State Of Washington v. Ronald Holtz ( 2014 )

FILED
COURT OF APPEALS
DIVISION 11 "``
IN THE COURT OF APPEALS OF THE STATE OF WASHINGIT,
O
2U1tt AUG 19 AM 9: 37
TON
DIVISION II ° a \,
STATE OF WASHINGTON, No. 43995 -6 -II
Respondent,
v.
RONALD HODGE HOLTZ, aka RONALD Consolidated with
HOLTZ KEAL,
Appellant.
In re Personal Restraint Petition of No. 45427 -1 - II
RONALD HODGE HOLTZ,
UNPUBLISHED OPINION
Petitioner.
HUNT, P. J. — Ronald Hodge Holtz ( aka Ronald Holtz Keal) appeals his jury trial
conviction and standard -range sentence for felony violation of a domestic violence court order.
He argues that the trial court' s instruction advising the jury that it had a duty to return a guilty
verdict if it found that the State had proved each element of the offense beyond a reasonable
doubt is not a correct statement of the law. He raises several additional issues in a Statement of
Additional Grounds for Review' ( SAG), a supplemental SAG, and a consolidated personal
restraint petition ( PRP). We affirm his conviction and sentence, and we deny his PRP.
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
FACTS
I. No CONTACT ORDER VIOLATION
On September 19, 2011, Connie E. Elliott, the desk clerk on duty at the Sunshine Motel
in Fife, overheard two people arguing just outside of one of the motel rooms. Elliott recognized
2
the people involved as Clare Jane Strain and Ronald Holtz, from previous contacts at the motel.
A short time later, Elliott heard more arguing; saw Strain, who uses a cane, back out of the motel
room' s doorway; and saw Holtz " give [ Strain] a shove to the chest." 3 Verbatim Report of
Proceedings ( VRP) at 263. Elliott called 911.
Fife Police Officer Allen Morales and Milton Police Officer Kevin Peterson responded to
the 911 call. The officers contacted Strain and a man they later identified as Holtz. Both Holtz
and Strain confirmed that they had been arguing, but they denied any physical altercation.3 After
Morales spoke to Elliott in the motel office, the officers arrested Holtz for assault. After
arresting Holtz, Morales ran records checks on both Strain and Holtz and discovered a no contact
4
order prohibiting Holtz from contacting Strain.
II. PROCEDURE
The State charged Holtz with felony domestic violence ( DV) court order violation and
fourth degree assault. Before trial, Holtz was represented by series of attorneys. The trial court
also granted numerous continuances over Holtz' s objections.
2 Strain was Holtz' s girlfriend, with whom he was sharing a motel room.
3
At trial, Strain admitted that she and Holtz had been arguing on September 19. But she could
not " remember" if Holtz pushed her or touched her during their argument. 3 VRP at 190.
4 In contrast, Peterson later testified that he discovered the no contact order before Holtz' s arrest,
after taking his identification.
2
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
A. Motions To Suppress
Through counsel, Holtz moved to suppress all the evidence discovered. at the motel,
arguing that the officers lacked probable cause to arrest Holtz. Holtz did not argue that the
officers had unlawfully searched the motel' s guest registry. After the trial court heard testimony
from Morales and Elliott, it denied Holtz' s suppression motion.
Defense counsel then presented the court with a pro se suppression motion in which
Holtz argued that the officers had unlawfully detained him, that they had unlawfully searched the
motel' s guest registry, and they would not have discovered the no contact order at issue if it were
not for this unlawful search. The trial court did not consider this pro se motion, noting that it
contained factual statements that were not in the record because Holtz had not testified at the
suppression hearing and that Holtz had counsel; instead, the trial court placed the motion in the
court record without action. In its written findings of fact and conclusions of law, the trial court
addressed only the suppression issue litigated by counsel; it did not address Holtz' s pro se
motion.
B. Bail Reduction Hearing
Two days before trial, Holtz moved for bail reduction and release, asserting that he was
not receiving adequate medical treatment in jail. During the hearing on this matter, Holtz stated
that he had numerous physical and mental health conditions, for which he was on social security
disability. Although he described many of his physical problems, he did not describe his mental
health issues beyond asserting that he had been treated at " Greater Lakes," that he was " mentally
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
5
disabled," and that he was not receiving any kind of " treatment" in jail. VRP ( Aug. 28,
2012) at 6. The trial court denied his motion for bail reduction and release.
C. Trial
On the day of trial, defense counsel advised the trial court that Holtz had requested a
continuance to allow him to obtain " a competency evaluation and possibly a diminished capacity
evaluation." 1 VRP at 19. Addressing the trial court himself, Holtz again stated that he was
physically and mentally disabled and that he was not taking any mental health medication. This
time, he also stated that he had " six mental health conditions" and that he had " had nine
evaluations" and had had some type of involvement with Western State Hospital.6 1 VRP at 20.
The trial court denied this motion.
Before completing jury selection, the trial court notified the parties that it had some brief,
unintentional contact with some of the jurors on its way to the courtroom. Neither party
expressed concern about this contact.
The State' s witnesses testified as described above. Holtz did not present any evidence.
The State also presented copies of ( 1) two Lakewood Municipal Court orders showing that
Ronald H. Keal had previously been convicted of violating protection orders, and ( 2) a copy of a
Pierce County Superior Court judgment and sentence showing that Ronald Holtz Keal had pled
guilty to violating a protection order. A fingerprint expert testified that the fingerprints on these
documents matched the fingerprints taken from Holtz when he was booked on this offense.
5
It does not appear that Holtz submitted any documents supporting this motion.
6 Although Holtz may have had some records with him at this hearing, they are not part of the
record before us.
4
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
Before Morales, Peterson, and Elliott testified, the trial court, at defense counsel' s
request, allowed the parties to voir dire these witnesses about various matters, including whether
Elliott had shown them the motel' s registry when they responded to her 911 call. Although the
trial court initially considered ruling on additional suppression issues, it later stated that these
issues had been addressed by another judge and refused to make any additional rulings.
Following the State' s final witness but before the State rested, the trial court addressed
several " halftime" motions. 3 VRP at 301. The State rested its case before the jury the
following afternoon after the court addressed some additional issues.
D. Jury Instructions
Holtz proposed a felony " violation of a no- contact -order to convict" jury instruction that
contained the following language: " If you find from the evidence elements ( 1), ( 2), ( 3)[,] ( 4) and
5), have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of
guilty." Clerk' s Papers ( CP) at 138. Although the trial court' s to- convict instruction, number
10, differed slightly from Holtz' s proposed instruction, it stated that if the jury found all of the
elements set out in the instruction, " it will be your duty to return a verdict of guilty." CP at 109
Jury Instruction 10).
