                                                                               FILED
                                                                         LOUR of APPEALS
                                                                             DIVISION B.

                                                                        21115 JAN 13      Mill: 13

                                                                         STATE OF WASHINGTON

                                                                         BY
                                                                                     PUTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

    STATE OF WASHINGTON,                                                   No. 44558 -1 - II


                                    Respondent,


           v.



    CHRISTOPHER EUGENE SETZER,                                    UNPUBLISHED OPINION


                                    Appellant.


          JOHANSON, C. J. —        A jury convicted Christopher Eugene Setzer of felony telephone

harassment by threatening to kill the person harassed.1 Following an evidentiary hearing on a
remanded personal restraint petition (PRP), the superior court dismissed Setzer' s PRP in which he

argued    he had   received   ineffective   assistance of counsel on   three   grounds.   Setzer appeals the


superior court' s decision. Finding no error, we affirm.

                                                    FACTS


          Setzer' s conviction arose from an incident in which he threatened to kill Duane McCollum,


a service manager at Richie' s Tire Factory, during a telephone call after Sezter' s car was apparently



1
    RCW 9. 61. 230( 2)( b).
No. 44558 -1 - II



damaged      at   the tire   store.   See State v. Setzer, noted at 152 Wn. App. 1004, 2009 WL 2836621

 2009),    review    denied, 170 Wn.2d 1006 ( 2010).        The State charged Setzer with felony telephone

harassment by threatening to kill the person harassed, and the case proceeded to a jury trial.

                                           I. TRIAL COURT PROCEEDINGS


          During the jury selection process, the court clerk selected slips of paper containing the

prospective jurors' names from a box and seated the 38 prospective jurors in the order of selection.

Setzer observed at least some of this process and made some type of objection about the process


to his counsel, Steven Thayer. Thayer did not bring Setzer' s objection to the trial court' s attention.

           After the venire was seated, the trial court questioned the prospective jurors about whether

they knew any witnesses or counsel involved in the case. The prospective juror seated in the 4th
position was excused for cause because he was a personal friend of Dave Monte from the tire store

and had stated that this relationship would likely influence his judgment of Monte' s credibility.

The prospective juror seated in the 13th position stated that she had had work done on her car at

the tire   store    in the   past and   that she   knew Monte from that   contact.   After she stated that this


would not affect her ability to remain impartial, neither party moved to excuse this juror.

           An unidentified prospective juror also stated that Monte was her husband' s friend and that

 she had been scheduled to take her car into the tire store that day. After she confirmed that she did

 not think that this would affect her ability to remain impartial, neither counsel moved to excuse

 her. Later, an unidentified prospective juror2 also stated that she knew McCollum, apparently from




 2 It is not clear from the record whether this was another unidentified juror or the same unidentified
 juror.



                                                           2
No. 44558 -1 - II



having seen his name on his shirt at the tire store. Neither party moved to excuse this prospective

juror after she stated that her familiarity with McCollum would not influence her.

             The trial   court   then     asked   the   venire   if   anyone    knew Dean       Gregory from       Carson.        One


prospective juror, Dana Miles, responded that she may have gone to elementary and high school

with   Gregory,      who was now           in his 30s, in Lyle, Washington. The trial court then asked Miles


about how this would affect her ability to serve as a juror:

                     THE COURT: Okay. So if you know him, how would that affect you if he
             testifies as a   witness?     If you can say without --
                     MS. MILES: Negative. It would be negative.
                     THE COURT: Okay. So you' ve already formed an opinion, then?
                     MS. MILES: Based on my prior knowledge, correct.


Clerk'   s   Papers ( CP)     at   243.    The trial    court excused         Miles   at   Thayer'   s request.   Thayer did not


move to strike the remaining venire.

             During the trial, Gregory testified that he had seen the damage to Setzer' s truck and that he

had overheard Setzer' s telephone call to McCollum. He also testified that he " heard Setzer threaten

to sue McCollum but              denied that Setzer swore             or   threatened to kill McCollum."          CP   at   21.   The


jury found Setzer guilty as charged.

                                                        II. APPEAL AND PRP


             We affirmed Setzer' s conviction in an unpublished decision. See Setzer, noted at 152 Wn.

App.     1004.     In this decision, we declined to consider Setzer' s numerous ineffective assistance of

 counsel claims because they related to matters outside the record. Setzer, 2009 WL 2836621, at
  3.


