableness. 
    Reichenbach, 153 Wash. 2d at 130
    . Prejudice ensues if there is a reasonable
    7
    Franks v. Delaware, 
    438 U.S. 154
    , 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
    (1978).
    8
    State v. Casal, 
    103 Wash. 2d 812
    , 
    699 P.2d 1234
    (1985).
    11
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    possibility that the outcome of the proceeding would have differed but for counsel’s deficient
    performance. 
    Reichenbach, 153 Wash. 2d at 130
    . If Witkowski fails to make either showing, we
    need not inquire further. State v. Foster, 
    140 Wash. App. 266
    , 273, 
    166 P.3d 726
    (2007).
    Additionally, we strongly presume that counsel’s performance was reasonable and, to rebut this
    presumption, Witkowski “bears the burden of establishing the absence of any ‘conceivable
    legitimate tactic explaining counsel’s performance.’” State v. Grier, 
    171 Wash. 2d 17
    , 42, 
    246 P.3d 1260
    (2011) (quoting 
    Reichenbach, 153 Wash. 2d at 130
    ).
    1. Failure To Request Franks Hearing
    Witkowski contends that his defense counsel was ineffective for failing to request a
    Franks hearing. We disagree.
    In Franks v. Delaware, 
    438 U.S. 154
    , 155-56, 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
    (1978),
    the United States Supreme Court held that the Fourth Amendment requires a trial court to
    conduct an evidentiary hearing upon the defendant’s request if the defendant makes a substantial
    preliminary showing that an affiant deliberately or recklessly made material misstatements in a
    search warrant affidavit. “Allegations of negligence or innocent mistake are insufficient.”
    
    Franks, 438 U.S. at 171
    . Rather, to be entitled to a Franks hearing “[t]here must be allegations
    of deliberate falsehood or of reckless disregard for the truth, and those allegations must be
    accompanied by an offer of proof.” 
    Franks, 438 U.S. at 171
    .
    Here, there were no allegations below that a search warrant affiant had made deliberate
    misrepresentations that were material to the issuing court’s finding of probable cause, and
    Witkowski does not claim any particular misrepresentations in his SAG. Instead, Witkowski
    baldly asserts that the “affiant’s warrant affidavit was filled with blatant falsities and
    12
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    inaccuracies submitted willfully to secure search warrant.” SAG at 4. But “[t]o mandate an
    evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported
    by more than a mere desire to cross-examine.” 
    Franks, 438 U.S. at 171
    . Because the record
    does not support the preliminary showing required for a Franks hearing, Witkowski cannot show
    that the trial court would have granted a Franks hearing if requested by counsel. Accordingly, he
    cannot demonstrate prejudice, and his ineffective assistance of counsel claim on this ground
    fails.
    2. Failure To Request Casal Hearing
    Next, Witkowski contends that his counsel was ineffective for failing to request a Casal
    hearing. Again, we disagree.
    In State v. Casal, 
    103 Wash. 2d 812
    , 820, 
    699 P.2d 1234
    (1985), our Supreme Court held
    that when a defendant presents information that “casts a reasonable doubt on the veracity of
    material representations made by [a search warrant] affiant” regarding statements allegedly made
    by a confidential informant, a trial court should exercise its discretion to conduct an in camera
    hearing at which the State must disclose the identity of a confidential informant to the trial
    court.9 The purpose of this Casal hearing is for the trial court to determine whether the search
    warrant affiant truthfully reported the facts stated by the confidential informant and, based on the
    trial court’s determination of the affiant’s veracity, whether probable cause existed to issue the
    search 
    warrant. 103 Wash. 2d at 822
    .
    9
    The defendant and defendant’s counsel are excluded from the hearing and the transcript of the
    hearing must be sealed to protect the informant’s anonymity. 
    Casal, 103 Wash. 2d at 821
    .
