                                                                                                            iJUIPT Off.. APPEALS
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      IN THE COURT OF APPEALS OF THE STATE OF W
                                                                                                                           ASHI   T014
                                                   DIVISION II                                         IJ
                                                                                                                  p        ry
STATE OF WASHINGTON,                                                             No. 43110 -6 -II


                                      Respondent,


          V.



RODNEY S. MITUNIEWICZ,                                                  UNPUBLISHED OPINION


                                      I1


          PENOYAR, J. —         Rodney S. Mituniewicz appeals his convictions of possession of heroin

with intent to deliver while armed with a firearm and within 1, 000 feet of a school bus stop, and

second     degree    unlawful     possession    of a   firearm.     Mituniewicz argues that the evidence is


insufficient to support the firearm enhancement and, in a pro se statement of additional grounds

 SAG),     contends that the trial court' s violation of his speedy trial rights under CrR 3. 3 requires

the dismissal     of   his   convictions.   Because the evidence was sufficient to prove that Mituniewicz

was armed and because defense counsel requested the continuance of Mituniewicz' s trial, we

affirm.



                                                        FACTS


          As part of an investigation into heroin distribution, Clark County Sheriff' s Detective Bill

Sofianos asked the occupant of an apartment he had searched to set up a drug deal requesting

 1, 000    worth of     heroin.    Sofianos listened and watched as the occupant made the phone call


setting up the deal. Mituniewicz arrived at the apartment later that evening.

          When Mituniewicz knocked, Detective Sofianos                  opened     the door.        Mituniewicz had a


locked    metal   security box in     one   hand   and a set of   keys in the   other.    Sofianos took the box and


the   keys     and     arrested   Mituniewicz.         After   handcuffing      him,     Sofianos    put    the    keys     in
43110 -6 -II



Mituniewicz' s pocket and walked him out of the house. Detective Tom Yoder then took custody

of the box and keys after he removed the latter from Mituniewicz' s pocket.


          Jennifer Thomas, Mituniewicz' s community corrections officer, used one of the keys to

open    the   metal   box.   Inside, she found a handgun, a digital scale with residue on it, a magnifying

glass, baggies containing suspected heroin, several syringes, a lighter, a razor blade, and a knife.

Although the gun contained a magazine, it was not loaded. There was no ammunition in the box

or on Mituniewicz' s person. A search of Mituniewicz produced $2, 313 in cash and two golf ball

sized   balls   of suspected      heroin    wrapped    in   aluminum    foil.   One of the balls and some of the


baggies later tested positive for heroin.


          During the September 29 arraignment, the trial court set November 14 as the trial date.

On November 10, the State moved for a continuance because the assigned prosecutor would be

in trial through November 14                or   15.   Defense counsel also requested a continuance over


Mituniewicz' s objection because she needed additional time to conduct discovery and to file a

suppression motion. Defense counsel observed that her client had been serving a Department of

Corrections ( DOC)           sanction of    60 days    on an unrelated matter since         September 22.      The trial


court granted a continuance to January 9.

          After filing a pro se motion to dismiss based on the alleged violation of his speedy trial

rights,   Mituniewicz        argued   his   motion     before   a   different judge    on   January   5.   Mituniewicz


contended       that    because    he had        received   good     conduct    time   on   the   DOC      sanction,   his


incarceration ended on October 23, and the 60 -day speedy trial period expired on December 22.

The trial court observed that the previous continuance was based on the DOC sanction as well as

good cause.       The trial court denied the motion to dismiss and, at both parties' request and with

Mituniewicz' s acquiescence, set a new trial date of January 23.
                                                                2
43110 -6 -II



         After the trial court upheld the search of the security box, Mituniewicz' s CCO and the

detectives testified to the facts       set.   forth   above.'      Detective Sofianos added that mid - higher
                                                                                                      to-


level          dealers           carry firearms to      keep    their   drugs from   being   stolen.   Another officer
        drug             often




testified that he had test fired the firearm found in the security box and had found it functional.

Mituniewicz sought reconsideration of the speedy trial ruling, which the trial court denied.

          The   jury found       Mituniewicz guilty        as    charged.   At the beginning of his sentencing

hearing, Mituniewicz again moved unsuccessfully for dismissal based on the violation of his

speedy trial     rights.     The trial court imposed a standard range sentence of 194 months.

Mituniewicz appeals.


                                                        ANALYSIS


I.        FIREARM ENHANCEMENT


          Mituniewicz argues initially that the evidence was insufficient to prove that he was armed

with a firearm at the time he possessed the heroin with intent to deliver. .

