                                                                                                               FILED
                                                                                                      COURT OF APPEALS
                                                                                                             DIVISION 11 "`

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGIT,
                                                     O
                                                                                                  2U1tt AUG 19 AM 9: 37
                                                                                                                          TON
                                                  DIVISION II °                                       a \,

STATE OF WASHINGTON,                                                      No. 43995 -6 -II


                                   Respondent,


        v.



RONALD HODGE HOLTZ, aka RONALD                                           Consolidated with
HOLTZ KEAL,


                                   Appellant.
In re Personal Restraint Petition of                                      No. 45427 -1 - II


                RONALD HODGE HOLTZ,
                                                                     UNPUBLISHED OPINION
                                   Petitioner.


        HUNT, P. J. —        Ronald Hodge Holtz (        aka   Ronald Holtz Keal)     appeals his jury trial

conviction and standard -range sentence for felony violation of a domestic violence court order.

He argues that the trial court' s instruction advising the jury that it had a duty to return a guilty

verdict if it found that the State had proved each element of the offense beyond a reasonable


doubt is not a correct statement of the law. He raises several additional issues in a Statement of

Additional Grounds for Review' ( SAG), a supplemental SAG, and a consolidated personal


restraint petition ( PRP).    We   affirm   his   conviction and sentence, and we   deny   his PRP.
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



                                                               FACTS


                                          I. No CONTACT ORDER VIOLATION


           On September 19, 2011, Connie E. Elliott, the desk clerk on duty at the Sunshine Motel

in Fife,   overheard     two    people    arguing just    outside of one of           the   motel rooms.     Elliott recognized
                                                                                  2
the   people   involved    as   Clare Jane Strain        and   Ronald Holtz, from previous contacts at the motel.


A short time later, Elliott heard more arguing; saw Strain, who uses a cane, back out of the motel

room' s    doorway;      and    saw   Holtz "   give [   Strain]        a shove   to the     chest."   3 Verbatim Report of


Proceedings ( VRP) at 263. Elliott called 911.


           Fife Police Officer Allen Morales and Milton Police Officer Kevin Peterson responded to


the 911    call.   The   officers contacted      Strain    and a man        they later identified       as   Holtz. Both Holtz


and Strain confirmed that they had been arguing, but they denied any physical altercation.3 After
Morales     spoke      to Elliott in the      motel      office,    the    officers    arrested     Holtz for    assault.   After


arresting Holtz, Morales ran records checks on both Strain and Holtz and discovered a no contact
                                                                4
order   prohibiting Holtz from contacting Strain.


                                                      II. PROCEDURE


           The State charged Holtz with felony domestic violence ( DV) court order violation and

fourth degree      assault.     Before trial, Holtz       was represented         by   series of attorneys.      The trial court


also granted numerous continuances over Holtz' s objections.


2 Strain was Holtz' s girlfriend, with whom he was sharing a motel room.
3
    At trial, Strain   admitted    that   she and   Holtz had been arguing                  on   September 19.    But she could
not " remember" if Holtz pushed her or touched her during their argument. 3 VRP at 190.

4 In contrast, Peterson later testified that he discovered the no contact order before Holtz' s arrest,
after taking his identification.



                                                                    2
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


                                           A. Motions To Suppress


         Through counsel, Holtz moved to suppress all the evidence discovered. at the motel,


arguing that the     officers   lacked   probable   cause   to arrest Holtz.     Holtz did not argue that the


officers had unlawfully searched the motel' s guest registry. After the trial court heard testimony

from Morales and Elliott, it denied Holtz' s suppression motion.

         Defense counsel then presented the court with a pro se suppression motion in which

Holtz argued that the officers had unlawfully detained him, that they had unlawfully searched the

motel' s guest registry, and they would not have discovered the no contact order at issue if it were

not   for this   unlawful search.   The trial court did not consider this pro se motion, noting that it

contained factual statements that were not in the record because Holtz had not testified at the

suppression hearing and that Holtz had counsel; instead, the trial court placed the motion in the

court record without action. In its written findings of fact and conclusions of law, the trial court

addressed only the suppression issue litigated by counsel; it did not address Holtz' s pro se

motion.




                                          B. Bail Reduction Hearing

          Two days before trial, Holtz moved for bail reduction and release, asserting that he was

not   receiving   adequate medical   treatment in jail.     During the hearing on this matter, Holtz stated

that he had numerous physical and mental health conditions, for which he was on social security

disability. Although he described many of his physical problems, he did not describe his mental

health issues beyond asserting that he had been treated           at "   Greater Lakes," that he   was "   mentally
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


                                                                                                           5
      disabled,"    and   that he       was not   receiving any kind          of " treatment"   in jail.       VRP ( Aug. 28,

2012) at 6. The trial court denied his motion for bail reduction and release.

                                                             C. Trial


         On the day of trial, defense counsel advised the trial court that Holtz had requested a

continuance to allow him to obtain " a competency evaluation and possibly a diminished capacity

evaluation."       1 VRP     at   19.    Addressing the trial court himself, Holtz again stated that he was

physically and mentally disabled and that he was not taking any mental health medication. This

time, he   also    stated    that   he had "      six    mental   health      conditions"   and   that he had " had nine


evaluations" and had had some type of involvement with Western State Hospital.6 1 VRP at 20.

The trial court denied this motion.


         Before completing jury selection, the trial court notified the parties that it had some brief,

unintentional      contact    with      some   of   the jurors        on   its way to the    courtroom.         Neither party

expressed concern about this contact.


         The State'   s witnesses         testified   as   described       above.   Holtz did not present any evidence.

The State    also   presented        copies    of ( 1)     two Lakewood Municipal Court orders showing that

Ronald H. Keal had previously been convicted of violating protection orders, and ( 2) a copy of a

Pierce County Superior Court judgment and sentence showing that Ronald Holtz Keal had pled

guilty to violating       a protection order.         A fingerprint expert testified that the fingerprints on these


documents matched the fingerprints taken from Holtz when he was booked on this offense.




5
    It does not appear that Holtz submitted any documents supporting this motion.

6 Although Holtz may have had some records with him at this hearing, they are not part of the
record before us.



                                                                  4
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


         Before Morales, Peterson,             and    Elliott testified, the trial            court,   at defense counsel' s


request, allowed the parties to voir dire these witnesses about various matters, including whether

Elliott had   shown       them the motel' s registry        when        they   responded    to her 911     call.     Although the


trial court initially considered ruling on additional suppression issues, it later stated that these

issues had been addressed by another judge and refused to make any additional rulings.

           Following the State' s final witness but before the State rested, the trial court addressed

several "   halftime"       motions.     3 VRP       at    301.        The State rested its case before the jury the

following afternoon after the court addressed some additional issues.

                                                    D. Jury Instructions

           Holtz proposed a felony " violation of a no- contact -order to convict" jury instruction that

contained    the   following     language: " If you find from the               evidence elements (      1), (   2), ( 3)[,] (   4) and


 5),   have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of

guilty."     Clerk' s Papers ( CP)      at   138.    Although the trial court' s to- convict instruction, number


10, differed slightly from Holtz' s proposed instruction, it stated that if the jury found all of the

elements set out         in the instruction, " it   will   be   your     duty   to   return a verdict of    guilty."       CP at 109


 Jury Instruction 10).