    13
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    Here, Witkowski did not present any information below casting a reasonable doubt on a
    search warrant affiant’s veracity, and presents no such information in his SAG. Instead, similar
    to his argument regarding counsel’s decision not to request a Franks hearing, he merely asserts
    that his counsel was required to request a Casal hearing “[i]n view of all the false statements
    made by the affiant.” SAG at 12. This conclusory allegation that the affiant made false
    statements is insufficient to cast a reasonable doubt on the affiant’s veracity and, thus,
    Witkowski cannot show that the trial court would have granted a request for a Casal hearing.
    Accordingly, Witkowski cannot demonstrate any prejudice resulting from defense counsel’s
    decision to not request a Casal hearing, and his claim of ineffective assistance on this ground
    fails.
    3. Failure To Interview State’s Witnesses
    Next, Witkowski contends that his defense counsel was ineffective for failing to
    interview State’s witnesses before trial. We cannot address the merits of this claim because there
    is nothing in the record before us showing that defense counsel failed to interview State’s
    witnesses.
    4. Failure To Call Witnesses
    Next, Witkowski contends that his defense counsel was ineffective for failing to call
    witnesses on his behalf. But Witkowski fails to identify any potential witnesses that his defense
    counsel could have called and fails to explain how any potential witness testimony would have
    aided in his defense. Accordingly, he demonstrates neither deficient performance nor resulting
    prejudice in support of an ineffective assistance of counsel claim on this ground.
    14
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    5. Failure To Request Lesser Included Offense Jury Instruction
    Next, Witkowski contends that defense counsel was ineffective for failing to request a
    lesser included offense jury instruction. But Witkowski fails to identify what lesser included
    offense jury instruction defense counsel should have requested. Accordingly, we do not address
    this argument. RAP 10.10(c).
    6. Failure To Appeal Trial Court’s Denial of Motion To Hire Investigator
    Next, Witkowski contends that counsel was ineffective for failing to appeal the trial
    court’s denial of a motion to hire an investigator. We cannot address this claim on the record
    before us as it does not contain any trial court ruling regarding a request to hire an investigator.
    7. Failure To Meet or Consult Prior to Postjudgment Proceeding
    Next, Witkowski contends that the assigned counsel representing him at a postjudgment
    proceeding was ineffective for advising him to sign the trial court’s belated CrR 3.5 and CrR 3.6
    findings and conclusions without first meeting and consulting with him. The record belies
    Witkowski’s contention. Witkowski’s counsel at the postjudgment proceeding requested a
    continuance of time to review the transcripts from the CrR 3.5 and CrR 3.6 hearings, which
    request the trial court denied. Neither Witkowski nor his assigned counsel signed the written
    findings and conclusions from the CrR 3.5 and CrR 3.6 hearings. Therefore, Witkowski fails to
    demonstrate that his counsel performed deficiently.
    C.     Timing of CrR 3.5 and CrR 3.6 Hearings
    Next, Witkowski contends that the timing of his CrR 3.5 and CrR 3.6 hearings violated
    his right against self-incrimination under the Fifth Amendment to the United States Constitution
    and article I, section 9 of the Washington Constitution because Deputy Zurfluh testified at the
    15
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    CrR 3.6 hearing about statements Witkowski had made before the trial court conducted the CrR
    3.5 hearing to determine the admissibility of those statements. We disagree.
    Assuming without deciding that a trial court errs by considering a defendant’s statements
    when determining the admissibility of evidence at a CrR 3.6 hearing before determining the
    admissibility of those statements at a CrR 3.5 hearing, any such error would be harmless beyond
    a reasonable doubt here. The trial court ultimately conducted a CrR 3.5 hearing to determine the
    admissibility of Witkowski’s pre-Miranda statements10 and concluded that the statements were
    admissible because Witkowski was not in custody for purposes of Miranda when making the
    statements. Because Witkowski does not challenge the trial court’s CrR 3.5 ruling on the
    admissibility of his statements, any error in considering those statements at the CrR 3.6 hearing
    is harmless beyond a reasonable doubt.