          A firearm enhancement must be proved beyond a reasonable doubt. State v. Tongate, 93

Wn.2d 751, 754, 613 P. 2d 121 ( 1980).                 To meet that burden, the State had to establish that the


firearm was easily accessible and readily available for offensive or defensive purposes and that a

nexus existed between Mituniewicz, the crime, and the firearm. State v. Barnes, 153 Wn.2d 378,

383, 103 P. 3d 1219 ( 2005).


          Mere proximity or constructive possession is insufficient to show that a defendant was
armed at the time the crime was committed. State v. Gurske, 155 Wn.2d 134, 138, 118 P. 3d 333

 2005).    Instead, the firearm must be easy to get to for use against another person, whether to



   The trial court found that the CCO had reasonable cause to believe that Mituniewicz had
 violated his probation conditions by engaging in criminal activity.
                                                                3
43110 -6 -II



facilitate the commission of the crime, escape from the scene, protect contraband, or prevent

investigation,         discovery,    or apprehension         by the   police.     Gurske, 155 Wn.2d at 138 -39.


          Mituniewicz does not challenge the evidence establishing the nexus requirement, which

is clearly ample in this case. He was found holding the box and the key that unlocked it, and the
gun   was       in the box         with    other "   tools     of   the   trade."     4B Report of Proceedings at 652.


Mituniewicz argues instead that the evidence was insufficient to prove his close proximity to the

firearm and the fact that it was easily accessible and readily available for use.

          As support, he relies on this court' s statement that " Washington courts have found that a


defendant is not ` armed' even though he, presumably, could have obtained a weapon by taking a

few   steps."         State   v.        Masters, 138 Wn.
                                   Ague -                             App. 86,       104, 156 P. 3d 265 ( 2007).      In Ague -


Masters,         deputies      arrested      the     defendant        outside       his   front   door   and   then   found   a




methamphetamine lab in a detached shed and unloaded firearms locked in a safe inside the

house.     138 Wn.         App.     at   104..   We rejected the argument that the defendant could have easily

accessed        the   firearms     and observed      that    none were      found in the     shed.   Ague -Masters, 138 Wn.


App.     at .   104.     We distinguished a case where the presence of a loaded pistol outside a

methamphetamine lab as well as other loaded guns on the premises was sufficient to support a


firearm enhancement. State v. Simonson, 91 Wn. App. 874, 877 -83, 960 P. 2d 955 ( 1998).

           To support our decision that the defendant in Ague -
                                                              Masters was not armed, we cited


three cases where weapons were found on the premises following a defendant' s arrest on drug

charges.        See State     v.   Valdobinos, 122 Wn.2d 270, 282, 858 P. 2d 199 ( 1993) ( defendant was not


armed where an unloaded rifle was                    found     under a    bed);     State v. Johnson, 94 Wn. App 882, 894-

 97, 974 P. 2d 855 .( 1999) ( defendant was not armed where a gun was found inside a closed


 cabinet   five to      six   feet away     after   he   was   handcuffed);       State v. Call, 75 Wn. App. 866, 869, 880
                                                                      M
43110 -6 -II



P. 2d 571 ( 1994) ( defendant was not armed where guns were found in a dresser drawer and tool


box inside his bedroom after he entered the bedroom to retrieve identification and emerged

unarmed).




            While acknowledging these holdings, we observe that being armed is not confined to

those defendants          with a    deadly      weapon     actually in hand      or on   their person.   Gurske, 155 Wn.2d


at   138.    With the enactment of the firearm enhancement statute, the legislature has expressly

recognized that individuals engaged in criminal conduct might use a firearm for reasons that


include forcing the victim to comply with their demands, injuring or killing anyone who tries to

stop the     criminal acts,        and    aiding the      criminal       in escaping.    Gurske, 155 Wn.2d at 139 ( citing

LAWS OF 1995,            ch.   129, § 1( 1)(   a) (   Initiative Measure No. 159)).          As Detective Sofianos testified,


drug dealers often carry firearms to keep their drugs from being stolen.

            Here, the defendant was carrying the locked box containing a firearm when he was

arrested for possession of heroin with intent to deliver. The box also contained scales and other

tools   belonging        to the    drug   trade.       Mituniewicz was carrying the keys to the box as if intending

to   open    it   when    he   arrived at      the    delivery   site.   When viewed in the light most favorable to the


State, the evidence shows that the gun was easily accessible and readily available for use for

offensive         or   defensive    purposes.          Gurske, 155 Wn.2d         at   143.   The fact that the gun was not


loaded is not determinative; it still could have been used to threaten, deter, or aid in an escape.

