State v. Bale, 48042-5-II

STATE OF WASHINGTON, Respondent, v. JOHN MICHAEL BALE, Appellant.

In The Matter of the Personal Restraint Petition of JOHN MICHAEL BALE, Petitioner.

Nos. 48042-5-II, 47569-3-II

Court of Appeals of Washington, Division 2

February 22, 2017

UNPUBLISHED OPINION

WORSWICK, P.J.

In this consolidated case comprising John M. Bale's direct appeal and personal restraint petition (PRP), Bale appeals his sentence following a remand for resentencing and collaterally attacks his convictions for first degree assault. In his direct appeal, we hold that (1) the sentencing court did not err in imposing a standard range sentence and (2) Bale cannot show that defense counsel was ineffective. Additionally, none of the issues Bale raises in his statement of additional grounds (SAG) are meritorious.

Regarding Bale's PRP, we decline to review his arguments that his due process rights were violated when he could not use the Kitsap County Jail's law library, that there was insufficient evidence to support his convictions for first degree assault, and that the trial court erred in denying his motion for substitute counsel because these issues were resolved in his prior appeal. We decline to consider Bale's argument that we erred in failing to conduct a harmless error analysis in reversing his conviction for possession of a stolen firearm because Bale did not file a motion for reconsideration of that issue. We hold that (1) Bale's due process rights were not violated when the State filed an amended information, (2) Bale fails to show the prosecutor committed misconduct or fails to show that he was prejudiced by the prosecutor's conduct, (3) Bale fails to show that he received ineffective assistance of counsel, (4) Bale fails to show that witnesses committed perjury, (5) Bale fails to show that witnesses offered impermissible opinion testimony, (6) Bale's right to speedy arraignment was not violated, and (7) Bale's right to a fair appeal was not violated. Consequently, we affirm Bale's sentence, deny his PRP, and waive appellate costs.^[1]

FACTS

A jury found Bale guilty of two counts of first degree assault, each with a firearm sentencing enhancement, and one count of possession of a stolen firearm arising from Bale's altercation with two police officers. The trial court imposed a standard range sentence of 531 months of imprisonment. Bale appealed, and we reversed his possession of a stolen firearm conviction for insufficient evidence and remanded for resentencing. State v. Bale, No. 44172-1 (Wash.Ct.App. Oct. 14, 2014) (unpublished) http://www.courts.was.gov/opinions, at 15. After remand, but before the resentencing hearing, Bale filed his PRP.

At resentencing, the State told the sentencing court that "[b]ecause these are serious violent offenses under 9.94A, I believe it's 589(1)(b), they run consecutive." Verbatim Report of Proceedings (VRP) (Aug 21, 2015) at 4. Bale objected on his own behalf, arguing that the sentencing court had the discretion to impose concurrent sentences. Alternatively, Bale's counsel argued for a low-end standard sentence. Bale's counsel agreed that Bale's first degree assault convictions were convictions for serious violent offenses and that his sentences should run consecutively as provided in RCW 9.94A.589.

Bale spoke on his own behalf and requested that he receive an exceptional sentence downward because he "was not guilty of this .... [M]ere possession of a firearm doesn't show intent" and because "nothing happened nor was [his] intent to even hurt [the officers]." VRP (Aug. 21, 2015) at 26, 28. The sentencing court denied his request, stating:

There aren't any statutory mitigating factors, and for me to do an exceptional [sentence] down would require me to make certain findings that statutory mitigating factors exist. It's not simply within the Court's discretion. There has to be reasons that are set out in the statute, and this isn't one of them.

VRP (Aug. 21, 2015) at 28-29. The court ordered that Bale's sentences for the two serious violent offenses run consecutively for a total of 490 months of imprisonment.^[2] Bale appealed, and we consolidated his direct appeal with his PRP.

ANALYSIS

I. Sentencing

Bale argues that the sentencing court erred in concluding that it did not have the authority to impose an exceptional sentence downward on his convictions for two serious violent offenses. We disagree.

