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

STATE OF WASHINGTON,                      ])     No. 72018-0-1

                     Respondent,
                                                                                      c    .


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          V.                              ^i



JASON LEE BYRON,                          ]      UNPUBLISHED OPINION

                    Appellant.            ]      FILED: January 25, 2016


      Verellen, A.C.J. — Jason Byron appeals his convictions for attempting to elude a

pursuing police vehicle and possession of a stolen vehicle. He contends that his counsel

was ineffective because she did not stipulate to the State's allegation that he was on

community custody on the date of the charged offenses. But Byron expressly told his

counsel that he wanted to compel the State to prove his community custody status. His

counsel's decision to follow his instruction elevated the State's burden of proof on the

issue to beyond a reasonable doubt. Given Byron's community corrections officer's (CCO)

inability to recite when Byron's community custody period began, tolled, and

recommenced, there was uncertainty whether his CCO had a factual basis to establish

Byron's status on the date of the offenses. Even assuming deficient performance, the

strong evidence connecting Byron to the crimes reveals no reasonable probability that the

outcome would have been different. Accordingly, his claim of ineffective assistance fails,

and we affirm.
No. 72018-0-1/2


                                          FACTS

      Shortly after midnight on September 7, 2013, Washington State Patrol Trooper

Anson Statema was parked on a park-and-ride access overpass. He observed Jason

Byron drive a motorcycle onto the freeway southbound and accelerate rapidly. Trooper

Statema visually estimated the motorcycle's speed at 75 to 80 miles per hour in a 60-mile-

per-hour zone. Trooper Statema pursued. As Trooper Statema attempted to pull up

alongside the motorcycle to observe its license plate, Byron suddenly accelerated to a

speed of 120 miles per hour. After Byron moved to the right lane as though he intended to

exit the freeway, Trooper Statema activated his emergency lights and siren.

      Byron continued towards the exit. He took the off-ramp and drove over a curb into a

grassy median area before sliding sideways on the grass and falling over. Byron stopped

for a moment on his hands and knees in the grass, looked at Trooper Statema, and then

began running southbound along the freeway ramp.

      Trooper Statema observed that Byron was wearing blue jeans and black and white

shoes. Trooper Statema initially did not pursue him on foot and stayed with the

motorcycle. He watched Byron discard his motorcycle helmet down an embankment and

continue to flee. Trooper Statema then drove to the other side of the freeway overpass,

where he observed "a white male, with the same black and white shoes, and blue jeans,

and a black T-shirt, but now without his helmet or jacket" climbing up onto the freeway

ramp from an area thick with blackberry bushes.1 Trooper Statema drove to another

location on the overpass, where he saw "the same white male with short brown hair,

wearing the black t-shirt, blue jeans, and black and white shoes, walking east from the


        Clerk's Papers (CP) at 58.
No. 72018-0-1/3


overpass."2 Byron looked back to Trooper Statema's car, its emergency lights still

activated, and started running quickly across the street, where he disappeared between

two apartment buildings.

          Additional Washington State Patrol troopers arrived shortly thereafter and set up a

containment perimeter. Seattle Police Department officers also arrived and provided a

police dog. The dog tracked the area from where Byron had discarded his helmet to an

apartment building approximately one-and-a-half blocks away, where it located Byron lying

down on a second-floor landing. He was sweating heavily, had grass seeds and leaves all

over his shirt and face, and had dirt stains on his knees. The police placed him under

arrest.


          The motorcycle Byron had been driving had a partially filed-off vehicle identification

number. The motorcycle's only other marking was an invalid motorcycle temporary tag

affixed underneath the seat. The motorcycle was later identified by its true owner, who

testified that it had been stolen from a parking lot in Seattle on June 17, 2013.

          The State charged Byron with one count of attempting to elude a pursuing police

vehicle and one count of possession of a stolen vehicle. The charging document also

asserted that Byron was on community custody on the date of the charged offenses which,

if proven, would result in an increase in his offender score by one point for each

conviction.3 The Snohomish County Public Defender's Office initially represented Byron,

but on January 30, 2014, the day before his trial was set to begin, Byron hired private

counsel.




          2\±
          3RCW9.94A.525(19).
No. 72018-0-1/4


       During pretrial motions on the first day of trial on April 21, 2014, the prosecutor

acknowledged that he had sat down with Byron's new counsel and explained to her the

standard local practice of having the judge, rather than the jury, determine whether a

defendant was on community custody at the time the present offenses were committed

and that this fact was typically presented to the judge through an agreed stipulation. The

prosecutor advised the trial court that it was Byron and his counsel's "decision to not

stipulate to that."4 Byron's counsel responded that she had "urged" Bryon to stipulate to

his community custody status but that he had told her "no," "let them prove it."5 Byron's

counsel told the trial court "[i]t was his choice."6

       Before any testimony was presented, the State offered defense counsel an

opportunity to interview Byron's CCO. The interview occurred during a lunch recess.

