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                                                                                                                   EPLUJ      1    1




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II


STATE OF WASHINGTON,                                                              No. 42989 -6 -II

                                        Respondent,


         Ii



DANIEL CRAIG WILSON,                                                        UNPUBLISHED OPINION




In re Personal Restraint Petition of                                      Consolidated with No. 43352 -4 -II)


DANIEL CRAIG WILSON,


                                        Petitioner.




         JOHANSON, J.              Daniel C. Wilson challenges his jury conviction for possession of a

stolen   vehicle.      On direct appeal, Wilson argues that the trial court abused its discretion in

denying ( 1) his motion for a continuance due to newly disclosed defense witnesses, and ( 2) his
motion   for   a new    trial based     on " new evidence"    that   he   remembered after       trial.   In his. statement


of additional grounds (        SAG),     Wilson argues that the trial court violated his right to a fair trial by

making him appear before the jury in prison garb and that he received ineffective assistance of

counsel.      In his   personal restraint petition (     PRP),     Wilson again claims ineffective assistance of

counsel and     he   asserts   that a   witness   for the State   committed   perjury   at   trial.
Consol. Nos. 42989 -6 -II / 43352 -4 -II



        Because the trial court did not abuse its discretion in denying Wilson' s motion for a

continuance or his motion for a new trial, and Wilson cannot show that the trial court required


him to appear before the jury in prison garb, that his counsel was ineffective, or that the State' s

witness committed perjury, we affirm the conviction and dismiss the PRP.

                                                             FACTS


        The State charged Wilson with knowing possession of a stolen vehicle, occurring on or

about   August 23, 2011, contrary to RCW 9A.56. 068.                             The day before trial, Wilson' s attorney

moved for a trial continuance because Wilson had told her the day before and that morning of

two   potential      defense    witnesses.         The newly disclosed witnesses were expected to testify that

Wilson possessed the vehicle with permission before August 20, the date that Ryan Steele, the

used car lot' s sales manager, alleged that it was taken and that this would impeach Steele' s


testimony.     Wilson' s attorney was unable to explain how the testimony from the new witnesses

might be different from the testimony of the previously disclosed witnesses or how it might be

material    to the defense       case.    The State objected to the continuance because its witnesses were


traveling from out of town that morning for trial. -The State also argued that Wilson could have

disclosed the        witnesses    to    his attorney      earlier.       The court concluded that the newly disclosed

witness testimony would not likely add to Wilson' s already scheduled witnesses' testimony in a

material way, and denied the motion because Wilson had months to prepare his alibi defense and

that he should have disclosed the witnesses to his attorney earlier.

         That        same      day, Wilson complained that he was dissatisfied with his counsel' s

representation.        The     court   held   an   in   camera   proceeding to hear Wilson' s            concerns.   During the

proceeding, Wilson alleged that his attorney had failed to provide him with street clothes to wear

and so "[   t] his   officer   had to   give me some, clothes            to   wear."   Report   of   Proceedings ( RP) ( Nov. 2,


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2011, in    camera     hearing)     at   3.     Wilson' s attorney responded that clothes were brought " to Mr.

Wilson    and   they   were   brought yesterday to the jail."                  RP ( Nov. 2, 2011, in camera hearing) at 6.

There is   no record of what         Wilson           wore   during   trial.    Wilson also alleged he had only seen his

attorney twice since she was assigned to his case and she failed to contact two witnesses that he

wanted    to   testify. The first potential witness was a female friend, but Wilson did not tell the

court what the female friend could testify to. He also said that his attorney' s investigator had the

phone number and address of                   his     younger sister who        could "   give [ Wilson] an alibi [ about the


car]   that was supposedly          stolen."           RP ( Nov. 2, 2011, in        camera       hearing)   at   3.   However, his


attorney could not remember Wilson ever telling her about the friend or his younger sister being

potential witnesses. The trial court determined that Wilson' s attorney was not ineffective.

          At trial, Steele, the State' s witness, testified that on August 20, 2011, Wilson came into

Affordable Motors in Spokane and spoke with Steele, the lot' s sales manager, about a 1998

Cadillac Eldorado         coupe.         After obtaining a copy of Wilson' s identification, Steele allowed

Wilson to test drive it.           The Cadillac had dealer license                 plates   on   it. Wilson returned with the


Cadillac and discussed         a   final price with Steele.               Steele allowed Wilson to drive the Cadillac to


the bank to     get    money for     a   down         payment.   Steele told Wilson that he must return before 5: 45

PM     because the lot    closed at           6: 00   PM.    However, Wilson did            not return.     Steele closed the lot


without noticing that the Cadillac was missing. About an hour later, he attempted to call Wilson,

but Wilson did not answer his phone.


           On August 23, the vehicle was located in Bremerton using its global positioning tracker.

