Opinion
No. 30770-7-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-8-01327-8. Judgment or order under review. Date filed: 07/22/2003. Judge signing: Hon. Marywave Van Deren.
Counsel for Appellant(s), Alan Stuart Richey, Attorney at Law, PO Box 45223, Tacoma, WA 98445-0223.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Aaron Gavin Tuck appeals his conviction of failure to register as a sex offender, arguing that the trial court lacked personal jurisdiction because he was not served with a summons, the State did not exercise due diligence in bringing him to the court, the charging document was defective, and the arrest was illegal because officers did not show him the warrant at the time of his arrest. He also challenges the underlying rape conviction, arguing that his counsel was ineffective, his plea agreement was the product of undue influence, and as a minor he can void the plea agreement. Finding no reversible error in his failure to register conviction, we affirm. And because TuckRs record on the rape conviction is not properly before us, he must challenge that conviction through a personal restraint petition.
FACTS
In February 2000, Tuck pleaded guilty to a charge of first degree child rape. In June 2001, the State charged Tuck in Pierce County Juvenile Court with one count of failure to register as a sex offender. Over two years later, the juvenile court heard Tuck's case and found beyond a reasonable doubt that he had knowingly failed to register as a sex offender.
Tuck was born on June 18, 1986. On February 9, 2000, when he was 13 years old, he pleaded guilty to a charge of first degree child rape and was sentenced to serve 15 to 36 weeks at the juvenile rehabilitation institution. He was also ordered to register under RCW 9A.44.130 as a sex offender with the Pierce County Sheriff's Department upon his release from the institution.
On September 11, 2000, Tuck was released from Echo Glen Children's Center to reside with his parents in Tacoma, Washington. At the time of his release, Tuck signed an order of parole conditions, which again required that he register with the sheriff's department in the county of his residence.
Tuck failed to register as a sex offender. On June 5, 2001, a deputy prosecuting attorney filed a declaration for probable cause to arrest Tuck. On June 11, 2001, the State charged Tuck with failure to register as a sex offender. On the same day, the court issued a bench warrant for Tuck's arrest. Two years later, on June 8, 2003, officers arrested Tuck.
Tuck moved to dismiss the charges, arguing that the State had not used due diligence in bringing him before the court. At trial, the juvenile court found that Parole Officer Luke Baker made numerous unsuccessful efforts to contact Tuck. The court also found that sheriff's deputies, including Deputy Keith Barnes, made numerous unsuccessful efforts to contact Tuck. In addition, the court found that Tuck family members prevented parole officers and sheriff's deputies from locating and arresting Tuck. The court found 'clear evidence of the Tuck's family's constant resistance to bring [Tuck] into compliance with the court's order and statutory requirements.' Amended Supplemental Clerk's Papers (ASCP) at 3.
Specifically, the court found that Barnes watched Tuck's house, including vehicles coming and going; he also obtained information about Tuck's church attendance and watched the church during those hours.
In an affidavit in support of his son's motion to dismiss for lack of personal jurisdiction, Johnathan Tuck, Tuck's father, claimed that he and Tuck's mother never received a copy of Tuck's guilty plea. He also claimed that they never received any paper work or legal documents explaining why Tuck was detained at Echo Glen. He asserted that no one ever told them there would be any conditions on Tuck's release or that Tuck would be required to register as a sex offender. Johnathan recounted that since January 2003, Pierce County sheriffs had twice visited the Tuck family home, stating that they had a warrant for Tuck's arrest. He claimed that the officers never presented the warrant or any paper work supporting it. He also claimed the officers did not present a warrant when they arrested Tuck on June 8, 2003. The court concluded, nonetheless, that Tuck and his family knew Tuck was required to register as a sex offender.
The court also concluded that, based on the deputies' attempts to find Tuck, the State had exercised due diligence in locating and arresting him. Finally, the court found that Tuck had been living in Pierce County, and that it had jurisdiction over him and the subject matter of the failure to register charge.
On July 26, 2004, the State moved this court to strike portions of the verbatim report of proceedings and clerk's papers Tuck designated. These materials included the following: (1) the verbatim report of proceedings from the January 27, 2000 hearing in which Tuck pleaded guilty to first degree child rape; (2) the statement of the defendant on plea of guilty; (3) the sexual offender disposition order, which was issued after Tuck's plea; (4) a transcript of proceedings from his sentencing held on February 9, 2000; and (5) Tuck's September 10, 2003 declaration. Because these materials were not part of Tuck's record on the failure to register trial or sentencing, a commissioner of this court granted the motion to strike. A panel of judges subsequently denied Tuck's motion to modify the commissioner's ruling.
