                                                                                                                               LED
                                                                                                                      COURT O /% PP,: A1 S
                                                                                                                                   IS{ Cl[ ?   T
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                             DIVISION II
                                                                                                                     S T,

In re the Personal Restraint Petition of:                                                      No. 45994 -9 -II s •,,
JEFFERY LAMONT RANDALL,


                                               Petitioner.


                                                                                        UNPUBLISHED OPINION




         MELNICK, J. —              In this     personal restraint petition (          PRP),   Jeffrey Randall petitions us to

vacate his convictions for two counts of unlawful delivery of a controlled substance to a minor

with sexual motivation and two counts of involving a minor in a drug transaction to deliver a

control substance. Randall argues his restraint is unlawful because ( 1) the trial court violated his

right   to be     present, (     2) his    convictions rest on           insufficient     evidence, (   3) the State committed


prosecutorial misconduct, (              4) the State        violated   his   right   to be free from double       jeopardy, ( 5)    the


appellate record          is incomplete, ( 6) the State            engaged       in   discovery    violations, (   7) the trial court


violated    his     right   to a   unanimous verdict, (          8) his time for trial rights were violated, and ( 9) he

received ineffective assistance of trial and appellate counsel.


         We deny Randall' s petition because ( 1) Randall fails to establish that the trial court violated
his   right    to    be     present, (    2)    his    convictions      are    supported     by    sufficient   evidence, (   3)     the



prosecutorial        misconduct          claims       were   already    addressed on       direct   appeal, (   4) Randall fails to


establish     that   he   was punished multiple              times for the     same crime, (   5) Randall fails to show that an


inadequate        appellate record caused actual and substantial prejudice, (                        6) Randall fails to meet his


burden to     prove       that   discovery      violations occurred, (        7) the unanimous verdict claims were already


addressed on         direct      appeal, (     8) Randall fails to       establish     his trial   was set outside     CrR 3. 3 time
45994 -9 -II



limits, the trial court abused its discretion when it granted continuances, or that his trial delay was

presumptively prejudicial, and ( 9) Randall fails to show. that his trial counsel' s and appellate

counsel' s performance was deficient.


                                                       FACTS'


         In spring 2008, HT and VN, 15 year-old females, attended Tacoma high schools. Randall,

a 40 -year-old male, had a reputation among the students for providing alcohol, marijuana, and

transportation.    HT and VN met Randall through friends and started regularly buying marijuana

from him.


         From approximately March to early June 2008, Randall picked up HT and VN every day

after school.    They   drove   around   Pierce   County     selling   marijuana out of   his   car.   Before Randall


permitted   HT    and   VN to   sell marijuana,   he   put   them through    loyalty   tests.   These tests included


talking about themselves while naked, kissing him, and taking their shirts off for him. Eventually,

he   required each girl   to have   sexual   intercourse     with   him. Randall knew that HT and VN were


only 15 years old at the time and that they did not want to engage in intercourse with him. After

they passed the loyalty tests, HT and VN participated in Randall's sales by weighing marijuana,

collecting money, and selling marijuana at school.


         Randall regularly gave HT and VN marijuana and alcohol for their own use and he

sometimes gave them a portion of the sale proceeds as compensation.


         In late April or early May 2008, another high school student reported to police rumors that

Randall had     raped   HT   and   VN.   In June 2008, a Tacoma police officer arrested Randall .on an

unrelated warrant. In a search incident to arrest, law enforcement located marijuana in the interior




  Unless otherwise indicated, the facts are taken from this court' s unpublished opinion of
Randall' s direct appeal. State v. Randall, noted at 175 Wn. App. 1061, 2013 WL 3963473.

                                                             2
45994 -9 -II




compartment of Randall' s car. Randall was charged and pleaded guilty to possession of marijuana

in Tacoma Municipal Court.


            In jail, a detective interviewed Randall about the rape and drug allegations relating to HT

and   VN.        The State, by a third amended information, charged Randall with four counts of third

degree child rape, two counts of involving a minor in a drug transaction, and two counts of

unlawful delivery with sexual motivation. The third amended information did not include specific

dates for the offenses, stating that the offenses had occurred between March 1 and June 4, 2008.