The Bremerton Police Department found the vehicle in a parking lot and arrested Wilson, the

driver.    Although Wilson had no sales paperwork, Wilson told the police that he had purchased




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the car in Spokane and that he was supposed to go back later to finish paying for it, but he had

not done so yet.


          After the State rested its case, Betty Jimerson testified that Wilson had picked her up at

home in Seattle around 9: 00 AM on August 20 and drove her to family birthday parties in

Tacoma that        day.     No   other witnesses          testified on Wilson'      s   behalf.        The jury found Wilson

guilty.


          Later, Wilson       moved     for    a new     trial   pursuant   to CrR 7. 5(   a)(   3)   and (   8).    Wilson argued


that newly discovered evidencethat he was driving the same vehicle during an August 18

traffic stop — entitled him to         a new    trial.    Wilson' s attorney explained that Wilson told her of the

traffic stop after the trial and that she had contacted the Spokane Police Department who verified

that there   was     an    incident   report   involving         Wilson   on   August 18.        The incident report did not


identify the type of vehicle that Wilson was driving, but the police officer who conducted the

stop told Wilson' s attorney that the vehicle had a temporary plate with the same plate number as

the Cadillac.       Wilson sought a new trial to call the Spokane police officer to testify that Wilson

Was   driving a      vehicle with the      same     plates on August 18.           Wilson argued that this was newly

discovered evidence because Wilson did not remember the traffic stop until he spoke with a

friend    after   trial   who reminded        him   of   it. Wilson claimed that the evidence was impeachment


evidence that would contradict Steele' s testimony that the first time Wilson drove the car was on

August 20.        The trial court denied Wilson' s motion, citing the factors from State v. Savaria, 82

Wn.   App.    832, 919 P. 2d 1263 ( 1996),               overruled on     other   grounds    by       State   v.    C. G., 150 Wn.2d


604, 611, 80 P. 3d 594 ( 2003)),              that entitle a defendant to a new trial due to newly discovered

evidence.




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Consol. Nos. 42989 -6 -II / 43352 -4 -II



          The court sentenced Wilson and gave him notice of his right to appeal and to collateral

attack.   Wilson   acknowledged       receiving the       notice and    understanding it.   On January 20, 2012,

Wilson' s trial attorney filed a notice of appeal.

                                                        ANALYSIS


                                                  MOTION TO CONTINUE


          Wilson argues that the trial court abused its discretion when it denied his motion for a

continuance.     Because Wilson waited until the day before trial .to tell his attorney about the

witnesses, he failed to act with due diligence, and the trial court acted within its discretion to


deny the continuance motion.

                                               A. STANDARD OF REVIEW


          We review a trial court' s decision to deny a motion for a continuance for abuse of

discretion. State   v.   Kenyon, 167 Wn. 2d 130, 135, 216 P. 3d 1024 ( 2009). We will not disturb the


trial court' s decision " unless there is a clear showing it is ` manifestly unreasonable, or exercised

on untenable grounds, or       for   untenable reasons. "'       Kenyon, 167 Wn.2d at 135 ( internal quotation

marks omitted) ( quoting      State v. Flinn, 154 Wn.2d 193, 199, 110 "P. 3d 748 ( 2005)).

                                                     B. DISCUSSION


          In exercising its discretion, the trial court may consider the party' s diligence, due process,

the need for an orderly procedure, the possible impact on the trial, and whether it had granted

any   prior continuances.      State      v.   Early,   70 Wn.   App.   452, 458, 853 P. 2d 964 ( 1993),    review




denied, 123 Wn.2d 1004 ( 1994).                   Impeaching and cumulative testimony are generally not

significant   enough such      that   a   trial   court must grant      a continuance   when requested.    State v.


Simonson, 82 Wn. App. 226, 234 n. 17, 917 P.2d 599, review denied, 130 Wn.2d 1012 ( 1996);

State v. Eller, 84 Wn.2d 90, 98, 524 P. 2d 242 ( 1974).

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Consol. Nos. 42989 -6 -II / 43352 -4 -II



          Here, the trial court properly exercised its discretion and considered Wilson' s lack of due

diligence      and   the impact the       new     witnesses   would       likely have     on    the trial.    The trial court


specifically asked what the new witnesses would testify about; Wilson' s attorney did not know

exactly, but she expected them to testify that Wilson possessed the vehicle before August 20.

The court concluded this testimony was not material and denied the motion, explaining that

Wilson had months to prepare his alibi defense and that he should have disclosed the witnesses


to   his attorney     earlier.   Because the State had to prove Wilson unlawfully possessed the vehicle

on August 23, not whether Wilson possessed the vehicle before that date, the evidence that .
                                                                                           the

witnesses      may have      provided was        insufficient to   require a continuance.           The trial court did not


abuse its discretion when it denied Wilson' s motion for continuance.


