Opinion
No. 22544-5-III
Filed: December 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-01796-6. Judgment or order under review. Date filed: 11/12/2003. Judge signing: Hon. Jerome J Leveque.
Counsel for Appellant(s), Daniel Herbert Bigelow, Attorney at Law, PO Box 153, Cathlamet, WA 98612-0153.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Following a bench trial, Richard Johnson was convicted of first degree robbery for unlawful taking a television set from Walmart and for striking a security officer. Through appellate counsel, he contends he was denied his CrR 3.3 and constitutional rights to a speedy trial, he was denied effective assistance of counsel, insufficient evidence supports his conviction, and the sentencing court miscalculated his offender score. In his statement of additional grounds for review, Mr. Johnson repeats appellate counsel's insufficient evidence claim. We affirm.
FACTS
The trial court's findings of fact are unchallenged and are, therefore, verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
On June 3, 2003, Mr. Johnson entered a Walmart, picked out a television set, removed the sensors, and placed the television in a cart. He then left the store with the cart. Mr. Johnson was unaware he was being watched by two security officers, Thomas Fleckenstein and Eric Bieghler. They followed Mr. Johnson to the parking lot where they confronted him. They identified themselves and requested that Mr. Johnson come back to the store with them. After a few feet, Mr. Johnson turned around and re-approached the cart. Mr. Bieghler grabbed Mr. Johnson's arm. The situation escalated into a violent confrontation. The court found that Mr. Johnson struck Mr. Bieghler in the nose, causing it to bleed, as Mr. Johnson `was attempting to escape capture and during flight.' Clerk's Papers at 73.
Mr. Johnson was arrested and charged with first degree robbery. He was arraigned on June 17, 2003 and trial was set for July 28. At that time, it was noted that his speedy trial expiration period was August 16. The trial court granted a continuance to August 11 due to defense counsel's vacation and her need to negotiate and/or prepare for trial upon her return. The case was later continued to August 18. At defense counsel's request, the case was continued two more times due to medical difficulties and trial in another matter. The new trial date was set for September 2. On August 29, the court granted another continuance, over the prosecution's objection, because defense counsel was in trial on another matter and she was not prepared. The following week, the court granted another continuance because the prosecutor was involved in another case and defense counsel was going to be attending a seminar. Due to the prosecutor's and defense counsel's trial schedules, Mr. Johnson's case was continued three more times, with trial finally beginning on October 6, 51 days past the 60-day expiration period. Mr. Johnson personally objected to these continuances and unsuccessfully requested dismissal of his case.
Mr. Johnson was convicted as charged after a bench trial. The sentencing court calculated his offender score as 12, including four juvenile convictions that Mr. Johnson argued were washed out. The court disagreed and noted that even if the convictions were washed out, Mr. Johnson's offender score would still be a 10, `[s]o either way he is at the maximum range possible.' Report of Proceedings at 202. The court imposed a standard range sentence. This appeal followed.
ANALYSIS A. Speedy Trial
The issue is whether Mr. Johnson was denied his CrR 3.3 and constitutional rights to a speedy trial. At the same time, we analyze whether he was denied his right to effective assistance of counsel in this process.
Since Mr. Johnson was incarcerated, former CrR 3.3(c)(1) (2001) required him to be tried within 60 days of the date of arraignment. Mr. Johnson was arraigned on June 17, 2003 and tried on October 6, 2003, outside the speedy trial period of former CrR 3.3(c)(1). The delay was due to the court granting numerous continuances based on the attorneys' workload and need to prepare. Mr. Johnson contends the trial court abused its discretion in granting these continuances.
A trial court, on its own or on the motion of the State or a party, may continue a trial when required in the administration of justice and the defendant will not be substantially prejudiced. Former CrR 3.3(h)(2) (2001); State v. Woods, 143 Wn.2d 561, 579, 23 P.3d 1046 (2001). We review a trial court order granting a continuance for an abuse of discretion. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984). A continuance granted by the trial court will be disturbed if the decision was manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Woods, 143 Wn.2d at 579.
Here, the continuances were granted to allow both attorneys time to prepare for trial in light of their heavy caseload. It is well established that a trial court may grant a continuance over a defendant's objection to allow counsel additional time to prepare for trial. See Woods, 143 Wn.2d at 580-81 (trial court did not abuse its discretion in granting a four-month continuance for defense counsel to review State's DNA tests and seek independent testing and granting second two-month continuance due to State's delay in handling DNA evidence and defense counsel's heavy caseload); State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (defense counsel sought continuance for approximately one month to interview witnesses and begin preparation for penalty phase; trial court committed no error in granting continuance over defendant's objection); Campbell, 103 Wn.2d at 13-15 (trial court did not err in granting defense counsel's requested nine-week continuance over defendant's objection to ensure effective representation and a fair trial).
Here, the trial court properly inquired regarding the need for a continuance, and the reasons for the continuance were adequate. Defense counsel's preparation had been delayed due to her heavy work load. The court did not abuse its discretion in granting the requested continuances under CrR 3.3.
Both our federal and state constitutions guarantee criminal defendants the right to a speedy trial. U.S. Const. amend. VI; Const. art. I, sec. 22 (amend. 10). But `[t]here is `no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.'' State v. Carson, 128 Wn.2d 805, 821, 912 P.2d 1016 (1996) (quoting Barker v. Wingo, 407 U.S. 514, 523, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). Rather, defendants must be brought to trial within a non-fixed, `reasonable time.' State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997); State v. Higley, 78 Wn. App. 172, 184-85, 902 P.2d 659 (1995). Moreover, `[t]he threshold for a constitutional violation is much higher than that for a violation of the superior court rules,' such as CrR 3.3. State v. Whelchel, 97 Wn. App. 813, 823, 988 P.2d 20 (1999) (quoting State v. Fladebo, 113 Wn.2d 388, 393, 799 P.2d 707 (1989)).
