 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 72728-1-1
                     Respondent,
                                                 DIVISION ONE
              V.
                                                 UNPUBLISHED OPINION
LELAND ALFRED JORDAN,

                     Appellant.                  FILED: March 13, 2017
                                         )

       TRICKEY, A.C.J. — Leland Jordan seeks to withdraw his guilty plea to felony
harassment and bail jumping. Jordan argues that the superior court violated his

constitutional right to counsel by failing to conduct a second colloquy regarding his

desire to proceed pro se. Jordan also contends that his plea lacked a factual basis

and the charging document was inadequate to apprise him of the essential

elements of bail jumping. We affirm.

                                       FACTS

       On September 23, 2013, the State charged Jordan with felony harassment

based on an incident in which Jordan made threats to kill Dr. Sachita Shah and

other medical staff at Harborview Medical Center.

       At a hearing on October 16, 2013, Jordan announced his intention to waive

his right to counsel and proceed pro se. Judge James Rogers engaged in a

lengthy colloquy with Jordan, which included the nature of the crime, the maximum

penalty, and the rights Jordan was waiving. Jordan also signed a written waiver

of counsel. Judge Rogers found that Jordan's waiver was knowingly, intelligently,

and voluntarily made, and discharged Jordan's court-appointed attorney.
No. 72728-1-1/ 2

          At an omnibus hearing on December 6, 2013, Jordan asserted that the jail

was not giving him access to discovery, and expressed confusion about how to file

motions or request services from the Office of Public Defense. Judge Ronald

Kessler explained the procedure to Jordan, stating, "You were told when you

decided to represent yourself that you didn't know what you were doing . . . and

you're going to be in trouble with it. You don't know what you're doing. And you're

stuck with it."1 Jordan responded, "But, I do know what I'm doing."2

          On December 11, 2013, the State informed the court that Dr. Shah was on

bedrest due to a high-risk pregnancy and would not be available to testify until

February. Judge Rogers told the deputy prosecutor,"I'd have to seriously consider

releasing Mr. Jordan if you want a continuance that long."3 Jordan said, "I swear

on my skin I will make all these appointments if you let me go."4 Judge Rogers

released Jordan on the condition that Jordan report daily to King County's

Community Center for Alternative Programs (CCAP). Judge Rogers told Jordan,

"So, your next [court] date will be Friday, January 17th at ... 8:30."5

          Jordan did not appear at the January 17 hearing. The State informed Judge

Sean O'Donnell that Jordan had not reported to CCAP as required and his

whereabouts were unknown. Judge O'Donnell issued a warrant for Jordan's

arrest.




1 2 Report of Proceedings(RP)at 40.
22 RP at 40.
3 2 RP at 44.
4 2 RP   at 45.
5 2 RP   at 53.
                                          2
No. 72728-1-1 / 3

       On June 26, 2014, Jordan appeared in custody, having been arrested

approximately a week earlier. Jordan immediately reminded the court, "Uh, you

know—you know, I'm representing myself."6 Judge Rogers discussed Jordan's

previous release and stated, "[Y]ou failed to appear on January 17th, and that's

when the warrant issued."7 The State informed the court of its intention to charge

Jordan with bail jumping. Judge Rogers explained to Jordan that bail jumping

"means you didn't show up to court."8

      At a second omnibus hearing on August 1, 2014, the State amended the

information to add a charge of bail jumping. Jordan said, "I think it might be too

late for me to defend myself pro se. I mean, I got 60 days. I've been waiting 45

days for the discovery."9 The following exchange took place between Jordan and

Judge Patrick Oishi:

      THE COURT: So, Mr. Jordan, I just want to be clear. I know Judge
      Kessler and Judge Rogers have both allowed you to go pro se. Is it
      still —

       MR. JORDAN: Yes.

      THE COURT: — your desire to represent yourself today?

      MR. JORDAN: Well, the fact of the matter is, it — it seems like it's
      going to be impossible for you — for me to represent myself. The —
      the Prosecutor hasn't been acknowledging the court orders. The Jail
      don't acknowledge the court orders. And so, therefore, I feel like I'm
      in a position where I just can't do it because it's just physically beyond
      my lack of ability to access certain things, not possible for me to do
      that. Now, they were supposed to give me a copy of discovery 45
      days ago. They still haven't done it.091


6 2 RP at 56.
7 2 RP at 57.
8 2 RP at 63.
9 1 RP at 26.
101 RP at 27.
                                          3
No. 72728-1-1/4


Jordan continued to argue about getting a copy of discovery. Judge Oishi asked

Jordan again if he still wanted to proceed pro se.

