    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO'N`'
                                                                                                 2O1ti OCT 2.8     t g`' 1 E8: 85
                                                     DIVISION II
                                                                                                  STA                      T

 STATE OF WASHINGTON,                                                            No. 44589 -1 - IgY
                                         Respondent,                     UNPUBLISHED OPINION


          v.




 JOEL KISSLER,


                                         Appellant.



         BJORGEN, A.C. J. —           A jury returned verdicts finding Joel Kissler guilty of unlawful

possession of a controlled substance ( heroin) with intent to deliver, unlawful possession of a

controlled substance ( alprazolam ( Xanax)),             and second degree unlawful possession of a firearm.'


Kissler appeals his convictions and sentence, asserting that the trial court ( 1) violated his CrR 3. 3

timely   trial   right
                         by   granting the State'   s continuance motions over   his   objections, (   2) violated his


right to counsel by allowing him to proceed pro se without adequately informing him of the

potential penalties       he faced if   convicted, (   3) improperly imposed firearm sentencing

enhancements, and ( 4) improperly imposed a variable term of community custody. Additionally,

in his statement of additional grounds for review, Kissler repeats his counsel' s assertion that the

trial court violated his CrR 3. 3 timely trial right. Kissler also asserts in his statement that the trial

court ( 1) violated his right to counsel and his due process rights by allowing the trial to continue

while his standby counsel was absent and ( 2) erred by failing to suppress evidence and witness

testimony based on the State' s late discovery.




1 The jury also returned verdicts finding Kissler not guilty of second degree assault and felony
harassment.
No. 44589 -1 - II



          We conclude that because the trial court properly granted the continuances, it did not

violate   Kissler'   s right   to   a   timely   trial   under   CrR 3. 3.   We also conclude that the trial court did


not violate Kissler' s right to counsel, that it properly imposed the firearm sentencing

enhancements, and that Kissler' s challenges in his statement of additional grounds lack merit.


We note also, though, that a variable term of community custody no longer is permitted under

the case law. Therefore, we affirm Kissler' s convictions and the imposition of his firearm


sentencing enhancements, but remand for correction of his community custody term.

                                                                 FACTS


          On August 21, 2012, Tacoma police officers responded to a report of a domestic violence


incident involving a weapon at Kissler' s apartment. Officer Eric Robison located the alleged

victim and interviewed her at a location near the apartment complex. Officer Sargent Kieszling

observed Kissler exit the back door of his apartment wearing a holster and saw him place a pistol

into a bucket before returning to his apartment. A short time later, after officers requested

Kissler to come outside, Kieszling saw Kissler exit his back door a second time and watched him

manipulate objects in the bucket before returning inside. Shortly thereafter, Kissler exited the

front of his apartment and was arrested without incident.


          During a search incident to Kissler' s arrest, Officer Matthew Graham found a bag of the

prescription medication, alprazolam (Xanax), in Kissler' s pocket. Kissler admitted that he did

not have a prescription for the pills.


          Police obtained 'a search warrant and searched Kissler' s home. Inside Kissler' s home,

police found a large amount of syringes, several small baggies, and a digital scale. Inside the

bucket in Kissler' s backyard, police found a 9mm handgun, a methamphetamine pipe, and two

bags of heroin. On August 22, the State charged Kissler with second degree assault, felony



                                                                     2
No. 44589- 1- 11



harassment, unlawful possession of a controlled substance ( heroin) with intent to deliver, second


degree unlawful possession of a firearm, and unlawful possession of a controlled substance


 alprazolam ( Xanax)).        Kissler was arraigned on August 22 and remained in custody while

awaiting a trial date of October 17.

       On September 11, the trial court held a hearing at which Kissler requested to represent

himself and to have standby counsel appointed. At the hearing, Kissler stated that he did not

have any issues with his then assigned counsel, but that he wished to exercise his right to self-

representation. Kissler also stated that he had successfully represented himself in a previous

criminal trial. The trial court engaged in a lengthy colloquy with Kissler before accepting his

waiver of counsel and appointing standby counsel.


        On October 4, the State moved to continue the start of trial because the newly assigned

prosecutor was unavailable on October 17 due to a previously scheduled vacation out of state.