E. Verdict and Sentencing
The jury found Holtz guilty of felony violation of a DV court order, but not guilty of
fourth degree assault. The jury further found by special verdict that Holtz did not violate the no
contact order by committing an assault but that he had " twice been previously convicted for
violating the provisions of a court order." CP at 131. At sentencing, over Holtz' s objection, the
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
trial court calculated Holtz' s offender score as more than nine points. The trial court also denied
Holtz' s request for a lower sentence based on his numerous mental and physical health issues.
Holtz appeals his conviction and sentence. He also challenges his conviction and
sentence in a PRP, which we have consolidated with his direct appeal.
ANALYSIS
I. DUTY To RETURN A GUILTY VERDICT
Holtz first challenges Jury Instruction 10, the to- convict instruction for felony violation
of a DV court order. He argues that this instruction misstated the law by advising the jury that it
had a " duty to return a verdict of guilty" if the evidence proved all elements beyond a reasonable
8
doubt when there is no such requirement in the State or Federal constitutions. Br. of Appellant
at 19. The State argues that the invited error doctrine precludes this argument. We agree with
the State.
The invited error doctrine " prohibits a party from setting up an error at trial and then
complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P. 2d 762 ( 1984),
7
Defense counsel apparently presented the trial court and the State with " a plethora of
documents" related to Holtz' s physical and mental health issues; but these documents are not in
the record before us. VRP ( Sept. 21, 2012) at 5. The only document we have that refers to any
mental health issues is the " Problem List"
completed at the Pierce County Detention and
Corrections Health Clinic stating that Holtz had a history of anxiety and depression. CP at 149.
Defense counsel did, however, tell the trial court that Holtz reported " a history of bipolar disease,
schizoaffective disorder, antisocial personality disorder, [ attention deficit and hyperactivity
disorder], with serious post traumatic stress disorder, and anxiety." VRP ( Sept. 21, 2012) at 9.
8
Holtz argues that he may raise this issue for the first time on appeal under RAP 2. 5( a)( 3). But
RAP 2. 5( a)( 3) does not allow a defendant to make an argument that is prohibited by the invited
error doctrine. State v. Henderson, 114 Wn.2d 867, 869 -70, 792 P. 2d 514 ( 1990); see also State
v. Corbett, 158 Wn. App. 576, 593 n. 11, 242 P. 3d 52 ( 2010) ( distinguishing invited error from a
mere failure to object to a constitutionally erroneous instruction).
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
overruled on other grounds by State v. Olson, 126 Wn.2d 315, 319 -21, 893 P. 2d 629 ( 1995).
When a defendant has proposed instructions that the trial court gave to the jury, the defendant
cannot appeal on the ground that his own proposed instructions were improper, even if the
instruction potentially violated his constitutional rights. State v. Henderson, 114 Wn.2d 867,
868 -69, 792 P. 2d 514 ( 1990). Here, Holtz proposed a felony violation of a DV court order
instruction that contains language identical to the language he now asserts was improper.9 Thus,
the invited error doctrine prohibits Holtz from arguing that this to- convict instruction was
incorrect, and we do not further consider this argument.'°
11
II. SAG, SUPPLEMENTAL SAG, AND PRP ISSUES
A. Search of Motel' s Registry
Holtz next asserts that the officers conducted a warrantless search of the motel' s registry,
and that the officers would not have discovered the existence of the no contact order if not for
this unlawful search. The trial court did not address this issue, which Holtz raised below in a pro
se motion to suppress. Nevertheless, the record before us on appeal includes the voir dire
9 Holtz does not argue that his trial counsel provided ineffective assistance by proposing this jury
instruction.
1°
Even were we to consider the merits of this argument, it would fail. See State v. Mecham,
Wn. App. , 323 P. 3d 1088, 1095 ( 2014) ( Division One); State v. Wilson, 176 Wn. App. 147,
150 -51, 307 P. 3d 823 ( 2013) ( Division Three), review denied, 179 Wn.2d 1012 ( 2014); State v.
Brown, 130 Wn. App. 767, 770, 124 P. 3d 663 ( 2005) ( Division Two); State v. Meggyesy, 90 Wn.
App. 693, 699 -706, 958 P. 2d 319 ( Division One), review denied, 136 Wn.2d 1028 ( 1998),
abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P. 3d 188 ( 2005),
reversed by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 ( 2006).
11 Unless otherwise noted, Holtz raises these issues in his SAG or his supplemental SAG.
7
Consolidated Nos. 43995 -6 -I1 and 45427 -1 - II
testimonies of Morales, Peterson, and Elliott, which allows us to address this issue in the first
instance.
During voir dire outside the jury' s presence, Morales testified that arriving at the motel
before Peterson, he ( Morales) contacted Strain in her motel room, she told him her name, he then
contacted Elliott in the motel office, but he did not look at the motel' s guest registry. Peterson
testified that when he arrived, Morales was already speaking to Strain, and he ( Peterson) did not
Elliott12
go to the motel office. testified that when there were two officers present at the scene,
she showed one of the officers the motel' s registry, which contained Strain' s name and
identification. Regardless of whether Morales was the officer who examined the motel' s
registry, his and Peterson' s testimonies established that Morales had already spoken to Strain and
knew her name before any officer looked at the motel' s registry. Thus, even if the search of the
motel' s registry were unlawful so as to require suppression of the information obtained from the
13
registry, it would not be necessary also to suppress the later discovery of the no contact order
because Morales had already learned Strain' s identity directly from her. See State v. Green, 177.
Wn. App. 332, 343, 312 P. 3d 669 ( 2013) ( discussing " independent source exception" to the
exclusionary rule). Thus, Holtz' s suppression challenge, based on the registry search, fails.
12 Again, although it appears that the trial court later refused to reconsider any suppression
issues, it allowed Holtz' s counsel to voir dire Elliott about whether any of the responding officers
had examined the registry.
13 We note, however, the unlikelihood that such a ruling would have resulted because any the
search of the motel' s registry here was not a random and suspicionless like the search of a motel
registry in State v. Jorden, 160 Wn.2d 121, 130, 156 P. 3d 893 ( 2007); see also In re Pers.
Restraint of Nichols, 171 Wn.2d 370, 377, 256 P. 3d 1131 ( 2011) ( four justices holding that
Jorden establishes only a limited right of privacy in motel registrations and that officers may
search these records if they have individualized and particularized suspicion regarding the
subject of the search; fifth justice concurs in result but does not concur in this reasoning).
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
B. Initial Detention
Holtz next asserts that his initial detention, which he contends was from 9: 33 PM through
9: 54 PM, was improper because the officers lacked justification to hold his identification and tell
him he was not allowed to leave. We disagree.
