       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                        )           No. 81042-1-I
                                                 )
                         Appellant,              )           DIVISION ONE
                                                 )
                v.                               )           UNPUBLISHED OPINION
                                                 )
 LUCAS RYAN EWING,                               )
                                                 )
                         Respondent.             )
                                                 )

       HAZELRIGG, J. — Lucas R. Ewing was charged with six domestic violence

crimes, three of which were felonies with domestic violence aggravators. Ewing

was held on bail pending trial and sentenced to prison after conviction on two

domestic violence felonies, one with a deadly weapon enhancement and both with

findings of the statutory domestic violence aggravator. Ewing seeks review of the

court’s rulings on pretrial conditions of release, specifically raising constitutional

challenges to the bail determination. In a Statement of Additional Grounds, he

claims government misconduct and ineffective assistance of counsel deprived him

of a fair trial. We find Ewing’s bail argument is moot and that recent published

opinions sufficiently address any concerns as to the continuing and substantial

public interest in the issue. We further find that Ewing has failed to satisfy the tests

for demonstrating government misconduct and ineffective assistance of counsel.

We affirm.




  Citation and pinpoint citations are based on the Westlaw online version of the cited material.
No. 81042-1-I/2


                                           FACTS

        Lucas Ewing was charged with assault in the second degree with a deadly

weapon enhancement, two counts of assault in the fourth degree, malicious

mischief in the third degree, and two counts felony harassment, based on events

that occurred on November 12, 2017. All six counts were designated as domestic

violence crimes and the State further alleged the domestic violence pattern

aggravator as to the assault in the second degree with a deadly weapon and felony

harassment charges.         The State issued a summons when it filed charges in

December 2017 and sent the information to three different addresses in Roy and

Spanaway, but did not send it to the Puyallup address Ewing had provided at the

time of his arrest.1

        Ewing failed to appear for arraignment and the court authorized issuance of

a bench warrant on January 4, 2018. Ewing appeared in custody on March 8,

2018 and was arraigned on the charges. The State requested a requirement that

Ewing post $200,000 bail as a condition of release pending trial, citing concerns of

flight risk, community safety, and risk to the victim. Counsel appointed for the

preliminary hearing offered $60,000 as a bail amount Ewing would more likely be

able to post.      The court set bail at $125,000 and noted as bases for its

determination ten prior criminal cases wherein bench warrants had issued, assault

charges dating back to 1994, prior convictions for domestic violence crimes,

including one for assault in the second degree, and that the current allegations

occurred in the presence of two children.


        1
        However, one of the Roy addresses is the location where the underlying incident occurred
and where Ewing was ultimately arrested on the bench warrant issued in this case.


                                             -2-
No. 81042-1-I/3


      Ewing did not post bail and remained incarcerated during the pendency of

his case. He objected to each continuance of his trial date. At a hearing on the

third motion to continue, Ewing moved for dismissal of his charges or, in the

alternative, reconsideration of the prior bail determination.     He requested a

reduction to $25,000. After hearing argument as to Ewing’s employment and

residence, criminal history, prior warrant history, and the allegations in the case,

the court declined to reduce the bail amount.

      Trial commenced on June 13, 2018; the 97th day after Ewing’s arraignment.

Ewing was convicted of assault in the second degree with a deadly weapon

enhancement and felony harassment, with findings of domestic violence as to

each. The jury found the statutory domestic violence aggravator applied to both

offenses. Ewing was sentenced to a total of 132 months in prison, including time

for the deadly weapon enhancement. He timely appealed.


                                    ANALYSIS

I.    Bail Determinations and Mootness

      Ewing focuses this appeal on the court’s determinations as to pretrial

detention, specifically the imposition of a requirement that he post $125,000 bail

as a condition of release from custody. However, subsequent to the court’s ruling

on bail, Ewing proceeded to trial and was convicted of two felony domestic violence

crimes. As such, we must first determine whether this issue is moot.

