                                                                                                            COURT OF APPEALS
                                                                                                                    gym 1SIO     11

                                                                                                           2015 JUL - 7        AM 8: 45



      IN THE COURT OF APPEALS OF THE STATE OF WA

                                                DIVISION II



 STATE OF WASHINGTON,                                                                 Nn    4591 !




                                    Respondent,




          V.


                                                                             UNPUBLISHED OPINION

 SONJA ELAINE HUTCHENS,




                                    Appellant.




         MAXA, J. —      Sonja Hutchens appeals her convictions for second degree assault and first


degree burglary. We hold that ( 1) the record is insufficient for us to address Hutchens' s claim

that her attorney provided ineffective assistance by giving her incorrect legal advice regarding

the   withdrawal of an   instruction   on a   lesser included        offense on   the assault charge, ( 2) the trial



court did not err by declining to include a statement that a person has no duty to retreat in a jury

instruction stating that   person   has the   right   to   stand   her   ground and    defend   against an attack, ( 3)




we will not consider Hutchens' s argument that the trial court exceeded its authority in ordering

her to pay legal financial obligations ( LFOs) without finding that she had the present or future

ability to pay because Hutchens did       not raise        the   issue in the trial   court, and (   4) Hutchens'   s
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assertions of error in her statement of additional grounds ( SAG) have no merit. Accordingly, we

affirm Hutchens' s convictions and sentence.


                                                  FACTS


        In May 2013, Hutchens and Jill Earnhardt had a physical altercation in a parking lot.

Hutchens approached Earnhardt' s car, the door opened, and the two women began physically

fighting. During the altercation, Hutchens entered Earnhardt' s vehicle and hit and slapped

Earnhardt. Hutchens and Earnhardt exited the vehicle while still grappling with each other.

Someone pulled the two apart, and Hutchens delivered a final strike to Earnhardt' s face.


        The State charged Hutchens with second degree assault. On the first day of trial, the

State amended the information to add a first degree burglary charge. At trial, there was

conflicting testimony regarding who initiated the altercation. Some witnesses testified that

Hutchens pulled opened the door and initiated the fight. A defense witness testified that as


Hutchens approached Earnhardt' s car, Earnhardt opened the door and hit Hutchens, causing her

to stumble.


        The    second   degree   assault charge was   based   on   RCW 9A. 36. 021( 1)(   a), which requires




proof that the defendant assaulted another and inflicted substantial bodily harm. Hutchens

presented some evidence at trial that the blow to Earnhardt' s face may not have caused a

fracture, and argued in closing that the State did not prove, the substantial bodily harm element.

Hutchens also argued that she acted in self-defense.


        Defense counsel initially requested, but later withdrew, an instruction on the lesser

included offense of fourth degree assault, which offense does not require proof of substantial


bodily harm. In withdrawing the lesser included offense instruction, defense counsel stated that

the " legalistic reason" for withdrawing the instruction was. because Hutchens could not be


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convicted of first degree burglary if she was not convicted of assault. Report of Proceedings

 RP) ( Jan. 29, 2014) at 548.


        At Hutchens' s request and over the State' s objection, the trial court gave three self-

defense instructions,     including   a "   lawful force —no     duty to retreat" instruction. That instruction

stated a person may stand her ground and defend against an attack by the use of lawful force.

However, the trial court declined to include in the instruction a statement Hutchens proposed that


the law does not impose a duty to retreat. Hutchens objected to this omission.

        The jury convicted Hutchens on both charges. As part of Hutchens' s sentence, the trial

court ordered her to pay a $ 1; 000 LFO for her court- appointed attorney fees. The court did not

determine whether Hutchens had the present or future ability to pay her LFOs, but Hutchens did

not object to the imposition of LFOs at sentencing.

        Hutchens appeals.


                                                    ANALYSIS


A.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Hutchens argues that she received ineffective assistance of counsel because ( 1) her


attorney provided inaccurate legal advice that influenced her decision to withdraw a lesser

included offense instruction on the second degree assault charge, and ( 2) she was prejudiced


because there is a reasonable probability that she would not have withdrawn the instruction but

for her counsel' s erroneous advice, and a reasonable jury could have convicted her of the lesser

included offense. We hold that the record is insufficient to establish whether defense counsel


gave erroneous advice regarding the instruction or whether Hutchens relied on that advice.