       MR. JORDAN: I want to — yeah, I still want to do that. But, I want to
       do it in such a way where I can access some legal materials where I
       can fight. I don't want to be sitting up in a — in a cage somewhere
       and can't even see because I don't have glasses, and them failing to
       acknowledge court orders issued by the Court.... I don't think I could
       do it now. I only have, like, 65 days in, what, 20 days? I don't think I
       can prepare a meaningful defense in 20 days.

       THE COURT: Okay. So, are you saying you don't want to be pro se
       now?

       MR. JORDAN: I am saying —

       THE COURT: I don't want to waste any more time.

       MR. JORDAN: I'm saying — me neither.

       THE COURT: I just need an answer.

       MR. JORDAN: I'm saying I think you should dismiss this charge
       because, uh —

       THE COURT: I'm not going to —

       MR. JORDAN: — for their failure —

       THE COURT: — dismiss the charge, sir.

       MR. JORDAN: Okay. Well, how you going to — well, whatever you
       want to do; I guess it's up to you. I'm the best lawyer for me. And I'm


       THE COURT: Are you —

       MR. JORDAN: — going to want to defend myself. I want certain
       accessible — I want access.1111

The parties continued to discuss Jordan's access to discovery.


11 1 RP at 28-29.
                                          4
No. 72728-1-1 /5

         THE COURT: Sir, I'm just asking you a straightforward —

          MR. JORDAN: Yeah, okay.

         THE COURT: — question. Do you —

          MR. JORDAN: Yeah. Yeah.

         THE COURT: Are you still wanting to represent yourself? I'm trying
         to enter —

          MR. JORDAN: The will is —

         THE COURT: — some orders.

          MR. JORDAN: The will to represent myself is still there. However, if
          I'm not going to have no access to no legal materials, no pencils, no
          papers, no envelopes, it's — it would be virtually impossible for a
          person in my position to represent himself.

         THE COURT: Okay.

         MR. JORDAN: All right? If your court orders ain't going to work, like
         the last judge and the one before that, ain't no use in writing them.

         THE COURT: Okay. Just to be clear, Judge Kessler and Judge
         Rogers have previously done colloquies with Mr. Jordan. They've
         allowed him to proceed pro se. I'm going to continue to allow Mr.
         Jordan to proceed pro se. What I'm going to do is I'm going to sign
         this waiver of counsel form.[12]

          Jordan signed another written waiver of counsel reflecting the amended

information, including the fact that both crimes carried a maximum sentence of five

years.

          Another hearing was held on August 11, 2014. Judge Oishi said, "Mr.

Jordan, we are here on apparently your motion. And so, can you briefly tell me

what it is you're asking?"13


12   1 RP at 29-30.
13   1 RP at 39. Jordan's motion is not part of the record before this court.
                                               5
No. 72728-1-1 /6

      MR. JORDAN: Well, originally I — I — well, originally I had made a
      motion to have a — have an attorney assigned. But, in the time since
      I made the motion I've been provided some access to some — to
      some legal access. And — and now I —

      THE COURT: Good.

      MR. JORDAN: — just don't feel it'd be feasible under the
      circumstances as they are at the present time —

      COURT: What's not feasible?

      MR. JORDAN: — for me to have an attorney. Huh?

      THE COURT: I'm sorry, what's not feasible?

      MR. JORDAN: I don't think it'd be feasible for me to have an — have
      an attorney right now. All he could do is ask for a continuance, and
      that would just — I mean, you know, I know — I realize that that would
      condemn me to doing more time that I've already done on a charge
      that really — so —

      THE COURT: I — I just want to be clear. What's your request today?

      MR. JORDAN: My request is I don't have a request. I want to submit
      some motions first and give you an — a chance to rule on some
      motions before I make any other motions.

     [PROSECUTOR]: And, Your Honor, if I could provide the Court with
     some additional information.

      THE COURT: Yes.