Randall acknowledged receipt of the amended information, waived formal reading, waived any

objection to the amendment, and pleaded not guilty.

            Prior to trial, the trial court granted 19 continuances to accommodate appointed counsel' s


withdrawal and appointment of new defense counsel, defense counsel' s requests for additional

time, defense counsel' s unavailability due to scheduling conflicts, the prosecutor' s unavailability

due to scheduling conflicts, the trial court' s determination that it would be unable to complete trial

efficiently because of scheduling conflicts, and Randall' s filing of an affidavit of prejudice against

the assigned trial court judge.


            At trial, HT and VN testified consistently with the facts outlined above and admitted that

they had lied during the initial police interviews, that they had lied to their parents, and that they

could not remember specific dates or times of the events occurring nearly three years earlier.

                                    Petrich2
                                                                  instruction             to                  The trial
            Randall    proposed a              unanimity   jury                 related        each charge.




court refused, reasoning that the evidence established a continuing course of conduct involving an

ongoing enterprise with a single objective.




2
    State   v.   Petrich, 101 Wn. 2d 566, 683 P. 2d 173 ( 1984),      modified in part by State v. Kitchen, 110
Wn.2d 403, 756 P. 2d 105 ( 1988).



                                                           3
45994 -9 -II




          The jury acquitted Randall of the rape charges. The jury found Randall guilty of two counts

of involving a minor in a transaction to deliver a. controlled substance and two counts of unlawful

delivery      of a controlled substance       to   a minor.    The jury also found that Randall committed the

unlawful deliveries with sexual motivation.


          Randall filed a direct appeal and, in relevant part, Randall argued that the trial court

violated his right to a unanimous verdict because the trial court did not give a Petrich instruction

and failure to do so was not harmless, and that insufficient evidence supported the jury's finding

of sexual motivation.             Randall raised numerous other arguments in his statement of additional


grounds (      SAG),    including prosecutorial misconduct, discovery violations, time for trial rights

violations, and an incomplete appellate record prejudiced him.

          We held, in relevant part, that the failure to give a Petrich instruction constituted harmless


error, sufficient evidence supported the jury's sexual motivation findings, and Randall' s remaining

SAG claims were not preserved for appeal, were too vague, or were reliant on matters outside the


record;       therefore this court     did   not   further   consider   his   arguments.   This court affirmed the


convictions.



                                                       ANALYSIS


          A PRP will be granted only if the petitioner is under an unlawful restraint. RAP 16. 4; In

re   Pers. Restraint of Yates, 177 Wn.2d 1, 16, 296 P. 3d 872 ( 2013).. A PRP is not a substitute for


a    direct   appeal.   In   re   Pers. Restraint of Hagler, 97 Wn.2d 818, 824, 650 P. 2d 1103 ( 1982).


Accordingly, there are limits on the use of a PRP to collaterally attack a conviction. Hagler, 97

Wn.2d at 824.




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45994 -9 -II



        When considering constitutional arguments raised in a PRP, we must decide whether the

petitioner can show that a constitutional error caused actual and substantial prejudice. Hagler, 97

Wn.2d   at     826.    If the petitioner fails to make a prima facie showing of actual and substantial

prejudice caused by constitutional error, we must deny the PRP. In re Pers. Restraint ofHews, 99

Wn. 2d 80, 88, 660 P. 2d 263 ( 1983).            If the petitioner makes a prima facie showing of actual and

substantial prejudice from a constitutional error but the record is not sufficient to determine the

merits, we should remand             for   a reference   hearing.   Hews, 99 Wn.2d     at   88.   If, however, we are


convinced the petitioner has proven actual and substantial prejudice from a constitutional error,

we will grant the petition. Hews, 99 Wn.2d at 88.


        When considering nonconstitutional arguments, we must decide whether the petitioner has

established that the claimed error is " a fundamental defect which inherently results in a complete

miscarriage of        justice."   In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P. 2d 506 ( 1990).

        Whether it          raises   constitutional      or   nonconstitutional   issues, a PRP must state with


particularity the factual allegations underlying the petitioner' s claim of unlawful restraint. In re

Pers. Restraint of Rice, 118 Wn.2d 876, 885- 86, 828 P. 2d 1086 ( 1992).                          Bald assertions and


conclusory allegations are not sufficient. Rice, 118 Wn.2d at 886.

