Opinion
No. 51005-3-I
Filed: May 16, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-02525-9. Judgment or order under review. Date filed: 08/01/2002. Judge signing: Hon. Richard a Jones.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Johnson (Appearing Pro Se), Doc# 842458, Stafford Creek Corrections Ctr., 191 Constantine Way, Aberdeen, WA 98520.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Christopher Johnson appeals his conviction for first degree assault, fourth degree assault and harassment. Johnson contends the trial court should have ordered a competency evaluation before allowing Johnson to represent himself pro se and after Johnson claimed he was incompetent in a post-trial motion. Johnson also contends the jail interfered with his access to legal materials and his ability to present a defense, the State failed to exercise due diligence in extraditing him from Texas and violated his right to a speedy trial, the trial court abused its discretion by denying Johnson's motion during trial for a continuance to obtain additional evidence, the trial court did not compare an out-of-state conviction to the potentially comparable Washington crime and under CrR 7.2 the trial court must calculate the number of days he served in custody. We affirm but remand for the trial court to consider the elements of Johnson's out-of-state conviction.
FACTS
In February 2001, Johnson and Jeanette McQueen lived together in an apartment with McQueen's two young children from a previous relationship. McQueen was six months pregnant.
McQueen claimed Johnson was the father of her child. At trial, Johnson disputed he was the father. He argued he was unable to father children.
On February 5, McQueen went to the hospital because she was having contractions. During the examination, McQueen showed the nurse multiple bruises on her legs, buttocks and back. McQueen said Johnson beat her with a cell phone charger and threatened to kill her the previous day. McQueen told the nurse she was afraid of Johnson and wanted to find a new place to live. Nonetheless, McQueen decided to stay with Johnson. On March 1, Johnson and McQueen got married and moved into a new apartment.
On the night of March 13, Johnson accused McQueen of cheating on him. Johnson plugged in a clothes iron and said he would burn McQueen if she did not tell him the truth. McQueen denied infidelity, then lied and said she cheated to try to get Johnson to stop. Johnson pressed the hot iron to her knee, ankle and legs several times. Johnson eventually stopped and apologized. Johnson then wrapped her wounds in gauze and they went to sleep.
The next morning, McQueen left her children with Johnson and went to the hospital. McQueen had several first and second degree burns on her legs, including a few burns that were so distinct the steam vent pattern from the iron was burned onto her skin. She told the nurse and treating doctor that Johnson burned her multiple times with a clothes iron the night before. McQueen was instructed to return the next day to have the wounds checked. The burns eventually healed, leaving scars from the more serious burns.
On March 19, the State charged Johnson with misdemeanor fourth degree assault and harassment for striking and threatening McQueen on February 3-4, 2001, and on March 27, the State charged Johnson with felony assault in the first degree for burning McQueen with the iron on March 13-14, 2001. Johnson failed to appear at arraignment, and bench warrants were issued on March 30 and April 9. On August 10, 2001, the police located Johnson. He was in custody in Texas. Johnson was extradited from Texas and returned to King County on December 4, 2001.
After Johnson was extradited to King County, he was arraigned on the misdemeanor fourth degree assault and harassment charges on December 11 and on the felony assault in the first degree charge on December 18. The court granted the State's motion to amend the information for the first degree assault charge to add the fourth degree assault and harassment charges. Johnson asserted general denial and an alibi defense. Johnson claimed he was in Texas from March 6 through 20, 2001.
Johnson filed a motion to represent himself at trial. After a hearing in February 2002, the trial court allowed Johnson to represent himself pro se. Over the course of the next four months, Johnson filed several pre-trial motions and repeatedly requested additional time to prepare for trial. The trial court appointed stand-by counsel and authorized an investigator, a runner, a dictaphone and transcription service, extra telephone time, access to a direct-dial telephone and a calling card to contact out-of-state witnesses.
The case was tried to the court from May 30 to June 14. The trial court found Johnson guilty of assault in the first degree, assault in the fourth degree, and harassment. Johnson filed motions for arrest of judgment, for a new trial, for vacation of judgment, to show incompetence and for a mistrial, and an objection to prior felony convictions. The court denied Johnson's motions.