Therefore,     we   decline to   address   Hutchens'   s   ineffective   assistance of counsel claim.
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          1.      Legal Principles


          The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a criminal defendant' s right to effective assistance of

counsel.       State   v.   Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011).           Where a criminal defendant


has been denied effective assistance of counsel, we will reverse any resulting conviction and

remand for a new trial.. See id. To prevail on an ineffective assistance of counsel claim, the

defendant must show that ( 1) defense counsel' s representation was deficient, and ( 2) the

deficient      representation prejudiced       the defendant. Id.       at   32- 33. " Where the claim of ineffective


assistance is based upon counsel' s failure to request a particular jury instruction, the defendant

must show he was entitled to the instruction, counsel' s performance was deficient in failing to

request   it,   and    the failure to   request   the instruction    caused prejudice."     State v. Thompson, 169


Wn. App. 436, 495, 290 P. 3d 996 ( 2012).

          2.      Insufficient Record to Address Ineffective Assistance


          Our Supreme Court in Grier emphasized that when an appellant raises an ineffective

assistance claim,           the reviewing   court   may   consider   only facts   within   the   appellate record.   171


Wn.2d at 29. When such a claim is based on off-the- record conversations, the proper procedure


is to file a personal restraint petition. Id. Here, we would need to examine evidence outside the


record to determine whether Hutchens' s counsel gave her erroneous advice and whether


Hutchens relied on that advice in deciding to forego a lesser included offense instruction.

          The parties agree that Hutchens was entitled to a jury instruction on the lesser included

offense of fourth degree assault, and that defense counsel deliberately chose to withdraw that

instruction. Our Supreme Court indicated in Grier that defense counsel' s decision to forego a


lesser included offense instruction in favor of an " all or nothing" strategy in most cases should


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not constitute        ineffective    assistance of counsel.        171 Wn.2d at 39- 40. However, Hutchens


focuses not on the decision to forego the lesser included offense instruction, but on her counsel' s


allegedly erroneous advice that led her to make to that decision. She claims that her counsel

misled her into believing that she could not be convicted of first degree burglary if she was

acquitted of assault, and that she relied on this misinformation in deciding to forego a lesser.

included offense instruction.


         Hutchens' s argument is based on a brief statement defense counsel made to the trial court


when withdrawing the lesser included offense instruction. After stating that he had proposed

such an instruction, defense counsel stated:


         She does not want to put the lesser -included offense in there. There' s plusses [ sic]
         and minuses          to that. I - - I tend to err on doing those, but she had her reasons for
         not    doing      them. The ...   sort of legalistic reason for not doing it is that, for Burglary
         1, it      require - -   allows a Burglary 1 conviction for essentially any assault.


         So     a   lesser included       could count    for that. If we don' t have a lesser included in, if
         we can prevail on the issue of self-defense in some form, then that would eliminate
         the    Burglary      1   and   the Assault 2.      Again,     maybe not a   tactical   reason   I - - I would
         most prefer         to do that, but I     am not   going to    always overrun    my    clients . [   W] e' ve
         had        some   battles   on   that   and she prefers   to go   without   Assault 4.     1   will - - we' ve

         been        advised of    it ....   I' m making that her option; she' s picking it.

RP ( Jan. 29, 2014) at 548- 49.


         Defense counsel' s statement and the related record is insufficient to allow us to address


Hutchens' s ineffective assistance of counsel claim in two respects. First, the record does not


disclose whether defense counsel actually gave Hutchens advice on the impact the lesser

included offense instruction could have on the first degree burglary charge. The only advice

defense counsel told the trial court he had given Hutchens was that " it could be an all or


nothing." RP ( Jan. 29, 2014) at 548. Defense counsel told the trial court there was a " legalistic




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reason" for not giving the instruction, but the record does not reveal whether defense counsel

actually communicated that reason to Hutchens. RP ( Jan. 29, 2014) at 548.

             Second, even if defense counsel provided erroneous advice, the record does not reveal


whether Hutchens relied on that advice in deciding to forego the lesser included offense

instruction. The record suggests that defense counsel advised her not to forego the instruction;


he said he tended to err in favor of giving the instruction and that foregoing the instruction was

not a tactical reason he preferred. Defense counsel emphasized that Hutchens was adamant and


that she preferred not to submit the instruction. But the record does not show whether Hutchens


relied on defense counsel' s advice in reaching this decision.

