State Of Washington v. Quezon Poor Thunder

Filed
Washington State
Court of Appeals
Division Two

January 3, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 50266-6-II

Respondent,
UNPUBLISHED OPINION
v.

QUEZON LUCAS POOR THUNDER,
AKA
QUEZON LUCAS WILDSPIRIT,
QUEZON LUCAS PENSON,
QUEZON LUCAS POOR-THUNDER,
QUEZON LUCAS POORTHUNDER,

Appellant.

MAXA, C.J. – Quezon Poor Thunder appeals his convictions of four counts of second

degree child rape.

We hold that (1) the trial court did not err in denying Thunder’s requests to represent

himself because the court could not ascertain whether his waiver of the right to counsel was

knowing and intelligent due to Thunder’s persistent refusal to meaningfully answer the court’s

questions; (2) the trial court did not violate the CrR 3.3 time for trial requirements because each

of the continuances granted was proper; (3) the trial court did not violate Thunder’s

constitutional speedy trial right because the length of the delay was not disproportionate to the

needs of preparing his case for trial; (4) the community custody conditions prohibiting the use of

alcohol, requiring an alcohol and chemical dependency evaluation, and prohibiting access to the

Internet were improperly imposed, but conditions prohibiting Thunder from entering sex-related

businesses, and accessing sexually explicit materials were crime related and therefore proper;
No. 50266-6-II

and (5) regarding legal financial obligations (LFOs), the criminal filing fee was improperly

imposed on Thunder because he was indigent but Thunder does not show that the DNA

collection fee was improperly imposed. We also decline to address Thunder’s claims in his

statement of additional grounds (SAG) because they do not meaningfully explain how the trial

court allegedly erred.

Accordingly, we affirm Thunder’s convictions, but we remand for the trial court to strike

a portion of community custody condition 11 and community custody conditions 22, 23, and 24

and to strike the criminal filing fee.

FACTS

The State charged Thunder with four counts of second degree child rape after his

girlfriend’s 13-year-old daughter reported to law enforcement that he had sexual intercourse with

her on at least four separate occasions.

Thunder’s Requests to Represent Himself

During the time leading up to his trial, Thunder made several statements regarding

dismissing his attorney and representing himself. Thunder apparently made his first request to

represent himself at his arraignment in March 2016, which was denied.

On October 5, 2016, the court addressed Thunder’s request to represent himself. The

court attempted a colloquy with Thunder to assess his level of education and any legal training,

his ability to prepare for trial, his knowledge of criminal procedure and the rules of evidence, and

what he had studied to determine his legal rights. Thunder answered that he had an 11th grade

education, but responded to the rest of the court’s questions either by stating “I want to represent

myself” or by accusing the court of violating his rights. Report of Proceedings (RP) (Oct. 5,

2016) at 6-7. He also denied that any charges had been filed against him.

2
No. 50266-6-II

At the end of this exchange, the trial court stated that given Thunder’s responses, “this

court does not believe that it can allow [Thunder] to represent himself in this matter because it

would be detrimental for him to do so.” RP (Oct. 5, 2016) at 9. However, the court later stated,

“So we will continue to attempt to inquire into [Thunder’s] understanding and ability to

articulate the requisite matters before granting him the right of self-representation in this

circumstance.” RP (Oct. 5, 2016) 18-19.

Thunder appeared before a different judge on November 7, the scheduled trial date.

Defense counsel informed the court that Thunder again was requesting to represent himself.

The trial court asked Thunder a series of questions aimed at determining how much he

understood about his case and about representing himself at trial. Thunder repeatedly refused to

acknowledge that he had been charged with any crime and repeatedly claimed that he would be

enslaved if convicted. Specifically, he failed to answer whether he understood the charges

against him, the seriousness of the charges, and the fact that he potentially could be incarcerated

for the rest of his life if convicted.

When the court asked if Thunder could abide by courtroom rules of procedure as a

lawyer would, he replied, “Can you show me a certification of oath that you withhold the rights

of my land, instead of trying to push the maritime laws on me?” RP (Nov. 7, 2016) at 8-9.