     [PROSECUTOR]: Mr. Jordan and I met at the jail last week. As the
     Court knows, when he was last before the Court, he mentioned
     wanting to plead guilty. We discussed that briefly. He then had
     several questions relating to scoring as well as withdrawing previous
     misdemeanor guilty pleas, which I simply can't advise him on. At that
     point we discussed whether or not he might want an attorney, and
     he indicated that he did. And so, that's why we set the court today.


     . . . When I spoke with him this morning, I understand that he no
     longer wishes to ask the Court for an attorney.



                                        6
No. 72728-1-1/ 7



          MR. JORDAN: I don't — the fact — I don't — I don't really need an
          attorney. What I need is somebody to make me copies and do a little
          running — running around things for me. Uh —

         THE COURT: Yeah. And it sounds like you're requesting essentially
         a paralegal, and you don't have a right to a paralegal. I'm going to
         deny that request.

          MR. JORDAN: Okay.[141

         Trial commenced on August 26, 2014, before Judge Monica Benton. The

court held a CrR 3.5 hearing regarding the admissibility of Jordan's post-arrest

statements.

         The following day, Jordan entered an Alford15 plea to the charges in the

amended information. As part of the plea agreement, the State permitted Jordan

to challenge the State's calculation of his offender score at sentencing. Judge

Benton sua sponte appointed standby counsel to help Jordan review nearly 200

pages of criminal history provided by the State.

          On October 24, 2014, Judge Benton sentenced Jordan to 51 months on

each count, based on an offender score of 10. Jordan appeals.

                                        ANALYSIS

                                Waiver of Right to Counsel

          Jordan contends that he was deprived of his constitutional right to counsel

when he was permitted to represent himself absent a knowing, intelligent, and

voluntary waiver of his right to counsel.



14 1   RP at 39-41.
15   North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162(1970).
                                              7
No. 72728-1-1 /8

          The Sixth Amendment to the United States Constitution and article I, section

22 of the Washington State Constitution guarantee a criminal defendant the right

to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525,45

L. Ed. 2d 562(1975); State v. Luvene, 127 Wn.2d 690,698, 903 P.2d 960(1995).

However, the right to self-representation is not self-executing. State v. Woods,

143 Wn.2d 561, 586, 23 P.3d 1046 (2001). A criminal defendant who desires to

waive the right to counsel and proceed pro se must make an affirmative demand,

and the demand must be unequivocal in the context of the record as a whole.

Luvene, 127 Wn.2d at 698-99.

          Furthermore, a waiver of the right to counsel must be made knowingly,

voluntarily, and intelligently. City of Tacoma v. Bishop, 82 Wn. App. 850, 855,920

P.2d 214 (1996). "While there are no steadfast rules for determining whether a

defendant's waiver of the right to assistance of counsel is validly made, the

preferred procedure for determining the validity of a waiver involves the trial court's

colloquy with the defendant, conducted on the record." State v. Modica, 136 Wn.

App. 434, 441, 149 P.3d 446(2006).

          Here, it is undisputed that Jordan unequivocally waived his right to counsel

on October 16, 2013. However, Jordan contends that a subsequent "significant

change in circumstances" rendered his waiver invalid and the court was required

to procure a new waiver.16

         "[A] valid waiver of the right to assistance of counsel generally continues

throughout the criminal proceedings, unless the circumstances suggest that the


16   Appellant's Opening Br. at 11 (boldface omitted).
                                              8
No. 72728-1-1 /9

waiver was limited." Modica, 136 Wn. App. at 445. Thus, a trial court is not

ordinarily required to inquire about a party's continuing desire to proceed pro se at

later stages of the proceeding. Modica, 136 Wn. App. at 445 (citing Arellanes v.

United States, 302 F.2d 603,610(9th Cir.1962)). However, a new inquiry into self-

representation may be required if "circumstances have sufficiently changed since

the date of the Faretta inquiry that the defendant can no longer be considered to

have knowingly and intelligently waived the right to counsel." United States v.

Hantzis, 625 F.3d 575, 581 (9th Cir.2010).

