Opinion
Nos. 26200-6-III; 27152-8-III.
May 5, 2009.
Appeal from a judgment of the Superior Court for Yakima County, No. 07-1-00130-7, Ruth E. Reukauf, J., entered April 12, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition dismissed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Sweeney, J.
UNPUBLISHED OPINION
Pro se, Mark Jamey Bremer appeals his residential burglary conviction, raising 15 grounds for reversal. We consolidated Mr. Bremer's personal restraint petition (PRP) that raises five contentions not addressed in his direct appeal. Additionally, we rule on Mr. Bremer's five motions to modify Clerk's rulings. We affirm Mr. Bremer's conviction, reject his PRP contentions, and deny his motions.
FACTS
The facts are stated in the light most favorable to the State because we partly consider Mr. Bremer's evidence insufficiency contentions. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
In January 2007, Yakima County Deputy Sheriff Robert Tucker responded to a security alarm at 750 East Wapato Road in Wapato, Washington. The house had been unoccupied since Rosie Schuster's death in November 2005.
Ms. Schuster's daughter, Lindsey Miller, had inherited the house, which was still in probate. Steven Tupy, a family friend who lived nearby, kept an eye on the house for Ms. Miller.
Deputy Tucker found the house secured by security bars and plywood. Deputy Tucker saw a ladder against the house underneath a partly pulled out attic vent. No one responded to Deputy Tucker's knocking on the front and back house doors, but the Deputy heard bumping sounds coming from within.
Mr. Tupy arrived at the house and gave Deputy Tucker and other officers permission to force entry. Deputy Tucker found the lights on in the one-level living area, but did not find anyone present. Some rooms looked "gone through" with boxes and drawers opened with "stuff was laying beside them." 2 Report of Proceedings (RP) (Mar. 7, 2007) at 209.
Deputy Tucker climbed into the attic and found Mr. Bremer hiding there. Found on Mr. Bremer were a utility knife, latex gloves, gold toenail clippers, a pair of wire frame glasses, and Ms. Schuster's church membership card.
The State charged Mr. Bremer with the residential burglary of Ms. Miller's dwelling. The information listed Mr. Bremer's name as "MARK JAMEY BREMER" and listed his address as transient. Clerk's Papers (CP) at 111.
At arraignment, Mr. Bremer acknowledged his true name was Mark Jamey Bremer. The State read Mr. Bremer the facts of the alleged offense as set forth in the information, and provided Mr. Bremer with a copy of the information. The record does not show that Mr. Bremer attended his omnibus hearing or his status hearing.
The State gave Mr. Bremer copies of police reports on the first morning of trial that Mr. Bremer had requested from Sergeant Carl Hendrickson and a Sergeant Swallow. The State told the court it had learned of the police reports the day before trial. Mr. Bremer, through counsel, did not desire an available continuance within the speedy trial limits, but wished to proceed to trial. Later, Mr. Bremer, pro se, asked the trial court to dismiss the charge because of the late discovery. The trial court denied Mr. Bremer's request, finding Mr. Bremer had not made a showing of prejudice to justify dismissal. Sergeant Hendrickson testified at trial, but not Sergeant Swallow.
The evidence showed Mr. Bremer did not have permission to enter the house. Because of earlier break-ins, Mr. Tupy testified that signs, bars, plywood covers, chains, and padlocks were employed to protect the house and surrounding area. Mr.
Tupy testified the night after the critical events, he discovered Mr. Bremer's pick-up truck parked on the property, about 200-300 yards from the house.
Ms. Miller testified she inherited the house from her mother. She testified her mother previously lived in the house, and that no one had lived there since her death. She further testified the house had not been used for anything other than a home, and she did not plan to change it from that purpose.
Deputy Sheriff Aurelio Bermudez testified about patting down Mr. Bremer and removing items from his jacket pockets and pants pockets. Deputy Bermudez remembered removing a pair of latex gloves. Further, on cross-examination:
[Defense counsel:] Where did you find [the gloves]?
[Deputy Bermudez:] It was in either his jacket pocket or his pants pocket.
He's — — he was wearing a jacket that night.
[Defense counsel:] Okay. Okay. Now most of the things you recovered from the jacket; is that right?
[Deputy Bermudez:] Excuse me?
[Defense counsel:] Most of the things you recovered, you recovered from the jacket?
[Deputy Bermudez:] And his pants pockets.
3 RP (Mar. 8, 2007) at 379.
Deputy Sheriff Shirley Stiles testified she was present when Deputy Bermudez was removing items from Mr. Bremer's person. She testified she looked through the items taken from Mr. Bremer, which included the gold toenail clippers, latex gloves, a pair of wire frame glasses, and the church membership card listing the name of Ms. Schuster. Ms. Miller identified the gold toenail clippers as belonging to Ms. Schuster, and identified the latex gloves as those she purchased for the house and left on the kitchen counter.
Mr. Bremer elected to testify, admitting he entered the house by climbing the ladder and jumping through the attic vent. Mr. Bremer gave two reasons for entering the house in support of his necessity defense; first, he was cold, and second, a cougar, who had just attacked his dog, was after him. He testified he eventually fell through the ceiling to the main floor of the house. Mr. Bremer testified he spent about 10 minutes there, before activating the alarm system to call the police and went back to the attic to wait for them. He testified he took the gloves from the kitchen, to try and warm up his hands, but did not remember the other items found on his person.
Mr. Bremer mentioned that he had hearing problems while describing the critical events, but did not raise any problem hearing at trial except once on cross-examination:
[The State:] When you were sitting here in the chair and listening to [Ms.] Miller testify, were you able to hear what she was saying?
[Mr. Bremer:] Not — — not all of it, no.
[The State:] And you didn't bring that up?
[Mr. Bremer:] I have an attorney.
[The State:] And —
[Mr. Bremer:] I trust him.