When asked whether his waiver of counsel was the result of any coercion or threats, Thunder

replied, “By your system.” RP (Nov. 7, 2016) at 9.

After this colloquy, the trial court found that based on Thunder’s responses, Thunder did

not understand the consequences of his waiver of the right to counsel. Therefore, the court

concluded that Thunder’s waiver of his right to counsel was not intelligently given and denied

his request to represent himself.

3
No. 50266-6-II

A third judge addressed Thunder’s request to represent himself on February 28, 2017,

shortly before jury selection began. The issue had been raised in court the day before.

The trial court advised Thunder of the charges against him and stated that he could be

sentenced up to life in prison if convicted. When the court asked Thunder if he understood this

risk, he replied “I comprehend that it is a fee that you guys are trying to charge me with and

trying to use the jail time to pay the fee off when I have the right to pay the fee off and not do jail

time.” RP (Feb. 28, 2017) at 35. The court again asked if Thunder comprehended how serious

the charges were, and Thunder responded, “I comprehend a fee.” RP (Feb. 28, 2017) at 35.

Regarding the conduct of the trial, Thunder stated that he comprehended that the court

would treat him like lawyer and would give him no special favors. Thunder stated that he was

familiar with the rules of evidence and rules of criminal procedure, and comprehended that if he

testified he would have to break the testimony into questions.

The court stated that if it did allow Thunder to represent himself, the court would appoint

his defense counsel as standby counsel and asked Thunder if that would be acceptable. Thunder

failed to answer, instead responding, “Like I said, I’m here as a special appearance.” RP (Feb.

28, 2017) at 43.

The court asked Thunder if he could conduct himself in front of the jury without being

disruptive. Thunder responded that the jury were not his peers because he was Native American,

that he did not “grant” the court jurisdiction over him, and that the State could not bring criminal

charges against him because it was “a nonliving fictitious entity.” RP (Feb. 28, 2017) at 43-44.

The court then stated that self-representation with standby counsel could be a possibility.

But the court stated, “I don’t want a situation where we’re here in the middle of the trial and

you’re being disruptive.” RP (Feb. 28, 2017) at 46. Thunder responded by reiterating his

4
No. 50266-6-II

assertions that “Washington State is a nonliving fictitious entity that ain’t even a real human

being as the plaintiff” and asked if the flag was going to take the stand. RP (Feb. 28, 2017) at

46. When the court asked if he was ready to proceed to trial if he represented himself, Thunder

responded, “They’re not my peers. They may not judge me.” RP (Feb. 28, 2017) at 46.

The trial court denied Thunder’s motion to represent himself. The court first stated that

the motion was untimely. The court then stated that Thunder did not have an adequate

understanding of the law, that his waiver of the right to counsel was not knowing or intelligent,

and that the court was unable to obtain an assurance from Thunder that his conduct in court

would not be an issue.

Multiple Trial Continuances

Thunder’s arraignment initially was set for March 7, 2016. However, he was apparently

so disruptive that he was removed from the courtroom and the arraignment was continued until

the next day. The court entered a scheduling order setting the omnibus hearing for April 15 and

the jury trial for May 3.

On April 15, both the State and defense counsel requested additional time to prepare for

trial. The court entered an order continuing the trial until August 4. Thunder objected to the

continuance and refused to sign the order. The new time for trial deadline was September 3.

On June 13, the court set a competency hearing for Thunder at defense counsel’s request

and over Thunder’s objection to take place on June 30. At the June 30 hearing, the court found

Thunder competent to stand trial. The court also entered another scheduling order, setting the

omnibus hearing for July 25 and moving the trial date up to July 28. Thunder wrote over his

signature line acknowledging receipt, “I object under the treat [sic] of slavery.” Clerk’s Papers

(CP) at 292.