        Further, the factual allegations must have evidentiary support. Rice, 118 Wn.2d at 886. If

the trial court record does not support the factual allegations, then the petitioner must show through

affidavits or other forms of corroboration that competent and admissible evidence will establish


the factual allegations. Rice, 118 Wn.2d at 886. The petitioner may not rely on mere speculation,

conjecture, or inadmissible hearsay. Rice, 118 Wn.2d at 886.




                                                                5
45994 -9 -II




           Lastly,   a   PRP cannot       renew an      issue that   was raised and rejected on         direct   appeal, " unless




the interests of justice        require relitigation of      that issue."        In re Pers. Restraint ofDavis, 152 Wn.2d

647, 671, 101 P. 3d 1 ( 2004). An issue was raised and rejected on direct appeal if the direct appeal


determined the issue' s merits adversely to the petitioner. In re Davis, 152 Wn.2d at 671 n. 14. As

the Washington Supreme Court has explained,

           This burden         can   be   met   by   showing   an   intervening        change   in the law ""    or some


           other justification for having failed to raise a crucial point or argument in the prior
           application.""    In re Personal Restraint of Gentry, 137 Wn.2d 378, 388, 972 P. 2d
           1250 ( 1999) ( quoting [ In re Pers. Restraint of] Taylor, 1.05 Wn.2d [ 683], 688[, 717
           P. 2d 755 ( 1986)] ( quoting Sanders v. United States, 373 U. S. 1, 16, 83 S. Ct. 1068,
           10 L. Ed. 2d 148 ( 1963))).     A defendant may not recast the same issue as an
           ineffective assistance claim; simply recasting an argument in that manner does not
           create a new ground for relief or constitute good cause for reconsidering the
           previously rejected claim. In re Personal Restraint ofBenn, 134 Wn.2d 868, 906,
           952 P. 2d 116 ( 1998).


In   re   Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P, 3d 1 ( 2001). "`                          Simply ` revising' a

previously     rejected     legal     argument ...      neither creates a ` new' claim nor constitutes good cause to


reconsider     the original         claim."'    In re Pers. Restraint ofLord, 123 Wn.2d 296, 329, 868 P. 2d 835

 1994) (    alterations    in   original) (     quoting In re Pers. Restrain ofJeffries, 114 Wn.2d 485, 488, 789

P. 2d 731 ( 1990)).


I.         RIGHT TO BE PRESENT


           Randall argues that the trial court violated his constitutional right to be present when it

failed to recall Randall to court before hearing and answering a jury question and by failing to

make an adequate record. We disagree.


           The only support for Randall' s position that the trial court heard and answered a jury

question outside          his   presence .is     his   mere allegation.         The record contains no evidence that this


event occurred.           In    a   letter. to Randall, Randall'         s   trial   counsel   informed him that     she " cannot




provide [ Randall] with an Affidavit (or Declaration) regarding whether or not the jury sent out a


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45994 -9 -II




question before they returned their verdict(s) because [ she is] not certain that it happened and [ she]

cannot    find   a record of    it   happening." Personal Restraint Petition (PRP) at Ex. A8. Randall' s trial

counsel further stated she contacted " the prosecutor to find out if she remembered a question from


the jury" and that the prosecutor did not. PRP at Ex. A8. Randall also presented a letter from his

appellate counsel       in   which she stated         that " no    jury   question was reflected   in the   record—   either in


the transcript,    nor [ sic]   in the     clerk' s papers."        PRP at Ex. A10.


          Because this evidence does not demonstrate that the trial court actually addressed a jury

question and the trial record is void of any such occurrence, Randall' s claim fails. See Rice, 118

Wn.2d at 886.


H.           SUFFICIENCY OF THE EVIDENCE


             Randall   argues   that    each of     his   convictions rests on      insufficient   evidence.   We disagree.


The State presented sufficient evidence for the jury to find Randall involved minors in drug

transactions.