In the absence of probable cause to arrest, police may conduct a brief investigative
detention known as a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 8891968). A Terry stop must be based on "' specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion. "' State v. Mendez,
137 Wn.2d 208, 223, 970 P. 2d 722 ( 1999) ( quoting. Terry, 392 U. S. at 21), overruled in part on
other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 1322007). The level of articulable suspicion required is "`` a substantial possibility that criminal
conduct has occurred or is about to occur. Mendez, 137 Wn.2d at 223 ( quoting State v.
Kennedy, 107 Wn.2d 1, 6, 726 P. 2d 445 ( 1986)). We examine the reasonableness of the officer' s
suspicion based on the totality of the circumstances known to the officer at the time of the initial
detention. State v. Glover, 116 Wn.2d 509, 514, 806 P. 2d 760 ( 1991).
Here, the officers were responding to a report of an assault in a particular motel room,
Holtz and Strain admitted they had been arguing; and Elliott told the officers she had heard the
arguing and had then seen Holtz " shove" Strain hard enough that she almost fell. VRP ( June 4,
2012) at 12. These facts established a substantial possibility that criminal conduct had occurred.
Thus, the officers' initial detention of Holtz was lawful.
9
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
C. Scope of Search
Holtz next appears to assert that the officers unlawfully expanded the, scope of their
search," which led to the discovery of the no contact order. SAG at 13. He contends that the
officers did not have probable cause to expand the search because several eyewitnesses denied
there having been an assault and the officers did not have Elliott identify Holtz in person at the
scene. But Holtz fails to acknowledge that ( 1) Elliott had reported seeing a man assault Strain,
and ( 2) Strain told the officers that she and Holtz had been arguing. These facts were sufficient
to allow the officers to detain Holtz long enough to determine if a crime had in fact been
committed and to run a background check, during which they discovered the no contact order.
See State v. Villarreal, 97 Wn. App. 636, 645, 984 P. 2d 1064 ( 1999), review denied, 140 Wn.2d
1008 ( 2000) ( " A warrant check during a valid criminal investigatory stop is a reasonable routine
police procedure so long as the duration of the warrant check does not unreasonably extend an
initially valid contact. ").
D. Name Change
Holtz appears to assert that the officers presented false evidence at the suppression
hearing or at
and / trial. Holtz contends that the officers could not have linked him to the no
contact order while at the motel because he had recently changed his name to Holtz and had not
been previously arrested under that name. But it is pure conjecture that there was nothing in the
records the officers relied on while at the motel that connected Holtz' s new name to his previous
10
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
name. 14 To the extent there is information outside the record supporting this claim, we cannot
consider it on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995)
the proper procedure for raising issues dependent on matters outside the record is a PRP). To
the extent Holtz is challenging the weight and credibility of the officers' testimonies, we do not
address such issues on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990); State
v. Walton, 64 Wn. App: 410, 415 -16, 824 P.2d 533, review denied, 119 Wn.2d 1011 ( 1992),
abrograted on other grounds by In re Pers. Restraint of Cross, Wn.2d , 327 P. 3d 660,
673 n. 8 ( 2014).
E. Elliott' s In -
court Identification
Holtz next argues that Elliott' s in - ourt identification during the suppression hearing
c
was impermissibly suggestive and prejudiced all proceedings." SAG at 18 ( some capitalization
omitted). Again, we disagree.
Regardless of whether Elliott' s in - ourt identification during the suppression hearing was
c
impermissibly suggestive, " 15 it was also cumulative because Morales also identified Holtz. And
there was ample additional evidence, including Strain' s testimony, establishing the no contact
14 Holtz appears to claim that the prosecutor admitted that the officers did not identify him
Holtz) until he was booked into jail and " identified" there. SAG at 9. But the part of the record
Holtz cites merely suggests that his identity was confirmed once he was booked into jail, not that
the officers did not have reason to believe Holtz was the person named in the restraining order
soon after they first contacted him at the motel.
15 SAG at 18.
11
Consolidated Nos. 43995 -6 -1I and 45427 -1 - II
16
order violation. Moreover, the jury acquitted Holtz of the assault charge and found that he had
not violated the no contact order by assaulting Strain.
F. Sufficiency of Evidence
Holtz next appears to assert there was insufficient evidence to establish that he committed
the crime. He appears to be referring either to the assault or to whether he violated the no
contact order by assaulting Strain.
In considering a challenge to the sufficiency of the evidence, we view the evidence in the
light most favorable to the State and ask whether any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). A
claim that the evidence was insufficient admits the truth of the State' s evidence and all
reasonable inferences drawn from that evidence. Salinas, 119 Wn.2d at 201. Because the jury
acquitted Holtz of the assault charge and found that he did not violate the DV court order by
assaulting Strain, there is no need to evaluate the sufficiency of the evidence as to whether an
assault occurred.
G. Speedy Trial /Continuances
1. Record
Holtz next asserts, that the trial court violated his " speedy trial" rights by granting
numerous continuances over his objections. SAG at 25. He refers us to proceedings that were
held on ( 1) October 25, 2011; ( 2) November 29, 2011; ( 3) December 6, 2011; ( 4) February 14,
2012; ( 5) March 6, 2013; ( 6) May 10, 2012, and ( 7) May 24, 2012. In his supplemental SAG,
16
To the extent Holtz is also challenging Elliott' s credibility at the suppression hearing, we note
that credibility determinations are matters for the trial court and are not subject to our review.
See Camarillo, 115 Wn.2d at 71; Walton, 64 Wn. App. at 415 -16.
12
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
Holtz also asserts that deficiencies in the appellate record have violated his right to appeal, and
he attaches copies of several orders granting multiple continuances. 17 In the interests of justice
and to allow for effective review, we consider these attached documents as if they were part of
the record before us on appeal. See RAP 9. 10; RAP 1. 2( c). Our consideration of these
documents attached to Holtz' s supplemental SAG render moot his claim that the incomplete
appellate record denied him his right to appeal. And because Holtz does not explain how
additional requested transcripts would assist him in his appeal, we deny his request for additional
transcripts.
2. CrR 3. 3 Time -
for -
Trial Standard of Review
Despite the time for trial periods set forth in CrR 3. 3, "[ t]rial within 60 days is not a
constitutional mandate." State v. Terrovona, 105 Wn.2d 632, 651, 716 P. 2d 295 ( 1986). Nor is
there any " constitutional basis for holding that the speedy trial right can be quantified into a
specified number of days or months." Barker v. Wingo, 407 U.S. 514, 523, 92 S. Ct. 2182, 33 L.
Ed. 2d 101 ( 1972). Moreover, a trial court may continue a trial under CrR 3. 3( f)(2) when a
continuance is " required in the administration of justice" and the " defendant will not be
prejudiced" in the presentation of his defense.
17
The record before us on appeal does not include orders or transcripts for the hearings on
October 25, 2011 ( October 25, 2011 transcript states, " Omnibus Order signed off the record."
