                                                                                                          FILED
                                                                                                COURT OF APPEALS
                                                                                                        DIVISION II

                                                                                               2015 JAN 27       AM 8: 50




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

 STATE OF WASHINGTON,                                                               No. 45265 -1 - 1I


                                         Respondent,


             v.



 ROBERT DOUG PIERCE,                                                         UNPUBLISHED OPINION


                                         Appellant.




            LEE, J. — Robert    Doug Pierce appeals his convictions and sentences for two counts of bail

jumping      and one count of        third degree theft.       Pierce contends that his charging document was

constitutionally deficient because the bail jumping counts did not identify the underlying charge.

He also argues that the trial court abused its discretion by refusing to consider his request for an .

exceptional sentence          downward.      In   a statement of additional grounds (       SAG), Pierce maintains


that ( 1)   he    received   ineffective   assistance of counsel, (    2) the trial court erred by ( a) denying his

requests     for   new counsel, (    b) granting Pierce' s request to represent himself only if he did not seek

any   continuances,       and ( c)   denying   his   request   for standby   counsel; (   3) the trial court erred by

admitting      a court   transcript pertaining to " David       Doug   Pierce" to   support one of   his bail   jumping
No. 45265 -1 - II



convictions; and (4) the prosecutor committed misconduct. We reject Pierce' s claims of error and

affirm his convictions and sentences.


                                               FACTS


        On October 17, 2011, Pierce shoplifted a cell phone from the Port Orchard Walmart.

Deputy Sheriff Stephen Argyle arrested Pierce and took him to the Kitsap County Jail. After the

two men entered a jail elevator, Argyle noticed a small baggie of methamphetamine between

Pierce' s feet.


        The State charged Pierce on March 30, 2012, with one count of unlawful possession of a


controlled   substance   under   cause   number   12 - 1- 00347 -3.    After Pierce missed two court


appearances, the State filed an amended information adding two counts of bail jumping and a count

of third degree theft. A second amended information filed on March 4, 2013, added a third count


of bail jumping that was later dismissed.
        The trial   court appointed   attorney Paul Thimons to        represent   Pierce.   At a hearing on

February 7, 2013, Pierce asked for a new attorney after complaining that Thimons had waited too

long to interview witnesses and did not believe Pierce' s version of the events. The trial court

concluded that new representation was unwarranted. At the next hearing on March 4, Pierce asked

to represent himself. Before granting his request, the trial court conducted an extensive colloquy

in which it explained that the court would not be required to delay the trial or to appoint standby

counsel if Pierce waived his right to counsel. Pierce stated that he understood both conditions and


that he was not requesting assistance. At the end ofthe hearing, however, Pierce requested standby

counsel. None was appointed, and Pierce represented himself at trial.




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         The jury found Pierce guilty of the two bail jumping charges and the theft charge, but it

could not reach a verdict on the drug charge. Before sentencing, Pierce asked for an attorney, and

the court reappointed Thimons. When Pierce objected, the court substituted attorney Craig Kibbe.

         At the beginning of the sentencing hearing, Kibbe explained to the court that there was no

good faith basis to move for a new trial. The State then noted that although consecutive sentencing

was possible because of Pierce' s high offender score, it was recommending concurrent high -end

sentences on the bail jumping counts. During his allocution, Pierce informed the court that he had

just obtained documents supporting his claim that his initial failure to appear was due to external

circumstances;      i.e., the theft   of   his   car, which    had   contained   the   pertinent court papers.   Without


those papers, Pierce explained that he checked a state court website that gave him incorrect

information about the hearing date. He contended that the second failure to appear was due to his

having   written    the wrong    court      date   on   his   calendar.   Pierce requested an exceptional sentence


downward, but the trial court rejected his request. The trial court imposed concurrent 56 -month


sentences on the bail jumping convictions and suspended the 364 -day sentence on the theft

conviction.



         Pierce now appeals his convictions and the trial court' s rejection of his request for an


exceptional sentence downward.




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                                                   ANALYSIS


A.      CHARGING DOCUMENT


        Pierce contends that the charging document was constitutionally deficient for failing to

identify the underlying charge in the bail jumping counts. We review this challenge de novo. State

v. Williams, 162 Wn.2d 177, 182, 170 P. 3d 30 ( 2007).

        An information must contain all essential elements of a crime to give the accused proper


notice of   the    crime charged so   that he   can prepare an adequate   defense. Williams, 162 Wn.2d at


183; State    v.   Kjorsvik, 117 Wn.2d 93, 101, 812 P. 2d 86 ( 1991).       When a charging document is

challenged for the first time on appeal, as it is here, we must construe it liberally in favor of its

validity. Kjorsvik, 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.   Williams, 162 Wn.2d at 185; Kjorsvik, 117 Wn.2d at 109. If they do, we consider whether

the defendant       was "   nonetheless prejudiced by the inartful language which caused the lack of

notice."    Williams, 162 Wn.2d at 185 ( quoting Kjorsvik, 117 Wn.2d at 105 -06).

