                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                             January 15, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 STATE OF WASHINGTON,                                                   No. 49708-5-II

                                 Respondent,

         v.

 WILLIAM HOWARD WITKOWSKI,                                            Consolidated with

                               Appellant.
 In the Matter of the Personal Restraint                                No. 50725-1-II
 Petition of

 WILLIAM HOWARD WITKOWSKI,
                                                                 UNPUBLISHED OPINION

                                 Petitioner.

        WORSWICK, J. — William Witkowski appeals from his convictions of two counts of

unlawful possession of a controlled substance with intent to deliver and unlawful possession of a

stolen vehicle, asserting that (1) the trial court erred by failing to enter written findings of fact

and conclusions of law following CrR 3.5 and CrR 3.6 hearings, (2) his judgment and sentence

contains a scrivener’s error incorrectly stating he was tried on the State’s original information,

and (3) his judgment and sentence contains a scrivener’s error in that it fails to state the trial

court’s same criminal conduct finding.

        In his statement of additional grounds for review (SAG), Witkowski asserts that (4)

evidence seized from his vehicle should have been suppressed based on a faulty search warrant

and because the State failed to produce a record of the telephonic affidavit in support of the
No. 49708-5-II;
Consolidated with No. 50725-1-II
warrant, (5) his defense counsel was ineffective at the suppression hearing and at trial, (6) the

trial court violated his state and federal constitutional rights by conducting the CrR 3.6 hearing

prior to the CrR 3.5 hearing, (7) the State violated his due process and equal protection rights by

failing to timely prepare proposed findings of fact and conclusions of law from the CrR 3.5 and

CrR 3.6 hearings, (8) his right to counsel was violated when he was unrepresented at

postjudgment proceedings, and (9) cumulative error denied his right to a fair trial. Additionally,

Witkowski has filed a personal restraint petition that we have consolidated with his direct appeal,

in which he raises several claims of ineffective assistance of counsel. He also appears to argue in

his petition that the warrantless search of the vehicle’s trunk and the contents therein exceeded

the scope of a permissible scope of a Terry1 stop or scope of a search pursuant to an arrest.

          The State concedes that Witkowski’s judgment and sentence contains scrivener’s errors

by incorrectly stating that he was tried on the State’s original information and by failing to reflect

the trial court’s finding that his unlawful possession of a controlled substance with intent to

deliver convictions constituted the same criminal conduct. We accept the State’s concessions

and remand for a correction of Witkowski’s judgment and sentence consistent with this opinion.

In all other respects we affirm. We also deny Witkowski’s petition.

                                               FACTS

          On July 2, 2015, Pierce County Sheriff’s Deputies Martin Zurfluh and Lucas Baker

stopped a green Volkswagen Passat that Witkowski was driving. Zurfluh told Witkowski that he

had received information that the vehicle was possibly stolen. Witkowski handed Zurfluh a



1
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).



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No. 49708-5-II;
Consolidated with No. 50725-1-II
vehicle registration for a white 2000 Volkswagen Passat that listed the same license plate on the

vehicle and the vehicle identification number (VIN) on the dashboard. Witkowski told Zurfluh

that the vehicle had been repainted green.

       Zurfluh saw that the VIN on the dashboard had edges on it, making it appear as if a

different VIN had been placed over the original VIN. Zurfluh checked the VIN located under

the hood of the car and saw that it did not match the VIN on Witkowski’s registration. Zurfluh

ran a check of the VIN located under the hood and saw that it matched the VIN for a reported

stolen vehicle. Zurfluh impounded the vehicle and had it towed to a secure facility.

       On July 6, 2015, Zurfluh obtained a warrant to search the Passat. Zurfluh saw backpacks

in the trunk of the vehicle that contained $8,956 in cash, a substance later tested and confirmed

to be 13.3 grams of methamphetamines, a substance later tested and confirmed to be 66.3 grams

of heroin, a scale, drug paraphernalia, unused packaging material, and a notebook with names

and numbers written in it. On August 6, 2015, Witkowski called the Pierce County Sheriff’s

Department to inquire about how he could retrieve the car and cash seized by law enforcement.

In October 2015, Zurfluh searched Witkowski’s home during an unrelated investigation and

found the Passat’s original license plate in a closet.

       On May 27, 2016, the State charged Witkowski by amended information with two counts

of unlawful possession of a controlled substance with an intent to deliver and unlawful

possession of a stolen vehicle. Before trial, Witkowski filed a motion to suppress “all evidence

and statements obtained as a result of an unlawful search and seizure.” Clerk’s Papers (CP) at 3.