[The State:] And, so you didn't care what she said?
[Mr. Bremer:] I asked him a few times. I asked him a couple of times what he — — what — — what she's saying, yeah.
[The State:] Are you having any problem hearing me now?
[Mr. Bremer:] Yeah, a little bit [of] difficulty hearing you now.
3 RP (Mar. 8, 2007) at 487.
Mr. Bremer was not present at the instruction conference, but in a sentencing colloquy, Mr. Bremer acknowledged he had agreed the conference could take place in his absence while he used the restroom. Mr. Bremer unsuccessfully proposed a lesser-included offense instruction for first degree criminal trespass. The trial court reasoned: "I do not believe the second prong is met where the evidence has to support giving it." 3 RP (Mar. 8, 2007) at 498. The court gave the lesser-included offense instruction for second degree burglary proposed by the State. Regarding the residential burglary elements, the trial court instructed "[d]welling means any building or structure which is used or ordinarily used by a person for lodging." CP at 55. The trial court gave Mr. Bremer's necessity defense instruction.
In closing argument, the prosecutor argued without objection: "[Mr. Bremer] said he didn't remember a lot of the property that was recovered from him, but even from the stand, he admitted taking the gloves." 3 RP (Mar. 8, 2007) at 511. In his rebuttal closing argument, the prosecutor argued, "[a]ll that you have to find is that he was in the house and he was in there illegally and he committed a theft while he was in there. Which he has admitted to." 3 RP (Mar. 8, 2007) at 527. Defense counsel did not object, but Mr. Bremer, pro se, unsuccessfully attempted to interject his own objection, "I didn't admit to theft." 3 RP (Mar. 8, 2007) at 527.
The jury found Mr. Bremer guilty as charged. The court sentenced him to the high end of the 9+ standard-range, 84 months, and ordered $600 for attorney fees. Mr. Bremer raised several legal concerns during allocution explained in the analysis below.
The court then sought to determine if agreement might be reached on restitution:
[The court:] I guess we can pull Mr. Bremer back from the institution for purposes of a restitution hearing and give him a couple of bus rides if we need to, or we can agree to an amount here that everyone's —
[Defense counsel:] We won't agree to —
[The court:] — — happy with.
[Defense counsel:] — — amount here. What was Your Honor thinking would be the (inaudible)?
[The court:] I think 300 is fair, more than fair.
[Defense counsel:] So —
[The court:] [Prosecutor], are we okay with that?
[The State:] Sure.
4 RP (Apr. 12, 2007) at 569. Mr. Bremer was then ordered to pay $300 restitution to Ms. Miller. The trial court stated, "we've agreed to the restitution amount of $300," and defense counsel did not object. 4 RP (Apr. 12, 2007) at 606.
Mr. Bremer appealed and filed a habeas corpus petition in the trial court that was transferred here as a PRP. We consolidated the cases. After his appeal, Mr. Bremer filed a document with the trial court entitled "Conditional Acceptance for Value." CP at 119-28, 149-67. Mr. Bremer moved to modify several of our Clerk's rulings.
ANALYSIS A. Information Sufficiency
The issue is whether the information was sufficient. "'The Sixth Amendment to the United States Constitution and article I, section 22 (amend. 10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and nonstatutory, so as to inform the defendant of the charges against him and to allow him to prepare his defense.'" State v. Mendoza-Solorio, 108 Wn. App. 823, 829, 33 P.3d 411 (2001) (quoting State v. Phillips, 98 Wn. App. 936, 939, 991 P.2d 1195 (2000)). "'Every material element of the charge, along with all essential supporting facts, must be put forth with clarity.'" Id. (quoting State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000)).
"'[W]hen a defendant challenges the sufficiency of a charging document, the standard of review depends on the timing of the objection.'" Id. (quoting State v. Grant, 104 Wn. App. 715, 720, 17 P.3d 674 (2001)). "Charging documents which are not challenged until after the verdict will be more liberally construed in favor of validity than those challenged before or during trial." State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). Here, Mr. Bremer first challenged the information during his allocution at sentencing. Accordingly, the liberal standard of review applies. Id.
Under the liberal standard of review of a charging document, we apply a two-prong test: "(1) do the necessary elements appear in any form, or by fair construction can they be found, in the information, and if so (2) can the defendant show he or she was actually prejudiced by the inartful language." McCarty, 140 Wn.2d at 425 (citing Kjorsvik, 117 Wn.2d at 105-06). Further, "[i]f the necessary elements are not found or fairly implied, however, we presume prejudice and reverse without reaching the question of prejudice." Id. (citing Kjorsvik, 117 Wn.2d at 105-06).
First, Mr. Bremer contends the information did not contain the crime's essential elements. The essential elements of residential burglary are entering or remaining unlawfully in a dwelling plus the intent to commit a crime against a person or property therein. RCW 9A.52.025(1). Here, the information charged:
On or about January 11, 2007, in the State of Washington, with intent to commit a crime against a person or property therein, you entered or remained unlawfully in a dwelling other than a vehicle, located at 750 East Wapato Road, Wapato, Washington, the residence of Lindsey Miller.
CP at 111. The first review prong is satisfied because the necessary elements of residential burglary are found in the information. See McCarty, 140 Wn.2d at 425 (citing Kjorsvik, 117 Wn.2d at 105-06). Under the second review prong, the issue is whether Mr. Bremer was prejudiced by the language in the information. See id. Under the facts presented, Mr. Bremer cannot show prejudice. The information apprised Mr. Bremer of the essential elements and the facts supporting the crime.
Second, Mr. Bremer contends his name is listed incorrectly on the information, because it is listed in all capital letters, rather than in upper and lower case letters. This contention is without merit. No legal authority specifies upper or lower case printing of a defendant's name in an information. See CrR 2.1(a)(2) (required contents of an information). Further, Mr. Bremer acknowledged his true name was Mark Jamey Bremer at his arraignment.
