Opinion
No. 33574-3-II.
October 31, 2006.
Appeal from a judgment of the Superior Court for Clallam County, No. 04-1-00072-5, Kenneth D. Williams, J., entered June 21, 2005.
Counsel for Appellant(s), Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Counsel for Respondent(s), Jill Landes, Clallam County Prosecutors Office, 223 E 4th St Ste 11, Port Angeles, WA, 98362-3015.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Van Deren, JJ.
Jeffrey Frazer appeals the trial court's dismissal of his CrR 7.8 motion. He argues that (1) the trial court erred when it denied his CrR 7.8 motion without appointing counsel; (2) the trial court erred during the sentencing proceeding by considering statements obtained in violation of his right to remain silent and right to counsel; and (3) his trial counsel's representation was ineffective on several grounds. In a pro se Statement of Additional Grounds (SAG), RAP 10.10, he further argues that (1) his trial counsel was ineffective for failing to recognize that count II violated double jeopardy before advising him to accept the plea; and (2) his convictions should be reversed and the charges dismissed because they were not supported by the facts in the police reports or medical records. We affirm.
FACTS
In February 2004, the State charged Frazer with two counts of first degree child molestation. The State alleged that he had twice molested his then seven-year-old daughter on or about January 31, 2004. The State further alleged the first incident occurred in the "West Boat Marina bathroom, Port Angeles, Washington," and the second incident occurred at "107 E. 8th Street, Port Angeles, Washington." Clerk's Papers (CP) at 104.
Frazer pleaded guilty to the two counts of first degree child molestation. The State agreed not to oppose a Special Sex Offender Sentencing Alternative (SSOSA) sentence, RCW 9.94A.670, if he was eligible for such a sentence. To determine his eligibility, the trial court ordered a "pre-sentence report and investigation" (PSI) and a SSOSA evaluation. Report of Proceedings (RP) (Apr. 19, 2004) at 10. Community Corrections Officer (CCO) Gerald L. Brown conducted the PSI and, after an initial delay caused by paperwork problems, Brooke Carnahan, M.S., conducted the SSOSA evaluation. Ultimately, Carnahan concluded that Frazer was not a good candidate for a SSOSA.
At the sentencing hearing, the State informed the trial court that because Carnahan did not recommend a SSOSA, it was changing its sentencing recommendation to a midrange minimum sentence of 84 months and maximum sentence of life for each count. Frazer's counsel briefly asserted that the PSI contained "some fairly gross inaccuracies," RP (Sept. 24, 2004) at 2, but because the State was not requesting an exceptional sentence, counsel did not elaborate beyond suggesting there may be some real facts doctrine issues related to a dismissed charge discussed in the PSI and SSOSA evaluation. Although counsel noted that Frazer's own experience as a victim of child sexual abuse explained some of the factors that weighed against his receiving a SSOSA, he ultimately agreed with the State's recommendation.
The trial court sentenced Frazer under RCW 9.94A.712. That statute required the trial court to impose a maximum term consisting of the statutory maximum for the offense and a minimum term, which, unless the court imposed an exceptional sentence, had to fall within the standard range for the offense based on Frazer's offender score. RCW 9.94A.712(3). Given Frazer's offender score of 4, the standard range here was 72 to 96 months.
Specifically, defense counsel stated: "It is our understanding that [t]he State is not going to be asking for an exceptional sentence. That being the case I think argument about real facts is probably moot. Probably, so I won't belabor those." RP (Sept. 9, 2004) at 2. He then elaborated, stating: "There's a discussion about a charge that was dismissed. I think that's inappropriate. There are a few other things like that. But, again without — I think outside the context of exceptional it really doesn't matter." RP (Sept. 24, 2004) at 2.
The trial court disagreed with the recommendation and imposed a 96-month minimum sentence. The judgment and sentence was filed on September 24, 2004.