The trial court held a CrR 3.6 hearing addressing Witkowski’s suppression motion on September

1, 2016.



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No. 49708-5-II;
Consolidated with No. 50725-1-II
       Zurfluh testified at the CrR 3.6 suppression hearing that several weeks prior to stopping

Witkowski, a citizen informant had told him that Witkowski was driving a stolen green Passat

with switched license plates and VINs. Zurfluh stated that he worked with the informant on

several different occasions for approximately a year and a half and that the informant had

previously provided accurate information. Zurfluh further stated that the informant personally

knew Witkowski and had been to his residence. Zurfluh said that he and Baker saw a green

Passat on July 2 and ran the license plate, which came back as registered to Witkowski. Zurfluh

stated that Witkowski was cooperative during the stop and had exited the vehicle after handing

over his registration; Zurfluh did not order Witkowski out of the vehicle or restrain him in any

manner. At some point during the stop, Witkowski opened the hood to the vehicle. Zurfluh

stated that he could not recall whether he had asked Witkowski to open the hood but that he

knew he did not order Witkowski to open it.

       Zurfluh further testified at the suppression hearing that after receiving a search warrant,

he searched the trunk of the Passat and found a substance resembling heroin. After finding the

suspected heroin, Zurfluh applied for, and received, an addendum to the search warrant to

expand the scope of his search. After receiving the addendum, Zurfluh searched backpacks

located in the trunk of the vehicle and found $8,956 in cash, 13.3 grams of suspected

methamphetamines, 66.3 grams of suspected heroin, a scale, drug paraphernalia, unused

packaging material, and a notebook with names and numbers written in it. Witkowski did not

testify at the CrR 3.6 hearing.

       The trial court denied Witkowski’s motion to suppress in an oral ruling, stating that

Zurfluh had a reasonable suspicion sufficient to justify the initial Terry stop of the vehicle based



                                                 4
No. 49708-5-II;
Consolidated with No. 50725-1-II
on information provided by the informant, Witkowski had voluntarily opened the hood of his car

revealing in plain sight the VIN therein, and the VIN inside the hood that was associated with a

reported stolen vehicle supplied Zurfluh with probable cause in support of the warrant to search

the contents of the vehicle.

       The trial court also conducted a CrR 3.5 hearing to determine the admissibility of

Witkowski’s pre-Miranda2 statements during the stop, at which Zurfluh testified. The trial court

orally ruled that Witkowski’s statements were admissible at trial, finding that he was not in

custody up until the point he was placed in handcuffs and read his Miranda rights. At the

conclusion of the CrR 3.5 hearing, the trial court requested the State to draft proposed findings of

fact and conclusions of law, stating that the State should submit the proposed findings and

conclusions prior to jury deliberations, but the trial court did not enter findings of fact and

conclusions of law for either the CrR 3.5 or CrR 3.6 hearing at this time.

       At trial, witnesses testified consistently with the facts stated above. Additionally, Yelena

Girzhu testified at trial that her husband’s car dealership had purchased a green 2004

Volkswagen Passat in 2015. Girzhu reported the vehicle as stolen after she had taken it to a

paint shop and it was never returned. In her 2015 written statement to police, Girzhu identified

the VIN of the stolen vehicle as the same VIN located in the hood of the vehicle Witkowski had

been driving.

       The jury returned verdicts finding Witkowski guilty of two counts of unlawful possession

of a controlled substance with intent to deliver and unlawful possession of a stolen vehicle.


2
 Witkowski did not make any statements after being advised of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).



                                                  5
No. 49708-5-II;
Consolidated with No. 50725-1-II
Witkowski appealed. After Witkowski filed his opening brief in this appeal, the trial court

entered written findings of fact and conclusions of law in support of its CrR 3.5 and CrR 3.6

rulings.


                                            ANALYSIS

                I. LATE ENTRY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW

       Witkowski first contends that we must remand to the trial court to enter written findings

of fact and conclusions of law as required under CrR 3.5 and CrR 3.6. Because the trial court

entered the required written findings and conclusions while this appeal was pending, and because

Witkowski does not claim any prejudice from the trial court’s delayed entry, we find no error.

       A trial court is required to enter written findings of fact and conclusions of law following

a CrR 3.5 or CrR 3.6 hearing on the admissibility of evidence.3 But a trial court may submit

written findings and conclusions while an appeal is pending “if the defendant is not prejudiced

by the belated entry of findings.” State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293 (1996).

And we do not infer any prejudice from delay alone. State v. Head, 136 Wn.2d 619, 625, 964

P.2d 1187 (1998).