       Jordan argues that the significant lapse in time between his original waiver

on October 16, 2013 and his guilty plea on August 27, 2014 constituted such a

change in circumstances. Jordan relies on a federal case, Schell v. United States,

423 F.2d 101 (7th Cir. 1970), in support of his claim. But the facts of Schell are

distinguishable. There, the court granted a 20-year-old defendant's request to

proceed pro se. The court informed the defendant of the maximum sentence he

faced as an adult but otherwise did not adequately advise the defendant of the

consequences of his decision.        At sentencing, six months later, the court

sentenced the defendant as a juvenile — which carried a greater maximum penalty

— without inquiring whether the defendant wanted the assistance of counsel. The

Seventh Circuit noted the lapse in time but determined that the defendant's original

waiver was invalid primarily because of the defendant's youth and inexperience

and the original waiver's questionable validity. Schell, 423 F.2d at 103.

       Here, in contrast, Jordan was 62 years old and had extensive experience

with the criminal justice system. Jordan told the court that he had represented


                                         9
No. 72728-1-1/ 10

himselffour times and that he was "the best lawyer."17 There was also no question

about the validity of Jordan's original waiver. Furthermore, the lapse in time was

primarily due to the fact that Jordan failed to appear for court hearings for over six

months. Even after Jordan was taken back into custody, he repeatedly asserted

his desire to continue to represent himself. Finally, while the delay in Schell

occurred between trial and sentencing, here, Jordan was sentenced within a

reasonable time after his guilty plea and was provided standby counsel for

sentencing. We find that, under the circumstances of this case, the passage of

time did not necessitate a new colloquy.

        Jordan next contends that the superior court was required to conduct a new

colloquy after the State added an additional charge of bail jumping. He claims that

neither the State nor the court advised him of the maximum penalty he faced on a

bail jumping conviction. But the record does not support this claim. After the State

amended the information, Jordan signed an amended waiver of counsel in which

he acknowledged that the maximum penalty for both charges was five years.

         Moreover, we rejected the claim that the filing of new charges necessitates

a new colloquy in Modica. In Modica, the defendant executed a valid waiver of

counsel. Several days later, the State amended the information to add an

additional charge. The trial court attempted to discourage the defendant from

proceeding pro se, but did not inform him of the maximum penalty associated with

the newly added charge. The defendant asserted his continuing desire to

represent himself. This court held:


172   RP at 17.
                                         10
No. 72728-1-1 / 11

               [T]he trial court here was not required to inquire as to Modica's
         continuing wish to waive his right to assistance of counsel.
         Nevertheless, it did so. Four days after the information was amended
         to add the tampering with a witness charge, the trial court queried
         Modica about whether he wished to revoke his earlier waiver, and
         again advised him not to proceed pro se. The next day, which was
         the day before trial began, the trial court again asked Modica if he
         wished to proceed pro se. The trial court was not required to sua
         sponte engage Modica in a second full colloquy in which it informed
         him of the new charge's maximum penalty.

                 The trial court did not err by not engaging in another full
         colloquy informing Modica of the consequences of proceeding pro se
         and the maximum penalties associated with the witness tampering
         charge. No such colloquy was required. The trial court's sua sponte
         efforts to confirm Modica's continuing desire for self-representation,
         which continued up to the eve of trial, sufficiently guaranteed that his
         Sixth Amendment rights were preserved.

Modica, 136 Wn. App. at 446 (internal footnotes omitted).

         Finally, Jordan argues that the superior court was obligated to conduct

another colloquy after he made equivocal statements about wanting counsel

reappointed.

         But"[o]nce an unequivocal waiver of counsel has been made,the defendant

may not later demand the assistance of counsel as a matter of right since

reappointment is wholly within the discretion of the trial court." State v. DeWeese,

117 Wn.2d 369, 376-77, 816 P.2d 1(1991). And Jordan was unwavering in his

desire to represent himself. While he stated that it "seems like it's going to be

impossible . . . for me to represent myself,"18 the record is clear that Jordan was

primarily upset that the jail was not providing him adequate access to discovery.

When Judge Oishi asked Jordan,"So, are you saying you don't want to be pro se



18   1 RP at 27.
                                           11
No. 72728-1-1 / 12

now?"19       Jordan responded, "The will to represent myself is still there."2°

Approximately a week later Jordan filed a motion for appointment of counsel, but

subsequently revoked that request, clarifying that what he really wanted was a

paralegal or assistant, not an attorney. The superior court did not abuse its

discretion in allowing Jordan to continue pro se without conducting an additional

colloquy.