5
No. 50266-6-II

At the July 25 hearing, both the State and defense counsel requested a trial continuance

because the case had been reassigned to a new deputy prosecuting attorney and because defense

counsel required time to complete trial preparation. Thunder wrote “I object under slavry [sic]

treat [sic] never sign from attorney” on his signature line. CP at 285. Trial was continued to

September 20. The new time for trial deadline was October 15.

The State learned in July that DNA evidence from the rape kit was available to compare

to Thunder’s DNA. On August 5, the State served Thunder with a warrant for a swab of his

DNA. The swab was taken on the same day. Thunder physically resisted. He repeatedly

refused to comply willingly, pressing his lips together and turning his head away to prevent

officers from swabbing the interior of his cheek. Though Thunder was handcuffed and in leg

irons, four officers were required to subdue him sufficiently to collect the sample. Thunder then

continued to resist by biting down on the buccal swab and again moving his head away. He

finally released the swab after one officer “applied pain compliance to the pressure point near the

back of the jaw.” CP at 131.

At an August 19 hearing, the parties requested a six day trial continuance because of

defense counsel’s preplanned vacation and because the State still was waiting on DNA analysis

results from the Washington State Patrol (WSP). The court found good cause and granted the

continuance, setting trial for September 26, within the time for trial deadline.

At the September 16 status conference, the State informed the court that, despite its

efforts to seek updates with the WSP, DNA test results were not yet available. Both parties also

were still waiting for Child Protective Services records, which defense counsel wished to review

before trial. The court set the matter for status conference and possibly trial on September 26.

6
No. 50266-6-II

At the September 26 status conference both the State and defense counsel requested a

trial continuance. The State still was waiting for the DNA testing results from WSP. Defense

counsel asked for a one-and-a-half week continuance because of his unavailability. The court

continued the trial date to November 7 and set a status conference hearing for October 14.

Thunder objected and refused to sign the order. The new time for trial deadline was December

7.

The State requested a hearing on October 5 to provide the court with further explanation

regarding why the DNA analysis was not yet complete. The State notified defense counsel of the

DNA analysis results on October 24.

The parties next appeared on November 7 ready for trial, but the assigned judge was in

trial on another case. Thunder also had filed a motion to dismiss for speedy trial violations and

the State requested a few days to respond to the motion. The court found good cause to continue

the matter two days to November 9 to allow the State time to respond to Thunder’s motion.

On November 9, defense counsel stated that he may need to request a trial continuance to

have an expert review the DNA evidence. After the hearing, the court entered a scheduling order

setting the trial, continuance hearing, and status conference hearing for December 9. Thunder

wrote over the copy received signature line “I reserve my rights without prejudice UCC 1-308”

and “I’m not the vessel.” CP at 293. The court also denied Thunder’s motion to dismiss for

speedy trial violations. The new time for trial deadline was January 8, 2017.

7
No. 50266-6-II

At the December 9, 2016 status conference, the court continued the trial until February 23

to give the State time to respond to Thunder’s request for supplemental discovery regarding the

WSP’s DNA analysis. The new time for trial deadline was March 25.1

The parties were present in court and ready for trial on February 23. Because of court

congestion, the trial court placed Thunder’s case in trailing status until February 27. The trial

began on February 27.

Conviction and Community Custody Conditions

Thunder was convicted at trial of all four counts of second degree child rape. The trial

court’s sentence imposed several post-release community custody conditions. The conditions

included requirements that prohibited Thunder from using alcohol, required an alcohol and

chemical dependency evaluation, prohibited his Internet usage without approval, and prohibited

him from entering sex-related businesses or accessing sexually explicit material.

Thunder appeals his convictions, the imposition of certain community custody

conditions, and the imposition of the criminal filing fee and the DNA collection fee.

ANALYSIS

A. RIGHT TO SELF-REPRESENTATION

Thunder argues that the trial court erred in denying his repeated requests to represent

himself. We disagree.