Third, Mr. Bremer contends the information incorrectly lists his address as transient. The information must contain, or have attached to it, the address of the defendant. CrR 2.1(a)(2). Mr. Bremer testified he was homeless at the time this incident occurred, and that he was living in his pick-up truck. Thus, his third contention is without merit.
Fourth, Mr. Bremer contends the information incorrectly listed Ms. Miller as the residence owner. The trial testimony showed Ms. Miller had inherited the house from Ms. Schuster. Thus, his fourth contention is without merit.
Fifth, Mr. Bremer contends the information did not list the county in which the alleged offense occurred. Pursuant to article I, section 22 of the Washington State constitution, "[i]n criminal prosecutions the accused shall have the right . . . to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed." Const. art. I, § 22 (amend. 10). However, proof of venue is not an element of a crime. State v. Dent, 123 Wn.2d 467, 479, 869 P.2d 392 (1994). Furthermore, the right to challenge venue may be waived. Id. (citing State v. Hardamon, 29 Wn.2d 182, 188, 186 P.2d 634 (1947)); see also State v. McCorkell, 63 Wn. App. 798, 800, 822 P.2d 795 (1992). "Generally, the right must be asserted before jeopardy attaches, which is to say before the jury is sworn in a jury trial." State v. Pejsa, 75 Wn. App. 139, 145, 876 P.2d 963 (1994) (citing Dent, 123 Wn.2d at 480). Mr. Bremer did not raise the issue of venue until his allocution at sentencing. Thus, Mr. Bremer waived his venue challenge. See Pejsa, 75 Wn. App. at 145.
Finally, Mr. Bremer contends he did not receive the "original blue ink information," and that the RCWs do not apply to him. Both of these contentions are without merit. First, no authority requires the defendant be given an "original" information. Rather, a copy of the information must be given to the defendant at arraignment, as was done here. CrR 4.1(f). Second, Mr. Bremer does not explain or cite any authority in support of this contention. Washington has criminal jurisdiction over "[a] person who commits in the state any crime, in whole or in part." RCW 9A.04.030(1). Accordingly, we reject Mr. Bremer's challenges.
B. Presence of Defendant
The issue is whether Mr. Bremer's constitutional rights were violated when the trial court held an omnibus hearing, a status hearing, and a conference regarding jury instructions without his presence.
"A criminal defendant has a constitutional right under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment to be present during all critical stages of the criminal proceeding." State v. Wilson, 141 Wn. App. 597, 603, 171 P.3d 501 (2007) (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)). "The core of this right is the right to be present when evidence is presented." Id. (citing Gagnon, 470 U.S. at 526). Further, a defendant has a "right to be present at a proceeding 'whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835, clarified, Page 12 123 Wn.2d 737, 870 P.2d 964 (quoting Gagnon, 470 U.S. at 526). However, "[a] defendant does not have a right to be present during in-chambers or bench conferences between the court and counsel on legal matters, at least when those matters do not require the resolution of disputed facts." State v. Bremer, 98 Wn. App. 832, 835, 991 P.2d 118 (2000) (citing Lord, 123 Wn.2d at 306).
Here, at both the omnibus hearing and the status hearing, no evidence was presented, and no disputed factual issues were resolved. The general topic of both hearings was the status of the case. Thus, it cannot be said that Mr. Bremer's presence had "'a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Lord, 123 Wn.2d at 306 (internal quotation marks omitted) (quoting Gagnon, 470 U.S. at 526). Moreover, Mr. Bremer does not explain how his absence affected the outcome of any of the challenged proceedings, nor is there any indication of prejudice in the record. See Lord, 123 Wn.2d at 307. Accordingly, Mr. Bremer did not have a constitutional right to be present at these hearings.
Regarding the instruction conference, our case is akin to a prior case involving Mr. Bremer, where this court rejected Mr. Bremer's similar argument. See Bremer, 98 Wn. App. at 834-35. There, the court found no evidence was presented at the conference, and that jury instructions involve the resolution of legal issues, as opposed to factual issues. Bremer, 98 Wn. App. at 835. Further, the court found, "[i]n the absence of some extraordinary circumstance in which Mr. Bremer's presence would have made a difference, a discussion involving proposed jury instructions is not a critical stage of the proceedings." Id. Likewise, here, no evidence was presented at the jury instruction conference, and the issues resolved were legal. Nothing here suggests that Mr. Bremer's presence would have made a difference in the outcome.
C. Late Discovery
The issue is whether the trial court erred in not dismissing the case based upon the State's disclosure of police reports on the day of trial.
The discovery rules partly provide:
Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing:
. . . the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses.
CrR 4.7(a)(1)(i).
"A trial court is given wide latitude in granting or denying a motion to dismiss a criminal prosecution for discovery violations." State v. Woods, 143 Wn.2d 561, 582, 23 P.3d 1046 (2001). We will not disturb a court's denial of a dismissal motion "unless we find that the denial constitutes a manifest abuse of discretion." Id. (citing State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994)). In addition, "dismissal of charges is an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her Page 14 rights to a fair trial." Id. (internal quotation marks omitted) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).
Before a trial court exercises its discretion to dismiss criminal charges:
[A] defendant must prove that it is more probably true than not true, that (1) the prosecution failed to act with due diligence, and (2) material facts were withheld from the defendant until shortly before a crucial stage in the litigation process which essentially compelled the defendant to choose between two distinct rights.
Id. at 583. Specifically, "[t]he State's delay must also be accompanied by an interjection of 'new facts' into the case which then causes the defendant to choose between two constitutional rights." Id. at 584. These two rights are the right to a speedy trial, and the "'right to be represented by counsel who has had sufficient opportunity to adequately prepare a material part of [the] defense.'" Id. at 582 (quoting State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)).
