Opinion
No. 33689-8-II.
August 29, 2006.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 04-1-00512-7, F. Mark McCauley, J., entered July 18, 2005.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, Olympia, WA.
Manek R. Mistry, Backlund Mistry, Olympia, WA.
Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, Montesano, WA.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton and Penoyar, JJ.
Troy A. Deimerly appeals his convictions of first degree possession of stolen property and forgery. He challenges the sufficiency of the information charging possession of stolen property, argues the trial court should have granted a mistrial or a new trial based on a prosecutorial discovery violation, challenges the jury instruction defining knowledge, challenges the calculation of his offender score, and argues that the trial court's determination of his criminal history violated his right to a jury trial. Pro se, Deimerly also claims he was prevented from raising a mental health defense. We reject these claims and affirm.
Facts
Prior to October 7, 2004, someone twice burglarized Harbor Hydraulics, a machine shop and hydraulic repair business. The burglar stole a computer system, a printer, zip drives, other office items, a variety of equipment (including a digital caliper), petty cash, and unopened mail containing customer payment checks.
On October 7, 2004, Troy Deimerly went to his credit union and attempted to cash a large check made out to him. He was in a hurry and nervous. Because it appeared to the teller to be altered, she told him that she would have to place a lengthy `hold' on the check. RP (June 14, 2005) at 5. Deimerly got frustrated and left with the check, saying that he would simply deposit it in the automated teller machine (ATM).
The next day, October 8, 2004, credit union officials found a deposit for Deimerly's account in the ATM machine that included a $1,324.50 check made out to Deimerly. The check was drawn on the account of Starks Timber Processing, which had actually issued the check to Harbor Hydraulics. Because it appeared that the check had been altered, the credit union called the police and told them that Deimerly had attempted to deposit the check. The credit union provided the police with Deimerly's account card, which included his address.
After contacting Harbor Hydraulics and learning about the burglaries, the police obtained a warrant to search Deimerly's residence. Deimerly lived with Lee Roy Miles, who had promised Deimerly's mother that he would look after him after her death; Deimerly received Supplemental Security Income (S.S.I.). At the time of the search, Miles was present but Deimerly was not. During the search, the police found several items stolen from Harbor Hydraulics: a copier/scanner, a computer monitor, a stereo, speakers, and a digital caliper. The police found the caliper in the dining room; the other items were found in a bedroom. Miles identified the bedroom as Deimerly's, and the police found documents linking him to that bedroom.
This item is also referred to as a `micrometer.' RP (June 14, 2005) at 28.
The police arrested Deimerly at the home of a female acquaintance, who gave the police a bag that Deimerly had brought with him. That bag contained Deimerly's wallet and several checks payable to Harbor Hydraulics, stolen in the earlier burglary.
Procedure
The State charged Deimerly with first degree possession of stolen property in count I and forgery in count II. In relevant part, the information charged count I as follows:
That the . . . defendant . . . on or about October 8, 2004, did possess stolen property belonging to Harbor Hydraulics, which the defendant knew to be stolen, to wit: personal property and checks of a value in excess of $1500.00.
Clerk's Papers (CP) (Oct. 24, 2005) at 1. In relevant part, the information charged count II as follows:
That the . . . defendant . . . on or about October 8, 2004, with intent to injure or defraud, did possess and put off as true as [sic] written instrument he knew to be forged, to wit: check No. 4137 on the account of Stark's Timber Processing Inc. in the amount of $1324.50.
CP (Oct. 24, 2005) at 1.
At arraignment on October 25, 2004, Deimerly did not enter a plea, as his lawyer told the court Deimerly might not be competent; the court ordered a competency evaluation. After a period of evaluation and treatment, a Western State Hospital psychologist opined that Deimerly had some genuine impairments but that he was exaggerating them and was currently competent to stand trial. On February 7, 2005, the court found Deimerly competent and arraigned him; Deimerly was present and did not disagree when his lawyer told the court he was competent.
