In re Personal Restraint Petition of Randall

In re the Personal Restraint Petition of: JEFFERY LAMONT RANDALL, Petitioner.

No. 45994-9-II

Court of Appeals of Washington, Division 2

August 25, 2015

UNPUBLISHED OPINION

MELNICK, J.

In this personal restraint petition (PRP), Jeffrey Randall petitions us to vacate his convictions for two counts of unlawful delivery of a controlled substance to a minor with sexual motivation and two counts of involving a minor in a drug transaction to deliver a control substance. Randall argues his restraint is unlawful because (1) the trial court violated his right to be present, (2) his convictions rest on insufficient evidence, (3) the State committed prosecutorial misconduct, (4) the State violated his right to be free from double jeopardy, (5) the appellate record is incomplete, (6) the State engaged in discovery violations, (7) the trial court violated his right to a unanimous verdict, (8) his time for trial rights were violated, and (9) he received ineffective assistance of trial and appellate counsel.

We deny Randall's petition because (1) Randall fails to establish that the trial court violated his right to be present, (2) his convictions are supported by sufficient evidence, (3) the prosecutorial misconduct claims were already addressed on direct appeal, (4) Randall fails to establish that he was punished multiple times for the same crime, (5) Randall fails to show that an inadequate appellate record caused actual and substantial prejudice, (6) Randall fails to meet his burden to prove that discovery violations occurred, (7) the unanimous verdict claims were already addressed on direct appeal, (8) Randall fails to establish his trial was set outside CrR 3.3 time limits, the trial court abused its discretion when it granted continuances, or that his trial delay was presumptively prejudicial, and (9) Randall fails to show that his trial counsel's and appellate counsel's performance was deficient. '

FACTS^[1]

In spring 2008, HT and VN, 15 year-old females, attended Tacoma high schools. Randall, a 40-year-old male, had a reputation among the students for providing alcohol, marijuana, and transportation. HT and VN met Randall through friends and started regularly buying marijuana from him.

From approximately March to early June 2008, Randall picked up HT and VN every day after school. They drove around Pierce County selling marijuana out of his car. Before Randall permitted HT and VN to sell marijuana, he put them through loyalty tests. These tests included . talking about themselves while naked, kissing him, and taking their shirts off for him. Eventually, he required each girl to have sexual intercourse with him. Randall knew that HT and VN were only 15 years old at the time and that they did not want to engage in intercourse with him. After they passed the loyalty tests HT and VN participated in Randall's sales by weighing marijuana, collecting money, and selling marijuana at school.

Randall regularly gave HT and VN marijuana and alcohol for their own use and he sometimes gave them a portion of the sale proceeds as compensation.

In late April or early May 2008, another high school student reported to police rumors that Randall had raped HT and VN. In June 2008, a Tacoma police officer arrested Randall on an unrelated warrant. In a search incident to arrest, law enforcement located marijuana in the interior compartment of Randall's car. Randall was charged and pleaded guilty to possession of marijuana in Tacoma Municipal Court.

In jail, a detective interviewed Randall about the rape and drug allegations relating to HT and VN. The State, by a third amended information, charged Randall with four counts of third degree child rape, two counts of involving a minor in a drug transaction, and two counts of unlawful delivery with sexual motivation. The third amended information did not include specific dates for the offenses, stating that the offenses had occurred between March 1 and June 4, 2008. Randall acknowledged receipt of the amended information waived formal reading, waived any objection to the amendment and pleaded not guilty.

Prior to trial, the trial court granted 19 continuances to accommodate appointed counsel's withdrawal and appointment of new defense counsel, defense counsel's requests for additional time, defense counsel's unavailability due to scheduling conflicts, the prosecutor's unavailability due to scheduling conflicts the trial court's determination that it would be unable to complete trial efficiently because of scheduling conflicts, and Randall's filing of an affidavit of prejudice against the assigned trial court judge.