             Setzer then filed       a    PRP.    In this PRP, Setzer alleged that he had received ineffective

 assistance of counsel on various grounds.                   We transferred the PRP to the Clark County Superior


                                                                      3
No. 44558 -1 - II



Court for an evidentiary hearing and a decision on the merits under RAP 16. 12. We directed the

superior court to consider whether Thayer provided ineffective assistance by ( 1) failing to move

to disqualify the jury venire after Setzer informed him that he ( Setzer) had viewed the clerk

intentionally pick three prospective jurors associated with the State' s complaining witness when

seating the   venire, (   2) failing to move to disqualify the jury venire or use a peremptory challenge

when Setzer told him that one of the potential jurors had lied, had ill -will toward him, and had

tainted the jury pool, and ( 3) failing to move for a continuance after Setzer informed him that his

 Setzer' s) chronic pain and prescription narcotics made it impossible to participate in his own

defense.


                                         III. EVIDENTIARY HEARING


        The superior court held an evidentiary hearing on this matter.3 Based on the testimony at

this hearing, the superior court issued a written memorandum opinion summarizing the evidence

presented and making finding of facts as to each issue.

         As to the ineffective assistance of counsel claim based on counsel' s failure to move to

dismiss the venire because of the trial court clerk' s alleged misconduct in seating the jurors, the

superior court made the following findings of fact:

                 This court concludes the court clerk followed proper procedure in the [ sic]
         selecting the jurors' names from the box. It is noted no challenge has been made
         to the Clark County venire as lacking random selection; therefore, the slips of
         names delivered to the court clerk were already the result of a random selection
         process from which the clerk was selecting the order of seating. The clerk followed
         the procedure ( in place at the time) of placing the slips of paper with the names in
         the box, spinning the box,       and   selecting randomly for the   order of   seating.   The
         clerk could not see      into the box.   The only information on the slips of paper were
         the names of prospective jurors; there was no information on the slips of paper


 3 Trial court clerk Doreen Shinabarger, Thayer, and Setzer testified at this hearing.


                                                        4
No. 44558 -1 - II



        which would make it possible for the clerk to select for any connection to the case.
        In addition, the clerk had no information or possible bias to " stack the jury" against
        the defendant. There was no prejudice to the defendant based upon the actions of
        the Clerk.      Defendant' s experienced and well -qualified attorney made tactical .
        decisions, challenging prospective jurors when he had legal cause, as can be seen
        from the      record   of   the          Counsel was not ineffective in failing to
                                          proceedings.

        challenge the entire jury panel or the legality of the process.

CPat364.


        The superior court then addressed the ineffective assistance of counsel claim based on

counsel' s failure to move to disqualify the venire or use a peremptory`strike to excuse Miles whom

Setzer alleged had lied, had ill -will towards him, and had tainted the jury pool. The superior court

made the following findings of fact:

                    The trial judge recognized the juror had formed a negative opinion as to a
         defense witness. Mr. Thayer challenged the juror for cause, and she was excused.
         Any failure of the witness to recognize defendant or reveal she had a negative
         opinion of     him    was   irrelevant   as   the juror   was   excused   for   cause.   The actual

         statements ofthe juror in the presence ofother jurors were very limited. There was
         an insufficient basis to challenge the entire panel based on the negative opinion of
         one prospective juror about a potential defense witness. As Mr. Thayer concluded,
         it is highly unlikely the court would have granted such a challenge, if made.
         Counsel was not ineffective for failing to challenge the entire panel based on the
         statement of Ms. Miles.


CP at 366 ( emphasis added).


         Finally, the superior court addressed the ineffective assistance of counsel claim based on
counsel' s failure to move for a continuance after Setzer informed counsel that his ( Setzer' s)

 chronic pain and use of prescription narcotics made it impossible for him to participate in defense.

 The superior court made the following findings of fact:

                 The defendant has suffered injuries which have resulted in chronic pain.
         The medical record admitted as Exhibit 3 indicates the defendant had been
         prescribed medications for pain management. However, the defendant' s attorney,
         who discussed all aspects of the case with him over the period of a year, found
         defendant to be an intelligent man, and did not note any mental impairment or

                                                             5
No. 44558 -1 - II



        disability during the trial. The defendant wanted to go to trial. The defendant' s
        own testimony concerning jury selection, although not completely accurate on a
        word -for -word basis with the record of proceedings, shows he was aware of the
        proceedings       and communicated with              his attorney      during    the trial.   Defendant has
        failed to establish his attorney was ineffective in failing to request a continuance.

CP at 367 ( emphasis added).


        The superior court concluded that Setzer had failed to show any deficient performance or

prejudice and "     denied   and   dismissed" the      petition.     CP   at   368. Setzer appeals the superior court' s


decision.