                                              E. Verdict and Sentencing

           The jury found Holtz guilty of felony violation of a DV court order, but not guilty of

fourth degree      assault.     The jury further found by special verdict that Holtz did not violate the no

contact order       by    committing    an assault        but that he had "          twice been previously convicted for

violating the      provisions of a court order."            CP    at   131.    At sentencing,   over   Holtz' s      objection,     the
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


trial court calculated Holtz' s offender score as more than nine points. The trial court also denied

Holtz' s request for a lower sentence based on his numerous mental and physical health issues.

            Holtz   appeals       his       conviction       and     sentence.        He also challenges his conviction and


sentence in a PRP, which we have consolidated with his direct appeal.

                                                                    ANALYSIS


                                             I. DUTY To RETURN A GUILTY VERDICT


            Holtz first challenges Jury Instruction 10, the to- convict instruction for felony violation

of a DV court order. He argues that this instruction misstated the law by advising the jury that it

had a " duty to return a verdict of guilty" if the evidence proved all elements beyond a reasonable
                                                                                                                     8
doubt      when   there is   no such requirement                in the State        or   Federal   constitutions.        Br. of Appellant


at   19.    The State     argues       that the invited         error      doctrine   precludes     this   argument.      We agree with


the State.


             The invited     error         doctrine "   prohibits a party from setting up an error at trial and then

complaining of it            on       appeal."       State     v.   Pam,        101 Wn.2d 507, 511,            680 P. 2d 762 ( 1984),




7
     Defense      counsel       apparently          presented        the    trial   court   and    the     State   with " a   plethora       of

documents" related to Holtz' s physical and mental health issues; but these documents are not in
the   record    before    us.     VRP ( Sept. 21, 2012)               at   5.   The only document we have that refers to any
mental       health issues is the " Problem List"
                                                completed at the Pierce County Detention and
Corrections Health Clinic stating that Holtz had a history of anxiety and depression. CP at 149.
Defense counsel did, however, tell the trial court that Holtz reported " a history of bipolar disease,
     schizoaffective disorder, antisocial personality disorder, [ attention deficit and hyperactivity

disorder],      with serious post           traumatic stress         disorder,      and   anxiety." VRP ( Sept. 21, 2012) at 9.

8
     Holtz   argues     that he may         raise   this issue for the first time           on appeal under         RAP 2. 5(   a)(   3).   But

RAP 2. 5( a)( 3) does not allow a defendant to make an argument that is prohibited by the invited
error      doctrine. State       v.   Henderson, 114 Wn.2d 867, 869 -70, 792 P. 2d 514 ( 1990); see also State
v.   Corbett, 158 Wn.           App.       576, 593     n.   11, 242 P. 3d 52 ( 2010) (        distinguishing invited error from a
mere       failure to   object    to   a   constitutionally         erroneous       instruction).
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


overruled on         other grounds   by   State   v.   Olson, 126 Wn.2d 315, 319 -21, 893 P. 2d 629 ( 1995).


When a defendant has proposed instructions that the trial court gave to the jury, the defendant

cannot appeal on the ground that his own proposed instructions were improper, even if the

instruction potentially        violated   his   constitutional     rights.   State v. Henderson, 114 Wn.2d 867,


868 -69, 792 P. 2d 514 ( 1990).            Here, Holtz proposed a felony violation of a DV court order

instruction that contains language identical to the language he now asserts was improper.9 Thus,

the invited error doctrine prohibits Holtz from arguing that this to- convict instruction was

incorrect, and we do not further consider this argument.'°

                                                                                           11
                               II. SAG, SUPPLEMENTAL SAG,               AND   PRP ISSUES


                                           A. Search of Motel' s Registry

         Holtz next asserts that the officers conducted a warrantless search of the motel' s registry,

and that the officers would not have discovered the existence of the no contact order if not for

this unlawful search. The trial court did not address this issue, which Holtz raised below in a pro

se   motion     to   suppress.    Nevertheless, the record before us on appeal includes the voir dire




9 Holtz does not argue that his trial counsel provided ineffective assistance by proposing this jury
instruction.

1°
     Even were we to consider the merits of this argument, it would fail. See State v. Mecham,
Wn.    App. ,         323 P. 3d 1088, 1095 ( 2014) ( Division One);              State v. Wilson, 176 Wn. App. 147,
150 -51, 307 P. 3d 823 ( 2013) ( Division Three),              review    denied, 179 Wn.2d 1012 ( 2014); State v.
Brown, 130 Wn.          App.   767, 770, 124 P. 3d 663 ( 2005) ( Division Two);          State v. Meggyesy, 90 Wn.
App.    693, 699 -706, 958 P. 2d 319 ( Division One),                   review    denied, 136 Wn.2d 1028 ( 1998),
abrogated       on    other   grounds     by State     v.   Recuenco,    154 Wn.2d 156,         110 P. 3d 188 ( 2005),

reversed by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 ( 2006).

11 Unless otherwise noted, Holtz raises these issues in his SAG or his supplemental SAG.



                                                               7
Consolidated Nos. 43995 -6 -I1 and 45427 -1 - II



testimonies of Morales, Peterson, and Elliott, which allows us to address this issue in the first

instance.


          During voir dire outside the jury' s presence, Morales testified that arriving at the motel

before Peterson, he ( Morales) contacted Strain in her motel room, she told him her name, he then

contacted        Elliott in the    motel office,     but he did        not   look   at   the   motel' s guest   registry. Peterson


testified that when he arrived, Morales was already speaking to Strain, and he ( Peterson) did not
                                    Elliott12

go    to the   motel office.                    testified that when there were two officers present at the scene,


she    showed          one   of   the   officers   the   motel' s      registry, which contained            Strain' s name and


identification.          Regardless of whether Morales was the officer who examined the motel' s


registry, his and Peterson' s testimonies established that Morales had already spoken to Strain and

knew her         name   before any      officer    looked   at   the   motel' s   registry. Thus, even if the search of the


motel' s registry were unlawful so as to require suppression of the information obtained from the
            13
registry,        it would not be necessary also to suppress the later discovery of the no contact order

because Morales had already learned Strain' s identity directly from her. See State v. Green, 177.

Wn.     App.      332, 343, 312 P. 3d 669 ( 2013) (               discussing "      independent source exception" to the


exclusionary rule). Thus, Holtz' s suppression challenge, based on the registry search, fails.

12 Again, although it appears that the trial court later refused to reconsider any suppression
issues, it allowed Holtz' s counsel to voir dire Elliott about whether any of the responding officers
had examined the registry.

13 We note, however, the unlikelihood that such a ruling would have resulted because any the
search of the motel' s registry here was not a random and suspicionless like the search of a motel
registry in State v. Jorden, 160 Wn.2d 121, 130, 156 P. 3d 893 ( 2007); see also In re Pers.
Restraint of Nichols, 171 Wn.2d 370, 377, 256 P. 3d 1131 ( 2011) ( four justices holding that
Jorden establishes only a limited right of privacy in motel registrations and that officers may
search these records if they have individualized and particularized suspicion regarding the
subject of       the   search;    fifth justice concurs in       result   but does       not concur   in this reasoning).
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



                                                            B. Initial Detention


          Holtz next asserts that his initial detention, which he contends was from 9: 33 PM through

9: 54 PM, was improper because the officers lacked justification to hold his identification and tell

him he was not allowed to leave. We disagree.

