                                                                            FILED
                                                                      August 16, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill



          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                             DIVISION THREE
THE STATE OF WASHINGTON,                     )
                                             )
                                                       No. 34073-2-111
                                             )
                    Respondent,
                                             )
                                             )
                                             )
     V.
                                             )
JO ILENE TANYA MAXWELL,                      )
                                                       UNPUBLISHED OPINION
                                             )
                                             )
                    Appellant.
                                             )


      KORSMO, J. -Joilene Tanya Maxwell appeals her Benton County bench trial

conviction for failure to register as a sex offender. She contends her counsel was

ineffective for waiving a CrR 3 .5 hearing and failing to move to suppress statements she

made to a sheriffs office employee. We affirm.

                       FACTS AND PROCEDURAL HISTORY

      Joilene Maxwell has a 1989 first degree child molestation conviction that requires

her to register as a sex offender. She has two prior convictions from 1998 and 2011 for

failure to register as a sex offender. On February 20, 2015, she registered with the

Benton County Sheriffs Office as a transient sex offender. As part of the registration,

she is required to tum in weekly transient check-in sheets. In October 2015, the State
No. 34073-2-III
State v. Maxwell


charged her with failure to register as a sex offender for allegedly failing to turn in her

weekly check-in sheets during the time intervening between September 9, 2015 and

October 6, 2015. She waived her right to a jury trial.

       At the outset of the bench trial, Ms. Maxwell's counsel brought up as a

preliminary matter:

              There was a statement made to a sheriffs deputy when [Ms. Maxwell]
       was served with a 72-hour hold document, and there was a statement that was
       made that was not responsive to any questioning at all, so it's not a custodial
       statement in response to interrogation, so there is not a 3.5 issue, Your
       Honor.

Report of Proceedings (Dec. 14, 2015) (RP) at 5-6. The deputy prosecutor concurred.

The court thus did not hold a CrR 3.5 hearing.

       Dianne McCants is the sex offender registration clerk for Benton County and the

primary point of contact for anyone who has a sex offender registration requirement.

Sheriffs Detective Dave Wilson is assigned to monitoring sex offenders in the county.

Both testified at trial that the procedure for transient offenders is to turn in a weekly

check-in sheet every Wednesday to a locked drop box in front of the sheriffs office.

They are the only individuals with access to the key to the drop box, which has a slot

approximately the length of a ballpoint pen and not wide enough for anyone to stick a

finger into. One of them checks the box either Thursday, Friday, or the following

Monday and brings the check-in sheets immediately back to the office and enters them as

verified into the State's Offender Watch database.


                                               2
No. 34073-2-III
State v. Maxwell


       Ms. McCants testified that she explained the reporting requirements to Ms.

Maxwell when she registered on February 20, 2015, and that Ms. Maxwell did not have

any questions. She properly turned in her check-in sheet each week from February 20

through September 2, 2015. But according to Ms. McCants and Detective Wilson, she

failed to turn in her check-in sheet for four straight weeks-on September 9, September

16, September 23, and September 30. She was taken into custody on another matter on

October 6, 2015.

      Later in October, Ms. McCants learned that Ms. Maxwell was about to be released

from jail. At Ms. Mccants' request, the prosecutor approved a 72-hour hold for pending

charges of failing to register. Ms. McCants then went to the jail and spoke with Ms.

Maxwell. Ms. Mccants testified as follows about their conversation:

      [The State:] Okay. And what did ... she tell you? Did you ask her about
      check-in?
      [Ms. McCants:] I did.
      [The State:] And what was her response?
      [Ms. McCants:] I did. We had a conversation about that and I let her know
      that there was a ... 72-hour hold for charges for failing to register. And I
      asked ... "why didn't you check in? You know, you forgot to drop off your
      check-in sheets. We didn't get them." And at that time she said, "Well, I
      was using-I was using, so maybe I forgot."
      [The State:] Okay. Did she ever tell you that she had brought them in and
      you must have lost them?
      [Ms. Mccants:] No.

RP at 22. Ms. Maxwell's counsel did not object during this testimony and no one

broached the subject of a CrR 3.5 hearing.




                                             3
No. 34073-2-III
State v. Maxwell


       Defense counsel's cross-examination of Ms. Mccants focused on the reporting

procedures and inquiry whether the sheriffs office could have lost or misplaced Ms.

Maxwell's check-in sheets. Ms. McCants testified there are approximately 18 transient

sex offenders registered with the Benton County Sheriffs Office. To her knowledge, a

weekly check-in sheet has never been lost in the approximately three years the box has

been used. Detective Wilson likewise testified that to his knowledge he has never lost a

check-in sheet from a transient offender.

       Ms. Maxwell testified on her own behalf. She said she dropped off her weekly

check-in sheets in the drop box on September 9, September 16, September 23, and

September 30, and that her fiance Douglas Barnes was with her each time. She denied

telling Ms. McCants that she must have forgotten to tum her sheets in. She said she told

Ms. Mccants, "I did bring them in and put them in the box." RP at 43. Mr. Barnes

similarly testified that he accompanies Ms. Maxwell when she drops off her weekly

check-in sheets and was with her each time all through the month of September.

       The court made findings reflecting the above testimony, including a specific

finding that Ms. Maxwell did not tum in weekly check-in sheets for September 9,

September 16, September 23, and September 30, 2015. In weighing witness credibility,

the court found the State's witnesses did not have an interest in the case, but that Ms.