       Here, the trial court entered its written findings of fact and conclusions of law after

Witkowski filed his opening brief. The trial court’s belated findings and conclusions are

consistent with its oral rulings following the CrR 3.5 and CrR 3.6 hearings, and Witkowski does



3
  CrR 3.5(c) provides, “After the hearing, the court shall set forth in writing: (1) the undisputed
facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to
whether the statement is admissible and the reasons therefor.” CrR 3.6(b) provides, “If an
evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact
and conclusions of law.”


                                                  6
No. 49708-5-II;
Consolidated with No. 50725-1-II
not claim that the delayed entry caused him prejudice. See Cannon, 130 Wn.2d at 329-30

(finding no prejudice when late-filed findings and conclusions were consistent with the trial

court’s oral ruling). Accordingly, we find no error in the trial court’s late entry of written

findings and conclusions.

                                      II. SCRIVENER’S ERRORS

        Next, Witkowski asserts that his judgment and sentence contains scrivener’s errors in that

it (1) incorrectly states he was tried on the State’s original information, and (2) fails to reflect the

trial court’s same criminal conduct finding. The State concedes that Witkowski’s judgment and

sentence contains these scrivener’s errors. We accept the State’s concessions and remand to the

trial court for a correction of Witkowski’s judgment and sentence consistent with this opinion.

        A scrivener’s error is a clerical mistake that, when amended, would correctly convey the

trial court’s intention as expressed in the record at trial. State v. Davis, 160 Wn. App. 471, 478,

248 P.3d 121 (2011), superseded by statute on other grounds as recognized in In re Pers.

Restraint of Combs, 176 Wn. App. 112, 119, 308 P.3d 763 (2013); see also Presidential Estates

Apartment Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100 (1996). The remedy for a

scrivener’s error is remand to the trial court for correction. State v. Makekau, 194 Wn. App. 407,

421, 378 P.3d 577 (2016); CrR 7.8(a).

        Witkowski is correct that his judgment and sentence states he was tried on the State’s

original information when, in fact, he was tried on an amended information. We accept the

State’s concession.

        Witkowski is also correct that his judgment and sentence fails to state the trial court’s

finding that his two convictions for unlawful possession of a controlled substance with intent



                                                   7
No. 49708-5-II;
Consolidated with No. 50725-1-II
deliver constituted the same criminal conduct. Here, the State asserted at sentencing that

Witkowski’s two unlawful possession of a controlled substance with intent to deliver convictions

constituted the same criminal conduct for purposes of calculating his offender score at seven for

those convictions. The trial court agreed with the State’s offender score analysis and imposed a

standard range sentence for Witkowski’s unlawful possession of a controlled substance with

intent to deliver convictions based on an offender score of seven. Thus, the trial court implicitly

found that Witkowski’s two convictions for unlawful possession of a controlled substance with

intent to deliver constituted the same criminal conduct for purposes of calculating his offender

score.4 The trial court, however, did not reflect its same criminal conduct finding in Witkowski’s

judgment and sentence.5 Accordingly, we accept the State’s concession and remand to the trial

court for a correction of Witkowski’s judgment and sentence to correctly reflect that he was tried

on the State’s amended information and to correct Witkowski’s judgment and sentence to reflect




4
    RCW 9.94A.589(1)(a) provides in relevant part:

         [W]henever a person is to be sentenced for two or more current offenses, the
         sentence range for each current offense shall be determined by using all other
         current and prior convictions as if they were prior convictions for the purpose of
         the offender score: PROVIDED, That if the court enters a finding that some or all
         of the current offenses encompass the same criminal conduct then those current
         offenses shall be counted as one crime. . . . “Same criminal conduct,” as used in
         this subsection, means two or more crimes that require the same criminal intent, are
         committed at the same time and place, and involve the same victim. . . .
5
 Witkowski’s judgment and sentence contains preprinted language that states, “Current offenses
encompassing the same criminal conduct and counting as one crime in determining the offender
score are (RCW 9.94A.589): . . . .” CP at 31. The trial court did not check the box next to this
preprinted language and did not complete the preprinted language to state that Witkowski’s two
current offenses for unlawful possession of a controlled substance with intent to deliver
encompassed the same criminal conduct.


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No. 49708-5-II;
Consolidated with No. 50725-1-II
its finding that his two unlawful possession of a controlled substance with intent to deliver

convictions constituted the same criminal conduct.