          In the absence of probable cause to arrest, police may conduct a brief investigative

detention known            as a   Terry       stop.   Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

 1968).        A   Terry   stop   must        be based      on "'   specific and articulable facts which, taken together


with rational        inferences from those facts, reasonably                   warrant   that intrusion. "'         State v. Mendez,


137 Wn.2d 208, 223, 970 P. 2d 722 ( 1999) ( quoting. Terry, 392 U. S.                             at   21), overruled in part on


other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132

 2007).        The level     of articulable           suspicion required       is "` a substantial possibility that criminal


conduct        has   occurred      or    is   about    to   occur.         Mendez, 137 Wn.2d           at   223 (   quoting State v.

Kennedy,        107 Wn.2d 1, 6, 726 P. 2d 445 ( 1986)).                    We examine the reasonableness of the officer' s


suspicion based on the totality of the circumstances known to the officer at the time of the initial

detention. State v. Glover, 116 Wn.2d 509, 514, 806 P. 2d 760 ( 1991).


          Here, the officers were responding to a report of an assault in a particular motel room,

Holtz and Strain admitted they had been arguing; and Elliott told the officers she had heard the

arguing        and   had then     seen    Holtz " shove" Strain hard           enough    that   she almost     fell. VRP ( June 4,


2012)     at   12.   These facts established a substantial possibility that criminal conduct had occurred.

Thus, the officers' initial detention of Holtz was lawful.




                                                                       9
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


                                                 C. Scope of Search


           Holtz next appears to assert that the officers unlawfully expanded the, scope of their

 search,"    which    led to the   discovery    of   the   no contact order.   SAG   at   13.   He contends that the


officers did not have probable cause to expand the search because several eyewitnesses denied

there having been an assault and the officers did not have Elliott identify Holtz in person at the

scene.     But Holtz fails to acknowledge that ( 1) Elliott had reported seeing a man assault Strain,

and ( 2)   Strain told the   officers   that   she and     Holtz had been arguing. These facts were sufficient


to allow the officers to detain Holtz long enough to determine if a crime had in fact been

committed and to run a background check, during which they discovered the no contact order.

See State    v.   Villarreal, 97 Wn.    App. 636, 645,        984 P. 2d 1064 ( 1999), review denied, 140 Wn.2d


1008 ( 2000) ( " A    warrant check during a valid criminal investigatory stop is a reasonable routine

police procedure so long as the duration of the warrant check does not unreasonably extend an

initially valid contact. ").

                                                  D. Name Change


           Holtz appears to assert that the officers presented false evidence at the suppression


hearing         or at
            and /       trial.   Holtz contends that the officers could not have linked him to the no


contact order while at the motel because he had recently changed his name to Holtz and had not

been previously arrested under that name. But it is pure conjecture that there was nothing in the

records the officers relied on while at the motel that connected Holtz' s new name to his previous




                                                              10
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


name.   14 To the extent there is information outside the record supporting this claim, we cannot

consider    it   on   direct   appeal.    State     v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995)


the   proper procedure          for raising issues dependent           on matters outside    the   record   is   a   PRP).   To


the extent Holtz is challenging the weight and credibility of the officers' testimonies, we do not

address such       issues   on appeal.     State    v.   Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990); State


v.   Walton, 64 Wn.         App:    410, 415 -16, 824 P.2d 533,           review   denied, 119 Wn.2d 1011 ( 1992),


abrograted on other            grounds    by   In   re   Pers. Restraint of Cross,          Wn.2d ,         327 P. 3d 660,


673 n. 8 ( 2014).


                                           E. Elliott' s In -
                                                            court Identification


          Holtz next argues that Elliott' s in - ourt identification during the suppression hearing
                                               c

 was    impermissibly          suggestive and prejudiced all proceedings."            SAG at 18 ( some capitalization


omitted).    Again, we disagree.


          Regardless of whether Elliott' s in - ourt identification during the suppression hearing was
                                              c

 impermissibly          suggestive, "    15 it was also cumulative because Morales also identified Holtz. And

there was ample additional evidence, including Strain' s testimony, establishing the no contact




14 Holtz appears to claim that the prosecutor admitted that the officers did not identify him
 Holtz)    until   he   was    booked into jail      and "   identified" there. SAG   at   9. But the part of the record

Holtz cites merely suggests that his identity was confirmed once he was booked into jail, not that
the officers did not have reason to believe Holtz was the person named in the restraining order
soon after they first contacted him at the motel.

15 SAG at 18.



                                                                  11
Consolidated Nos. 43995 -6 -1I and 45427 -1 - II


                   16
order violation.        Moreover, the jury acquitted Holtz of the assault charge and found that he had

not violated the no contact order by assaulting Strain.

                                             F.    Sufficiency of Evidence

         Holtz next appears to assert there was insufficient evidence to establish that he committed

the   crime.    He appears to be referring either to the assault or to whether he violated the no

contact order by assaulting Strain.

         In considering a challenge to the sufficiency of the evidence, we view the evidence in the

light most favorable to the State and ask whether any rational trier of fact could have found guilt

beyond    a reasonable     doubt.     State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                  A


claim that the evidence was insufficient admits the truth of the State' s evidence and all

reasonable     inferences drawn from that           evidence.       Salinas, 119 Wn.2d       at   201.    Because the jury

acquitted Holtz of the assault charge and found that he did not violate the DV court order by

assaulting Strain, there is no need to evaluate the sufficiency of the evidence as to whether an
assault occurred.




                                            G. Speedy Trial /Continuances

                                                        1.   Record


         Holtz    next   asserts,   that the trial     court    violated        his " speedy trial"      rights by granting

numerous continuances over            his   objections.      SAG     at   25.   He refers us to proceedings that were


held   on (   1) October 25, 2011; ( 2) November 29, 2011; ( 3) December 6, 2011; (                         4) February 14,

2012; ( 5) March 6, 2013; ( 6)         May    10, 2012,      and (   7)   May    24, 2012.   In his supplemental SAG,


16
  To the extent Holtz is also challenging Elliott' s credibility at the suppression hearing, we note
that credibility determinations are matters for the trial court and are not subject to our review.
See Camarillo, 115 Wn.2d at 71; Walton, 64 Wn. App. at 415 -16.



                                                               12
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



Holtz also asserts that deficiencies in the appellate record have violated his right to appeal, and

he    attaches copies of several orders                 granting         multiple continuances.        17 In the interests of justice

and to allow for effective review, we consider these attached documents as if they were part of

the    record   before       us   on    appeal.        See RAP 9. 10; RAP 1. 2( c).                    Our consideration of these


documents attached to Holtz' s supplemental SAG render moot his claim that the incomplete

appellate     record        denied him his           right    to   appeal.        And because Holtz does not explain how


additional requested transcripts would assist him in his appeal, we deny his request for additional

transcripts.


                                       2. CrR 3. 3 Time -
                                                        for -
                                                            Trial Standard of Review


            Despite the time for trial               periods       set   forth in CrR 3. 3, "[ 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.


