                                                                                                                    FILED
                                                                                                          COURT OF APPEALS
                                                                                                               DIVISION Id

                                                   2051 Y E9 Ali 9{ 0i
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                    STA E OF ASHJHOTON

                                                  DIVISION II                                             BY

 STATE OF WASHINGTON,                                                               No. 46068 -8 -II


                                       Respondent,


            v.



 TIM MICHAEL DUGGINS,                                                       UNPUBLISHED OPINION


                                       Appellant.




           LEE, J. — Tim Michael Duggins appeals his convictions and sentence for second degree


burglary and second degree theft that followed his termination from drug court. Duggins argues

that ( 1) his jury trial waiver was invalid, (2) his charging document was constitutionally deficient,

and ( 3) he received ineffective assistance of counsel when his attorney failed to argue during

sentencing that his      offenses constituted     the same criminal         conduct.       Duggins makes additional


assertions of ineffective assistance of counsel in his pro se statement of additional grounds ( SAG).


           Because the record shows that Duggins signed the drug court contract with the jury waiver

provision and acknowledged            understanding that       contract,   his   jury   trial   waiver was valid.   And,


because the charging document sets forth the essential elements of his offenses and the necessary

supporting facts, Duggins'          claim of   deficiency fails. Duggins cannot show with any reasonable

probability that his sentence would have differed had trial counsel argued same criminal conduct,

so   his   claim of   ineffective   assistance of counsel       fails.   His remaining claims also fail because

Duggins      shows no     deficiency    in his attorney'   s   performance.        We affirm the convictions and


sentences.
No. 46068 -8 -II



                                                 FACTS


        Duggins was arrested on suspicion of taking merchandise from an unlocked shed behind a

consignment store. His arrest occurred after a witness identified him as the man who approached


the closed store empty handed, looked into the windows and walked to the rear, and then left

carrying two full grocery bags. After    being   read   his Miranda      rights,'   Duggins admitted taking 75

pairs of designer sunglasses worth $1, 500 that were stored in the shed. Officers obtained a warrant

and found two bags of sunglasses in the trunk of his car.

        The State   charged   Duggins with   second         degree   burglary   and second   degree theft.   The


information described the charges as follows:


        COUNT I - BURGLARY IN THE SECOND DEGREE, RCW 9A.52. 030( 1) -
        CLASS B FELONY:


        In that the defendant, TIM MICHAEL DUGGINS, in the State of Washington, on
        or about June 19, 2013, with intent to commit a crime against a person or property
        therein, did enter or remain unlawfully in a building.

        COUNT II - THEFT IN THE SECOND DEGREE, RCW 9A.56. 040( 1)( a),
        RCW 9A. 56. 020( 1)(   a) -   CLASS C FELONY:


        In that the defendant, TIM MICHAEL DUGGINS, in the State of Washington, on
        or about June 19, 2013, did wrongfully obtain or exert unauthorized control over
        property or services of another or the value thereof, with intent to deprive said
        person of such property or services, the value of which exceeds seven hundred and
        fifty dollars ($ 750. 00).

Clerk' s Papers ( CP) at 3.




1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).


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No. 46068 -8 -II



        Pursuant to his        request,      Duggins     was admitted      into a   drug    court program.   He signed a


contract that specified his obligations under the program and the consequences of breaching those

obligations. Item 18 of the contract explained:


        If he /she is terminated from the program, he /she agrees and stipulates that the Court
        will determine the issue of guilt on the pending charge( s) solely upon the law
        enforcement /investigative agency reports or declarations, witness statements, field
        test results, lab test results, or other expert testing, or examination such as
        fingerprint or handwriting comparisons, which constitute the basis for the
        prosecution of        the pending charge( s).        He /She further agrees and stipulates that the
        facts     presentedby              such declarations, statements, and /or expert
                                                  reports,


          examinations are sufficient for the Court to find him/ her guilty of the pending
          charge( s).



CPat6.


          The contract also explained that in signing the contract, Duggins acknowledged that he

understood and agreed to waive the following rights:

          a.       The   right   to   a   speedy trial   pursuant   to C. R. [ sic] 3. 3;
          b.       The right to a public trial by an impartial jury in the county where the crime
          is alleged to have been committed;
          c.       The right to hear and question any witness testifying against the defendant;
          d.       The right .at trial to have witnesses testify for the defense, and for such
          witnesses to be made to appear at no expense to the defendant; and
          e.       The right to testify at trial.