                                             III. SAG

A.     Search Warrant

       Witkowski appears to contend in his SAG that evidence seized from the Passat should

have been suppressed based on an invalid search warrant. Specifically, Witkowski contends for

the first time on appeal that the search warrant was invalid because the issuing court did not sign

the warrant until four days after it was executed. Witkowski also contends for the first time on

appeal that the trial court was required to suppress evidence seized from the vehicle because the

State failed to produce a record of the telephonic affidavit in support of the search warrant.

       1. RAP 2.5

       In general, we do not address claims of error raised for the first time on appeal. RAP

2.5(a). But RAP 2.5(a)(3) provides an exception to this general rule where an appellant can

show a manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671, 676, 260

P.3d 884 (2011). To show manifest error, Witkowski must demonstrate actual and identifiable

prejudice to his constitutional rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d

125 (2007). To demonstrate actual prejudice in this context, Witkowski must show that the trial

court would have excluded evidence in response to a suppression motion raising these claims and

that such exclusion would have had a practical or identifiable consequence at trial. State v.

McFarland, 127 Wn.2d 322, 333-34, 899 P.2d 1251 (1995); Gordon, 172 Wn.2d at 676. To

determine whether Witkowski has made this threshold showing, we necessarily must preview the

merits of his alleged error. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).



                                                 9
No. 49708-5-II;
Consolidated with No. 50725-1-II
          2. Preview of Arguments

          A preview of Witkowski’s claim that the search warrant was invalid because it was

executed prior to it being signed by the issuing court shows that it clearly lacks merit and, thus,

he fails to demonstrate manifest error warranting review of the claim for the first time on appeal

under RAP 2.5(a)(3). Witkowski does not identify any evidence in the record showing that

Deputy Zurfluh had executed a search warrant prior to it being signed by the issuing court.6 And

Zurfluh’s uncontroverted testimony at the CrR 3.6 hearing and trial was that he did not search

the vehicle until after obtaining a search warrant on July 6, 2015. Because Witkowski fails to

show manifest error, we decline to review this claim under RAP 2.5(a)(3).

          A preview of Witkowski’s claim that the State failed to produce a record of a telephonic

affidavit in support of the search warrant also clearly lacks merit based on the limited record

before us. CrR 2.3(c) permits evidence in support of a search warrant to be in the form of sworn

testimony, but the rule states that “[a]ny sworn testimony must be recorded and made part of the

court record and shall be transcribed if requested by a party if there is a challenge to the validity

of the warrant or if ordered by the court.” The failure to record sworn testimony supporting

probable cause to issue a search warrant may violate a defendant’s rights under the Fourth

Amendment to the United States Constitution and article 1, section 7 of the Washington

Constitution. See State v. Myers, 117 Wn.2d 332, 344, 815 P.2d 761 (1991).

          Here, the record before us does not reveal whether the court issuing the search warrant

had relied on sworn telephonic testimony or, instead, had relied on a written affidavit. Further,



6
    Witkowski has not designated a copy of the search warrant at issue for the record on appeal.



                                                  10
No. 49708-5-II;
Consolidated with No. 50725-1-II
even assuming that the issuing court had relied on sworn telephonic testimony, there is nothing

in the record showing that it failed to record such testimony. Because the facts necessary to

address Witkowski’s claim are not in the record before us, he cannot show actual prejudice and,

thus, he fails to show manifest error. See McFarland, 127 Wn.2d at 333 (“If the facts necessary

to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and

the error is not manifest.”). Accordingly, we decline to review this claim under RAP 2.5(a)(3).

B.       Ineffective Assistance of Counsel

         Next, Witkowski contends in his SAG that his counsel was ineffective at the suppression

hearing and at trial. Specifically, Witkowski contends his counsel was ineffective for (1) failing

to request a Franks7 hearing, (2) failing to request a Casal8 hearing, (3) failing to interview

State’s witnesses, (4) failing to call witnesses to testify at trial, (5) failing to request a lesser-

included offense jury instruction, (6) failing to appeal the trial court’s denial of motion to hire an

investigator, and (7) requesting that he sign postjudgment findings of fact and conclusions of law

absent sufficient consultation.

         We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To demonstrate that he received ineffective assistance of

counsel, Witkowski must show both (1) that defense counsel’s performance was deficient and (2)

that the deficient performance resulted in prejudice. State v. Reichenbach, 153 Wn.2d 126, 130,

101 P.3d 80 (2004). Performance is deficient if it falls below an objective standard of

reasonableness. Reichenbach, 153 Wn.2d at 130. Prejudice ensues if there is a reasonable


7
    Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
8
    State v. Casal, 103 Wn.2d 812, 699 P.2d 1234 (1985).