The court found 'overwhelming evidence' that Johnson was in Seattle on March 13 and 14, 2001. Clerk's Papers (CP) at 220. The evidence the court relied on included the victim's testimony, the testimony of Deputy Chris Johnson that he saw Johnson at his apartment when the deputy accompanied Child Protective Services to take McQueen's older children away from Johnson while McQueen was at the hospital having her burns treated, a phone message Johnson left for McQueen on March 14 stating that the children were taken from him, the testimony of Johnson's pastor that he was with Johnson in Seattle on March 14, the testimony of a witness stating that Johnson sent faxes from a friend's house in Seattle and testimony of witnesses who received the faxes on March 16 and 19, and evidence that the baby in a picture allegedly sent to Johnson while at his friend's house in Texas in March 2001 was born in late April 2001.
The trial court imposed a standard-range sentence of 136 months based on an offender score that included one prior felony conviction. Johnson appeals.
ANALYSIS Competency
Johnson claims the trial court should have ordered a competency evaluation (1) before the court granted Johnson's motion to represent himself pro se and (2) after Johnson asserted he was not competent in his post-verdict motion.
`No incompetent person shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity continues.' RCW 10.77.050. The two-part test for legal competency for a criminal defendant in Washington is (1) whether the defendant understands the nature of the charges and (2) whether he is capable of assisting in his defense. In re Personal Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). The competency standard for waiving the right to counsel is the same as the competency standard for standing trial. Id.
`Whenever there is reason to doubt [a defendant's] competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts to examine and report upon the mental condition of the defendant.' RCW 10.77.060(1)(a). The factors a trial judge may consider in determining whether to order a formal inquiry into the competence of an accused include, "the defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel." Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). We review a trial court's decision on whether to order a competency evaluation for abuse of discretion. Fleming, 142 Wn.2d at 863.
The trial court held a hearing on Johnson's motion on February 8, 2002. Three different attorneys had represented Johnson. Johnson met with his third and most recent attorney, Mark Stenchever, for the first time the day before the February 8 hearing. At the hearing, Johnson said, `if you would like to, you can appoint a co-counsel, but I would like to be the person to handle my situation, to defend myself.' The court told Johnson standby counsel was not usually appointed in those circumstances, `[i]t's one thing or the other.' Johnson unequivocally responded that he wanted to represent himself pro se. He told the court, `I feel that I have more information about the situation than anyone else. I feel that it would be appropriate for me to defend myself in this.'
Report of Proceedings (RP) (2/8/02) at 6.
RP (2/8/02) at 6.
RP (2/8/02) at 4.
The court asked Johnson if he had ever represented himself in a criminal matter and what the outcome was. Johnson said he had represented himself in a criminal matter in Texas three or four months before, and the charges were dismissed before trial. Johnson told the court he was familiar with the rules of evidence and the rules of criminal procedure. Johnson also told the court he had a paralegal license from an Atlanta, Georgia paralegal school. When the court asked Johnson whether he ever worked for a law firm or did paralegal work, Johnson replied he had not worked for a law firm but he did paralegal work for low income people who were unable to afford attorneys.
The court advised Johnson that it was a bad idea for Johnson to represent himself and he would benefit from the help of an attorney. Johnson responded, `Well, I mean, a person that wouldn't have no knowledge of, you know, my knowledge and what I have, sir, I'm pretty sure they would feel quite uncomfortable about representing myself, but I'm [okay with it].' The court verified Johnson understood the maximum penalty he was facing, and he would be held to the same standard as an attorney. After this colloquy, the court ruled Johnson knowingly, intelligently and voluntarily waived his right to counsel, and granted Johnson's request to represent himself at trial.
RP (2/8/02) at 10-11.
Johnson's defense counsel then advised the court that after spending three hours with Johnson the day before, he had a couple of concerns the court should consider in deciding whether to allow Johnson to represent himself pro se.
Mr. Johnson was clearly not in a position to allow me to assist him as his counsel. I am not aware of what, if any, mental health issues there have been for Mr. Johnson in the past. He alluded to some and when I inquired further he would not give me any further information as to what that might have been other than to sort of loosely refer to hospitalizations in his past.
RP (2/8/02) at 12.