           The elements of bail jumping are met if the defendant ( 1) was held for, charged with, or

convicted     of a particular    crime, (   2) was released by court order or admitted to bail with the .

requirement of a subsequent personal appearance, and ( 3) knowingly failed to appear as required.

RCW 9A.76. 170( 1);         Williams, 162 Wn.2d at 183 -84.


           The second amended information set forth Pierce' s initial bail jumping charge as follows:




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No. 45265 -1 - II



                                                              Count II
                                                            Bail Jumping

                   On or about April 9, 2012, in the County of Kitsap, State of Washington,
            the above -named Defendant, having been released by court order or admitted to
            bail with knowledge of the requirement of a subsequent personal appearance before
            a court of this state or of the requirement of a subsequent personal appearance
            before a court of this state or of the requirement to report to a correctional facility
            for service of sentence, did fail to appear or did fail to surrender for service of
            sentence in which a Class B or Class C felony has been filed, to wit: Kitsap County
            Superior Court Cause No. 12 -1- 00347 -3; contrary to Revised Code of Washington
            9A.76. 170.
            MAXIMUM PENALTY (Failure to appear in Class B or Class C felony case) —
            Five ( 5) years imprisonment and /or a $ 10, 000 fine pursuant to RCW 9A.76. 170 and
            RCW 9A.20. 021( 1)(        c), plus restitution and assessments.)



Clerk' s Papers ( CP)       at   16.   Count III, the second bail jumping charge, was worded identically

except for the date of the alleged offense: August 7, 2012.


            Count I charged Pierce with possession of a controlled substance ( methamphetamine) and


listed the    maximum      penalty     of   five   years'    imprisonment   as well as   the   possible   fines. Count IV


charged Pierce with third degree theft, punishable by up to 364 days in jail. The cause number of

12 -1- 00347 -3 was included in the information' s caption.


            Pierce contends that this charging document was deficient because the bail jumping counts

did   not    identify   the underlying      crime, "   but rather made inadequate reference to the underlying

cause number."          Br. of Appellant at 9. The above -cited language shows, however, that the counts


referred to both the cause number and class of the underlying felony. This court upheld a charging

document under the liberal construction standard where it stated that the defendant failed to appear


after being charged with a class B or C felony. State v. Spiers, 119 Wn. App. 85, 91, 79 P. 3d 30

 2003).




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         Pierce adds that the Washington Supreme Court held that charging language must identify

the   particular offense        underlying   a   bail   jumping    charge.     Williams, 162 Wn.2d     at   185.   In doing

so, however, the court cited with apparent approval the holding in Spiers. Williams, 162 Wn.2d at

185;   see also   State    v.   Gonzalez-Lopez, 132 Wn.            App.    622, 633, 132 P. 3d 1128 ( 2006) ( pleading


either the underlying offense or the class of the underlying offense would be sufficient to apprise

defendant of essential elements of bail jumping).

          Count I of the second amended information charged Pierce with possession of a controlled


substance ( methamphetamine) under cause number                          12 -1- 00347 -3.   The subsequent bail jumping

counts referred      to this     felony by   cause number and class.                When read as a whole, the second


amended information clearly identified the felony that supported the bail jumping charges and

provided    Pierce   with sufficient notice             to   prepare a   defense.   Also, Pierce makes no showing of

prejudice. We reject his challenge to this charging document.

B.        SENTENCING


          Pierce next argues that the trial court abused its discretion by refusing to consider

nonstatutory factors in support of an exceptional sentence downward.

          Generally, a trial court must impose a sentence within the standard range, and a defendant

may    not appeal   that   sentence.    State    v.   Law, 154 Wn.2d 85, 94, 110 P. 3d 717 ( 2005); State v. Cole,


117 Wn.     App. 870, 881, 73         P. 3d 411 ( 2003),         review    denied, 151 Wn.2d 1005 ( 2004).         Where a


defendant has requested an exceptional sentence below the standard range, review is limited to


circumstances where the court has refused to exercise discretion at all or has relied on an


impermissible basis for refusing to impose the exceptional sentence requested. State v. Garcia -

Martinez, 88 Wn.       App.       322, 330, 944 P. 2d 1104 ( 1997), review denied, 136 Wn.2d 1002 ( 1998).
No. 45265 -1 - II



Pierce contends that the trial court relied on an impermissible basis in refusing to impose a

mitigated sentence because the court would not consider nonstatutory factors supporting such a

sentence. See Law, 154 Wn.2d at 94 ( Sentencing Reform Act sets forth nonexclusive " illustrative"

factors that court may consider in exercising its discretion to impose an exceptional sentence).