                                                    11
No. 49708-5-II;
Consolidated with No. 50725-1-II
possibility that the outcome of the proceeding would have differed but for counsel’s deficient

performance. Reichenbach, 153 Wn.2d at 130. If Witkowski fails to make either showing, we

need not inquire further. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

Additionally, we strongly presume that counsel’s performance was reasonable and, to rebut this

presumption, Witkowski “bears the burden of establishing the absence of any ‘conceivable

legitimate tactic explaining counsel’s performance.’” State v. Grier, 171 Wn.2d 17, 42, 246 P.3d

1260 (2011) (quoting Reichenbach, 153 Wn.2d at 130).

       1. Failure To Request Franks Hearing

       Witkowski contends that his defense counsel was ineffective for failing to request a

Franks hearing. We disagree.

       In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978),

the United States Supreme Court held that the Fourth Amendment requires a trial court to

conduct an evidentiary hearing upon the defendant’s request if the defendant makes a substantial

preliminary showing that an affiant deliberately or recklessly made material misstatements in a

search warrant affidavit. “Allegations of negligence or innocent mistake are insufficient.”

Franks, 438 U.S. at 171. Rather, to be entitled to a Franks hearing “[t]here must be allegations

of deliberate falsehood or of reckless disregard for the truth, and those allegations must be

accompanied by an offer of proof.” Franks, 438 U.S. at 171.

       Here, there were no allegations below that a search warrant affiant had made deliberate

misrepresentations that were material to the issuing court’s finding of probable cause, and

Witkowski does not claim any particular misrepresentations in his SAG. Instead, Witkowski

baldly asserts that the “affiant’s warrant affidavit was filled with blatant falsities and



                                                  12
No. 49708-5-II;
Consolidated with No. 50725-1-II
inaccuracies submitted willfully to secure search warrant.” SAG at 4. But “[t]o mandate an

evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported

by more than a mere desire to cross-examine.” Franks, 438 U.S. at 171. Because the record

does not support the preliminary showing required for a Franks hearing, Witkowski cannot show

that the trial court would have granted a Franks hearing if requested by counsel. Accordingly, he

cannot demonstrate prejudice, and his ineffective assistance of counsel claim on this ground

fails.

         2. Failure To Request Casal Hearing

         Next, Witkowski contends that his counsel was ineffective for failing to request a Casal

hearing. Again, we disagree.

         In State v. Casal, 103 Wn.2d 812, 820, 699 P.2d 1234 (1985), our Supreme Court held

that when a defendant presents information that “casts a reasonable doubt on the veracity of

material representations made by [a search warrant] affiant” regarding statements allegedly made

by a confidential informant, a trial court should exercise its discretion to conduct an in camera

hearing at which the State must disclose the identity of a confidential informant to the trial

court.9 The purpose of this Casal hearing is for the trial court to determine whether the search

warrant affiant truthfully reported the facts stated by the confidential informant and, based on the

trial court’s determination of the affiant’s veracity, whether probable cause existed to issue the

search warrant. 103 Wn.2d at 822.




9
 The defendant and defendant’s counsel are excluded from the hearing and the transcript of the
hearing must be sealed to protect the informant’s anonymity. Casal, 103 Wn.2d at 821.


                                                 13
No. 49708-5-II;
Consolidated with No. 50725-1-II
         Here, Witkowski did not present any information below casting a reasonable doubt on a

search warrant affiant’s veracity, and presents no such information in his SAG. Instead, similar

to his argument regarding counsel’s decision not to request a Franks hearing, he merely asserts

that his counsel was required to request a Casal hearing “[i]n view of all the false statements

made by the affiant.” SAG at 12. This conclusory allegation that the affiant made false

statements is insufficient to cast a reasonable doubt on the affiant’s veracity and, thus,

Witkowski cannot show that the trial court would have granted a request for a Casal hearing.

Accordingly, Witkowski cannot demonstrate any prejudice resulting from defense counsel’s

decision to not request a Casal hearing, and his claim of ineffective assistance on this ground

fails.

         3. Failure To Interview State’s Witnesses

         Next, Witkowski contends that his defense counsel was ineffective for failing to

interview State’s witnesses before trial. We cannot address the merits of this claim because there

is nothing in the record before us showing that defense counsel failed to interview State’s

witnesses.

         4. Failure To Call Witnesses

         Next, Witkowski contends that his defense counsel was ineffective for failing to call

witnesses on his behalf. But Witkowski fails to identify any potential witnesses that his defense

counsel could have called and fails to explain how any potential witness testimony would have

aided in his defense. Accordingly, he demonstrates neither deficient performance nor resulting

prejudice in support of an ineffective assistance of counsel claim on this ground.