             Because the record does not disclose whether defense counsel gave Hutchens erroneous

advice or whether Hutchens relied on that advice, we cannot consider Hutchens' s ineffective


assistance of counsel claim on direct appeal.


B. "          NO DUTY TO RETREAT" JURY INSTRUCTION


             The trial   court gave a "   lawful force —no   duty to retreat" jury instruction. Hutchens

argues the trial court erred in denying her proposed version of the instruction, which included a

specific statement that there was no duty to retreat. We disagree.

                  Legal Principles


             In general, we review a trial court' s choice of jury instructions for an abuse of discretion.

State   v.
             Hathaway,      161 Wn.   App.   634, 647, 251 P. 3d 253 ( 2011).   Jury instructions are

appropriate if they allow counsel to argue their theories of the case, are not misleading, and when

read as a whole properly state the applicable law. State v. Aguirre, 168 Wn.2d 350, 363- 64, 229

P. 3d 669 ( 2010). It is not error to refuse to give a specific instruction when a more general


instruction adequately explains the law and allows each party to argue its theory of the case.


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Hathaway, 161 Wn. App. at 647. Jury instructions on self-defense must do more than

adequately convey the law; they " must make the relevant legal standard ` manifestly apparent to

the   average     juror.' " State    v.   McCreven, 170 Wn. App. 444, 462, 284 P. 3d 793 ( 2012) ( quoting


State v. Allery, 101 Wn.2d 591, 595, 682 P. 2d 312 ( 1984)).

             A person has no duty to retreat when assaulted in a place where he or she is entitled to be.

State   v.   Redmond, 150 Wn.2d. 489, 493, 78 P. 3d 1001 ( 2003).                       This rule of law is incorporated in

WPIC 17. 05,        which   is   entitled "   Lawful Force —No         Duty    to Retreat."    11 WASHINGTON


PRACTICE SERIES: PATTERN JURY INSTRUCTIONS § 17. 05,                            at   264- 65 ( 3d   ed.   2008) ( WPIC).


When a defendant is entitled to a self-defense instruction, the trial court should also should give


a " no duty to retreat" instruction when the jury " may objectively conclude that flight is a

reasonably        effective alternative       to the   use of   force in   self-defense."    Id. at. 495. On the other


hand, a " no duty to retreat" instruction is not required if the evidence shows that retreat was not a

reasonable alternative to the use of force. See State v. Studd, 137 Wn.2d 533, 549, 973 P. 2d

1049 ( 1999) ( holding       that no instruction was required when defendant was being held at

gunpoint and could not have avoided the use of force by retreating).

             2.    Adequacy of Trial Court' s Instructions

             Under Redmond, the evidence here was sufficient for the trial court to give a " no duty to

retreat" instruction. The jury could have concluded that flight was a reasonable alternative for

Hutchens when Earnhardt hit her with the car door and when Hutchens hit Earnhardt after they

were pulled from the car and separated. And the trial court did give such an instruction, based on


WPIC 17. 05. The question is whether the trial court' s instructions adequately stated the law and

allowed Hutchens to argue her theory of the case regarding the absence of a duty to retreat.




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           The trial court gave three standard instructions regarding the use of lawful force in self-

defense. Instruction 15          was     based    on   WPIC 17. 02,       which     is   entitled "   Lawful Force —Defense of


Self, Others,       Property." This instruction informed the jury that it is a defense to the charge of

second degree assault that the force was " lawful" and provided a definition of lawful force.


Instruction 16       was    based   on   WPIC 17. 04,       which    is   entitled " Lawful      Force —Actual Danger Not


Necessary." This instruction informed the jury that a person can defend herself if she believes in

good faith and on reasonable grounds that she is in actual danger of injury, regardless of whether

she was in actual danger. Hutchens did not object to these instructions.

           Instruction 17      was    based    on     WPIC 17. 05,    which    is   entitled "   Lawful Force —No         Duty to

Retreat."        This instruction stated:


           It is lawful for a person who is in a place where that person has a right to be who
           has reasonable grounds for believing that she is being attacked to stand her ground
           and defend against such attack by the use of lawful force.

CP   at   261.    This instruction included only the first                sentence of      WPIC 17. 05. Hutchens also


proposed     that the trial    court give       the   second sentence of       WPIC 17. 05,           which states: "   The law


does   not   impose     a   duty to   retreat."     The trial court declined to include this sentence.