                                                          ANALYSIS


              I. STANDARD OF REVIEW AND INEFFECTIVE ASSISTANCE OF COUNSEL TEST

          A decision of a superior court in a personal restraint proceeding transferred to that court

for a determination on the merits is subject to review in the same manner and under the same

procedure as      any   other   trial   court   decision."    RAP 16. 14( b). "[         T] he petitioner has the burden of


proving issues in       a reference      hearing by   a preponderance of           the   evidence."    In re Pers. Restraint


of Gentry, 137 Wn.2d 378, 410, 972 P. 2d 1250 ( 1999).
                                                                                We review the superior court' s factual


findings for      substantial evidence.         Gentry,   137 Wn.2d       at   410. "'   Substantial evidence exists when


the record contains evidence of sufficient quantity to persuade a fair -minded, rational person that

 the declared     premise   is true. '    Gentry, 137 Wn.2d at 410 ( quoting Ino Ino, Inc. v. City ofBellevue,

 132 Wn.2d 103, 112, 937 P. 2d 154, 943 P. 2d 1358 ( 1997), cert. denied, 522 U.S. 1077 ( 1998)).


 We do      not    review    the   court' s     credibility determinations.              Gentry, 137 Wn.2d at 410 -11.

  Conflicting evidence may still be substantial, so long as some reasonable interpretation of it
 supports   the challenged findings."            Gentry,     137 Wn.2d     at   411.     Unchallenged findings of fact are


 verities on appeal. See State v. O' Neill, 148 Wn.2d 564, 571, 62 P. 3d 489 ( 2003).


                                                                 6
No. 44558 -1 - II



        In this case, Setzer has raised several ineffective assistance of counsel claims. If he meets

the Strickland standard for ineffective assistance of counsel, he has necessarily made a showing

of prejudice sufficient to grant a PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846 -47, 280

P. 3d 1102 ( 2012) ( " We hold that if a personal restraint petitioner makes a successful ineffective


assistance of counsel claim, he has necessarily met his burden to show actual and substantial

prejudice. ").   Accordingly, to prevail on an ineffective assistance of counsel claim, Setzer must

show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). If an ineffective assistance of counsel claim does


not support a finding of either deficiency or prejudice, it fails. Strickland, 466 U.S. at 697.

         Our scrutiny of counsel' s performance is highly deferential. State v. Grier, 171 Wn.2d 17,

44, 246 P. 3d 1260 ( 2011).     Counsel' s performance is deficient if it falls below an objective


standard of reasonableness.     State   v.   Stepson, 132 Wn.2d 668, 705, 940 P. 2d 1239 ( 1997),   cert.




denied, 523 U. S. 1008 ( 1998). To prevail on a claim that his counsel' s performance was deficient


in failing to file a motion, Setzer must show that the trial court would have granted the motion.

See State v. Brown, 159 Wn. App. 366, 371, 245 P. 3d 776 ( counsel has no duty to pursue strategies

that reasonably appear unlikely to      succeed), review   denied, 171 Wn.2d 1025 ( 2011).   To establish


prejudice, Setzer must show a reasonable probability that the outcome would have differed absent

the deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987).




4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).


                                                       7
No. 44558 -1 - II



                                           II. ALLEGATION OF CLERK' S MISCONDUCT


              Setzer first argues that the superior court erred in concluding that he did not receive

ineffective assistance of counsel when Thayer failed to move to disqualify the jury venire after

learning of a " serious irregularity" in the seating of the prospective jurors.5 This argument fails.
              Citing   State   v.   Tingdale, 117 Wn.2d 595,       600, 817 P. 2d 850 ( 1991), Setzer argues that ( 1)

chapter 2. 36 RCW requires that jurors be selected at random from a fair cross section of the

population, see RCW 2. 36. 080( 1), 6 and ( 2) we must presume prejudice when there is a departure

from this statutory requirement. He challenges the superior court' s finding that the trial court clerk

complied with proper procedures in seating the jury panel.

              Washington statutes require that the selection of the jury panel be random. See In re Det.

of    Twining,     77 Wn.           App.   882, 896, 894 P. 2d 1331,     review   denied, 127 Wn.2d 1018 ( 1995),


abrogated on other grounds                  by In re   Det. ofPouncy, 168 Wn.2d 382, 229 P. 3d 678 ( 2010). Setzer


does not challenge the superior court' s findings that the clerk could not see into the box from which

she drew the potential jurors' names, that there was no information other than the potential jurors'

names on the slips, or that the clerk had no information that would have allowed her to " stack" the


jury. Thus, these facts are verities on appeal. O' Neill, 148 Wn.2d at 571. Given these facts, Setzer

does not show that the clerk' s seating of the jurors was anything but random or that the trial court


 5
     In his   statement of additional grounds (            SAG), RAP 10. 10, Setzer appears to assert that the court

 clerk who seated the jury was a person named Linda, not the clerk who testified at the evidentiary
 hearing. The record does not support this assertion. Although the trial court asked someone to
 have a person named Linda retrieve a legal pad, there is nothing in the record suggesting that this
 person performed any of the clerk' s functions at any time.
 6
     RCW 2. 36. 080( 1)             requires, in part, that the persons selected for jury service be selected at
 random.




