1



l
!
                                                                      FILED
                                                                   JUNE 27, 2017
i                                                           In the Office of the Clerk of Court
 l                                                        WA State Court of Appeals, Division Ill
II
f
I
li
                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION THREE

     STATE OF WASHINGTON,                          )         No. 33964-5-111
                                                   )         (consolidated with
                          Respondent,              )         No. 34338-3-111)
                                                   )
            V.                                     )
                                                   )
     JEFFREY HOWARD KELLER,                        )
                                                   )
                          Appellant.               )          UNPUBLISHED OPINION
                                                   )
                                                   )
     In the Matter of the Personal Restraint of    )
                                                   )
     JEFFREY HOWARD KELLER,                        )
                                                   )
                          Petitioner.              )

            PENNELL, J. -Jeffrey Keller has filed an appeal of his criminal resentencing

     hearing and a personal restraint petition (PRP) challenging his conviction and sentence

     for attempted third degree theft, second degree theft, and trafficking in stolen property.

     We affirm Mr. Keller's conviction and sentence, and dismiss his PRP.
No. 33964-5-III; 34338-3-III
State v. Keller


                                         FACTS 1

       On July 9, 2011, the loss prevention officer at Wholesale Sports observed Mr.

Keller attempt to peel the tags off less expensive fishing rods and place them on more

expensive fishing rods. A police officer contacted Mr. Keller in the store but did not

arrest him.

       On August 2, 2011, Mr. Keller purchased, several hours apart, two vacuum

cleaners from a Home Depot store. Each vacuum rang up for $79.96, the price for a

Hoover vacuum. However, the two vacuums Mr. Keller left the store with were Dysons,

one valued at $549.00 and the other valued at $449.00.

       On August 3, 2011, Mr. Keller purchased, also from Home Depot, a third vacuum

that also rang up at the price for a Hoover. It too was a Dyson, valued at $549.00. The

Home Depot loss prevention manager noticed Mr. Keller take a UPC 2 sticker from his

pocket and place it on the Dyson box. He detained Mr. Keller, who admitted to the two

vacuum thefts from the day before. Mr. Keller stated he had given the vacuums to a

friend, who sold them.



       1
         Unless otherwise noted, the following facts are taken from the commissioner's
ruling in Mr. Keller's previous appeal. The ruling is attached as appendix C to Mr.
Keller's PRP. See Commissioner's Ruling, State v. Keller, No. 31317-4-III (Wash. Ct.
App. Mar. 20, 2014).
       2
         Universal Product Code.

                                            2
     No. 33964-5-111; 34338-3-111
     State v. Keller


            Following a bench trial, Mr. Keller was convicted of attempted third degree theft,

     second degree theft, and trafficking in stolen property. The court sentenced Mr. Keller to

     364 days for attempted third degree theft, 28 months for second degree theft, and

     84 months for trafficking in stolen property, all to run concurrently. Mr. Keller appealed,

     contending in relevant part that the evidence was insufficient, independent of his own

     statements to the police, to establish the corpus delicti of the offense of trafficking in

     stolen property. Mr. Keller also contended that the court erred when it sentenced him to

     364 days for attempted third degree theft. This court placed the appeal on its motion
f
l    docket for disposition on the merits and affirmed Mr. Keller's convictions but remanded
t
l    for resentencing on the attempted third degree theft conviction congruent with the

l    statutory maximum of 90 days.
lI
l           At resentencing, the superior court and the State noted the only thing to do was
I    change the standard range on the attempted third degree theft to reflect O to 90 days as
I
I    opposed to Oto 364 days. However, for the first time, Mr. Keller questioned his criminal
l    history, arguing some of his prior convictions were the same criminal conduct:

                    [Defense counsel]: [Mr. Keller] is disputing his criminal history.
            This is the first I've heard of that. ... So he is disputing the ten points that
            he has. One of the-just so Your Honor knows, as to no number 10 shows
            the date of sentence the year 2000, but the date of the crime is 2006. There
            are errors there. There is also his [belief] that some of these were the same
            criminal conduct and were indicated on the Judgment and Sentence and

                                                   3
No. 33964-5-III; 34338-3-III
State v. Keller


       shouldn't count for a separate point each. Now I haven't seen any of these.
       I don't know. This is what I've been told this morning .... He is asking for
       counsel. Your Honor knows I have been appointed for sentencing. He
       wants to file a motion to modify his Judgment and Sentence based on the
       offender score issue.

Verbatim Report of Proceedings (Dec. 17, 2015) at 3-4. The court did not address Mr.