Assuming a discovery violation for argument, dismissal was not the appropriate remedy. Mr. Bremer cannot establish "material facts were withheld from [him] until shortly before a crucial stage in the litigation process which essentially compelled [him] to choose between two distinct rights." Woods, 143 Wn.2d at 583. Nothing shows the police reports interjected new facts into the case. See id. at 584. Sergeant Swallow did not testify at trial, and Sergeant Hendrickson's testimony was cumulative to that given by Deputy Tucker. In addition, the record shows Mr. Bremer was not forced to choose between two constitutional rights, because speedy trial time remained. Mr. Bremer could have sought a continuance, but he did not. Accordingly, the trial court did not err.
D. Prosecutorial Misconduct
Mr. Bremer contends the prosecutor committed misconduct in his closing argument. The prosecutor stated: "[Mr. Bremer] said he didn't remember a lot of the property that was recovered from him, but even from the stand, he admitted taking the gloves." 3 RP (Mar. 8, 2007) at 511. Mr. Bremer did not object to this argument. In his rebuttal closing argument, the prosecutor stated, "[a]ll that you have to find is that he was in the house and he was in there illegally and he committed a theft while he was in there. Which he has admitted to." 3 RP (Mar. 8, 2007) at 527. Defense counsel did not object to this argument, although Mr. Bremer, pro se, improperly attempted to inject testimony in the form of an objection. The trial court properly admonished Mr. Bremer to prevent similar outbursts.
"To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct by the prosecutor and prejudicial effect." State v. O'Donnell, 142 Wn. App. 314, 328, 174 P.3d 1205 (2007) (citing State v. Munguia, 107 Wn. App. 328, 336, 26 P.3d 1017 (2001)). "[T]he defendant bears the burden of proof on both issues." Id. (citing Munguia, 107 Wn. App. at 336). Further, "'[a]bsent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered.'" Id. (quoting Munguia, 107 Wn. App. at 336). "In closing argument, counsel has wide latitude in drawing and expressing reasonable inferences from the evidence." State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281 (1983)).
Mr. Bremer testified he took the latex gloves from the kitchen of the house to try and warm up his hands. Deputy Bermudez testified he patted down Mr. Bremer, and he found a pair of latex gloves on his person. In arguing Mr. Bremer admitted to taking the gloves and admitted to committing theft, the prosecutor was drawing reasonable inferences from this evidence. See Hughes, 118 Wn. App. at 727. Accordingly, the prosecutor did not commit misconduct.
E. Assistance of Counsel
The issue is whether Mr. Bremer was denied effective assistance of counsel.
Mr. Bremer must show his attorney's performance fell below an objective standard of reasonableness and that the deficiency prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice requires a showing that "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 335.
First, Mr. Bremer points to the State's direct examination of Deputy Bermudez, but Mr. Bremer does not claim his defense attorney should have objected. Second, Mr. Bremer points to his defense attorney's cross-examination of Deputy Bermudez:
[Defense counsel:] Where did you find [the gloves]?
[Deputy Bermudez:] It was in either his jacket pocket or his pants pocket.
He's — — he was wearing a jacket that night.
[Defense counsel:] Okay. Okay. Now most of the things you recovered from the jacket; is that right?
[Deputy Bermudez:] Excuse me?
[Defense counsel:] Most of the things you recovered, you recovered from the jacket?
[Deputy Bermudez:] And his pants pockets.
3 RP (Mar. 8, 2007) at 379.
Even assuming deficient performance, Mr. Bremer does not establish prejudice. Evidence that the gloves and the other property were removed from Mr. Bremer's jacket pockets and pants pockets came in during the direct examination of Deputy Bermudez, and Deputy Stiles testified the gloves and the other property were removed from Mr. Bremer's person. Because this evidence would have been before the jury regardless of defense counsel's questioning, it cannot be said that the outcome would have been different but for this questioning. See McFarland, 127 Wn.2d at 335.
Next, Mr. Bremer asserts his defense counsel did not investigate his necessity defense, denying him effective assistance of counsel. Mr. Bremer points out that no defense witnesses were called other than him. In his allocution at sentencing, Mr. Bremer related he wanted his defense attorney to retain an expert to determine what hypothermia does to the brain.
"[T]his court cannot deem the failure to investigate or to call witnesses prejudicial unless the record supports the determination that these witnesses would have been helpful to the defense." State v. Weber, 137 Wn. App. 852, 858, 155 P.3d 947 (2007) (citing State v. Jury, 19 Wn. App. 256, 265, 576 P.2d 1302 (1978)) review denied, 163 Wn.2d 1001 (2008). However, even if:
[W]e are unable to ascertain whether counsel's lack of preparation prejudiced [the] defendant by depriving him of evidence that would have been helpful to his case, we must still consider whether [the] defendant was prejudiced because counsel's lack of preparation caused him to overlook obvious legal issues and arguments at trial.
Jury, 19 Wn. App. at 265.
Nothing shows that a hypothermia expert would have been helpful to Mr. Bremer. Mr. Bremer testified he was cold, but did not establish his body reached a hypothermic state. Further, the record suggests his defense attorney grasped the legal issues and was prepared at trial. See Jury, 19 Wn. App. at 265. Defense counsel sought and obtained a jury instruction regarding the defense of necessity, and argued this defense in his closing argument. Defense counsel argued the cold may have had an effect on Mr. Bremer's decision-making abilities. Given all, Mr. Bremer cannot show prejudice based on his defense attorney's failure to retain a hypothermia expert. Accordingly, he was not denied effective assistance of counsel. See McFarland, 127 Wn.2d at 334-35.
F. Hearing Impairment Accommodation
Mr. Bremer contends his due process rights and rights under the Americans with Disabilities Act were violated by the court's failure to address his hearing impairment.
