                                                                                         COURTFILED




                                                                                                     OF :APPEALS
                                                                                                  DIVISION II
                                                                                       20I4 DEC 16 APB 8: 3 I

                                                                                        s-   T\       ASF ING:
                                                                                        BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

 STATE OF WASHINGTON,                                                       No. 44366 -0 -II


                                    Respondent,


        v.



 BRIAN EVAN HUMES,                                                 UNPUBLISHED OPINION


                                    Appellant.


       JOHANSON, C. J. —         A jury found Brian Humes guilty of felony bail jumping under RCW

9A.76. 170. Humes appeals his conviction, arguing that his counsel rendered ineffective assistance

and the trial court violated his public trial right by allowing the attorneys to exercise peremptory

challenges at sidebar.    We hold that Humes failed to demonstrate that his counsel was deficient

and, thus, his ineffective assistance of counsel claim fails. We further hold that the trial court did


not violate Humes' s public trial right. Accordingly, we affirm Humes' s conviction.

                                                    FACTS


       In March 2012, the State charged Humes with several crimes stemming from an alleged

altercation with   his former   girlfriend.   Before posting bail, Humes   signed a court order   establishing
No. 44366 -0 -II



his   release conditions.             The order warned Humes that a failure to appear for any type of court

appearance would constitute an independent crime for which a bench warrant would issue.


             On April 12, Humes signed an order acknowledging that his presence at a May 8, 8: 45 AM,

omnibus hearing was mandatory. On May 8, Humes failed to appear and a bench warrant issued.

Humes filed a motion to quash the warrant the following day and the court set a hearing date for
                 1
May        14.       Subsequently, the State filed an amended information that eliminated another charge

but added one count of bail jumping.

             On the first day of Humes' s trial, the trial court conducted voir dire of prospective jurors

in open court. After both parties questioned the venire, the trial court excused four jurors for cause.


The parties then exercised their peremptory strikes by passing a written form back and forth.

             During trial, Humes testified in support of his innocence. Regarding his failure to appear

at   the   May 8 hearing,           Humes   explained     that   because his first attorney had been " disqualified," he

was confused as             to   whether   he   would "   have    a   hearing   that   day   or   if --who   [ his] attorney was."

Report       of      Proceedings ( RP) (    Dec. 18, 2012) at 75. According to Humes, he attempted to contact

his attorney by text message at 9: 01 AM, but did not receive a response until his attorney reached

Humes        by      phone call     shortly thereafter.    Once he did speak to his attorney, Humes reported that

he    was en route         to the   court and could   be there        within " about    20   minutes."   RP ( Dec. 18, 2012) at


72. But Humes never arrived at the courthouse. Humes claimed that he failed to appear because


his attorney told him that it was too late and that a warrant had already issued.




1 Humes testified that the warrant was quashed, but the record does not definitively establish that
this was done on the original May 14 date.


                                                                       2
No. 44366 -041



          But a Pierce County Deputy Prosecutor testified that a bench warrant only issues after the

day' s docket is completed. Presumably, then, Humes could have appeared in the courtroom before

that   happened.   Humes testified that he would have come to court were it not for his attorney' s

advice.     The jury found Humes guilty of bail jumping, but not guilty of the remaining charges.

Humes appeals.


                                                 ANALYSIS


                                 I. INEFFECTIVE ASSISTANCE OF COUNSEL


          Humes contends that he was denied effective assistance of counsel when his trial attorney
                                                                                                                        2
failed to   request an " uncontrollable      circumstances"        instruction   as    a   defense to bail   jumping.

Humes asserts that he was entitled to such an instruction when he failed to appear because counsel

mistakenly     advised   him that   a warrant   had already issued.        We hold that Humes' s ineffective


assistance of counsel claim fails because he fails to establish that his counsel was deficient.

                                           A. STANDARD OF REVIEW


          An appellate court reviews an ineffective assistance claim de novo, beginning with a strong

presumption      that trial   counsel' s   performance       was   adequate      and   reasonable.     Strickland v.


Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171


Wn. 2d 17, 33, 246 P. 3d 1260 ( 2011).        To prevail on an ineffective assistance of counsel claim, a




2 Humes does not argue that counsel was ineffective simply for failing to provide accurate advice
regarding the procedure for the issuance of the bench warrant. Humes makes only the argument
set forth above.



