Opinion
No. 36228-7-II.
May 13, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-00134-2, Jay B. Roof, J., entered April 10, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Hunt and Penoyar, JJ.
Mark Smith appeals his convictions for felony violation of a court order and domestic violence entered after a stipulated facts bench trial. He argues that: (1) the trial court erred when it admitted evidence of his prior violations and (2) he received ineffective assistance of counsel. We affirm.
Smith also filed a statement of additional grounds for review asserting the same errors that his appellate brief raises. RAP 10.10.
Facts
Kitsap County Sheriff's Deputy Dave Meyer initiated a traffic stop after he saw that a passenger in the front seat of a vehicle was not wearing a seat belt. The driver parked in Shelley Hollick's driveway and identified himself as Mark Smith. A domestic violence no-contact order prohibited Smith from having any contact with Hollick or from coming within 500 feet of her home. Smith knew about the order but admitted to Deputy Meyer that he lived there with Hollick. Deputy Meyer confirmed that Hollick was inside. The State charged Smith with violation of a court order with a special allegation of domestic violence because the victim was a family or household member. The State also alleged that Smith's two prior violations elevated the charge to a felony. RCW 26.50.110(5).
RCW 26.50.110(5) reads:
A violation of a court order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated.
Smith unsuccessfully moved for pretrial dismissal under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). He argued that the State's evidence failed to show that his prior violations were "issued under [chapter 26.50,] 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020" and, accordingly, his current offense was a gross misdemeanor instead of a felony. RCW 26.50.110(5). Smith then stipulated to the underlying facts and waived his right to a jury trial. In the stipulation, Smith reserved the right to object on relevance grounds to the State's proposed exhibits regarding his prior violations. The trial court admitted the State's evidence as exhibits C, D, and E. The trial court convicted Smith of one count of felony violation of a court order and one count of domestic violence and sentenced him to 41 months of incarceration.
Smith appeals.
Analysis
I. Admissibility of Evidence of Prior Violations
Smith argues that his prior violations of no-contact orders are legally insufficient to render his current conviction a felony under RCW 26.50.110(5) and, therefore, the trial court erred when it admitted exhibits C, D, and E into evidence.
Smith primarily argues that the evidence was insufficient to support his felony conviction. But "[a] claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). At trial, Smith conceded that if the exhibits were admissible then his conviction would be a felony.
The admissibility of prior violations under RCW 26.50.110 is a question of law that we review de novo. State v. Miller, 156 Wn.2d 23, 24, 27, 123 P.3d 827 (2005). Before admitting evidence of prior violations, the trial court must rule on whether, as a matter of law, the defendant's prior violations were "issued under [chapter 26.50,] 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020." RCW 26.50.110(5). Orders that do not meet this legal standard are irrelevant and the trial court should not admit them into evidence. Miller, 156 Wn.2d at 31.
Smith contends that the trial court erred when it held that the Bremerton municipal court issued his prior court order violations under chapter 26.50 RCW. He is incorrect. In 1986, the Bremerton City Council enacted ordinance 4078. Section 71 of the ordinance states: "Civil Protection Order: State statutes adopted by reference. RCW Chapter 26.50 is hereby adopted by reference." City of Bremerton, Ordinance 4078, § 71 (October 15, 1986). Section 71 was codified as Bremerton Municipal Code 9A.32.080, which remained in effect without amendment until 1991. See City of Bremerton, Ordinance 4313 (March 25, 1991) (amending section 9A.32.080 to adopt by reference to chapters 26.50 and 26.09.300 RCW). Here, the State's exhibits clearly demonstrate that the municipal court convicted Smith for three domestic protection order violations contrary to Bremerton Municipal Code 9A.32.080. Smith committed one of the violations in 1987 and the other two in 1988. Therefore, the exhibits proved that Smith has three prior violations under chapter 26.50 RCW and the trial court did not err when it admitted exhibits C, D, and E into evidence. See State v. Gray, 134 Wn. App. 547, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007) (upholding, on different grounds, a felony conviction for violating a no contact order based on prior municipal court convictions).
Smith also contends that the trial court lacked authority to analyze the ordinance because the prosecutor did not admit it into evidence. But a judge is required to "take judicial notice of the existence of [an] ordinance and the tenor and effect" of it if a party states in a pleading an ordinance's title and date of passage. CR 9(i); see State v. Martin, 14 Wn. App. 717, 720, 544 P.2d 750 (1976) (applying CR 9(i) in criminal case). The State properly pleaded the ordinance and, therefore, the trial court did not err when it considered it.
II. Effective Assistance of Counsel
Smith argues that he received ineffective assistance of counsel because his attorney did not argue that exhibits C, D, and E were inadmissible since the State failed to prove he was the person named in the exhibits. To demonstrate ineffective assistance of counsel, Smith must show that: (1) defense counsel's representation was deficient and (2) the deficient representation prejudiced him. State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
Here, the exhibits each list information matching Smith's name, date of birth, race, hair color, height, and weight. This evidence is sufficient to persuade us that counsel's representation was not deficient for failing to challenge identity. "Counsel is not ineffective for failing to raise meritless arguments [that the defendant] did not request." State v. Schwab, 141 Wn. App. 85, 96, 167 P.3d 1225 (2007). Thus, we do not reach the issue of whether his counsel's representation prejudiced him. State v. Jeffries, 105 Wn.2nd 398, 418, 717 P.2d 722 (1986).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and PENOYAR, J., concur.