VRP ( Oct. 25, 2011) at 2); November 29, 2011 ( November 29, 2011 transcript states, " Nothing
on the record in front of Judge Murphy." VRP (Nov. 29, 2011) at 2); December 6, 2011; March
20, 2012; or May 10, 2012. Holtz, however, has attached to his supplemental SAG orders
continuing the trial from each of May 10, 2012. But according to the records
these dates, except
before us, there was no continuance granted on May 10, 2012, only a conference hearing.
Consistent with our records, the order Holtz attached to his supplemental SAG does not suggest
that the court granted a continuance on May 10; on the contrary, the April 19, 2012 order notes it
was the sixth continuance, and the May 24, 2012 order shows it was the seventh continuance,
implying that there was no additional intervening continuance on May 10, as Holtz asserts.
13
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
Absent a showing of manifest abuse of discretion, we will not disturb a trial court' s grant
or denial of a CrR 3. 3 continuance or extension request. State v. Williams, 104 Wn. App. 516,
520 -21, 17 P. 3d 648 ( 2001). A trial court abuses its discretion if it bases its decision on
untenable grounds or on untenable reasons. Williams, 104 Wn. App. at 521. It is not a manifest
abuse of discretion for a trial court to grant a continuance to allow defense counsel an
opportunity to prepare for trial, even over the defendant' s express objections, in order to ensure
effective representation and a fair trial. Williams, 104 Wn. App. at 523 ( citing State v. Campbell,
103 Wn. 2d 1, 15, 691 P. 2d 929 ( 1984), cent. denied; 471 U.S. 1094 ( 1985)). Similarly, CrR
3. 3( e)( 8) allows a trial court to extend the time of trial for "[ u] navoidable or unforeseen
circumstances." Our courts have consistently held that the unavailability of counsel may
constitute an unforeseen or unavoidable circumstance, warranting a trial extension. See State v.
Carson, 128 Wn.2d 805, 814, 912 P. 2d 1016 ( 1996).
3. No manifest abuse of discretion in granting continuances
Based on the record before us on appeal, including the documents Holtz attached to his
supplemental SAG, Holtz does not show that the trial court manifestly abused its discretion by
continuing his trial or that the trial court violated his CrR 3. 3 time for trial rights. Instead, the
appellate record and Holtz' s SAG -
attached documents show that all but three of the
were necessary to accommodate ( 1) appointed counsel' s withdrawal and
appointment of new defense counsel; ( 2) defense counsel' s requests for additional time to
interview witnesses, to draft motions, or otherwise to prepare for trial; ( 3) Holtz' s newly filed
18 We do not consider the June 5, 2012 continuance, for which the trial court reduced the time for
trial period.
14
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
CrR 3. 6 motion; ( 4) Holtz' s desire to hire private counsel; ( 5) the prosecutor' s unavailability
because of scheduling conflicts or reasonably scheduled vacation; ( 6) the court' s determination
that it would be unable to complete trial efficiently because of its schedule; and ( 7) Holtz' s filing
an affidavit of prejudice against the assigned trial court judge. These reasons are proper under
19
CrR 3. 3( f), and Holtz fails to show that the trial court abused its discretion in granting any of
20
these continuances.
19
See also State v. 011ivier, 178 Wn.2d 813, 825 n. 4, 312 P. 3d 1 ( 2013) ( continuances deemed
necessary to allow defense counsel to adequately prepare for trial are proper, even over the
defendant' s objections), petition for cert. filed (U.S. May 7, 2014) ( No. 13- 10090); Williams, 104
Wn. App. at 522 -23 ( prosecutor' s unavailability due to scheduling conflicts with other trials);
State v. Kelley, 64 Wn. App. 755, 767, 828 P. 2d 1106 ( 1992) ( reasonably scheduled vacation).
20
The first continuance, October 25, 2011, moved the original November 9, 2011 trial date to
November 29 to allow defense counsel time to draft motions. At that time, 30 days remained in
the CrR 3. 3 time for trial period, which expired December 29.
The second continuance, November 29, moved the trial from November 29 to December
6 because defense counsel had withdrawn. At this point, 30 days remained in the time for trial
period, which expired on January 5, 2012.
The third continuance, December 6, 2011, moved the trial to March 6, 2012, to allow new
defense counsel to prepare, to investigate, and to negotiate. At this point, " 30 +" days remained
in the time for trial period, which expired April 5, 2012.
The fourth continuance, March 6, 2012, moved the trial to March 20 because Holtz
wanted to fire his assigned counsel and to obtain new private counsel. At this point, " 30 +" days
remained in the time for trial period, which expired April 19. Suppl. SAG at Ex. 1.
The fifth continuance, March 20, 2012, moved the trial to April 19, again to
accommodate Holtz' s request to hire private counsel. At this point, " 30 +" days remained in the
time for trial period, which expired May 19. Suppl. SAG at Ex. 1.
The sixth continuance, April 19, moved the trial to May 24 because the prosecutor was in
trial and Holtz had just hired private counsel. At this point, 30 days remained in the time for trial
period, which expired May 23.
The seventh continuance, May 24, moved the trial to May 31 because the State' s newly
assigned counsel was unavailable part of this time, the trial court had to hold a CrR 3. 6 hearing,
and new defense counsel had yet to interview eyewitness Elliot. The trial court ordered defense
counsel to complete Elliot' s interview before the end of the day May 29. At this point, 30 days
remained in the time for trial period, which expired June 30.
15
Consolidated Nos. 43995 -6 -I1 and 45427 -1 - II
The three remaining continuances ( June 4, June 5, and June 7, 2012) are less obviously
21
appropriate because they involved the trial court' s schedule and courtroom availability issues.
On June 4, the trial court continued the trial to June 5, stating, " Judge does not have sufficient
The eighth continuance, May 31, moved the trial to June 4 because Holtz had filed a CrR
3. 6 motion and the " primary officer" was unavailable to testify until the following week. At this
point, 30 days remained in the time for trial period, which expired July 3., Suppl. SAG at Ex. 1.
The ninth continuance, June 4, 2012, moved the trial date to June 5 because the " Judge
did] not have sufficient available days [ that] week to complete trial effectively." Suppl. SAG at
Ex. 1. The trial court did not reset the expiration date; instead, it noted that 25 days remained on
the " time- for -
trial" clock.
The tenth continuance, June 5, moved the trial date to June 6 because there was no
courtroom available. Again, the trial court did not reset the expiration date and noted that 24
days remained on the time for trial clock.
The record does not contain a copy of the eleventh continuance.
The twelfth continuance, June 7, moved the trial date to June 11 because Holtz had filed
an affidavit of prejudice against the assigned trial court judge, no courtroom was available, and
additionalinvestigation ( including defense witness interviews), was required. The trial court
ordered the department of assigned counsel to address defense witness interview issues.
