Opinion
No. 27027-1-III.
September 10, 2009.
Appeal from the Superior Court, Walla Walla County, No. 04-1-00199-1, Robert L. Zagelow, J., entered March 25, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
Unpublished Opinion
The appellant's assignments of error here turn on the adequacy of the charging information and specifically the date range during which the crime of bail jumping was supposed to have taken place (May 24, 2004, and December 3, 2007). We conclude that the information adequately informed the appellant of the nature of the charges and permitted him to assert a statute of limitations defense and, ultimately, knowingly and intelligently plead guilty. We, therefore, affirm the conviction.
FACTS
The State charged Steve Parkins with delivery of methamphetamine in 2004. He was scheduled to be arraigned on May 24, 2004. He failed to appear at the arraignment hearing, and the trial court issued a warrant for his arrest. Mr. Parkins was finally arraigned on December 3, 2007. The State amended the charging information on January 14, 2008, adding a count of bail jumping:
[T]he said STEVE K. PARKINS, in the County of Walla Walla, State of Washington, between the 24th day of May, 2004 and the 3rd day of December, 2007, having been released by court order with the requirements of keeping in regular contact with his attorney, travel restricted to Walla Walla County, and promising to appear before the court upon notice to his attorney, did knowingly and unlawfully fail to appear as required.
Clerk's Papers (CP) at 5.
Mr. Parkins pleaded guilty to bail jumping. He stated in the plea of guilty that:
On or between the 24th day of May, 2004, and December 3, 2007, I knowingly failed to appear before the Walla Walla County Superior Court. I was charged with possession of a controlled substance and had been released by court order with the requirement of a subsequent personal appearance before that court, and this occurred in the State of Washington.
CP at 13. He read this statement into the record at his plea hearing. The court accepted the plea and entered judgment.
DISCUSSION
Sufficiency of the Charging Document
Mr. Parkins first argues that the charging information failed to inform him of the bail jumping charge because it alleged only that he knowingly failed to appear as required during a non-specific time frame of more than three years; it did not allege a specific court date.
A party may challenge the constitutional sufficiency of a charging document for the first time on appeal. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). We review such a challenge by applying the following two-prong test:
(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?
Id. at 105-06.
The first prong requires us to look to the charging document for some language that notifies the defendant of the allegedly missing elements. Id. at 106. "Under this rule of liberal construction, even if there is an apparently missing element, it may be able to be fairly implied from language within the charging document." Id. at 104.
Bail jumping requires proof that the defendant (1) was charged with a particular crime; (2) knew of the requirement of a subsequent personal appearance; and (3) failed to appear as required. RCW 9A.76.170(1); State v. Downing, 122 Wn. App. 185, 192, 93 P.3d 900 (2004).
Mr. Parkins ultimately contends that the charging document here does not allege the second element — that he knew he was required to appear for a court date. He says the document does not allege that he was ever actually required to appear in court on a specific date.
The charging information alleges in relevant part that Mr. Parkins, "between the 24th day of May, 2004 and the 3rd day of December, 2007, . . . did knowingly and unlawfully fail to appear as required." CP at 5. The "knowingly failed to appear as required" phrase of this allegation not only suggests the existence of a court date that required Mr. Parkins' presence but also asserts that Mr. Parkins knew of the requirement. The specific date range alleged (May 24, 2004 — December 3, 2007) fairly infers that the court date requiring Mr. Parkins' presence fell on at least one of the dates in that range. This charging document, then, adequately notified Mr. Parkins of bail jumping's second element and the facts underlying that element. See Kjorsvik, 117 Wn.2d at 110.
Mr. Parkins also argues that the date range alleged in the information made it impossible for him to assert a statute of limitations defense. We disagree. Bail jumping "may [not] be prosecuted more than three years after its commission." RCW 9A.04.080(1)(h). And, on its face, the charging document is clear enough to have apprised Mr. Parkins of a potential statute of limitations defense. He admits on appeal that the only date on which he was required to appear was May 24, 2004. Appellant's Br. at 7. That date was the first date of the date range alleged in the charging document. And the State undisputedly filed the bail jumping charge on January 14, 2008, more than three years after May 24, 2004. These two dates alone, then, should have notified Mr. Parkins that the statute of limitations might bar prosecution of the charge.