The State also informed the trial court that the prosecutor had been assigned to a different trial

set to begin on October 18 and was expected to take' four weeks to complete. The trial court


granted the State' s continuance motion over Kissler' s objection, setting a new trial date of

December 4.


        On November 27, the State requested a second continuance, again asserting that the

prosecutor was     in trial   on a   different   matter   that   would   last " well into December," and that


Kissler' s standby counsel was on vacation from December 17 through December 24. Report of

Proceedings ( RP) ( Nov. 27, 2012)          at   1.   Kissler again objected to a continuance, arguing that the

State should have assigned a different prosecutor when it knew that the assigned prosecutor

would be unavailable for trial. The trial court granted the State' s continuance motion over




                                                                 3
No. 44589 -1 - II.



Kissler' s objection based on the prosecutor' s and standby counsel' s unavailability, setting a new

trial date of January 7, 2013.

          On December 27, the State filed an amended information that added allegations of


firearm sentencing enhancements to Kissler' s charges of felony harassment, unlawful possession

of a controlled substance with intent to deliver, and unlawful possession of a controlled

substance. The trial court re- arraigned Kissler and read the State' s amended charges to him.


That same day, the State requested a third continuance. The trial court granted the State' s

motion over       Kissler'    s objection,    setting   a new   trial date   of   January   31, 2013. The trial court


stated   its   reasons   for granting the      continuance as, "[     o] perability testing on firearm needs to be
completed.       Assigned [ prosecutor] has         preassigned       Murder 2[]      case   starting 1/ 14/ 13." Clerk' s


Papers ( CP)      at   263.   On January 17, Kissler moved to dismiss his charges based on a violation of

his timely trial right under CrR 3. 3, which the trial court denied.

          On January 31, the State requested a fourth continuance due to a lack of available

courtrooms that day. The trial court granted the motion, setting a new trial date of February 4.

On February 4 the State informed the trial court that Kissler' s standby counsel would be
unavailable to assist Kissler at the scheduled start of his trial. Kissler stated that he wanted to

proceed to trial without the assistance of standby counsel. The trial court engaged in a colloquy

with Kissler during which Kissler detailed his prior experience representing himself in a jury trial

on criminal charges. The trial court entered an order allowing Kissler to proceed to trial without

the benefit of standby counsel. The trial court also continued the start of trial for one additional

day because the assigned judge was ill. At the start of trial, Kissler renewed his motion for

dismissal based on a violation of CrR 3. 3' s timely trial rule, which the trial court again denied.

           Trial began        on   February   5, 2013. . The    trial court' s special verdict jury instruction stated:



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No. 44589 -1 - II



                    For purposes of a special verdict, the State must prove beyond a reasonable
           doubt that the defendant was armed with a deadly weapon at the time of the
           commission of the crime.

                   A person is armed with a deadly weapon if at the time of the commission of
           the crime the weapon is easily accessible and readily available for offensive or
           defensive   purposes.   The State must prove beyond a reasonable doubt that there
           was a connection between the weapon and the defendant. The State must also prove
           beyond a reasonable doubt that there was a connection between the weapon and the
           crime. In determining whether these connections existed, you should consider
           among other factors the nature of the crime and the circumstances surrounding the
           commission of the crime.

                    A pistol, revolver, or any other firearm is a deadly weapon whether loaded
           or unloaded.




CP   at   193.   The jury returned verdicts finding Kissler not guilty of second degree assault and

felony harassment, and finding Kissler guilty of unlawful possession of a controlled substance

 heroin) with intent to deliver, second degree unlawful possession of a firearm, and unlawful

possession of a controlled substance ( alprazolam ( Xanax)).      The jury also returned special

verdicts finding that Kissler was " armed with a firearm at the time of the commission" of his
unlawful possession of controlled substances crimes. CP at 151 -52.