1
There is an apparent scrivener’s error on the December 9, 2016 continuance order, incorrectly
recording the new time for trial deadline as February 13, 2017, despite the fact that trial was
continued to February 23, 2017 at the December 9 hearing. Per CrR 3.3(b)(5), the new time for
trial deadline was actually March 25, 2017 (30 days after the continued trial date of February
23).

8
No. 50266-6-II

1. Legal Principles

Article I, section 22 of the Washington Constitution and the Sixth Amendment to the

United States Constitution guarantee a criminal defendant both the right to assistance of counsel

and a right to self-representation. State v. Howard, 1 Wn. App. 2d 420, 424, 405 P.3d 1039

(2017). The right of self-representation is “so fundamental that it is afforded despite its

potentially detrimental impact on both the defendant and the administration of justice.” State v.

Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).

There is a tension between the right of self-representation and the right to counsel. State

v. Curry, 191 Wn.2d 475, 482, 423 P.3d 179 (2018). A defendant’s request to represent himself

or herself waives the right to counsel. Howard, 1 Wn. App. 2d at 425. Consequently, self-

representation is not an absolute right. Id. A trial court must first determine that the defendant’s

waiver of the right to counsel is voluntary, knowing, and intelligent before allowing self-

representation. Id. If this waiver is proper, a criminal defendant has a right to represent himself

or herself. Id.

Preferably, the trial court will determine the validity of a waiver of counsel through a

colloquy on the record with the defendant. Id. “[T]he trial court should assume responsibility

for assuring that decisions regarding self-representation are made with at least minimal

knowledge of what the task entails.” City of Bellevue v. Acrey, 103 Wn.2d 203, 210, 691 P.2d

957 (1984). The trial court must advise the defendant of the potential dangers and disadvantages

of self-representation, ensuring that the defendant “ ‘knows what he is doing and his choice is

made with eyes open.’ ” In re Pers. Restraint of Rhome, 172 Wn.2d 654, 659, 260 P.3d 874

(2011) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562

9
No. 50266-6-II

(1975)). The trial court also must ensure that the defendant knows the maximum penalty for the

charged crime. See Howard, 1 Wn. App. 2d at 429.

In addition, when determining whether the defendant’s waiver is proper, the trial court

must make every reasonable presumption against a waiver of the right to counsel. Madsen, 168

Wn.2d at 504. If the defendant’s request is “made without a general understanding of the

consequences,” the trial court may deny that request for self-representation. Id. at 505.

On the other hand, a defendant’s ability to represent himself is irrelevant in addressing a

motion for self-representation. See Madsen, 168 Wn.2d at 505. The court in Madsen

emphasized that, “[a] court may not deny a motion for self-representation based on grounds that

self-representation would be detrimental to the defendant’s ability to present his case.” Id. For

example, a trial court “may not deny pro se status merely because the defendant is unfamiliar

with legal rules.” Id. at 509. And the trial court may not consider the defendant’s skill and

judgment in assessing the right to self-representation. Rhome, 172 Wn.2d at 663. As long as the

defendant’s waiver of his constitutional right to counsel is voluntary, knowing, and intelligent, a

defendant is free to exercise his or her constitutional right to self-representation even if

exercising that right is not in his or her best interests. See Madsen, 168 Wn.2d at 504-05.

Further, the fact that a defendant’s behavior impedes the orderly administration of justice

is not a sufficient basis for denying a defendant’s request to represent himself. Id. at 509.

“Courts must not sacrifice constitutional rights on the altar of efficiency.” Id. And the fact that

the defendant is “obnoxious” also is not a proper basis for denying self-representation. Id.

Finally, the court in Madsen emphasized that the presumption against waiver of the right

to counsel does not mean that the trial court can deny a request for self-representation without a

proper basis. 168 Wn.2d at 504-05.

10
No. 50266-6-II

The grounds that allow a court to deny a defendant the right to self-representation
are limited to a finding that the defendant’s request is equivocal, untimely,
involuntary, or made without a general understanding of the consequences. Such a
finding must be based on some identifiable fact.

Id.

