Opinion
30377-2-III 30571-6-III
01-24-2013
STATE OF WASHINGTON, Respondent, v. JEROME J. CURRY, Appellant. In re Personal Restraint of: JEROME J. CURRY, Petitioner.
UNPUBLISHED OPINION
KORSMO, C.J.
This court previously remanded this case to adjust the community custody portion of the sentence. We must do so again, but we reject the appellant's other arguments and dismiss his consolidated personal restraint petition (PRP).
PROCEDURAL HISTORY
Jerome Curry was convicted in the Spokane County Superior Court of second degree malicious mischief and felony violation of a no contact order and sentenced to 54 months incarceration along with 12 months of community custody. On appeal, this court accepted the State's concession that the total period of incarceration and community custody exceeded the 60 month statutory maximum punishment for the offense. The trial court was directed to enter a notation on the judgment and sentence in accordance with In re Pers. Restraint of Brooks, 166 Wn.2d 664, 211 P.3d 1023 (2009). State v. Curry, noted at 2010 WL 4608773 at *1-2. This court also considered and rejected various arguments made by Mr. Curry in his statement of additional grounds (SAG) and in a PRP that we consolidated with his appeal.
This court's mandate issued June 23, 2011. The remand hearing was held October 9, 2011. On remand, despite Mr. Curry's argument that it was the incorrect course of action, the court entered a Brooks notation as directed by this court. Mr. Curry represented himself at the hearing as he had done since the third day of his trial in 2009.
After entry of the Brooks notation, Mr. Curry again appealed to this court. Counsel was appointed for him. Mr. Curry filed a SAG and a second PRP. We once again consolidated the PRP with the direct appeal.
ANALYSIS
The appeal presents three arguments, which we will first address before briefly discussing the PRP. We will not discuss the SAG because the issues presented there either are the same as issues raised in the previous appeal or are resolved by our ruling on the community custody argument in this appeal.
Community Custody
The parties agree that the matter must once more be remanded to correct the term of community custody to conform with RCW 9.94A.701(9). We concur.
Prior to the amendment of that statute on July 26, 2009, the Department of Corrections (DOC) was authorized to limit a term of community custody so that an offender did not serve a combined sentence of incarceration and community custody in excess of the maximum statutory punishment for the crime. See Brooks, 166 Wn.2d at 673. After the amendment, the statute directed the trial judge to limit the term of community custody when facing a combined sentence that would otherwise exceed the statutory maximum sentence. State v. Winborne, 167 Wn.App. 320, 329, 273 P.3d 454, review denied, 174 Wn.2d 1019 (2012).
In Winborne this court recognized that a Brooks notation no longer sufficed under the amended statute to resolve the problem of a combined sentence exceeding the statutory maximum. Under the amended statute, the trial judge was required to correct the term of community custody for those sentenced after July 26, 2009. Id. at 328.
Unfortunately, this court failed to recognize that the statutory change applied to Mr. Curry's case and wrongly directed the court to impose a Brooks notation rather than change the term of community custody. We now again remand this case and direct the court to impose a six month term of community custody as required by RCW 9.94A.701(9).
Right to Counsel
Mr. Curry also argues that his right to counsel was violated when he represented himself at the remand hearing. Assuming that there is a right to counsel at such hearings, a question we do not decide, it was not violated here because Mr. Curry never sought to rescind his self-representation.
The Sixth Amendment right to counsel carries with it the implicit right to self-representation, Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), while article I, section 22 of the Washington Constitution creates an explicit right to self-representation. State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010). Improper rejection of a request for self-representation is reversible error. Id.
When counsel has been waived, the decision whether to grant a motion for reappointment of counsel is reviewed for abuse of discretion. State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
There was no abuse of discretion in this case because Mr. Curry never asked to have counsel reappointed. Instead, he mentioned to the trial court that he was considering seeking legal advice. He did not tell the court he was seeking to relinquish his self-representation. There certainly was no unequivocal assertion of an interest in obtaining counsel. All that he said was that he might seek legal advice. That is far from being a request to have counsel reappointed.
Since he has not shown that he sought to have counsel at the remand hearing, Mr. Curry has not established that the trial court abused its discretion in some manner. There was no error.
Speedy Sentencing
Mr. Curry also argues that the three month delay between the issuance of this court's mandate in the first appeal and the remand hearing violated his right to a speedy sentencing. This argument fails because he has not established that he was denied a speedy hearing and the proceeding below was not a sentencing.