When the court followed up and asked Johnson about any mental health issues, Johnson first stated that what he told appointed counsel was protected by the attorney-client privilege then he replied, `I'm fine, I don't have nothing wrong with me, sir.' The court ruled Johnson could proceed pro se. `I don't see anything readily apparent that would make me have cause for concern at this point in time, and I'll allow you to proceed pro se.' Johnson's attorney then replied, `All right.' Johnson mischaracterizes his attorney's comments to mean Johnson was not capable of assisting counsel in his defense or representing himself. But the attorney said Johnson was `not in a position to allow me to assist him as his counsel,' not that Johnson was incapable of assisting counsel. Johnson made clear he was dissatisfied with the lawyers appointed to represent him. Defense counsel's statements do not raise a substantial question of Johnson's competency. See State v. Hicks, 41 Wn. App. 303, 309, 704 P.2d 1206 (1985). Johnson's attorney also said he was `not aware of what, if any, mental health issues there have been for Mr. Johnson in the past,' but that Johnson alluded to some. When the trial court asked Johnson about mental health issues, he told the court he was fine. The court carefully questioned Johnson at length to determine whether a competency question existed. Based on Johnson's responses, the court concluded he was competent to represent himself. Deference is given to the court's decision because the court had the opportunity to observe Johnson's conduct in court, his behavior and his demeanor. While the concerns of Johnson's attorney are one factor the court considers, we conclude the court did not abuse its discretion when it allowed Johnson to represent himself pro se without requiring a competency evaluation. Defense counsel's concerns alone did not raise a substantial question of competency.
RP (2/8/02) at 12.
RP (2/8/02) at 13.
RP (2/8/02) at 13.
RP (2/8/02) at 12 (emphasis added).
RP (2/8/02) at 12 (emphasis added).
After the court found Johnson guilty, Johnson filed several post-trial motions, including a `Motion to Show Incompetence and Proof of Mental Illness and Request for Mistrial.' In the motion and at the sentencing hearing, Johnson claimed he was legally incompetent. Johnson said he had a history of mental illness and was treated during childhood for psychological problems, he suffered seizures and blackouts, his memory was bad and he was unable to understand the court proceedings. The trial court denied Johnson's motion. The court found there was no evidence to support Johnson's claim of mental incompetence. In the four months of pre-trial court proceedings, Johnson never mentioned his alleged incompetence or a history of mental illness in over 30 court appearances or the approximately 20 written motions he filed. The court also described Johnson's ability to present legal argument based on evidence, court rules and appropriate citations to the law. And while some of Johnson's arguments were misplaced, `that would be attributed more to his lack of legal education as opposed to his mental incompetence.' The court also noted that the post-trial motions showed Johnson's ability to clearly identify a variety of issues and recall the facts and arguments raised throughout trial. The court did not abuse its discretion when it declined to order a competency evaluation before proceeding with sentencing based on Johnson's conduct during trial, his behavior, appearance and demeanor.
CP at 249. While it appears the written motion was not filed until September 9, 2002, approximately one month after sentencing, the record of the sentencing hearing indicates that Johnson orally made his motion at sentencing. See RP (8/1/02) at 3-11. Attached to the motion was a page from a 1996 diagnostic report describing Johnson as having a psychotic disorder, NOS, and a personality disorder, NOS. See CP at 252.
RP (8/1/02) at 10.
CrR 3.3 — Arraignment
Johnson argues the State failed to exercise due diligence in extraditing him from Texas and his arraignment violated CrR 3.3. Under former CrR 3.3(c)(1) (2001), a defendant who is detained in jail must be arraigned within 14 days after the information is filed. Former CrR 3.3(g)(6) (2001) excludes the time a defendant is detained in jail outside the State of Washington. When the prosecuting authorities learn a defendant is detained in another state, they must act in good faith and with due diligence to bring the defendant to trial in this state. State v. Anderson, 121 Wn.2d 852, 864, 855 P.2d 671 (1993). When extradition is requested, a defendant becomes amenable to process on the date on which he exhausts or waives his extradition rights. State v. Galbreath, 109 Wn. App. 664, 671, 37 P.3d 315 (2002). The State has the burden of proving due diligence, and the defendant has the burden of proving amenability. Id. at 670.
Under former CrR 3.3(g)(6), 'The time during which a defendant is detained in jail or prison outside the state of Washington or in a federal jail or prison and the time during which a defendant is subjected to conditions of release not imposed by a court of the State of Washington,' is excluded in computing the time for arraignment.
