                                                                                  FILED 

                                                                             JUNE 9, 2015 

                                                                    In the Office ofthe Clerk of Court 

                                                                   WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


  STATE OF WASHINGTON,                          )
                                                )         No. 32182-7-111
                        Respondent,             )
                                                )
         v.                                     )
                                                )
  SHANE ALLAN JONES,                            )         UNPUBLISHED OPINION
                                                )
                        Appellant.              )

        FEARING, J. -   Shane Allan Jones appeals from a trial court order denying his

 RCW 10.73.170 motion for DNA (deoxyribonucleic acid) testing of evidence regarding

 his 2003 conviction upon a plea of guilty to two counts of first degree child rape. Jones

 contends the trial court abused its discretion by summarily denying his motion on the

 ground that he did not show a likelihood that DNA evidence would demonstrate

 innocence on a more probable than not basis. We affirm the denial on the ground that no

. biological evidence was tested at the time of the prosecution.

                         FACTS AND PROCEDURAL HISTORY

        In 2003, Shane Allan Jones entered a guilty plea to two counts of first degree child

 rape. The crimes occurred in 1995 and 1998 and involved separate victims, well known
No. 32182-7-III
State v. Jones


to Jones, who were ages two and six at the time of the respective crimes. Law

enforcement investigated the incidents beginning in May of 2002, when the children

disclosed that he sexually abused them. One child described Jones engaging in oral

penile contact with him. The other child related giving oral sex and masturbating Jones.

Jones admitted to the crimes in his signed guilty plea statement and in a subsequent

interview with the presentence investigator. The State did not rely on any physical or

biological evidence. The trial court imposed on Jones a 216-month prison sentence on

November 17, 2003.

      On December 6,2013, Shane Allan Jones filed in the superior court a motion

under RCW 10.73.170 for DNA testing of "all of the physical evidence collected" in the

case. Clerk's Papers (CP) at 61. In his supporting affidavit, Jones requested testing

"upon the grounds that (1) the conviction rested primarily on eyewitness identification

evidence, (2) there is demonstrable doubt concerning [his] identification as the

perpetrator, and (3) DNA testing would likely be conclusive on that issue." CP at 63.

Also on December 6, the court entered an order summarily denying the motion on the

bases that (1) Jones plead guilty to the charges in May 2003, and (2) he had not shown a

likelihood that DNA evidence would demonstrate innocence on a more probable than not

basis. We stayed this appeal pending the Supreme Court's decision and mandate in State

v. Crumpton, 181 Wn.2d 252,332 P.3d 448 (2014).




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State v. Jones


                                        ANALYSIS

       In State v. Crumpton, 181 Wn.2d 252, 332 P.3d 448 (2014), our state high court

held that the trial court must presume that DNA test results would be favorable to a

convicted defendant when deciding whether he has shown a likelihood that DNA

evidence would probably demonstrate his innocence. The sole issue on appeal is whether

the trial court erred in denying Shane Allan Jones' motion for DNA testing because it

failed to follow the presumption.

       A trial court's decision on a motion for postconviction DNA testing is reviewed

for abuse of discretion. State v. Riofta, 166 Wn.2d 358, 370,209 P.3d 467 (2009). A

court abuses its discretion if its decision is manifestly unreasonable or is based on

untenable grounds. State v. Ratay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009). A decision

is based upon untenable grounds or made for untenable reasons if it is made on facts

unsupported in the record or is reached by applying the wrong legal standard. ld.