Although the trial court did not recite the time -for -rial expiration date, it did note that 30 days
t
remained on the time -for -
trial clock.
The next order in the record was signed July 23, 2012; it noted a July 25 trial date, an
August 25 expiration date, and 30 days remaining on the time for trial clock. The trial court did
not reschedule the trial, which remained set for July 25.
The next continuance, July 25, moved the trial date to August 1 because the State' s
counsel was in trial and the continuance was short. The expiration date was September 1, with
30 days remaining on the time for trial clock.
21
See State v. Kenyon, 167 Wn.2d 130, 137, 216 P. 3d 1024 ( 2009) ( " A court can allow a
continuance due to congestion when it carefully makes a record of the unavailability of judges
and courtrooms and of the availability of judges pro tempore. "); State v. Flinn, 154 Wn.2d 193,
200, 110 P. 3d 748 ( 2005) ( " Whenthe primary reason for the continuance is court congestion, the
court must record details of the congestion, such as how many courtrooms were actually in use at
the time of the continuance and the availability of visiting judges to hear criminal cases in
unoccupied courtrooms. ")
16
Consolidated Nos. 43995 -6 -I1 and 45427 -1 - I1
22
available days this week to complete the trial effectively. " Supp. SAG at Ex. 1 ( order
continuing trial dated June 4, 2012). On June 5, the trial court issued an order continuing the
23
trial to June 6, solely due to courtroom unavailability. In neither instance, however, did the
trial court reset the time-for-trial clock; thus, in the absence of contrary information, the
expiration date remained the same as when the trial court had previously granted the May 31
continuance.
The only other continuance mentioning courtroom unavailability occurred on June 7. But
this continuance was based on several additional grounds, including Holtz' s affidavit of
prejudice against the assigned trial court judge and witness interview issues that the trial court
ordered the Department of Assigned Counsel to address. This June 7 continuance was not based
solely on courtroom unavailability; and the other reasons alone justified the continuance. Thus,
this continuance, which reset the time for trial clock for 30 days, was not improper. See
CrR3 .3 (b)( 5) .
Because Holtz does not show that any continuance that reset his time for trial was
improper, his denial of "speedy trial" argument fails.
22
The June 4, 2012 continuance order stated: " Judge does not have sufficient available days this
week to complete trial effectively." Suppl. SAG at Ex. 1. Nevertheless, the order continued the
trial to the next day, June 5, without restarting the speedy trial period; and June 5 was within the
previous 30 -day expiration period.
23
The June 5 order is the only continuance in the record for which the trial court' s sole stated
reason for continuing the trial date was courtroom unavailability. Again, the trial court did not
restart the time for -rial clock and 24 days remained before the period expired.
t
It appears that the court granted another continuance on June 6, resetting the trial date for
June 7. But there is no copy of a June. 6 continuance in the record, so we cannot determine the
reason for this continuance.
17
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
H. No Mental Health/Diminished Capacity Evaluation
Holtz next challenges the trial court' s denial of his request for a competency evaluation
and his counsel' s failure to address a possible diminished capacity defense despite his ( Holtz' s)
repeatedly informing the court and counsel that he had mental health issues.24 These claims also
fail.
If there is " reason to doubt" the defendant' s competency, the trial court must obtain a
medical report on a defendant' s mental condition. RCW 10. 77. 060( 1)( a). The defendant,
however, has the threshold burden of establishing that there is reason to doubt his competency.
State v. Woods, 143 Wn.2d 561, 604 -05, 23 P. 3d 1046, cent. denied, 534 U. S. 964 ( 2001). A
defendant is incompetent if he " lacks the capacity to understand the nature of the proceedings
against him or her or to assist in his or her own defense as a result of mental disease or defect."
RCW 10. 77. 010( 15). Here, Holtz actively participated in the proceedings. Although at times,
25
Holtz had difficulty communicating with his counsel and /or the court, nothing in the record
suggests that at any point Holtz gave the trial court reason to doubt that he could understand the
nature of the proceedings against him or assist in his defense. On the contrary, the record clearly
24 Holtz presented this evidence in the context of (1) his requests for bail reduction and release;
2) his request for a competency and /or diminished capacity evaluation; and ( 3) sentencing.
25 For example, before trial, Holtz was represented by several attorneys who withdrew because
1) Holtz refused to cooperate with them based on a perceived conflict, ( 2) he was not happy
with their representation and had filed bar complaints or other legal actions against them, or ( 3)
he had financial issues with them. And throughout the proceedings, Holtz ( 1) objected to or
disagreed with his counsel' s strategic decisions and insisted that counsel present his arguments to
the trial court, regardless of counsel' s judgment; ( 2) filed or sought to present pro se motions,
despite being represented by counsel; ( 3) interrupted the trial court, often insisting that he must
be heard because he was " making a record," VRP ( Feb. 14, 2012) at 19; and ( 4) argued with the
trial court even after it ruled, once to the point that the trial court had him removed from the
courtroom.
18
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
shows that Holtz understood the nature of the proceedings and was an active participant in his
defense. Having failed to meet his threshold burden, Holtz does not show that the trial court
erred in denying his motion for a competency evaluation.
Furthermore, although Holtz presented evidence that he suffers from a variety of mental
health issues and that he is considered disabled based ( at least in part) on his mental health
issues, nothing in the record explains how his mental health conditions affected his ability to
26
form the necessary mental state required to prove the offense. The mere "[ e] xistence of a
mental disorder is not enough, standing alone, to raise an inference that diminished capacity
exists, nor is conclusory testimony that the disorder caused °a diminution of capacity." State v.
Gough, 53 . Wn. App. 619, 622, 768 P. 2d 1028, review denied, 112 Wn.2d 1026 ( 1989).
Accordingly, based on this record, Holtz has not established that his counsel was ineffective for
failing to pursue a diminished capacity defense.
I. Effective Assistance of Counsel
Holtz next asserts that he received ineffective assistance of counsel on several grounds.
To establish ineffective assistance of counsel, Holtz must show both that ( 1) his counsel' s
performance was deficient, and ( 2) this deficient performance prejudiced him. State v. Thomas,
109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987) ( citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)).
26 Diminished capacity allows a defendant to undermine a specific element of an offense, a
culpable mental state, by showing that a given mental disorder reduced or eliminated his ability
to achieve that mental state. State v. Gough, 53 Wn. App. 619, 622, 768 P. 2d 1028, review
denied, 112 Wn.2d 1026 ( 1989).
19
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
To the extent Holtz is asserting that his second appointed counsel forced him to forgo his
speedy trial rights, as noted above Holtz does not establish that the trial court violated his time
for trial right. To the extent Holtz is arguing that one of more of his appointed or hired counsel
failed to investigate, failed to obtain evidence, or failed to call or interview certain witnesses,
these arguments relate to matters outside the record and we will not address them further.