The trial court stated:
Well, I guess I'm going to take a little bit different view. I don't think this is a midrange offense. From what I've read of just the offense itself, I think the top of the range is where I'm going to go, 96 months, it's eight years and I think that's an appropriate sentence in this case, especially in view of Ms. Carnahan's report as well. This was a terrible, terrible thing to happen to this little girl. It should never have happened and we can make excuses, we can have some empathy for Mr. Frazer if he's had some difficulty in his life as well, but this little girl was — I mean, I've read a lot of these in my time here on the bench, but you know, this is the one that has really gripped me a little bit here by how it happened and what happened and I don't know if she's ever going to recover, which is unfortunate, but hopefully she will. So, I'm going to go 96 months and the other conditions of supervision as [indicated in the PSI].
RP (Sept. 24, 2004) at 10-11.
Frazer did not file a timely notice of appeal challenging his conviction or sentence. Instead, on April 27, 2005, he filed several related documents that the trial court characterized as a CrR 7.8 motion.
Prior to this, on April 6, 2005, Frazer filed a motion entitled, Motion to Reconsider Treatment Provider and C.C.O. Decision on My Case. CP at 41. It does not appear that the trial court ruled on this motion, but Frazer reiterated many of the same claims in his April 27, 2005 CrR 7.8 motion.
These documents consisted of the following:
(1) "MOTION TO VACATE AND MODIFY JUDGMENT AND SENTENCE PURSUANT TO CrR 7.8(c)," asserting:
(a) Carnahan's conclusion was speculative,
(b) the State breached the plea agreement by withdrawing its request for a 96-month determinate sentence,
(c) count II was improper and violated the prohibition against double jeopardy or was same criminal conduct;
CP at 33-36;
(2) AFFIDAVIT IN SUPPORT, claiming:
(a) trial counsel was ineffective for failing to adequately contact him or investigate the charges, failing to participate in the PSI or SSOSA evaluation process, failing to challenge the SSOSA evaluation or PSI, and delaying the SSOSA evaluation;
(b) the evidence was insufficient for Carnahan to conclude he was not eligible for a SSOSA and her conclusion was merely speculative;
(c) Brown should have been recused from conducting the PSI because of prior contacts with Frazer, Brown was biased or prejudiced, and Brown lied on the PSI and lied to Carnahan; and
(d) count II was improper and violated the prohibition against double jeopardy or was same criminal conduct;
CP at 29-32;
(3) PETITION FOR LEAVE TO WITHDRAW PLEA OF GUILTY TO COUNT TWO OF MY PLEA AGREEMENT AND HAVE COUNT TWO DISMISSED WITH PREJUDICE, asserting that count II was wrongfully charged;
CP at 39-40;
(4) MOTION FOR A CHANGE OF VENUE TO HAVE THE FOLLOWING JUDGE'S [sic] PROSECUTORS, ATTORNEY, TREATMENT PROVIDER, CCO OFICER [sic] TO BE DISMISSED BECAUSE THEY ARE PREJUDICE [sic] TO MY CASE;
CP at 37.
The trial court denied the CrR 7.8 motion without a hearing and without appointing counsel. Frazer appeals.
Six days after denying the motion, trial court attempted to transfer it to this court under CrR 7.8(c)(2) for consideration as a personal restraint petition. Because the trial court had already denied the motion, we rejected the transfer. See In re Frazer, No. 33557-3-II (order rejecting CrR 7.8(c)(2) transfer, filed Oct. 13, 2005).
ANALYSIS Request for Counsel on CrR 7.8 Motion
Frazer argues that the trial court erred when it denied his CrR 7.8 motion without appointing counsel. Specifically, he asserts that he was entitled to appointed counsel on the motion because he properly alleged and supported his ineffective assistance of counsel claim and his challenges to the PSI and SSOSA evaluation. We disagree.
Although it is easy to overlook, Frazer arguably requested that counsel be appointed in this matter in his motion for change of venue. For the sake of the following discussion, we assume that the trial court was aware of this request and that it impliedly denied this request when it denied Frazer's CrR 7.8 motion.