Mr. Bremer first mentioned hearing problems at the event scene during his direct examination at trial. He did not complain about his ability to hear at trial, except for one reference in his cross-examination relating that he could not hear all of Ms. Miller's testimony and he was having "a little bit [of] difficulty" hearing the prosecutor. 3 RP (Mar. 8, 2007) at 487. He did not request any assistance from the trial court. Cf. In re Marriage of Olson, 69 Wn. App. 621, 623-24, 850 P.2d 527 (1993) (addressing hearing impairment issue raised by the appellant, where, during trial, the appellant requested the witnesses speak louder). Mr. Bremer continued to respond to the prosecutor's questions, without any indication he could not hear. During Ms. Miller's testimony, he did not indicate he could not hear, nor did he request assistance from the trial court.
"The appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). An exception is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). To meet this exception, "[t]he defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error 'manifest', allowing appellate review." McFarland, 127 Wn.2d at 333. "Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
Mr. Bremer fails to show how the court's alleged failure to accommodate his hearing impairment "had practical and identifiable consequences in the trial of the case." Lynn, 67 Wn. App. at 345. He does not specify what portions, if any, of the trial he missed; nor does he explain how the trial would have been different if his hearing impairment had been accommodated. Given all, we decline to consider his argument for the first time on appeal.
G. Compulsory Process Claims
Mr. Bremer contends his constitutional right to compel witnesses to testify was violated when his attorney did not call witnesses in support of his necessity defense.
"Both the Sixth Amendment of the Federal Constitution and art. I, § 22 (amend. 10), of the Washington Constitution guarantee an accused the right to compulsory process to compel the attendance of witnesses." State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). "'The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.'" Id. (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). This right is not absolute. State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984). Rather, it is limited to witnesses who are "'relevant and material to the defense.'" Id. (quoting Washington, 388 U.S. at 23).
Here, Mr. Bremer established his necessity defense in his own testimony. At best, other witnesses would be no more than cumulative. His counsel obtained a necessity instruction and argued it to the jury. He does not show how the potential witnesses would have added any new relevant and material evidence. See, e.g., State v. Allen, 116 Wn. App. 454, 462, 66 P.3d 653 (2003) (requiring relevant and material evidence to establish constitutional violation). Mr. Bremer merely assumes witnesses exist that would offer relevant and material evidence without showing such witnesses actually exist. The decision to call witnesses is typically a matter of trial tactics and strategy better addressed in the context of an ineffective assistance of counsel claim. In sum, Mr. Bremer has not established any compulsory process violation.
H. Jury Instructions — Lesser-Included Offense
The issue is whether the trial court erred by refusing to give a lesser-included offense instruction for first degree criminal trespass.
We review a trial court's refusal to give a jury instruction for an abuse of discretion. State v. Prado, 144 Wn. App. 227, 241, 181 P.3d 901 (2008) (citing State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998)). "The jury must be fully instructed on the law, but there is no right to an instruction that is not supported by the evidence." Id. (citing State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994)). A defendant is entitled to a lesser-included offense instruction when (1) each element of the lesser offense is a necessary element of the offense charged (the legal test), and (2) the evidence supports an inference that the lesser offense was committed (the factual test). State v. Aumick, 126 Wn.2d 422, 426, 894 P.2d 1325 (1995) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). The evidence must support an inference that the defendant committed the lesser offense instead of the greater one. State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992).
"A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle." RCW 9A.52.025(1). On the other hand, "[a] person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1).
Here, the factual test is not met. See Aumick, 126 Wn.2d at 426 (citing Workman, 90 Wn.2d at 447-48). The evidence does not support an inference that Mr. Bremer committed solely first degree criminal trespass, specifically, that he "knowingly enter[ed] or remain[ed] unlawfully" in the house, but without "intent to commit a crime against a person or property therein." RCW 9A.52.070(1); RCW 9A.52.025(1). Mr. Bremer testified he took the gloves from the kitchen, albeit to try and warm up his hands. Deputy Stiles testified the items removed from Mr. Bremer included the gold toenail clippers, latex gloves, a pair of wire frame glasses, and a church membership card listing the name of Ms. Schuster. Ms. Miller testified the gold toenail clippers belonged to Ms.
Schuster, and identified the latex gloves as those she purchased for the house. No affirmative evidence permitted the jury to rationally infer that Mr. Bremer committed solely first degree criminal trespass. See Bergeson, 64 Wn. App. at 369.
I. Trial Record
The issue is whether the record is of sufficient completeness to permit effective review, considering the numerous inaudible portions in the record.
"A criminal defendant is constitutionally entitled to a record of sufficient completeness to permit effective appellate review of his or her claims." State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (internal quotation marks omitted) (quoting State v. Thomas, 70 Wn. App. 296, 298, 852 P.2d 1130 (1993)). "A record of sufficient completeness does not translate automatically into a complete verbatim transcript." Id. (internal quotation marks omitted) (quoting Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971)). The absence of a portion of the record is not reversible error unless the defendant can demonstrate prejudice. State v. Miller, 40 Wn. App. 483, 488, 698 P.2d 1123 (1985). Further, where a record contains defects, an appellant must attempt to cure them, by supplementing the record with appropriate affidavits from the trial judge or trial counsel if possible. Id. The failure of appellate counsel to attempt to provide the reviewing court with affidavits from the trial court and trial counsel concerning missing portions of the record, as allowed by RAP 9.3, constitutes waiver of the defendant's right to a complete record. Id.
Mr. Bremer made no attempt to cure defects in the record by supplementing the record with affidavits. In addition, Mr. Bremer fails to demonstrate prejudice caused by the inaudibles in the record. He does not specify which, if any, of the inaudibles in the record caused him prejudice. Moreover, the record is sufficient to permit effective review. Although it does contain numerous inaudible portions, the record is substantially complete. Mr. Bremer's argument is without merit.