                                                 14
No. 49708-5-II;
Consolidated with No. 50725-1-II
       5. Failure To Request Lesser Included Offense Jury Instruction

       Next, Witkowski contends that defense counsel was ineffective for failing to request a

lesser included offense jury instruction. But Witkowski fails to identify what lesser included

offense jury instruction defense counsel should have requested. Accordingly, we do not address

this argument. RAP 10.10(c).

       6. Failure To Appeal Trial Court’s Denial of Motion To Hire Investigator

       Next, Witkowski contends that counsel was ineffective for failing to appeal the trial

court’s denial of a motion to hire an investigator. We cannot address this claim on the record

before us as it does not contain any trial court ruling regarding a request to hire an investigator.

       7. Failure To Meet or Consult Prior to Postjudgment Proceeding

       Next, Witkowski contends that the assigned counsel representing him at a postjudgment

proceeding was ineffective for advising him to sign the trial court’s belated CrR 3.5 and CrR 3.6

findings and conclusions without first meeting and consulting with him. The record belies

Witkowski’s contention. Witkowski’s counsel at the postjudgment proceeding requested a

continuance of time to review the transcripts from the CrR 3.5 and CrR 3.6 hearings, which

request the trial court denied. Neither Witkowski nor his assigned counsel signed the written

findings and conclusions from the CrR 3.5 and CrR 3.6 hearings. Therefore, Witkowski fails to

demonstrate that his counsel performed deficiently.

C.     Timing of CrR 3.5 and CrR 3.6 Hearings

       Next, Witkowski contends that the timing of his CrR 3.5 and CrR 3.6 hearings violated

his right against self-incrimination under the Fifth Amendment to the United States Constitution

and article I, section 9 of the Washington Constitution because Deputy Zurfluh testified at the



                                                 15
No. 49708-5-II;
Consolidated with No. 50725-1-II
CrR 3.6 hearing about statements Witkowski had made before the trial court conducted the CrR

3.5 hearing to determine the admissibility of those statements. We disagree.

       Assuming without deciding that a trial court errs by considering a defendant’s statements

when determining the admissibility of evidence at a CrR 3.6 hearing before determining the

admissibility of those statements at a CrR 3.5 hearing, any such error would be harmless beyond

a reasonable doubt here. The trial court ultimately conducted a CrR 3.5 hearing to determine the

admissibility of Witkowski’s pre-Miranda statements10 and concluded that the statements were

admissible because Witkowski was not in custody for purposes of Miranda when making the

statements. Because Witkowski does not challenge the trial court’s CrR 3.5 ruling on the

admissibility of his statements, any error in considering those statements at the CrR 3.6 hearing

is harmless beyond a reasonable doubt.

D.     Failure To Timely Prepare Findings and Conclusions

       Next, Witkowski contends that the State violated his constitutional rights by failing to

timely prepare proposed findings of fact and conclusions of law for the CrR 3.5 and 3.6 hearings

as ordered by the trial court. Although the trial court requested the State to prepare and submit

proposed findings and conclusion before the start of jury deliberations, it is unclear from the

record whether the delay in entering written findings and conclusions was due to the State’s

failure to comply with this request or for other reasons. Regardless, as addressed above, a trial

court may submit written findings and conclusions while an appeal is pending “if the defendant




10
  The State did not seek to admit any post-Miranda statements made by Witkowski at the CrR
3.5 hearing and did not present any such statements at the CrR 3.6 hearing.


                                                16
No. 49708-5-II;
Consolidated with No. 50725-1-II
is not prejudiced by the belated entry of findings,” and we do not infer any prejudice from the

delay alone. Cannon, 130 Wn.2d at 329; Head, 136 Wn.2d at 625.

       Here, Witkowski does not identify any specific prejudice resulting from the State’s

alleged failure to timely prepare and submit proposed findings and conclusions or the trial

court’s belated entry of those findings and conclusions. Instead, Witkowski asserts that the

State’s failure to timely submit proposed findings and conclusion violated his rights under the

United States and Washington Constitutions to due process, equal protection, a fair trial, and to

the administration of justice without unnecessary delay. But Witkowski does not explain how

the State’s failure violated these rights. This assertion of constitutional violations without

explanation are insufficient to “inform the court of the nature and occurrence of alleged errors”

and, thus, we do further consider it. RAP 10.10(c); see also State v. Johnson, 119 Wn.2d 167,

171, 829 P.2d 1082 (1992) (“‘[N]aked castings into the constitutional sea are not sufficient to

command judicial consideration and discussion.’” (internal quotation marks omitted) (quoting In

re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986))).