Before commencing with the CCO's testimony, the trial court granted defense counsel's

request for an additional 10 minutes to further question the CCO. Following the recess,

defense counsel moved to exclude the CCO's testimony, stating that the new information

she learned from the CCO presented a question as to whether Byron "was, in fact, validly

on community custody."7 Defense counsel explained that because the CCO could not

testify as to when Byron's community custody period began, tolled, or recommenced, that
the CCO could not demonstrate how Byron's 18-month community custody period could

last over several years.




       4 Report of Proceedings (Apr. 21, 2014) at 14.
       5 id, at 18.
       6id
        7 Id. at 54.
No. 72018-0-1/5


       The trial court acknowledged that "it may well be that there is an issue" with the

CCO's testimony and that there may be "some question with regard to the failure to have a

chronology," but denied defense counsel's motion.8 The court explained that defense

counsel's issues with the CCO's testimony were "issues which cross-examination and

contradiction, if necessary, are designed to deal with."9

      The State's direct examination of the CCO was brief. The CCO testified that his job

involved supervising people after they had been convicted of a crime. The CCO identified

Byron in the courtroom and affirmatively stated that Byron was on community custody on

September 7, 2013. The CCO further testified that Byron's community custody was

originally supervised in Spokane, but transferred to Seattle after October 30, 2013 when

Bryon moved to the area and was arrested for the September 7, 2013 offenses.

       On cross-examination, the CCO testified that he could not remember the exact date

on which Byron's 18-month community custody period started, but stated that it originated

from a 2008 sentencing. The CCO explained that a defendant's community custody period

tolls when a court issues an arrest warrant. As a result of Byron's seven community

custody violations and subsequent arrest warrants, his community custody obligation had

tolled seven times. The CCO further testified that most of Byron's community custody

violations "took place because of his failure to report" to his CCO.10 But the CCO could not

testify as to when in between 2008 and 2013 Byron was actively supervised on community

custody versus when his community custody period had tolled. The CCO acknowledged

that he could have printed out those dates from the Department of Corrections' records but


       8 Id, at 54-55.
       9ld,
       10 Id. at 69.
No. 72018-0-1/6


that he failed to do so. He also indicated that he may have met Byron over eight years ago

when he reported to his office "maybe for a previous case."11

      Jurors ultimately convicted Byron as charged, answering "yes" to the special verdict

question regarding Byron's community custody status on the date of the offenses. With

the additional point added onto each conviction for his community custody status, the trial

court concluded that he had an offender score of 7 and imposed a total standard range

sentence of 29 months.

       Byron appeals.

                                         ANALYSIS


                              Effective Assistance of Counsel

       Byron contends that his counsel was ineffective because she made his community

custody status an issue for the jury to consider. We disagree.

      We review ineffective assistance claims de novo.12 Both the state and federal

constitutions guarantee criminal defendants the right to effective assistance of counsel.13
To establish an ineffective assistance claim, a defendant must show deficient performance

and resulting prejudice.14

       Counsel's performance is deficient if it falls "below an objective standard of

reasonableness."15 To establish deficient performance, the defendant must show the




       111^75.
       12 State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
       13 State v. Grier, 171 Wn.2d 17, 32 , 246 P.3d 1260 (2011).
       14 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984): State v. Nichols. 161 Wn.2d 1,8, 162 P.3d 1122 (2007).
       15 State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001).
No. 72018-0-1/7


absence of any "conceivable legitimate tactic" supporting counsel's action.16 We strongly

presume counsel's performance was reasonable.17

       To establish prejudice, the defendant must show there is a reasonable probability

that, but for the deficient performance, the outcome would have been different.18 "A

reasonable probability is a probability sufficient to undermine confidence in the outcome."19

Failure to establish either prong of the test is fatal to an ineffective assistance of counsel

claim.20

       Byron relies on State v. Jones21 and State v. Wheeler22 for the proposition that "the

issue of community custody status under RCW 9.94A.525 is not part of the determination

of guilt on the current offense to be proved to a jury beyond a reasonable doubt. Instead, it

is a sentencing issue for the court to resolve by a preponderance of the evidence."23

       In Jones, two defendants from separate cases argued that their Sixth Amendment

right to a jury trial had been violated when their respective sentencing judges, "rather than

a jury, determined that they were on community placement at the time of the present

crime."24 Our Supreme Court disagreed and concluded "that the United States

Constitution does not require a jury to examine the record associated with a prior criminal


       16 State v. Reichenbach. 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
      17 Strickland. 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d
1251 (1995).
       18 Nichols. 161 Wn.2dat8.
       19 Strickland, 466 U.S. at 694.
       20 id, at 700.
       21 159Wn.2d231, 149 P.3d 636 (2006).
       22145 Wn.2d 116, 34 P.2d 799 (2001).
       23 Appellant's Br. at 10.
       24 Jones, 159Wn.2dat235.
No. 72018-0-1/8


conviction to determine the defendant's community placement status."25 Similarly, in

Wheeler, our Supreme Court held that the State was not required to prove a defendant's

prior convictions to a jury beyond a reasonable doubt in order for the defendant to be

sentenced to life imprisonment without the possibility of parole.26 There, as in Jones, the

sentencing court did not offend state or federal constitutional law principles by making the

community custody determination at sentencing by a preponderance of the evidence.27

       Byron suggests he was disadvantaged by allowing the jury to become aware of his

prior community custody. But, similar to the goals of the defendants in Jones and

Wheeler, he was potentially benefited by requiring the State to prove additional facts to the

jury beyond a reasonable doubt. Even though Byron has no constitutional right to force a

jury to decide this issue beyond a reasonable doubt, that does not mean it could not

benefit Byron to agree to this higher burden of proof on the State.