J. Jurisdiction, Oath of Office, Default
Mr. Bremer contends the trial court lacked jurisdiction; the trial judge violated her oath of office; and a default has occurred affecting the legitimacy of these proceedings, but he provides no meaningful argument, citation to the record, or citation to authority.
With respect to his jurisdiction argument, Mr. Bremer cites to the portion of his allocution during sentencing where he challenges the information. However, this citation does not relate to his jurisdiction argument.
RAP 10.3 requires the appellant to provide "[t]he argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record." RAP 10.3(a)(6). Further, a pro se litigant must comply with all procedural rules, and failure to do so may preclude review of the asserted claims. See, e.g., State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999). Given Mr. Bremer's failure to comply with RAP 10.3, we decline to consider these issues.
Mr. Bremer points to his self-styled document captioned "Conditional Acceptance for Value" that he filed with the trial court after his appeal to support his default claim. CP at 119-28, 149-67. Mr. Bremer does not identify a cognizable legal issue, or cite to any legal authority that warrants relief. See 5 U.S.C. § 556(d) (section of the federal Administrative Procedures Act); United States v. Prudden, 424 F.2d 1021 (5th Cir. Fla. 1970) (reversing order suppressing statements made and evidence provided to the Internal Revenue Service in a tax evasion prosecution); Louisville Nashville R.R. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 2d 126 (1908) (reversing grant of specific performance of a contract based upon lack of federal court jurisdiction). In sum, Mr. Bremer's contentions are without merit.
K. Evidence Sufficiency
The issue is whether the evidence is sufficient to support Mr. Bremer's conviction for residential burglary.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "[W]hen the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the [S]tate and interpreted most strongly against the defendant." State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Further, "this court will defer to the trier of fact to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences therefrom." State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996)).
The essential elements of residential burglary are (1) entering or remaining unlawfully in (2) a dwelling plus (3) the intent to commit a crime against a person or property therein. RCW 9A.52.025(1).
Turning to the first element, "entering or remaining unlawfully," "[e]ntry into a residence is unlawful if it is made without invitation, license, or privilege." State v. Grimes, 92 Wn. App. 973, 978, 966 P.2d 394 (1998) (citing RCW 9A.52.010(3); State v. Thompson, 71 Wn. App. 634, 637-38, 861 P.2d 492 (1993)). "License to enter a premise may be granted only by the person who resides in or otherwise has authority over the property." Id. Mr. Tupy and Ms. Miller both testified they had not given Mr. Bremer permission to enter the house. The evidence sufficiently shows Mr. Bremer entered the house unlawfully.
Regarding the second element, "dwelling," a "'[d]welling' means any building or structure . . . which is used or ordinarily used by a person for lodging." RCW 9A.04.110(7). Here, the jury was so instructed. Mr. Bremer contends the house was not a dwelling because it was not a livable house, as Ms. Schuster abandoned it, it was boarded up, and there was no access in or out of the house. We disagree.
If a vacant residence is a "dwelling" for purposes of the residential burglary statute it is a fact question for the jury. State v. McDonald, 123 Wn. App. 85, 91, 96 P.3d 468 (2004). The use of the phrase "used or ordinarily used" in the definition of dwelling demonstrates that a building or structure need not be currently used for lodging in order to be considered a dwelling. The evidence showed Ms. Schuster lived in the house before her death. Ms. Miller testified the house had not been used for anything but a home, and she did not plan to change it from that purpose. She further testified it would be possible for someone to live in the house in its current state. In addition, the house had furniture and personal items. A rational jury could find the house was a dwelling.
The third residential burglary element requires the "intent to commit a crime against a person or property therein." RCW 9A.52.025(1). "A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a).
Here, the evidence was sufficient for the jury to find Mr. Bremer intended to commit a crime inside the house. Deputy Tucker heard a bumping sound coming from inside the house. Some of the rooms had been ransacked. The latex gloves, the gold toenail clippers, and Ms. Schuster's church membership card were found on Mr. Bremer.
L. Jury Instructions
Mr. Bremer challenges two instructions for the first time on appeal. "Generally, a criminal defendant may not raise an objection to a jury instruction for the first time on appeal unless it relates to a 'manifest error affecting a constitutional right.'" State v. O'Donnell, 142 Wn. App. 314, 321-22, 174 P.3d 1205 (2007) (citing RAP 2.5(a)(3)). "When a constitutional error is asserted for the first time on appeal, the reviewing court must first determine whether the 'error is truly of constitutional magnitude.'" Id. at 322 (quoting State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)).
"Both the United States and Washington constitutions require that the jury be instructed on all essential elements of the crime charged." Id. (citing State v. Van Tuyl, 132 Wn. App. 750, 758, 133 P.3d 955 (2006)). Thus, the omission of an essential element of a crime from a jury instruction is "'of sufficient constitutional magnitude to warrant review when raised for the first time on appeal.'" Id. (quoting State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005)).
Mr. Bremer first contends the trial court erred in not instructing the jury on the "willful" element. However, "willful" is not an essential element of the crime of residential burglary. See RCW 9A.52.025(1). Because Mr. Bremer's claim does not implicate a constitutional error, we decline review. See O'Donnell, 142 Wn. App. at 322.
Second, Mr. Bremer contends the trial court erred in not instructing the jury on the Bill of Rights. This claim does not involve the essential elements of the crime. And Mr. Bremer cites no legal authority supporting his argument. We are not aware of any such authority. We are not satisfied this claim implicates a constitutional error. See id. Therefore, we decline review.
M. Cruel and Unusual Punishment
Mr. Bremer contends his sentence is cruel and unusual punishment because no real harm was done and he merely committed common law trespass. Mr. Bremer's 84-month sentence was within the standard range for his offense. See RCW 9.94A.515 (classifying residential burglary as seriousness level IV); RCW 9.94A.510 (setting the standard range for a crime with a seriousness level of IV, where the offender score is 9 or more, as 63-84 months).