           Hutchens argues that the trial court erred in not giving the second sentence of WPIC

17. 05. The        second sentence       is   a part of   the   standard "   lawful force —no          duty to retreat"




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instructions, and the better practice may be to include that sentence when the evidence indicates

that retreat was a reasonable alternative for the defendant. However, the first sentence of WPIC


17. 05, which the trial court included in instruction 17, clearly informs the jury that a defendant

has no duty to retreat. The instruction states that if the defendant is being attacked, she has the

right   to "   stand   her   ground and   defend    against such attack            by the   use of   lawful force."   WPIC


17. 05.


          Further, instruction 17 allowed Hutchens to argue her theory of the case. Based on the

trial court' s instructions, Hutchens argued in closing argument that she had no duty to retreat:

           W] e'   re not a nation of pacifists.        We - -       we are a no -retreat jurisdiction.           It' s in
          the jury instructions. It starts off around 15 and goes beyond that, about self-
          defense. We are a nation that was not born about people turning their cheeks.

RP ( Jan. 29, 2014) at 616 ( emphasis added).


          So from [Hutchens' s] thinking, because she gets hit by the door, the door is opening
          on her, so she' s going around because, you know, something is going to happen
          with this person she' s had this history of hostility with. So she' s allowed to do that
           because this is      a no -retreat ...   jurisdiction.


RP ( Jan. 29, 2014) at 645- 46 .(emphasis added).


           And     again,     Instruction Number 7 [        sic,      17], . . .       shows this is a no -retreat

          jurisdiction, so there' s no reason for her to walk away from this and wait to see
           what [ Earnhardt] does next.


RP ( Jan. 29, 2014) at 647 ( emphasis added).


           There' s also the factual issues and how it interrelates to the jury instructions, aside
           from the self-defense case, where she has -      doesn' t -have a duty to retreat, has a
           duty to act on appearances.

RP ( Jan. 29, 2014) at 655- 56 ( emphasis added).


s The language " the law does not impose a duty to retreat" is in brackets in WPIC 17. 05.
However, that does not mean that it should be treated as an optional addition. Instead, the
instruction' s second paragraph has two bracketed alternatives, and generally the trial court
should select one of those two alternatives. WPIC 17. 05 comment 264- 65.

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         We review a trial court' s choice ofjury instructions for an abuse of discretion.

Hathaway, 161 Wn. App. at 647. Instruction 17 expressly stated that Hutchens had the right to

 stand   her    ground and       defend." CP      at   261.   Therefore, the instruction clearly implied that

Hutchens had no duty to retreat. Adding a sentence specifically stating that there is no duty to

retreat was unnecessary for Hutchens to argue her self-defense theory. Accordingly, we hold

that the trial court did not abuse its discretion in failing to include a specific statement that a

person   has    no   duty   to   retreat   in the " lawful force —no    duty to retreat" jury instruction.

C.       LEGAL FINANCIAL OBLIGATIONS


         Hutchens argues that the trial court violated her right to counsel when it imposed legal


financial obligations without finding she had the present or future ability to pay. We decline to

reach this claim.


         Hutchens did not challenge the trial court' s finding during sentencing, and we generally

do not consider issues raised for the first time on appeal. See State v. Blazina, 174 Wn. App.

906, 911, 301 P. 3d 492 ( 2013),             remanded on other grounds,        182 Wn.2d 827 ( 2015).    Our


decision in Blazina, nearly seven months before Hutchens' s sentencing, provided notice that the

failure to object to LFOs during sentencing waives a related claim of error on appeal. Id. As our

Supreme Court noted in reviewing the decision in Blazina, an appellate court may use its

discretion to decide whether to reach unpreserved claims of error. 182 Wn.2d at 830. We

decline to exercise such discretion here.


D.       SAG ASSERTIONS


         1.      Motion to Amend Information


         Hutchens asserts that the trial court erred in allowing the State to amend the information

to include first degree burglary on the first day of trial. We disagree.

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        This court reviews a trial court' s decision to allow the State to amend the charge for

abuse of   discretion. State   v.   Ziegler, 138 Wn.   App.   804, 808, 158 P. 3d 647 ( 2007). CrR 2. 1( d)


provides that a trial court may permit the prosecutor to amend an information at any time before

verdict or finding if substantial rights of the defendant are not prejudiced. As a result, in order to

challenge an amendment, the defendant must demonstrate that it prejudices her substantial rights.