          Wilson argues that his attorney was diligent by trying to contact the witnesses as soon as

Wilson told her about them. But the proper inquiry is whether the party acted with diligence, not

just   whether      the attorney did.     Early,   70 Wn.     App.   at   458.   Wilson should have told his attorney

about the witnesses far earlier and he offers no explanation why he did not do so.

          Next, Wilson argues that he had a due process right to present his version of the events to


                    baldly             that he                                          the              denial.   But the only
the    jury   and            asserts             was prejudiced as a result of                court' s




prejudice he asserts is that the witnesses may have testified that he was in possession of the

Cadillac before August 20               and   that this   would    impeach Steele'        s   testimony.      But Emerson' s


testimony      was    also   aimed at     undermining Steele'        s   credibility.   Therefore, the newly disclosed

witnesses' testimony was cumulative as well as immaterial. The trial court properly exercised its

discretion when it determined that the newly disclosed witnesses' testimony would have little

impact on the trial outcome and that Wilson did not exercise due diligence in securing his

witnesses.




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Consol. Nos. 42989 -6 -II / 43352 -4 -II



                                                              NEW TRIAL


            Wilson argues that the trial court abused its discretion in denying his motion for a new

trial based        on    newly discovered         evidence.    We disagree.         The trial court properly exercised its

discretion because Wilson fails to show that the evidence was material and not discoverable

before trial.


            We review a trial court' s decision to grant or deny a motion for a new trial for clear abuse

of    discretion.        State   v.   Mullen, 171 Wn.2d 881, 905, 259 P. 3d 158 ( 2011); State v. Marks, 71


Wn.2d 295, 302, 427 P. 2d 1008 ( 1967).                    A defendant seeking a new trial must prove that the new

evidence "`(        1)   will              change    the   result of     the trial; ( 2)   was   discovered   after   the trial; ( 3)
                                probably


could not         have been discovered before trial            by   the   exercise of      due diligence; ( 4) is material; and


 5)    is   not   merely        cumulative   or    impeaching. "'         Mullen, 171 Wn.2d         at   906 (   quoting State v.

Macon, 128 Wn.2d 784, 800, 911 P. 2d 1004 ( 1996)).                            The defendant must show all five factors.


Mullen, 171 Wn.2d at 906.


            Here, the trial court properly considered the five factors and concluded that Wilson could

not    meet them all. - The             trial court primarily -
                                                              relied on the third factor, reasoning that Wilson

failed to show that the evidence was not discoverable before trial since Wilson was aware that he

received the traffic infraction. Also relying on the. fourth factor, the trial court noted that the new

evidence was not material because the traffic infraction did not identify the car Wilson was

driving on August 18 and would not help Wilson establish he had permission to possess the

Cadillac on August 23.


             Wilson argues that his trial attorney could not have discovered the evidence because

Wilson did not tell her about it. But our focus is not solely on the attorney' s due diligence but on

Wilson'      s    due diligence       as well.    Wilson failed to exercise due diligence by neglecting to tell his

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Consol. Nos. 42989 -6 -II / 43352 -4 -II



attorney about the infraction until after trial. Next, Wilson argues that the evidence was material

because it would have contradicted Steele' s testimony that Wilson took the Cadillac on August

20   and    that Wilson    had   not   been to the    car    lot any   earlier    than that date.       But this argument


concedes      that the   evidence was     only    impeaching. In order to establish the fifth factor, Wilson

must show that the evidence was not merely cumulative or impeaching. This Wilson fails to do.

            Finally, relying on Savaria, Wilson argues that the new evidence devastates Steele' s

uncorroborated       testimony establishing           an    element     of   the    offense.      There,    the defendant


discovered      new evidence      that   directly   contradicted an element of           the   crime.    Savaria, 82 Wn.


App.   at   838.   Accordingly,    in Savaria, the     new evidence warranted a new               trial. Wilson' s case is


distinguishable because the            new evidence was not        nearly    as    significant.   To convict Wilson of


unlawful      possession    of a   stolen   vehicle     on   August 23, the State had to show that Wilson


unlawfully     possessed    the Cadillac     on   that date.    So whether Wilson may have had permission to

drive a vehicle with the same dealer plates on August 18 was immaterial to whether Wilson

unlawfully      possessed   the Cadillac     on     August 23.     Unlike Savaria, the new evidence here does


not directly contradict an element of the crime. The trial court did not abuse its discretion

                                              INEFFECTIVE ASSISTANCE


            In his SAG, Wilson asserts ineffective assistance of counsel regarding his appeal rights.