                                                                  8
No. 44558 -1 - II



would   have had       grounds   to   grant a motion        to   strike    the   venire.   And Thayer had no obligation to


make a motion       that the trial    court would not grant.?             Thus, the superior court did not err in rejecting

this ineffective assistance of counsel claim.8

                                 III. PROSPECTIVE JUROR' S NEGATIVE OPINION


          Setzer next argues that the superior court erred when it concluded that Thayer' s failure to

move to disqualify the jury panel after the prospective juror commented that she had a negative

opinion of a defense witness did not amount to deficient performance. 9 This argument also fails.




7 Although we need not determine whether any potential error prejudiced Setzer, we note that
because Setzer has raised this issue as an ineffective assistance of counsel claim, the presumption
of prejudice described in Tingdale, which did not involve an ineffective assistance of counsel
claim, is not applicable here.

8
    In his SAG, Setzer      raises several other arguments related                    to this   claim.   The majority of these
arguments relate to whether the trial court clerk violated the jury selection process. The arguments
do not alter the above analysis.
      Also in his SAG, Setzer appears to contend that at least one of the prospective jurors who
knew people at and did business with the tire store remained on the jury, arguably suggesting that
this was prejudicial to him. Two or three prospective jurors who knew people who worked at the
tire store and who did business with the tire store remained on the jury. But these jurors also stated
that their familiarity with the staff and business relationships with the tire store would not affect
their ability to remain impartial, and there is nothing in the record contradicting these statements.
Thus, to the extent Setzer is arguing that these jurors remaining on the jury prejudiced him, the
record does not support that claim.


9 At the evidentiary hearing, Setzer testified that the prospective juror' s comments were more
extensive      than the   record shows.      Setzer testified,
          Well, she stood up and said that she knew Marvin Dean Gregory, one of my
          witnesses. She said that she knew Marvin had grown up in Lyle, Washington and
          that   she   knew him very      well and     that he     was a no -good person and --          negative, very
          unbelievable,     that   she   didn' t --   if she was to hear it, she wouldn' t believe anything
          he had to say.
 Report   of   Proceedings ( Dec. 6, 2012)            at   20 -21.       As the superior court recognized, Miles merely
 testified that she knew Gregory from elementary and high school and that her prior knowledge
 caused her to have a negative opinion of him that would affect her ability to remain impartial.


                                                                     9
No. 44558 -1 - II



            Setzer argues that although the prospective juror' s statements were brief, they were very

damaging      to his     defense.     Relying   on   Mach     v.   Stewart, 137 F.3d 630, 633 ( 9th Cir. 1997), Setzer


contends that the comments of a single member of the jury venire can " ineradicably taint the jury

pool."      Am. Br. of Appellant at 17. But we can easily distinguish Mach on the facts.

            In Mach, the defendant was on trial for sexual contact with an eight -year -old girl. 137 F.3d

at   631. The first prospective juror questioned in voir dire was a social worker, who stated that she


would       have   a   difficult time   being   impartial because          of   her   work experience.   Mach, 137 F. 3d at


631 -32. She also stated that " sexual assault had been confirmed in every case in which one of her

clients reported such an assault."               Mach, 137 F. 3d          at   632.    The court continued to question the


prospective juror, eliciting " at last three more statements from [ the prospective juror] that she had

never, in three years in her position, become aware of a case in which a child had lied about being

sexually      assaulted."      Mach, 137 F.3d        at   632.      The court also asked the other prospective jurors


whether anyone disagreed with the woman' s statements and no one responded. Mach, 137 F.3d

at   633.    The trial court denied Mach' s motion for a mistrial in which he " argu[ ed] that the entire

panel had been tainted by the exchange between the court and" this prospective juror. Mach, 137

F. 3d at 632.


             On    appeal,   the Ninth Circuit       stated   that "[     g] iven the nature of [the prospective juror' s]

 statements, the certainty with which they were delivered, the years of experience that led to them,

 and   the   number of       times   they   were repeated,"        it "presume[ d] that at least one juror was tainted and


 entered into jury deliberations with the conviction that children simply never lie about being

 sexually     abused."        Mach, 137 F. 3d        at   633.       It equated the prospective juror' s statements as


 tantamount to introducing highly inflammatory, extrinsic evidence from an expert which was


                                                                     10
No. 44558 -1 - II



directly connected to the defendant' s guilt and vacated the conviction after finding that the

statements substantially affected or influenced the verdict. Mach, 137 F.3d at 633.

