                                                                                                FILED
                                                                                        0010T 01r APPEALS
                                                                                            DiVISIM1I

                                                                                       2413 DEC — 3 AM 9= 23

                                                                                        STATE 0" WASHI1 NIGT ON

                                                                                        BY
                                                                                                    1   Y



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,


                                   Respondent,                                 No. 43591 -8 -II


          V.

                                                                       UNPUBLISHED OPINION
JEFFREY SCOTT ZIEGLER,


                                   Appellant.




          MAXA, J. —   Jeffrey Scott Ziegler appeals an order dismissing several motions he filed

over three years after his convictions became final. He also claims that the trial court violated


his due process rights by transferring earlier post conviction motions to this court for
consideration as personal restraint petitions pursuant         to CrR 7. 8(   c)(   2). In a statement of


additional grounds     for   review ( SAG),   Ziegler raises several other grounds for relief. In addition,


the State asks that this court reverse the order of dismissal and remand with directions to transfer

the motions to this court for consideration as personal restraint petitions. Finding no error, we

affirm.



                                                     FACTS


          After two appeals and three sentencing hearings, Ziegler' s 2005 criminal convictions for

one count of   first degree    child rape and   three counts   of   first degree    child molestation   became
No. 43591 -8 -II


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final     on   March 27, 2009.              On November 10, 2010, Ziegler filed a motion to dismiss under CrR

3. 3( h)   and       CrR 8. 3( b), alleging     violation of   time    for trial   rules and other        irregularities. On March


7, 2012, the trial court determined that CrR 7. 8( c)( 2) governed the motion, ruled that the motion

was     time barred ( pursuant to RCW 10. 73. 090),                   and transferred the motion to this court for


consideration as a personal restraint petition. Ziegler filed a motion objecting to the transfer and

on March 27, the trial court transferred that motion to this court as well. This court determined

that the trial         court   properly transferred both       motions under           CrR 7. 8(   c)(   2), and in a consolidated


order dismissed both petitions as untimely and successive.

               On May 2, 2012, Zeigler filed six additional motions in the Clark County Superior Court:
 1)   a   CrR 7. 4      motion    for   arrest of judgment,    ( 2)   a     CrR 7. 5   motion   for   a new   trial, ( 3)   a CrR 3. 1


motion         for   appointment of counsel, ( 4) an       RCW 4. 12. 050              and   CR 40( f) affidavit     of prejudice, ( 5)




a motion and affidavit for preassignment ofjudge, and ( 6) a motion to vacate the transfer of his

CrR 7. 8 motions to the Court of Appeals. On May 31, the trial court denied all six motions.

Ziegler appeals, assigning error both to the CrR 7. 8( c)( 2) transfers and the denial of his 2012

motions.



                                                           ANALYSIS


A.             CRR 7. 8( c) TRANSFER OF MOTIONS


               Ziegler argues that the trial court erred in transferring his 2010 motion to dismiss and

2012 motion objecting to that transfer to this court under CrR 7. 8( c)( 2) without notice and an




 1 The facts involved in these convictions are set out in the first appeal. See State v. Ziegler, 138
 Wn. App. 804, 806, 810 -11, 158 P. 3d 647 ( 2007) ( reversing two counts of first degree child
 rape); State v. Zeigler, noted at 146 Wn. App. 1007, 2008 WL 2811315, at * 2 ( striking


 community custody condition).

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No. 43591 -8 -II



opportunity to be heard. But this court already has determined that the transfers were proper

under   CrR 7. 8(    c)(   2).   Accordingly, we need not revisit this issue.

         We do note, however, that CrR 7. 8( c)( 2) requires the trial court to transfer untimely

motions    to this    court.     See State    v.   Smith, 144 Wn.           App.   860, 863, 184 P. 3d 666 ( 2008) (     superior




court   lacked authority to dismiss untimely                    post   trial   motion).   Under this procedure, a petitioner' s


opportunity to be heard is not terminated. It simply is transferred to this court.

B.       DENIAL OF 2012 MOTIONS


         Ziegler assigns error to the trial court' s dismissal of his six motions filed in May 2012.

Because he makes no arguments in his opening brief to support this assignment of error, he

waived    it. RAP 10. 3(         a)(   6); State v. Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004).


Nonetheless, we will consider this issue because Ziegler does challenge the dismissal of these

orders in his SAG. We find no error.