                               Factual Basis for the Plea

          Jordan contends that there was an insufficient factual basis to support his

plea to the felony harassment charge. Under CrR 4.2(d), a trial court must be

satisfied that there is a factual basis for a defendant's guilty plea. This is a

procedural requirement that is not constitutionally mandated. State v. Branch, 129

Wn.2d 635, 642, 919 P.2d 1228 (1996). "Ordinarily, when a defendant pleads

guilty, the factual basis for the offense is provided at least in part by the defendant's

own admissions." State v. D.T.M., 78 Wn. App. 216, 220, 896 P.2d 108 (1995).

However, in an Alford plea, where the defendant does not admit guilt, but rather

acknowledges the strength of the State's evidence to convict, the court must

establish an entirely independent factual basis for the plea. D.T.M., 78 Wn. App.

at 220.

         A trial court may look to any reliable source to determine that there is a

factual basis for a guilty plea. In re Pers. Restraint of Fuamaila, 131 Wn.App. 908,

924, 131 P.3d 318(2006). One such source is the certification of probable cause.



191    RP at 29.
29 1   RP at 30.
                                           12
No. 72728-1-1/ 13

See State v. Osborne, 102 Wn.2d 87, 95, 684 P.2d 683 (1984) (prosecutor's

factual statement). In determining whether a factual basis exists for a plea, the

trial court need not be convinced beyond a reasonable doubt that the defendant is

in fact guilty. State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682(1976). Rather,

a factual basis exists if there is sufficient evidence for a jury to conclude that the

defendant is guilty. Newton, 87 Wn.2d at 370.

         A defendant commits felony harassment if he or she knowingly threatens

"to kill the person threatened or any other person" and the person is placed in

"reasonable fear that the threat will be carried out." RCW 9A.46.020(1)(b),

(2)(b)(ii). The information charged that Jordan "knowingly and without lawful

authority, did threaten to cause bodily injury immediately or in the future to Dr.

Sachita Shah, by threatening to kill Cynthia Ruiz-Seitzinger, Diane Fullerswitzer,

Levena Barlow, Sachita Shah and Vincent Smith, and the words or conduct did

place [Dr. Shah] in reasonable fear that the threat would be carried out."21

         In his guilty plea statement, Jordan stated,"I agree that the court can review

the probable cause certification [and] prosecutor's supplemental summary to find

a factual basis for th[e] plea and for sentencing."22 The certification of probable

cause provided:

         Nurse Cynthia Ruiz-Seitzinger explained to Mr. Jordan that she was
         going to need a blood sample from him. Mr. Jordan yelled
         obscenities at Nurse Ruiz-Seitzinger stating he was "sick of the
         establishment and being judged." Mr. Jordan threatened to strangle
         Nurse Ruiz-Seitzinger if she touched him. Jordan yelled obscenities
         and referenced the recent Seattle bus shooting and the Navy
         shipyard shooting — adding that he would "get a gun at a drug house

21   CP at 16.
22   CP at 91.
                                           13
No. 72728-1-1/ 14

         and come back and there won't be a soul left standing." Mr. Jordan
         — an African American — also stated, "Those niggers got it right. ..
         barn, barn, barn." Nurse Ruiz-Seitzinger said Mr. Jordan made
         multiple statements similar to the ones described above.

         [Electrocardiogram]technician, Levena Barlow witnessed Mr. Jordan
         making the threats of violence toward the hospital staff members,
         including the threat to carry out a similar act of the Naval Shipyard
         shooting in Washington DC as well as the downtown Seattle shooting
         of the Metro bus driver. Barlow said Mr. Jordan was very specific on
         using an AK47 and "was justifying his actions with racism and (his)
         untreated medical condition." Barlow also stated that a pair of
         scissors and a cell phone were removed from Mr. Jordan's person at
         the point that he was restrained by Hospital security.

         Nurse Diane Fullerswitzer said Mr. Jordan was very threatening and
         at one point, stated to her and the other staff, that if he did not get
         his pain medications he was going to "beat all" their asses. Mr.
         Jordan then told the nursing staff that he would come back and
         "shoot everybody" making reference to multiple recent shootings and
         added that "black men snap" apparently justifying the Naval shipyard
         shooting. Mr. Jordan added,"See, that is what happens if I don't get
         what I want."