We review a sentencing court's decision to deny an exceptional sentence for abuse of discretion. State v McGill, 112 Wn.App. 95, 100, 47 P.3d 173 (2002). A court abuses its discretion when it denies an exceptional sentence based on an incorrect belief that it is not authorized to grant the sentence. State v. O 'Dell, 183 Wn.2d 680, 696-97, 358 P.3d 359 (2015).

Generally, a sentencing court must impose a sentence within the standard range set by the Sentencing Reform Act of 1981 (SRA). State v. Graham, 181 Wn.2d 878, 882, 337 P.3d 319 (2014). The SRA sets standard-range sentences for multiple serious violent offenses in RCW 9.94A.589(1)(b). Under the SRA's multiple offense policy, the standard range for two or more serious violent offenses is consecutive sentences. RCW 9.94A.589(1)(b). However, RCW 9.94A.535(1) provides that a sentencing court may depart from the standard sentence range for substantial and compelling reasons, and it may "impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence." The court may order that multiple serious violent offenses run concurrently as an exceptional sentence downward only if it finds mitigating circumstances that justify its departure from the standard range. RCW 9.94A.535(1); In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 329-31, 166 P.3d 677 (2007).

At resentencing, the State told the sentencing court that Bale's sentences would run consecutively under RCW 9.94A.589(1)(b). Bale argued that the sentencing court had discretion to impose an exceptional sentence downward and order that his sentences run concurrently. Bale also requested that he receive an exceptional sentence downward because he "was not guilty of this .... [M]ere possession of a firearm doesn't show intent" and because "nothing happened nor was [his] intent to even hurt [the officers]." VRP (Aug. 21, 2015) at 26, 28.

The sentencing court denied Bale's request, stating: "There aren't any statutory mitigating factors, and for me to do an exceptional down would require me to make certain findings that statutory mitigating factors exist. It's not simply within the Court's discretion." VRP (Aug. 21, 2015) at 28. The court then ordered that Bale's sentences for the two serious violent offenses run consecutively for a total of 490 months in confinement.

Bale contends the sentencing court denied his request for an exceptional sentence downward because of its mistaken belief that it did not have the statutory authority to grant his request. However, the record does not support Bale's contention. Here, the sentencing court correctly stated that it did not have discretion to sentence Bale to an exceptional sentence without mitigating factors and that no such factors supported departure from the standard sentence range. Because the court determined that an exceptional sentence was not justified by any mitigating circumstances, it was not authorized by the SRA to impose an exceptional sentence downward and sentence Bale to concurrent sentences. Accordingly, the sentencing court's denial of Bale's request for an exceptional sentence downward was not based on a mistaken belief that it lacked statutory authority to grant his request. Therefore, the court did not abuse its discretion in imposing a standard range sentence.

II. Ineffective Assistance of Counsel

Bale next argues that his counsel was ineffective by failing to cite applicable case law regarding the sentencing court's authority to consider and impose an exceptional sentence downward. We disagree.

The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to effective assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126 Wn.App. 297, 319, 106 P.3d 782 (2005).

To prevail on an ineffective assistance of counsel claim, the defendant must show that defense counsel's representation was deficient and that the deficient representation prejudiced him. Grier, 171 Wn.2d at 32-33. Failure to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Counsel's performance is deficient if it falls below an objective standard of reasonableness, and there is '"a strong presumption that counsel's performance was reasonable.'" Grier, 171 Wn.2d at 33 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Failure to cite controlling case law can constitute deficient performance. State v. Hernandez-Hernandez, 104 Wn.App. 263, 266, 15 P.3d 719 (2001). To establish prejudice, a defendant must show a reasonable probability that but for the deficient performance, the result of the proceeding would have been different. Grier, 171 Wn.2d at 34.

At resentencing, Bale's counsel agreed that Bale's sentences for two serious violent offenses should run consecutively under RCW 9.94A.589. Defense counsel argued that Bale should receive the low end of the statutory range for his offenses because "[o]bviously, this is a lot of time for his conduct." VRP (Aug. 21, 2015) at 15.

Bale later spoke on his own behalf and requested that the sentencing court impose an exceptional...