E.     Right to Counsel

       Next, Witkowski contends that his right to counsel was violated when he was made to

appear at post-judgment proceedings absent legal representation. Because there is nothing in the

record showing that Witkowski was unrepresented at a critical stage of his criminal proceedings,

we do not further consider this contention.

F.     Cumulative Error

       Finally, Witkowski contends in his SAG that cumulative error denied his right to a fair

trial. We disagree. The cumulative error doctrine applies when several errors occurred at the



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No. 49708-5-II;
Consolidated with No. 50725-1-II
trial level, none of which alone warrants reversal, but the combined errors effectively denied the

defendant a fair trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003). Apart

from the scrivener’s errors in Witkowski’s judgment and sentence, which are appropriately

remedied by remanding for corrections, he has not demonstrated any error occurred at trial.

Accordingly, the cumulative error doctrine does not apply, and we affirm Witkowski’s

convictions.

          We affirm Witkowski’s convictions and remand for a correction of the scrivener’s errors

in his judgment and sentence consistent with this opinion.

                                 IV. PERSONAL RESTRAINT PETITION

          Witkowski raises several ineffective assistance of counsel claims in a personal restraint

petition that we have consolidated with his direct appeal. Specifically, Witkowski argues in his

petition that his defense counsel was ineffective for (1) failing to request a Franks hearing, (2)

failing to request a Casal hearing, (3) failing to propose certain jury instructions, (4) failing to

object to prosecutorial misconduct, (5) failing to object to the State’s discovery violations or

Brady11 violations, (6) failing to call witnesses to testify at trial, (7) failing to interview the

State’s witnesses before trial, (8) failing to hire an investigator or personally conduct an

investigation, (9) making false or misleading statements during closing argument, and (10)

failing to prepare a presentence investigation. Witkowski also appears to argue that Deputy

Zurfluh exceeded the scope of a Terry stop or search pursuant to an arrest when he conducted a

warrantless search of the vehicle’s trunk and of the contents in the trunk. We deny Witkowski’s

petition.


11
     Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).


                                                   18
No. 49708-5-II;
Consolidated with No. 50725-1-II
       To obtain relief through a personal restraint petition, Witkowski must show either

constitutional error that resulted in actual and substantial prejudice or nonconstitutional error that

resulted in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-

13, 792 P.2d 802 (1990). Additionally, Witkowski must support his claims of error with a

statement of facts on which his claim of unlawful restraint is based and the evidence available to

support his factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2);

In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1998); see also Cook, 114

Wn.2d at 813-14.

A.      Failure To Request Franks Hearing

       Witkowski first argues in his petition that his counsel was ineffective for failing to

request a Franks hearing. We disagree.

       As we noted when addressing this same claim in Witkowski’s direct appeal, the record

does not show any allegations of the search warrant affiant making deliberate misrepresentations

that were material to the issuing court’s probable cause finding. And Witkowski does not

identify in his petition any evidence outside the direct appeal record showing that the search

warrant affiant had made such misrepresentations. Because “allegations of deliberate falsehood

or of reckless disregard for the truth . . . accompanied by an offer of proof” are required to be

entitled to a Franks hearing, and because Witkowski does not identify any evidence showing that

the search warrant affiant had made such falsehoods, he cannot show that the trial court would

have granted a request for a Franks hearing. 438 U.S. at 171. Accordingly, he fails to

demonstrate any prejudice resulting from defense counsel’s decision to not request a Franks

hearing, and his claim of ineffective assistance of counsel on this ground fails.



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No. 49708-5-II;
Consolidated with No. 50725-1-II
B.     Failure To Request a Casal Hearing

       Next, Witkowski argues in his petition that his counsel was ineffective for failing to

request a Casal hearing. Again, we disagree.

       As we noted when addressing this same claim in Witkowski’s direct appeal, the record

does not show that Witkowski had any information casting a reasonable doubt on material

representations made by a search warrant affiant regarding statements attributed to a confidential

informant. And Witkowski does not identify in his petition any evidence outside the direct

appeal record that casts a reasonable doubt on the affiant’s representations. Because information

casting a reasonable doubt on the affiant’s representations is a necessary prerequisite to a Casal

hearing, Witkowski cannot show that the trial court would have granted a request for a Casal

hearing. 103 Wn.2d at 820. Accordingly, he fails to demonstrate any prejudice resulting from

defense counsel’s decision to not request a Casal hearing, and his claim of ineffective assistance

of counsel on this ground fails.

C.     Failure To Request Jury Instructions

       Next, Witkowski argues in his petition that his counsel was ineffective for failing to

request a lesser-included offense jury instruction and a jury instruction regarding testimony of an

accomplice. Again, we disagree.