If there is a 'long and unnecessary delay' between the time of filing of charges and the defendant's first appearance in court, the trial court must compute the time for arraignment and trial from the date of filing. State v. Greenwood, 120 Wn.2d 585, 598, 845 P.2d 971 (1993). Delay is 'long' if it lasts 45 days or more. State v. Stewart, 130 Wn.2d 351, 360, 922 P.2d 1356 (1996). Delay is 'unnecessary' if the defendant was amenable to process and the State failed to exercise due diligence to bring him before the court. State v. Hudson, 130 Wn.2d 48, 54, 921 P.2d 538 (1996).
A defendant generally is not amenable to process while out-of-state, unless he is incarcerated in an out-of-state jail or prison, the prosecutor is aware of that, and the defendant is actively demanding a speedy trial. State v. Roman, 94 Wn. App. 211, 216, 972 P.2d 511 (1999) (citing Anderson, 121 Wn.2d at 865).
Johnson was charged by information on March 19, 2001, for misdemeanor assault in the fourth degree and March 27 for felony assault in the first degree. He failed to appear at arraignments and bench warrants were issued on March 30 and April 9. Thereafter, King County detectives, in coordination with the Federal Bureau of Investigation and other local law enforcement agencies, tried to locate Johnson. On August 10, 2001, the King County Prosecutor's Office learned Johnson was in custody in Midland County, Texas. By August 29, Johnson had been transferred to Denton County, Texas. On August 29, the prosecutor applied to the Washington State Governor for Johnson's extradition from Denton County, Texas. On September 12, 2001, the Governor's office mailed a demand of extradition to the Governor of Texas. Johnson was returned to King County on December 4, 2001. He was arraigned on December 18, and objected to the date of arraignment.
In its response to Johnson's pre-trial motions, the State said it learned on September 10, 2001, that Johnson had been moved to McLennan County, Texas, where he was held on an unauthorized use of a motor vehicle. The State in its response also said that according to a King County Sheriff's Deputy, Johnson was held in Texas on local charges. See CP at 262-63.
The State contends Johnson's objection to the timeliness of arraignment was not specific and did not preserve the objection. We disagree. In pre-trial motions, Johnson argues his right to timely arraignment was violated.
Johnson was amenable to service after he waived his extradition rights. There is no evidence in the record about when Johnson waived his rights and agreed to be extradited from Washington. Johnson has not carried his burden to prove he was amenable to service.
The State exercised due diligence in extraditing Johnson from Texas. Within three weeks of learning Johnson was in custody in Texas, the King County prosecutor filed an extradition request with the Governor's office. Two weeks later, the Washington State Governor sent a demand of extradition to the Governor of Texas. Johnson was arraigned 14 days after he returned to Washington. Johnson's right to a speedy arraignment under CrR 3.3 was not violated.
Johnson relies on State v. Ross, 98 Wn. App. 1, 6, 981 P.2d 888 (2000), to argue that once he moved to dismiss under CrR 3.3, the burden shifts to the State to show it acted in good faith and with due diligence. Ross does not support this argument. Ross addresses the requirement that the State show 'understandable and justified' reasons for a delay in filing an information. Placing the burden on the State is appropriate in that circumstance because the decision as to when an information is filed is solely within the knowledge and control of the State. But when a defendant is incarcerated out-of-state, the defendant knows better than the State where he was and whether he was amenable to process. See Roman, 94 Wn. App. at 216.
CrR 3.3 — Trial Date
Johnson argues trial did not commence within 60 days of arraignment and his right to speedy trial was violated under former CrR 3.3(c)(1). Trial was scheduled for February 11, with expiration of speedy trial on February 16. After the court granted Johnson's request to represent himself pro se on February 8, Johnson requested a continuance to prepare for trial. Johnson took the position that his right to speedy trial had already been violated, but agreed to waive his right to speedy trial until March 25, 2002.
Under former CrR 3.3(c)(1), a defendant not released from jail pending trial shall be brought to trial within 60 days of arraignment. Continuances may be granted either upon written agreement of the parties, or by motion of the State, the court or the defendant, 'when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense.' Former CrR 3.3(h)(2) (2001).
On March 1, Johnson filed an affidavit of prejudice against Judge Ramsdell, who was presiding over the hearing. Under former CrR 3.3(d)(6) (2001), the disqualification of Judge Ramsdell extended the speedy trial deadline 30 days to March 31.
