                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          August 16, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 47588-0-II

                                Respondent,

        v.

 FLOYDALE L. ECKLES, JR.,                                     UNPUBLISHED OPINION

                                Appellant.

       JOHANSON, P.J. — Floydale Eckles, Jr. appeals his bench trial convictions and sentencing

conditions for three counts of child rape, and one count of attempted child rape. We hold that the

community custody condition prohibiting Eckles from entering places where alcohol is primarily

sold is crime related and proper. However, we remand to the trial court to (1) correct a clerical

error in the judgment and sentence, (2) strike one unconstitutionally vague community custody

condition, (3) strike another noncrime-related community custody condition, and (4) make an

individualized determination of Eckles’s ability to pay legal financial obligations (LFOs). We also

hold that the trial court properly granted the State’s continuance motion and that Eckles’s counsel’s

performance was not deficient for failing to object to this motion. We affirm Eckles’s convictions.

But we reverse his sentence in part and remand for proceedings consistent with this opinion.
No. 47588-0-II


                                               FACTS

                           I. CHARGES AND MOTION TO CONTINUE TRIAL

         The State charged Eckles with three counts of child rape, one count of attempted child rape,

and one count of child molestation. These charges involved two victims, KT and KR,1 who were

between the ages of 12 and 15 years old. Because the background facts are largely irrelevant to

the issues raised on appeal, the details of the crimes are not repeated here.

         Trial was set for January 20, 2015, but on that date the State moved for a continuance

because the prosecutor was in a homicide trial set to last two to three weeks. Defense counsel did

not object to the continuance. The trial court ruled that there was good cause to continue the trial

to February 9. Eckles filed a motion to dismiss for violation of his time for trial right. On February

9, the trial court noted Eckles’s earlier time for trial dismissal motion. Without expressly ruling

on Eckles’s motion, the trial court proceeded with trial.

                               II. ECKLES’S DRUG AND ALCOHOL USE

         Eckles testified that he attended parties where he consumed drugs and alcohol and that he

was drunk at the party during which he admitted he had sexual intercourse with KT. KT was under

the influence of drugs or alcohol during each rape. KR was under the influence of drugs and

alcohol the night Eckles attempted to rape her. Eckles also claimed that his “vocation” was selling

drugs.




1
 We use initials instead of names for victims of sex crimes to protect their privacy. Division Two
General Order 2011-1.

                                                  2
No. 47588-0-II


                  III. CONVICTIONS, PRESENTENCE REPORTS, AND SENTENCING

       Following the bench trial, the trial court found Eckles guilty of two counts of second degree

child rape, one count of third degree child rape, and attempted third degree child rape. Thereafter,

the Department of Corrections (DOC) submitted a presentence investigation report (PSI) with

attached “Appendix F” that listed recommended community custody provisions. DOC filed a

revised PSI to correct factual inaccuracies in the original PSI. The revised PSI did not include

Appendix F, but a new “Appendix H.”

       The revised PSI stated that a child interviewer interviewed KT once and KR twice at the

“SAU” office.2 The PSI also details Eckles’s education and employment history. Eckles attended

but did not complete high school and “has worked only two jobs in his life and both of them were

in 2012 and 2013.” Clerk’s Papers (CP) at 28. The first job paid Eckles up to $15 an hour and the

other job involved landscaping for about a month and Eckles could not remember how much he

was paid.

       At the sentencing hearing, the State argued that Eckles lived with his parents and was

without steady employment. The State also argued that Appendix H, not Appendix F, should be

adopted to set out the community custody conditions. The trial court rejected Appendix F and

ruled that Eckles would be on community custody conditions as set out in Appendix H. The trial

court signed Appendix H that day. However, the judgment and sentence contained a checked box

stating the following: “PSI CONDITIONS—All conditions recommended in the Pre-Sentence

Investigation are incorporated herein as conditions of community custody, in addition to any



2
 The PSI does not say what “SAU” stands for, but presumably it is the Kitsap County Special
Assault Unit.

                                                 3
No. 47588-0-II


conditions listed in this judgment and sentence, unless otherwise noted.” CP at 47. The trial court

sentenced Eckles to 17½ years minimum in prison and community custody for life.