Holtz further asserts that his appointed counsel failed to request an instruction on
perjury- [i] nconsistent statements WPIC [ WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS] or impeached testimony ER 806 and 801." SAG at 36. It appears that Holtz is
asserting that his counsel should have requested jury instructions based on statutes related to the
crime of perjury. See SAG at 36 ( citing RCW 9A. 72. 010( 1)). Such instructions are used in
criminal cases involving perjury charges; they are not used to instruct the jury on witness
credibility issues. Holtz also cites to hearsay rules and appears to assert that additional
instructions were necessary to allow the jury to evaluate witness credibility in light of
impeachment testimony. But the trial court properly instructed the jury on how to evaluate
witness credibility in jury instruction 1, 27 and Holtz does not show that any additional
27 The trial court instructed the jurors that they were " the sole judges of the credibility of each
witness," and instructed the jurors that in evaluating a witness' s testimony, they could consider:
the opportunity of the witness to observe or know the things he or she testifies
about; the ability of the witness to observe accurately; the quality of a witness' s
memory while testifying; the manner of the witness while testifying; any personal
interest that the witness might have in the outcome or the issues; any bias or
prejudice that the witness may have shown; the reasonableness of the witness' s
statements in the context of all of the other evidence; and any other factors that
affect your evaluation or belief of a witness or your evaluation of his or her
testimony.
CP at 99 ( Jury Instruction 1).
20
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
instructions were required to assist the jury in evaluating the testimony. Accordingly, Holtz does
not establish ineffective assistance of counsel on these grounds.
J. Prosecutorial Misconduct and Brady28 Violation
Holtz next asserts that the State engaged in several instances of "misconduct" and that it
violated Brady v. Maryland, by failing to provide relevant evidence in discovery. SAG at 39.
To prevail on a claim of prosecutorial misconduct, Holtz must show "' that the
prosecutor' s conduct was both improper and prejudicial in the context of the entire record and
the circumstances at trial. "' State v. Magers, 164 Wn.2d 174, 191, 189 P. 3d 126 ( 2008) ( quoting
State v. Hughes, 118 Wn. App. 713, 727, 77 P. 3d 681 ( 2003)). Holtz must demonstrate prejudice
by proving that " there is a substantial likelihood [ that] the instances of misconduct affected the
jury' s verdict. "' Magers, 164 Wn.2d at 191 ( alteration in original) ( quoting State v. Pirtle, 127
Wn.2d 628, 672, 904 P.2d 245 ( 1995)); State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 4322003). If Holtz failed to object, the " failure to object to an improper remark constitutes a waiver
of error unless the remark is so flagrant and ill intentioned that it causes an enduring and
resulting prejudice that could not have been neutralized by an admonition to the jury." State v.
Russell, 125 Wn.2d 24, 86, 882 P. 2d 747 ( 1994), cert. denied, 514 U. S. 1129 ( 1995); accord
State v. Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009).
Holtz contends that some of the State' s comments during the proceedings prejudiced the
court against him. Specifically, he cites an instance in which the State commented to the trial
court that Holtz had been manipulative in another case, was delaying the proceedings by
repeatedly insisting he was entitled to new counsel, and was likely to continue to do this
28
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).
21
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
regardless of who was appointed as his counse1.29 Holtz personally objected to these comments.
The trial court could have reached these same conclusions based on its own observations of
Holtz' s actions in courtroom, such as his open disagreements with his counsel, his insistence that
his counsel present motions even against counsel' s advice that they lacked merit, and his
30
argumentative approach to both counsel and the trial court. Holtz does not show that these
comments, taken in context, were likely to have prejudiced the trial court against him or
otherwise affected his trial.
Holtz further contends that the State knowingly allowed its witnesses to " fabricate"
testimony during the suppression hearing about how the officers connected him ( Holtz) to the
protection order, which was in his previous name ( Keal), and that the trial testimony later
revealed these fabrications. SAG at 40. We have reviewed the record form the suppression
hearing and the trial and find no relevant discrepancies. It is mere conjecture that the
suppression hearing testimony was fabricated. Accordingly, Holtz does not establish
prosecutorial misconduct on this ground.
29 Although Holtz cites a non -existent June 25, 2012 record, it appears that he intended to cite the
July 25, 2012 record.
30
As noted above, throughout the proceedings, Holtz ( 1) objected to or disagreed with his
counsel' s strategic decisions and insisted that counsel present his arguments to the trial court,
regardless of counsel' s judgment; ( 2) filed or sought to present pro se motions, despite being
represented by counsel; ( 3) interrupted the trial court, often insisting that he must be heard
because he was " making a record," VRP ( Feb. 14, 2012) at 19; and ( 4) argued with the trial court
even after it ruled, once to the point that the trial court had him removed from the courtroom.
22
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
Holtz also contends that the State engaged in misconduct and violated Brady when it
failed to provide relevant evidence in discovery. He claims that had the State provided these
31
materials, the outcome of the suppression hearing would have been different.
In Brady, the Supreme Court held that " suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either
to guilt or to irrespective of
punishment, • the good faith or bad faith of the prosecution." Brady,
373 U. S. at 87. Evidence is material only if there is a reasonable probability that had the
prosecution disclosed the evidence to the defense, the result of the proceeding would have been
different. State v. Thomas, 150 Wn.2d 821, 850, 83 P. 3d 970 ( 2004). But the evidence Holtz
argues would have assisted him appears to be outside the record; accordingly, we cannot address
this issue on direct appeal.
K. Judicial Misconduct, Bias, or Prejudice
Holtz next alleges several instances of judicial misconduct, bias, or prejudice. None of
these claims have merit.
The portions of the record to which Holtz refers show instances in which the trial court:
1) questioned defense counsel about whether Holtz wanted to represent himself pro se or obtain
private counsel; ( 2) attempted to address Holtz' s conflict of interest and ineffective
representation claims; ( 3) attempted to manage the courtroom by limiting Holtz' s direct
interactions with the court to relevant matters and by cautioning Holtz that his courtroom
31
On March 21, 2012, Holtz filed a motion requesting evidence from the State. In this request,
he asked for the motel surveillance video, various " jail reports" and " booking information,"
notes, and /or entries" from Officer Larkins, and the 911 call. CP at 15.
23
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
jury32; (
behavior could prejudice the 4) addressed continuance issues; ( 5) addressed
speedy trial /
mental health evaluation issues; ( 6) reviewed Holtz' s pro se motion to suppress in chambers; ( 7)
refused to consider Holtz' s pro se motion to suppress; ( 8) briefly addressed a witness to clarify
an answer during voir dire outside the jury' s presence; ( 9) clarified one of the State' s objections;
10) addressed various " halftime "33 issues, including a several motions, after the State' s last
witness but before the State had rested its case before the jury; ( 11) discussed Holtz' s request for
a lesser included offense instruction; and ( 12) started to impose sentence before allowing Holtz
his opportunity for allocution. 34 None of these portions of the record demonstrate any trial court
misconduct, bias, or prejudice.