    D.     Failure To Timely Prepare Findings and Conclusions
    Next, Witkowski contends that the State violated his constitutional rights by failing to
    timely prepare proposed findings of fact and conclusions of law for the CrR 3.5 and 3.6 hearings
    as ordered by the trial court. Although the trial court requested the State to prepare and submit
    proposed findings and conclusion before the start of jury deliberations, it is unclear from the
    record whether the delay in entering written findings and conclusions was due to the State’s
    failure to comply with this request or for other reasons. Regardless, as addressed above, a trial
    court may submit written findings and conclusions while an appeal is pending “if the defendant
    10
    The State did not seek to admit any post-Miranda statements made by Witkowski at the CrR
    3.5 hearing and did not present any such statements at the CrR 3.6 hearing.
    16
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    is not prejudiced by the belated entry of findings,” and we do not infer any prejudice from the
    delay alone. 
    Cannon, 130 Wash. 2d at 329
    ; 
    Head, 136 Wash. 2d at 625
    .
    Here, Witkowski does not identify any specific prejudice resulting from the State’s
    alleged failure to timely prepare and submit proposed findings and conclusions or the trial
    court’s belated entry of those findings and conclusions. Instead, Witkowski asserts that the
    State’s failure to timely submit proposed findings and conclusion violated his rights under the
    United States and Washington Constitutions to due process, equal protection, a fair trial, and to
    the administration of justice without unnecessary delay. But Witkowski does not explain how
    the State’s failure violated these rights. This assertion of constitutional violations without
    explanation are insufficient to “inform the court of the nature and occurrence of alleged errors”
    and, thus, we do further consider it. RAP 10.10(c); see also State v. Johnson, 
    119 Wash. 2d 167
    ,
    171, 
    829 P.2d 1082
    (1992) (“‘[N]aked castings into the constitutional sea are not sufficient to
    command judicial consideration and discussion.’” (internal quotation marks omitted) (quoting In
    re Rosier, 
    105 Wash. 2d 606
    , 616, 
    717 P.2d 1353
    (1986))).
    E.     Right to Counsel
    Next, Witkowski contends that his right to counsel was violated when he was made to
    appear at post-judgment proceedings absent legal representation. Because there is nothing in the
    record showing that Witkowski was unrepresented at a critical stage of his criminal proceedings,
    we do not further consider this contention.
    F.     Cumulative Error
    Finally, Witkowski contends in his SAG that cumulative error denied his right to a fair
    trial. We disagree. The cumulative error doctrine applies when several errors occurred at the
    17
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    trial level, none of which alone warrants reversal, but the combined errors effectively denied the
    defendant a fair trial. State v. Hodges, 
    118 Wash. App. 668
    , 673-74, 
    77 P.3d 375
    (2003). Apart
    from the scrivener’s errors in Witkowski’s judgment and sentence, which are appropriately
    remedied by remanding for corrections, he has not demonstrated any error occurred at trial.
    Accordingly, the cumulative error doctrine does not apply, and we affirm Witkowski’s
    convictions.
    We affirm Witkowski’s convictions and remand for a correction of the scrivener’s errors
    in his judgment and sentence consistent with this opinion.
    IV. PERSONAL RESTRAINT PETITION
    Witkowski raises several ineffective assistance of counsel claims in a personal restraint
    petition that we have consolidated with his direct appeal. Specifically, Witkowski argues in his
    petition that his defense counsel was ineffective for (1) failing to request a Franks hearing, (2)
    failing to request a Casal hearing, (3) failing to propose certain jury instructions, (4) failing to
    object to prosecutorial misconduct, (5) failing to object to the State’s discovery violations or
    Brady11 violations, (6) failing to call witnesses to testify at trial, (7) failing to interview the
    State’s witnesses before trial, (8) failing to hire an investigator or personally conduct an
    investigation, (9) making false or misleading statements during closing argument, and (10)
    failing to prepare a presentence investigation. Witkowski also appears to argue that Deputy
    Zurfluh exceeded the scope of a Terry stop or search pursuant to an arrest when he conducted a
    warrantless search of the vehicle’s trunk and of the contents in the trunk. We deny Witkowski’s
    petition.