On March 14, 2005, Deimerly filed a plea of not guilty by reason of insanity, apparently after rejecting a plea offer; the court ordered a sanity evaluation at Western State Hospital. At the March 14th hearing and again at a hearing on April 11, 2005, Deimerly requested appointment of a different lawyer because his original lawyer had urged him to accept a plea bargain rather than go to trial; when Deimerly declined, his lawyer filed the insanity plea. The trial court appointed a new lawyer.
On May 16, 2005, Deimerly, represented by his new lawyer, withdrew his insanity plea `[d]ue to a report that we received from Western State Hospital.' RP (May 16, 2005) at 14. He re-asserted his general plea of not guilty, and proceeded to trial on June 14, 2005.
The actual report is not part of the record on appeal.
Prior to trial, the State apparently filed a response to Deimerly's omnibus request reporting to the defense that witness Miles had been convicted of second degree possession of stolen property, second degree theft, and multiple forgeries. During trial, Deimerly attempted to cross-examine Miles by asking about each one; he denied them all. After Miles completed his testimony, the court excused the jury and the parties discovered that the State had inadvertently provided Deimerly with the criminal history for a person with a very similar name but a different date of birth; the witness Miles had no felony criminal history at all. Deimerly moved for a mistrial; the trial court denied his motion, instead providing the following oral curative instruction to the jury:
The actual omnibus response is not part of the record on appeal, but the State admits filing one that reported such criminal history.
I just want to give you an oral instruction regarding an incident that occurred. It may have seemed a little awkward when Mr. Ballew was cross-examining Mr. Lee Roy Miles about prior criminal conduct. Where he got that from was, everytime [sic] the State presents a witness, they're required to present as part of the discovery whether or not that witness has any criminal history, and in this particular situation the State presented a written document that said Mr. Miles had all this criminal history that Mr. Ballew used on cross-examination. Obviously you can tell Mr. Miles was quite shocked about that, and we did a little further checking, and what happened was when the prosecutor was doing their research on criminal history, they had used the word — this is a problem with computers — they used the word `Leroy' as one word, L-E-R-O-Y, Miles, and his actual name is Lee, L-E-E, middle name Roy, Miles. So, they got the criminal history of somebody else, not Mr. Miles that testified in court. So, that was something that Mr. Ballew felt a little embarrassed about, because he got the information from the State, and it was in fact a mistake. So I want you to disregard that information and don't hold it against Mr. Ballew at all for cross-examining the witness on what he truly believed was some legitimate history that turned out to be a mistake. Okay?
RP (June 14, 2005) at 95-96.
Deimerly neither proposed nor objected to any of the court's written instructions to the jury. The court's `Instruction No. 7' defined knowledge as follows:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
CP (Feb. 27, 2006) at 16.
The jury convicted Deimerly of both charges. Deimerly filed a motion for new trial claiming that the inaccurate criminal history information violated the State's discovery obligations, denying Deimerly the ability to effectively cross-examine Miles and causing Deimerly to adopt a doomed trial strategy. The court denied the motion. The State filed a sentencing report and recommendation that listed 10 prior felony convictions and asserted that Deimerly's offender score was `at least 9.' CP (Feb. 27, 2006) at 22. At sentencing, Deimerly responded that `there's some question as to his criminal history,' Report of Proceedings (July 11, 2005) at 127, but did not identify particular errors and refused a continuance to research specific objections, saying instead:
I think what I concluded in kind of going through it is that even if I'm correct, Mr. Deimerly still has nine points instead of above nine points, and [the prosecutor] and I went through that in some detail prior to trial, just trying to make sure we had those issues right. So, I think the standard range is correct.
RP (July 11, 2005) at 127-28. The court then imposed concurrent standard range sentences using the agreed offender score of nine. The trial court did not empanel a jury to determine Deimerly's criminal history. Deimerly appeals.
Analysis I. Sufficiency of the Charging Document
Raising the issue for the first time on appeal, Deimerly claims that the charging document failed to give him notice of two essential elements of first degree possession of stolen property: (1) knowing possession of the property and (2) withholding or appropriating the property to the use of someone other than the true owner. While we ordinarily do not address issues raised for the first time on appeal, RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995), `[a] challenge to the constitutional sufficiency of a charging document may be raised initially on appeal.' State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991).
