Opinion
No. 65215-0-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-01398-0, Gerald L. Knight, J., entered March 22, 2010.
Affirmed in part and remanded by unpublished opinion per Appelwick, J., concurred in by Dwyer, C.J., and Becker, J.
Wiggin appeals his conviction for failure to register as a sex offender and the resulting sentence. He argues that the amended information was constitutionally defective for omitting a weekly reporting requirement. He also argues that the trial court erred by imposing a sentence with a longer community custody term than the statute provided for. We hold that the charging document was adequate and contained the essential elements of the crime. And, we accept the State's concession that the sentence was incorrect. We affirm the conviction and remand for resentencing.
FACTS
Since his 1998 conviction for first degree rape of a child, James Wiggin has been required to register as a sex offender under RCW 9A.44.130. On March 31, 2009, Wiggin registered in Snohomish County as having no fixed address. He was required to report to the Snohomish County Sheriff's Office every Tuesday, under former RCW 9A.44.130(6)(b) (2006). Wiggin did not report on any Tuesday during April or May, 2009.
On July 28, 2009, the State filed an information and an affidavit of probable cause, charging Wiggin with failure to register as a sex offender. On March 22, 2010, the State filed an amended information to reflect the correct violation dates as the weeks of April 7, 2009 through May 30, 2009. The case proceeded to a bench trial and the court found Wiggin guilty of failure to register as a sex offender. This was Wiggin's first conviction for failure to register, so the offense was unranked with a standard range of zero to 12 months confinement. The court sentenced Wiggin to 30 days of confinement, with credit for time served. At the sentencing hearing, both the prosecution and the defense counsel believed that the law required 36 months of community custody. The trial court imposed 36 months of community custody under RCW 9.94A.505 and .702. Wiggin appeals.
ANALYSIS
I. Sufficiency of the Charging Document
Wiggin argues that the charging information was constitutionally inadequate because it failed to specify an essential element of the crime: the reporting deadline. In this case, Wiggin's requirement was to report weekly, in person, to the sheriff, on Tuesdays. He claims this reporting deadline is an essential element of the registration offense he was charged with, and its omission from his charging information is therefore grounds for reversal. He raises this issue for the first time on appeal.
Former RCW 9A.44.130 (2006) provides the general registration and reporting guidelines for specified sex offenders. The statute sets forth in great detail the various procedures and reporting requirements that offenders must follow, once registered, in order to remain in compliance, or if they move or become homeless. State v. Durrett, 150 Wn. App. 402, 406-07, 208 P.3d 1174 (2009). Failure to register within the time required is a per se violation. Id. at 407; former RCW 9A.44.130(4)(b).
Wiggin agrees that former RCW 9A.44.130 (2006) was in effect at the time of the offense. Laws of 2008, ch. 230, § 5 (explaining that the 2008 amendments would take effect in 2010).
The particular requirement of this section that Wiggin violated is former RCW 9A.44.130(6)(b), which provided:
A person who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he or she is registered. The weekly report shall be on a day specified by the county sheriff's office, and shall occur during normal business hours.
Wiggin was charged under former RCW 9A.44.130(11)(a), which provided that "[a] person who knowingly fails to comply with any of the requirements of this section is guilty of a class C felony."
The March 22, 2009 charging document submitted by the State read as follows:
FAILURE TO REGISTER, committed as follows: That the defendant, having been convicted on or about the 19th day of March, 1998, of a sex offense or kidnapping offense, to wit: First Degree Rape of a Child, being required to register pursuant to RCW 9A.44.130, and having registered as not having a fixed residence did, on or about the week of April 7, 2009 through May 30, 2009, knowingly fail to report in person to the county sheriff's office; proscribed by RCW 9A.44.130, a felony[.]
As a general rule, a charging document must contain all essential elements of a crime so as to give the defendant notice of the charges, thus allowing the defendant to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). Where, as here, a defendant does not challenge the charging document at trial, and does so for the first time on appeal, we are required to construe the charging documents under a liberal standard, in favor of their validity. Id. at 105. Indeed, in Kjorsvik, our Supreme Court adopted a two pronged inquiry for such cases where a defendant alleges inadequacies in the charging document: "(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?" Id. at 105-06.
Analysis under the first prong of the Kjorsvik test involves looking solely to the face of the charging instrument. Id. at 106. Under the rule of liberal construction, even if there is an apparently missing element, it may be able to be fairly implied from language within the charging document. Id. at 104. "`Words in a charging document are read as a whole, construed according to common sense, and include facts which are necessarily implied.'" State v. Goodman, 150 Wn.2d 774, 787, 83 P.3d 410 (2004) (quoting Kjorsvik, 117 Wn.2d at 109).