CP at 6. The contract also contained the following paragraph:

                   My attorney has explained to me, and we have fully discussed, all of the
          above   paragraphs. My attorney has explained that my potential sentencing range
          is 22 to 29   and   12+ to 14 months. I understand them all and wish to enter into this

          Drug Court Program Contract. I have no further questions to ask the Judge.

CP at 7. Immediately below that paragraph is Duggins' signature, followed by this language and

defense    counsel' s signature:
No. 46068 -8 -II




                  I have read and discussed this Drug Court Program Contract with the
           defendant and believe that the defendant is competent to fully understand the terms
           of.the Contract.


CP   at   7.   When the request to enter drug court was made, defense counsel referred to Duggins as

the " driving force" behind the request to participate in the program and stated that Duggins had

spent " a      long   time      with   that      contract   this   afternoon."    Verbatim Report of Proceedings ( VRP)


 Nov. 26, 2013) at 4. Defense counsel added that the contract included " all the standard language"


and that he believed Duggins was signing it "with a full knowledge of the requirements of this

court and what        he'   s   getting into." VRP ( Nov. 26, 2013) at 4.


           The trial court found that Duggins had read the entire contract, that defense counsel had


read the contract to Duggins, and that Duggins understood the entire drug court contract. Noting

that Duggins      had " put       a   lot   of   thought    into it,"   the trial court entered the drug court contract. VRP

 Nov. 26, 2013) at 5..


           The trial court terminated Duggins' participation in drug court after he failed to appear at

a scheduled hearing and was arrested on a separate matter. The trial court found that the State had

met   its burden       of proof and              that Duggins was guilty         as   charged.   The trial court then rejected

Duggins' request for a DOSA sentence.2 Based on an offender score of 6 that counted his current

offenses separately, the trial court imposed concurrent standard range sentences of 25 months and

14 months.


           Duggins appeals his convictions and sentences.




2 DOSA is an abbreviation for a Drug Offender Sentencing Alternative imposed under RCW
9. 94A.660.



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No. 46068 -8 -II



                                                               ANALYSIS


A.        JURY TRIAL WAIVER


          Duggins argues that his convictions were entered in violation of his right to a jury trial

and that reversal is required because the record does not show that he made a personal expression

of his desire to waive that right. We disagree.

           A criminal defendant may waive [ his] constitutional right to a jury trial, as long as the

waiver of      that right    is voluntary,     knowing,        and   intelligent."   State v. Hos, 154 Wn. App. 238, 249,

225 P.3d 389,      review     denied, 169 Wn.2d 1008 ( 2010). "                The State bears the burden of establishing

the validity" of such a waiver, and " we must indulge every reasonable presumption against waiver,

absent a sufficient record."             Hos, 154 Wn. App. at 249 -50. We review the validity of a defendant' s

jury   trial   waiver   de   novo.       State v. Ramirez -Dominguez, 140 Wn. App. 233, 239, 165 P. 3d 391

 2007).


          A written waiver is not determinative but is strong evidence that the defendant validly

waived     the   jury   trial   right.      State   v.   Pierce, 134 Wn.         App.   763, 771,   142 P. 3d 610 ( 2006).


Washington courts do not require an extended colloquy on the record; the defendant' s personal

expression of waiver          is   sufficient.   State    v.   Stegall, 124 Wn.2d 719, 725, 881 P. 2d 979 ( 1994) ( no


 colloquy or on- the -record advice as to the consequences of a waiver is required for waiver of a

jury trial "); see   also     State   v.   Downs, 36 Wn.         App.     143, 146, 672 P. 2d 416 ( 1983) (   finding waiver

valid where       defendant        and     his attorney    signed waiver        form), review denied, 100 Wn.2d 1040


 1984).


          Duggins' drug court contract explained that he acknowledged an understanding of, and

agreed    to   waive, "[    t]he right to a public trial by an impartial jury in the county where the crime is



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No. 46068 -8 -II



alleged   to have      been   committed."        CP at 6. Defense counsel stated in court that Duggins had spent


considerable time studying the contract and that he believed Duggins signed it with full knowledge

of its requirements. The trial court found that Duggins had read the entire contract, that his attorney

had read it to him in full, and that Duggins understood all of the contract' s provisions. The record

demonstrates that Duggins knowingly, voluntarily, and intelligently waived his right to a jury trial.