         Nurse Vincent Smith was also assisting in the care of Mr. Jordan and
         stated that Mr. Jordan yelled profanities and made violent threats
         toward him — including,"I'm going to beat your fucking ass" and "You
         saw the guy who shot up the bus downtown, you saw the guy who
         shot up the Navy shipyard . . . well I'm about to snap and I'm going
         to get a gun and come here and shoot everybody."

         Doctor Sachita Shah also witnessed Mr. Jordan's threatening
         behavior. Dr. Shah felt threatened when Mr. Jordan stated,"I'm going
         to get an AK47 and come back and kill all of you motherfuckers
         just like the navy yard." Doctor Shah stated she and her staff feared
         that Mr. Jordan could actually carry out his plan.[23]

         Jordan argues that the certification of probable cause does not provide a

factual basis to conclude he threatened Dr. Shah. He argues that the evidence

showed only that Dr. Shah witnessed his threats, not that she was the target of the



23   Clerk's Papers(CP)at 4.
                                           14
No. 72728-1-1 /15

threats. But the evidence showed that Dr. Shah was present when Jordan

threatened to get a gun and "come back and kill all of you motherfuckers."24 Thus,

it was reasonable for a jury to conclude that "all of you" included Dr. Shah.

       Jordan asserts the evidence showed only that Dr. Shah feared Jordan

"could" carry out his threat to kill, not that she feared he "would" do so.25 But RCW

9A.46.020(1)(b) requires that the State prove that the person threatened is placed

in "reasonable fear that the threat will be carried out." Dr. Shah stated she felt

threatened by Jordan's statements. Moreover, in the context of making the threats,

Jordan specifically referenced two recent, high-profile public shootings. This

constitutes sufficient evidence from which a trier of fact could have concluded that

Dr. Shah had a reasonable fear that Jordan planned to shoot her or other staff

members. See, e.g., State v. E.J.Y., 113 Wn. App. 940, 953, 55 P.3d 673(2002)

(evidence was sufficient for a jury to find that a victim's fear was reasonable when

the defendant told the victim, "You're going to have another Columbine around

here, you guys better watch out," and the victim testified that "I was concerned

that [the defendant] was making a threat that he could come back in and cause

violence."(emphasis added)).26




24 CP at 4.
25 Appellant's Opening Br. at 24-25.
26 In a related claim, Jordan asserts that Washington's felony harassment statute, RCW
9A.46.020(1), violates the First Amendment to the United States Constitution because it
does not require proof that the speaker subjectively intended to communicate a threat.
But the Washington Supreme Court has repeatedly rejected this claim, most recently in
State v. Trey M., 186 Wn.2d 884, 893-94, 383 P.3d 474(2016).

                                          15
No. 72728-1-1 /16

                         Sufficiency of Charging Document

       Jordan challenges the sufficiency of the information charging bail jumping.

He contends the information failed to allege that he knew he was supposed to

appear in court on a specific date.

       A charging document must include a crime's essential elements in order to

notify the "accused of the nature and cause of the accusation." State v. Kjorsvik,

117 Wn.2d 93, 97, 812 P.2d 86 (1991). The purpose of this rule is to give the

accused proper notice of the nature of the crime so that he or she can prepare an

adequate defense. K'orsvik, 117 Wn.2d at 101. Where, as here, a defendant

challenges the information after the verdict, we construe the document liberally in

favor of its validity. Korsvik, 117 Wn.2d at 105. In applying this liberal construction

standard, we read the words in the charging document as a whole and consider

whether the necessary facts appear in any form. Kiorsvik, 117 Wn.2d at 109. If

they do, we consider whether the defendant was "nonetheless actually prejudiced

by the manful language which caused the lack of notice." K'orsvik, 117 Wn.2d at

105-06. To analyze actual prejudice, we"may look beyond the face of the charging

document to determine if the accused actually received notice of the charges he

or she must have been prepared to defend against." Korsvik, 117 Wn.2d at 106.

We review de novo claims that an information omitted essential elements of a

charged crime. State v. Pittman, 185 Wn. App. 614, 619, 341 P.3d 1024(2015).

       RCW 9A.76.170(1) provides that a person "having been released by court

order or admitted to bail with knowledge of the requirement of a subsequent




                                          16
No. 72728-1-1/ 17

personal appearance before any court of this state... and who fails to appear ..

. as required is guilty of bail jumping."

