                                                                        FILED
                                                                     AUGUST 13, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 36853-0-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
ELIZABETH LYNN PARTRIDGE,                     )        UNPUBLISHED OPINION
aka ELIZABETH LYNN DARNOLD,                   )
                                              )
                     Appellant.               )

       KORSMO, A.C.J. — Elizabeth Partridge appeals from two convictions for third

degree assault and one count of second degree criminal trespass. Her appeal issues are

moot and the issues raised in her statement of additional grounds (SAG) are without

merit. Accordingly, the judgment is affirmed.

                                          FACTS

       Ms. Partridge was convicted on the three noted counts at a jury trial in the Chelan

County Superior Court. The court imposed a drug offender sentencing alternative

(DOSA) sentence. One of the conditions of the sentence was that Ms. Partridge “not

associate with persons known to have a felony criminal background.” The judgment also

indicated that interest would be imposed on all financial obligations.
No. 36853-0-III
State v. Partridge


       Ms. Partridge timely appealed to this court. After the brief of appellant was filed,

the parties entered an agreed order removing the noted community custody condition and

the interest provision. The State therefore did not file a brief of respondent. Ms.

Partridge did file a SAG. RAP 10.10(a).

       This court then considered the appeal without hearing argument.

                                       ANALYSIS

       The brief of appellant presented two issues that both became moot with the entry

of the agreed order. The SAG presents two issues which we briefly address.

       An appeal is moot when an appellate court cannot provide effective relief. In re

Det. of LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986). In some instances, the public

interest will justify consideration of an otherwise moot appeal. Id. This is not one of

those instances. The brief of appellant sought removal of the “known to have a felony

criminal background” condition and the interest provision. Both were subsequently

eliminated by agreed order. There is nothing more for this court to do. Those issues are

now moot.

       The SAG argues that the court erred in not giving her a deferred prosecution and

that her trial counsel performed ineffectively. The problem for Ms. Partridge on the latter

issue is that she has no evidence in the record suggesting that counsel erred in any of the

respects she now claims. Accordingly, we decline to consider this argument due to lack

of an evidentiary basis. RAP 10.10(c). Her remedy, if she believes she has a factual

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No. 36853-0-III
State v. Partridge


basis for this argument, is to file a personal restraint petition with which she could file an

affidavit describing the evidence she has available to prove her claim. E.g., State v.

McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995); State v. Norman, 61 Wn.

App. 16, 27-28, 808 P.2d 1159 (1991).

       The deferred prosecution argument fails on legal grounds. A deferred prosecution

is available in the limited jurisdiction courts in accordance with CrRLJ 4.2(i) and ch.

10.05 RCW. The criminal rules for courts of limited jurisdiction govern criminal

proceedings in courts of limited jurisdiction. CrRLJ 1.1. The superior court is not a

court of limited jurisdiction. Compare RCW 2.08.010 with ch. 3.02 RCW. The superior

court follows the criminal rules in criminal proceedings. CrR 1.1. Chapter 9.94A RCW

is the sole basis for felony sentencing in Washington. RCW 9.94A.905.

       Neither the criminal rules nor RCW 9.94A contain any provision authorizing

deferred prosecutions. RCW 10.05.010(1) explicitly limits eligibility for deferred

prosecutions to persons charged with a misdemeanor or gross misdemeanor in courts of

limited jurisdiction, such as district or municipal court, but does not provide for deferred

prosecution in superior court. Further, the defendant must petition the court for deferred

prosecution prior to trial and prior to being convicted. That did not happen here.

       A deferred prosecution is not available to felony offenses. The SAG issues are

without merit.



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No. 36853-0-III
State v. Partridge


       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                             _________________________________
                                                     Korsmo, A.C.J.

WE CONCUR:



_________________________________
      Lawrence-Berrey, J.



_________________________________
      Siddoway, J.




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