The case was assigned for trial on March 18. On March 19, the trial court ruled on a number of motions. The court granted Johnson's request to appoint stand-by counsel to assist him, granted Johnson's motion for access to a tape recorder to allow him to listen to evidence produced by the State, denied Johnson's motion for expert services, and granted the State's motions to amend the information and to exclude witnesses from the courtroom. Because the State had not received or had the opportunity to respond to a number of Johnson's motions, the court set a briefing schedule. The court recessed trial to give Johnson time to work with stand-by counsel and to give the State an opportunity to respond to Johnson's motions.
Johnson's motions included: an ex parte motion, a motion for bond reduction, a motion for a bill of particulars, a motion for an evidentiary hearing, a second motion for a bill of particulars, a motion to dismiss, a motion for change of venue, and motion to exclude irrelevant evidence. On March 19, Johnson also filed an ex parte motion requesting a court order to King County Jail Administration, an ex parte motion for expert services, a second motion to dismiss, a motion for judgment as a matter of law, and a motion to strike surplusage from the information.
The court held hearings on April 4, 5, 12, 15, 22, and 30, and on May 14 and 23, in an effort to facilitate Johnson's trial preparation. On April 15, Johnson requested a continuance to prepare additional motions, but said he would not waive speedy trial. The court ruled trial had commenced on March 19, and the trial was in recess to give Johnson additional time to prepare. At status conferences on April 30 and May 14, Johnson again requested additional time to prepare for trial. At a status conference on May 23, Johnson asked the court to delay trial until the beginning of July. The court denied Johnson's request. The court ruled Johnson's jail infractions were partly to blame for difficulties in contacting witnesses, Johnson failed to diligently pursue his request for an expert witness regarding burns, and the court had already accommodated Johnson's requests to delay trial.
On May 28, Johnson filed a number of lengthy motions. On May 29 and 30, the court ruled on Johnson's motions, and on May 30, the parties made opening statements and the State called its first witnesses. Johnson does not dispute that for speedy trial purposes, trial commences when the case is assigned or called for trial and the trial court hears and rules on motions. See State v. Carson, 128 Wn.2d 805, 820, 912 P.2d 1016 (1996); State v. Andrews, 66 Wn. App. 804, 810, 832 P.2d 1373 (1992) (Absent a showing of prejudice or undue delay in proceeding with the trial after it is assigned to a judge, a preliminary motion, such as a motion to exclude witnesses, is sufficient to toll the running of the speedy trial period). But Johnson contends there was undue delay between the court's ruling on preliminary motions on March 19, 2002, and the opening statements on May 30. The record does not support Johnson's contention.
The materials Johnson filed on May 28 included a 97-page reply to the State's response to his motions, a 16-page motion to strike, a ten-page amended motion to suppress, and a motion for production of documents.
'Disposition of preliminary motions is a customary and practical phase of a trial.' Carson, 128 Wn.2d at 820. A motion to exclude witnesses is such a motion. State v. Carlyle, 84 Wn. App. 33, 36, 925 P.2d 635 (1996).
The State produced discovery in January 2002 and was ready for trial on March 19. On March 19, the trial court ruled on a number of motions, including the State's motion to amend the information and exclude witnesses and Johnson's motions for stand-by counsel, expert services, and access to a tape recorder. For purposes of the speedy trial rule, the trial commenced on March 19. The initial short delay was to allow the State the opportunity to respond to Johnson's motions. Thereafter, the delays were due to Johnson's need for time to prepare for trial. Johnson's right to a speedy trial was not violated.
Access to Legal Resources
Johnson contends the Department of Detention (the jail) violated his right to a meaningful pro se defense by obstructing and delaying his preparation for trial. Under article I, section 22 of the Washington State Constitution, a pro se pretrial detainee has a right to reasonable access to legal resources that will allow for meaningful pro se defense. State v. Silva, 107 Wn. App. 605, 622, 27 P.3d 663 (2001). The trial court has discretion to determine what measures are necessary or appropriate to ensure reasonable access to legal resources in light of all the circumstances, including `the nature of the charge, the complexity of the issues involved, the need for investigative services, the orderly administration of justice, the fair allocation of judicial resources (i.e., an accused is not entitled to greater resources than he would otherwise receive if he were represented by appointed counsel), legitimate safety and security concerns, and the conduct of the accused.' Id. at 623 (footnotes omitted).