17
      The record before us on appeal does not include orders or transcripts for the hearings on
October 25, 2011 ( October 25, 2011 transcript                              states, "   Omnibus Order signed off the record."
VRP ( Oct. 25, 2011)              at   2); November 29, 2011 ( November 29, 2011 transcript                          states, "   Nothing
on    the   record   in front     of   Judge    Murphy."           VRP (Nov. 29, 2011)            at   2); December 6, 2011; March
20, 2012;       or    May     10, 2012.         Holtz, however, has attached to his supplemental SAG orders
continuing the trial from              each of May 10, 2012. But according to the records
                                                     these   dates,      except

before us, there was no continuance granted on May 10, 2012, only a conference hearing.
Consistent with our records, the order Holtz attached to his supplemental SAG does not suggest
that the court granted a continuance on May 10; on the contrary, the April 19, 2012 order notes it
was the sixth continuance, and the May 24, 2012 order shows it was the seventh continuance,
implying that there was no additional intervening continuance on May 10, as Holtz asserts.



                                                                           13
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



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

or   denial      of a   CrR 3. 3      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 on 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 ( citing State v. Campbell,

103 Wn. 2d 1,            15, 691 P. 2d 929 ( 1984),              cent.   denied; 471 U.S. 1094 ( 1985)).                  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).


                            3. No manifest abuse of discretion in granting continuances

             Based on the record before us on appeal, including the documents Holtz attached to his

supplemental SAG, Holtz does not show that the trial court manifestly abused its discretion by

continuing his trial             or   that the trial       court violated     his CrR 3. 3      time   for trial     rights.   Instead, the


appellate          record       and Holtz' s       SAG -
                                                       attached           documents           show that        all    but three     of the

                           were       necessary       to    accommodate (        1)     appointed       counsel' s      withdrawal     and



appointment             of new        defense    counsel; (     2) defense counsel' s requests for additional time to


interview         witnesses,      to draft   motions, or otherwise              to    prepare   for trial; ( 3)      Holtz' s newly filed


18 We do not consider the June 5, 2012 continuance, for which the trial court reduced the time for
trial period.




                                                                         14
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


CrR 3. 6      motion; (         4) Holtz' s desire to hire            private      counsel; (      5) the prosecutor' s unavailability

because      of    scheduling          conflicts or      reasonably        scheduled       vacation; ( 6) the court' s determination


that it would be unable to complete trial efficiently because of its schedule; and ( 7) Holtz' s filing

an affidavit of prejudice against                   the      assigned   trial court judge.           These reasons are proper under

                   19
CrR 3. 3( f),           and Holtz fails to show that the trial court abused its discretion in granting any of
                                 20
these   continuances.




19
     See   also    State    v.    011ivier, 178 Wn.2d 813, 825                   n. 4,   312 P. 3d 1 ( 2013) ( continuances deemed

necessary to allow defense counsel to adequately prepare for trial are proper, even over the
defendant'     s objections), petition for cert. filed                   (U.S.     May 7,     2014) ( No. 13- 10090); Williams, 104

Wn. App. at 522 -23 ( prosecutor' s unavailability due to scheduling conflicts with other trials);
State   v.   Kelley,      64 Wn.        App.   755, 767, 828 P. 2d 1106 ( 1992) ( reasonably scheduled vacation).

20
     The first continuance, October 25, 2011, moved the original November 9, 2011 trial date to
November 29 to              allow       defense    counsel     time to draft        motions.       At that time, 30 days remained in
the CrR 3. 3 time for trial period, which expired December 29.
             The second continuance, November 29, moved the trial from November 29 to December
6 because defense                counsel    had    withdrawn.          At this point, 30 days remained in the time for trial
period, which expired on January 5, 2012.
             The third continuance, December 6, 2011, moved the trial to March 6, 2012, to allow new
defense      counsel        to   prepare,      to investigate,       and   to    negotiate.      At this   point, "    30 +" days remained
in the time for trial period, which expired April 5, 2012.
             The fourth continuance, March 6, 2012, moved the trial to March 20 because Holtz
wanted       to fire his        assigned counsel and            to   obtain new private counsel.                 At this   point, "   30 +" days
remained       in the time for trial            period, which expired             April 19. Suppl. SAG at Ex. 1.
             The        fifth    continuance,           March    20,     2012,       moved         the   trial   to   April    19,     again   to

accommodate              Holtz'       s request   to hire     private counsel.           At this   point, "   30 +" days remained in the
time    for trial       period, which expired            May     19. Suppl. SAG at Ex. 1.
             The sixth continuance, April 19, moved the trial to May 24 because the prosecutor was in
trial and Holtz had just hired private counsel. At this point, 30 days remained in the time for trial
period, which expired May 23.
       The seventh continuance, May 24, moved the trial to May 31 because the State' s newly
assigned counsel was unavailable part of this time, the trial court had to hold a CrR 3. 6 hearing,
and new        defense          counsel    had    yet   to   interview     eyewitness       Elliot. The trial court ordered defense
counsel       to   complete           Elliot' s interview before the             end of    the   day May      29.     At this point, 30 days
remained in the time for trial period, which expired June 30.


                                                                            15
Consolidated Nos. 43995 -6 -I1 and 45427 -1 - II



          The three remaining continuances ( June 4, June 5, and June 7, 2012) are less obviously
                                                                                                                            21
appropriate      because      they involved    the trial    court' s schedule and courtroom          availability issues.


On June 4, the trial         court continued    the trial to June 5, stating, " Judge does not have sufficient




        The eighth continuance, May 31, moved the trial to June 4 because Holtz had filed a CrR
3. 6 motion and the " primary officer" was unavailable to testify until the following week. At this
point,   30 days      remained      in the time for trial   period, which expired        July   3., Suppl. SAG at Ex. 1.
          The ninth continuance, June 4, 2012, moved the trial date to June 5 because the " Judge
 did]    not   have    sufficient available    days [ that]   week   to   complete   trial effectively."   Suppl. SAG at
Ex. 1.    The trial court did not reset the expiration date; instead, it noted that 25 days remained on
the " time- for -
                trial" clock.
         The tenth continuance, June 5, moved the trial date to June 6 because there was no
courtroom available.      Again, the trial court did not reset the expiration date and noted that 24
days remained on the time for trial clock.
          The record does not contain a copy of the eleventh continuance.
          The twelfth continuance, June 7, moved the trial date to June 11 because Holtz had filed
an affidavit of prejudice against the assigned trial court judge, no courtroom was available, and
additionalinvestigation ( including defense witness interviews), was required. The trial court
ordered the department of assigned counsel to address defense witness interview issues.
Although the trial court did not recite the time -for -rial expiration date, it did note that 30 days
                                                      t
remained on the time -for -
                          trial clock.
       The next order in the record was signed July 23, 2012; it noted a July 25 trial date, an
August 25 expiration date, and 30 days remaining on the time for trial clock. The trial court did
not reschedule the trial, which remained set for July 25.
           The next continuance, July 25, moved the trial date to August 1 because the State' s
counsel was       in trial    and   the   continuance was short.          The expiration date was September 1, with
30 days remaining on the time for trial clock.
21
     See State        v.   Kenyon, 167 Wn.2d 130, 137, 216 P. 3d 1024 ( 2009) ( " A court can allow a
continuance due to congestion when it carefully makes a record of the unavailability of judges
and courtrooms and of            the availability    of   judges   pro    tempore. ");   State v. Flinn, 154 Wn.2d 193,
200, 110 P. 3d 748 ( 2005) ( " Whenthe primary reason for the continuance is court congestion, the
court must record details of the congestion, such as how many courtrooms were actually in use at
the time of the continuance and the availability of visiting judges to hear criminal cases in
unoccupied courtrooms. ")




                                                                16
Consolidated Nos. 43995 -6 -I1 and 45427 -1 - I1


                                                                                      22
available      days this   week   to   complete      the    trial effectively. "             Supp.   SAG      at   Ex. 1 (   order




continuing trial dated June 4, 2012).            On June 5, the trial court issued an order continuing the
                                                                            23
trial to June     6, solely due to     courtroom     unavailability.               In neither instance, however, did the


trial court reset the time-for-trial clock; thus, in the absence of contrary information, the

expiration date remained the same as when the trial court had previously granted the May 31

continuance.