          IV. COMMUNITY CUSTODY CONDITIONS AND LEGAL FINANCIAL OBLIGATIONS

       Eckles’s community custody conditions included that he shall “[p]ossess/access no

pornography, sexually explicit materials, and/or information pertaining to minors via computer

(i.e. internet)” (CP at 47), “[s]hall not consume alcohol” (CP at 56), shall “[e]nter no bar or place

where alcohol is the chief item of sale” (CP at 47), and “[s]hall not possess tracking equipment”

(CP at 56).3

       The State asked the court to impose “standard” LFOs and specifically requested a $500

victim assessment fee, a $1,135 court-appointed attorney fee, a $200 filing fee, a $100

deoxyribonucleic biological sample fee, a $100 contribution to Kitsap County Expert Witness

Fund, and a $500 contribution to Kitsap County Special Assault Unit (KCSAU). Defense counsel

did not object to these LFOs. There was no inquiry or further discussion about Eckles’s financial

situation or ability to pay the LFOs. The trial court stated it would “impose the standard legal and

financial obligations” and imposed the fees requested by the State. Report of Proceedings (RP)

(Mar. 11, 2015) at 45-46. The judgment and sentence stated the following: “4.1 LEGAL

FINANCIAL OBLIGATIONS—RCW 9.94A.760. The Court finds that the Defendant has the ability

or likely future ability to pay legal financial obligations.” CP at 48. The judgment and sentence

also lists statutory or other authority supporting every other LFO imposed, except where it simply

states, “$500 Contribution—Kitsap Co. Special Assault Unit.” CP at 48. Eckles appeals.



3
 The first three community custody conditions were included in the judgment and sentence and
Appendix H, the fourth was included in only Appendix H.

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No. 47588-0-II


                                               ANALYSIS

                          I. JUDGMENT AND SENTENCE CLERICAL ERROR

       Eckles argues that the judgment and sentence improperly incorporated the community

custody conditions set out in the original PSI, Appendix F, when the trial court actually intended

to impose the community custody conditions set out in the revised PSI, Appendix H. Eckles

contends that this was a clerical error that should be corrected on remand. We agree with Eckles

that the clerical error should be corrected.

       Sentencing errors may be challenged for the first time on appeal. State v. Bahl, 164 Wn.2d

739, 744, 193 P.3d 678 (2008). Clerical mistakes in judgments and orders arising from oversight

or omission may be corrected by the court at any time on the motion of any party. CrR 7.8(a).

       Here, the judgment and sentence contains a checked box incorporating the conditions

recommended in the “Pre-Sentence Investigation” and does not mention the revised PSI that

includes the correct Appendix H. CP at 47. This clerical error could cause confusion in the future.

We remand to the trial court to correct the judgment and sentence to incorporate the revised PSI

and Appendix H. CrR 7.8(a).

                              II. COMMUNITY CUSTODY CONDITIONS

                          A. UNCONSTITUTIONALLY VAGUE CONDITION

       Eckles relies on Bahl and State v. Valencia to argue that the community custody condition

against possession of pornography and/or information pertaining to minors is unconstitutionally

vague because it does not provide fair notice of the prohibited behavior and invites arbitrary

enforcement of the condition. 169 Wn.2d 782, 239 P.3d 1059 (2010). The State argues that this




                                                  5
No. 47588-0-II


condition is not unconstitutionally vague because language contained in the condition makes clear

what is prohibited.4 We agree with Eckles.

       We review de novo whether a trial court had statutory authority to impose community

custody conditions. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Under the

Fourteenth Amendment of the United States Constitution and article I, section 3 of the Washington

Constitution, a condition is unconstitutionally vague if it (1) does not define the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is proscribed or (2)

does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Bahl,

164 Wn.2d at 752-53.

       To decide whether condition terms are unconstitutionally vague, they are considered in the

context in which they are used. Bahl, 164 Wn.2d at 754. When a statute does not define a term,

the court may consider the plain and ordinary meaning as set forth in a standard dictionary. Bahl,

164 Wn.2d at 754. Imposition of an unconstitutionally vague condition is manifestly unreasonable

and such conditions must be reversed. Valencia, 169 Wn.2d at 791-92.