The State argues Johnson's claim fails because he did not to show which resources were constitutionally required to adequately prepare a defense. We disagree. The State's approach is inconsistent with Silva, where this court acknowledged that the resources constitutionally required may vary under the circumstances of each individual case. See Silva, 107 Wn. App. at 624-25.
Johnson contends his situation is similar to Milton v. Morris, 767 F.2d 1443, 1445 (9th Cir. 1985). In Milton, the court found the pro se detainee's due process right to prepare a meaningful defense was violated because the defendant was denied access to current law books and witnesses, and was not permitted to seek assistance from anyone outside the jail. Id. at 1444-47. Unlike Milton, Johnson had access to legal resources, was appointed stand-by counsel, the court authorized funds for an investigator and a runner, Johnson was permitted an additional half-hour of phone access each day to contact his investigator and witnesses, and he was provided with a phone card and access to a direct-dial telephone.
Johnson claims the jail repeatedly obstructed and delayed his efforts to prepare his defense, including his access to a tape recorder, the telephone, and his legal mail. Initially, there was some confusion about how and when Johnson was supposed to have access to the tape recorder and about the exchange of incoming and outgoing tapes. But Johnson does not claim he was unable to file any particular motion because of any delay involving the tape recorder. In fact, Johnson successfully filed several motions using the transcription service.
Johnson and stand-by counsel informed the trial court that one tape was lost. Johnson repeatedly claimed the tape contained part of a dictated motion (his reply to the State's response to his motions). Two weeks after Johnson reported the tape was missing, he filed his reply, which he claimed did not contain the first third of what he dictated. The reply was still 97 pages long. See CP at 28-124.
Johnson also contends the jail interfered with his ability to make phone calls. The record does not support this contention. The trial court ordered an additional half-hour of phone time each day at the time requested by Johnson's investigator; access to a direct-dial phone during the additional half-hour and Johnson's daily hour outside his cell so Johnson could contact stand-by counsel, the investigator and his witnesses; and a phone card so Johnson could make long distance calls to out-of-state witnesses. The jail also agreed to check with Johnson each day to verify whether he wanted to use the phone at the appointed time.
Johnson also claimed the guards were harassing him while he was on the phone with his investigator. The trial court invited Johnson to present evidence from his investigator supporting his claims, but Johnson failed to do so.
Finally, Johnson claimed below and claims on appeal that the jail tampered with his legal mail. But Johnson did not present evidence to the trial court that the jail failed to follow its mail delivery procedures. We conclude Johnson was provided reasonable access to legal resources to prepare a meaningful defense. See Silva, 107 Wn. App. 605; State v. Nicholas, 55 Wn. App 261, 268-69, 776 P.2d 1385 (1989).
In Silva, 107 Wn. App. at 609, this court determined that the Washington State Constitution affords greater protection to a pro se pretrial detainee, in relation to self-representation, than the United States Constitution. Because Johnson's rights were not violated under the Washington Constitution, we also conclude Johnson's rights under the Sixth and Fourteenth Amendment to the United States Constitution were not violated.
Denial of Continuance Motion During Trial
Johnson contends the trial court violated his right to present a meaningful defense when it denied his motion for a continuance during trial to allow him to present the results of a sperm motility test and bus ticket records. The decision to grant or deny a motion for a continuance or recess rests with the sound discretion of the trial court, and we review such a decision for an abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004); State v. Mays, 65 Wn.2d 58, 61, 395 P.2d 758 (1964). We will not disturb the trial court's decision unless the appellant establishes the decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Downing, 151 Wn.2d 272. `In exercising discretion to grant or deny a continuance, trial courts may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure.' Id., at 273.
At the end of trial on Thursday, June 13, Johnson requested additional time to present evidence of his sperm motility test and Greyhound bus ticket records. Johnson claimed the sperm motility test would show he was unable to father children and discredit McQueen's testimony that she was pregnant with his child at the time of the charged offenses. Johnson claimed the bus records would establish his alibi and show he was in Texas from March 6 through 20, 2001. The trial court granted his request for a recess until the next day. On Friday, June 14, Johnson asked the court to recess the trial to the following Monday because the test results and bus records were not yet available. The court denied Johnson's request. The court ruled the motility test results were unavailable because Johnson refused to cooperate, and he failed to exercise due diligence in obtaining the evidence from Greyhound.