See State v. Hockaday, 144 Wn. App. 918, 927, 184 P. 3d 1273 ( 2008).

        Here, the State filed its motion to amend on November 21, 2013, well before trial. The


trial court granted the motion on January 27, 2014. In her SAG, Hutchens makes no attempt to

demonstrate how the State' s amendment prejudiced her substantial rights. Therefore, we hold

that this claim fails.


        2.-    Overcharging by the Prosecutor

        Hutchens asserts that the State abused its discretion in overcharging her in order to obtain

a guilty plea. Hutchens asserts that the first degree burglary charge did not adequately describe

the nature of her conduct and that the State sought the charge only after she pursued her right to a

trial. We hold that Hutchens' s claim of abuse of prosecutorial discretion is without merit.


        Prosecutors have discretion in their charging decisions. State v. Korum, 157 Wn.2d 614,

625, 141 P. 3d 13 ( 2006).     Courts may not substitute their judgment for the prosecutor' s. Id. at

626.


        Hutchens   relies on   RCW 9. 94A. 411( 2)(    a),   which provides general charging guidelines.


But these charging guidelines " are intended solely for the guidance of prosecutors in the state of

Washington. They are not intended to, do not and may not be relied upon to create a right or

benefit, substantive or procedural, enforceable at law by a party in litigation with the state."




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RCW 9. 94A.401. Therefore, we hold that Hutchens' s claim of prosecutorial abuse of discretion


fails.


              3.          Insufficient Evidence for First Degree Burglary

              Hutchens asserts that the definition of "building" as used in RCW 9A.52. 020 and defined

in RCW 9A.04. 110( 5) does not include Earnhardt' s vehicle, and therefore there was insufficient


evidence to support her first degree burglary conviction. We hold that the statute is

unambiguous and that the term " building" includes any vehicle for purposes of first degree
                   Z
burglary.

              A person commits the crime of first degree burglary when, with.intent to commit a crime

against a person or property therein, he or she enters or remains unlawfully in a " building" and

assaults       any        person.   RCW 9A. 52. 020. RCW 9A. 04. 110( 5) defines the term "[        b] uilding" as " in

addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo

container, or any other structure used for lodging of persons or -for carrying on business therein,

or   for the           use, sale, or   deposit   of goods." (   Emphasis added.)


              Here, the law is clear that the term " building" in RCW 9A.04. 110( 5) includes any

vehicle. To the extent that Hutchens asserts that the phrase " or any other structure used for

lodging of persons or for carrying on business therein" following the list of terms that includes

vehicles could reasonably be interpreted as meaning that a vehicle is a building only if used for

lodging or business purposes, we disagree. Our Supreme Court rejected such an interpretation in

State    v.    Wentz, 149 Wn. 2d 342, 350- 52, 68 P. 3d 282 ( 2003).               We hold that for purposes of the




2 Hutchens also seems to assert that the trial court erred in allowing the prosecutor to amend the
information to add a first degree burglary charge without showing that a vehicle is a building.
Based on our analysis below, we also reject this assertion.

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first degree burglary statute, RCW 9A.04. 110( 5) unambiguously provides that a " building"

includes any vehicle.

           Accordingly, we reject Hutchens' s assertion that that the State presented insufficient

evidence to prove she entered a " building" as required in RCW 9A.52. 020 and defined in RCW

9A. 04. 110( 5).


           4.   WPIC 2. 05 Jury Instruction Challenge

           Hutchens asserts that the trial court erred in failing to provide the full WPIC 2. 05

instruction explaining when a vehicle could be considered a building for the purposes of a first

degree burglary charge. We disagree.

           WPIC 2. 05    states, "
                                     Building, in addition to its ordinary meaning, includes any [ dwelling]

 fenced    area] [ vehicle] [    railway   car] [ cargo container]. [
                                                                             Building also includes any other

structure used [     mainly] [ for    lodging   ofpersons]      [   for carrying   on   business   therein) [   for the use,


sale, or   deposit   ofgoods]]."       The trial   court' s   instruction   stated, "   Building, in addition to its

ordinary meaning, includes any           vehicle."     CP at 264. As discussed above, the law is clear that

the term " building" in RCW 9A.04. 110( 5) includes any vehicle. Therefore, the trial court' s

instruction properly informed the jury of the applicable law, and the. second sentence of WPIC

2. 05 was unnecessary.

