                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 17, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                              No. 47009-8-II

                               Respondent,

        v.

 JASON ADAM HANSON,                                          UNPUBLISHED OPINION

                               Appellant.

       LEE, J. — Jason Adam Hanson appeals his second degree assault conviction and sentence,

arguing that (1) the trial court violated his time for trial rights under CrR 3.3; (2) he received

ineffective assistance of counsel because (a) defense counsel requested two continuances and (b)

defense counsel’s failure to try the case when originally scheduled created a conflict of interest

between counsel and Hanson’s right to a speedy trial; and (3) the trial court erred by imposing

legal financial obligations without considering his current or future ability to pay. We hold that

(1) Hanson’s CrR 3.3 challenge is waived; (2) he did not receive ineffective assistance of counsel;

and (3) the trial court did not err by imposing legal financial obligations (LFOs). Accordingly, we

affirm Hanson’s conviction and sentence.
No. 47009-8-II


                                              FACTS

       On July 8, 2014, the State charged Hanson with second degree assault. 1 On July 10,

Hanson pleaded not guilty, and the court scheduled trial to begin on September 2, 2014. Hanson

remained in custody pending trial.

       On August 28, defense counsel requested a continuance in order to review the victim’s

recently received medical records and to interview the victim. Defense counsel told the trial court

that he had received the victim’s medical records

       a week ago, maybe a week and a half ago. We’d still like to interview the victim.
       We were waiting for the medical reports to come in. And so I feel in order for me
       to be effective counsel, I need to be able to do my job. Even though my client is
       insisting upon it going on trial on Tuesday, I just don’t see how I can.

1 Verbatim Report of Proceedings (VRP) at 9. Hanson objected to his counsel’s request for a

continuance, acknowledging that the medical records would be a vital part of trial, but arguing that

he “still want[ed] to have a speedy trial.” 1 VRP at 12. Hanson claimed that if he consented to a

continuance, trial would be delayed for several months. The trial court granted the continuance,

finding that the time was vital for defense counsel to prepare. The trial court rescheduled trial for

October 27, 2014.

       On Thursday, October 23, the State discovered two new witnesses to the alleged assault.

The new witnesses indicated that a third, unidentified, witness may exist. On Friday, October 24,

at approximately 5:30 p.m., the State provided the new information to defense counsel.




1
 On July 18, 2014, the State filed an amended information, adding a codefendant, Autumn Skye
Williams. Williams pleaded guilty. Williams is not a party to this appeal.


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No. 47009-8-II


       On Monday, October 27, defense counsel requested a second continuance in light of the

new witnesses. Defense counsel represented that he could not effectively represent Hanson

without investigating the newly discovered information.

               Is that going to help us or hurt us? I don’t know. But I think that I have to
       as an attorney be able to effectively represent my client. And I can’t—when I just
       find out two days ago that there’s a third person who actually saw everything and
       was there on the ground, I feel that there’s no way I can proceed to trial today.

1 VRP at 30-31. Hanson objected despite acknowledging that there was a potential beneficial

witness. The trial court granted defense counsel’s request for a continuance, finding that “it’s in

the best interests of the defendant and I think for the best interests of any potential appeal that all

resources be checked out, so I would agree that a continuance over the objection of the client is

appropriate under these circumstances.” 1 VRP at 34. The trial court continued the trial to

November 17, 2014.

       Trial began on November 17. On November 19, the jury found Hanson guilty of second

degree assault.

       Hanson was sentenced on December 12. The State argued that Hanson could be employed

in the future and asked the court to impose “the standard fines, fees, and conditions.” 3 VRP at

309. Defense counsel asked the court to “consider a waiver of some of the fees” because Hanson

was indigent and had not “worked for several years now.” 3 VRP at 314. The trial court asked

Hanson if he was “disabled or ha[d] some reason [he] can’t work,” and Hanson responded that he

did not have a reason he could not work. 3 VRP at 314. The trial court found that Hanson was

indigent but has “some ability to pay,” and imposed restitution, a $500 victim assessment fee, $200

court costs, and $100 deoxyribonucleic acid (DNA) collection fee. 3 VRP at 314. Hanson appeals.




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No. 47009-8-II


                                            ANALYSIS

A.     CrR 3.3

       Hanson argues that the trial court abused its discretion by granting defense counsel’s

requests for continuances, thereby violating the time-for-trial rule in CrR 3.3. We disagree.

       1. Legal Principles

       We review a trial court’s application of CrR 3.3 de novo. State v. Ollivier, 178 Wn.2d 813,

826, 312 P.3d 1 (2013), cert denied, 135 S. Ct. 72 (2014). We review a trial court’s decision to

grant a continuance for an abuse of discretion. Id. at 823. A trial court abuses its discretion if its

decision is based on untenable grounds or for untenable reasons. State v. Nguyen, 131 Wn. App.