                                                         3
No. 44366 -0 -II



defendant must show both deficient performance and resulting prejudice; failure to show either

prong defeats this    claim.   State   v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).   Thus, to


establish deficient performance, a defendant must show that counsel' s performance fell below an

objective standard of reasonableness. McNeal, 145 Wn.2d at 362.


        To prevail on an ineffective assistance of counsel claim based specifically on the trial

counsel' s failure to request a jury instruction, we must find that Humes was entitled to the

instruction, that counsel' s performance was deficient in failing to request the instruction, and that

failure to request the instruction prejudiced Humes. State v. Cienfuegos, 144 Wn.2d 222, 227, 25

P. 3d 1011 ( 2001).


                                       B. COUNSEL NOT INEFFECTIVE


        RCW 9A.76. 170 governs the crime of bail jumping and its affirmative defense. It provides

in pertinent part,


                   2) It is an affirmative defense to a prosecution under this section that
        uncontrollable circumstances prevented the person from appearing or surrendering,
        and that the person did not contribute to the creation of such circumstances in
        reckless disregard of the requirement to appear or surrender, and that the person
        appeared or surrendered as soon as such circumstances ceased to exist.


 Uncontrollable circumstances" means


        an act of nature such as a flood, earthquake, or fire, or a medical condition that
        requires immediate hospitalization or treatment, or an act of a human being such as
        an automobile accident or threats of death, forcible sexual attack, or substantial
        bodily injury in the immediate future for which there is no time for a complaint to
        the authorities and no time or opportunity to resort to the courts.




                                                        4
No. 44366- 0- II



RCW 9A.76. 010( 4). 3 A defendant must prove the defense by a preponderance of the evidence.

State    v.   White, 137 Wn.       App.   227, 231, 152 P. 3d 364 ( 2007) ( citing        State v. Jeffrey, 77 Wn. App.

222, 225, 889 P. 2d 956 ( 1995)).


              Here, Humes argues that he missed the hearing only because he relied on the erroneous

advice of       his attorney. Therefore, Humes contends that his failure to appear can be attributed to


an uncontrollable circumstance. In support of this proposition, Humes relies on Monjaraz -Munoz

v.   I.N.S., 327 F. 3d 892, 896 ( 9th Cir. 2003),           a   deportation      case   applying federal law.             There, a


judge ordered Monjaraz -Munoz to be deported in absentia when Monjaraz -Munoz failed to appear

at   a   hearing.       Monjaraz-Munoz, 327 F. 3d          at   893.    Before his hearing, there had been some

discrepancy        as   to the validity      of   Monjaraz -Munoz'     s visa.   Monjaraz-Munoz, 327 F. 3d at 894.


Apparently to resolve the dispute, Monjaraz-Munoz' s attorney suggested that he cross the border

into Mexico and return shortly thereafter. Monjaraz-Munoz, 327 F.3d at 895.

              Relying on his attorney' s advice, Monjaraz -Munoz did cross the border but was not

allowed        back into the United States, causing his             absence at   the    hearing.     Monjaraz-Munoz, 327


F. 3d at 894. The Court of Appeals for the Ninth Circuit ruled that Monjaraz- Munoz' s reliance on


his attorney' s advice constituted an " exceptional circumstance" beyond his control such that the




3 Humes briefly discusses the requirement " that [ he] appeared or surrendered as soon as such
circumstances ceased          to   exist."   RCW 9A.76. 170( 2). Humes appears to argue that he satisfied this
requirement         because the " warrant         was quashed within a week."           Br.   of   Appellant   at   11.   Because
the State does not challenge whether Humes has or has not satisfied it, we decline to address it.


                                                                5
No. 44366 -0 -II


                                              4
removal order could         be   rescinded.       Monjaraz- Munoz, 327 F. 3d    at   896.   In so holding, the court

said,




         The role of an attorney in the deportation process is especially important. For the
         alien unfamiliar with the laws of our country, an attorney serves a special role in
         helping the alien through a complex and completely foreign process. It is therefore
         reasonable for an alien to trust and rely upon an attorney' s advice to such an extent
         that if an alien fails to show up to a hearing because of an attorney, we can say that
         this is an exceptional circumstance " beyond the control of the alien."


Monjaraz -Munoz, 327 F. 3d          at   897 ( quoting 8 U.S. C. § 1229a( e)( 1)).