          Pierce argued during sentencing that he was entitled to an exceptional sentence downward

because, after the car containing his court paperwork was stolen, he checked a court website that

did not contain the April 9 hearing date that he missed. He also explained that he missed an August

7    hearing   because he    wrote    the wrong date in his                calendar.    The trial court responded to his


argument as     follows: "   The information you have given me, none of them are statutorily mitigating

factors. There'    s not enough evidence           for   me   to    give you an exceptional sentence      downward. So


I' m   denying that request."       Report   of Proceedings             ( RP) ( Aug.   16, 2013) at 27.

          We do not view this conclusion as a refusal to consider the nonstatutory mitigating factors

that Pierce     presented    to   support   his   request     for   an exceptional sentence        downward.   The court


considered Pierce' s explanation for missing two court dates and then exercised its discretion by

denying his request for an exceptional sentence based on the evidence presented. We see no abuse

of discretion on this record.


C.        SAG


          1.       Ineffective Assistance of Counsel


          Pierce argues in his SAG that he received ineffective assistance of counsel from the


attorneys who represented him before trial and during sentencing. Whether a defendant received

ineffective assistance of counsel is a mixed question of fact and law that we review de novo. State

v.   McLean, 178 Wn. App, 236, 246, 313 P. 3d 1181 ( 2013), review denied; 179 Wn.2d 1026 ( 2014).




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No. 45265 -1 - II




To prove ineffective assistance, a defendant must show that his attorney' s performance was

deficient and that the deficiency was prejudicial. State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917

P. 2d 563 ( 1996).


           Counsel' s performance is deficient if it falls below an objective standard of reasonableness


and cannot be characterized as legitimate trial strategy or tactics. State v. Kyllo, 166 Wn.2d 856,

863, 215 P. 3d 177 ( 2009).        Prejudice occurs when there is a reasonable probability that the trial' s

result would have differed had the deficient performance not occurred. Hendrickson, 129 Wn.2d


at   78.   A failure to satisfy either prong is fatal to a claim of ineffective assistance of counsel.

McLean, 178 Wn. App. at 246.

           Pierce contends that his initial attorney, Paul Thimons, was ineffective because he did not

conduct an adequate investigation and failed to obtain evidence regarding Pierce' s stolen car that

would have supported an " uncontrollable circumstances" defense. Uncontrollable circumstances


that prevented a defendant from appearing in court may constitute an affirmative defense to the

crime of    bail jumping. RCW 9A.76. 170( 2).        The scope of this defense is defined by statute:

            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.


RCW 9A.76. 010( 4).


           The State argued before trial that Pierce should not be able to offer testimony supporting

an uncontrollable circumstances          defense.   The State noted that the superior court did not post


hearing dates on the state court website that Pierce allegedly checked about the April hearing date,




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No. 45265 -1 - II



and   that the   website contained several   disclaimers   about   the reliability   of   its information.   The


State added that there was no evidence that Pierce had contacted the court directly about the April

hearing date. Pierce responded that his inability to find the correct date on the website constituted

a defense to his failure to appear at the April 9 hearing, and that his mistake in recording the date

constituted a defense to his failure to appear at the August 7 hearing. The court ruled that testimony

that Pierce was forgetful, confused, or misled by non -reliable sources concerning his hearing dates

did not establish an uncontrollable circumstances defense and would be excluded.


         Pierce represented himself during this hearing and did not refer to his car being stolen.

Even if he had, Pierce' s reasons for not having his paperwork were largely immaterial to his

proposed   defense    of uncontrollable circumstances.     Because any evidence about Pierce' s stolen

car was irrelevant to any proposed uncontrollable circumstances defense, Pierce is unable to show

that counsel' s performance was deficient. The claim of ineffective assistance of counsel based on


his attorney' s failure to investigate this defense, therefore, fails.

         Pierce makes the related argument that his attorney at sentencing, Craig Kibbe, was

ineffective because he failed to move for a new trial based on newly discovered evidence

consisting of documentation about Pierce' s stolen car and did not present this evidence to the trial

court. Pierce' s earlier assertion that Thimons could have obtained this evidence before trial shows


that it did not constitute newly discovered evidence. See State v. Moran, 181 Wn. App. 316, 324,

324 P. 3d 808 ( evidence is not newly discovered, for purpose of granting new trial, if it could have

been discovered before trial   by due   diligence),   review   denied, 337 P. 3d 327 ( 2014). Furthermore,


as explained above, the fact that Pierce' s car was stolen was irrelevant to the subsequent bail


jumping charge. We see no deficient performance by defense counsel during sentencing.