Both the federal and state constitutions require a charging document to include all essential elements of the charged crime, including any non-statutory elements. Const. art. 1, sec. 22; U.S. Const. amend. VI; Kjorsvik, 117 Wn.2d at 97, 101-02. But when the sufficiency of the information is challenged for the first time on appeal, we must liberally construe it in favor of validity, following a two-pronged test:
(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?
Kjorsvik, 117 Wn.2d at 105-06.
The first prong of this test requires `at least some language in the information giving notice of the allegedly missing element(s).' Kjorsvik, 117 Wn.2d at 106. But the charging document need not use the exact words of an element; it is enough if `the words used would reasonably apprise an accused of the elements of the crime charged.' Kjorsvik, 117 Wn.2d at 109. We must read the charging document as a whole, give words their common sense meanings, and incorporate all necessarily implied facts. Kjorsvik, 117 Wn.2d at 109.
Two statutes provide the essential elements for first degree possession of stolen property. The first provides the basic elements of all degrees of the charge:
`Possessing stolen property' means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.
RCW 9A.56.140(1). And the second provides an additional element for the first degree charge:
(1) A person is guilty of possessing stolen property in the first degree if he or she possesses stolen property . . . which exceeds one thousand five hundred dollars in value.
The State argues that the `[p]ossessing stolen property' is a term of art defined in RCW 9A.56.140(1) and that it is sufficient to charge using just that term of art and the value element identified in RCW 9A.56.150(1). But such charging documents were rejected by our Supreme Court in State v. Moavenzadeh, 135 Wn.2d 359, 362, 956 P.2d 1097 (1998), which held that knowledge of the stolen nature of the property is an essential element.
Knowing possession of the property is a necessary element, without which the possession is not criminal. State v. Rhinehart, 21 Wn. App. 708, 712, 586 P.2d 124 (1978), rev'd on other grounds, 92 Wn.2d 923 (1979). The withholding or appropriating of the property to the use of someone other than the true owner is also a required statutory element. State v. McKinsey, 116 Wn.2d 911, 913, 810 P.2d 907 (1991) (reviewing the statutory elements to determine if possession of stolen property is a crime of dishonesty admissible under ER 609(a)(2) and emphasizing the withholding/appropriating element); see State v. Khlee, 106 Wn. App. 21, 25-26, 22 P.3d 1264 (2001) (noting that withholding/appropriating is listed as an element in the statute and in Washington's Pattern Jury Instructions, but not reaching the issue). It is the withholding or appropriation of the stolen property to the use of someone other than the owner that ultimately makes the possession illegal, differentiating between the person attempting to return known stolen property and the person choosing to keep, use, or dispose of known stolen property.
Thus, a charging document must include both these essential elements. This conclusion does not end our inquiry, however. Here, the information alleged that Deimerly possessed specified property, knowing it to be stolen. Using the required liberal construction standard, we ask whether the allegation of knowing possession appears in any form or can be found by fair construction in this charging document; we conclude it can. Because the charging document accused Deimerly of knowing that the item he possessed was stolen, it necessarily accused him of knowing that he possessed the item, at least when construed liberally. Fairly construed and incorporating all necessarily implied facts, see Kjorsvik, 117 Wn.2d at 109, the charging document included the element of knowing possession.
The information charged Deimerly in pertinent part:
Count I, as follows:
That the . . . defendant . . . on or about October 8, 2004, did possess stolen property belonging to Harbor Hydraulics, which the defendant knew to be stolen, to wit: personal property and checks of a value in excess of $1500.00.
Count II, as follows:
That the . . . defendant . . . on or about October 8, 2004, with intent to injure or defraud, did possess and put off as true as [sic] written instrument he knew to be forged, to wit: check No. 4137 on the account of Stark's Timber Processing Inc. in the amount of $1324.50.
We acknowledge that the opposite is not true; that is, a charging document that alleges knowing possession does not necessarily inform the defendant that he is accused of knowing the item is stolen. See State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992) (alleging that the defendant knowingly forced another to engage in prostitution did not by implication allege that the defendant knew the prostitute to be under 18); Khlee, 106 Wn. App. at 25 (strict construction case).