    11
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963).
    18
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    To obtain relief through a personal restraint petition, Witkowski must show either
    constitutional error that resulted in actual and substantial prejudice or nonconstitutional error that
    resulted in a complete miscarriage of justice. In re Pers. Restraint of Cook, 
    114 Wash. 2d 802
    , 810-
    13, 
    792 P.2d 802
    (1990). Additionally, Witkowski must support his claims of error with a
    statement of facts on which his claim of unlawful restraint is based and the evidence available to
    support his factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2);
    In re Pers. Restraint of Williams, 
    111 Wash. 2d 353
    , 365, 
    759 P.2d 436
    (1998); see also 
    Cook, 114 Wash. 2d at 813-14
    .
    A.      Failure To Request Franks Hearing
    Witkowski first argues in his petition that his counsel was ineffective for failing to
    request a Franks hearing. We disagree.
    As we noted when addressing this same claim in Witkowski’s direct appeal, the record
    does not show any allegations of the search warrant affiant making deliberate misrepresentations
    that were material to the issuing court’s probable cause finding. And Witkowski does not
    identify in his petition any evidence outside the direct appeal record showing that the search
    warrant affiant had made such misrepresentations. Because “allegations of deliberate falsehood
    or of reckless disregard for the truth . . . accompanied by an offer of proof” are required to be
    entitled to a Franks hearing, and because Witkowski does not identify any evidence showing that
    the search warrant affiant had made such falsehoods, he cannot show that the trial court would
    have granted a request for a Franks 
    hearing. 438 U.S. at 171
    . Accordingly, he fails to
    demonstrate any prejudice resulting from defense counsel’s decision to not request a Franks
    hearing, and his claim of ineffective assistance of counsel on this ground fails.
    19
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    B.     Failure To Request a Casal Hearing
    Next, Witkowski argues in his petition that his counsel was ineffective for failing to
    request a Casal hearing. Again, we disagree.
    As we noted when addressing this same claim in Witkowski’s direct appeal, the record
    does not show that Witkowski had any information casting a reasonable doubt on material
    representations made by a search warrant affiant regarding statements attributed to a confidential
    informant. And Witkowski does not identify in his petition any evidence outside the direct
    appeal record that casts a reasonable doubt on the affiant’s representations. Because information
    casting a reasonable doubt on the affiant’s representations is a necessary prerequisite to a Casal
    hearing, Witkowski cannot show that the trial court would have granted a request for a Casal
    
    hearing. 103 Wash. 2d at 820
    . Accordingly, he fails to demonstrate any prejudice resulting from
    defense counsel’s decision to not request a Casal hearing, and his claim of ineffective assistance
    of counsel on this ground fails.
    C.     Failure To Request Jury Instructions
    Next, Witkowski argues in his petition that his counsel was ineffective for failing to
    request a lesser-included offense jury instruction and a jury instruction regarding testimony of an
    accomplice. Again, we disagree.
    Witkowski does not support his claim regarding a lesser-included offense jury instruction
    with a statement of facts and the evidence available to support his factual allegations as required
    under RAP 16.7(a)(2). Instead, he merely concludes that his “State and Federal Constitutional
    rights to effective counsel were violated by his attorney’s failure to ask for jury instructions for
    any lesser included offenses,” without identifying any particular lesser-included offense jury
    20
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    instruction to which he would have been entitled had defense counsel requested it. Petition at 8.
    Because Witkowski’s claim on this issue fails to comply with RAP 16.7(a)(2), we do not further
    consider it.