       In Bahl, our Supreme Court held that the condition “‘[d]o not possess or access

pornographic materials, as directed by the supervising Community Corrections Officer’” was

unconstitutionally vague. 164 Wn.2d at 743, 758. The vagueness determination in Bahl ultimately




4
  The State also argues that because Eckles did not object to this condition at trial, he did not
preserve his arguments. But a sentencing error, including an erroneous community custody
provision, may be challenged for the first time on appeal. Bahl, 164 Wn.2d at 744. Thus, Eckles
can raise this issue for the first time on appeal. Additionally, the State argues that this condition
is proper because it is “crime-related.” But Eckles does not appeal this condition on that basis.

                                                 6
No. 47588-0-II


rested on the well-established fact that “pornography” does not have a precise legal definition and

is a subjective term. 164 Wn.2d at 755-57.5

       Here, the State unpersuasively asserts that this case is distinguishable from Bahl because

the condition prohibited “‘pornographic, sexually explicit materials” and, thus, “‘sexually

explicit’” is a modifier clarifying the other terms in the condition. Br. of Resp’t at 9-10. The

contested condition here states that Eckles shall “possess/access no pornography, sexually explicit

materials, and/or information pertaining to minors via computer (i.e. internet).” CP at 47. This

grammatical structure is not such that “sexually explicit” modifies the terms “pornography” or

“information pertaining to minors”; the comma placement makes it clear it modifies only

“materials.”

       The term “pornography” is not statutorily defined and is subjective such that an ordinary

person cannot understand what is proscribed. Bahl, 164 Wn.2d at 755-57. And it does not provide

ascertainable standards of guilt to protect against arbitrary enforcement because an enterprising

corrections officer could declare viewing an R-rated movie containing nudity or sexual acts as

covered by the term. Bahl, 164 Wn.2d at 755-57.




5
 See State v. Sansone, 127 Wn. App. 630, 634, 111 P.3d 1251 (2005) (holding that a condition of
community placement that prohibited the defendant from possessing or perusing pornography
without approval from his probation officer was unconstitutionally vague).

                                                7
No. 47588-0-II


         The term “and/or information pertaining to minors via computer (i.e. internet)” is even less

clear. CP at 47. A search for a Washington statute defining “information pertaining to minors via

computer” yields no results.6 A dictionary search does not offer any additional clarity.7

         Valencia provides some guidance. In Valencia, the challenged condition stated that the

defendant “‘shall not possess or use any paraphernalia’” that can be used for the ingestion or

processing of controlled substances. 169 Wn.2d at 785. The Valencia court held that this condition

was unconstitutionally vague because the term “paraphernalia” is so broad that it includes

everyday items and, thus, the term did not provide fair notice or protection from arbitrary

enforcement. 169 Wn.2d at 794-95.

         Here, the condition “and/or information pertaining to minors via computer” is just as vague

as the term “paraphernalia” discussed in Valencia and could cover a broad spectrum of

information. 169 Wn.2d at 794-95. The condition could cover a news article related to a disease

outbreak among children. Because this condition cannot be defined with sufficient definiteness

that ordinary people can understand what conduct is proscribed and does not provide ascertainable

standards of guilt to protect against arbitrary enforcement, we remand for resentencing. Bahl, 164

Wn.2d at 752-53.




6
    See Washington State Legislature, http://apps.leg.wa.gov/RCW/default.aspx.
7
  The dictionary definition of “information” as a noun is “[k]nowledge communicated by others or
obtained from investigation, study, or instruction” or “[k]nowledge of a particular event or
situation.” WEBSTER’S THIRD NEW COLLEGE DICTIONARY 1160 (2002). The definition of pertain
is “[t]o have some connection with or relation to something : reference “or “to belong to something
as an attribute or adjunct” or “to be appropriate to something.” WEBSTER’S 1688. The definition
of child is “a person who has not yet come of age,” “an unborn . . . human being,” “one who
exhibits the characteristics of a very young person,” or “a son or a daughter.” WEBSTER’S 388.

                                                  8
No. 47588-0-II


                 B. PROHIBITION AGAINST ENTERING PLACES THAT SELL ALCOHOL

       Eckles argues that the trial court erred by imposing the community custody condition that

he shall “[e]nter no bar or place where alcohol is the chief item of sale” because there is no evidence

this condition is related to his crimes. CP at 47. We disagree.

