FILED
August 16, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THE STATE OF WASHINGTON, )
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No. 34073-2-111
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Respondent,
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V.
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JO ILENE TANYA MAXWELL, )
UNPUBLISHED OPINION
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Appellant.
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KORSMO, J. -Joilene Tanya Maxwell appeals her Benton County bench trial
conviction for failure to register as a sex offender. She contends her counsel was
ineffective for waiving a CrR 3 .5 hearing and failing to move to suppress statements she
made to a sheriffs office employee. We affirm.
FACTS AND PROCEDURAL HISTORY
Joilene Maxwell has a 1989 first degree child molestation conviction that requires
her to register as a sex offender. She has two prior convictions from 1998 and 2011 for
failure to register as a sex offender. On February 20, 2015, she registered with the
Benton County Sheriffs Office as a transient sex offender. As part of the registration,
she is required to tum in weekly transient check-in sheets. In October 2015, the State
No. 34073-2-III
State v. Maxwell
charged her with failure to register as a sex offender for allegedly failing to turn in her
weekly check-in sheets during the time intervening between September 9, 2015 and
October 6, 2015. She waived her right to a jury trial.
At the outset of the bench trial, Ms. Maxwell's counsel brought up as a
preliminary matter:
There was a statement made to a sheriffs deputy when [Ms. Maxwell]
was served with a 72-hour hold document, and there was a statement that was
made that was not responsive to any questioning at all, so it's not a custodial
statement in response to interrogation, so there is not a 3.5 issue, Your
Honor.
Report of Proceedings (Dec. 14, 2015) (RP) at 5-6. The deputy prosecutor concurred.
The court thus did not hold a CrR 3.5 hearing.
Dianne McCants is the sex offender registration clerk for Benton County and the
primary point of contact for anyone who has a sex offender registration requirement.
Sheriffs Detective Dave Wilson is assigned to monitoring sex offenders in the county.
Both testified at trial that the procedure for transient offenders is to turn in a weekly
check-in sheet every Wednesday to a locked drop box in front of the sheriffs office.
They are the only individuals with access to the key to the drop box, which has a slot
approximately the length of a ballpoint pen and not wide enough for anyone to stick a
finger into. One of them checks the box either Thursday, Friday, or the following
Monday and brings the check-in sheets immediately back to the office and enters them as
verified into the State's Offender Watch database.
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State v. Maxwell
Ms. McCants testified that she explained the reporting requirements to Ms.
Maxwell when she registered on February 20, 2015, and that Ms. Maxwell did not have
any questions. She properly turned in her check-in sheet each week from February 20
through September 2, 2015. But according to Ms. McCants and Detective Wilson, she
failed to turn in her check-in sheet for four straight weeks-on September 9, September
16, September 23, and September 30. She was taken into custody on another matter on
October 6, 2015.
Later in October, Ms. McCants learned that Ms. Maxwell was about to be released
from jail. At Ms. Mccants' request, the prosecutor approved a 72-hour hold for pending
charges of failing to register. Ms. McCants then went to the jail and spoke with Ms.
Maxwell. Ms. Mccants testified as follows about their conversation:
[The State:] Okay. And what did ... she tell you? Did you ask her about
check-in?
[Ms. McCants:] I did.
[The State:] And what was her response?
[Ms. McCants:] I did. We had a conversation about that and I let her know
that there was a ... 72-hour hold for charges for failing to register. And I
asked ... "why didn't you check in? You know, you forgot to drop off your
check-in sheets. We didn't get them." And at that time she said, "Well, I
was using-I was using, so maybe I forgot."
[The State:] Okay. Did she ever tell you that she had brought them in and
you must have lost them?
[Ms. Mccants:] No.
RP at 22. Ms. Maxwell's counsel did not object during this testimony and no one
broached the subject of a CrR 3.5 hearing.
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Defense counsel's cross-examination of Ms. Mccants focused on the reporting
procedures and inquiry whether the sheriffs office could have lost or misplaced Ms.
Maxwell's check-in sheets. Ms. McCants testified there are approximately 18 transient
sex offenders registered with the Benton County Sheriffs Office. To her knowledge, a
weekly check-in sheet has never been lost in the approximately three years the box has
been used. Detective Wilson likewise testified that to his knowledge he has never lost a
check-in sheet from a transient offender.
Ms. Maxwell testified on her own behalf. She said she dropped off her weekly
check-in sheets in the drop box on September 9, September 16, September 23, and
September 30, and that her fiance Douglas Barnes was with her each time. She denied
telling Ms. McCants that she must have forgotten to tum her sheets in. She said she told
Ms. Mccants, "I did bring them in and put them in the box." RP at 43. Mr. Barnes
similarly testified that he accompanies Ms. Maxwell when she drops off her weekly
check-in sheets and was with her each time all through the month of September.
The court made findings reflecting the above testimony, including a specific
finding that Ms. Maxwell did not tum in weekly check-in sheets for September 9,
September 16, September 23, and September 30, 2015. In weighing witness credibility,
the court found the State's witnesses did not have an interest in the case, but that Ms.
Maxwell and Mr. Barnes did. The court found it was not believable that the Benton
County Sheriffs Office lost four weekly transient check-in sheets in a row. The court
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State v. Maxwell
additionally determined "[t]he defendant's statement that she had forgotten is consistent
with the testimony of Dianne Mccants and Detective Mike Wilson." Clerk's Papers at
30 (Conclusion of Law 5). The court found Ms. Maxwell guilty of failure to register as a
sex offender beyond a reasonable doubt. She appeals.