          The only other continuance mentioning courtroom unavailability occurred on June 7. But

this   continuance       was   based     on   several      additional       grounds,       including Holtz' s affidavit of

prejudice against the assigned trial court judge and witness interview issues that the trial court


ordered the Department of Assigned Counsel to address. This June 7 continuance was not based


solely   on courtroom      unavailability;     and   the   other reasons alone          justified the   continuance.         Thus,


this   continuance,      which   reset   the time     for trial      clock        for 30 days,   was    not    improper.      See


CrR3 .3 (b)( 5) .


          Because Holtz does not show that any continuance that reset his time for trial was

improper, his denial of "speedy trial" argument fails.



22
     The June 4, 2012      continuance order stated: "         Judge does not have sufficient available days this
week     to   complete   trial effectively."    Suppl. SAG          at   Ex. 1.    Nevertheless, the order continued the

trial to the next day, June 5, without restarting the speedy trial period; and June 5 was within the
previous 30 -day expiration period.
23
     The June 5 order is the only continuance in the record for which the trial court' s sole stated
reason    for continuing the trial date        was courtroom             unavailability.     Again, the trial court did not
restart the time for -rial clock and 24 days remained before the period expired.
                     t
          It appears that the court granted another continuance on June 6, resetting the trial date for
June 7.     But there is no copy of a June. 6 continuance in the record, so we cannot determine the
reason for this continuance.




                                                               17
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



                            H. No Mental Health/Diminished Capacity Evaluation

          Holtz next challenges the trial court' s denial of his request for a competency evaluation

and his counsel' s failure to address a possible diminished capacity defense despite his ( Holtz' s)

repeatedly informing the court and counsel that he had mental health issues.24 These claims also
fail.


          If there is "    reason to doubt" the defendant' s competency, the trial court must obtain a

medical      report   on   a    defendant' s     mental     condition.     RCW 10. 77. 060( 1)(        a).    The defendant,


however, has the threshold burden of establishing that there is reason to doubt his competency.

State   v.   Woods, 143 Wn.2d 561, 604 -05, 23 P. 3d 1046,                   cent.   denied, 534 U. S. 964 ( 2001).        A


defendant is incompetent if he " lacks the capacity to understand the nature of the proceedings

against him or her or to assist in his or her own defense as a result of mental disease or defect."

RCW 10. 77. 010( 15).           Here, Holtz actively         participated   in the    proceedings.       Although at times,

                                                                                                 25
Holtz had      difficulty      communicating         with   his   counsel and /or    the   court,     nothing in the record

suggests that at any point Holtz gave the trial court reason to doubt that he could understand the

nature of     the   proceedings against        him   or assist    in his defense.    On the contrary, the record clearly



24 Holtz presented this evidence in the context of (1) his requests for bail reduction and release;
 2) his request for a competency and /or diminished capacity evaluation; and ( 3) sentencing.

25 For example, before trial, Holtz was represented by several attorneys who withdrew because
 1) Holtz refused to cooperate with them based on a perceived conflict, ( 2) he was not happy
with their representation and had filed bar complaints or other legal actions against them, or ( 3)
he had financial issues with them.                   And throughout the       proceedings,       Holtz ( 1)    objected to or
disagreed with his counsel' s strategic decisions and insisted that counsel present his arguments to
the trial court,      regardless of counsel' s           judgment; ( 2) filed or sought to present pro se motions,
despite      being   represented       by   counsel; (   3) interrupted the trial court, often insisting that he must
be heard because he            was "   making    a record,"   VRP ( Feb. 14, 2012) at 19; and ( 4) argued with the
trial court even after it ruled, once to the point that the trial court had him removed from the
courtroom.




                                                                  18
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



shows that Holtz understood the nature of the proceedings and was an active participant in his

defense.   Having failed to meet his threshold burden, Holtz does not show that the trial court

erred in denying his motion for a competency evaluation.

        Furthermore, although Holtz presented evidence that he suffers from a variety of mental

health issues and that he is considered disabled based ( at least in part) on his mental health

issues, nothing in the record explains how his mental health conditions affected his ability to
                                                                                   26
form the   necessary   mental     state   required   to   prove   the   offense.        The   mere "[    e] xistence of a




mental disorder is not enough, standing alone, to raise an inference that diminished capacity

exists, nor   is conclusory testimony that the disorder           caused °a     diminution     of   capacity."   State v.


Gough, 53 . Wn.      App. 619,      622, 768 P. 2d 1028,          review       denied, 112 Wn.2d 1026 ( 1989).


Accordingly, based on this record, Holtz has not established that his counsel was ineffective for

failing to pursue a diminished capacity defense.

                                     I. Effective Assistance of Counsel


        Holtz next asserts that he received ineffective assistance of counsel on several grounds.

To   establish   ineffective   assistance     of counsel,     Holtz     must   show     both that ( 1)    his counsel' s


performance was      deficient,   and (   2) this deficient   performance prejudiced          him. State v. Thomas,


109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987) (               citing Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)).




26 Diminished capacity allows a defendant to undermine a specific element of an offense, a
culpable mental state, by showing that a given mental disorder reduced or eliminated his ability
to achieve that mental state. State v. Gough, 53 Wn. App. 619, 622, 768 P. 2d 1028, review
denied, 112 Wn.2d 1026 ( 1989).




                                                           19
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



        To the extent Holtz is asserting that his second appointed counsel forced him to forgo his

speedy trial rights, as noted above Holtz does not establish that the trial court violated his time

for trial right. To the extent Holtz is arguing that one of more of his appointed or hired counsel

failed to investigate, failed to obtain evidence, or failed to call or interview certain witnesses,

these arguments relate to matters outside the record and we will not address them further.