Here, Wiggin argues that an essential element of his charged crime is missing: the element of when he must report. The State responds that the information did in fact include a timing element, since it cross referenced the statute under which Wiggin was required to report weekly. While the charging document does not expressly state that Wiggin was required to report to the Snohomish County Sheriff's Office each Tuesday, it does state that Wiggin did "knowingly fail to report in person to the county sheriff's office [as] proscribed by RCW 9A.44.130, a felony." Former RCW 9A.44.130(11)(a) requires the State to show only that Wiggin knowingly failed to comply with " any of the requirements" of the section. (Emphasis added.) The statement in the amended information makes plain that Wiggin knowingly failed to report, at least once during the weeks of April 7, 2009 through May 30, 2009, as he was required to.
Durrett is particularly instructive here. 150 Wn. App. 402. In that case, this court considered the same violation — the failure of a person who lacks a fixed residence to report weekly, in person, to the sheriff's office. Id. at 405. The court weighed what the proper unit of prosecution should be for this crime — either several distinct charges, one for each week of missed reporting, or alternatively, one charge for the entire span of time. Id. at 409. The court stated:
[I]t is reasonable to view the "requirement" to report weekly [under former RCW 9A.44.130(6)(b)] as an ongoing obligation or duty rather than a collection of discrete actions. Viewed in this manner, the duty to report weekly is more appropriately described as an ongoing course of conduct that may not be divided into separate time periods to support separate charges.
Id. at 409. While Durrett does not contemplate an allegedly insufficient charging document in the same way, its reasoning applies here. For the State to convict Wiggin under former RCW 9A.44.130, it needed only to show that Wiggin had a duty to report at least once, and failed to do so at least once. In other words, it does not matter how many weeks Wiggin failed to report, or that he failed to report on any particular Tuesday from April 7, 2009 through May 30, 2009 — he had an ongoing duty or obligation to report, which he failed to meet. The amended information alleges as much, pointing to Wiggin's knowing failure to meet his duty of reporting in person over a specific time. Construing the charging document liberally in favor of validity, and reading it as a whole and in a common sense manner, we hold that it did inform Wiggin of the requisite elements of his charged crime.
Turning next to the second prong of the Kjorsvik test, we consider whether the defendant "was actually prejudiced as a result of the vague language used in the information, which in this type of case means the defendant did not `actually receive [] notice of the charges he or she must have been prepared to defend against.'" Goodman, 150 Wn.2d at 789 (quoting Kjorsvik, 117 Wn.2d at 106) (alteration in original). Under this prong, the court may look outside the information to determine whether there was actual prejudice. Id. An affidavit of probable cause, for example, could reasonably inform a defendant of the charges against him or her. See Kjorsvik, 117 Wn.2d at 111; State v. Phillips, 98 Wn. App. 936, 943-44, 991 P.2d 1195 (2000). In this case, the State's affidavit of probable cause did adequately set forth all of the elements of the crime of failure to register. It read, in relevant part:
On March 19, 1998, James O. Wiggin, was convicted of two counts of First Degree Rape of a Child in Snohomish County Superior Court. As a result he is required to register as a sex offender. [He] registered with the Snohomish County Sheriff's Office as homeless in Snohomish County. As a result of his status as homeless, Wiggin was required to report to the Sheriff's Office every Tuesday to account for his whereabouts over the previous week. Wiggin reported as required from February 25 through March 31, 2009. Thereafter, he failed to report to the Sheriff's Office as required.
The reporting deadline that Wiggin alleges is missing from his amended information is stated plainly in this affidavit. Additionally, Wiggin had reported to the sheriff's office numerous times prior to this incident, and he was informed of his weekly reporting obligation during these visits. Wiggin plainly had actual notice of the requirement that he report weekly. Accordingly, Wiggin suffered no prejudice by the State's failure to include that requirement in his amended information.
"The fundamental purpose of the [State's] pleading is to inform the defendant of the charge so that he may prepare his defense." Kjorsvik, 117 Wn.2d at 109. Here, Wiggin's amended information was adequate to inform him of the charges against him, he had ample notice to prepare his defense, and he suffered no prejudice from the manner in which the State charged him.