              A conviction based on insufficient evidence contravenes the due process clause of the

Fourteenth Amendment                 and   thus   results   in   unlawful restraint."   In re Pers. Restraint ofMartinez,

171 Wn.2d 354, 364, 256 P. 3d 277 ( 2011). "                      Evidence is sufficient to support a finding of guilt if,

after viewing the evidence in the light most favorable to the State, a rational trier of fact could find
the   essential elements of          the crime beyond            a reasonable   doubt.", State v. Rose, 175 Wn.2d 10, 14,


282 P. 3d 1087 ( 2012). "            A claim of insufficient evidence admits the truth of the State' s evidence

and all      inferences that    reasonably         can   be drawn from that       evidence."   State v. Caton, 174 Wn.2d


239, 241, 273 P. 3d 980 ( 2012). We treat circumstantial and direct evidence with equal reliability.


State   v.   Delmarter, 94 Wn. 2d 634, 638, 618 P. 2d 99 ( 1980).                   We defer to the trier of fact on issues




                                                                      7
45994 -9 -II




of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Thomas, 150 Wn.2d 821, 874- 75, 83 P. 3d 970 (2004), aff'd, 166 Wn.2d 3 80, 208 P. 3d 1107 (2009).

         A.        Involving a Minor in a Transaction to Deliver a Controlled Substance

         Involving a minor in a transaction to deliver a controlled substance requires a person to

compensate, threaten, solicit, or in any other manner involve a person under the age of eighteen in

a transaction unlawfully to manufacture, sell, or deliver a controlled substance. RCW 69.50. 4015.

Taken in the light most favorably to the State, sufficient evidence existed that Randall compensated

and involved HT and VN in the sale of marijuana throughout Pierce County. The evidence came

from HT    and    VN'   s   testimony. HT and VN, both 15 years old, testified that Randall had HT and

VN weigh and package marijuana for sale and sell marijuana from his car in numerous locations

throughout Pierce County and at their schools every day from approximately March 1 to June 4,

2008.


         In viewing the evidence in the light most favorable to the State, a reasonable jury could

have found the elements of the crime beyond a reasonable doubt. Therefore, we reject Randall' s

claim.



         B.        Unlawful Delivery of a Controlled Substance to a Minor

         Unlawful delivery of marijuana to a minor requires a person over the age of eighteen to

distribute any controlled substance, including marijuana, to a person under eighteen who is at least

three   years   his junior. RCW 69. 50. 406( 2). HT and VM testified that Randall, a person more than


three years older than them, gave them marijuana. Several witnesses corroborated this testimony.


         In viewing the evidence in the light most favorable to the State, a reasonable jury could

have found the elements of the crime beyond a reasonable doubt. Therefore, we reject Randall' s

claim.




                                                       E?
45994 -9 -II



         C.        Sexual Motivation


         Randall next argues that that the jury' s sexual motivation findings associated with his

unlawful      delivery   to   a minor convictions are unsupported           by   sufficient evidence.   Randall raised


this   same argument          in his direct    appeal.      We rejected it because the victims' testimony provided

sufficient evidence       to    support      the    jury' s finding. State v. Randall, noted at 175 Wn. App.. 1061,

2013 WL 3963473,              at *   6.   In his PRP, Randall simply recasts this same argument and he fails to

establish that the interests of justice require relitigation of the issue. See Davis, 152 Wn.2d at 671.

Therefore, we do not consider this argument.


1II.     PROSECUTORIAL MISCONDUCT


         Randall argues that the State committed misconduct by filing an amended information with

additional charges. Because we already addressed this issue in the direct appeal and Randall fails

to establish that the interests of justice require relitigation of the issue, we do not allow Randall to

renew these arguments.


         At trial, Randall expressly waived any objection to the State' s third amended information.

Randall, 2013 WL 3963473,                     at *    9.   On direct appeal, we held that Randall' s prosecutorial

misconduct claim failed because he did not meet his burden to show that the misconduct was so

flagrant or ill -intentioned that the trial court could not have cured the error by instructing the jury.

Randall, 2013 WL 3963473,                    at *    9 ( citing State v. Weber, 159 Wn.2d 252, 270, 149 P. 3d 646

 2006), cert. denied, 551 U. S. 1137 ( 2007)).


