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June 2019 Advance sheets


Prepared by Mark W. Muenster

Cases decided June 1, 2019 through June 30, 2019


State v. Haggard, No.77426-3-1 decided June 3, 2019

Prosecution for arson and burglary. Main issue on appeal is the offender score. Haggard had a misdemeanor case dismissed after a successful period of probation. He argued that this case would not prevent the washout of several priors. The trial court ruled that the dismissed misdemeanor case did prevent washout, and was not equivalent to a vacation of the conviction.

The panel points out the difference between a dismissed conviction under the probation statutes, and a vacated conviction. When the latter occurs, the case does not count as criminal history and would not interrupt a washout period. A dismissed conviction does not have this effect.

Courts that were previously confused about the difference between these two concepts now have a case to show the way.

State v Schilling, No. 35719-8-III, decided June 4, 2019

Prosecution for attempting to elude a pursuing police officer. Part of the chase included a dog track, and the dog handler gave testimony about the “fear scent” given off by the guilty who are being tracked.

The only issue in the published part of the decision is a vagueness challenge to the recklessness definition of the statute, which has been incorporated into the eluding statute from the vehicular homicide and vehicular assault statutes, and differs from the definition of reckless driving, the misdemeanor.

The court rejects the vagueness challenge, holding that the US Supreme Court decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which interpreted the residual clause in the Armed Career Criminal Act, did not change the standard for vagueness challenges in non-First Amendment cases.

In the unpublished part of the decision, the court rejects the argument that the “fear scent” testimony was prejudicial, because no objection was made, and the admission of this evidence did not constitute manifest constitutional error under RAP 2.5 (a).

State v. Ingram, decided June 4, No. 50577-1-II

This case has significance for its review of the conditions of release court rule, CrR 3.2. Although the case was moot on this issue, the panel discusses the rule and concluded that the court erred, not necessarily by setting bail, for which where was adequate justification under the rule, but for not considering less restrictive alternative conditions to bail before requiring bail as a condition of release. The court also has to consider the defendant’s financial condition before requiring a bail bond or cash bail.

The court does not have to enter written findings, but obviously the record must indicate that these things were considered.

The second issue concerns whether the validity of a “foreign” protection order is an element of the offense. The court discusses State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005). Following Miller, the trial court has to make a determination that the foreign order is valid before submitting the case to the jury, but the jury does not get to make its own determination of this legal issue.

State v. Smith, no. 35708-2-III, decided June 6, 2019

Smith asks for relief from certain legal financial obligations (LFO’s) assessed as part of his judgment. He gets relief from the filing fee, the cost of his appointed lawyer and the $100 “Sheriff’s fee”. The court remands for a trial court determination of the medical expenses incurred at the jail, which are not restitution but are authorized under another statute, RCW 70.48.130(5). The court upholds the $100 Domestic Violence assessment, which was not affected by the 2018 legislation regarding imposition of LFO’s in indigent defendants.

State v Tullar, No. 35956-5-III, decided June 11, 2019

Prosecution for assault in the second degree. This case involves a fight between two jail inmates. The trial court refused to give a self-defense instruction because the defendant did not testify himself. The self-defense testimony came from two other inmates.

COA panel holds that there was evidence to support giving the instruction and that it did not have to come from the defendant himself. It was error to fail to give the instruction, and it obviously affected the outcome. The panel remands for a new trial.

In re Fowler, No. 51029-4-II, decided June 11, 2019

PRP after direct review. The client had engaged attorney John Crowley to pursue post-conviction relief. Crowley subsequently resigned in lieu of discipline. A new lawyer took on the case and filed a “place holder” petition on the very last day, without touching on any substantive issues. He subsequently filed a supplemental petition which covered the issues.

The panel dismisses the PRP as untimely, rejecting an “equitable tolling” argument based on the delay created when Crowley was nominally counsel for Fowler.

Here it is in a nutshell:

Courts narrowly apply the doctrine of equitable tolling and should not use it with “‘garden variety'” claims of neglect. Haghighi, 178 Wn.2d at 447-48.

A petition has to show that the bad behavior is by the State, not the neglectful lawyer, to obtain “equitable tolling.”

State v. Kitt, et. al., decided June 18, 2019

Prosecution for gang related first degree murder. Most of the decision is unpublished, but has some interesting aspects regarding sentencing for the younger defendants.

Published issue reverses for actual conflict of interest involving defendant Krentkowski’s lawyer. One of the defense lawyers had previously represented one of the complaining witnesses called by the state, a member of a rival gang. Defense counsel repeatedly moved to withdraw, and all of the motions were denied. An actual conflict of interest is conclusively prejudicial. The panel finds one here because the lawyer could not use information gained from the representation of the former client to aid the new client. It was important to the ruling that the lawyer had repeatedly moved to withdraw and made a good record, which distinguished the case from State v. Dhaliwal, 150 Wn.2d 559, 573, 79 P.3d 432 (2003).

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