The Eighth Amendment to the United States Constitution provides a right to be free from cruel and unusual punishment, while article I, section 14 of the Washington Constitution prohibits the imposition of cruel punishment. State v. Morin, 100 Wn. App. 25, 29, 995 P.2d 113 (2000). The Washington Constitution provides greater protection than its federal counterpart. Id. (citing State v. Manussier, 129 Wn.2d 652, 674, 921 P.2d 473 (1996)). It follows that if the state provision is not violated, a sentence violates neither constitution. Id.
"A sentence violates article I, section 14 of the Washington State constitution when it is grossly disproportionate to the crime for which it is imposed." Id. In determining whether a sentence is disproportionate, we consider "(1) the nature of the offense; (2) the legislative purpose behind the statute; (3) the punishment the defendant would have received in other jurisdictions; and (4) the punishment imposed for other offenses in the same jurisdiction." Id.; see also State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980) (setting forth these factors).
Accordingly, our question is whether, considering these factors, a sentence of 84 months is grossly disproportionate to the crime of residential burglary. Mr. Bremer fails to address these factors. Mr. Bremer cites no legal authority for his argument. In the absence of an argument specifically addressing the factors in Fain, we cannot say Mr. Bremer's sentence was unconstitutional. See Fain, 94 Wn.2d at 397.
N. Court-Appointed Attorney Recoupment
Mr. Bremer contends the imposition of an attorney fee recoupment violates his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
"Whenever a person is convicted in superior court, the court may order the payment of a legal financial obligation as part of a sentence." RCW 9.94A.760(1). "Legal financial obligations" are defined, in relevant part, as "a sum of money that is ordered by a superior court . . . for legal financial obligations which may include . . . court-appointed attorneys' fees." RCW 9.94A.030(31).
Here, the trial court ordered Mr. Bremer to pay a court-appointed attorney recoupment fee of $600. This fee was authorized by statute. See RCW 9.94A.760(1); RCW 9.94A.030(31).
Mr. Bremer does not cite any authority, nor are we aware of any, extending Miranda in this context. The right to counsel espoused in Miranda arises from the Fifth Amendment privilege against self-incrimination. Miranda, 384 U.S. at 439. Moreover, "[t]he Fifth Amendment right to counsel exists solely to guard against coercive, and therefore unreliable, confessions obtained during in-custody interrogation." State v. Stewart, 113 Wn.2d 462, 478, 780 P.2d 844 (1989). Mr. Bremer's argument concerns paying a fee for his court-appointed attorney representing him during court proceedings, not during an in-custody interrogation. Therefore, Miranda is inapplicable.
O. Restitution
Mr. Bremer contends the trial court erred in ordering him to pay $300 restitution.
The court's authority to order restitution is statutory. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). "Restitution shall be ordered whenever the offender is convicted of an offense which results in . . . damage to or loss of property." RCW 9.94A.753(5). In addition, "restitution . . . shall be based on easily ascertainable damages for injury to or loss of property." RCW 9.94A.753(3).
"If a defendant disputes the restitution amount, the State must prove the damages by a preponderance of the evidence." Griffith, 164 Wn.2d at 965. However, "[a] sentencing court does not need to hold an evidentiary hearing to determine the proper amount of restitution if a defendant acknowledges or admits to the amount of loss suffered by the victim." State v. Duvall, 86 Wn. App. 871, 875, 940 P.2d 671 (1997). Further, a defendant's consent to a restitution amount can be given by his or her defense attorney. Id.
Here, when defense counsel requested a restitution hearing, the trial court then inquired if an agreement regarding restitution could be reached. The parties agreed to the sum of $300. Defense counsel did not renew his request for a hearing, nor did he object when the trial court imposed this amount. Accordingly, the trial court justifiably relied on Mr. Bremer's agreement to the restitution amount via his defense counsel. See Duvall, 86 Wn. App. at 875.
P. PRP Contentions
Preliminarily, we note we do not discuss contentions raised by Mr. Bremer in his direct appeal. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 389, 972 P.2d 1250 (1999). Thus, we do not again address Mr. Bremer's concerns related to (1) Conditional Acceptance for Value, (2) prosecutor and the defense attorney perjury, (3) the information's print style, and (4) the "original blue ink information."
A personal restraint petitioner has the burden of proving constitutional error that results in actual prejudice or nonconstitutional error that results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). If a petition is based on matters outside the appellate record, a petitioner must show that he has "competent, admissible evidence" to support his arguments. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). And, "a petitioner must show that more likely than not he was prejudiced by the error." State v. Brune, 45 Wn. App. 354, 363, 725 P.2d 454 (1986). "Bare allegations unsupported by citation of authority, references to the record, or persuasive reasoning cannot sustain this burden of proof." Id.
1. Inability to Hear. Mr. Bremer contends he was denied a fair trial because he could not hear the proceedings. Although he mentioned his hearing difficulty during his cross-examination, he did not request any assistance from the trial court. Mr. Bremer does not specify what portions, if any, of the trial he missed. Accordingly, assuming error occurred, Mr. Bremer cannot establish prejudice. See Brune, 45 Wn. App. at 363.
2. Trial Court Jurisdiction. Mr. Bremer contends the trial court did not have personal or subject matter jurisdiction. Washington has criminal jurisdiction over "[a] person who commits in the state any crime, in whole or in part." RCW 9A.04.030(1). Here, the record shows the crime was committed in Washington. Accordingly, Mr. Bremer's contention is without merit.