          Randall now argues that we erred. In support of his argument, Randall presents evidence

that he objected to the State' s amended information in April of 2010. However, the objection went

to the second amended information. The State filed a third amended information to which Randall

did not object. He expressly waived any objection. Randall also fails to carry his burden to show



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45994- 9- 11



                                                                                     3
that the interests       of   justice   require   relitigation    of   this issue.       See Davis, 152 Wn.2d at 671.


Therefore, we reject Randall' s claim.


IV.         DOUBLE JEOPARDY


            Randall first argues that the State presented the same evidence used to convict him of

misdemeanor possession of marijuana on June 16, 2008 in a separate proceeding to prove his

felony convictions in this case, thus violating his right to be free from double jeopardy. Because
Randall fails to establish that he was punished for the same crime multiple times, his claim fails.

            The double jeopardy clause of the Fifth Amendment to the United States Constitution

provides      that "[ n] o   person shall ...     be subject for the same offense to be twice put in jeopardy of

life   or   limb."   The double jeopardy clause bars multiple punishments for the same offense. State

v.   Villanueva—Gonzalez, 180 Wn.2d 975, 980, 329 P. 3d 78 ( 2014). "`                            In order to be the same


offense      for. purposes     of   double   jeopardy[,]   the   offenses must       be the   same   in law   and   in fact.   If


there is an element in each offense which is not included in the other, and proof of one offense

would not necessarily also prove the other, the offenses are not constitutionally the same and the

double j eopardy       clause    does   not prevent convictions        for both   offenses. "'   State v. Calle, 125 Wn.2d


769, 777, 888 P. 2d 155 ( 1995) ( internal             quotation marks omitted) (          quoting State v. Vladovic, 99

Wn.2d 413, 423, 662 P. 2d 853 ( 1983)).


             Randall seems to argue that his conviction for misdemeanor marijuana possession was


prosecuted a second time in this case. But the offenses are not the same in law and fact. Randall

asserts, and the evidence he presents demonstrates, that he was convicted by guilty plea of

misdemeanor possession of marijuana                   based   on events     occurring      on    June 16, 2008.      Randall' s




3 Randall also fails to make a prima facie showing of actual and substantial prejudice resulting
from the additional charges. See Hews, 99 Wn.2d at 88.




                                                                 10
45994 -9 -II



felony offenses for two counts of unlawful delivery and two counts of involving a minor occurred

between March 1           and   June 4, 2008. Randall, 2013 WL 3963473,                 at *   3.   Randall fails to establish


a connection between the marijuana involved in the offenses that occurred between March 1 and

June 4   and   the   marijuana     in his   possession on         June 16.    Therefore, he has failed to establish that


he was punished twice for the same offense. We reject Randall' s claim.

V.        APPELLATE RECORDS


          Randall argues that the appellate record is incomplete because the transcript's he received


do not contain any report of proceedings from June 2008 to November 2009, making it "unfair and

prejudicial to review the adequacy of the court findings and impossible to determine the actions of

the   court['] s conduct."       PRP at 28. Randall raised this claim in his direct appeal, but we could not

address    the issue      on    direct   appeal   because it lacked          an   adequate record.       Randall, 2013 WL


3963473,     at *   10.


          Randall fails to show that the lack of complete records caused actual and substantial


prejudice.     See Hagler, 97 Wn.2d               at   826.   Under RAP 9. 2( b),       the party must arrange for the

transcript of all the portions of the verbatim report of proceedings necessary to present the issues

raised to be submitted to the appeals court. Although Randall claims that he cannot " completely

address    all of    his issues," he fails to          identify   what   issues to   which     he is referring.   PRP at 29.


Furthermore, Randall has failed to provide us with any evidence or factual allegations, through

declarations or any other way, to support his argument.4 Thus, Randall' s claim fails.




4 Randall also raises an ineffective assistance of counsel claim relating to an incomplete appellate
record. But again Randall fails to identify which issues he is unable to address and is therefore
unable . to establish that his appellate counsel' s performance was deficient or that he was
prejudiced.