815, 819, 129 P.3d 821 (2006).

       A defendant held in custody pending trial must be tried within 60 days of arraignment.

CrR 3.3(b)(1)(i); Ollivier, 178 Wn.2d at 823. Continuances granted by the court are excluded from

the computation of time. CrR 3.3(e)(3). The trial court may grant a party’s motion to continue

the trial date when it “is required in the administration of justice and the defendant will not be

prejudiced in the presentation of his or her defense.” CrR 3.3(f)(2). In granting the continuance,

the court must “state on the record or in writing the reasons for the continuance.” CrR 3.3(f)(2).

“The bringing of such motion by or on behalf of any party waives that party’s objection to the

requested delay.” CrR 3.3(f)(2).

       2. No Abuse of Discretion in Continuing Trial

       Here, defense counsel represented to the trial court that in order for him to effectively

represent Hanson at trial, he needed both of the trial continuances. The trial court granted defense

counsel’s first request for a trial continuance from August 28 to October 27, based on defense



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No. 47009-8-II


counsel’s representations that he needed to review the victim’s medical records he had received

approximately one week before. Similarly, the trial court found good cause to grant defense

counsel’s second request for a trial continuance from October 27 to November 17, because defense

counsel had just learned about two new witnesses, one who could be of benefit to the defense.

Given the circumstances, the trial court did not abuse its discretion in granting the continuances.

       Furthermore, Hanson was timely brought to trial on November 17, 2014, 49 days into the

60 day time-for-trial requirement under CrR3.3(b)(1)(i). Hanson’s time-for-trial time began

running when he was arraigned on July 10, 2014. CrR 3.3(c)(1). Defense counsel requested, and

the trial court granted, the first continuance 49 days later, on August 28, 2014. The trial court

continued the trial to October 27, 2014. On October 27, defense counsel requested a second

continuance. The trial court again granted the continuance and reset the trial date to November

17, 2014. The time between August 28 and October 27, and between October 27 and November

17 is excluded from the computation of time-for-trial. CrR 3.3(e)(3). Trial began on November

17, 2014. Thus, pursuant to the time periods excluded under CrR 3.3(e), Hanson was tried on the

49th day after he was arraigned, which is within the time-for-trial requirement of 60 days. 2



2
  Hanson also argues that the trial court abused its discretion because of “the tenuous nature of the
requests compared to the relative simplicity of the facts and defense theory.” Br. of Appellant at
13. In support, he asserts that counsel’s first request for a continuance, on August 28, 2014, was
to allow time to review medical records, but that counsel made “no serious challenge to the medical
testimony,” which was presented at trial on November 17, 2014. Br. of Appellant at 13. Hanson
also asserts that the defense did not present expert testimony to support its theory of the case that
Williams caused the victim’s injuries. To the extent that Hanson argues that we should determine
whether the trial court abused its discretion on August 28, 2014 and October 27, 2014 by granting
defense counsel’s requests for continuances based on defense counsel’s performance on or after
November 17, 2014, Hanson fails to support that argument with any authority. “Where no
authorities are cited in support of a proposition, the court is not required to search out authorities,
but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post-


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No. 47009-8-II


        Hanson relies on State v. Saunders, 153 Wn. App. 209, 217, 220 P.3d 1238 (2009). In

Saunders, the trial court granted a series of continuances to allow more time for plea negotiations,

despite the defendant’s desire to cease plea negotiations and proceed to trial. Id. at 217-21. The

trial court also granted three other continuances “without adequate basis or reason articulated by

the State or defense counsel.” Id. at 220. The Sanders court reversed, holding that “[a]bsent

convincing and valid reasons for the continuances,” the trial court abused its discretion when it

granted the continuances because the client controls the goal of whether to reject further

negotiations. Id. at 218, 221.

        Saunders is distinguishable. Unlike the defense counsel in Saunders, Hanson’s counsel

sought the continuances in order to effectively represent Hanson at trial. Furthermore, unlike in

Saunders, Hanson’s counsel articulated valid bases for both continuance requests, and Hanson

acknowledged that his counsel’s explanations were reasonable. Accordingly, Hanson’s argument

that the trial court abused its discretion in granting the trial continuances fails.

B.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Hanson argues that he received ineffective assistance of counsel because defense counsel

requested two continuances. We disagree.

        We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P.3d 916 (2009). A defendant claiming ineffective assistance of counsel has the

burden to establish that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,



Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Accordingly, we will not consider
Hanson’s unsupported arguments. Id.