           The trial court sentenced Kissler to 66 months of incarceration for unlawful possession

with intent to deliver, 6 months of incarceration for second degree unlawful possession of a

firearm, and 6 months of incarceration for unlawful possession of a controlled substance, to be

served concurrently. The trial court also imposed 36 months of incarceration for the firearm

enhancement on Kissler' s unlawful possession with intent to deliver conviction, and 18 months

 of incarceration for the firearm enhancement on his unlawful possession of a controlled

 substance conviction, to be served consecutively to each other and consecutively to his base

 sentence, for a total of 120 months of incarceration. Finally, the trial court imposed a variable

 12 -month community custody term with the notation that " total [ in custody] and community




                                                      5
No. 44589 -1 - II



custody         not    to   exceed stat[ utory] maximum."   CP at 217. Kissler timely appeals his convictions

and sentence.



                                                       ANALYSIS


                                                        I. CrR 3. 3


               Kissler first asserts that the trial court violated his CrR 3. 3 timely trial right by granting

the State' s continuance motions over his objections. We disagree.


               CrR 3. 3( b)( 1)( i) provides that an individual held in custody pending trial must be tried

within 60 days of arraignment. However, certain time periods may be excluded from the

computation of time awaiting trial, including continuances granted by the trial court. CrR

3. 3(   e)(   3).     CrR 3. 3( f)(
                                  2) provides a basis by which a trial court may validly continue the start of

trial, stating:

                            On motion of the court or a party, the court may continue the trial date to a
               specified date when such continuance is required in the administration of justice
               and the defendant will not be prejudiced in the presentation of his or her defense. .
                  The court must state on the record or in writing the reasons for the continuance.
               The bringing of such motion by or on behalf of any party waives that party' s
               objection to the requested delay.

               We will not disturb a trial court' s grant or denial of a continuance motion absent a


showing of manifest abuse of discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P. 2d 1293

 1996).             A trial court abuses its discretion only where it bases its decision on untenable grounds

or for untenable reasons. State v. Williams, 104 Wn. App. 516, 521, 17 P. 3d 648 ( 2001).

               A trial court may properly grant a continuance under CrR 3. 3( f)(2) based on a

prosecutor' s previously scheduled vacation. State v. Torres, 111 Wn. App. 323, 331, 44 P. 3d

903 ( 2002).            As explained in State v: Kelly, 64 Wn. App. 755, 767, 828 P. 2d 1106 ( 1992),

                    f]airness in administration and effective justice requires that responsibly scheduled
               vacations       of deputy prosecutors be honored by the State.        To construe CrR 3. 3
                otherwise would be to deprive deputy prosecutors of the dignity they deserve, and

                                                              6
No. 44589 -1 - II



            would result eventually, in less effective justice as well as in unfairness in the
            administration ofjustice.


            It is also well established that a trial court does not abuse its discretion by granting a

State' s continuance motion based on a prosecutor' s scheduling conflict from a different trial

assignment.         See,   e. g.,   State   v.   Flinn, 154 Wn.2d 193, 200, 110 P. 3d 748 ( 2005) ( " Scheduling


conflicts     may be       considered       in granting   continuances. ");   State v. Carson, 128 Wn.2d 805, 814,


912 P. 2d 1016 ( 1996) ( " Our              courts of appeal have consistently held that unavailability of counsel

may constitute unforeseen or unavoidable circumstances to warrant a trial extension under CrR

3. 3. ");   State   v.   Krause,     82 Wn. App. 688, 698, 919 P. 2d 123 ( 1996) ( " Conflicts in the


prosecuting attorney' s schedule may be considered ` unavoidable' circumstance justifying an

extension of the speedy trial date under CrR 3. 3. ").

            Here, the trial court based its October 4 order granting the State' s first continuance

motion on the prosecutor' s previously scheduled vacation and on the prosecutor' s assignment in

a different trial. Although Kissler objected to the State' s October 4 continuance motion, he did

not argue that he would suffer any prejudice to his defense based on the delay. Because the

prosecutor' s scheduling conflicts were valid reasons for granting a continuance, and because

Kissler did not demonstrate that he would be prejudiced by the continuance, the trial court did

not abuse its discretion by continuing the start of trial. Accordingly, under CrR 3. 3( e)( 3) the

period of this continuance is excluded from the computation of time Kissler had awaited trial

while in custody.