        Holtz further asserts that his appointed counsel failed to request an instruction on


 perjury- [i] nconsistent statements WPIC [ WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS]      or   impeached testimony ER 806      and   801."   SAG   at   36.   It appears that Holtz is


asserting that his counsel should have requested jury instructions based on statutes related to the

crime   of   perjury.   See SAG   at   36 ( citing RCW 9A. 72. 010( 1)).    Such instructions are used in


criminal cases involving perjury charges; they are not used to instruct the jury on witness

credibility issues.      Holtz also cites to hearsay rules and appears to assert that additional

instructions were necessary to allow the jury to evaluate witness credibility in light of

impeachment testimony.         But the trial court properly instructed the jury on how to evaluate

witness credibility in jury instruction 1, 27 and Holtz does not show that any additional



27 The trial court instructed the jurors that they were " the sole judges of the credibility of each
witness,"    and instructed the jurors that in evaluating a witness' s testimony, they could consider:
        the opportunity of the witness to observe or know the things he or she testifies
         about; the ability of the witness to observe accurately; the quality of a witness' s
         memory while testifying; the manner of the witness while testifying; any personal
         interest that the witness might have in the outcome or the issues; any bias or
         prejudice that the witness may have shown; the reasonableness of the witness' s
         statements in the context of all of the other evidence; and any other factors that
         affect your evaluation or belief of a witness or your evaluation of his or her
         testimony.
CP at 99 ( Jury Instruction 1).



                                                       20
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



instructions were required to assist the jury in evaluating the testimony. Accordingly, Holtz does

not establish ineffective assistance of counsel on these grounds.


                                 J. Prosecutorial Misconduct             and    Brady28 Violation


             Holtz next asserts that the State engaged in several instances of "misconduct" and that it


violated Brady v. Maryland, by failing to provide relevant evidence in discovery. SAG at 39.

             To   prevail   on     a    claim   of    prosecutorial      misconduct,        Holtz     must   show "'       that   the


prosecutor' s conduct was both improper and prejudicial in the context of the entire record and


the   circumstances at       trial. "' State    v.   Magers, 164 Wn.2d 174, 191, 189 P. 3d 126 ( 2008) ( quoting


State   v.   Hughes, 118 Wn.           App.   713, 727, 77 P. 3d 681 ( 2003)).           Holtz must demonstrate prejudice


by    proving that "    there is a substantial likelihood [ that] the instances of misconduct affected the


jury' s   verdict. "'   Magers, 164 Wn.2d             at   191 (   alteration   in   original) (   quoting State v. Pirtle, 127

Wn.2d 628, 672, 904 P.2d 245 ( 1995)); State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432


 2003).       If Holtz failed to object, the " failure to object to an improper remark constitutes a waiver


of error unless the remark is so flagrant and ill intentioned that it causes an enduring and

resulting      prejudice    that   could not     have been neutralized           by   an admonition      to the   jury."    State v.


Russell, 125 Wn.2d 24, 86, 882 P. 2d 747 ( 1994),                        cert.   denied, 514 U. S. 1129 ( 1995);            accord




State v. Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009).


             Holtz contends that some of the State' s comments during the proceedings prejudiced the

court against       him.     Specifically, he cites an instance in which the State commented to the trial

court that Holtz had been manipulative in another case, was delaying the proceedings by

repeatedly insisting he was entitled to new counsel, and was likely to continue to do this

28
     Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).



                                                                    21
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



regardless of who was appointed as his counse1.29 Holtz personally objected to these comments.

The trial court could have reached these same conclusions based on its own observations of

Holtz' s actions in courtroom, such as his open disagreements with his counsel, his insistence that

his counsel present motions even against counsel' s advice that they lacked merit, and his
                                                                                      30
argumentative       approach     to both         counsel and       the trial court.        Holtz does not show that these


comments, taken in context, were likely to have prejudiced the trial court against him or

otherwise affected his trial.


          Holtz further       contends       that the State         knowingly    allowed      its   witnesses   to " fabricate"



testimony during the suppression hearing about how the officers connected him ( Holtz) to the

protection   order,      which    was      in his       previous    name (   Keal),    and that the trial testimony later

revealed    these      fabrications.       SAG     at   40.   We have reviewed the record form the suppression


hearing    and    the    trial   and      find   no     relevant    discrepancies.         It is mere conjecture that the


suppression       hearing testimony               was     fabricated.        Accordingly, Holtz does not establish

prosecutorial misconduct on this ground.




29 Although Holtz cites a non -existent June 25, 2012 record, it appears that he intended to cite the
July 25, 2012 record.
30
     As   noted   above,     throughout the proceedings, Holtz ( 1)                    objected to or disagreed with his
counsel' s strategic decisions and insisted that counsel present his arguments to the trial court,
regardless    of counsel' s      judgment; ( 2)      filed or sought to present pro se motions, despite being
represented       by    counsel; (   3)    interrupted the trial court, often insisting that he must be heard
because he    was "     making    a record,"       VRP ( Feb. 14, 2012) at 19; and ( 4) argued with the trial court
even after it ruled, once to the point that the trial court had him removed from the courtroom.




                                                                    22
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



          Holtz also contends that the State engaged in misconduct and violated Brady when it

failed to    provide relevant evidence                in   discovery. He claims that had the State provided these
               31
materials,          the outcome of the suppression hearing would have been different.

          In    Brady,          the   Supreme Court held that "               suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either

to   guilt or   to               irrespective of
                     punishment, •                           the    good      faith   or   bad faith    of   the   prosecution."    Brady,

373 U. S.       at   87.        Evidence is material only if there is a reasonable probability that had the

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

different.      State      v.    Thomas, 150 Wn.2d 821, 850, 83 P. 3d 970 ( 2004).                              But the evidence Holtz


argues would have assisted him appears to be outside the record; accordingly, we cannot address

this issue on direct appeal.

                                             K. Judicial Misconduct, Bias, or Prejudice


          Holtz      next alleges            several instances      of   judicial     misconduct,       bias,   or prejudice.      None of


these claims have merit.


          The portions of the record to which Holtz refers show instances in which the trial court:


 1) questioned defense counsel about whether Holtz wanted to represent himself pro se or obtain

private      counsel; (          2)    attempted      to    address       Holtz' s         conflict    of interest       and   ineffective


representation          claims; (       3)     attempted to manage the courtroom by limiting Holtz' s direct

interactions with the court to relevant matters and by cautioning Holtz that his courtroom



31
     On March 21, 2012, Holtz filed                   a motion      requesting        evidence        from the State. In this request,
he    asked     for the         motel   surveillance       video,    various "      jail    reports"    and "      booking information,"
 notes, and /or entries" from Officer Larkins, and the 911 call. CP at 15.




                                                                         23
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


                                        jury32; (

behavior    could prejudice       the               4)   addressed                    continuance issues; ( 5) addressed
                                                                         speedy trial /


mental    health   evaluation    issues; ( 6)    reviewed        Holtz'   s pro se motion      to   suppress   in   chambers; (   7)


refused   to   consider   Holtz' s     pro se motion        to   suppress; (    8) briefly addressed a witness to clarify

an answer      during   voir   dire   outside   the   jury' s    presence; (   9) clarified one of the State' s objections;


 10)    addressed   various "     halftime "33      issues, including a several motions, after the State' s last
witness   but before the State had         rested     its   case   before the jury;      ( 11) discussed Holtz' s request for

a lesser included offense instruction; and ( 12) started to impose sentence before allowing Holtz

his opportunity for       allocution.    34 None of these portions of the record demonstrate any trial court
misconduct, bias, or prejudice.