L. Public Trial and Right To Be Present
Holtz next asserts that the trial court denied him his constitutional right to a public trial
1) by having inadvertent contact with some jurors as the court passed them in the hallway, ( 2)
by holding two unreported conferences in chambers, and ( 3) by reviewing Holtz' s pro se
suppression motion in chambers. Holtz also asserts that the trial court violated either his right to
a public trial or his right to be present when it continued to discuss the case on the record during
32
This behavior included one instance where a jury member reported that Holtz was " mouthing
comments" at the jury. 3 VRP at 298. After the juror informed the court of this behavior, the
court cautioned Holtz that his " very emotive" behavior during testimony could negatively
influence the jury. 3 VRP at299.
33 3 VRP at 301.
34 Although Holtz cites the September 12, 2012 record, it appears he intended to cite the
September 21, 2012 record of the sentencing hearing. We note that although the trial court
started to sentence Holtz without allowing allocution, the trial court later allowed Holtz to speak
after defense counsel' s reminder. Holtz' s sentencing allocution fills approximately nine pages of
the sentencing transcript. Thus, to the extent Holtz is also asserting that he was denied his right
of allocution, that claim fails.
24
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
a February 14, 2012 hearing after he ( Holtz) had been removed from the courtroom for
continuing to argue with the trial court after it ruled on a motion. These claims fail.
N] ot every interaction between the court, counsel, and defendants will implicate the
right to a public trial, or constitute a closure if closed to the public." State v. Sublett, 176 Wn.2d
58, 71, 292 P. 3d 715 ( 2012). To determine whether a public trial violation has occurred, we
35
must examine the alleged closure under the " experience and logic" test. Sublett, 176 Wn.2d at72 -73. The first prong of this test is the " experience" prong, which requires us to examine
whether the core values of the public trial right are implicated." Sublett, 176 Wn.2d at 73. The
second prong of the test is the " logic" prong, which requires us to determine "' whether public
access plays a significant positive role in the functioning of the particular process in question. '
Sublett, 176 Wn.2d at 73 ( quoting Press -Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.
Ct. 2735, 92 L. Ed. 2d 1 ( 1986)). To apply this test, we must be able to determine from the
appellate record the nature of the alleged courtroom closure.
Because our review is limited to the record on appeal, we cannot determine whether the
36
two chambers' conferences Holtz cites implicated his public trial rights. And the record before
us does not show that the trial court closed the courtroom when it spoke to counsel after Holtz
was removed from the courtroom. Furthermore, we are unaware of any case law holding that
35 Although only four justices signed the lead opinion in Sublett, Justice Stephens' concurrence
created a majority who adopted the " experience and logic" test. Sublett, 176 Wn.2d at 136
Stephens, J., concurring). More recently, a unanimous Supreme Court cited Sublett in applying
the " experience and logic" test in In re Pers. Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d
872 ( 2013).
36
The proper procedure for raising issues dependent on matters outside the record is by way of a
personal restraint petition. McFarland, 127 Wn.2d at 335. Although Holtz has filed a PRP, he
raises this issue in his SAG, not his PRP.
25
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
inadvertent contact with jurors in a hallway or reviewing the parties' briefing in chambers
implicates a defendant' s public trial right. Accordingly, Holtz' s claimed public trial violations
fail.
As to Holtz' s right- to -be- present claim, 37 a defendant has a constitutional right to be
present at all critical stages of the proceedings. State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d
79 ( 2004). The February 14, 2012 hearing record shows that after Holtz was removed from the
courtroom, the trial court ( 1) briefly addressed counsel about a notation it was making on the
omnibus order stating that Holtz may want to represent himself; and ( 2) warned defense counsel
that the appellate courts have held that if a defendant chose " to act out in court in front of your
jury to try to sabotage your case," the superior court did not have to grant a mistrial. VRP ( Feb.
14, 2012) at 21. The trial court' s brief comments to counsel do not constitute a critical stage of
the proceedings. Accordingly, Holtz' s right to be present claim fails.
M. Sentencing Issues
1. 1988 offenses
Holtz appears to assert that the court that sentenced him in 1989 improperly considered
two prior 1988 offenses ( third degree assault and second degree robbery) as separate offenses
even though the original sentencing court imposed concurrent sentences under former RCW
9. 94A.360( 6)( a)( 1988). Whether the 1989 court properly sentenced Holtz is irrelevant to Holtz' s
current sentence. And, to the extent Holtz is attempting to assert that the trial court here
37 We review de novo whether a trial court violated a defendant' s constitutional right to be
present. State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 ( 2011).
26
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
improperly counted the two 1988 offenses as separate offenses when calculating his offender
score, this claim fails.
The sentencing statute that applied here provided:
In the case of multiple prior convictions, for the purpose of computing the
offender score, count all convictions separately, except:
i) Prior offenses which were found, under RCW 9. 94A. 589( 1)( a) E381, to
encompass the same criminal conduct, shall be counted as one offense, the
offense that yields the highest offender score. The current sentencing court shall
determine with respect to other prior adult .offenses for which sentences were
served concurrently or prior juvenile offenses for which sentences were served
consecutively, whether those offenses shall be counted as one offense or as
separate offenses using the " same criminal conduct" analysis found in RCW
9. 94A.589( 1)( a), and if the court finds that they shall be counted as one offense,
then the offense that yields the highest offender score shall be used. The current
sentencing court may presume that such other prior offenses were not the same
criminal conduct from sentences imposed on separate dates, or in separate
counties or jurisdictions, or in separate complaints, indictments, or informations;
ii) In the case of multiple prior convictions for offenses committed before
July 1, 1986, for the purpose of computing the offender score, count all adult
convictions served concurrently as one offense, and count all juvenile convictions
entered on the same date as one offense. Use the conviction for the offense that
yields the highest offender score.
39
RCW 9. 94A.525( 5)( a).
Holtz committed the two 1988 offenses after 1986, so the trial court was not required to
count these offenses as one offense even if the 1988 court had imposed concurrent sentences.
RCW 9. 94A.525( 5)( a)( ii). Furthermore, the record shows that the two 1988 offenses were
38
The legislature amended former RCW 9. 94A.589 ( 2002) in 2014. LAws OF 2014, ch. 101, § 1.
This amendment did not change the relevant subsection; accordingly, we cite the current version
of the statute.
39
The legislature amended former RCW 9. 94A. 525 ( 2011) in 2013. LAws OF 2013, 2nd Spec.
Sess., ch. 35, § 8. This amendment did not change the relevant subsections; accordingly, we cite
the current version of the statute.