We review for an abuse of discretion a trial court’s decision to grant or deny a request for

self-representation. Curry, 191 Wn.2d at 483. Abuse of discretion occurs where the trial court’s

decision is manifestly unreasonable, based on facts unsupported in the record, or based on an

application of the wrong legal standard. Id. at 483-84. We give deference to the trial court’s

decision because trial courts have more experience than appellate courts in considering self-

representation requests and “are better equipped to balance the competing considerations.” Id. at

485. In addition, “trial courts have the benefit of observing the behavior and characteristics of

the defendant, the inflections and language used to make the request, and the circumstances and

context in which it was made.” Id.

2. Thunder’s Requests to Represent Himself

Thunder argues that the trial court erred in denying his three formal requests to represent

himself. Because of Thunder’s persistent refusal to meaningfully answer the court’s questions

each time a colloquy on the record was attempted, the trial court could not ascertain whether his

waiver of the right to counsel was knowing and intelligent. Accordingly, we hold that the trial

court properly denied each of Thunder’s requests to represent himself.

a. October 2016 Request

Thunder argues that the trial court erred in denying his October 2016 request to represent

himself on the ground that “it would be detrimental for him to do so.” Thunder emphasizes that

the court did not enter a finding that his request was equivocal, untimely, or not voluntary,

knowing, or intelligent.

11
No. 50266-6-II

As Thunder correctly points out, the fact that self-representation would be detrimental to

the defendant is not a proper basis for denying a self-representation request. Madsen, 168 Wn.2d

at 505. “A court may not deny a motion for self-representation based on grounds that self-

representation would be detrimental to the defendant’s ability to present his case.” Id. The trial

court erred in suggesting otherwise. However, we can affirm on any grounds supported by the

record. State v. Jameison, 4 Wn. App. 2d 184, 203, 421 P.3d 463 (2018). We hold that the trial

court did not commit reversible error for two reasons.

First, Thunder’s failure to cooperate with the trial court’s attempted colloquy regarding

his self-representation request prevented the court from determining whether the request was

made with “a general understanding of the consequences.” Madsen, 168 Wn.2d at 505. The

court asked Thunder whether he had any legal training, what he knew about preparing a case for

trial, what he knew about criminal procedure and the evidence rules, and what he had studied to

determine his legal rights. Thunder refused to answer any of these questions, simply repeating

after each one that he wanted to represent himself. When Thunder did answer a few questions,

he demonstrated a lack of understanding regarding the case against him. When asked about the

charges, he stated, “There is no charges.” RP (Oct. 5, 2016) at 7. When asked about the State’s

burden of proof, he stated, “Burden of proof? What do you mean by burden of proof?” RP (Oct.

5, 2016) at 7.

If Thunder had answered that he had no legal knowledge or skills but wanted to represent

himself anyway, the court may not have been able to deny the request on that basis. Madsen,

168 Wn.2d at 509; see also Rhome, 172 Wn.2d at 663. But Thunder’s refusal to answer

prevented the court from assessing whether his request was knowing and intelligent. And the

12
No. 50266-6-II

few questions he did answer showed that he did not understand the case against him. Therefore,

we hold that the trial court had adequate grounds to deny Thunder’s request to represent himself.

Second, the trial court did not make a final ruling on the self-representation issue at the

October 2016 hearing. The court did initially state that it did not believe that it could allow

Thunder to represent himself. But at the conclusion of the hearing, the court stated that it would

“continue to attempt to inquire into [Thunder’s] understanding and ability to articulate the

requisite matters before granting him the right of self-representation in this circumstance.” RP

(Oct. 5, 2016) at 18-19. By doing so, the court both properly indulged the presumption against

finding a waiver of counsel and allowed Thunder a future opportunity to show that his desire to

represent himself was knowing, voluntary, and intelligent.

We hold that the trial court did not abuse its discretion in denying Thunder’s October

2016 request to represent himself.

b. November 2016 Request

Thunder argues that the court erred in denying his November 2016 request to represent

himself. He claims that the record shows that his request was knowing and intelligent.2 We

disagree.