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No. 47009-8-II


80 L. Ed. 2d 674 (1984). Counsel’s performance is deficient if it falls below an objective standard

of reasonableness. Sutherby, 165 Wn.2d at 883. To establish prejudice, the defendant must show

that there is a reasonable probability that the result would have been different had the deficient

performance not occurred. State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). Failure to

establish either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at

700.

       To demonstrate deficient performance, a reviewing court must “judge the reasonableness

of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of

counsel’s conduct.” Id. at 690. Our scrutiny of counsel’s performance is highly deferential; we

strongly presume reasonableness. Grier, 171 Wn.2d at 33. To rebut this presumption, a defendant

bears the burden of establishing the absence of any legitimate trial tactic explaining counsel’s

performance. Id. “If trial counsel’s conduct can be characterized as legitimate trial strategy or

tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of

counsel.” State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).

       Hanson claims that he received ineffective assistance of counsel when defense counsel

requested two trial continuances. Hanson argues that defense counsel was deficient because he

did not diligently prepare for trial, which resulted in his requesting two continuances. The record,

however, shows that defense counsel requested the continuances to review and investigate recently

received and newly discovered evidence. Hanson does not argue that defense counsel was dilatory

in reviewing the recently received and newly discovered evidence or that defense counsel

misrepresented the circumstances to the trial court.




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No. 47009-8-II


       Hanson also claims that defense counsel was deficient because, although defense counsel

requested a continuance for tactical reasons, “nothing in the record indicates that counsel actually

followed through on any of these purported justifications.” Br. of Appellant at 16. Hanson notes

that the defense did not present witnesses contradicting the medical records or identify the newly

discovered witness. Hanson misunderstands the nature of this court’s inquiry. The issue, as it

relates to counsel’s performance, is whether defense counsel was deficient when he requested the

continuances. Whether a “strategy ultimately proved unsuccessful is immaterial to an assessment

of defense counsel’s initial calculus; hindsight has no place in an ineffective assistance analysis.”

Grier, 171 Wn.2d at 43. Defense counsel was not deficient when he requested a continuance in

order to follow up on recently received discovery or newly discovered witnesses before going to

trial. Because Hanson has failed to demonstrate that defense counsel was deficient, his claim of

ineffective assistance of counsel fails.

       Hanson also contends that defense counsel’s requests for continuances prejudiced Hanson

by depriving him of his time-for-trial right. But, as discussed above, Hanson’s time-for-trial right

was not violated. CrR 3.3(f)(2). To the extent that Hanson argues that he was prejudiced merely

because his original trial date was continued, he fails to support that argument with authority.

       Hanson suggests that we presume that he was prejudiced because counsel created a conflict

of interest between counsel and Hanson when defense counsel failed to try the case as originally

scheduled. Hanson cites to State v. Regan, 143 Wn. App. 419, 427, 177 P.3d 783, review denied,

165 Wn.2d 1012 (2008), but he offers no argument explaining how Regan is applicable. In Regan,

the court addressed whether the defendant received ineffective assistance of counsel based on a




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No. 47009-8-II


conflict of interest when the State called defense counsel as a witness. Id. Hanson’s ineffective

assistance of counsel claim fails. RAP 10.3(a)(6).

C.      LEGAL FINANCIAL OBLIGATIONS

        Hanson argues that the trial court erred by imposing LFOs without considering Hanson’s

current or future ability to pay. We disagree because the court imposed only mandatory, not

discretionary, LFOs.3

        Hanson does not distinguish between mandatory LFOs, for which the trial court need not

consider the defendant’s ability to pay, and discretionary LFOs, which are subject to the

requirements of RCW 10.01.160(3). See State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755

(2013). Here, the trial court imposed restitution, a crime victim assessment, court costs, and a

DNA collection fee. CP at 114. Restitution is mandatory pursuant to RCW 9.94A.753(5). Id.

The crime victim assessment is mandatory under RCW 7.68.035. Id. The court costs are

mandatory pursuant to RCW 36.18.020(2)(h). Id. And, the DNA collection fee is mandatory

under RCW 43.43.7541. Id. Thus, the court imposed no discretionary LFOs. “Because the

legislature has mandated imposition of these legal financial obligations, the trial court’s ‘finding’

of a defendant’s current or likely future ability to pay them is surplusage.” Id. at 103. Hanson’s

argument that the trial court erred by imposing LFOs without first determining his current and

future ability to pay fails.




3
 Although the trial court did not need to consider Hanson’s ability to pay mandatory LFOs, we
note that the trial did, in fact, consider Hanson’s ability to pay LFOs before imposing them.


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No. 47009-8-II


       We affirm.

       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.



                                                                    Lee, J.
 We concur:



                  Worswick, P.J.




                    Melnick, J.




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