       We review whether sentencing conditions are crime related for abuse of discretion. State

v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). Under the terms of community custody, a

sentencing court has discretionary authority to impose crime-related prohibitions.               RCW

9.94A.703(3)(f). A “[c]rime-related prohibition” is one that involves “conduct that directly relates

to the circumstances of the crime for which the offender has been convicted.” RCW

9.94A.030(10).

       A trial court also has authority to prohibit alcohol consumption as a community custody

condition regardless of the underlying offense’s nature. Former RCW 9.94A.703(3)(e) (2009). It

further has the authority to prohibit the purchase and possession of alcohol if alcohol is

“reasonably related to the circumstances of [the defendant’s] alleged offenses.” State v. McKee,

141 Wn. App. 22, 34, 167 P.3d 575 (2007) (emphasis added).

       Here, both victims, KT and KR, were under the influence of alcohol when Eckles

committed the crimes against them, and Eckles was also under the influence of alcohol during at

least one of the crimes. Eckles testified that he did not care how old KT was when he raped her

because he was “just drunk.” 2 RP at 227. Thus, alcohol affected Eckles’s judgment about the

crimes he committed and, as his and his victims’ testimony demonstrate, alcohol was an integral

part of the crimes. Therefore, we conclude that the prohibition against entering places that

primarily sell alcohol is reasonably related to Eckles’s crimes. McKee, 141 Wn. App. at 34. The


                                                  9
No. 47588-0-II


trial court properly exercised its discretion to prohibit Eckles from frequenting places that

primarily sell alcohol. We affirm this condition.

                 C. PROHIBITION AGAINST POSSESSION OF TRACKING EQUIPMENT

       Eckles argues that the condition that he “[s]hall not possess tracking equipment” is not

crime related because there is no evidence he used tracking equipment in relation to any of the

crimes.8 CP at 56. Here, the State concedes that there is no evidence that Eckles’s crimes were

related to tracking equipment whatsoever. We accept the State’s concession that this condition is

not reasonably related to the crime. State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870, review

denied, 181 Wn.2d 1019 (2014). We remand to the trial court to strike this condition.

                               III. LEGAL FINANCIAL OBLIGATIONS

       Eckles argues that the trial court erred by imposing LFOs because the trial court

erroneously failed to inquire about his ability to pay discretionary LFOs and that the contribution

to the KCSAU and to the expert witness fund were not authorized by statute. We agree that Eckles

lacks the ability to pay and remand to the trial court to strike the discretionary LFOs.

                           A. FINANCIAL INQUIRY AND ABILITY TO PAY

       Eckles argues that the imposition of discretionary LFOs, including a $1,135 discretionary

attorney fee, was erroneous because the trial court failed to make the required inquiry into his

ability to pay the fees.9 The State argues that the trial court was informed about Eckles’s financial




8
  The State again argues that because Eckles did not object to this condition at trial, he did not
preserve his arguments against this condition for appeal. But because a sentencing error may be
challenged for the first time on appeal, we reject the State’s argument. Bahl, 164 Wn.2d at 744.
9
  Eckles argues that although he did not object to the imposition of LFOs at trial to preserve this
issue for appeal, we should use our discretion to review his LFOs because the trial court did not
                                                10
No. 47588-0-II


status and work history from the PSI. We accept the State’s assertion that the trial court was

properly informed, but we hold that the trial court erroneously concluded from that information

that Eckles had the ability to pay LFOs.

       Our review of a trial court’s determination of a defendant’s ability to pay LFOs is

essentially factual and conducted under the clearly erroneous standard. State v. Bertrand, 165 Wn.

App. 393, 403-04, 267 P.3d 511 (2011). The record must reflect that the sentencing judge

considered the defendant’s individual financial circumstances and made an individualized inquiry

into the defendant’s current and future ability to pay. State v. Blazina, 182 Wn.2d 827, 837-38,

344 P.3d 680 (2015). This inquiry also requires the trial court to consider other factors such as

incarceration and a defendant’s other debts when determining a defendant’s ability to pay.

Blazina, 182 Wn.2d at 839.