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No. 45265 -1 - II



         2,         Denying requests for new counsel, continuance, and standby counsel

         Pierce argues that the trial court erred in denying his requests for new counsel on February

7 and March 4, 2013. We review this decision for abuse of discretion. State v. Varga, 151 Wn.2d

179, 200, 86 P. 3d 139 ( 2004). As support for this claim, Pierce cites potential conflicts of interest


with Thimons that he did not mention to the trial court when requesting a new attorney on February

7.   Rather, Pierce argued that Thimons had delayed interviewing witnesses and did not believe

what    Pierce    was   telling him. The court found that Thimons had interviewed Pierce' s witnesses

and prepared for trial, and was a qualified attorney. We see no abuse of discretion in the court' s

denial of Pierce' s request for new counsel. On March 4, Pierce asked to represent himself and did


not request a new attorney. We need not address this claim of error further.

         Pierce also argues that the trial court erred by warning him that it would grant his request

to   represent    himself only if Pierce did   not request   any further   continuances.   Pierce was charged


with possession of methamphetamine on March 30, 2012, and did not go to trial until March 4,


2013.    After Pierce asked to represent himself, the trial court informed him that if it granted his


request, it would not give him a continuance. The following exchange occurred:

         MR. PIERCE: That' s fine.
         THE COURT: You are ready to go tomorrow?
         MR. PIERCE: I will be.
         THE COURT: We are picking a jury starting tomorrow.
         MR. PIERCE: I will have to be.


1 RP    at   5.   Pierce then explained that he wanted several witnesses to be called, and that if they

could be in court the next day, he would be ready.




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No. 45265 -1 - II



        Pierce now contends that he did not have adequate time to review the trial binder that

Thimons left him, but he expressed no such difficulty during trial. We see no abuse of discretion

in the trial court' s warning that it would not grant additional continuances if Pierce represented

himself.


        Pierce further argues that the trial court erred in denying his request for standby counsel

because he needed counsel to help him obtain evidence pertinent to his uncontrollable

circumstances   defense.    This evidence appears to be documentation regarding his stolen car.'

        After the trial court granted his request to represent himself, Pierce stated that he was not


asking for standby counsel. At the close of that hearing, Pierce explained that he did want standby

counsel, but not Thimons. The trial court asked the prosecuting attorney to determine whether an

attorney   was available   to   assist   Pierce,   and   the   hearing     ended.   The record contains no further


discussion of standby counsel, and Pierce represented himself during trial without any additional

request for assistance.


        There is no absolute right for a self represented
                                              -           defendant to have standby counsel, and we

review a trial court' s refusal to appoint standby counsel for abuse of discretion. State v. DeWeese,

117 Wn.2d 369, 379, 816 P. 2d 1 ( 1991); Locks                 v.   Sumner, 703 F. 2d 403, 407 -08 ( 9th Cir.),   cert.




denied, 464 U. S. 933 ( 1983).           Pierce did not state on the record that he needed assistance in


obtaining evidence, and the evidence he now describes would not have furthered his defense. The

record does not show that the trial court refused to appoint standby counsel or abused its discretion

by not appointing standby counsel. If Pierce has evidence outside the record to support this claim



1 Pierce attempted to attach these documents to his SAG, but we rejected them as evidence outside
the record on review. RAP 10. 3( a)( 8).



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No. 45265 -1 - II



of error,    he may    submit      it in   a personal restraint petition.           State v. McFarland, 127 Wn.2d 322,


335, 899 P. 2d 1251 ( 1995).


        3.          Admission of court transcript


        Pierce contends that the trial court erred in admitting a transcript pertaining to " David Doug

Pierce" to    support one of        his bail jumping        convictions.       SAG at 14 ( some capitalization omitted).


The transcript at issue was from the August 7 court hearing that Pierce missed and was admitted

as exhibit    32.   During     deliberations, the        jury   sent   the trial   court   this   statement: "   Exhibit 32 has a


name other     than that      of   the defendant."        CP    at   65.   The trial court instructed the jury to consider

the exhibit in its entirety and in conjunction with all of the other evidence. This exhibit is not part

of the appellate record, but even if it did contain an incorrect name, Pierce admitted that he missed

the August 7        court   hearing. We see no error in the trial court' s instructions to the jury and no

prejudice from any error in the exhibit.

        4.          Prosecutorial Misconduct


        Finally, Pierce alleges that the prosecuting attorney committed misconduct by withholding

evidence about       his    stolen car      from the     court     during   sentencing.      The prosecutor had no duty to

assist Pierce in seeking an exceptional sentence downward, and the documents at issue were

extraneous     to that      request.       We   reject   Pierce'     s claim of prosecutorial misconduct.            See State v.


Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009) ( misconduct occurs when State' s action is both


improper and prejudicial).




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No. 45265 -1 - 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.




 We concur:



                          e
                    Johanson, ;. J.




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