This would not necessarily be the result under the strict construction test.
Count I of the information does not include any version of the withholding/appropriating element, but that also does not end our inquiry. We must examine the charging document as a whole, and the language used to charge other counts may give the defendant notice of elements missing from the count at issue. See State v. Valdobinos, 122 Wn.2d 270, 286, 858 P.2d 199 (1993). Here, count II charging forgery alleged that Deimerly, on the very same day that count I accused him of possessing stolen property, `with intent to injure or defraud, did possess and put off as true' one of the checks that count I accused him of possessing. CP (Oct. 24, 2005) at 1. To paraphrase the words of Valdobinos, `[i]t is inconceivable that [Deimerly] would not have been on notice that he was accused of' withholding or appropriating the stolen property to the use of someone other than the true owner when the charging document also accused him of forging some of that property. Valdobinos, 122 Wn.2d at 286. When construed liberally, the allegations in count II make the charging document as a whole constitutionally adequate, despite the failure to include the withholding/appropriation element in count I. See Valdobinos, 122 Wn.2d at 286.
Again, this would not necessarily be the result under the strict construction test.
II. Motion for Mistrial/New Trial
Deimerly next argues that the trial court erred in denying his motions for mistrial and new trial, both based on the State's failure to provide accurate criminal history information for its witness Miles. Deimerly claims that this failure violated his right to due process, and prevented him from exercising his right to effective assistance of counsel.
Initially, we note that the State's provision of incorrect information was a violation of its obligations under CrR 4.7(a)(1)(vi) and (h)(2).
A mistrial or new trial is required `only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be treated fairly.' State v. Johnson, 125 Wn. App. 443, 460, 105 P.3d 85 (2005). Further, we will reverse the trial court only if it abused its discretion, that is, only if `no reasonable judge would have reached the same conclusion.' Johnson, 125 Wn. App. at 460. Moreover, [a] trial court's denial of a motion for mistrial `will be overturned only when there is a `substantial likelihood' the prejudice affected the jury's verdict.' In determining whether the effect of an irregular occurrence at trial affected the trial's outcome, this court examines: (1) the seriousness of the irregularity; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it.
State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000) (citation omitted).
The trial court did not abuse its discretion in denying Deimerly's motions. Our Supreme Court's analysis in Greiff controls our decision here. In Greiff, the discovery violation and the impact on trial were both more egregious than in Deimerly's case. The defendant in Greiff was charged with rape; during a first trial a police officer testified that the victim had initially and repeatedly denied any sexual assault. Greiff, 141 Wn.2d at 916. After the first jury could not reach a verdict, the State retried the defendant. Greiff, 141 Wn.2d at 916. The prosecutor knew but did not tell the defense that the officer would change this crucial testimony, saying that he had confused two different investigations and victims. Greiff, 141 Wn.2d at 917-18, 919. The defendant's lawyer then made an opening statement emphasizing the expected testimony and unsuccessfully attempted to elicit the testimony from the officer. Greiff, 141 Wn.2d at 916-18. The Greiff defendant then moved for mistrial; the trial court denied the motion but did admit the transcript of the officer's prior testimony and instructed the jury to disregard any unsupported statements of counsel. Greiff, 141 Wn.2d at 918, 922.
The Greiff defendant appealed the denial of his mistrial motion, arguing, just as Deimerly does, that the discovery violation violated his right to due process, damaged his lawyer's credibility with the jury, and interfered with his right to effective assistance of counsel. Greiff, 141 Wn.2d at 920, 921. While recognizing the discovery violation as very serious and sanctionable, the Supreme Court found the trial court's denial of mistrial was not an abuse of discretion because the mistake was explained to the jury and the court took curative measures to prevent the jury from blaming the defendant's counsel. Greiff, 141 Wn.2d at 921-23.
See CrR 4.7(h)(7).