At trial, HT and VN testified consistently with the facts outlined above and admitted that they had lied during the initial police interviews, that they had lied to their parents, and that they could not remember specific dates or times of the events occurring nearly three years earlier.

Randall proposed a Petrich ^[2] unanimity jury instruction related to each charge. The trial court refused, reasoning that the evidence established a continuing course of conduct involving an ongoing enterprise with a single objective.

The jury acquitted Randall of the rape charges. The jury found Randall guilty of two counts of involving a minor in a transaction to deliver a. controlled substance and two counts of unlawful delivery of a controlled substance to a minor. The jury also found that Randall committed the unlawful deliveries with sexual motivation.

Randall filed a direct appeal and, in relevant part, Randall argued that the trial court violated his right to a unanimous verdict because the trial court did not give a Petrich instruction and failure to do so was not harmless, and that insufficient evidence supported the jury's finding of sexual motivation. Randall raised numerous other arguments in his statement of additional grounds (SAG), including prosecutorial misconduct, discovery violations, time for trial rights violations, and an incomplete appellate record prejudiced him.

We held, in relevant part, that the failure to give a Petrich instruction constituted harmless error, sufficient evidence supported the jury's sexual motivation findings, and Randall's remaining SAG claims were not preserved for appeal, were too vague, or were reliant on matters outside the record; therefore this court did not further consider his arguments. This court affirmed the convictions.

ANALYSIS

A PRP will be granted only if the petitioner is under an unlawful restraint. RAP 16.4; In re Pers. Restraint of Yates, 177 Wn.2d 1, 16, 296 P.3d 872 (2013).. A PRP is not a substitute for a direct appeal. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 824, 650 P.2d 1103 (1982). Accordingly, there are limits on the use of a PRP to collaterally attack a conviction. Hagler, 97 Wn.2d at 824.

When considering constitutional arguments raised in a PRP, we must decide whether the petitioner can show that a constitutional error caused actual and substantial prejudice. Hagler, 97 Wn.2d at 826. If the petitioner fails to make a prima facie showing of actual and substantial prejudice caused by constitutional error, we must deny the PRP. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88 660 P.2d 263 (1983). If the petitioner makes a prima facie showing of actual and substantial prejudice from a constitutional error but the record is not sufficient to determine the merits, we should remand for a reference hearing. Hews, 99 Wn.2d at 88. If, however, we are convinced the petitioner has proven actual and substantial prejudice from a constitutional error, we will grant the petition. Hews, 99 Wn.2d at 88.

When considering nonconstitutional arguments, we must decide whether the petitioner has established that the claimed error is "a fundamental defect which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990).

Whether it raises constitutional or nonconstitutional issues, a PRP must state with particularity the factual allegations underlying the petitioner's claim of unlawful restraint. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Bald assertions and conclusory allegations are not sufficient. Rice, 118 Wn.2d at 886.

Further, the factual allegations must have evidentiary support. Rice, 118 Wn.2d at 886. If the trial court record does not support the factual allegations, then the petitioner must show through affidavits or other forms of corroboration that competent and admissible evidence will establish the factual allegations. Rice, 118 Wn.2d at 886. The petitioner may not rely on mere speculation, conjecture, or inadmissible hearsay. Rice, 118 Wn.2d at 886.

Lastly a PRP cannot renew an issue that was raised and rejected on direct appeal, "unless the interests of justice require relitigation of that issue." In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004). An issue was raised and rejected on direct appeal if the direct appeal determined the issue's merits adversely to the petitioner. In re Davis, 152 Wn.2d at 671 n.14. As the Washington Supreme Court has explained,

This burden can be met by showing an intervening change in the law ""or some other justification for having failed to raise a crucial point or argument in the prior application."" In re Personal Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999) (quoting [In re Pers. Restraint of] Taylor, 105 Wn.2d [683], 688[, 717 P.2d 755 (1986)] (quoting Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963))). A defendant may not recast the same issue as an ineffective assistance claim; simply recasting an argument in that manner does not create a new ground for relief or constitute good cause for reconsidering the

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