            The trial court similarly based its November 27 decision granting the State' s second

continuance motion on the prosecutor' s assignment in a different trial. Although Kissler


opposed the motion and argued that the State should have replaced the prosecutor trying his case,

he did not assert that his defense was prejudiced by the delay. Accordingly, the trial court did

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No. 44589 -1 - II



not abuse its discretion by granting the continuance, and the period of this continuance is

excluded from the computation of Kissler' s time awaiting trial.2

          Excluding these valid continuances, the State had until February 6 to bring Kissler to
trial.   CrR 3. 3( b)( 1)( ii), (5).   Kissler' s trial commenced on February 5. Accordingly, even

assuming that the trial court erred by granting the State' s remaining continuance motions,

Kissler' s CrR 3. 3 timely trial right would not be violated as a result and, thus, his contention on

this issue fails.


                                                 II. RIGHT TO COUNSEL


           Next, Kissler asserts that the trial court violated his constitutional right to assistance of


counsel when it allowed him to represent himself absent a knowing, intelligent, and voluntary

waiver of     his   right   to   counsel:   Specifically, Kissler contends that his waiver was not knowing,

intelligent, and voluntary because the trial court misinformed him that, apart from his second

degree assault charge, his remaining charges were class C felonies that carried a statutory

maximum sentence of 5 years. In fact, his possession of a controlled substance with intent to

deliver charge was a class B felony carrying a maximum sentence of 10 years. RCW

69. 50. 401( 2)(    a).   Again, we disagree.


           We review for an abuse of discretion a trial court' s decision to grant a criminal

defendant' s request to represent himself or herself at trial. State v. James, 138 Wn. App. 628,

636, 158 P. 3d 102 ( 2007). Criminal defendants have a constitutional right to self representation
                                                                                    -


under both the Sixth Amendment to the United States Constitution and article 1, section 22 of the




2 Kissler contends that his standby counsel' s scheduled vacation was not a valid reason for the
trial court to grant the State' s November 27 continuance motion, but we need not address this
contention because the trial court based its continuance order on both standby counsel' s vacation
and the prosecutor' s conflicting trial assignment.

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No. 44589 -1 - II



Washington Constitution. "                This right is so fundamental that it is afforded despite its potentially

detrimental impact          on    both the defendant          and    the   administration of justice."        State v. Madsen,


168 Wn.2d 496, 503, 229 P. 3d 714 ( 2010) ( citing                             Faretta v. California, 422 U.S. 806, 834, 95 S.

Ct. 2525, 45 L. Ed. 2d 562 ( 1975)).                    The unjustified denial of the right to self representation
                                                                                                    -


requires reversal. State v. Stenson, 132 Wn.2d 668, 737, 940 P. 2d 1239 ( 1997).

        A defendant' s request to self representation
                                       -              must be unequivocal. State v. DeWeese, 117

Wn.2d 369, 376, 816 P. 2d 1 ( 1991).                    Once a defendant unequivocally invokes the right to self -

representation, the trial court must determine if the defendant knowingly, intelligently, and

voluntarily    waives       the   right   to   counsel.      James, 138 Wn.           App.     at   635. Our Supreme Court has


explained the trial court' s obligation in this regard as follows:

         The court should ascertain that the defendant makes the Faretta waiver with at least
         a minimal        knowledge            of   the task involved. [         Bellevue v.] Acrey, 103 Wn.2d [ 203,]
         210[, 691 P. 2d 957 ( 1984)]. A colloquy on the record is the preferred method; but
         in the absence of a colloquy, the record must reflect that the defendant understood
         the seriousness of the charge, the possible maximum penalty involved, and the
         existence of technical procedural rules governing the presentation of his defense.
         Acrey,       103    Wn.2d        at    211.        Whether the criminal defendant' s waiver of the
         constitutional right to be represented by counsel at trial is valid depends on the facts
         and circumstances of each case, and there is no checklist of the particular legal risks
         and disadvantages attendant to waiver which must be recited to the defendant.
            State   v.]   Imus, 37 Wn.          App. [ 170,]    173 - 74[, 679. P. 2d 376 ( 1984)].


DeWeese, 117 Wn.2d at 378.