           We hold that the trial court did not err in giving the instruction defining " building."

           5.   Jury Question Regarding Definition of Premise

           Hutchens asserts that the trial court incorrectly stated the law in answering a jury question

regarding the definition of "premise" during deliberations. We disagree.

           The trial court' s decision to answer jury questions and give further instructions is

discretionary.     State   v.   Kindell, 181 Wn.     App      844, 850, 326 P. 3d 876 ( 2014). However, such




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instructions must accurately state the law. Id. We review the legal accuracy of jury instructions

de novo. Id. Instructing the jury in a manner that relieves the State of its burden to prove every

element of a crime beyond a reasonable doubt is reversible error. Id.


           During deliberations, the jury asked the court for further instruction on the definition of

 premise."        The trial court provided the definition of "premises" according to RCW 9A.52. 010

 6): " `   Premises' includes any       building."       RP ( Jan. 29, 2014) at 686. This was a correct


statement of the applicable law. As a result, we hold that the trial court did not err in responding

to the jury question.

           6.     Ineffective Assistance of Counsel


           Hutchens asserts that she received ineffective assistance of counsel ( 1) when her defense


counsel did       not   adequately   prepare   for   pretrial   hearings   and   failed to   request a continuance, ( 2)



ignored her " emails        and phone calls,"        and ( 3) failed to move for continuance at trial.3 SAG at 5.

We disagree.


           First, Hutchens asserts that her attorney did not adequately prepare for pretrial omnibus

and readiness hearings and failed to request a continuance. Hutchens' s claims depend upon facts


outside the record, and are not reviewable in a direct appeal. State v. McFarland, 127 Wn.2d


322, 335, 899 P. 2d 1251 ( 1995).          Therefore, we need not consider these arguments.


           Second, Hutchens asserts that her defense counsel admitted to " ignoring [ her] emails and

phone calls."       SAG at 5. However, the record indicates that her attorney responded to some of

Hutchens' s emails and phone calls regarding cases to research and her proposed trial strategies.




3 Hutchens also asserts in her SAG that defense counsel provided " misinformation and negligent
advice."        SAG at 5. To the extent that this assertion relates to the lesser included defense
instruction, we have addressed that issue above. Otherwise, we cannot review this assertion
because it is insufficient to inform us of the nature of the alleged error. RAP 10. 10( c).

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Moreover, the record indicates that Hutchens' s attorney had filed motions and made arguments

on her behalf. Based on the trial court record, we hold that defense counsel' s performance was

not deficient in this regard.


        Third, Hutchens asserts that defense counsel failed to make motions for a continuance at


trial, particularly after the State added a first degree burglary charge on the first day of trial.

However, whether defense counsel was deficient in not requesting a continuance or whether that

decision prejudiced Hutchens is outside the record. Therefore, we cannot consider this assertion.


McFarland, 127 Wn.2d at 335.


          We reject Hutchens' s ineffective assistance of counsel claims.


          7.   Offender Score Calculation


          Hutchens asserts that the trial court should not have included her two felony theft

convictions from Oregon in her offender score because the convictions washed out. We

disagree.


          We review offender score calculations de novo. State v. Powell, 172 Wn. App, 455, 459,

290 P. 3d 353 ( 2012). Hutchens was convicted of two counts of first degree theft under Oregon


law in 2006. The trial court apparently determined that for the purposes of calculating her

offender score, these convictions were comparable to convictions for second degree theft under


Washington law. A second degree theft conviction under RCW 9A.56. 040 is a class C felony

that washes out if the offender spends " five consecutive years in the community without

committing any     crime   that subsequently   results   in   a conviction."   RCW 9. 94A. 525( 2)( c).


Hutchens contends that her two Oregon theft convictions should have washed out because she

did not commit a crime between 2006 and 2013, and therefore the five year wash out period has

passed.




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         However, the record shows that Hutchens was convicted of conspiracy to commit first

degree   assault with a    firearm   and sentenced   in 2008. Because Hutchens did not spend more than


five consecutive years in the community without committing a crime that resulted in a

conviction, her 2006 theft convictions do not wash out. Therefore, we reject this claim.

         We affirm Hutchens' s convictions and sentence.


         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, J.




We concur:




                     yyam,,.

 WOiWK, P. J.




                       k




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