      Generally, we do not decide issues that are moot. State v. Hunley, 175

Wn.2d 901, 907, 287 P.3d 584 (2012). “An issue is moot if we can no longer

provide effective relief.” State v. Ingram, 9 Wn. App.2d 482, 490, 447 P.3d 192



                                       -3-
No. 81042-1-I/4


(2019). “Ordinarily, this court will not consider a question that is purely academic.”

State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995). Here, the relief Ewing

seeks is for this court to declare the ruling on his pretrial bail unconstitutional based

on due process and equal protection and remand for dismissal. Ewing has since

been convicted and is presumably now serving his 132 month prison sentence,

less any credit for time held in custody awaiting trial per the terms of his judgment

and sentence. As such, we can no longer grant effective relief regarding his pretrial

detention. See Ingram, 9 Wn. App.2d at 497.

        Ewing’s challenges to the imposition of bail are moot.2 The law is clear that

we may “decide a moot appeal ‘if it involves matters of continuing and substantial

public interest.’” State v. Huckins, 5 Wn. App.2d. 457, 463, 426 P.3d 797 (2018)

(quoting Hunley, 175 Wn.2d at 907). In determining if a question qualifies as a

matter of continuing and substantial interest we consider, “(1) the public or private

nature of the issue, (2) whether guidance for public officers on the issue is

desirable, and (3) the likelihood that the issue will recur.” Ingram, 9 Wn. App.2d at

490 (citing State v. Cruz, 189 Wn.2d 588, 598, 404 P.3d 70 (2017)). We also

consider the likelihood the issue will continually escape review due to the factual

basis or issue being short-lived. Id.

        Here, the issues raised by Ewing regarding pretrial detention are of a public

nature since monetary pretrial conditions are ordered daily within our jails and

courts across the state. By this same reasoning, they are likely to reoccur. Ewing



        2 Ewing all but concedes this point by preemptively addressing mootness in his opening
brief. However, he did not submit a reply brief and thereby fails to respond to the State’s arguments
on mootness.


                                                -4-
No. 81042-1-I/5


suggests that this court should take up the issue “to provide guidance as there are

a limited number of cases on the issue but appears to be a lack of understanding

and application of the rule.” He then cites to this court’s recent published opinions

in State v. Ingram and State v. Huckins as support for his argument that bail

challenges meet the standards for deciding a moot case. 9 Wn. App.2d 48; 5 Wn.

App.2d 457. Ewing acknowledges that no relief was granted as to the bail issue

in those cases, but argues relief could be granted here.

        Ewing seeks reversal and dismissal as relief for the asserted violation of

CrR 3.2 as “an incentive for the state or lower courts to comply with the clear

mandates of [the rule].”        However, Ingram and Huckins, both of which were

released after the court’s bail decisions in Ewing’s case, provide the very guidance

he argues was previously lacking. Ewing does not raise any issues that were not

already addressed in Ingram and Huckins, which are controlling authority. As

such, we decline to reach the merits of his bail challenge.


II.     Statement of Additional Grounds

        Ewing raises a number of other challenges in his Statement of Additional

Grounds (SAG).3 We interpret them as two distinct allegations of government

misconduct, various bases for a claim of ineffective assistance of counsel and

cumulative error.




        3Ewing’s SAG includes a notation seeking a 30 day extension of time to complete his SAG.
That request is denied.


                                             -5-
No. 81042-1-I/6


         A.    Governmental Misconduct

         Ewing argues that we should remand his case to the trial court to conduct

a hearing into governmental misconduct. We disagree. Under CrR 8.3, Ewing

could have brought a motion to raise his governmental misconduct claim. The trial

court has the authority to conduct an evidentiary hearing on the issue if it is deemed

necessary. See CrR 8.3. The alleged misconduct Ewing identifies is based on his

wife’s testimony that she was coerced into giving a statement to law enforcement

by police holding her daughter hostage. The citation to the record provided for this

claim is his wife’s trial testimony in which she explains why she gave her original

statement to the police. However, Ewing provides no authority supporting his

argument that the mere assertion of coercion would require a hearing on

governmental misconduct. While his wife disclaimed the truthfulness of the original

statement to police, it was signed under penalty of perjury and she later testified

under oath that she must have made it, based on identifying it as her own

handwriting. The record reflects that the jury heard his wife’s testimony and was

provided her original statement to police. As finders of fact, the jury was able to

assess the credibility of the statements and her claims of coercion and do not

appear to have found her claim of coercion credible. We find no error as to this

claim.