          1.        SAG


         In his SAG, Ziegler claims that ( 1) the trial judge was biased and should have recused

herself, (2) the      prosecutor engaged, in               discovery mismanagement resulting           in   an unfair trial, ( 3)



police officers violated his right to privacy by listening in on a conversation between him and his

wife, ( 4)     he   was    denied his     right   to   a   speedy trial, (5) his offender score was miscalculated, and


 6) equitable tolling should apply because he was confined out -of-state. The first and sixth

claims have no merit, and we do not consider the other claims. None of Ziegler' s SAG

arguments demonstrate trial court error in dismissing his motions.

           Ziegler' s first SAG argument is that the trial court impliedly was biased because of the

way she conducted his trial, considering evidence in an ex parte hearing in which the prosecutor

and defense attorneys were present but he was not. More than three years after his convictions

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No. 43591 -8 -II



were final, Ziegler filed an affidavit of prejudice and asked the trial court to recuse itself from


hearing his post trial motions. The trial court denied this request as untimely. We agree.

Pursuant to RCW 4. 12. 050( 1),             an affidavit of prejudice must be filed " before the judge presiding

has made any order or ruling involving discretion" and " not later than the day on which the case

is   called   to be   set   for trial."   Clearly, Ziegler' s motion and affidavit were untimely. The trial

court had presided over his trial and resentencing hearings before he filed his motion. RCW

4. 12. 050( 1);   see   State    v.   Tarabochia, 150 Wn.2d 59, 68, 74 P. 3d 642, 646 ( 2003) (      strict




compliance with statute required).




          Even if the request for recusal was timely, the request had no merit. We review a judge' s

decision not to recuse for an abuse of discretion. State v. Leon, 133 Wn. App. 810, 812, 138

P. 3d 159 ( 2006).          A party claiming prejudice must support his claims with evidence of the trial

court's actual or potential bias. State v. Gamble, 168 Wn.2d 161, 187 -88, 225 P. 3d 973 ( 2010).

 Judicial     rulings alone almost never constitute a valid         showing   of   bias."   In re Pers. Restraint of

Davis, 152 Wn.2d 647, 692, 101 P. 3d 1 ( 2004) ( citing              Liteky v. United States, 510 U.S. 540, 555,

114 S. Ct. 1147, 127 L. Ed. 2d 474 ( 1994)).               Here, the record contains only allegations of actual

or potential bias, but no actual evidence. We conclude that Ziegler has failed in his burden. The


trial court' s reasoning is sound and it did not abuse its discretion.

          Ziegler' s sixth SAG argument involves equitable tolling. Ziegler argued in his original

personal restraint petition that the time for raising posttrial motions.should be tolled. This court

rejected this argument, finding that equitable tolling was inappropriate. However, Ziegler now

argues that because the Department of Corrections confined him out - state, the time for raising
                                                                   of-

his claims tolled. He relies on RCW 4. 16. 180. But this statute does not apply here. Instead, the

statute is concerned with defendants concealing themselves in order to avoid civil lawsuits and

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No. 43591 -8 -II



tolls the period of concealment. See Rodriguez v. James -Jackson, 127 Wn. App. 139, 147, 111

P. 3d 271 ( 2005) ( statute of limitations for service of process tolled until defendant returned from


concealment).      Ziegler' s equitable tolling argument has no merit.

         We do not reach arguments ( 2) through ( 5) because Ziegler appeals from an order


dismissing his claims as untimely and not dismissing based on his substantive arguments.

Further, he raised issues ( 2) and ( 3) in his first personal restraint petition and this court dismissed

them as untimely.

         2.     State Request for Reversal


         The State asks this court to reverse the trial court' s denial of the May 2012 motions and

remand for further proceedings. The State argues that the trial court erred in entering an order

of dismissal when it should have transferred the motions to this court under CrR 7. 8( c)( 2) for

consideration as personal restraint petitions.



         But the State did      not    file   a cross appeal.   Under RAP 2. 4( a),   we will grant affirmative




relief to a respondent in the absence of a cross appeal only if "demanded by the necessities of the

case."   This standard is not met here. In any event, the trial court did not rule on Ziegler' s

motions under      CrR 7. 8(   c)(   2).   Rather it ruled that the motions were untimely under CrR 7.4 and

CrR 7. 5.     While treating certain post trial motions as CrR 7. 8 motions might be an appropriate

and efficient practice, the State cites no authority requiring the trial court to do so.




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No. 43591 -8 - 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.




                                                    MAXA, I




VERELLEN, J.




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