         Here, Kissler was adamant and unequivocal about his request to self representation,
                                                                             -


explicitly stating that his decision to represent himself was not based on any issues with his .

assigned counsel. Although not required under the applicable case law, the trial court engaged in

a   lengthy   colloquy      with    Kissler, in        which   the   court: (      1) asked if he understood each of the


individual    charges against         him, to         which   Kissler      responded         affirmatively, ( 2) informed him that


the trial   court could not advise              him    on   how to try his         case, (   3) informed him about the jury



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No. 44589 -1 - II



selection process, (   4) told him that he would need to abide by the rules of evidence and the

superior court criminal rules, (      5) informed him that he would have to decide whether to call


witnesses, (   6) informed him that if he chose to testify, he would have to present his testimony by

asking himself     questions and      then   by   answering those   questions, (   7) asked him whether any

threats or promises were made to induce his decision to represent himself, to which Kissler

responded     negatively, ( 8)   informed him that the decision to appoint standby counsel was

discretionary with the court, and ( 9) reviewed with Kissler the State' s previous plea offer. The

trial court further cautioned Kissler:


                I must advised [ sic] you, in my opinion, you' d be far better off to be
         defended by a trained attorney who can represent you rather than representing
         yourself. I think it' s unwise for you to try and represent yourself. This is a very
         complex      case.      Even though you' ve had some familiarity with criminal
         proceedings, looking at the LINX case record for you, I don' t think you' re familiar
         with the law that much by you planning on familiarizing yourself with court
         procedures and       the   rules of evidence.    I don' t think you' ve informed me that you
         really know about those things. You' re going to have to learn about all those things.
         I would strongly urge you not to represent yourself.

Report   of   Proceedings ( RP) ( Sept. 11, 2012) at 9.


         Kissler stated that he understood the difficulties he faced by representing himself and that

he was voluntarily waiving his right to counsel in order to proceed pro se. In light of the trial

court' s detailed colloquy and advice, Kissler' s statement was sufficiently unequivocal under

DeWeese to      ensure   that Kissler " understood the      seriousness of [  his]   charge[ s],   the possible



maximum penalty involved, and the existence of technical procedural rules governing the

presentation of     his defense."     117 Wn.2d at 378.


         As noted, the trial court misinformed Kissler that his charge for possession of a

 controlled substance with intent to deliver was a class C felony carrying a maximum sentence of

 5 years. In fact, this offense is a class B felony carrying a maximum sentence of 10 years. The


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No. 44589 -1 - II



trial court correctly informed him, though, that the maximum penalty he faced for his offenses

was 10 years of incarceration. DeWeese does not require, and Kissler does not cite any case

standing for the proposition that, trial courts must specify in detail the potential penalty as it

relates to each of the defendant' s charges before finding the defendant knowingly, intelligently,

and voluntarily waived the right to counsel. In fact, in discussing penalties, DeWeese, 117

Wn. 2d   at   378,   requires   that the   record reflect     that the defendant "   understood ...   the possible



maximum       penalty involved."       When, as here, the defendant is correctly informed of the

maximum penalty for all offenses, it is difficult to see how incorrect information about the

penalty for an individual offense could make the waiver of the right to counsel less knowing.

Accordingly, we affirm the trial court' s order allowing Kissler to represent himself at trial.

         Kissler also argues that his waiver of counsel was rendered invalid by the trial court' s

failure to inform him of the change in potential punishment when the State amended its

information to include allegations of firearm sentencing enhancements. We disagree.

         United States      v.   Hantzis, 625 F. 3d 575, 581 ( 9th Cir. 2010), recognized that a new


inquiry into self representation
                  -              may be required if "circumstances have sufficiently changed

since the date of the Faretta inquiry that the defendant can no longer be considered to have

knowingly      and    intelligently   waived    the   right   to   counsel."   In State v. Modica, 136 Wn. App. 434,

444 -45, 149 P. 3d 446 ( 2006),        Division One of our court held that the trial court did not err by

failing to sua sponte engage a defendant who had waived the right to counsel in a second full

 colloquy informing him of the maximum penalty after a new charge was added. In Modica,

 though, the court asked the defendant on two occasions after the charge was added whether he

 still wished to proceed pro se and on one occasion advised him again not to do so. Modica, 136

 Wn. App. at 446. Here, in contrast, the trial court did not ask Kissler after,the firearm


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No. 44589 -1 - II



enhancements were added if he still wished to proceed pro se. Thus, Modica is of little

instruction in this appeal.