II. Community Custody Term
The trial court imposed 36 months of community custody under RCW 9.94A.505 and .702. The parties agree that this was error. As an unranked offense, a first conviction for failure to register has a standard range of zero to 12 months. See In re the Pers. Restraint of Acron, 122 Wn. App. 886, 888, 95 P.3d 1272 (2004). Wiggin was sentenced to 30 days of confinement. We accept the State's concession that under the applicable version of the statute, former RCW 9.94A.505(2)(b) (2008), where an offender is sentenced to not more than one year of confinement, the term of community custody should not have exceeded one year.
III. Statement of Additional Grounds
Wiggin also raises additional issues in his pro se statement of additional grounds. The statement is 43 pages long and contains numerous assertions, but at its core, it contains two central assignments of error. First, he argues that he received ineffective assistance of counsel and that his counsel's conduct forced him to choose between his right to effective assistance or his right to a speedy trial under the sixth amendment and CrR 3.3. And second, he argues that the court erred by proceeding to trial and denying his attorney's request for a continuance on March 22, 2010.
In the weeks leading up to his trial, his counsel, Caroline Mann, and the trial court, faced the challenge of juggling Wiggin's conflicting and contradictory requests. On the one hand, he wished to present a mental health defense. But, unfortunately, his counsel experienced considerable and ongoing difficulties in securing the information and the witnesses that would have allowed them to go forward with that defense. As a result, both of those difficulties and of Mann's involvement in a separate murder trial and a scheduled vacation during the lead-up to Wiggin's trial date, Mann had to seek continuances. Trial was first set for February 12, 2010. It was continued at Mann's request, over Wiggin's objection, until March 5, 2010. On March 8, 2010, the trial was again continued, over Wiggin's objection, until March 19, 2010. Finally, on March 22, 2010, Mann explained that she had still been unable to obtain the necessary documents to support Wiggin's mental health defense and sought a third continuance. Wiggin again objected to a continuance, and insisted that he wanted to proceed forward, in accordance with his speedy trial rights. The court explained that proceeding to trial at that time would mean an inability to present the defense he sought, but decided that in light of Wiggin's insistence on proceeding forward, it would not grant Mann's request for a continuance that time.
A court may grant a continuance under CrR 3.3(h)(2) to allow defense counsel more time to prepare for trial, even over the defendnat's objection, to ensure effective representation and a fair trial. State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984).
Mann explained some of the reasons for the delay and difficulty in obtaining these records. The agencies with relevant information took a long time to respond to Mann's requests; a vital agency employee that did Wiggin's intake and had knowledge of his mental health state had since left the agency; Mann's investigator had a family emergency and could not conduct the interviews as scheduled; Wiggin himself missed an appointment to make a determination on his mental state; and there had not yet been an opportunity to evaluate him.
We begin with Wiggin's claim for ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that his counsel's performance was deficient and that he was prejudiced as a result. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either one of the two prongs, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Wiggin focuses his attention on Mann's failure to swiftly obtain the documents that he alleges would have helped support his mental health defense. But, he fails to present any argument that satisfies the prejudice prong of this analysis. He is required to demonstrate that, but for counsel's errors, the result of his trial would have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Here, that would require a showing that he was in fact eligible for a mental health defense, and a showing that the presentation of that defense would have resulted in a different outcome at trial. He has made no such allegation or showing. Additionally, Mann attempted to continue the trial in the interest of providing Wiggin with the best possible representation. It was Wiggin's own insistence on proceeding that precluded the presentation of the defense he sought. As the trial court stated:
Ms. Mann is asking for a two week continuance. I cannot see how that can prejudice you at all [in light of the approximate 10-year incarceration being served for a different conviction], but apparently you do not want to agree to that.
Since Wiggin's claim fails on the prejudice prong, we need not address the matter of deficient performance, and conclude that defense counsel's representation was not ineffective.
We turn finally to Wiggin's argument that the court erred by proceeding to trial and denying his attorney's request for a continuance on March 22, 2010. The decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). The decision is reviewed under an abuse of discretion standard. Id. We will not disturb the trial court's decision unless there is a clear showing that the trial court's exercise of discretion was manifestly unreasonable, or exercised on untenable grounds, or made for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Here, the trial court did not abuse its discretion. It weighed Mann's request for a continuance against Wiggin's own insistence upon moving forward with trial, and ultimately heeded Wiggin's preference for a speedy resolution. We find no merit to the arguments raised by Wiggin in his statement of additional grounds.
We affirm the conviction and remand for resentencing.