    Witkowski similarly fails to support his claim regarding an accomplice testimony jury
    instruction with a statement of facts and the evidence available to support his factual allegations
    as required under RAP 16.7(a)(2). Moreover, this claim clearly lacks merit as the State did not
    present any testimony from an alleged accomplice to Witkowski’s crimes at trial.
    D.      Failure To Object to Prosecutorial Misconduct
    Next, Witkowski argues in his petition that his counsel was ineffective for failing to
    object to numerous instances of prosecutorial misconduct. But Witkowski does not identify any
    particular instance of prosecutorial misconduct to which his defense counsel should have
    objected. Accordingly, his claim on this issue fails to comply with RAP 16.7(a)(2), and we do
    not further address it.
    E.      Failure To Object to Discovery Violations or Brady Violations.
    Next, Witkowski argues in his petition that his counsel was ineffective for failing to
    object to the State’s discovery violations or violations under Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963). But Witkowski does identify any evidence supporting his
    factual allegation that the State committed a discovery violation or a Brady violation.
    Accordingly, we do not further consider this claim. RAP 16.7(a)(2).
    F.      Remaining Ineffective Assistance of Counsel Claims
    Witkowski fails to support any of his remaining ineffective assistance of counsel claims
    with a statement of facts and the evidence available to support his factual allegations as required
    21
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    under RAP 16.7(a)(2). Instead, he merely concludes without explanation that his counsel was
    ineffective for “failing to call any defense proposed witnesses, failing to interview State
    witness[es] pre-trial, failing to hire investigator, or personal[ly conduct] pre-trial investigations
    himself,” making “false/misleading statement confirming State’s assertion of guilt in counsel’s
    closing statement/remark,” and “failing to prepare pre-sentence investigation/recommend DOSA
    review.” Petition at 2. These conclusory allegations are insufficient to meet the requirements of
    RAP 16.7(a)(2) and, thus, we do not further consider Witkowski’s remaining claims. 
    Williams, 111 Wash. 2d at 365
    ; 
    Cook, 114 Wash. 2d at 813-14
    .
    G.     Vehicle Search
    Finally, although difficult to discern, it appears Witkowski argues in his petition that
    Deputy Zurfluh exceeded the scope of a permissible Terry stop or exceeded the scope of a search
    incident to arrest by conducting a warrantless search of the locked trunk of the vehicle and of the
    contents therein.12 This claim lacks merit as the unchallenged findings from the CrR 3.6 hearing
    show that Zurfluh did not search the vehicle until after he had obtained a warrant. Accordingly,
    we deny Witkowski’s petition.
    12
    In apparent response to this argument, the State asserts that Witkowski’s claim must fail in
    part because he failed to provide this court with a copy of the search warrant issued in this case,
    which was admitted as exhibit 2 at the CrR 3.6 suppression hearing. We again remind the State
    that it is not the petitioner’s burden to provide the record related to claims of error. RAP
    16.7(a)(2) requires the petitioner to provide a statement of facts upon which his or her claim is
    based and to indicate what evidence is available to support those claims. RAP 16.7 does not
    require the petitioner to provide records from court proceedings. Instead, RAP 16.9(a) places the
    burden of providing a record from relevant proceedings on the State, stating in part, “If an
    allegation in the petition can be answered by reference to a record of another proceeding, the
    response should so indicate and include a copy of those parts of the record that are relevant.”
    (Emphasis added.) Because we may resolve Witkowski’s claim without reference to the contents
    of the search warrant issued in this case, the State’s continued misconception of its burden under
    RAP 16.7 is of no consequence in this present action.
    22
    No. 49708-5-II;
    Consolidated with No. 50725-1-II
    In summary, we affirm Witkowski’s convictions, remand for a correction of the
    scrivener’s errors in his judgment and sentence consistent with this opinion, and 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.
    Worswick, J.
    We concur:
    Maxa, C.J.
    Melnick, J.
    23