         The second basis for Ewing’s claims of government misconduct is his

assertion that a juror observed him in shackles while he being transported by jail

deputies in the courthouse during his trial. We recognize this could be a basis for

which to grant relief. See State v. Finch, 137 Wn.2d 792, 842-51, 975 P.2d 967




                                        -6-
No. 81042-1-I/7


(1999). However, there is no evidence in the record before us by which to evaluate

Ewing’s claim. We decline to review this issue based on speculation.


       B.     Ineffective Assistance of Counsel

       Ewing next argues his appointed counsel was ineffective for a number of

reasons. To prevail on his claims for ineffective assistance of counsel, Ewing must

establish his counsel was deficient that the deficient performance resulted in

prejudice. Strickland v. Wash., 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984).     Deficient performance is based on an objective standard of

reasonableness in the context of all the circumstances. State v. McFarland, 127

Wn.2d. 322, 334-35, 899 P.2d 1251 (1995). We engage in our review with a strong

presumption that counsel was effective. Id. at 35.

       Ewing first argues that counsel was ineffective for failing to request a

hearing on governmental misconduct, based on the assertions relating to his wife’s

original statement to police described in the previous section. Again, the record

does not demonstrate a basis for such a hearing, nor does Ewing cite any authority

to suggest that such a hearing would be appropriate on these facts or that

counsel’s failure to seek one is deficient performance. As such, this claim fails.

       Ewing’s second basis for ineffective assistance of counsel is his attorney’s

decision not to pursue a defense of others theory at trial. Ewing states that this

defense was supported by his claim that he was trying to prevent his wife from

driving away with their son while she was intoxicated. However, case law is well

settled that decisions as to trial strategy are properly within the discretion of

counsel. See State v. Thompson, 169 Wn. App. 436, 459-60, 290 P.3d 996 (2012);



                                        -7-
No. 81042-1-I/8


see also In re Pers. Restraint of Stenson, 142 Wn.2d 710, 733-36, 16 P.3d 1

(2001).     Disagreement about trial strategy does not constitute deficient

performance by counsel.

       Ewing next argues counsel was ineffective based on failing to elicit

testimony that his wife was intoxicated and trying to drive away with their son

during the assault. Again, trial strategy, which includes the nature of questions

posed to witnesses, properly rests with trial counsel. See Thompson, 169 Wn. App.

at 459-60; see also Stenson, 142 Wn.2d at 733-36.                Further, the record

demonstrates there was testimony by Ewing’s wife that she was intoxicated during

the altercation and it appears counsel did try to elicit testimony on cross

examination that she had been trying to drive. Ewing does not demonstrate

deficient performance as to this claim.

       Ewing’s final basis for his claim of ineffective assistance of counsel is his

attorney’s failure to move for a mistrial after a juror allegedly saw Ewing in shackles

during transport within the courthouse. While Ewing cites legal authority as to

ineffective assistance of counsel generally, he provides no citations to the record

to support his claim that a juror observed him in restraints. As such, we lack a

sufficient record to review this issue.


       C.     Cumulative Error

       Finally, Ewing asks this court to review the cumulative effect of the errors

raised in his brief and SAG. However, as we find no error in the various issues

raised on appeal, we decline to engage in cumulative error analysis.




                                          -8-
No. 81042-1-I/9


      Affirmed.




WE CONCUR:




                  -9-