CrR 7.8(b) allows a court to "relieve a party from a final judgment, order, or proceeding" on various grounds. A defendant bringing a CrR 7.8 motion must, however, support it "by affidavits setting forth a concise statement of the facts or errors upon which the motion is based." CrR 7.8(c)(1). A defendant is entitled to appointed counsel on a CrR 7.8 motion if the trial court initially determines that the motion establishes grounds for relief. State v. Robinson, 153 Wn.2d 689, 699, 107 P.3d 90 (2005) (citing CrR 3.1(b)(2)). We review a trial court's decision on a CrR 7.8 motion for abuse of discretion. State v. Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 (2005).
CrR 3.1(b)(2) provides in part, "A lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review."
"An affidavit is a 'voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.'" Forest, 125 Wn. App. at 706 (quoting Black's Law Dictionary 62 (8th ed. 2004)). "In the alternative, RCW 9A.72.085 contains a substitute for an affidavit: a party may submit an unsworn written statement that '[r]ecites that it is certified or declared by the person to be true under penalty of perjury.'" Forest, 125 Wn. App. at 706 (emphasis added) (quoting RCW 9A.72.085(1)); see also GR 13.
Frazer's affidavit in support of his CrR 7.8 motion was not sworn before an officer authorized to administer oaths, such as a notary, and merely states "I, Jeff Frazer do further swar [sic] that the inclosed [sic] is the truth, avert, and correct to the personal best of my knowledge," completely omitting the "under penalty of perjury" language required by RCW 9A.72.085. CP at 32. And although he filed two related documents that were notarized, those documents allege no facts relevant to his ineffective assistance of counsel, PSI, or SSOSA evaluation claims. Because he did not support the ineffective assistance of counsel, PSI, and SSOSA evaluation claims with a proper affidavit, the trial court did not err when it denied these claims without appointing counsel.
"Motion for a Change of Venue to Have the Following Judge's [sic] Prosecutors, Attorney, Treatment Provider, CCO Oficer [sic] to be Dismissed because hey are Prejudice [sic] to My Case"; "Petition for Leave to Withdraw Plea of Guilty to Count Two of My Plea Agreement and have Count Two Dismissed with Prejudice." CP at 37, 39.
Double Jeopardy
Frazer further argues that he received ineffective assistance of counsel because his trial counsel did not recognize that the information alleged he was "at two different places on the same day, at the same time, during the same year." SAG at 1. Frazer contends that these allegations show that count II was factually impossible; it was double jeopardy to charge him with both counts; count II was therefore defective; and, apparently, that his counsel was ineffective for not recognizing this and advising him to plead to count II. But the charging information merely states that the two offenses at two different locations on the same day. Given both locations are in the same city and the information does not state the two incidents occurred at the same time, this does not establish factual impossibility. Accordingly, even assuming Frazer properly raised and supported this issue in his CrR 7.8 motion, it has no merit.
Issues Not Properly Before Us
Finally, Frazer argues that (1) during sentencing, the trial court violated his constitutional right to remain silent and his right to counsel by considering statements he made during the PSI investigation and the SSOSA evaluation process; (2) he received ineffective assistance of counsel because his trial counsel failed to obtain a pre-plea SSOSA evaluation prior to advising him to accept the State's plea offer; and (3) both convictions should be reversed and the charges dismissed because the facts alleged in the police reports do not support the charges and the "Medical Reports presumably in the custody of the prosecutor do not show sufficient facts that a crime even took place." SAG at 2. Because Frazer did not raise these issues in his CrR 7.8 motion, he did not file a timely direct appeal challenging his conviction and sentence, and he has not moved to extend time to file such an appeal, these issues are not properly before us and we do not address them.
To the extent his ineffective assistance claim overlaps his CrR 7.8 motion arguments, we addressed that issue above.
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.
HUNT, J. and DEREN, J., concur.