           Here, in contrast, Miles' s statements were brief, occurred only once, did not comment

directly on the evidence but rather on the potential credibility of a witness Miles had known several

years earlier, and were based entirely on personal opinion and not on years of professional

experience. Thus, Mach is not instructive.


           Furthermore, Setzer does not show that Thayer' s failure to move to strike the jury panel

based on Miles' s statements amounted to deficient performance. Given that Miles' s statement was

brief, based on personal opinion, and she did not elaborate about why she had issues with Gregory,

it was reasonable for Thayer to conclude that it was unlikely the trial court would have granted

such a motion. Accordingly, the superior court did not err in finding that Thayer' s conclusion that

it                                            have             such a motion was reasonable.   Given this
     was   unlikely the trial   court would          granted




conclusion, it was not deficient performance to fail to request a motion to strike the venire.

           Moreover, there is nothing in the record showing that Miles' s comments tainted the

remaining jury pool. It is mere conjecture that it did and because this is a PRP, it is Setzer' s burden
to establish this fact. 10 Thus, this argument fails.

                                  IV. FAILURE TO REQUEST CONTINUANCE


           Finally, Setzer argues that the superior court erred in rejecting his claim that Thayer

 provided ineffective assistance when he failed to move for a continuance to allow Setzer to address




 1° Setzer could have submitted affidavits or declarations from the jurors on his case or called these
 jurors to testify at the evidentiary hearing.

                                                        11
No. 44558 -1 - II



medication and /or pain issues. Setzer contends that because he was unable to address these issues,

he was unable to exercise his right to testify in his own defense. This argument also fails.

          Setzer first challenges the superior court' s finding that he " wanted to go to trial" without

delay. CP at 367. His argument focuses on whether he asked Thayer to move for a continuance.

He contends that Thayer' s testimony that he could not remember whether Setzer had asked to

move for a continuance did not contradict his ( Setzer' s) testimony that he had asked Thayer to

move   for   a continuance.     Regardless of whether Setzer asked Thayer to move for a continuance,

this ineffective assistance of counsel claim fails because even assuming, but not deciding, that

Setzer did ask Thayer to move for a continuance, the superior court properly determined that Setzer

had not adequately supported his claim that Thayer' s performance was deficient.

          Setzer argues that the superior court improperly based its conclusion that Thayer' s

representation was not deficient on its factual findings related to Setzer' s basic competence,

intelligence, or lack of obvious impairment. We disagree.


          Thayer' s testimony that Setzer appeared " very oriented and coherent" while they were

preparing for trial, Report of Proceedings ( Dec. 6, 2012) at 83, that Setzer was an intelligent man,

 and that he had no concerns about Setzer' s ability to proceed or to assist in his defense support the

 superior court' s   finding   that Thayer " found   [ Setzer] to be        intelligent man, and did not note any

 mental   impairment    or   disability during   the trial."   CP   at   367.   That Thayer failed to observe any

 mental impairment or disability while preparing for trial contradicts Setzer' s assertion that he was

 too impaired to testify. And if Setzer was not exhibiting any mental impairment or disability before

 trial, it is unlikely that the trial court would have granted a continuance to allow Setzer to deal with

 any health issues. Because Setzer did not show that the trial court would have likely granted such

                                                          12
No. 44558 -1 - II



a continuance on this ground, he failed to establish deficient performance, and the superior court

properly dismissed this ineffective assistance claim.11
                            V. STATEMENT OF ADDITIONAL GROUNDS ( SAG)

        Setzer also filed a SAG in which he presented numerous arguments. To the extent possible,

we have addressed those arguments in footnotes set out in the relevant argument sections.

        Throughout his SAG, however, Setzer appears to challenge numerous issues that were not

presented to the superior court. Because these issue are beyond the scope of this appeal, which is

limited to issues that we directed the superior court to consider, we do not address them.

         Setzer fails to   establish   that the   superior court erred   in   dismissing his   PRP.   Accordingly,

we affirm.




         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.




  We concur:



                               4
  MAXA,




 SUTTON,




 11 Setzer' s testimony that he felt too impaired to testify is not enough to undermine this conclusion
 because the superior court was entitled to find Thayer' s testimony more credible and we do not
 examine the court' s credibility determinations. Gentry, 137 Wn.2d at 410 -11.
                                                          13
