                                                                       FILED
                                                                    AUGUST 13, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 36632-4-III
                    Respondent,              )
                                             )
      v.                                     )
                                             )
SIEGFRIED JOHN SCHEELER,                     )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, A.C.J. — Siegfried Scheeler appeals from convictions resulting from his

attempt to murder his wife, primarily arguing that various alleged errors require a new

sentencing. They do not. We strike one offense and remand to strike various provisions

of the judgment. Otherwise, we affirm.

                               PROCEDURAL HISTORY

      Mr. Scheeler was convicted at a jury trial of attempted second degree murder, first

degree assault, and fourth degree assault. On the morning of sentencing, defense counsel

asked for a continuance on two bases: the defendant was representing himself in the

pending dissolution trial scheduled to be heard the following month, and several

witnesses were expected who had not appeared.
No. 36632-4-III
State v. Scheeler


       Counsel explained that witnesses were coming from western Washington to

address sentencing and that, due to chains being required on Snoqualmie Pass, the speed

limit was 35 miles per hour. He had not heard from the witnesses (a former girlfriend of

the defendant and her associates) and had no explanation for their absence other than

suspecting travel conditions were to blame. He also advised the court that he had told

them he would be seeking a continuance of the sentencing hearing, but had not advised

them to anticipate that the continuance would be granted.

       Noting that the hearing had already started an hour late and there was no

indication that the witnesses were on the way, the court denied the continuance.1 Counsel

advised the court that the defense was ready to proceed and that the attorney and

defendant had spent “quite a bit of time” going over the defendant’s arguments. The

hearing then went forward with Mr. Scheeler giving a lengthy allocution that blamed his

wife for the crime and accused his counsel, Chad Dold, of performing ineffectively. In

response, the court noted that “Mr. Dold is one of the finest trial attorneys that I’ve ever

had in my courtroom . . . he did a very good job on this case.” Report of Proceedings at

514-515.

       The court merged first degree assault (count 1) into the attempted second degree

murder conviction (count 4). It then imposed a term of 200 months for the attempted


       1
        The court did indicate it would sign an order allowing Mr. Scheeler to stay in the
county jail long enough to take part in the dissolution trial.

                                              2
No. 36632-4-III
State v. Scheeler


murder and ran a 364-day sentence for the fourth degree assault charge concurrently with

count 4.

       Mr. Scheeler then timely appealed to this court. A panel considered his appeal

without hearing argument.

                                       ANALYSIS

       The appeal presents three arguments, although two of them can be briefly, and

jointly, addressed. We then turn to the question of whether the court erred in denying a

continuance of the sentencing hearing. Mr. Scheeler also filed a statement of additional

grounds (SAG) that raises several claims; we briefly address two of those.

       Judgment and Sentence

       Mr. Scheeler argues, and the prosecutor agrees, that (1) the first degree assault

conviction should be vacated, and (2) the judgment provisions permitting interest on non-

restitution financial obligations and requiring Mr. Scheeler to pay costs of supervision

and collection should be struck. We agree.

       We accept the concessions and remand the matter to superior court for entry of an

order striking the noted provisions from the judgment and sentence.

       Continuance of Sentencing

       Mr. Scheeler argues that the court erred in failing to continue the sentencing

hearing to permit his witnesses to appear. There was no abuse of the court’s discretion.



                                             3
No. 36632-4-III
State v. Scheeler


       A “trial court has broad discretion to determine whether there is good cause to

postpone sentencing.” State v. Roberts, 77 Wn. App. 678, 685, 894 P.2d 1340 (1995)

(citing State v. Garibay, 67 Wn. App. 773, 776-777, 841 P.2d 49 (1992)); see also State

v. Deskins, 180 Wn.2d 68, 82, 322 P.3d 780 (2014) (quoting State v. Eller, 84 Wn.2d 90,

95, 524 P.2d 242 (1974)) (“The decision whether to grant a continuance is ‘largely within

the discretion of the trial court.’”). The trial court’s refusal to grant a continuance “will

‘be disturbed only upon a showing that the accused has been prejudiced and/or that the

result of the trial would likely have been different had the continuance not been denied.’”