       RCW 10.73.170 allows a convicted person currently serving a prison sentence to

petition the trial court for postconviction DNA testing. The petitioner must satisfy both

procedural and substantive requirements of the statute. RCW 10.73.170(2), (3). The

statute provides in pertinent part:

              (1) A person convicted of a felony in a Washington state court who
       currently is serving a term of imprisonment may submit to the court that
       entered the judgment of conviction a verified written motion requesting
       DNA testing, with a copy of the motion provided to the state office of
       public defense.
              (2) The motion shall:

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No. 32182-7-111
State v. Jones


               (a) State that:
               (i) The court ruled that DNA testing did not meet acceptable 

       scientific standards; or 

              (ii) DNA testing technology was not sufficiently developed to test
       the DNA evidence in the case; or
              (iii) The DNA testing now requested would be significantly more
       accurate than prior DNA testing or would provide significant new
       informati on;
               (b) Explain why DNA evidence is material to the identity of the
       perpetrator of, or accomplice to, the crime, or to sentence enhancement; and
              (c) Comply with all other procedural requirements established by
       court rule.
              (3) The court shall grant a motion requesting DNA testing under this
       section if such motion is in the form required by subsection (2) of this
       section, and the convicted person has shown the likelihood that the DNA
       evidence would demonstrate innocence on a more probable than not basis.

The statute requires a trial court to grant a motion for postconviction testing when

exculpatory results would, in combination with other evidence, raise a reasonable

probability the petitioner was not the perpetrator. State v. Riofia, 166 Wn.2d at 370.

       In Crumpton, the Supreme Court held that a trial court should presume DNA

evidence would be favorable to the convicted individual when determining if it is likely

the evidence would prove their innocence. State v. Crumpton, 181 Wn.2d at 255, 260. In

holding that this presumption is part of the standard in RCW 10.73.170, the Supreme

Court explained:

               A court should look to whether, considering all the evidence from
       the trial and assuming an exculpatory DNA test result, it is likely the
       individual is innocent on a more probable than not basis. If so, the court
       should grant the motion and allow testing to be done. Only then can it be
       determined whether the DNA actually exculpates the individual and if the
       results could be used to support a motion for new trial.


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No. 32182-7-II1
State v. Jones


Id. at 260-61. The Supreme Court further observed that "[m]any innocent individuals

have been exonerated through postconviction DNA tests, including some who had

overwhelming evidence indicating guilt." Id. at 261-62.

       Shane Allan Jones contends that his conviction fulfills the Supreme Court's

observation because, despite his guilty plea, he is likely innocent if the DNA does not

match. He thus contends that, under Crumpton, the trial court should have evaluated the

likelihood of innocence based on a presumed favorable test result, not the likelihood of a

favorable test result in the first place. He argues that, since the record does not confirm

that the trial court applied the favorable presumption, this court must find an abuse of

discretion and remand to the trial court to apply the proper standard to his motion.

       We agree with Shane Allan Jones that the trial court record does not reflect that

the lower court applied the favorable presumption. We conclude, however, that any

failure to apply the presumption does not constitute error. A motion for DNA testing and

the Supreme Court's imposition of the presumption serves no purpose when law

enforcement never collected any physical or biological evidence in the case. Jones'

guilty plea, conviction, and sentencing was based solely on the children's disclosures and

his admissions. His identity as the perpetrator was never in question during plea

proceedings.

       Shane Allan Jones cannot satisfy the procedural requirements of RCW

10.73. 170(2)(a) because the State conducted no testing that failed to meet acceptable


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No. 32182-7-111
State v. Jones


scientific standards; the State possessed no evidence unable to be tested due to

insufficient technology; and current DNA testing would not provide any new significant

infonnation because of no prior testing. Since there is no DNA evidence to test and no

prejudice shown by Jones, a remand for entry of more thorough findings or application of

the favorable presumption to the trial court's decision under RCW 10.73.170(3) would be

a useless and unnecessary act. An appellate court need not remand for a futile exercise.

Lambert v. Lambert, 66 Wn.2d 503, 508, 403 P.2d 664 (1965).

                                     CONCLUSION

       We affinn the trial court's denial of Shane Allan Jones' request for DNA testing.

       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.



                                                        Fearmg,
       WE CONCUR:



~)At4-
       Brown, A.C.J.




       Lawrence-Berrey, J.




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