541234MAJ ~
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 54123-4-I Title of Case: STATE OF WASHINGTON, Appellant VS HEAVEN,
STEPHEN ROBERT, Respondent File Date: 04/25/2005
SOURCE OF APPEAL
---------------- Appeal from Superior Court of Snohomish County Docket No: 03-1-01692-1 Judgment or order under review Date filed: 03/31/2004 Judge signing: Hon. Ellen J. Fair
JUDGES
------ Authored by H Joseph Coleman Concurring: Anne Ellington
Marlin Appelwick
COUNSEL OF RECORD
----------------- Counsel for Appellant(s)
Charles Franklin Blackman
c/o Snohomish County Pros
3000 Rockefeller Ave
Everett, WA 98201-4061
Counsel for Respondent(s)
Nielsen Broman Koch Pllc
Attorney at Law
1908 E Madison St
Seattle, WA 98122
Dana M Lind
Nielsen Broman & Koch PLLC
1908 E Madison St
Seattle, WA 98122-2842
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 54145-5-I
)
Respondent, ) DIVISION ONE
)
v. ) ELLEN ANN WELCH, ) Unpublished Opinion
)
Appellant. ) FILED: April 25, 2005
)
PER CURIAM. Ellen Ann Welch challenges her conviction for one count of felony hit and run, one count of assault in the fourth degree, and one count of animal cruelty in the second degree. Welch contends that the trial court abused its discretion in denying her motion for a continuance.
We disagree. Welch failed to show that the evidence sought was material to her case, her request was not timely, and a continuance would have placed an undue burden on the State and the State's witnesses. Welch also argues that she received ineffective assistance of counsel. Because counsel's performance was not deficient and Welch was not prejudiced in her trial, Welch's attorney was not ineffective. Welch further argues that the trial court erred in accepting her waiver of a jury trial and agreement to a trial on stipulated facts. Because Welch signed a waiver, engaged in a colloquy with the judge regarding her right to a jury trial, and her attorney was present during the proceeding, the trial court did not err in accepting Welch's waiver of a jury trial. We affirm the judgment and sentence of the trial court.
FACTS
Ellen Ann Welch, while driving her motor vehicle, intentionally veered toward Linda Wilcox and the horse on which she was riding. Welch struck the animal with her car, causing Wilcox to fall from her horse and sustain a nasal fracture and a dislocated shoulder. The State charged Welch with one count of felony hit and run -- RCW 46.52.020, one count of vehicular assault -- RCW 46.61.522 (1)(a), and one count of second degree animal cruelty -- RCW 16.52.207. During an investigation of the accident, Welch mentioned that she had suffered a brain injury eight years prior and that she had difficulty recalling information quickly. On the morning of trial, Welch's attorney requested a second continuance to gather more information regarding her head injury, which the trial court denied. The State then offered to reduce the felony charge of vehicular assault to a misdemeanor assault in the fourth degree in exchange for a stipulated trial. Welch waived her right to a jury trial and agreed to a stipulated trial after conferring with her attorney. The trial court convicted Welch on the charges of felony hit and run, assault in the fourth degree, and animal cruelty in the second degree and sentenced her to 30 days of community service.
ANALYSIS
Welch first argues that the trial court erred in denying her request for a continuance. In requesting a continuance, the moving party must show the materiality of evidence to be obtained, that due diligence has been exerted to obtain the evidence, and what the evidence would prove. N. State Const.
Co. v. Banchero, 
63 Wn.2d 245, 248, 386 P.2d 625 (1963). The trial court may consider numerous factors before granting or denying the request, such as surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure. State v. Downing, 151 Wn.2d 265, 273, 87 P.3d 1169 (2004).
We review the trial court's decision under an abuse of discretion standard.
Downing, 151 Wn.2d at 272. In order to demonstrate that the trial court abused its discretion, the appellant must make a "clear showing" that the decision by the trial court is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex. rel. Carroll v.
Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The trial court granted Welch's first continuance to explore her medical records to determine whether the head injury she previously suffered provided a sufficient defense or mitigation of the charges. On the morning of trial, Welch requested a second continuance to carry on the investigation. Welch failed to show how a further examination of her medical history was relevant to the events at issue in this case where Welch did not assert diminished capacity or distorted perception on the date of the event. Welch merely claimed that her head injury caused her to recall information more slowly, which may affect her testimony.
Further, courts have found that "morning-of-the-trial" requests for continuance are generally untimely and place an undue burden on the nonmoving party and their witnesses. See, e.g., Odom v. Williams, 74 Wn.2d 714, 718, 446 P.2d 335, 337 (1968).
In this case, the State asserted that a continuance would place a hardship on the State because their witnesses could not be made available for nearly three weeks beyond the scheduled trial dates. Because Welch failed to make a showing that the evidence sought was material to the case, her request was not timely, and a continuance would place an undue burden on the State and the State's witnesses, we cannot say the trial court abused its discretion in denying Welch's request for a continuance.
Welch also argues that she received ineffective assistance of counsel.
Claims of ineffective assistance of counsel are reviewed de novo. In re Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). When alleging ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In order to meet the first prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The court will evaluate counsel's representation with a presumption that counsel's conduct falls within the wide range of reasonableness. Strickland, 466 U.S. at 689. Welch argues that her attorney acted unreasonably in failing to challenge her competency. The constitutional standard for competency is whether the defendant has "`"sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding"'" and to assist in his defense with "`"a rational as well as factual understanding of the proceedings against him."'" Fleming, 142 Wn.2d at 862 (quoting Dusky v.
United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)). The two-part test for competency in Washington is (1) whether the defendant understands the nature of the charges and (2) whether the defendant is capable of assisting in his or her defense. Fleming, 142 Wn.2d at 862.
Welch claims that her attorney's performance was deficient for failing to raise a question of competency. In fact, her attorney did indicate that there was a question of competency by requesting a continuance to further review Welch's medical records. The trial court rejected the motion because, as explained above, there was no indication on the record that Welch's brain injury had any effect on the event in question or her ability to testify to those events at trial.
In response to questioning by the prosecution that indicated that she currently suffered memory loss, Welch responded, "{I} had problems with short-term memory. I have problems now with recall, as far as I'm very slow{.}" Report of Proceedings (RP) (Jan. 21, 2004) at 59. Welch's inability to recall information quickly regarding her testimony does not indicate she is incompetent under the constitutional standard or the Washington definition. Her actions during the pretrial motions and her responses to questioning did not give rise to any question that she was incompetent to proceed with the hearing. Thus, her attorney did not act unreasonably for failing to raise the issue of Welch's competency. Even if Welch had shown that her attorney acted unreasonably, she has not shown that she was prejudiced by any error. Accordingly, we find no indication that Welch received ineffective assistance of counsel.
Welch argues that the trial court erred in accepting her waiver of a jury trial and agreement to a trial on stipulated facts. This court will accept a waiver only where the record shows an affirmative, unequivocal waiver by a defendant. See City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984). CrR 6.1 requires a written waiver of a defendant's right to a jury trial. See also State v. Downs, 36 Wn. App. 143, 144, 672 P.2d 416 (1983). If a defendant has signed a waiver, the court is under no affirmative duty to engage in a colloquy with the defendant. Downs, 36 Wn.
App. at 145. Further, where the waiver is signed by the defendant's attorney, the court may conclude that the client has knowingly, intelligently, and voluntarily relinquished the right to a jury trial.
Downs, 36 Wn. App. at 146.
In this case, Welch signed a waiver, engaged in an extended colloquy with the judge regarding her right to a jury trial, and had her attorney present. After inquiring as to whether she reviewed her waiver and the stipulated facts with her attorney and answering questions regarding her right to appeal, the judge asked Welch specifically, "{D}o you want to have a jury trial or do you want to have a stipulated trial?" Welch responded, "I want a stipulated trial with the understanding that I have the right to appeal and have another trial." RP (Jan. 22, 2004) at 18. Given these circumstances, we are confident that the trial court did not err in accepting Welch's waiver of a jury trial. For the foregoing reasons, we affirm the decision of the trial court.
WE CONCUR: >>
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