Deskins, 180 Wn.2d at 82 (quoting Eller, 84 Wn.2d at 95) (affirming trial court’s denial

of defendant’s motion to continue sentencing because defendant made no showing the

court’s order of restitution would have been different had her requested continuance been

granted). Discretion is abused when it is exercised on untenable grounds or for untenable

reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       Here, the trial court had a very tenable reason for not continuing the hearing. The

sentencing had already been postponed twice. It started an hour late and there was no

word whether the witnesses were actually on their way. In addition to the unexplained

absence, there was nothing presented suggesting they had important information bearing

on the sentencing hearing. From the little identified in the record, it appears that the

witnesses would address Mr. Scheeler’s work history and character, matters that he had

already put before the court.

                                              4
No. 36632-4-III
State v. Scheeler


       No reason existed to postpone the hearing again. In addition, Mr. Scheeler cannot

show that he was prejudiced by the denial since he cannot establish that the witnesses had

any information of significance to present.

       The trial court did not err by denying the continuance.

       Statement of Additional Grounds

       Mr. Scheeler’s SAG presents several arguments, but little that merit any

discussion. We briefly address his ineffective assistance and prosecutorial misconduct

claims.

       Ineffective assistance claims are adjudged on familiar standards. An attorney’s

failure to perform to the standards of the profession will require a new trial when the

client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322,

333-335, 899 P.2d 1251 (1995). Thus, to prevail on a claim of ineffective assistance, the

defendant must show both that his counsel erred and that the error was so significant, in

light of the entire trial record, that it deprived him of a fair trial. Strickland v.

Washington, 466 U.S. 668, 690-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In

evaluating ineffectiveness claims, courts must be highly deferential to counsel’s

decisions. A strategic or tactical decision is not a basis for finding error. Id. at 689-691.

If the claim is based on evidence outside of the record of the appeals, it must be brought

as a personal restraint petition (PRP) supported by admissible evidence sufficient to back

the factual allegations. McFarland, 127 Wn.2d at 338 n.5.

                                                5
No. 36632-4-III
State v. Scheeler


       Here, the bulk of the allegations involve cross-examination of witnesses and

alleged failure to present evidence and conduct investigations. The former category is

just about never a basis for a successful claim, as it involves issues of attorney strategy

and tactics.2 The latter category of allegations requires evidence outside of the record of

this appeal. If there is such evidence, Mr. Scheeler must present it in proper form

through a PRP.

       Claims of prosecutorial misconduct also are reviewed under familiar standards.

The appellant bears the burden of demonstrating prosecutorial misconduct on appeal and

must establish that the conduct was both improper and prejudicial. State v. Stenson, 132

Wn.2d 668, 718, 940 P.2d 1239 (1997). Prejudice occurs where there is a substantial

likelihood that the misconduct affected the jury’s verdict. Id. at 718-19. The allegedly

improper statements should be viewed within the context of the prosecutor’s entire

argument, the issues in the case, the evidence discussed in the argument, and the jury

instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

       Reversal is not required where the alleged error could have been obviated by a

curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The

failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned



       2
        “However, even a lame cross-examination will seldom, if ever, amount to a Sixth
Amendment violation.” In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965 P.2d
593 (1998).

                                              6
No. 36632-4-III
State v. Scheeler


that it evinced an enduring and resulting prejudice that could not have been neutralized

by an admonition to the jury. Id.; State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174

(1988). Finally, a prosecutor has “wide latitude” in arguing inferences from the evidence

presented. Stenson, 132 Wn.2d at 727.

       Mr. Scheeler contends that the prosecutor twice injected facts outside the record

into the argument. In one instance, apparently in response to a defense argument that

some additional crime scene blood samples should have been tested, the prosecutor stated

that he had asked the sheriff’s office why they had not tested the sample, though he did

not report a response. In context, the statement suggested that no testing was required

because both people present at the scene were bloodied during the fight. While the

positive statement that the sheriff had been asked was interjected without evidence to

support it, the statement was easily curable by an objection. It was not a significant

statement whose utterance rendered the trial unfair.

       The other claim is that the prosecutor remarked there were shot gun pellets even

though no testimony indicated any had been found. However, witnesses had described

markings on the concrete that a deputy believed were consistent with pellets from

buckshot or a shotgun slug. This comment was a reasonable inference from the evidence

in the record. Stenson, 132 Wn.2d at 727. It was not improper argument.

       Mr. Scheeler has not established that any prejudicial misconduct occurred. His

SAG arguments are without merit.

                                             7
No. 36632-4-III
State v. Scheeler


       Affirmed and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                             _________________________________
                                                     Korsmo, A.C.J.

WE CONCUR:


_________________________________
      Fearing, J.


_________________________________
      Lawrence-Berrey, J.




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