The court at Deimerly's trial took strong action to ensure that the jury would not blame either Deimerly or his counsel for the trial irregularity, making it clear that the State had misinformed Deimerly about Miles's criminal record. As in Greiff, then, `there is not a substantial likelihood that this irregularity had any bearing on the ultimate outcome at trial.' Greiff, 141 Wn.2d at 924. And the evidence against Deimerly, as outlined above, was strong and convincing. We cannot say that there is a substantial likelihood that the irregularity affected the jury's verdict.
Moreover, as the trial court here recognized, this is not the type of error for which `nothing short of a new trial can ensure that the defendant will be treated fairly' because at a new trial, Deimerly would face exactly the same evidence: Miles would still have no criminal record and Deimerly would still face the difficult choice of whether or not to testify given his own criminal record. The error here was not the admission of improper evidence, for which a new trial (without the improperly admitted evidence) could provide relief, but a violation of discovery rules that led the defense to believe that certain evidence would be presented. Granting a new trial would not make that evidence available, and the jury would hear the same substantive testimony. Deimerly's mistaken belief led to the embarrassment of the defense, but the trial court cured that embarrassment.
Johnson, 125 Wn. App. at 460.
Deimerly claims that the discovery violation denied him effective assistance of counsel because his lawyer pursued a strategy based on Miles having a substantial record of crimes of dishonesty, a strategy defeated by the mid-trial discovery that he had no such record. But the Greiff court specifically rejected a similar claim:
Deimerly's lawyer therefore planned to argue that Miles's claims that he was not the source of the stolen property at his home were not credible, thus bolstering his argument to the jury that Miles, not Deimerly was the possessor of the stolen items found at the house. Contrary to the State's position, this use of impeachment evidence would not violate ER 404, as he could make this argument without the impeachment evidence and the impeachment evidence would have made Miles's denials less credible. Deimerly's lawyer also apparently anticipated calling Deimerly as a witness, since both he and Miles (he thought) had similar criminal records.
His complaint here is essentially that the State's conduct in not disclosing the expected change in Officer Marlow's testimony precluded Greiff's counsel from providing reasonably competent representation. As noted above, though, the hallmark of a Sixth Amendment ineffective assistance of counsel claim is based on the substandard performance of the criminal defendant's attorney, not on the actions of third parties.
. . . .
Because Greiff does not claim his counsel acted in a manner that was objectively substandard, Greiff has not shown that he was prejudiced by ineffective assistance of counsel. He was not, therefore, entitled to a mistrial on this basis. Neither is he entitled to a new trial.
Grieff, 141 Wn.2d at 925-26. We must reject Deimerly's identical claim.
III. Knowledge Instruction
Deimerly claims that the trial court's instruction defining knowledge varied slightly from the statute defining the culpable mental state, RCW 9A.08.010(1)(b). We reject his claim as waived by his failure to raise it below.
`A person knows or acts knowingly or with knowledge when: (i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.'
As noted above, Deimerly neither proposed any instructions nor objected to the knowledge instruction. Ordinarily, we do not address issues raised for the first time on appeal. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). The rules of appellate procedure provide an exception for `manifest error affecting a constitutional right.' RAP 2.5(a)(3). But this narrow exception `is not intended to swallow the rule, so that all asserted constitutional errors may be raised for the first time on appeal.' State v. Trout, 125 Wn. App. 313, 317, 103 P.3d 1278, review denied, 155 Wn.2d 1004 (2005).
Simply implicating the constitution does not make an error `manifest.' An error is not manifest unless the appellant can `show how, in the context of the trial, the alleged error actually affected the defendant's rights,' that is, the appellant must show `actual prejudice.' McFarland, 127 Wn.2d at 333. Further, to demonstrate manifest error, the defendant must show that the claimed error had `practical and identifiable consequences' at trial. State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
Here, the claimed error does potentially impact the constitutional requirement that the State prove all the elements of an offense beyond a reasonable doubt. But the error is not manifest, and we therefore decline to consider it on appeal. Deimerly fails to demonstrate actual prejudice or that the claimed error had practical and identifiable consequences in the trial of the case. He makes no effort to explain how the purported error harmed him. To the contrary, Deimerly's claim regarding the meaning of this instruction would make it more difficult for the jury to find he acted with knowledge; this would benefit rather than harming him.