Maxwell and Mr. Barnes did. The court found it was not believable that the Benton

County Sheriffs Office lost four weekly transient check-in sheets in a row. The court


                                             4
No. 34073-2-III
State v. Maxwell


additionally determined "[t]he defendant's statement that she had forgotten is consistent

with the testimony of Dianne Mccants and Detective Mike Wilson." Clerk's Papers at

30 (Conclusion of Law 5). The court found Ms. Maxwell guilty of failure to register as a

sex offender beyond a reasonable doubt. She appeals.

                                      DISCUSSION

       Ms. Maxwell's sole contention on appeal is that her counsel gave her ineffective

assistance by waiving a CrR 3.5 hearing and failing to move to suppress her custodial

statements made to Ms. Mccants-a state agent-without the benefit of Miranda 1

warnings.

       We review claims of ineffective assistance of counsel de novo. State v. Cross, 156

Wn.2d 580, 605, 132 P.3d 80 (2006). To prevail on an ineffective assistance claim, a

defendant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668,

687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a defendant must show that

counsel's representation fell below an objective standard of reasonableness. State v.

Hendrickson, 129 Wn.2d 61, 77, 917 P .2d 563 ( 1996). Second, the defendant must show

the deficient performance was prejudicial. Id. at 78. Prejudice occurs when it is

reasonably probable that but for counsel's errors, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694. We presume that the defendant received·




      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                             5
No. 34073-2-III
State v. Maxwell


adequate representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995).

       As Ms. Maxwell points out, Miranda warnings must be given when a suspect

endures custodial interrogation by an agent of the State. State v. Sargent, 111 Wn.2d

641,647, 762 P.2d 1127 (1988) (citing Miranda, 384 U.S. at 444). "[T]he term

'interrogation' under Miranda refers not only to express questioning, but also to any

words or actions on the part of the police ... that the police should know are reasonably

likely to elicit an incriminating response from the suspect." Sargent, 111 Wn.2d at 650

(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297

( 1980) ). And Miranda "applies not only to law enforcement officers, but to any 'agent of

the state' who 'testifie[s] for the prosecution' regarding the defendant's custodial

statements." State v. Heritage, 152 Wn.2d 210,216, 95 P.3d 345 (2004). Without

Miranda warnings, a suspect's statements during custodial interrogation are presumed

involuntary. Id. at 214 (citing Sargent, 111 Wn.2d at 647-48).

       Ms. Maxwell contends, and the State does not dispute, that Ms. McCants was a

state agent who elicited custodial incriminating statements about why she did not drop off

her check-in sheets. Ms. Maxwell then asserts her statements are presumed involuntary

under Heritage because they were not preceded by Miranda warnings, and thus her

attorney performed deficiently by waiving a CrR 3 .5 hearing and not moving to suppress

the statements. She contends she was prejudiced by counsel's performance because the


                                             6
No. 34073-2-IIl
State v. Maxwell


trial court relied on her incriminating statements as substantive evidence in making its

determination of guilt.

       The State, on the other hand, contends counsel was not deficient for stipulating to

admissibility of the statements and waiving a CrR 3.5 hearing because counsel's

understanding at the time of the waiver was that Ms. Maxwell's statements were not in

response to any interrogative questions. The State further contends Ms. Maxwell

suffered no prejudice from counsel's performance in any event because the court found

the State's witnesses credible and the evidence of guilt was overwhelming.

       Both parties' contentions miss the mark. The trial court record contains no

evidence whatsoever as to whether Ms. Maxwell received Miranda warnings before

speaking with Ms. McCants. When an ineffective assistance claim is raised on appeal,

the reviewing court may consider only facts within the record. State v. McFarland, 127

Wn.2d at 335. "The burden is on a defendant alleging ineffective assistance of counsel to

show deficient representation based on the record." Id. Because the record is insufficient

to permit our review of counsel's decision not to request a CrR 3.5 hearing or move to

suppress the statements that Ms. Maxwell made to Ms. Mccants, her ineffective

assistance claim fails. Id. at 335. 2




       2
         When, as here, a defendant's claim of ineffective assistance depends on evidence
or facts not in the existing trial record, the appropriate means of raising the issue is a
personal restraint petition under RAP 16.4. State v. McFarland, 127 Wn.2d at 335.

                                             7
No. 34073-2-III
State v. Maxwell


       Finally, we grant Ms. Maxwell's motion-supported by good cause and filed prior

to this court's setting this case on the docket for decision-to enlarge the 60-day time

period under our June 10, 2016 General Order to file a motion to deny appellate costs.

       RAP 14.2 states, "A commissioner or clerk of the appellate court will award costs

to the party that substantially prevails on review, unless the appellate court directs

otherwise in its decision terminating review." Under RCW 10.73.160(1), we have broad

discretion to grant or deny appellate costs to the prevailing party. See State v. Nolan, 141

Wn.2d 620,626, 8 P.3d 300 (2000); State v. Sinclair, 192 Wn. App. 380,388,367 P.3d

612 (2016). Ms. Maxwell was declared indigent for purposes of this appeal. She has

submitted proof of her continued indigency and additionally moves this court to exercise

its discretion and deny the State appellate costs. The State has responded that it takes no

position on Ms. Maxwell's motion and defers to this court. Given Ms. Maxwell's lack of

assets and relatively large amount of outstanding legal financial obligations as shown on

her report of continued indigency, she does not have the present ability to pay appellate

costs. And given her felony criminal history and reported disabilities that may interfere

with her ability to work, it is questionable whether she will have the future ability to pay.

The State acknowledges that she may not have the ability to pay appellate costs.

Accordingly, exercising our discretion, we grant Ms. Maxwell's additional motion and

decline to award appellate costs to the State.




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No. 34073-2-III
State v. Maxwell


      Affirmed.

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

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

2.06.040.




WE CONCUR:




      Lawrence-Berrey, J.




                                           9