A criminal defendant has both a statutory and a Sixth Amendment right to speedy sentencing, which also applies to resentencing after a successful appeal. U.S. Const. amend. VI; RCW 9.94A.500(1); see State v. Modest, 106 Wn.App. 660, 24 P.3d 1116 (2001). "A convicted defendant should not be subjected to needless and uncertain delay before a new sentence is imposed after remand by an appellate court." Modest, 106 Wn.App. at 664. No specific rule governs the timeliness of a resentencing hearing, but if a sentencing delay is "purposeful or oppressive, " it violates the right to a speedy resentencing. Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). When deciding whether a delay was purposeful or oppressive, the reviewing court balances the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy sentence, and the extent of prejudice to the defendant caused by the delay. State v. Rupe, 108 Wn.2d 734, 742, 743 P.2d 210 (1987).
The four factor test is derived from the test used for violation of the constitutional right to a speedy trial set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1982). The Barker factors are applied to trial delay cases arising under either the federal or state constitutions. See State v. Iniguez, 167 Wn.2d 273, 280-83, 217 P.3d 768 (2009). No one factor is dispositive. Id. at 293.
The Barker test conclusively shows there was no violation of any speedy sentencing right. The alleged three month delay is far less than the two year delay found insufficient in Modest to trigger the need for relief. 106 Wn.App. at 664. Indeed, delay of less than 8-12 months will seldom even present a constitutional question. Iniguez, 167 Wn.2d at 291-93. The three month period of "delay" at issue here is not enough to raise a claim of presumptive prejudice and there is no need to even conduct an analysis of the other factors. Id. at 282-83.
Even if we considered the other factors, they weigh heavily against Mr. Curry's claim. There was no request for an earlier hearing and the only prejudice alleged arose from the need for this second appeal rather than the three month period between the mandate and the hearing. None of the Barker factors favor Mr. Curry and on balance he would not obtain any relief.
Moreover, this court did not order a resentencing in the first appeal and the trial court never conducted a resentencing hearing. The matter was simply remanded in order to correct the period of community custody in accordance with this court's directive. Mr. Curry has not shown that this type of hearing triggers the right to a speedy sentencing.
For both reasons, this claim fails.
Personal Restraint Petition
Mr. Curry pro se filed a PRP that reprises issues concerning his conviction and sentencing, challenges the timeliness of his "resentencing" and the absence of counsel at the hearing, and casts aspersions on the sentencing judge. Many of these arguments were raised in the first PRP. This PRP fails to explain why this court should revisit any of these claims and why the new claims were not presented earlier. It fails to satisfy the burdens placed on a PRP.
The burdens imposed on a petitioner in a PRP are significant. Relief will only be granted in a PRP if there is constitutional error that caused substantial actual prejudice or if a nonconstitutional error resulted in a fundamental defect constituting a complete miscarriage of justice. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). It is the petitioner's burden to establish this "threshold requirement." Id. To do so, a PRP must present competent evidence in support of its claims. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). If the facts alleged would potentially entitle the petitioner to relief, a reference hearing may be ordered to resolve the factual allegations. Id. at 886-87.
Successive petitions are prohibited. A petition is successive if it raises new issues without establishing good cause for not having raised the issues in an earlier collateral attack. RCW 10.73.140; RAP 16.4(d). Similarly, a petition that raises issues previously resolved on appeal will not be considered unless the petition establishes that the ends of justice require it. In re Pers. Restraint of Jeffries, 114 Wn.2d 485, 487-88, 789 P.2d 731 (1990).
Mr. Curry's current PRP fails to meet any of these burdens. Most of the issues presented were rejected in his first PRP and he has not established that the ends of justice require reconsideration of that ruling. The other new issues relating to the convictions could have been raised earlier; Mr. Curry makes no effort to explain why that was not done. There are two arguments concerning the remand hearing that are similar to those raised by counsel in this appeal. Those arguments were without merit on appeal; therefore, they also fail under the higher burden of proof imposed in a PRP. Finally, we note that Mr. Curry failed to support his arguments with any evidence. For that reason, also, his petition fails. Rice, 118 Wn.2d at 885-86.
The PRP is dismissed. The case is remanded for correction of the community custody period in accordance with Winborne and RCW 9.94A.701(9).
Remanded.
A majority of the panel has determined 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.
WE CONCUR: Sweeney, J. Siddoway, J.