3. Trial Court Judge's Oath of Office. Mr. Bremer contends the trial court judge violated her oath of office by not offering him assistance with his hearing impairment. Mr. Bremer attached a copy of the trial court judge's oath of office to his PRP. In the oath, the trial court judge swore to uphold the constitution and laws of the United States and the State of Washington. Although Mr. Bremer mentioned his hearing difficulty during his cross-examination, he did not request any assistance from the trial court. Because nothing was requested of the trial court judge, we cannot say she violated her oath of office in not offering Mr. Bremer assistance with his hearing impairment.
4. New Evidence. Mr. Bremer contends he was given permission by Ms. Schuster to sleep in the house anytime he wanted. This argument does not identify any error made by trial court; rather, Mr. Bremer is interjecting new facts into the case.
5. Denial of "Corporate" Existence. Without identifying any error, Mr. Bremer denies that several "corporations" exist, including the United States, the State of Washington, and the Court of Appeals, and contends he does not wish to be regarded as a member of any incorporated society which he has not joined or not knowingly contracted without his consent. Accordingly, his concerns are without merit.
Q. Motions to Modify Clerk Rulings
1. Ruling denying additional sanctions. Mr. Bremer filed his opening brief in his direct appeal on June 24, 2008. The State failed to comply with four due dates set for filing its response brief. Our clerk imposed monetary sanctions. Mr. Bremer moved to modify the clerk's ruling, requesting that the State be prohibited from filing a brief and presenting oral argument. Further, Mr. Bremer asked that $450.00 in sanctions plus compensatory damages be paid directly to him for the State's violation of RAP 18.9(a).
"The brief of respondent in a criminal case should be filed with the appellate court within 60 days after service of the brief of appellant or petitioner." RAP 10.2(c). "The appellate court will ordinarily impose sanctions under rule 18.9 for failure to timely file and serve a brief." RAP 10.2(i). RAP 18.9 provides, in relevant part:
The appellate court on its own initiative or on motion of a party may order a party or counsel, . . . who uses these rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court.
RAP 18.9(a) (emphasis added). "In construing statutes and court rules . . . words like 'may' are permissive and discretionary." State v. Stivason, 134 Wn. App. 648, 656, 142 P.3d 189 (2006), review denied, 160 Wn.2d 1016 (2007) (citing Rudolph v. Empirical Res. Sys., 107 Wn. App. 861, 866, 28 P.3d 813 (2001)).
The State violated RAP 10.2(c) by filing its brief late. Our Clerk exercised her discretion by imposing sanctions. See RAP 18.9(a). Mr. Bremer argues the clerk should have ordered compensatory damages. However, ordering compensatory damages is discretionary with this court. See RAP 18.9(a). Mr. Bremer further argues the sanctions should have been paid directly to him. But RAP 18.9(a) permits the payment of sanctions to the court, not to the parties. See RAP 18.9(a). Mr. Bremer argues the State should be prohibited from filing a brief; however, this is not a sanction authorized for violation of the appellate rules. See RAP 18.9. Because this case was set without oral argument, we need not discuss his claim that the State should be prohibited from presenting oral argument. In sum, the clerk properly exercised her discretion in imposing sanctions on the State for the late filing of its brief.
2. Ruling denying motion to strike State's brief. Mr. Bremer's PRP was filed here on June 2, 2008. The State filed its response on November 13, 2008. On December 3, 2008, Mr. Bremer filed a "Motion for a Procedural Bar on the PRP of Respondent's Brief," asking this court strike the State's response to his PRP as untimely filed. On December 24, 2008, our clerk denied Mr. Bremer's motion, and noted that the State's response to Mr. Bremer's PRP had been filed and accepted.
A response to a PRP must be filed "within 60 days after the petition is served, unless the time is extended by the commissioner or clerk for good cause shown." RAP 16.9. Mr. Bremer cites no authority for striking the State's response. RAP 18.9 authorizes imposing compensatory damages and sanctions for violating the appellate rules, but it does not authorize the court to strike a PRP response. Accordingly, the Clerk did not err in denying Mr. Bremer's motion.
3. Ruling denying request to strike State's direct appeal response brief. On December 3, 2008, Mr. Bremer filed a "Motion for a Procedural Bar on the Direct Appeal of Respondents Brief," requesting this court strike the State's response brief to his direct appeal as untimely filed. On December 26, 2008, our Clerk denied Mr. Bremer's motion, and noted that the brief had been filed and accepted. RAP 18.9 authorizes the imposition of compensatory damages and sanctions for violating the appellate rules, but it does not authorize the court to strike a response brief.
4. Ruling denying request to set aside judgment. On December 3, 2008, Mr. Bremer filed a "Motion for Void Judgment under 60(b)(4) in total CrR 7.8," requesting this court set aside the judgment in his case. On December 24, 2008, the Clerk of this court denied Mr. Bremer's motion. The rules cited by Mr. Bremer, CrR 7.8, and presumably, CR 60(b)(4), permit a party to seek relief from a judgment or order in superior court, not here. Thus, the Clerk did not err in denying Mr. Bremer's motion.
5. Ruling denying PRP default motion. On December 3, 2008, Mr. Bremer filed a "Motion for Default and Judgment on Personal Restraint Petition," requesting sanctions and compensatory damages be paid to him for the State's late filing of its response to his PRP. Mr. Bremer requested this court strike the State's response to his PRP as untimely. On December 24, 2008, our Clerk denied Mr. Bremer's motion. Ordering compensatory damages and sanctions for failure to comply with the appellate rules is discretionary with this court. See RAP 18.9(a); Stivason, 134 Wn. App. at 656 (citing Rudolph, 107 Wn. App. at 866). In addition, as noted above, RAP 18.9 does not authorize the court to strike a PRP response. Accordingly, the Clerk did not err in denying Mr. Bremer's motion.
Direct appeal affirmed. PRP dismissed. Motions denied.
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.
SWEENEY, J. and SCHULTHEIS, C.J. concur.