Keller's arguments and instead suggested Mr. Keller might try filing a PRP or CrR 7.8

motion. The court then resentenced Mr. Keller to 90 days for attempted third degree

theft. The sentence for the two felony convictions remained the same.

       No further action was taken on Mr. Keller's criminal history objections in superior

court. On December 18, 2015, Mr. Keller filed a direct appeal of the resentencing

decision. On April 13, 2016, Mr. Keller filed a PRP challenging his conviction. The two

matters have been consolidated for consideration by this court.

                                       ANALYSIS

Direct appeal

      Mr. Keller contends the resentencing court erred by declining to address whether

his offender score had been miscalculated .because certain convictions constituted the

same criminal conduct. The issue raised by Mr. Keller was outside the scope of our




                                            4                                                J
                                                                                             I
                                                                                             r
                                                                                             l
    No. 33964-5-III; 34338-3-III
    State v. Keller


    remand order, and it had no bearing on the resentencing decision before the court. 3 While

    the resentencing court may have had discretion to expand the scope of the issues before it,

    State v. Kilgore, 167 Wn.2d 28, 38,216 P.3d 393 (2009), Mr. Keller never met his burden

    of establishing that his prior convictions involved the same criminal conduct. State v.

    Aldana Graciano, 176 Wn.2d 531,539,295 P.3d 219 (2013). There was no error in the

    superior court's refusal to consider Mr. Keller's challenge.

    PRP

           The parties dispute whether Mr. Keller's PRP was timely filed. Although Mr.

    Keller filed his PRP within one year4 of his resentencing, he did not file within one year

    of the mandate that was issued after his first appeal. In some circumstances, resentencing

    extends the PRP deadline, In re Personal Restraint ofSkylstad, 160 Wn.2d 944, 948-52,



I
    162 P.3d 413 (2007), but in other circumstances it does not. Kilgore, 167 Wn.2d at 39-

    41. We need not resolve whether Mr. Keller's resentencing extended the PRP deadline in

I
I   his case. The one-year deadline is not jurisdictional, In re Personal Restraint of

    Haghighi, 178 Wn.2d 435,447,309 P.3d 459 (2013), and Mr. Keller's arguments fail on




           3 Mr. Keller's offender score was not relevant to calculating his sentencing range
    for misdemeanor theft.
           4
             Under RCW 10.73.090, a PRP must be filed within one year of finality of the
    judgment.

                                                 5




                                                                                                  l
l
 I   No. 33964-5-111; 34338-3-111



I
     State v. Keller


     their merits.

II          Mr. Keller raises two main claims in his PRP: (1) ineffective assistance of counsel

I    and (2) newly discovered evidence. Each is addressed in tum.
i
            Ineffective assistance of counsel

I
l
,1
            To prevail on a collateral attack on a judgment and sentence by way of PRP, a

l    petitioner must establish a constitutional error has occurred that has resulted in actual and


I    substantial prejudice. In re Pers. Restraint of Gomez, 180 Wn.2d 337,347, 325 P.3d 142


I    (2014 ). If a petitioner makes a successful ineffective assistance of counsel claim, "he has


I    necessarily met his burden to show actual and substantial prejudice." In re Pers.

     Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

            To establish ineffective assistance of counsel, a petitioner must overcome the

     presumption that counsel was effective. Gomez, 180 Wn.2d at 34 7. To do this, the

     petitioner must demonstrate (1) defense counsel's conduct was deficient, i.e., counsel's

     performance fell below an objective standard of reasonableness, and (2) there is a

     reasonable probability that but for the deficient conduct, the outcome of the proceeding

     would have been different. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251-52,

     172 P.3d 335 (2007).




                                                   6
1
I
l
l
!
I   No. 33964-5-111; 34338-3-111
I   State v. Keller
1
           Mr. Keller first argues counsel's performance was deficient because he failed to
1
l   raise the issue of corpus delicti5 until closing argument. Mr. Keller asserts that based on

I   the timing of counsel's argument, the State was allowed to make a "Logical and


I
J
I
    reasonable inference" argument rather than provide independent corroborating evidence.

    Appellant's PRP Reply Br. at 10-11.

l          Mr. Keller's complaint is unfounded. The State's burden to establish corpus


I
i
    delicti does not change depending on how the defense presents its case. Regardless of

    defense tactics, the corpus delicti burden requires that the State produce independent

    evidence leading to a reasonable and logical inference that the defendant committed the

    crime charged. State v. Brockob, 159 Wn.2d 311, 327-29, 150 PJd 59 (2006). Although

    the defense can sometimes relieve the State of this burden altogether by failing to raise

    corpus delicti in a timely manner, that is not what happened here. Mr. Keller's corpus

    delicti arguments were addressed on the merits in his initial appeal. Nothing about

    defense counsel's handling of Mr. Keller's case impacted our court's prior ruling. Mr.