         DeWeese, however, is on point. As noted, to ensure a valid waiver of the right to


counsel,   the   record must reflect,    among   other matters,   that the   defendant "   understood ...   the



possible maximum           penalty involved."    117 Wn.2d at 378. Here, the trial court correctly

informed Kissler before his waiver that his maximum penalty would not exceed 10 years. Under

RCW 9. 94A.599, the addition of the firearm enhancements could not extend Kissler' s sentence

beyond the maximum of 10 years. Therefore, the amendment of the charges to allege firearm

sentencing enhancements did not make Kissler' s waiver any less knowing, intelligent, or

voluntary.


                                                  III. SENTENCING


1.        Firearm Sentence Enhancements


          Kissler contends that the trial court impermissibly imposed firearm sentence

enhancements when the jury' s special verdict instruction stated that the State had to prove

beyond a reasonable doubt that he was armed with a " deadly weapon" during the commission of

his   crimes.    CP   at   193.   We disagree.


          Kissler argues that his firearm sentencing enhancements must be vacated in light of our

Supreme Court' s opinion in State v. Williams -Walker, 167 Wn.2d 889, 898 -99, 225 P. 3d 913

 2010).    Williams -Walker held that the imposition of a firearm sentencing enhancement violates

the defendant' s constitutional right to a jury trial where the jury found by special verdict that the

defendant was armed with a deadly weapon. This case is distinguishable, however, as here the

 State charged Kissler with a firearm enhancement and the jury found by special verdict that he

 was armed with a " firearm" during the commission of his offenses. CP at 151 -52. Thus, the


                                                          12
No. 44589 -1 - II



issue here is not whether the trial court imposed a firearm enhancement absent a jury finding in

violation of       Kissler'   s constitutional   jury   trial   right, as   in Williams -Walker. 167 Wn.2d at 899-


900. Rather, the issue presented is whether the trial court erroneously instructed the jury on the

requirements in reaching its firearm finding. The trial court' s special verdict instruction stated:

                        For purposes of a special verdict, the State must prove beyond a reasonable
            doubt that the defendant was armed with a deadly weapon at the time of the
            commission of the crime.

                    A person is armed with a deadly weapon if at the time of the commission of
            the crime the weapon is easily accessible and readily available for offensive or
            defensive      purposes.   The State must prove beyond a reasonable doubt that there
            was a connection between the weapon and the defendant. The State must also prove
            beyond a reasonable doubt that there was a connection between the weapon and the
            crime. In determining whether these connections existed, you should consider
            among other factors the nature of the crime and the circumstances surrounding the
            commission of the crime.

                         A pistol, revolver, or any other firearm is a deadly weapon whether loaded
            or unloaded.




CP    at   193 (   emphasis added).     Kissler did not object to this instruction and, thus, waived his


contention with the instruction on appeal. State v. Bailey, 114 Wn.2d 340, 345, 787 P. 2d 1378

 1990).      A pro se litigant is held to the same standard as an attorney. See, e. g., State v. Bebb, 108

Wn.2d 515, 524, 740 P. 2d 829 ( 1987) ( pro se defendants must conform to substantive and


procedural rules and courts are under no duty to inform a pro se defendant of the relevant rules of

law); State        v.   Smith, 104 Wn.2d 497, 508, 707 P. 2d 1306 ( 1985) (              a pro se litigant must comply

with all applicable procedural rules).             Further, even if Kissler had not waived this issue on


appeal, any error in the trial court' s instruction was harmless.