ANALYSIS I. Personal Jurisdiction
Tuck argues that because the State failed to give him notice by summons, the court did not obtain personal jurisdiction over him. Br. of Appellant at 11.
Where the facts are undisputed, we review the trial court's assertion of personal jurisdiction de novo. State v. Squally, 132 Wn.2d 333, 341, 937 P.2d 1069 (1997) (citing Lewis v. Bours, 119 Wn.2d 667, 669, 835 P.2d 221 (1992)). Here, it is not disputed that Tuck lives in Pierce County, that he was adjudged of first degree child rape, that there was a warrant for his arrest for failure to register as a sex offender, and that he appeared in court for trial.
Contrary to Tuck's argument, the court is not required to issue a summons to commence proceedings against a juvenile. See RCW 13.40.100(1). Instead, RCW 13.40.100(1) provides: 'Upon the filing of an information the alleged offender shall be notified by summons, warrant, or other method approved by the court of the next required court appearance.' (Emphasis added.) In this case, an information was filed and a warrant was issued.
The juvenile division of the superior court has personal jurisdiction over persons under 18 years of age who are charged with committing crimes in Washington. State v. B.P.M., 97 Wn. App. 294, 299, 982 P.2d 1208 (1999) (citing State v. Anderson, 83 Wn. App. 515, 518, 922 P.2d 163 (1996)). Because Tuck failed to register as a juvenile offender in Washington, the juvenile court properly exercised personal jurisdiction over him. In addition, a court obtains personal jurisdiction from the defendant's presence in court. See, e.g., State v. Waters, 93 Wn. App. 969, 976, 971 P.2d 538 (1999) (citing State v. Ryan, 48 Wn.2d 304, 305, 293 P.2d 399 (1956)) (holding that if a defendant enters a plea of not guilty and is in court on the day of trial, the court has jurisdiction over that person); State v. Day, 46 Wn. App. 882, 896, 734 P.2d 491 (1987) (holding that the court obtained personal jurisdiction over a juvenile robbery defendant on the date of arraignment). The police arrested Tuck and brought him before the juvenile court. We conclude that the juvenile court had personal jurisdiction over Tuck.
II. Lack of Warrant in Hand
Tuck contends that the officers were required to show him the arrest warrant at the time of his arrest and that there is no evidence they did.
RCW 10.31.030 governs arrests in which officers have obtained but are not in possession of a warrant. It states: 'if the officer does not have the warrant in his possession at the time of arrest he shall declare that the warrant does presently exist and will be shown to the defendant as soon as possible on arrival at the place of intended confinement.' RCW 10.31.030. Here, the State had a bench warrant.
When the court ruled on this issue, it said:
[the] father's request was not unreasonable in the slightest, that he wanted to see a copy of the bench warrant. I believe, however, the bench warrants are filed in the file, and father could have come to the court, as we know he did, because he filed motions through this time, and actually read the bench warrant. He could have seen that. It was in the file. The file is available for public check-out. If he was really concerned with these ongoing efforts after his attempt to come in and deal with a warrant he had heard about, he could have read it in the file, because the bench warrant on this matter has been in the file since June of 2001. Report of Proceedings (RP) (July 2, 2003) at 9-10.
In State v. Simmons, 35 Wn. App. 421, 422, 667 P.2d 133 (1983), authorities arrested a defendant at his home under authority of a valid arrest warrant. The officers explained they did not have the warrant with them but that they would show it to him at the sheriff's office. Simmons, 35 Wn. App. at 422. Although the officers never showed him the warrant, the court held that they had substantially complied with RCW 10.31.030, which requires only that an arresting officer declare a warrant exists and promise to display it upon arrival at the place of confinement. Simmons, 35 Wn. App. at 423.
While Tuck asserts that he was never shown the warrant, he does not assert that officers never told him of the warrant's existence or promised to show it to him once confined. His argument fails under Simmons.
III. Due Diligence
The trial court denied Tuck's motion to dismiss for the State's failure to exercise due diligence in bringing him before the court. Tuck argues that the evidence does not support the court's due diligence finding. He points to the State's failure to prepare, file, and serve a summons or a copy of the warrant. The State counters that Tuck has not provided us with a record in support of his argument; he has provided us with only the transcript of the court's due diligence decision, not a transcript of the testimony on this issue. Furthermore, the State reminds us that Tuck failed to assign error to the relevant findings of fact supporting the court's conclusion that the officers acted with due diligence.