B.        CHARGING DOCUMENT


          Duggins argues next that the information was constitutionally deficient because it failed to

include critical facts. We review this challenge de novo. State v. Williams, 162 Wn.2d 177, 182,


170 P. 3d 30 ( 2007).


          An information must contain all essential elements of a crime to give the accused proper


notice of    the     crime charged so      that he   can prepare an adequate   defense.   Williams, 162 Wn.2d at


183; State      v.   Kjorsvik, 117 Wn.2d 93, 101, 812 P. 2d 86 ( 1991).         To satisfy this requirement, the

information must allege every element of the charged offense and the facts supporting the

elements. State v. Nonog, 169 Wn.2d 220, 226, 237 P. 3d 250 ( 2010).

          We distinguish between charging documents that are constitutionally deficient and those

that   are   merely     vague.     State    v.    Leach, 113 Wn.2d 679, 686 -87, 782 P. 2d 552 ( 1989).       A


constitutionally deficient information is subject to dismissal for failure to state an offense by

omitting allegations of the essential elements constituting the offense charged. Leach, 113 Wn.2d

at   686 -87.    An information that states each statutory element of a crime, but is vague as to some

other significant matter, may be corrected under a bill of particulars. Leach, 113 Wn.2d at 687. A

defendant may not challenge an information for vagueness on appeal if he did not request a bill of

particulars at       trial. Leach, 113     Wn.2d     at   687.
No. 46068 -8 -II



            When a charging document is challenged for the first time on appeal, as it is here, we must

construe     it   liberally in favor   of   its validity. Kjorsvik, 117 Wn. 2d         at   105.   In applying this liberal

construction standard, we read the words in the charging document as a whole and consider

whether the necessary facts appear in any form. Williams, 162 Wn.2d at 185; Kjorsvik, 117 Wn.2d

at   109.    If   they do,   we consider whether      the defendant        was "`   nonetheless actually prejudiced by

the inartful language          which caused      a   lack   of notice. '     Williams, 162 Wn.2d at 185 ( quoting

Kjorsvik, 117 Wn.2d at 105 -06).


            An information may rely on the language of a statute if the statute defines the offense with

certainty. Leach, 113 Wn.2d at 686. There is no additional requirement that the State allege facts

beyond those that support the elements or that the State describe the facts with great specificity.

State v. Winings, 126 Wn. App. 75, 85, 107 P. 3d 141 ( 2005).

            The information in this case charged in the language of the burglary and theft statutes

defining Duggins' crimes. It alleged that on or about June 19, 2013, Duggins entered or remained

unlawfully in a building with intent to commit a crime against a person or property therein. RCW

9A. 52. 030( 1).       It alleged further that on or about June 19, 2013, Duggins wrongfully exerted

control over property or services of another, with intent to deprive said person of such property or

services, the value of which exceeded $ 750. RCW 9A.56. 020( 1)( a); former RCW 9A.56. 040( 1)( a)

 2012).      This language was sufficient to apprise Duggins of the elements of the charged crimes


and the conduct that constituted those crimes.


            But Duggins complains that the failure to specify the building he entered, the items he

allegedly stole, and the victim of his crimes were critical facts that rendered the information vague

and indefinite. Informations alleging crimes that involve an act against another person, as opposed



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No. 46068 -8 -II



to   a specific person,      do   not need   to   state   the   name of   the   victim.   City of Seattle v. Termain, 124

Wn.    App.   798, 805, 103 P. 3d 209 ( 2004).              Nor did the information need to identify the property

taken.     State   v.   Tresenriter, 101 Wn.       App.     486, 494 -95, 4 P. 3d 145, 14 P. 3d 788 ( 2000),      review




denied, 143 Wn.2d 1010 ( 2001).              The remedy for any lack of specificity concerning these details

was .to request a bill of particulars.


           Having found that the information contained all of the essential elements, we would

normally proceed to the second prong of the Kjorsvik test to ask whether vague or inartful language

prejudiced    the       defendant.   117 Wn.2d       at   106.    But Duggins has not argued that he was actually

prejudiced. Rather, he asserts that no showing of prejudice is required. This showing is eliminated

only if the information fails to include the essential elements, which Duggins' information did not.

See Termain, 124 Wn. App. at 803 ( if charging document fails essential elements test, prejudice

test is   not reached).      Nor did Duggins request a bill of particulars, which is the proper mechanism


for obtaining additional information. We hold that the information gave Duggins sufficient notice

of the charged offenses and that his allegation of vagueness is waived.