                                                                   11
45994 -9 -II



VI.           BRADY AND DISCOVERY VIOLATIONS


              Randall argues that the State violated his due process rights through Brady5 and discovery

violations.          Because Randall fails to meet his burden to prove that violations occurred, his claim

fails.


              The State violates a defendant' s rights to due process when it suppresses evidence that is

material to either guilt or punishment, regardless of whether the prosecutor acted in good faith.

Strickler      v.    Greene, 527 U. S. 263, 280, 119 S. Ct. 1936, 144 L. Ed. 2d 286 ( 1999) (          citing Brady,

373 U. S.       at   87).   To establish a Brady violation, the defendant must show that the State suppressed

evidence favorable to the defendant and the suppression prejudiced the defendant. Strickler, 527

U. S.    at   281- 82.       The State must disclose both impeaching and exculpatory evidence, and the

prosecutor must disclose all favorable evidence known to either the prosecutor or the police.

Strickler, 527 U. S.          at   280- 81. A defendant   can show prejudice "`   if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would have been

different."'         Strickler, 527 U. S. at 280 ( quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.

Ct. 3375, 87 L. Ed. 2d 481 ( 1985)).


              Randall first seems to argue that the State engaged in a Brady violation when it failed to

make witnesses available for the defense to interview. It is true that the State objected to Randall' s

motion to re -interview the victims, but the trial court denied Randall' s motion. Therefore, Randall

fails to prove that the State suppressed the evidence. See Strickler, 527 U.S. at 281- 82.

              Randall next argues that the State' s failure to disclose an e- mail from one of the victim' s

pediatricians prejudiced him. Randall raised this same argument in his direct appeal, and we held

that because the State provided Randall with the e- mail several months before his trial, he cannot



5
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).

                                                               12
45994 -9 -II



                                                 6
show prejudice and        his   claim   fails.       See Randall, 2013 WL 39634,73,            at *   10.   Randall fails to

establish that the interests ofjustice require relitigation of this issue. See Davis, 152 Wn.2d at 671.

We do not readdress this argument.


         Randall next seems to argue that the trial court conducted an improper in camera review

of "potentially   exculpatory"       evidence and           the State failed to disclose it. PRP at 36.         It is unclear


to what evidence Randall is referring and he fails to show that the evidence would have been

favorable to him. See Strickler, 527 U. S. at 281- 82. Therefore, Randall' s claim fails.

VII.     PETRICH INSTRUCTION


         Randall argues that the trial court' s failure to give a Petrich instruction violated his right

to   a unanimous verdict.        Randall raised this same issue in his direct appeal and we held that any

error   was harmless.      See Randall, 2013 WL 3963473,                 at *   5.   In his PRP, Randall simply recasts

the issue he   raised    in his direct   appeal.           He fails to carry his burden to show that the interests of

justice require relitigation of this issue. See Davis, 152 Wn.2d at 671. Therefore, he cannot renew

the' argument now. See Davis, 152 Wn.2d at 671.


VIII.    TIME FOR TRIAL


         Randall first asserts that the trial court violated his speedy trial rights under CrR 3. 3 because.

it granted continuances over his objection. Randall fails to demonstrate that the trial court abused

its discretion by granting any of the continuances or that his trial occurred outside the trial time

limits. Furthermore,. because Randall failed to move the trial court to set a date within CrR 3. 3


time, he has waived this issue. Randall' s claim fails.




6 The State originally provided the e- mail approximately a week before Randall' s scheduled trial.
The trial court granted a continuance of the trial date for a number of reasons. See Randall, 2013
WL 3963473,       at *   10.    Asa result, Randall had the e- mail several months before his actual trial.
See Randall, 2013 WL 3 963 473,             at *     10.



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45994 -9 -II



            CrR 3. 3      sets   times     for trial; however,          a "[   t] rial within 60 days is not a constitutional


mandate."         State    v.    Terrovona, 105 Wn. 2d 632, 651, 716 P. 2d 295 ( 1986).                               Nor is there any

 constitutional basis for holding that the speedy trial right can be quantified into a specified number

of   days   or months."          Barker v. Wingo, 407 U. S. 514, 523, 92 S. Ct. 2182, 33 L. Ed. 2d 101 ( 1972).