When there is 'a long and unnecessary delay between the 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,' not the defendant's first appearance. Former CrR 3.3 (2001); State v. Galbreath, 109 Wn. App. 664, 668, 37 P.3d 315 (2002) (citing State v. Greenwood, 120 Wn.2d 585, 599, 845 P.2d 971 (1993)). 'Delay is unnecessary' if, while it was occurring, the defendant was amenable to process and the State failed to exercise due diligence to bring him or her before the court.' Galbreath, 109 Wn. App. at 668-69 (citations omitted). '[D]ue diligence requires the expenditure of at least a minimal amount of effort to bring a defendant before the court in a timely manner.' State v. Huffmeyer, 145 Wn.2d 52, 63, 32 P.3d 996 (2001). We review a trial court's finding that the State exercised due diligence for substantial evidence, which 'is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.' State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999) (citing State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)). Also, any delay in a defendant's arraignment that results from fault or connivance on the part of the defendant is not counted against the State for determining whether the defendant was timely arraigned. See Greenwood, 120 Wn.2d at 600.
CrR 3.3 and 4.1 were amended September 1, 2003. The amended version of CrR 3.3(c)(1) states that '[t]he initial commencement date shall be the date of arraignment as determined under CrR 4.1.' CrR 4.1(a)(2) (2003) states, '[a]ny delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for that delay.' These amendments superseded the constructive arraignment principles in State v. Striker, 87 Wn.2d 870, 557 P.2d 847 (1976) and Greenwood. See Karl v. Tegland, 4A Wash. Prac. at 17 (2004 pocket part). Here, the pre-amendment version of CrR 3.3 applies because the information was filed on June 11, 2001, and Tuck was arrested, arraigned, and adjudicated before September 1, 2003.
Tuck must provide us with a 'separate [and] concise statement' of each claimed error. RAP 10.3(a)(3). He assigned error to some findings of fact that he deems specific to the issue of due diligence: (1) the prosecutor erred by failing to prepare, file and serve a summons along with the information; (2) the trial court erred by proceeding without making a finding that the court had personal jurisdiction; and (3) the trial court erred in finding that the State exhibited due diligence). The court, however, did not decide the due diligence issue on these findings. Other than reiterating his contention that the officers did not exercise due diligence, these findings shed no light on the State's efforts to bring Tuck before the court.
The court detailed the officers' efforts that constituted due diligence in bringing Tuck before the court. Tuck did not assign error to any of these findings and, thus, they are verities on appeal. State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995).
Tuck also has the burden of providing us with a record sufficient to review his assignments of error. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). Thus, even if he had assigned error to the relevant findings, Tuck gives us no means to evaluate the sufficiency of the evidence. Specifically, he had not provided the record of any testimony the court relied on. Because of Tuck's failure to assign error to the critical findings and give us the record to review, we decline to review the due diligence issue. See State v. Meas, 118 Wn. App. 297, 303 n. 6, 75 P.3d 998 (2003), review denied, 151 Wn.2d 1020 (2004) (holding that the Court of Appeals was precluded from reviewing the defendant's arguments that the jury instructions and verdict form were erroneous at his murder trial when those items were not included in the record on appeal).
IV. Prior Felony
Tuck argues that when the juvenile court adjudged that he committed rape, it did not find that he had committed felony rape. Thus, reasons Tuck, the charging document here, which alleged that he had committed the predicate crime of felony rape, was flawed. Tuck contends that the flawed charging document was constitutionally defective for failing to give him proper notice of the charges.
Tuck may challenge the sufficiency of a charging document for the first time on appeal because it involves a question of constitutional due process. State v. Kjorsvik, 117 Wn.2d 93, 107, 812 P.2d 86 (1991) (quoting State v. Leach, 113 Wn.2d 679, 691, 782 P.2d 552 (1989)). '[A] charging document is constitutionally adequate only if all essential elements of a crime, statutory and nonstatutory, are included in the document so as to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense.' State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995) (citations omitted).
Because Tuck raises the issue after his adjudication, we construe the charging document liberally in favor of validity. Kjorsvik, 117 Wn.2d at 105. 'Liberal construction review requires that the information reasonably apprise the defendant of the elements of the crime and that the defendant not suffer actual prejudice from any vague or inartful language in the information.' State v. Ward, 148 Wn.2d 803, 813, 64 P.3d 640 (2003) (citing Kjorsvik, 117 Wn.2d at 102, 106).