In his PRP, Wilson asserts that his counsel failed to adequately investigate, failed to call,

interview,     or subpoena material witnesses, and             failed to file    a notice of appeal.      We disagree and


hold that Wilson received effective counsel.


                                                    A. SAG ASSERTION


            To prevail on an ineffective assistance of counsel claim, a defendant must show that his

attorney'    s representation was        deficient   and    that he    was prejudiced.         Strickland   v.   Washington,
Consol. Nos. 42989 -6 -II / 43352 -4 -II


466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). In his SAG, Wilson asserts that his


trial counsel failed to consult with him about his appeal rights and that he was entitled to an

appeal    bond        under    RCW 10. 73. 040.            At the sentencing hearing, the court gave Wilson notice of

his    right    to    appeal    and     to   collateral     attack.   Wilson acknowledged receiving the notice and

understanding it. Wilson'                s   attorney filed    a notice of appeal a               few   weeks   later. Wilson does not


explain how his attorney' s representation was deficient, or how the result of the trial would have

been    different if he had been               released on     bond.    Accordingly, Wilson fails to show that counsel

was deficient or that he was prejudiced at trial as a result of his counsel' s representation.

                                                       B. REFERENCE HEARING


           In a PRP, a petitioner alleging constitutional errors must meet a heightened standard of

showing actual prejudice by a preponderance of the evidence before we will grant relief.. In re

Pers. Restraint of Yates, 177 Wn.2d 1,                         17, 296 P. 3d 872 ( 2013).                  We will dismiss where a


petitioner fails to make a prima facie showing of actual prejudice. In re Yates, 177 Wn.2d at 17.

A     petitioner      seeking    a reference      hearing     must offer "`       the facts underlying the claim of unlawful

restraint- and        the   evidence available         to   support   the factual          allegations."'       In re Yates, 177 Wn.2d


at 18 ( quoting In re Pers. Restraint ofRice, 118 Wn.2d 876, 885 -86, 828 P. 2d 1086, cent. denied,

506 U.S. 958 ( 1992)).                A petitioner' s bald assertions and conclusory allegations are insufficient

to    justify   a reference      hearing.        In   re   Yates, 177 Wn.2d           at    18.    The petitioner must demonstrate


that he has competent, admissible evidence to establish the matters outside the existing record

that    entitle      him to   relief.   In re Yates, 177 Wn.2d             at   18.   Speculation or conjecture is insufficient.


In re Yates, 177 Wn.2d at 18.


           Here, Wilson asserts that he is entitled to a reference hearing because he received

ineffective assistance of counsel due to counsel' s failure to investigate and failure to call

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Consol. Nos. 42989 -6 -II / 43352 - -II
                                  4



witnesses    to    testify   on his behalf. Wilson identifies two                    witnesses:     Marcus Fletcher and Tomika


Bates.     But Wilson does not present affidavits from Fletcher or Bates or any other evidence of

what     their   testimony       would         reveal    if   subpoenaed.           Wilson' s bald assertions and conclusory

allegations are insufficient to justify a reference hearing.

                                           REMAINING SAG AND PRP ASSERTIONS


          In his SAG, Wilson asserts he was denied a fair trial because during jury selection

proceedings,        the   jury    saw     him wearing           prison    garb.      An appellant is required to provide all


information necessary for our review of an issue, and we may refuse to decide an issue where the

record    is incomplete.           RAP 9. 2( b); State v. McFarland, 127 Wn.2d 322, 338, 899 P. 2d 1251


 1995) (    appellate        court      will   not     consider    matters         outside   the   record).   Here, the record is


incomplete.         Jury   selection      occurred on November 2.                    On that day, the court held an in camera

proceeding to hear Wilson'                s concerns.         Wilson expressed concern that his attorney had failed to

provide     him     with street clothes           to    wear and    so "[     t]his officer had to give me some clothes to


wear."      RP ( Nov. 2, 2011, in               camera        hearing)   at   3.    Wilson' s attorney responded that clothes

were brought to Wilson the day before. There is no other reference to what Wilson was wearing.

Without a record of Wilson' s clothing that day, we cannot determine whether he was dressed in

prison garb in front of the jury. Accordingly, we will not address this issue.

           Finally, in his PRP, Wilson baldly asserts that one of the State' s witnesses committed

perjury    and refers us         to "   see    transcripts."     PRP     at   3.    Wilson does not identify which witness or

why he believes that the                witness committed          perjury.        Without additional information, we cannot


address     this    assertion and         Wilson       cannot show actual prejudice.                RAP 10. 3(   a)(   6), 16. 10; In re


Yates, 177 Wn.2d at 17.




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Consol. Nos. 42989 -6 -II / 43352 - -II
                                  4



        We affirm the conviction and dismiss the PR-
                                                   P.


        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.




                                                    HANSON, J.
WP nnnnrnr-




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