C.         SAME CRIMINAL CONDUCT


           Duggins argues that he received ineffective assistance of counsel when his attorney failed

to argue during sentencing that his two crimes counted as one offense under the same criminal

conduct rule: A claim of ineffective assistance of counsel is a mixed question of law and fact that


we review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).

           To demonstrate ineffective assistance, Duggins must show that his counsel' s representation


was deficient and that the deficiency was prejudicial. State v. Hendrickson, 129 Wn.2d 61, 77 -78,

917 P. 2d 563 ( 1996).         Counsel' s performance was deficient if it fell below an objective standard




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No. 46068 -8 -II



of reasonableness.          State   v.   McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).                Matters


that   go   to trial strategy      or   tactics do   not show    deficient   performance.    State v. Rainey, 107 Wn.

App. 129,         135 -36, 28 P. 3d 1.0 ( 2001),        review    denied, 145 Wn.2d 1028 ( 2002).            To establish


prejudice, a defendant must demonstrate a reasonable probability that, but for counsel' s errors, the

result of the proceeding would have been different. Hendrickson, 129 Wn.2d at 78. We strongly

presume that counsel was effective. McFarland, 127 Wn.2d at 335.


            As stated, Duggins contends that he received ineffective assistance of counsel when his


attorney failed to argue during sentencing that his burglary and theft convictions constituted the

same    criminal      conduct.          Multiple current offenses are counted separately for offender score

purposes unless           they   encompass     the   same   criminal conduct.      RCW 9. 94A. 589( 1)(      a).   Current


offenses     involve the         same criminal       conduct when     they " require the same criminal intent, are

committed at        the   same    time   and place, and   involve the   same victim."       RCW 9. 94A. 589( 1)( a).

            The State does not dispute Duggins' assertion that his crimes constituted the same criminal


conduct. The State argues, however, that when one ofthe current offenses is burglary, the burglary

antimerger statute gives the sentencing judge discretion to punish a defendant separately for

burglary, even where the burglary and an additional crime encompass the same criminal conduct.

State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 ( 1992).

            The   burglary       antimerger statute,    RCW 9A. 52. 050,       provides   that "[   e] very person who, in

the commission of a burglary shall commit any other crime, may be punished therefor as well as

for the     burglary." Accordingly, the trial court properly exercised its discretion by counting both

of Duggins' convictions toward his offender score. Although the trial court also had discretion to


count the convictions as one, Duggins does not explain why the court would have exercised its



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No. 46068 -8 -II



discretion in his favor had his attorney objected to the State' s calculation of his offender score.

Because Duggins does not show a reasonable probability that an objection would have caused the

trial   court   to   exercise   its discretion   differently,   he   cannot    demonstrate       prejudice.   Therefore, his


ineffective assistance of counsel claim fails.


D.         SAG


           Duggins makes additional allegations of ineffective assistance of counsel in his SAG. He

argues first that counsel should have argued that the value of the sunglasses was less than $ 300,

thus making any theft            conviction a misdemeanor            instead   of a
                                                                                       felony.    Duggins asserts that the


sunglasses sold          for only $6 to $ 10 in the consignment store.


           The police reports show, however, that the sunglasses sold for $20 a pair and that Duggins


confessed       to   taking 75   pairs.   As part of the drug court contract, Duggins conceded that the trial

court could consider the police reports in determining whether the State had proven the crimes

charged. We see no deficient performance in this regard.


           Duggins also argues that his attorney should have argued that he committed only

misdemeanor           trespass because     he did   not enter a      building   that   was either open or closed.            The


record shows, however, that the sunglasses that Duggins admitted taking were stored in a closed

shed. Here again, we see no deficiency in counsel' s failure to make this argument.

           Finally, Duggins asserts that his attorney talked him into the drug court program instead of

fighting his charges at trial. The record shows that Duggins was the driving force behind his entry

into    drug    court.   As he informed the      court, "   It' s something I want. Every time I hear these people

come
         up    and   they have   this certain amount of time clean, that' s what I           want   too....   it' s something

I   need   to do, something I need to         do for   me and    my    family."       VRP (Nov. 26, 2013)       at   4 -5.   The




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No. 46068 -8 -II



fact that Duggins did not succeed in drug court does not mean that his attorney rendered ineffective

assistance in urging the court to accept him into that program.

        We affirm the convictions and sentences.


        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:




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