       Here, the State asked the court to impose “standard” LFOs and specifically requested

$2,535 in total LFOs, including the $1,135 in attorney fees. The information in the revised PSI

and the evidence heard at trial shows that the trial court was well aware of Eckles’s financial

situation. The revised PSI states that Eckles did not complete high school, has worked only two

jobs in his life in 2012 and 2013, made at or below minimum wage at one of the jobs, and worked

the other job for only a month. The trial court heard Eckles’s only “vocation” was as a drug dealer,

he lived with his parents, and he was without steady employment. The trial court sentenced Eckles

to 17½ years in prison minimum, after which he will emerge with a scant education and

employment history.



make the required inquiry into his ability to pay. We agree and exercise our discretion under RAP
2.5 to consider the LFO issues advanced by Eckles.

                                                11
No. 47588-0-II


       This evidence shows that the trial court had the necessary information to determine whether

Eckles had or will have the ability to pay $2,535 in LFOs. However, in light of the lengthy 17½-

year prison term and his extremely limited work history, we hold that the trial court erroneously

concluded from this information that Eckles had or will have the ability to pay LFOs. We remand

to strike the discretionary LFOs from the judgment and sentence.

                            B. SPECIAL ASSAULT UNIT CONTRIBUTION

       Eckles also argues that the imposition of a $500 contribution to the KCSAU was improper

because it was not statutorily authorized. The State does not respond to this argument. We

conclude that Eckles is correct.

       We review the statutory authorization of the imposition of LFOs de novo. State v. Hardtke,

183 Wn.2d 475, 479, 352 P.3d 771 (2015). RCW 10.01.160 directs what costs the trial court can

impose on a criminal defendant. Hardtke, 183 Wn.2d at 479. The statute states, “Costs shall be

limited to expenses specially incurred by the state in prosecuting the defendant.”            RCW

10.01.160(2) (emphasis added). There is no Kitsap County code or ordinance that authorizes the

superior court to require defendants to contribute specifically to the KCSAU.

       Here, a Kitsap County Sexual Assault Center advocate read a letter on KT’s behalf at

Eckles’s sentencing. And the revised PSI states that a child evaluator interviewed KT once and

KR twice at the “SAU” office, but does not state what SAU stands for. Presumably, SAU stands

for the KCSAU, but it is not clear that these interviews and/or the Sexual Assault Center advocate’s

appearance in court cost the State $500 to prosecute this case. Additionally, while the judgment

and sentence lists statutory or other authority to support every other LFO imposed, here it simply

states, “$500 Contribution—Kitsap Co. Special Assault Unit.” CP at 48. Because there is no clear


                                                12
No. 47588-0-II


showing that this cost was authorized by local or state authority or that the $500 amount was

specially incurred by the State in prosecuting Eckles, we reverse the imposition of this

discretionary LFO. RCW 10.01.160(2).

                                       C. EXPERT WITNESS FEE

        Eckles argues that the imposition of a $100 contribution to the Kitsap County expert

witness fund was not statutorily authorized because no expert witnesses were used at trial. The

State argues that Kitsap County authority supports the imposition of this LFO and that the fee need

not be imposed to pay an expert used in a particular case.10 Because Eckles lacks the ability to

pay discretionary LFOs, we reverse the imposition of this fee.

        Chapter 4.84 Kitsap County Code (KCC) is the “Expert Witness Fund Ordinance.” KCC

4.48.010. The ordinance states that this fund “shall be maintained with moneys recovered for the

county by the prosecuting attorney pursuant to court orders requiring defendants to reimburse the

state for costs of expert witnesses.” KCC 4.48.030(d). The fund’s exclusive purpose is to “provide

reasonable compensation to any expert witness who has provided or who will provide services to

the prosecuting attorney.” KCC 4.48.040.

        The ordinance defines an expert witness as

        any person who, by reason of education or specialized experience, possesses
        superior knowledge respecting a subject about which persons having no particular
        training are incapable of forming an accurate opinion or deducing correct
        conclusions or any person skilled in any particular art, trade or profession, being
        possessed with peculiar knowledge concerning it, and who has given the subject in
        question particular study, practice or observation.


10
  In reply, Eckles argues that even if the Kitsap County Code (KCC) authorized the fee, this county
code conflicts with a state statute and the state statute should control in light of this conflict, thereby
raising a constitutional preemption question. But we do not address arguments raised for the first
time in a reply brief. RAP 10.3(c); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992).
                                                    13
No. 47588-0-II



KCC 4.48.020(3).