The elements for failing to register as a sex offender are '[a]ny adult or juvenile residing whether or not the person has a fixed residence . . . who has been found to have committed or has been convicted of any sex offense . . . shall register with the county sheriff for the county of the person's residence.' RCW 9A.44.130(1) (emphasis added). '[T]he term 'conviction' refers to adult convictions and juvenile adjudications for sex offenses.' RCW 9A.44.130(4)(a). Thus, the registration statute applies to both juvenile and adult offenders.
The charging document here alleged that Tuck had been previously 'convicted of a felony sex offense . . . to-wit: RAPE OF A CHILD IN THE FIRST DEGREE.' Amended Clerk's Papers (ACP) at 1. It should have alleged that Tuck had been previously adjudged to have committed a sex offense . . . to wit: RAPE OF A CHILD IN THE FIRST DEGREE. But Tuck does not explain how the charging document confused or misled him about the underlying sex offense. The registration statute specifies that 'conviction' refers to both juvenile adjudications and adult convictions. Accordingly, the allegation that Tuck 'had been convicted' means the same as 'had been adjudicated.' The only remaining asserted flaw is the State's characterization of Tuck's previous adjudication as a felony offense. But the felony offense language is followed immediately by an accurate description of Tuck's specific crime, first degree child rape. We hold that the charging document, liberally construed, sufficiently apprised Tuck of the crime.
Indeed, Tuck does not claim to have been misled by the charging document. Instead, he contends that as a juvenile he could not have been convicted of a felony; thus, he could not be charged with felony failure to register under RCW 9A.44.130(10)(a). He points to RCW 9A.44.130(10)(a), which provides that a 'person who knowingly fails to register with the county sheriff or notify the county sheriff . . . as required by this section is guilty of a class C felony if the crime for which the individual was convicted was a felony sex offense as defined in subsection (9)(a) of this section.' In contrast, '[i]f the crime for which the individual was convicted was other than a felony . . . violation of this section is a gross misdemeanor.' RCW 9A.44.130(10)(b). Tuck reasons that the juvenile court could have found him guilty of only a gross misdemeanor.
Under the Juvenile Justice Act, 'an act which would be a crime if committed by an adult is not a crime, and thus not a felony, if committed by a juvenile.' In re Weaver, 84 Wn. App. 290, 294, 929 P.2d 445 (1996); cf. In re Frederick, 93 Wn.2d 28, 30, 604 P.2d 953 (1980); State v. Cheatham, 80 Wn. App. 269, 272-73, 908 P.2d 381 (1996). But Tuck was not charged with or convicted of felony failure to register in juvenile court. Rather, the juvenile court adjudged Tuck to have failed to register. It then sentenced him as a juvenile to 25 days' detention at Remann Hall and fined him $100. As Tuck has argued elsewhere, his juvenile adjudications are not crimes, but civil adjudications. As such, his attempt to now claim gross misdemeanor status fails.
In Frederick, a juvenile court convicted a juvenile of second degree burglary. Afterwards, he ran from his probation officer, and the State charged him with first degree escape. To prove first degree escape, the State had to show that the juvenile fled while being detained pursuant to a conviction for a felony. The court said that 'a juvenile has not committed a crime, including a felony, when he has committed an offense, 'an act designated as a crime if committed by an adult.'' Frederick, 93 Wn.2d at 30 (quoting RCW 13.40.020(14)).
In conclusion, two aspects of Tuck's juvenile court history are clear: (1) the juvenile court adjudged that he had raped a child; and (2) his crime was a sex offense as defined in RCW 9A.44.130. Thus, Tuck's rape adjudication required him to register. RCW 9A.44.130(1).
V. Issues Related to Appeal or Collateral Attack of Underlying Conviction
Tuck also challenges his underlying conviction of first degree child rape. First, he argues that he was wrongly questioned by officers and not permitted to contact his parents or consult an attorney when he was arrested for rape of a child. Second, he argues that his plea agreement is void under contract principles. Third, he argues that his counsel was ineffective in guiding him through the plea process. Because these issues were not raised in the trial court, we granted the State's motion to strike the documents pertaining to these arguments. Tuck may collaterally attack his rape of a child conviction under Title 16; he cannot challenge his conviction in this appeal.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., Concur.