See Simonson, 91 Wn. App. at 883 ( gun' s loaded or unloaded condition is one of many factors to

consider when deciding whether the gun was readily available for use. during the crime' s

commission).             We hold that the evidence was sufficient to prove that Mituniewicz was armed

with a firearm when he possessed heroin with intent to deliver.



                                                                         5
43110 -6 -II



II.           SPEEDY TRIAL


           Mituniewicz argues in his pro se SAG that the trial court violated his right to a speedy

trial   under       CrR 3. 3.     He makes several assertions of error related to the trial court' s decision to

continue        the    trial    to   January 9, but he does not appear to challenge the court' s second

continuance of the trial date to January 23.

              CrR 3. 3 provides that a defendant who is detained in jail shall be brought to trial within

60 days        of   his   arraignment..      CrR 3. 3( b)( 1)( i), (c)( 1).   The purpose of this rule is to protect the


defendant' s constitutional right to a speedy trial and to prevent undue and oppressive

incarceration before trial.                  State    v.   Kingen, 39 Wn.       App.       124,   127, 692 P. 2d 215 ( 1984).


Nevertheless, the constitutional right to a speedy trial does not mandate trial within 60 days.

State    v.   Torres, 111 Wn.          App.   323, 330, 44 P. 3d 903 ( 2002). CrR 3. 3( f)( permits the trial court
                                                                                          2)


to     continue       the trial      past   60 days        when   necessary in the " administration of justice and the


defendant        will not       be   prejudiced      in the   presentation of   his   or   her defense."   The rule adds that



      t]he bringing of such motion by or on behalf of any party waives that party' s objection to the

requested        delay."       CrR 3. 3( f)(
                                           2).       The decision to grant a continuance under CrR 3. 3 rests in the

sound discretion of the trial court and will not be disturbed unless the trial court grants the

continuance           for   untenable       reasons.        State v. Nguyen, 131 Wn. App. 815, 819, 129 P. 3d 821

  2006).       A trial court may grant a continuance to allow defense counsel more time to prepare for
trial, even over the defendant' s objection, to ensure effective representation and a fair trial. State

 v.   Flinn, 154 Wn.2d 193, 200, 110 P. 3d 748 ( 2005); State v. Campbell, 103 Wn.2d 1,                               15, 691


 P. 2d 929 ( 1984).




                                                                      rel
43110 -6 -II



          Continuances are excluded from speedy trial calculations, as are periods of incarceration

on unrelated charges.        CrR 3. 3(   e)(   2), ( 3);   State v. Bobenhouse, 143 Wn. App. 315, 329, 177 P. 3d

209 ( 2008),   affirmed on      other grounds,             166 Wn.2d 881, 214 P. 3d 907 ( 2009).       If a period is


excluded, the allowable time for trial shall not expire earlier than 30 days after the end of that

excluded period. CrR 33( b)( 5).


          On November 10, both parties requested a continuance and observed that Mituniewicz' s

60 days of incarceration on another matter should not be included in his speedy trial calculation.

The trial court agreed and granted a 60 -day continuance both because of that incarceration and

for good cause shown.


          Because his attorney requested the continuance, most of Mituniewicz' s current claims of

error are   waived.      Given his assertion that both defense counsel and the prosecuting attorney

engaged in misconduct that violated his speedy trial rights, however, we briefly address his

claims.    Defense counsel sought a continuance so that she could engage in further discovery and

file   a motion   to   suppress.    The        prosecutor     sought   a continuance   because he   was   in trial.   As



stated, allowing counsel time to prepare for trial is a valid basis for continuance, and scheduling

                                               in granting                    Flinn, 154 Wn.2d        200. We see no
                  may be
conflicts also               considered                       continuances.                      at




prejudice to the presentation of Mituniewicz' s case and nothing untenable about the trial court' s

decision to    grant   the   requested continuance.            Consequently, we reject Mituniewicz' s alternative

claim that he received ineffective assistance of appellate counsel because his attorney failed to

raise the speedy trial issue in the opening brief. See In re Pers. Restraint ofMaxfield, 133 Wn.2d
332, 344, 945 P. 2d 196 ( 1997) ( claim of ineffective assistance of appellate counsel requires


showing that legal issue counsel failed to raise had merit and that counsel' s failure to raise issue
was prejudicial).


                                                                 7
43110 -6 -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:




                                I



         Maxa, J.




         Lee, J.




                                               E'?