       Here, the $100 contribution to the expert witness fund cites to “Kitsap County Ordinance

139.1991,” which is codified as chapter 4.84 KCC. CP at 48; KCC 4.84.010. The State is correct

that the KCC does not require contributions for the county expert witness fund be collected

specifically because of and for the State’s use of expert witnesses in a particular case. But neither

does it require that an expert witness fee be imposed at all. In light of our conclusion that Eckles

lacks the ability to pay discretionary LFOs, we strike the $100 expert witness fee.

                                      IV. APPELLATE COSTS

       In light of appellant’s indigent status and our presumption under RAP 15.2(f) that he

remains indigent “throughout the review” unless the trial court finds that his financial condition

has improved, we exercise our discretion and waive appellate costs. RCW 10.73.160(1).

                         V. STATEMENT OF ADDITIONAL GROUNDS (SAG)

       Eckles filed a SAG asserting that (1) he was denied his time for trial right when the trial

court improperly granted a continuance due to docket congestion and (2) that he received

ineffective assistance of counsel because his attorney failed to clarify the reason for the

continuance or object to it. We disagree.

                                  A. TIME FOR TRIAL VIOLATION

       Eckles claims that the State tried to circumvent his right to a speedy trial by stating that the

prosecuting attorney was involved in another case, rather than admitting the truth that “docket

congestion” created the prosecutor’s absence. On the original trial date, the State moved for a

continuance because the prosecutor was involved in another trial set to last two to three weeks.

The trial court ruled that there was good cause to continue the trial.

                                                 14
No. 47588-0-II


       A trial court’s ruling on a motion for a CrR 3.3 continuance will not be disturbed absent a

showing of a manifest abuse of discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293

(1996). Unavailability of counsel because counsel is in trial on another matter may constitute

unforeseen or unavoidable circumstances justifying a trial extension under CrR 3.3(e)(8). State v.

Carson, 128 Wn.2d 805, 814-15, 912 P.2d 1016 (1996).

       Here, there is no evidence in the record that trial was continued for any reason related to

“docket congestion.” We hold that Eckles’s claim fails because the trial court properly granted

the continuance due to unforeseen or unavoidable circumstances: the prosecutor’s simultaneous

involvement in another case. Carson, 128 Wn.2d at 814-15. Based on the record before us, the

trial court properly granted the motion.

                            B. INEFFECTIVE ASSISTANCE OF COUNSEL

       Eckles also claims that he received ineffective assistance of counsel because his counsel

did not clarify whether the prosecutor was actually in trial for another case or had mismanaged its

case load and because his counsel failed to object to the continuance. Eckles must overcome the

strong presumption of effective defense counsel and prove that he was denied effective

representation and was thereby prejudiced. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011); Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       Performance is deficient if it falls “below an objective standard of reasonableness” given

all of the circumstances. Strickland, 466 U.S. at 688. Counsel’s conduct is not deficient if it can

be characterized as a legitimate trial strategy, but the relevant question is not whether counsel’s

choices were strategic, but whether they were reasonable. Grier, 171 Wn.2d at 33-34. A defendant

is prejudiced by deficient assistance if there is a reasonable probability that, but for counsel’s


                                                15
No. 47588-0-II


errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Failure

to make the required showing of either deficient performance or sufficient prejudice defeats an

ineffectiveness claim. Strickland, 466 U.S. at 700.

        Here, defense counsel’s failure to object does not amount to deficient conduct. Any

objection would have been futile because the trial court properly granted the motion to continue

trial due to the State’s unavailability. Because Eckles’s counsel’s actions were reasonable, we

hold that Eckles’s claim of ineffective assistance of counsel also fails. Grier, 171 Wn.2d at 33-

34. Eckles does not argue that he was prejudiced and we need not address prejudice when Eckles

fails to establish deficient performance. Strickland, 466 U.S. at 700.

        We affirm Eckles’s convictions. We reverse his sentence in part and remand to the trial

court to resentence Eckles consistent with this opinion.

        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.



                                                     JOHANSON, P.J.
 We concur:



 LEE, J.




 SUTTON, J.




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