Moreover, a trial court may continue a trial under CrR 3. 3( f)(2) when a continuance is " required

in the administration of justice" and the " defendant will not be prejudiced" in the presentation of

his defense. The reasons for the continuance must be on the record or in writing. CrR 3. 3( f)(
                                                                                              2).

            Absent a showing of manifest abuse of discretion, we will not disturb a trial court' s grant

or denial of a continuance or extension request. State v. Williams, 104 Wn. App. 516, 520- 21, 17

P. 3d 648 ( 2001).         A trial court abuses its discretion if it bases its decision on untenable grounds or .


for   untenable reasons.            Williams, 104 Wn.            App.   at   521.   It is not a manifest abuse of discretion for


a trial court to grant a continuance to allow defense counsel an opportunity to prepare for trial,

even over the defendant' s express objections, in order to ensure effective representation and a fair

trial.    Williams, 104 Wn.              App.    at   523.    Similarly, CrR 3. 3( e)( 8) allows a trial court to extend the

time of trial     for "[ u] navoidable           or unforeseen circumstances."              Our courts have consistently held

that the unavailability of counsel may constitute an unforeseen or unavoidable circumstance,

warranting a trial extension. See State v. Carson, 128 Wn.2d 805, 814, 912 P. 2d 1016 ( 1996).

            Here, the trial        court granted        19    continuances of       Randall'   s   trial.   None of the trial settings


violated CrR 3. 3' s time limits. Even if they had, Randall did not move the trial court to set a trial

date     within   the   rule' s    time limits. "       A party who objects to the date set upon the ground that it is

not within     the time         limits   prescribed     by [ CrR 3. 3]    must, within     10 days      after   the   notice   is ...   given,




move      that the   court set a         trial   within      those time   limits."    CrR 3. 3( d)( 3). "       A party who fails, for

any reason, to make such a motion shall lose the right to object that a trial commenced on such a



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45994 -9 -II



date is   not within     the time limits      prescribed      by     this   rule."   CrR 3. 3( d)( 3);   See State v. Chavez -

Romero, 170 Wn.          App.     568, 581, 285 P. 3d 195.( 2012), review denied, 176 Wn.2d 1023 ( 2013).


Randall fails to establish that the claimed error is " a fundamental defect which inherently results

in   a complete miscarriage of            justice."      Cook, 114 Wn.2d             at   812.   Furthermore, the trial court


granted the continuances for proper reasons. Therefore, Randall' s claim fails.

          Randall next'asserts that his trial continuances violated his constitutional rights to a speedy

trial.    Because Randall fails to show either actual prejudice or that his trial delays were


presumptively prejudicial, his claim fails.

          The United States Constitution              provides, "       In all criminal prosecutions, the accused shall


enjoy the      right   to    a   speedy   and   public     trial."       U.S. CONST.        amend.    VI.     The Washington


Constitution     provides, "      In   criminal prosecutions          the   accused shall        have the   right   to ...   have a


speedy    public   trial."   WASH. CONST.        art.   I, § 22. "[     T] he constitutional right to speedy trial attaches .

when a charge       is filed     or an arrest   is   made, whichever occurs earlier."                State v. Higley, 78 Wn.

App.     172, 184, 902 P. 2d 659 ( 1995).               The constitutional right is violated at the expiration of a


reasonable time. Higley, 78 Wn. App. at 184- 85.

          To prevail on a claim of an alleged violation of the constitutional right to a speedy trial,

Randall must establish actual prejudice from the delay, or that the delay was so lengthy that

prejudice must         be conclusively       presumed.        State v. 011ivier, 178 Wn.2d 813, 826, 312 P. 3d 1


 2013).     To trigger       a   speedy trial   analysis, "`     an accused must allege that the interval between


accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial

delay because, by definition, the accused cannot complain that the government has denied him a
                                                           his                                                       011ivier, 178
speedy trial if it has, in fact,          prosecuted             case with      customary        promptness."'




Wn.2d at 827 ( quoting Doggett v. United States, 505 U.S. 647, 651- 52, 112 S. Ct. 2686, 120 L.