During his colloquy with the court, Thunder refused to acknowledge that any charges

were filed against him, the nature of the charges, or the seriousness of the charges. Further,

Thunder failed to demonstrate an understanding of his maximum penalty if convicted, which the

court was required to address. See Howard, 1 Wn. App. 2d at 429. When the court asked

Thunder if he understood that if convicted he potentially could be sent to prison and incarcerated

2
Thunder also argues that the trial court erred in ruling that his November 2016 request was
untimely. However, the State does not rely on untimeliness to support the trial court’s denial of
the November 2016 self-representation request. Therefore, we do not address this argument.

13
No. 50266-6-II

for the rest of his life, Thunder simply repeatedly answered, “Slavery.” RP (Nov. 7, 2016) at 7-

8.

These exchanges support the trial court’s finding that Thunder did not understand the

consequences of waiving his right to counsel and that Thunder’s waiver was not made

intelligently. Thunder stubbornly refused to give the court enough information during the

colloquy to determine whether his waiver of counsel was knowing and intelligent. Because of

Thunder’s failure to answer questions, the court could not determine whether he understood that

he had been charged with four counts of second degree child rape or that he could face life in

prison if convicted.

Accordingly, we hold that the trial court did not abuse its discretion in denying Thunder’s

November 2016 request to represent himself.

c. February 2017 Request

Thunder argues that the court erred in denying his February 2017 request to represent

himself. He claims that he recognized the risks of self-representation and the seriousness of the

charges, but wanted to represent himself anyway.3 We disagree.

The trial court based its denial of Thunder’s motion in part on a concern that Thunder did

not have an adequate understanding of the law. A court may not deny self-representation

“merely because the defendant is unfamiliar with legal rules.” Madsen 168 Wn.2d at 509. In

making a determination about whether the defendant has properly waived his right to counsel,

the trial court may not consider the defendant’s skill and judgment. Rhome, 172 Wn.2d at 663.

3
Thunder also argues that the trial court erred in ruling that his February 2017 request was
untimely. Once again, the State does not rely on untimeliness to support the trial court’s denial
of the February 2017 self-representation request. Therefore, we do not address this argument.

14
No. 50266-6-II

Therefore, the trial court erred to the extent it based the denial of Thunder’s self-representation

request on Thunder’s lack of legal knowledge.

However, the trial court based its decision on two other grounds. First, the court

concluded that Thunder’s waiver of the right to counsel was not knowing and intelligent.

Although Thunder did answer some of the questions he refused to answer in earlier proceedings,

he still failed to demonstrate an understanding of important concepts. When the court asked if he

understood that he could be incarcerated for life if convicted, Thunder answered, “I comprehend

that it is a fee that you guys are trying to charge me with and trying to use the jail time to pay the

fee off when I have the right to pay the fee off and not do jail time.” RP (Feb. 28, 2017) at 35.

The court followed up by asking if Thunder understood what was at stake, he responded, “I

comprehend a fee.” RP (Feb. 28, 2017) at 35.

Thunder also failed to understand or accept the fact that the court planned to appoint

standby counsel if Thunder represented himself. See State v. McDonald, 143 Wn.2d 506, 511,

22 P.3d 791 (2001) (noting that the trial court has authority to appoint standby counsel even over

the defendant’s objection). When the court asked if appointing Thunder’s current defense

counsel as standby counsel would be a problem, Thunder answered, “Like I said, I’m using

myself as a special appearance underneath Rule E8 [sic] without granting jurisdiction. I don’t

grant you guys jurisdiction.” RP (Feb. 28, 2017) at 42.

Second, the trial court based its ruling on a concern about Thunder’s conduct in court and

his refusal to confirm that his conduct would not be an issue. A defendant’s disruptive behavior

in the courtroom can preclude the defendant from representing himself. State v. Hemenway, 122

Wn. App. 787, 792, 95 P.3d 408 (2004). A defendant cannot seek self-representation in order to

cause delay or obstruct the administration of justice, and a defendant can waive self-

15
No. 50266-6-II

representation by disruptive words or misconduct. Id.; see also State v. Thompson, 169 Wn.