DISCUSSION
Ms. Maxwell's sole contention on appeal is that her counsel gave her ineffective
assistance by waiving a CrR 3.5 hearing and failing to move to suppress her custodial
statements made to Ms. Mccants-a state agent-without the benefit of Miranda 1
warnings.
We review claims of ineffective assistance of counsel de novo. State v. Cross, 156
Wn.2d 580, 605, 132 P.3d 80 (2006). To prevail on an ineffective assistance claim, a
defendant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668,
687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a defendant must show that
counsel's representation fell below an objective standard of reasonableness. State v.
Hendrickson, 129 Wn.2d 61, 77, 917 P .2d 563 ( 1996). Second, the defendant must show
the deficient performance was prejudicial. Id. at 78. Prejudice occurs when it is
reasonably probable that but for counsel's errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694. We presume that the defendant received·
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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State v. Maxwell
adequate representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995).
As Ms. Maxwell points out, Miranda warnings must be given when a suspect
endures custodial interrogation by an agent of the State. State v. Sargent, 111 Wn.2d
641,647, 762 P.2d 1127 (1988) (citing Miranda, 384 U.S. at 444). "[T]he term
'interrogation' under Miranda refers not only to express questioning, but also to any
words or actions on the part of the police ... that the police should know are reasonably
likely to elicit an incriminating response from the suspect." Sargent, 111 Wn.2d at 650
(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297
( 1980) ). And Miranda "applies not only to law enforcement officers, but to any 'agent of
the state' who 'testifie[s] for the prosecution' regarding the defendant's custodial
statements." State v. Heritage, 152 Wn.2d 210,216, 95 P.3d 345 (2004). Without
Miranda warnings, a suspect's statements during custodial interrogation are presumed
involuntary. Id. at 214 (citing Sargent, 111 Wn.2d at 647-48).
Ms. Maxwell contends, and the State does not dispute, that Ms. McCants was a
state agent who elicited custodial incriminating statements about why she did not drop off
her check-in sheets. Ms. Maxwell then asserts her statements are presumed involuntary
under Heritage because they were not preceded by Miranda warnings, and thus her
attorney performed deficiently by waiving a CrR 3 .5 hearing and not moving to suppress
the statements. She contends she was prejudiced by counsel's performance because the
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State v. Maxwell
trial court relied on her incriminating statements as substantive evidence in making its
determination of guilt.
The State, on the other hand, contends counsel was not deficient for stipulating to
admissibility of the statements and waiving a CrR 3.5 hearing because counsel's
understanding at the time of the waiver was that Ms. Maxwell's statements were not in
response to any interrogative questions. The State further contends Ms. Maxwell
suffered no prejudice from counsel's performance in any event because the court found
the State's witnesses credible and the evidence of guilt was overwhelming.
Both parties' contentions miss the mark. The trial court record contains no
evidence whatsoever as to whether Ms. Maxwell received Miranda warnings before
speaking with Ms. McCants. When an ineffective assistance claim is raised on appeal,
the reviewing court may consider only facts within the record. State v. McFarland, 127
Wn.2d at 335. "The burden is on a defendant alleging ineffective assistance of counsel to
show deficient representation based on the record." Id. Because the record is insufficient
to permit our review of counsel's decision not to request a CrR 3.5 hearing or move to
suppress the statements that Ms. Maxwell made to Ms. Mccants, her ineffective
assistance claim fails. Id. at 335. 2
2
When, as here, a defendant's claim of ineffective assistance depends on evidence
or facts not in the existing trial record, the appropriate means of raising the issue is a
personal restraint petition under RAP 16.4. State v. McFarland, 127 Wn.2d at 335.
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Finally, we grant Ms. Maxwell's motion-supported by good cause and filed prior
to this court's setting this case on the docket for decision-to enlarge the 60-day time
period under our June 10, 2016 General Order to file a motion to deny appellate costs.
RAP 14.2 states, "A commissioner or clerk of the appellate court will award costs
to the party that substantially prevails on review, unless the appellate court directs
otherwise in its decision terminating review." Under RCW 10.73.160(1), we have broad
discretion to grant or deny appellate costs to the prevailing party. See State v. Nolan, 141
Wn.2d 620,626, 8 P.3d 300 (2000); State v. Sinclair, 192 Wn. App. 380,388,367 P.3d
612 (2016). Ms. Maxwell was declared indigent for purposes of this appeal. She has
submitted proof of her continued indigency and additionally moves this court to exercise
its discretion and deny the State appellate costs. The State has responded that it takes no
position on Ms. Maxwell's motion and defers to this court. Given Ms. Maxwell's lack of
assets and relatively large amount of outstanding legal financial obligations as shown on
her report of continued indigency, she does not have the present ability to pay appellate
costs. And given her felony criminal history and reported disabilities that may interfere
with her ability to work, it is questionable whether she will have the future ability to pay.
The State acknowledges that she may not have the ability to pay appellate costs.
Accordingly, exercising our discretion, we grant Ms. Maxwell's additional motion and
decline to award appellate costs to the State.
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Affirmed.
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:
Lawrence-Berrey, J.
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State of Washington v. Joilene Tanya Maxwell
Combined Opinion