The record supports the trial court's decision to deny Johnson's request for a continuance during trial. Johnson did not ask to have a sperm motility test until May 30. On Friday June 7, Johnson provided a sample for the test. Afterwards, Johnson made threatening phone calls to the doctor's office. The doctor refused to have further contact with Johnson. On June 3, at Johnson's request, a Greyhound representative testified about the procedures required to obtain bus ticket records. The Greyhound representative explained that in order to obtain records of a ticket from a year before, Johnson would have to obtain records from Greyhound's corporate office in Dallas, using a subpoena sent to an office in Los Angeles. The Greyhound representative said she was first contacted by Johnson's investigator two or three weeks before, but they did not speak until May 28. As of June 13, the bus records had not been produced. The court allowed Johnson to have one more day to get the records, but refused to grant additional time.
Johnson's delay in requesting the court's assistance in scheduling the sperm motility test, and his conduct toward the doctor who was to testify about the results, demonstrate a lack of diligence that provides a reasonable basis for the court's decision. The record regarding Johnson's attempt to obtain evidence of bus records also establishes unreasonable delay and lack of diligence. The trial court's decision to deny Johnson's request for another continuance of the trial was not an abuse of discretion.
In addition, the evidence regarding whether Johnson was able to father a child was of marginal, if any, relevance.
Johnson also argues the trial court erred in denying his motion for a new trial based on the court's failure to grant the requested continuance. He relies on CrR 7.5(a)(5), which provides the court may grant a defendant's motion for a new trial if '{i}rregularity in the proceedings of the court, jury or prosecution, or any order of court, or abuse of discretion, by which the defendant was prevented from having a fair trial.' Because the court did not abuse its discretion in denying his motion for a continuance, this is not a proper basis for relief under CrR 7.5(a)(5).
Classification of Out-of-State Conviction
Johnson argues the State did not prove his Texas conviction was comparable to a Washington offense and the sentencing court erred in counting it as part of his offender score. A challenge to the classification of an out-of-state conviction is reviewed de novo. State v. Beals, 100 Wn. App. 189, 196, 997 P.2d 941 (2000). Where a defendant's criminal history includes out-of-state convictions, the Sentencing Reform Act (SRA) requires the convictions to be classified `according to the comparable offense definitions and sentences provided by Washington law.' Former RCW 9.94A.360(3) (1999), recodified as RCW 9.94A.525(3) (Laws 2001, ch. 10 sec. 6). The State must prove by a preponderance of the evidence both the existence of the prior conviction and its classification. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). To properly classify an out-of-state conviction the sentencing court must compare the elements of the out-of-state offense with the elements of the potentially comparable Washington crime. Id., at 479. The State, not the defendant, has `the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions.' Id., at 480. Here, the record is not sufficient to determine whether the trial court compared the elements of the Texas conviction to potentially comparable Washington crimes.
A challenge to the classification of an out-of-state conviction may be raised for the first time on appeal. State v. Ford, 137 Wn.2d 472, 484-85, 973 P.2d 452 (1999).
Johnson denied he had any prior felony convictions. The State presented certified copies of the 1999 Texas Indictment and Judgment for possession of less than 1 gram of cocaine, but did not provide the Texas statute then in effect or a comparable Washington criminal statute. While it appears the Texas conviction is probably comparable to a Washington felony offense, we remand for the trial court to compare the elements of the 1997 Texas offense to potentially comparable Washington crimes.
Calculation of Time Served
Johnson relies on a strict reading of CrR 7.2(a) to argue that the trial court had to calculate the time Johnson served rather than rely on the jail's calculation. But there is no requirement that the court calculate the precise number of days Johnson spent in custody. CrR 7.2(a) provides, `The court shall state the precise terms of the sentence and shall assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.'
The court said, 'Whichever time is determined by the King County Jail is what you will receive.' RP (8/1/02) at 28.
Under RCW 9.94A.505(6), `The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.' Here the court ordered Johnson to receive credit for the time he served awaiting trial on his case. Neither CrR 7.2(a) nor RCW 9.94A.505(6) precludes the court from relying on the jail to calculate the exact amount of time. The sentencing court did not err in delegating calculation of time served to the jail.