       Here, Byron's counsel was expressly informed of the State's standard practice of

stipulating to a defendant's community custody status so that the issue was "not inside the

province of the jury."28 Further, she advised Byron to stipulate. But Byron expressly

communicated to her that he wanted to compel the State to prove his community custody

status. And the court instructed the jury that in order to answer "yes" on the special verdict




       25 Id, at 239 (emphasis added), 241 ("Washington's sentencing courts must be
allowed as a matter of law to determine not only the fact of a prior conviction but also those
facts 'intimately related to [the] prior conviction' such as the defendant's community
custody status." (emphasis added) (alteration in original) (quoting United States v. Moore,
401 F.3d 1220, 1225 (10th Cir. 2005))).
       26 Wheeler, 145 Wn.2d at 116.
       27 Id. at 121: Jones, 159 Wn.2d at 234.
       28 RP (Apr. 21, 2014) at 14.


                                              8
No. 72018-0-1/9


form regarding Byron's community custody status on September 7, 2013, the jury had to

"unanimously be satisfied beyond a reasonable doubt."29

       Byron fails to demonstrate that his counsel's performance in following his decision

not to stipulate "fell below an objective standard of reasonableness."30 Here, the facts

elicited during defense counsel's interview of the CCO prior to trial demonstrated that there

was uncertainty whether Byron was on community custody on September 7, 2013, given

the CCO's inability to recite when Byron's community custody period exactly began, tolled,

and recommenced. Without those dates, it was not unreasonable for defense counsel to

predict that a jury might have difficulty finding in favor of the community custody allegation

beyond a reasonable doubt.

       Still, Byron argues that he suffered prejudice because there is a reasonable

probability that, "but for his counsel's error, the result of the trial would have been

different."31 He asserts the facts presented at trial "left room for reasonable doubt" to

convict him of the charges and speculates that once the jurors learned about his "criminal

history, which went back many years, and his repeated failure to abide by community

custody conditions, they were more likely to conclude he committed the charged crimes

because he was precisely the sort of individual who would engage in such conduct."32 But

because the mere allegation of prejudice is inadequate to prevail on an ineffective

assistance of counsel claim, Byron's argument fails.33



       29 CP at 51.
       30 Townsend. 142 Wn.2d at 843-44.
       31 Appellant's Br. at 12.
       32 Id,
       33 See McFarland. 127 Wn.2d at 334, 337.
No. 72018-0-1/10


       Byron must demonstrate a reasonable probability "based on the record" that the

outcome would have been different.34 There is no evidence in the record supporting

Byron's claim. While the jury learned that Byron received 18 months of community

custody from a previous sentencing, it was not made aware of any facts relating to that

sentencing or any facts relating to his community custody violations other than that he was

unable to maintain contact with his CCO.

       Even assuming defense counsel's decision to follow Byron's instruction was

deficient, Byron does not establish a reasonable probability that, but for this error, the

outcome of his trial would have been different. Here, the majority of the driving portion of

Byron's crime was captured on Trooper Statema's mounted dash camera and was
admitted for the jury to see. Further, Trooper Statema testified that the police were able to
successfully establish a containment zone around Byron and that, due to the efforts of a
highly qualified police dog trained in tracking human scent and her highly qualified police
handler, they were able to locate him nearby.

       This dog track benefited from a "very clean start point" that involved no
contamination from uninvolved parties.35 The track also occurred during an early morning

hour when there were no pedestrians nearby to offer distracting scents. The dog tracked
straight from the motorcycle to the discarded helmet and ultimately tracked along the same
path that Trooper Statema had observed Byron take. The police dog handler testified that
his dog's performance in this case was "one of her most technically impressive to watch
because she seemed to be focused the entire way, had no problems with the track."36


       34 id, at 337.
       35 RP (Apr. 22, 2014) at 34.
       36 id, at 40.

                                               10
No. 72018-0-1/11


       The dog tracked directly to Byron, who was found lying down on a second floor

walkway of an apartment complex, sweating, with brush on his face and shirt and dirt

stains on his knees. The jury received a photograph of Byron's appearance after he was

caught. All of these details were consistent with Trooper Statema's testimony that he had

observed Byron fall onto his hands and knees in the grass and run off in a direction that

would have taken him through an area thick with blackberry bushes.

       Because Byron fails to demonstrate that his and his counsel's decision to elevate

the State's burden of proof on the issue of his community custody status prejudiced him,

his claim of ineffective assistance of counsel fails.

       Affirmed.




WE CONCUR:




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