       Here, the amended information provided:

              That the defendant Leland Alfred Jordan in King County,
       Washington, on or about January 17, 2014, being charged with
       Felony Harassment, a Class C felony, and having been released by
       court order with knowledge of the requirement of a subsequent
       personal appearance before King County Superior Court, a court of
       the [S]tate of Washington, did fail to appear as required[.]

              Contrary to RCW 9A.76.170(1),(3)(c), and against the peace
       and dignity of the State of Washington.[27]

The information thus included the date that Jordan failed to appear: January 17,

2014. And the information included the fact that the State had to prove Jordan had

knowledge of the requirement to appear. Construing the information liberally and

reading it in a common sense manner, we conclude that the allegedly missing

element of Jordan's knowledge of the particular date that he had to appear is

implied by the information. Because the information was sufficient to give Jordan

notice of the essential elements of bail jumping, we need not determine whether

Jordan suffered prejudice.28

                           Statement of Additional Grounds

       Jordan raises four additional claims in his pro se statement of additional

grounds. None merit reversal.




27CP at 93.
28 In support of his argument, Jordan relies on State v. Cardwell, 155 Wn. App. 41, 47,
226 P.3d 243(2010), which held that "[i]n order to meet the knowledge requirement of the
statute, the State is required to prove that a defendant has been given notice of the
required court dates." But Cardwell is inapposite because it involved the sufficiency of the
evidence, not the adequacy of the information.
                                            17
No. 72728-1-1 / 18

       First, Jordan challenges the sufficiency of the information charging felony

harassment. Jordan appears to suggest that he was confused as to whether the

State was alleging Dr. Shah was the victim of his harassment or merely a witness.

But the information contained all of the essential elements of the crime. Moreover,

contrary to Jordan's claim, the State provided a bill of particulars outlining the facts

the State intended to prove.

       Next, Jordan contends that the court violated his right to a speedy trial by

granting a two-month continuance due to Dr. Shah's unavailability. CrR 3.3(f)(2)

allows a court to continue the trial date "when such continuance is required in the

administration of justice and the defendant will not be prejudiced in the

presentation of his or her defense." The decision whether to grant or deny a motion

to continue lies within the sound discretion of the court and will not be disturbed

absent a showing that it was manifestly unreasonable or exercised on untenable

grounds or for untenable reasons. State v. Kenyon, 167 Wn.2d 130, 135,216 P.3d

1024 (2009). The unavailability of a material State witness is a valid ground for

continuing a criminal trial where a valid reason exists for the unavailability, the

witness will become available within a reasonable time, and the defendant is not

substantially prejudiced. State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936

(1993). Here, Jordan does not identify how he was prejudiced by the continuance.

Jordan fails to establish that the court abused its discretion.

       Jordan argues that he was not timely provided discovery because the State

failed to give him a copy of the video recording of his arrest until two weeks before

trial. Jordan asserts that he planned to defend on the grounds of "temporary


                                          18
No. 72728-1-1/ 19

insanity" until he viewed the video, at which point he decided to enter an Alford

plea.29 But Jordan fails to establish how he was prejudiced by this alleged error.

          Finally, Jordan challenges the calculation of his offender score, arguing that

his misdemeanor convictions should not prevent his older felony convictions from

washing out. But class B felony convictions count toward the offender score unless

the defendant has spent at least ten consecutive years in the community "without

committing any crime that subsequently results in a conviction."                  RCW

9.94A.525(2)(b)(emphasis added). Class C felony convictions will count toward

the offender score unless the defendant has spent at least five consecutive years

in the community "without committing any crime that subsequently results in a

conviction." RCW 9.94A.525(2)(c)(emphasis added). "[Misdemeanors as well as

felony convictions interrupt the . . . wash-out period." In re Pers. Restraint of

Higgins, 120 Wn. App. 159, 164, 83 P.3d 1054 (2004).

          Jordan does not dispute the State's recitation of his criminal history. And

none of Jordan's fourteen felony convictions wash out because at no time has

Jordan spent five years in the community without committing any crimes. Jordan's

challenge to his offender score fails.
                                                                                            C?
          Affirmed.
                                                       ,
                                                                                        -11       I
                                                                                                 r
WE CONCUR:                                                                                 CP rn
                                                                                              "2-


                                                                                           -4c3




29   Statement of Additional Grounds at 3.
                                             19