Whether a criminal defendant's constitutional right to a speedy trial has been violated is reviewed using the following four major factors, together "with such other circumstances as may be relevant": (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted the right, and (4) prejudice to the defendant. Whelchel, 97 Wn. App. at 824 (quoting Barker, 407 U.S. at 533). None exist here.
First, Mr. Johnson has not shown that the State failed to prosecute the case with customary promptness. State v. Corrado, 94 Wn. App. 228, 233, 972 P.2d 515 (1999) (citing Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). Mr. Johnson was brought to trial in less than four months from his original arraignment. Second, the reasons for the delay, unavailability of counsel and the need to prepare for trial, were unavoidable. Third, Mr. Johnson, pro se, objected. Finally, Mr. Johnson does not show prejudice. His argument that his incarceration resulted in prejudice rings hollow given the length of his standard range sentence. Accordingly, we conclude Mr. Johnson's constitutional right to a speedy trial was not violated.
Mr. Johnson contends he was denied effective assistance of counsel because his defense attorney agreed to the continuances, failed to bring a motion to dismiss, and failed to allow another public defender to take her place.
Initially, we note Mr. Johnson did not assign error to this issue, or even list it as an issue under the `Issues' section of his brief as required under RAP 10.3(g). Nevertheless, we may reach the merits of an issue if the issue is reasonably clear from the argument in the brief, the opposing party is not prejudiced, and it is not overly inconvenient. State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995). We deem the conditions satisfied.
To show ineffective assistance of counsel, Mr. Johnson must prove counsel's performance was deficient and the deficiency caused him prejudice. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We presume counsel rendered effective assistance which is overcome only by a `clear showing of incompetence.' State v. McGinley, 18 Wn. App. 862, 865, 573 P.2d 30 (1977). Counsel's representation is deficient when it falls below an objective standard of reasonableness. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). Prejudice is established where `there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Here, defense counsel either requested, or did not object to, the continuances. As discussed above, the continuances were needed to allow counsel time to prepare for trial. A defendant's speedy trial right is a procedural right that defense counsel may waive, over the defendant's objection, to ensure effective representation and a fair trial. State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967 (1999). Furthermore, nothing in the record indicates that defense counsel's actions were not legitimate strategic or tactical moves. One claiming ineffective assistance must show that in light of the entire record, no legitimate strategic or tactical reasons support the challenged conduct. McFarland, 127 Wn.2d at 335-36. Mr. Johnson fails to make such showing. Therefore, we need not discuss prejudice. State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990).
B. Evidence Sufficiency
The next issue is whether sufficient evidence supports Mr. Johnson's first degree robbery conviction.
In reviewing evidence sufficiency challenges, we view the evidence in a light most favorable to the State, asking whether any rational trier of fact could find guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of evidence insufficiency admits the truth of the State's evidence. State v. Sanchez, 60 Wn. App. 687, 693, 806 P.2d 782 (1991).
Through appellate counsel, Mr. Johnson challenges the bodily injury and force elements of first degree robbery. Mr. Johnson, pro se, reiterates this contention in his statement of additional grounds for review.
Robbery is defined as follows:
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.
RCW 9A.56.190. First degree robbery occurs when a person `[i]nflicts bodily injury.' RCW 9A.56.200(1)(a)(iii).
The unchallenged findings of fact state that when Mr. Johnson was confronted about taking the television from the store, Mr. Johnson turned around and re-approached the cart. Mr. Bieghler then grabbed Mr. Johnson's arm. The situation escalated into a violent confrontation. Mr. Johnson struck Mr. Bieghler in the nose, causing it to bleed, while fleeing to escape capture. These verities establish that Mr. Johnson unlawfully took property, used force to prevent or overcome resistance to the taking, and inflicted bodily injury. The evidence was sufficient to convict Mr. Johnson of first degree robbery.
Mr. Johnson contends Washington has not adopted the transactional view of property for robbery cases, which broadens the scope of taking to include violence during flight immediately following the taking. However, a close reading of State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992), State v. McIntyre, 112 Wn. App. 478, 482, 49 P.3d 151 (2002), and State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 (1990) reveals otherwise. The use of force, violence, or fear to retain stolen property, resist apprehension, or effect an escape constitutes robbery even if the initial taking was completed without force.
C. Offender Score
The issue is whether the court miscalculated Mr. Johnson's offender score.
Mr. Johnson challenges the inclusion in his offender score of four juvenile adjudications that he alleges have previously washed out. This argument is foreclosed by State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004).
In 1997 and 2002, the legislature amended the Sentencing Reform Act of 1981, chapter 9.94A RCW, to eliminate the wash out provisions upon which Mr. Johnson relies. The Varga court addressed the question of whether the 2002 amendments `may require sentencing courts to include previously `washed out' [prior] convictions when determining defendants' criminal histories and offender scores for crimes committed after the amendments' effective date.' Varga, 151 Wn.2d at 183. The court held that because the amendments were prospective, a defendant does not have a vested right in the washed out status of a prior conviction. Id. at 195. Mr. Johnson's current offense was committed in June 2003, well after the effective date of the amendments.
Thus, the 2002 amendments apply in calculating Mr. Johnson's offender score. Therefore, the sentencing court properly included Mr. Johnson's juvenile adjudications in his offender score.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., concur.