                                       L. Public Trial and Right To Be Present


          Holtz next asserts that the trial court denied him his constitutional right to a public trial


 1)    by having   inadvertent        contact with some          jurors   as   the   court passed    them   in the   hallway, ( 2)

by holding      two     unreported       conferences        in     chambers,     and (   3)   by reviewing Holtz' s pro se

suppression motion in chambers. Holtz also asserts that the trial court violated either his right to


a public trial or his right to be present when it continued to discuss the case on the record during

32
   This behavior included one instance where a jury member reported that Holtz was " mouthing
comments"   at the jury. 3 VRP at 298. After the juror informed the court of this behavior, the
court cautioned Holtz that his " very emotive" behavior during testimony could negatively

influence the jury. 3 VRP at299.

33 3 VRP at 301.

34 Although Holtz cites the September 12, 2012 record, it appears he intended to cite the
September 21, 2012 record of the sentencing hearing. We note that although the trial court

started to sentence Holtz without allowing allocution, the trial court later allowed Holtz to speak
after defense counsel' s reminder. Holtz' s sentencing allocution fills approximately nine pages of
the sentencing transcript. Thus, to the extent Holtz is also asserting that he was denied his right
of allocution, that claim fails.




                                                                    24
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



a    February          14, 2012     hearing       after    he ( Holtz) had been removed from the courtroom for


continuing to argue with the trial court after it ruled on a motion. These claims fail.

              N] ot every interaction between the court, counsel, and defendants will implicate the

right   to   a public     trial,   or constitute a closure           if   closed   to the   public."     State v. Sublett, 176 Wn.2d


58, 71, 292 P. 3d 715 ( 2012).                    To determine whether a public trial violation has occurred, we

                                                                                                               35
must examine            the   alleged closure under           the "   experience and         logic" test.           Sublett, 176 Wn.2d at


72 -73.      The first prong           of   this test     is the "    experience"       prong, which requires us to examine

    whether      the   core values of       the   public    trial   right are   implicated." Sublett, 176 Wn.2d               at   73.   The


second       prong      of   the test is the " logic" prong,              which requires us          to determine "'      whether public




access plays a significant positive role in the functioning of the particular process in question. '

Sublett, 176 Wn.2d at 73 ( quoting Press -Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.

Ct. 2735, 92 L. Ed. 2d 1 (                  1986)).       To apply this test, we must be able to determine from the

appellate record the nature of the alleged courtroom closure.


             Because our review is limited to the record on appeal, we cannot determine whether the

                                                                                                               36
two     chambers'        conferences        Holtz   cites    implicated his        public    trial   rights.        And the record before


us does not show that the trial court closed the courtroom when it spoke to counsel after Holtz

was removed             from the      courtroom.          Furthermore, we are unaware of any case law holding that



35 Although only four justices signed the lead opinion in Sublett, Justice Stephens' concurrence
created      a   majority       who    adopted      the "    experience        and   logic" test.        Sublett, 176 Wn.2d at 136
    Stephens, J., concurring).              More recently, a unanimous Supreme Court cited Sublett in applying
the " experience and logic" test in In re Pers. Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d
872 ( 2013).

36
     The proper procedure for raising issues dependent on matters outside the record is by way of a
personal restraint petition.                McFarland, 127 Wn.2d                at   335.    Although Holtz has filed a PRP, he
raises this issue in his SAG, not his PRP.


                                                                          25
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



inadvertent            contact    with    jurors in         a   hallway     or    reviewing the   parties'   briefing in chambers

implicates         a    defendant'      s public    trial   right.      Accordingly, Holtz' s claimed public trial violations

fail.


             As to Holtz'         s   right- to   -be- present         claim,   37 a defendant has a constitutional right to be

present at all critical stages of the proceedings. State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d

79 ( 2004).         The February 14, 2012 hearing record shows that after Holtz was removed from the

courtroom,          the trial     court (   1)    briefly addressed counsel about a notation it was making on the

omnibus order stating that Holtz may want to represent himself; and ( 2) warned defense counsel

that the appellate courts have held that if a defendant chose " to act out in court in front of your


jury    to   try   to   sabotage your case,"           the superior court did not have to grant a mistrial. VRP ( Feb.


14, 2012) at 21.               The trial court' s brief comments to counsel do not constitute a critical stage of


the proceedings. Accordingly, Holtz' s right to be present claim fails.

                                                                M. Sentencing Issues

                                                                  1.   1988 offenses


             Holtz appears to assert that the court that sentenced him in 1989 improperly considered

two prior 1988 offenses ( third degree assault and second degree robbery) as separate offenses

even though the original sentencing court imposed concurrent sentences under former RCW

9. 94A.360( 6)(          a)(   1988).    Whether the 1989 court properly sentenced Holtz is irrelevant to Holtz' s

current       sentence.          And, to the extent Holtz is attempting to assert that the trial court here




37 We review de novo whether a trial court violated a defendant' s constitutional right to be
present. State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 ( 2011).



                                                                            26
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



improperly counted the two 1988 offenses as separate offenses when calculating his offender

score, this claim fails.


         The sentencing statute that applied here provided:

                       In the case of multiple prior convictions, for the purpose of computing the
         offender score, count all convictions separately, except:


                       i) Prior      offenses      which were    found,      under   RCW 9. 94A. 589( 1)(    a)   E381, to
         encompass the same criminal conduct, shall be counted as one offense, the
         offense       that   yields      the highest   offender score.       The current sentencing court shall
         determine with respect to other prior adult .offenses for which sentences were
          served concurrently or prior juvenile offenses for which sentences were served
          consecutively, whether those offenses shall be counted as one offense or as
          separate       offenses         using the "   same    criminal     conduct"    analysis found in RCW
          9. 94A.589( 1)(      a),       and if the court finds that they shall be counted as one offense,
         then the       offense      that   yields   the   highest   offender score shall    be   used.   The current

          sentencing court may presume that such other prior offenses were not the same
          criminal        conduct         from     sentences   imposed       on   separate   dates, or in separate
          counties or jurisdictions, or in separate complaints, indictments, or informations;


                        ii) In the case of multiple prior convictions for offenses committed before
          July    1,    1986, for the purpose of computing the offender score, count all adult
          convictions served concurrently as one offense, and count all juvenile convictions
          entered on       the   same       date   as one offense.        Use the conviction for the offense that
          yields the highest offender score.

                                    39
RCW 9. 94A.525( 5)(           a).




          Holtz committed the two 1988 offenses after 1986, so the trial court was not required to


count these offenses as one offense even if the 1988 court had imposed concurrent sentences.

RCW 9. 94A.525( 5)(            a)(   ii).    Furthermore, the record shows that the two 1988 offenses were


38
     The legislature      amended           former RCW 9. 94A.589 ( 2002) in 2014. LAws               OF   2014,     ch.     101, § 1.

This amendment did not change the relevant subsection; accordingly, we cite the current version
of the statute.

39
     The legislature       amended          former RCW 9. 94A. 525 ( 2011) in 2013.               LAws OF 2013, 2nd Spec.
Sess.,   ch.   35, § 8.    This amendment did not change the relevant subsections; accordingly, we cite
the current version of the statute.




                                                                     27
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


committed on        different days         and charged under             different    cause numbers.   CP   at       179, 186. Even


though the court imposed concurrent sentences for these two offenses, they were clearly not

same     criminal    conduct.           RCW 9. 94A. 589( 1)(           a) (   to be considered same criminal conduct, the


offenses must       be   committed at        the   same    time);       see also   former RCW 9. 94A.400( 1)(          a) (   1988) ( to


be   considered same criminal conduct,                    the    offenses must        be   committed at   the   same       time).   The


trial court did not err in counting the 1988 offenses as separate offenses in Holtz' s offender

score.