    Keller's corpus delicti arguments failed for lack of factual support, not because of trial

    counsel's strategy.



           5 Under the corpus delicti rule, a defendant may not be convicted on the basis of a
    confession that is unsupported by independent proof. State v. Ray, 130 Wn.2d 673, 679,
    926 P .2d 904 (1996).

                                                  7
                                                                                                  II
                                                                                                  t
                                                                                                  !'



                                                                                                  I
                                                                                                  l
No. 33964-5-III; 34338-3-III
State v. Keller


        Mr. Keller next argues that defense counsel put his own interests before the best

interests of his client by failing to move for dismissal of the charges following an initial

mistrial. Mr. Keller's arguments mischaracterize the facts. Defense counsel did move for

dismissal. However, in apparent recognition that this remedy was unlikely, see Oregon v.       f
Kennedy, 456 U.S. 667, 672-73, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982) (explaining that

the remedy is the exception, not the rule), defense counsel alternatively asked that the

State cover Mr. Keller's attorney fees should he be burdened with retrial. Defense

counsel's efforts reflect unfettered zealous advocacy on behalf of his client. There was

no conflict. 6

       Apart from his complaints regarding corpus delicti and the motion for mistrial, Mr.

Keller also claims defense counsel withheld information, did not help him file anything

because of his inability to pay, and failed to present alibi witnesses at trial. Mr. Keller

only makes bald assertions and conclusory allegations; these are insufficient to support

his claim. In re Pers. Restraint ofRice, 118 Wn.2d 876,886,828 P.2d 1086 (1992)



       6
         Mr. Keller complains that defense counsel should have used the term
"misconduct" to describe the prosecutor's conduct instead of "mismanagement." PRP at
4. We disagree. Prosecutorial misconduct is a term of art that carries the unfortunate
connotation of intentional misconduct. Mere use of the term can create confusion and
unnecessary hostility. Terms such as "mismanagement" better describe most defense
criticisms of prosecutorial mistakes and serve to focus the court's attention on the
controlling law as opposed to personal or professional attacks.

                                              8
    No. 33964-5-111; 34338-3-111
    State v. Keller



I
I
    (affidavits or other corroborative evidence required when petitioner relies on information

    within knowledge of others).

I   Newly discovered evidence

           Lastly, Mr. Keller claims newly discovered evidence shows his actual and factual
                                                                                                 I
    innocence. Contrary to the statements attributed to him at trial, Mr. Keller now claims he

    purchased one vacuum for his home and two for his tattoo business. He claims he
                                                                                                 II
    maintained possession of the vacuums and immediately returned them to the court as

    evidence upon police request. Mr. Keller states defense counsel told him the vacuums

    would be used as evidence and the court would be made aware that he gave the vacuums

    to the police. However, after reading the trial transcripts, Mr. Keller learned no mention

    of this was made.
                                                                                                 I
          Mr. Keller has failed to establish the existence of newly discovered evidence. He

    was aware of the proffered evidence before trial and was present at trial when evidence
                                                                                                 ,I
                                                                                                 f
    was admitted. Given these circumstances, the evidence identified by Mr. Keller was not
                                                                                                 I

    new. In re Pers. Restraint ofFaircloth, 177 Wn. App. 161, 165-66, 311 P .3d 4 7 (2013).

    In addition, Mr. Keller has failed to show how admission of the physical vacuums into

    evidence at trial would have changed the nature of his case. There was testimony
                                                                                                 I
                                                                                                 t
                                                                                                 f
                                                                                                 i
    confirming that law enforcement had custody of the two Dysons identified in Mr. Keller's


                                                 9
                                                                                                 I
                                                                                                 I



                                                                                                 I
     No. 33964-5-111; 34338-3-111
     State v. Keller


     petition. The third Dyson vacuum never left the store. Introduction of the vacuums into

     evidence would not have added anything to Mr. Keller's defense.
j                                        CONCLUSION

II          We affirm the amended felony judgment and sentence of the superior court and
i
r,
l    dismiss Mr. Keller's PRP. Any request for costs and response thereto may be taken up

     under RAP 14.2.

           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.


                                              Pennell, J.

     WE CONCUR:




                                                                                               I
                                                 10
                                                                                               !