We also note that the trial court's instruction was drawn verbatim from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.02, at 150 (2d ed. 1994), a standard instruction used routinely in trial courts across this state. In its current form, it has repeatedly withstood constitutional challenges. State v. Vanoli, 86 Wn. App. 643, 646-48, 937 P.2d 1166, review denied, 133 Wn.2d 1022 (1997).
IV. Criminal History and Offender Score
As noted above, at sentencing, Deimerly told the court that his offender score was `9' under either his or the State's formulation of his criminal history. CP (Feb. 27, 2006) at 22. The court then adopted the State's proposed statement of Deimerly's criminal history, found his offender score to be `9,' and sentenced him within the standard range. CP (Feb. 27, 2006) at 22. For the first time on appeal, Deimerly claims that this hearing was inadequate to support the court's findings that Deimerly had been convicted of the listed crimes and that Deimerly had an offender score of `9.' CP (Feb. 27, 2006) at 22.
An illegal or erroneous sentence may be challenged for the first time on appeal even if the defendant failed to object to the particular error, State v. Ford, 137 Wn.2d 472, 477-78, 482-83, 973 P.2d 452 (1999), and a defendant cannot waive a challenge to such a sentence by agreeing to a legal error in the lower court, In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867-74, 50 P.3d 618 (2002). But a defendant may still be barred from raising the issue on appeal or be deemed to have waived the challenge if the defendant made an affirmative stipulation of fact or the claimed error involved a discretionary trial court decision. Goodwin, 146 Wn.2d at 874-75; State v. O'Neal, 126 Wn. App. 395, 432, 109 P.3d 429, review granted in part, 155 Wn.2d 1024 (2005).
Deimerly may well have made an affirmative stipulation of fact regarding his offender score, if not his criminal history, but we need not decide the issue on this basis. Deimerly does not claim or prove that the trial court improperly included any particular prior convictions in his criminal history or in calculating his offender score, just that it might have done so. The recent holding in State v. Ross, 152 Wn.2d 220, 95 P.3d 1225 (2004), is instructive: `To invoke the waiver analysis set forth in Goodwin, a defendant must first show on appeal . . . that an error of fact or law exists within the four corners of his judgment and sentence.' Ross, 152 Wn.2d at 231. Deimerly has not shown that the sentencing court committed any specific error, and we therefore affirm its findings. See Ross, 152 Wn.2d at 232, 232 n. 3.
V. Sixth Amendment Claim
Deimerly also claims that he had a Sixth Amendment right to a jury determination of which convictions should be counted in his criminal history, speculating that a majority of the Supreme Court would now so hold. However, there has been no published decision so holding, and this claim has been rejected by decisions that agree on little else. State v. Hunt, 128 Wn. App. 535, 542, 116 P.3d 450 (2005), review pending, No. 77601-6, 2006 LEXIS 392 (Wash. May 2, 2006); State v. Jones, 126 Wn. App. 136, 142, 107 P.3d 755, review granted, 124 P.3d 659 (2005). The non-jury determination of Deimerly's criminal history did not violate his right to a jury trial.
VI. Mental Health Defenses
Finally, in his Statement of Additional Grounds for Review, Deimerly argues pro se that he was somehow prevented by his lawyers from pursuing a mental health defense. As noted above, Deimerly's lawyers obtained both a competency evaluation and a sanity evaluation. The competency evaluation is part of the record on appeal, and supports the trial court's finding that Deimerly was competent. The sanity evaluation is not part of the record, but Deimerly's lawyer abandoned his formal plea of not guilty by reason of insanity after receiving it. Deimerly did not object to this tactical choice and had previously been willing to speak for himself in court.
See RAP 10.10(a).
At least on the record presented, we can find no error. Deimerly appears to be making a claim of ineffective assistance of counsel, but he `does not inform the court of the nature and occurrence of' the claimed error. RAP 10.10(c). He identifies neither an instance of deficient performance by his lawyer nor evidence that would have made a mental defense successful, the two required prongs of an ineffective assistance claim. See State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
We affirm Deimerly's convictions and sentences.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and PENOYAR, J., concur.