            The instruction provided by the trial court differs from the standard firearm enhancement

jury   instruction, 11 Washington Pattern               Jury     Instructions: Criminal (WPIC) 2. 10. 01, at 54 ( 3d


ed.   2008), in that it only       replaced "    firearm"       with "   deadly   weapon," and replaced   the   phrase, "   A


 firearm' is a weapon or device from which a projectile may be fired by an explosive such as



                                                                   13
No. 44589 -1 - II



gunpowder,"       with " A pistol, revolver, or any other firearm is a deadly weapon whether loaded or

unloaded."    WPIC 2. 10. 01; CP         at   193.   The trial court' s error in replacing " firearm" with "deadly

weapon" was harmless in light of the jury' s special verdict form, which required the jury to find

that Kissler was armed with a " firearm" in order to return the special verdict. In addition, the


trial court' s omission of the specific definition of a firearm as " a weapon or device from which a


projectile may be fired by an explosive such as gunpowder" was harmless in light of Kissler' s

stipulation   that the   firearm   at   issue   was " operational and capable of       firing   projectiles."   CP at 83.


Accordingly, we affirm the trial court' s imposition of firearm sentence enhancements.

2.      Variable Community Custody Term

        Next, Kissler asserts that the trial court erred by imposing a variable term of community

custody. The State concedes error. We accept the State' s concession and remand for a
correction of Kissler' s sentence.


        RCW 9. 94A.701 provides in relevant part:

         3) A court shall, in addition to the other terms of the sentence, sentence an offender
        to community custody for one year when the court sentences the person to the
        custody of the department for:

         c)   A   felony   offense under chapter         69. 50...    RCW, committed on or after July 1,
        2000;


         9) The term of community custody specified by this section shall be reduced by
        the court whenever an offender's standard range term of confinement in
        combination with the term of community custody exceeds the statutory maximum
        for the crime as provided in RCW 9A.20. 021.


Under RCW 9. 94A.701, "            a court may no longer sentence an offender to a variable term of

community custody [ that is] contingent on the amount of earned release but instead, it must

determine the      precise   length     of   community custody       at   the time of sentencing."    State v. Franklin,


 172 Wn.2d 831, 836, 263 P. 3d 585 ( 2011).               Here, the trial court sentenced Kissler to 120 months



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No. 44589 -1 - II



of incarceration for his unlawful possession of a controlled substance with intent to deliver

conviction with a firearm enhancement, the statutory maximum sentence for that offense.

Therefore, the trial court was required under RCW 9. 94A.701( 9) to reduce Kissler' s community

custody term to zero. The trial court' s variable community custody term does not comport with
RCW 9. 94A.701.     Franklin, 172 Wn.2d at 836. Accordingly, we remand to the trial court to

issue a corrected judgment and sentence consistent with this opinion.


                         IV. STATEMENT OF ADDITIONAL GROUNDS ( SAG)


        In his SAG, Kissler first repeats his appellate counsel' s contention that the trial court


violated his CrR 3. 3 timely trial right. Because we have rejected this contention as argued by

appellate counsel, we do not readdress it here.

        Next, Kissler contends in his SAG that the trial court violated his right to counsel when it

allowed the trial to commence without standby counsel present. Kissler, however, waived his

right to the assistance of counsel, and there is no corresponding constitutional right to the

assistance of standby counsel. See State v. Silva, 107 Wn. App. 605, 626 -27, 27 P. 3d 663 ( 2001)

   T] here is no federal constitutional right to standby counsel and no Sixth Amendment right to

hybrid representation wherein a defendant serves as co- counsel with his attorney. Moreover,

once a defendant has validly waived his right to counsel, he may not later demand the, assistance

of counsel as a matter of right." (   Internal footnotes   omitted.)).   Further, even if Kissler had a


right to the assistance of standby counsel, he waived that right at the start of trial after engaging

 in a colloquy with the trial court. Accordingly, Kissler' s claim that the trial court violated his

 right to counsel by allowing him to proceed without the benefit of standby counsel lacks merit.

         Finally, Kissler contends in his SAG that the trial court erred by failing to suppress

 evidence and witness testimony based on the State' s late discovery. Kissler did not move the


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No. 44589 -1 - II



trial court to suppress evidence based on the State' s late discovery. Because he does not claim in

this appeal that the admission of this evidence violated either the state or federal constitution, he

may   not raise   the   issue for the first time   on appeal under   RAP 2. 5(   a)(   3).   Accordingly, we do not

further address this contention.


        We affirm Kissler' s convictions and the trial court' s imposition of firearm sentencing

enhancements, but remand for a correction of Kissler' s sentence with regard to his improper

variable community custody term.

        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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