27
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
committed on different days and charged under different cause numbers. CP at 179, 186. Even
though the court imposed concurrent sentences for these two offenses, they were clearly not
same criminal conduct. RCW 9. 94A. 589( 1)( a) ( to be considered same criminal conduct, the
offenses must be committed at the same time); see also former RCW 9. 94A.400( 1)( a) ( 1988) ( to
be considered same criminal conduct, the offenses must be committed at the same time). The
trial court did not err in counting the 1988 offenses as separate offenses in Holtz' s offender
score.
2. No wash out
that his 1988 third degree degree
assault40
Holtz next asserts and second robbery41 and
46. This claim
theft42
1990 first degree convictions "[ a] t some point must `` wash out. "' SAG at
also fails.
Under RCW 9. 94A. 525( 2)( b), class B felony offenses would wash out of an defendant' s
offender score " if since the last date of release from confinement ( including full -ime residential
t
treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the
offender had spent ten consecutive years in the community without committing any crime that
subsequently results in a conviction." Similarly, under RCW 9. 94A.525( 2)( c), class C felony
offenses would wash out of the defendant' s offender score " if, since the last date of release from
4°
Third degree assault is a class C felony. RCW 9A. 36. 031( 2). The legislature amended RCW
9A.36. 031 in 2013. LAws
RCW . OF 2013, ch. 256, § 1. The amendments did not alter the statute
in any way relevant to this case; accordingly, we cite the current version of the statute.
41 Second degree robbery is a class B felony. RCW 9A.56. 210.
42
First degree theft is a class B felony. RCW 9A.56. 030( 2). The legislature amended RCW
RCW 9A.36. 030 in 2013. LAWS OF 2013, ch. 322, § 2. The amendments did not alter the statute
in any way relevant to this case; accordingly, we cite the current version of the statute.
28
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
confinement ( including full -ime residential treatment) pursuant to a felony conviction, if any, or
t
entry of judgment and sentence, the offender had spent five consecutive years in the community
without committing any crime that subsequently results in a conviction." Although Holtz' s
criminal history shows a 13 -year gap between his sentence for first degree robbery on January 5,
1994, and the date he committed his next offense in 2007, there is nothing in the record showing
Holtz' s last date of release from confinement for the 1994 first degree robbery conviction. Thus,
based on this record, Holtz does not show that any of his previous class B or C felony offenses
washed out of his offender score.
3. Rioting
Holtz next asserts that his rioting conviction is not a felony offense. Rioting is a gross
misdemeanor if the defendant was not armed with a deadly weapon when he committed the
43
offense. Former RCW 9A. 84. 010( 2)( a) ( 2003). It is a class C felony if the defendant was
armed with a deadly weapon. Former RCW 9A. 84. 010( 2)( b). The judgment and sentence shows
that the rioting offense was a felony offense. To the extent Holtz is attempting to argue that his
counsel was ineffective for failing to advise him that this was a felony offense, any discussions
between Holtz and his counsel are outside the record, so we cannot address this issue further.
4. Constitutional challenges
Holtz next appears to assert the 2008 amendments to RCW 9. 94A.500( 1) and RCW
9. 94A.530( 2) were unconstitutional because they shifted the burden of proof of the prior
convictions to the defense. This claim also fails.
43
The former crime of "rioting" is now called " criminal mischief." RCW 9A. 84. 010; LAWS OF
2013, ch. 20, § 1.
29
Consolidated Nos. 43995 -6 -II and 45427 -1 - I1
In 2008, the legislature amended former RCW 9. 94A. 500( 1) ( 2006) to state, " A criminal
history summary relating to the defendant from the prosecuting authority ... shall be prima facie
evidence of the existence and validity of the convictions listed therein." LAws OF 2008, ch. 231,
2. At the same time, the legislature also amended former RCW 9. 94A.530( 2) ( 2005) to state,
Acknowledgement includes . . . not objecting to criminal history presented at the time of
sentencing." LAws OF 2008, ch. 231, § 4.
We do not address the 2008 amendment to RCW 9. 94A. 530( 2) issue because Holtz
objected to the criminal history the State presented at sentencing, so the presumption did not
apply here. We now turn to RCW 9. 94A.500( 1).
In State v. Hunley, 175 Wn.2d 901, 914 -16, 287 P. 3d 584 ( 2012), our Supreme Court
held that the 2008 amendment to former RCW 9. 94A. 500( 1) was unconstitutional as applied. It
further held that if the State provided sufficient evidence to establish the prior convictions along
with any summary, RCW 9. 94A.501( 1) could be constitutionally applied. Hunley, 175 Wn.2d at
917. Our record contains copies of the records the State submitted to establish Holtz' s prior
convictions, and Holtz does not now contend that those records were incomplete or inaccurate.
Accordingly, Holtz has not shown that amended RCW 9. 94A.500( 1) was unconstitutional as
applied here.
5. Community custody status
Holtz further contends that his offender score was incorrect because he was not on
30
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
community custody at the time he committed the current offense. It appears that Holtz is relying
on facts that relate to another, previous conviction, to support this argument. Because this record
is not before us, we decline to consider this issue further. See McFarland, 127 Wn.2d at 335.
N. Proof of Previous No Contact Order Violations
Finally, in his SAG and his PRP, Holtz challenges the validity of his predicate no contact
order violation convictions, asserting that the complaints in those matters did not allege the
essential elements of the crimes. He contends that because the charging informations were
deficient, these prior offenses cannot be used to support the felony charge or to increase his
offender score.
Holtz cannot collaterally attack his earlier convictions by raising these issues in this
appeal unless he can demonstrate that the prior convictions were void rather than merely
erroneous. City of Seattle v. May, 171 Wn.2d 847, 861, 256 P. 3d 1161 ( 2011); see also State v.
Dereiko, 107 Wash. 468, 470, 182 P. 597 ( 1919); State v. Johnston, 17 Wn. App. 486, 497, 564,
P. 2d 1159, review denied, 89 Wn.2d 1007 ( 1977). Holtz does not show that his prior convictions
31
Consolidated Nos. 43995 -6 -II and 45427 -1 - II
44
were void. Accordingly, Holtz is not entitled to relief on this ground.
We affirm Holtz' s conviction and sentence and deny his personal restraint 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.
44 Holtz' s reliance on cases stating that informations must contain the essential elements of the
charged offense is misplaced. The cases Holtz cites address challenges to informations related to
the convictions the appellants were appealing, not to the convictions' underlying, predicate
offenses. See State v. Leach, 113 Wn.2d 679, 782 P. 2d 552 ( 1989); State v. Cochrane, 160 Wn.
App. 18, 253 P. 3d 95 ( 2011); City ofBothell v. Kaiser, 152 Wn. App. 466, 217 P. 3d 339 ( 2009).
32