       Witkowski does not support his claim regarding a lesser-included offense jury instruction

with a statement of facts and the evidence available to support his factual allegations as required

under RAP 16.7(a)(2). Instead, he merely concludes that his “State and Federal Constitutional

rights to effective counsel were violated by his attorney’s failure to ask for jury instructions for

any lesser included offenses,” without identifying any particular lesser-included offense jury



                                                  20
No. 49708-5-II;
Consolidated with No. 50725-1-II
instruction to which he would have been entitled had defense counsel requested it. Petition at 8.

Because Witkowski’s claim on this issue fails to comply with RAP 16.7(a)(2), we do not further

consider it.

        Witkowski similarly fails to support his claim regarding an accomplice testimony jury

instruction with a statement of facts and the evidence available to support his factual allegations

as required under RAP 16.7(a)(2). Moreover, this claim clearly lacks merit as the State did not

present any testimony from an alleged accomplice to Witkowski’s crimes at trial.

D.      Failure To Object to Prosecutorial Misconduct

        Next, Witkowski argues in his petition that his counsel was ineffective for failing to

object to numerous instances of prosecutorial misconduct. But Witkowski does not identify any

particular instance of prosecutorial misconduct to which his defense counsel should have

objected. Accordingly, his claim on this issue fails to comply with RAP 16.7(a)(2), and we do

not further address it.

E.      Failure To Object to Discovery Violations or Brady Violations.

        Next, Witkowski argues in his petition that his counsel was ineffective for failing to

object to the State’s discovery violations or violations under Brady v. Maryland, 373 U.S. 83, 83

S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But Witkowski does identify any evidence supporting his

factual allegation that the State committed a discovery violation or a Brady violation.

Accordingly, we do not further consider this claim. RAP 16.7(a)(2).

F.      Remaining Ineffective Assistance of Counsel Claims

        Witkowski fails to support any of his remaining ineffective assistance of counsel claims

with a statement of facts and the evidence available to support his factual allegations as required



                                                 21
No. 49708-5-II;
Consolidated with No. 50725-1-II
under RAP 16.7(a)(2). Instead, he merely concludes without explanation that his counsel was

ineffective for “failing to call any defense proposed witnesses, failing to interview State

witness[es] pre-trial, failing to hire investigator, or personal[ly conduct] pre-trial investigations

himself,” making “false/misleading statement confirming State’s assertion of guilt in counsel’s

closing statement/remark,” and “failing to prepare pre-sentence investigation/recommend DOSA

review.” Petition at 2. These conclusory allegations are insufficient to meet the requirements of

RAP 16.7(a)(2) and, thus, we do not further consider Witkowski’s remaining claims. Williams,

111 Wn.2d at 365; Cook, 114 Wn.2d at 813-14.

G.     Vehicle Search

       Finally, although difficult to discern, it appears Witkowski argues in his petition that

Deputy Zurfluh exceeded the scope of a permissible Terry stop or exceeded the scope of a search

incident to arrest by conducting a warrantless search of the locked trunk of the vehicle and of the

contents therein.12 This claim lacks merit as the unchallenged findings from the CrR 3.6 hearing

show that Zurfluh did not search the vehicle until after he had obtained a warrant. Accordingly,

we deny Witkowski’s petition.


12
   In apparent response to this argument, the State asserts that Witkowski’s claim must fail in
part because he failed to provide this court with a copy of the search warrant issued in this case,
which was admitted as exhibit 2 at the CrR 3.6 suppression hearing. We again remind the State
that it is not the petitioner’s burden to provide the record related to claims of error. RAP
16.7(a)(2) requires the petitioner to provide a statement of facts upon which his or her claim is
based and to indicate what evidence is available to support those claims. RAP 16.7 does not
require the petitioner to provide records from court proceedings. Instead, RAP 16.9(a) places the
burden of providing a record from relevant proceedings on the State, stating in part, “If an
allegation in the petition can be answered by reference to a record of another proceeding, the
response should so indicate and include a copy of those parts of the record that are relevant.”
(Emphasis added.) Because we may resolve Witkowski’s claim without reference to the contents
of the search warrant issued in this case, the State’s continued misconception of its burden under
RAP 16.7 is of no consequence in this present action.


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No. 49708-5-II;
Consolidated with No. 50725-1-II
        In summary, we affirm Witkowski’s convictions, remand for a correction of the

scrivener’s errors in his judgment and sentence consistent with this opinion, and deny his

petition.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Maxa, C.J.




 Melnick, J.




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