                                                                   15
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Ed. 2d 520 ( 1992)) ( internal        quotations     omitted).   If the accused alleges that the delay is

presumptively prejudicial, then the court will use the balancing test set out in Barker v. Wingo,
407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 ( 1972), to determine whether a constitutional


speedy trial violation has occurred. 011ivier, 178 Wn.2d at 827.

           Here,    Randall makes no argument as to how the continuances prejudiced him.

Furthermore, he fails to establish that his trial continuances were presumptively prejudicial. Many

of   the   delays   accommodated      the defense.      The record does not demonstrate that the State

                delayed the trial,         Randall   presents no evidence of   deliberate   delay.   Although a
deliberately                         and




few of the continuances were due to court congestion, those only resulted in a delay totaling two

days. Because Randall does not establish, and the record does not demonstrate, that the trial delays

were not presumptively prejudicial, we need not use the Barker test to determine whether a speedy

trial violation occurred. We reject Randall' s speedy trial violation claims.

IX.        INEFFECTIVE ASSISTANCE OF COUNSEL


           In a PRP, when the petitioner establishes that he received ineffective assistance of counsel,

he has necessarily met his burden to show that a constitutional violation occurred, and that the

violation caused actual and substantial prejudice. In re Pers. Restraint of Crace, 174 Wn.2d 835,

846- 47, 280 P. 3d 1102 ( 2012)..       We review claims of ineffective assistance of counsel de novo,


using the two -prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 ( 1984).     State v. McFarland, 127 Wn.2d 322, 334- 35, 899 P. 2d 1251 ( 1995).

           Under the first prong, the petitioner must show that trial counsel' s conduct was deficient,
i. e.,   that it fell below an objective standard of reasonableness based on all the circumstances.

McFarland, 127 Wn.2d           at    334- 35.   Our scrutiny of trial counsel' s performance is highly

 deferential, employing a strong presumption of effective representation. McFarland, 127 Wn.2d



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at   335.   To rebut this presumption, the petitioner bears the burden of establishing the absence of

any "`   conceivable     legitimate tactic explaining        counsel' s performance."'    Grier, 171 Wn.2d at 42


                         Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).                That   a "
 quoting State      v.                                                                                       strategy


ultimately proved unsuccessful is immaterial to an assessment of defense counsel' s initial calculus;
hindsight has      no    place   in   an    ineffective   assistance   analysis."   Grier, 171 Wn.2d   at    43.   For


ineffective assistance of appellate counsel, a defendant must demonstrate the merits of issues

counsel .failed to argue or argued inadequately. Lord, 123 Wn.2d at 314.

            Under the second prong, the petitioner must show that trial counsel' s error caused him

prejudice, by showing a reasonable probability that the outcome of the trial would have been
different absent trial counsel' s deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743

P. 2d 816 ( 1987).


            Failure on either prong of the test is fatal to an ineffective assistance of counsel claim.

Strickland, 466 U. S. at 697. We reject Randall' s ineffective assistance of counsel claims.


            A.     Trial Counsel

            Randall first argues that his trial counsel was ineffective because she did not re -interview

the victims. But the record demonstrates that Randall' s trial counsel, who.was the fourth attorney

assigned to his case, did move to re -interview the victims, but the trial court denied the motion.

Randall fails to demonstrate that counsel' s performance in bringing this motion was deficient or

that   she   failed to   perfect      her   argument.     Therefore, Randall fails .to demonstrate that his trial

counsel' s performance was deficient and we need not determine whether prejudice occurred.

            B.      Appellate Counsel


            Randall next argues that his appellate counsel was ineffective for failing to challenge the

 sufficiency of the sexual motivation findings related to the unlawful delivery to a minor



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convictions.    Appellate counsel did raise this argument in Randall' s direct appeal, but this court

rejected it. See Randall, 2013 WL 3963473, at * 6. In order to prevail on this claim, Randall must

show the merits of the underlying legal issues his appellate counsel either failed to raise or raised

                     then demonstrate                         See Lord, 123 Wn.2d   at   314.   Randall' s
improperly     and                      actual   prejudice.




ineffective assistance of appellate counsel argument fails.


        We deny Randall' s petition.

        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.




                                                                  Melnick, J.


We concur:




         Johanson, C. J.