         But Monjaraz -Munoz is distinguishable and Humes' s argument is unpersuasive for two

reasons.     First, Humes is not an alien and was not forced to endure the type of complex and


completely foreign process that compelled the Monjaraz -Munoz court to find that exceptional

circumstances existed. Humes does not dispute that he signed orders notifying him that his failure

to appear at any hearing would constitute a new crime and that such a hearing was scheduled for

May 8 at 8: 45 AM. According to Humes, there was some confusion as to whether his hearing would

be held as scheduled because a different attorney had been assigned to his case.

         But the " uncontrollable circumstances" definition establishes that the legislature did not


intend to include circumstances, such as scheduling confusion, that are preventable and that fall

squarely within a defendant' s control. To the contrary, the definition contemplates those instances


4 A deportation order may only be rescinded
         upon a motion to reopen filed within 180 days after the date of the order of removal
           if the alien demonstrate that the failure to appear was because of exceptional
           circumstances.

8 U. S. C. §      1229a( b)( 5)( C)( i).   The term " exceptional circumstances" refers to the exceptional

circumstances ( such as battery or extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien,
but not included less compelling circumstances) beyond the control of the alien. 8 U. S. C. §
 1229a( e)( 1).



                                                             6
No. 44366 -0 -II



that   are sudden, unpreventable, and           incapacitating.    RCW 9A.76. 010( 4).        Consequently, Humes

has not presented sufficient evidence to demonstrate that his failure to appear was a result of

uncontrollable circumstances such that he was entitled to the affirmative defense instruction.


Humes would not have been entitled to the instruction had he made such a request. Accordingly,

his attorney was not deficient in failing to request this instruction.

          Second, even if we were to conclude that Humes' s reliance on his attorney' s advice

constituted    an    uncontrollable      circumstance        analogous    to    that    in Monjaraz-Munoz, Humes


nevertheless fails to show, as he must, that he did not contribute to the creation of such

circumstances       in   reckless   disregard   of   the   requirement   to   appear.    RCW 9A.76. 170( 2). Unlike


Monjaraz-Munoz, Humes' s failure to appear was not entirely a product of his attorney' s erroneous

advice.    Rather, on the morning of his May 8 hearing, Humes had already failed to appear at the

designated time before he ever established contact with his attorney.

          Humes argues further that he did not act in reckless disregard by failing to appear at 8: 45

AM on May 8 because his confusion constitutes negligence at most. Humes alleges that he failed

to appear in part because he was uncertain as .to who his attorney was and whether his May 8

hearing would be held as planned. But Humes signed orders stating that he was required to appear

on May 8 and that failure to do so would constitute another crime and would result in the issuance

of a warrant for his arrest. Humes never contacted the court and only spoke with his attorney after

his initial failure to appear despite knowledge of this risk.




                                                               7
No. 44366 -0 -II



         By his own admission, Humes could have reached the courthouse within 20 minutes.

Humes failed to present evidence that he did not contribute to the circumstances he now alleges


were beyond his control. Accordingly, Humes fails to establish by a preponderance ofthe evidence

that he would have been entitled to an uncontrollable circumstances instruction and, therefore,

counsel' s performance was not deficient for failing to request the same. Because he must establish

both deficient performance and prejudice, the failure to establish deficient performance means that


we need not consider         the   prejudice   prong.    For the foregoing reasons, we hold that Humes' s

ineffective assistance of counsel claim fails.


                                               II. PUBLIC TRIAL RIGHT


             Humes next argues that the trial court violated his Sixth Amendment right to a public trial


when the parties exercised peremptory challenges outside the jury' s hearing and off the record
                                           Clubs
without       first considering the Bone -          factors.   Consistent with several recent cases, we hold


that no violation of the public trial right occurred.


             We held in State   v.   Dunn, 180 Wn.      App.   570, 575, 321 P. 3d 1283 ( 2014), and again in


State   v.    Marks, No. 44919 -6 -II, 2014 WL 6778304,           at *   3 ( Wash. Ct.   App.   Dec. 2, 2014), that


exercising preemptory challenges does not implicate the public trial right. Accordingly, we hold

that the trial court did not violate Humes' s public trial right by allowing counsel to make

peremptory challenges at a sidebar conference.




5 State v. Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995).

                                                           8
No. 44366 -0 -II



        Affirmed.


        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.




 We concur:




 MAXA,




SUTTON




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