Regardless, a statute of limitations defense appears, on this record, to be futile. A defendant's absence from the state tolls the statute of limitations. State v. Ansell, 36 Wn. App. 492, 494, 496, 675 P.2d 614 (1984); RCW 9A.04.080(2). Mr. Parkins had apparently been living in Arizona from at least May 24, 2004, until November 2007, when he returned to Washington. The statute of limitations on the bail jumping charge, then, was tolled until November 2007. Ansell, 36 Wn. App. at 494. And the State charged Mr. Parkins with bail jumping less than two months after he returned to Washington, which is well within the three-year statute of limitations. RCW 9A.04.080(1)(h).
The charging document here does not, as Mr. Parkins contends, obscure the fact that the charge was time barred. In fact, the opposite is true. The allegation of time in a charging document must show on its face that the statute of limitations does not bar the State from prosecuting the crime charged. State v. Osborne, 39 Wash. 548, 551, 81 P. 1096 (1905). Here, the charging document's date range implies that the statute of limitations was tolled and, therefore, properly reflects a timely charge. Knowing and Intelligent Plea
Mr. Parkins also argues that the wording of the plea agreement here renders his guilty plea neither knowing nor intelligent.
We review de novo the circumstances under which a guilty plea was made. Young v. Konz, 91 Wn.2d 532, 536, 588 P.2d 1360 (1979).
Mr. Parkins claims the charging document misled him into believing he could commit bail jumping without knowing he was supposed to appear and without being scheduled to appear between May 24, 2004 and December 3, 2007.
Due process requires that a guilty plea be knowing, intelligent, and voluntary. State v. Osborne, 102 Wn.2d 87, 92-93, 684 P.2d 683 (1984). A guilty plea cannot be voluntary unless the defendant understands the nature of the charge. In re Pers. Restraint of Keene, 95 Wn.2d 203, 207, 622 P.2d 360 (1980). A defendant is sufficiently apprised of the nature of the charge to which he is pleading guilty when he knows the acts and requisite state of mind necessary to constitute the crime charged. Id.
We have already concluded that the charging document notified Mr. Parkins of the essential elements of bail jumping. And his statement on plea of guilty confirms his understanding of the offense:
On . . . the 24th day of May, 2004 . . . I knowingly failed to appear before the Walla Walla County Superior Court. I was charged with possession of a controlled substance and had been released by court order with the requirement of a subsequent personal appearance before that court.
Mr. Parkins was charged with delivery of methamphetamine, but a plea bargain reduced the charged to possession of methamphetamine. See Report of Proceedings (RP) (Mar. 24-25, 2008) at 14.
CP at 13. Mr. Parkins was, then, aware that the requisite state of mind was "knowingly" and that he was required to appear at a scheduled court hearing on May 24, 2004. His plea was valid. Keene, 85 Wn.2d at 209.
Statement of Additional Grounds
Mr. Parkins raises two additional grounds for review.
Double Jeopardy
He first contends that the court punished him twice for bail jumping. He asserts that he was sentenced to 51 months in this case for bail jumping. He then says that a case prosecuted under a different cause number included four additional months of confinement for his failure to appear at the May 24 arraignment hearing.
The judgment and sentence entered in the other case, however, is not part of this appeal or of this record. Our review is limited to matters included in the record. State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10 (1991). We cannot, then, review Mr. Parkins' double jeopardy claim. Ineffective Assistance of Counsel
Mr. Parkins also asserts that his defense attorney provided ineffective assistance of counsel by failing to appear at two court dates and by not saying anything at his sentencing hearing. We review ineffective assistance of counsel claims de novo. State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006).
We strongly presume that Mr. Parkins received effective representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Only a clear showing of incompetence rebuts this presumption. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). To prevail on this claim, then, Mr. Parkins must show both deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). "[F]ailure to establish either element of the test defeats the . . . claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
First, the record does not show that Mr. Parkins' attorney missed a court date. Again, we will not review "[m]atters referred to in the brief but not included in the record." State v. Stockton, 97 Wn.2d 528, 530, 647 P.2d 21 (1982).
Second, the record here suggests strategic conduct by Mr. Parkins' attorney at the plea hearing. Counsel spoke only once at the hearing. He told the court: "[A]s part of our plea bargain, [the prosecutor] and I agreed that I would not have anything further at this hearing." RP (Mar. 24-25, 2008) at 11. Strategic or tactical conduct cannot serve as the basis for a claim of ineffective assistance of counsel. In re Pers. Restraint of Richardson, 100 Wn.2d 669, 682, 675 P.2d 209 (1983). Defense counsel's statement to the court demonstrates that his decision not to speak was a strategic decision related to the plea bargain. Mr. Parkins' ineffective assistance claim, therefore, fails.
We affirm the conviction.
A majority of the panel has determined that 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.
KULIK, A.C.J. and BROWN, J., concur.