                                                           2. No wash out


                                        that his 1988 third degree                                        degree
                                                                                 assault40




          Holtz   next asserts                                                               and second               robbery41     and




                                                                                                                     46.    This claim
                         theft42


1990 first degree                   convictions "[ a] t some point must ` wash out. "'                 SAG      at




also fails.


          Under RCW 9. 94A. 525( 2)( b),                 class B felony offenses would wash out of an defendant' s

offender score " if since the last date of release from confinement ( including full -ime residential
                                                                                     t

treatment)    pursuant to a felony conviction, if any, or entry of judgment and sentence, the

offender had spent ten consecutive years in the community without committing any crime that

subsequently        results   in   a conviction."          Similarly,         under   RCW 9. 94A.525( 2)( c),         class C felony

offenses would wash out of the defendant' s offender score " if, since the last date of release from

4°
     Third degree     assault      is   a class   C    felony.    RCW 9A. 36. 031( 2). The legislature amended RCW
    9A.36. 031 in 2013. LAws
RCW .                                             OF   2013,     ch.   256, § 1.   The amendments did not alter the statute
in any way relevant to this case; accordingly, we cite the current version of the statute.

41 Second degree robbery is a class B felony. RCW 9A.56. 210.
42
     First degree theft is         a class    B    felony.       RCW 9A.56. 030( 2).           The legislature amended RCW
RCW 9A.36. 030 in 2013. LAWS                      OF 2013, ch. 322, §           2. The amendments did not alter the statute
in any way relevant to this case; accordingly, we cite the current version of the statute.



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Consolidated Nos. 43995 -6 -II and 45427 -1 - II



confinement ( including full -ime residential treatment) pursuant to a felony conviction, if any, or
                             t

entry of judgment and sentence, the offender had spent five consecutive years in the community

without    committing any        crime    that subsequently             results   in   a conviction."      Although Holtz' s


criminal history shows a 13 -year gap between his sentence for first degree robbery on January 5,

1994, and the date he committed his next offense in 2007, there is nothing in the record showing

Holtz' s last date of release from confinement for the 1994 first degree robbery conviction. Thus,

based on this record, Holtz does not show that any of his previous class B or C felony offenses

washed out of his offender score.

                                                          3.   Rioting

          Holtz   next asserts   that his rioting conviction is              not a     felony   offense.   Rioting is a gross

misdemeanor if the defendant was not armed with a deadly weapon when he committed the
                                                                   43
offense.      Former RCW 9A. 84. 010( 2)( a)          (   2003).         It is a class C felony if the defendant was

armed with a      deadly   weapon.     Former RCW 9A. 84. 010( 2)( b). The judgment and sentence shows


that the rioting     offense was   a   felony     offense.     To the extent Holtz is attempting to argue that his

counsel was ineffective for failing to advise him that this was a felony offense, any discussions

between Holtz and his counsel are outside the record, so we cannot address this issue further.

                                               4. Constitutional challenges


          Holtz    next   appears to     assert    the 2008      amendments            to RCW 9. 94A.500( 1)       and RCW


9. 94A.530( 2)      were unconstitutional because they shifted the burden of proof of the prior

convictions to the defense. This claim also fails.



43
     The former    crime of "rioting"     is   now called " criminal mischief."             RCW 9A. 84. 010; LAWS OF
2013,   ch.   20, § 1.




                                                                29
Consolidated Nos. 43995 -6 -II and 45427 -1 - I1


          In 2008, the legislature         amended           former RCW 9. 94A. 500( 1) ( 2006) to      state, "   A criminal


history   summary relating to the defendant from the prosecuting authority ...                         shall be prima facie


evidence of     the   existence and       validity     of    the   convictions   listed therein." LAws OF 2008, ch. 231,


  2.   At the   same       time, the legislature        also amended       former RCW 9. 94A.530( 2) ( 2005) to state,


 Acknowledgement includes . . .                      not objecting to criminal history presented at the time of

sentencing."     LAws       OF   2008,   ch.   231, § 4.


          We do       not    address     the 2008       amendment         to RCW 9. 94A. 530( 2)    issue because Holtz


objected to the criminal history the State presented at sentencing, so the presumption did not

apply here. We now turn to RCW 9. 94A.500( 1).

          In State    v.    Hunley,    175 Wn.2d 901, 914 -16, 287 P. 3d 584 ( 2012), our Supreme Court


held that the 2008 amendment to former RCW 9. 94A. 500( 1) was unconstitutional as applied. It

further held that if the State provided sufficient evidence to establish the prior convictions along

with any summary, RCW 9. 94A.501( 1) could be constitutionally applied. Hunley, 175 Wn.2d at

917.    Our record contains copies of the records the State submitted to establish Holtz' s prior


convictions, and Holtz does not now contend that those records were incomplete or inaccurate.


Accordingly, Holtz has             not   shown        that    amended     RCW 9. 94A.500( 1)     was   unconstitutional    as



applied here.


                                                5.    Community custody status

          Holtz further contends that his offender score was incorrect because he was not on




                                                                     30
Consolidated Nos. 43995 -6 -II and 45427 -1 - II



community custody at the time he committed the current offense. It appears that Holtz is relying
on facts that relate to another, previous conviction, to support this argument. Because this record

is not before us, we decline to consider this issue further. See McFarland, 127 Wn.2d at 335.

                            N. Proof of Previous No Contact Order Violations


       Finally, in his SAG and his PRP, Holtz challenges the validity of his predicate no contact

order violation convictions, asserting that the complaints in those matters did not allege the

essential   elements   of   the   crimes.     He contends that because the charging informations were

deficient, these prior offenses cannot be used to support the felony charge or to increase his

offender score.




        Holtz cannot collaterally attack his earlier convictions by raising these issues in this

appeal unless he can demonstrate that the prior convictions were void rather than merely

erroneous.    City   of Seattle   v.   May,   171 Wn.2d 847, 861, 256 P. 3d 1161 ( 2011); see also State v.


Dereiko, 107 Wash. 468, 470, 182 P. 597 ( 1919);               State v. Johnston, 17 Wn. App. 486, 497, 564,

P. 2d 1159,   review   denied, 89 Wn.2d 1007 ( 1977). Holtz does not show that his prior convictions




                                                          31
Consolidated Nos. 43995 -6 -II and 45427 -1 - II


            44
were   void.     Accordingly, Holtz is not entitled to relief on this ground.

         We affirm Holtz' s conviction and sentence and deny his personal restraint 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.




44 Holtz' s reliance on cases stating that informations must contain the essential elements of the
charged offense is misplaced. The cases Holtz cites address challenges to informations related to
the    convictions   the    appellants     were   appealing, not to the convictions' underlying, predicate
offenses.    See State     v.   Leach,   113 Wn.2d 679,   782 P. 2d 552 ( 1989); State v. Cochrane, 160 Wn.

App.    18, 253 P. 3d 95 ( 2011);        City ofBothell v. Kaiser, 152 Wn. App. 466, 217 P. 3d 339 ( 2009).



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