In February and March 2001, when Johnson committed his offenses, this statute was codified as RCW 9.94A.120(17).
Johnson does not argue the Department of Detention's calculations of his time served were inaccurate. If a defendant objected to the Department of Detention's calculation of time served, the sentencing court would be obligated under CrR 7.2(a) to resolve the dispute.
Additional Motions Filed in Direct Appeal
Johnson filed several additional motions on appeal. They include `Writ for Arrest of Appeal, or Stay Pursuant to the Due-Process and Equal Protection Clause of the US Constitution,' filed January 10, 2005; `Motion for Change of Venue Pursuant to 28 U.S.C. sec. 1443 and Waiver of Appeal Counsel, Due to Self Retain Counsel,' filed January 11, 2005; `Legal Objections,' filed March 18; `Emergent Petition for Preliminary Injunction,' filed March 31; `Emergent Motion for Preliminary Injunction and Request for Protection Against Torture by Unwanton [sic] Infliction of Pain,' filed April 12; and `Legal Objection to this Appeal Moving Forward, to the Feeble Briefs Filed by Appeal Counsel, and Date Set for Oral Argument on Constitutional Grounds and to Prevent a Conspiracy by the State and State Appointed Appeal Counsel,' filed April 13. On April 19, we denied Johnson's `Motion Requesting a 30 day Extension based on Newly Discovered Exculpatory Evidence that Would Render Further Proceedings Useless,' filed April 13.
Johnson raises several of the same issues in these additional motions. First, he argues that counsel on appeal should be removed and the briefs filed on his behalf stricken. A commissioner from this court considered this argument, called for a response from Johnson's appointed counsel, and denied Johnson's request because Johnson failed to demonstrate any basis for his claims of deficient performance or conspiracy. Johnson's motion to modify the commissioner's decision was denied by this court and direct review was denied by the Washington Supreme Court. Johnson has raised no new information or argument that would support his argument that counsel should be removed, and we reject it.
Second, Johnson contends the verbatim report of proceedings has been altered. The only specific allegation about inaccuracies in the verbatim report is in the `Sworn Declaration of Jeanette McQueen,' which is attached as an exhibit to Johnson's January 10 `Writ for Arrest of Appeal.' But the declaration of McQueen does not provide any evidence that the verbatim report is inaccurate.
The Declaration identifies five alleged inaccuracies in McQueen's testimony: (1) she did not state that Johnson held a hot iron to her face; (2) she did not state Johnson threatened to burn her face; (3) she stated the police report she signed was an accurate report of the location of her injuries; (4) she did not state Johnson threatened her life in the assault on March 12, 2001; and (5) she denied she experienced any physical pain, but only felt hurt emotionally. The testimony Johnson refers to in (1) and (4) does not appear in the transcripts. The transcript is consistent with claim number (5) — McQueen testified her scars caused only emotional, not physical, pain. Even if the testimony referred to in (2), i.e., that Johnson threatened to burn her face, is inaccurate, it was irrelevant to the crime charged (there is no evidence of burns on McQueen's face and Johnson was not charged for the alleged threat). And Johnson used the police report referred to in (3), which said the burns were all on her right leg, to impeach McQueen's testimony that she had burns on both legs. The transcript is consistent with McQueen acknowledging the accuracy of the police statement.
Johnson also argues he is entitled to a change of venue under 28 U.S.C. sec. 1443. 28 U.S.C. sec. 1442 allows a defendant to remove a case from state to federal court if it involves a potential civil rights violation. The statute does not apply where, as here, there are no civil rights claims.
28 U.S.C. sec. 1443 also does not appear to authorize removal after the trial court has rendered a final decision.
Johnson further claims he is a government officer (in his January 11 Motion for Change of Venue he started describing himself as a `Senior U.S. Constable') and cannot be housed in a regular prison. Johnson also complains about the conditions of his confinement. These claims are appropriately addressed in a personal restraint petition.
CONCLUSION
We affirm the trial court's conviction of Johnson for first degree assault, fourth degree assault, and harassment, but remand for the trial court to compare the elements of the Texas conviction to potentially comparable Washington crimes.
KENNEDY and COLEMAN, JJ., Concur.