App. 436, 468-69, 290 P.3d 996 (2012) (holding that the defendant’s purposefully disruptive

conduct supported the trial court’s denial of a self-representation request).

Thunder’s behavior during the entire case – before, during, and after trial – was

extremely volatile, disruptive, and obstructionist. Thunder’s outbursts and other disruptive

conduct was so severe that the court authorized correction officers to use a stun belt on him in

order to maintain order and decorum during trial.

The trial court attempted to obtain assurances from Thunder that he would conduct

himself appropriately, but Thunder refused to answer the court’s questions. Instead, he

responded with rambling answers that had nothing to do with his conduct.

Had Thunder represented himself at trial, he likely would have used the opportunity to

delay and frustrate the proceedings in the same manner he had delayed and frustrated his

arraignment, the collection of DNA evidence, and all three of his colloquies with the court on the

issue of self-representation. Thunder gave the court no indication that his behavior would

improve if allowed to represent himself.

As the Supreme Court emphasized in Curry, we must give deference to trial courts in

addressing self-representation requests in part because “trial courts have the benefit of observing

the behavior and characteristics of the defendant.” 191 Wn.2d at 485. The trial court here was

in the best position to determine whether Thunder’s waiver of his right to counsel was knowing

and intelligent, and we defer to the trial court’s conclusion that the waiver was not. Accordingly,

we hold that the trial court did not abuse its discretion by denying Thunder’s February 2016

request to represent himself.

16
No. 50266-6-II

B. TIME FOR TRIAL/SPEEDY TRIAL RIGHT

Thunder argues the 12-month delay between his arraignment and trial violated both CrR

3.3, the time for trial rule, and his constitutional right to a speedy trial. We disagree.

1. Time for Trial Under CrR 3.3

a. Legal Principles

CrR 3.3 governs a defendant’s right to be brought to trial in a timely manner. CrR

3.3(b)(1) and (c)(1) provide that a defendant who is detained in jail must be brought to trial

within 60 days of arraignment. The purpose of this rule is to protect a defendant’s constitutional

right to a speedy trial. A charge not brought to trial within the time limits of CrR 3.3 generally

must be dismissed with prejudice. CrR 3.3(h).

CrR 3.3(e) provides that certain time periods are excluded in computing the time for trial.

These excludable time periods include continuances the court grants under CrR 3.3(f), CrR

3.3(e)(3) and “[u]navoidable or unforeseen circumstances affecting the time for trial beyond the

control of the court or of the parties.” CrR 3.3(e)(8). Under CrR 3.3(f), the trial court may

continue the trial date on motion of the court or a party “when such continuance is required in the

administration of justice and the defendant will not be prejudiced in the presentation of his or her

defense.” CrR 3.3(f)(2). In granting a motion for a continuance, “[t]he court must state on the

record or in writing the reasons for the continuance.” CrR 3.3(f)(2). When any period is

excluded under CrR 3.3(e), the time for trial period extends to at least 30 days after the excluded

period ends. CrR 3.3(b)(5).

We review an alleged violation of the time for trial rule de novo. State v. Kenyon, 167

Wn.2d 130, 135, 216 P.3d 1024 (2009). However, we review the trial court’s decision to grant a

continuance for an abuse of discretion. See id. In addition, once a continuance is properly

17
No. 50266-6-II

granted the trial court has discretion in selecting the new trial date. See State v. Flinn, 154

Wn.2d 193, 200-01, 110 P.3d 748 (2005). A court abuses its discretion if its decision is

manifestly unreasonable, based on untenable grounds, or based on untenable reasons. Kenyon,

167 Wn.2d at 135.

b. Thunder’s Objections to Continuances

Thunder argues that the court abused its discretion by granting continuances over his

objections, even though his attorney on his behalf brought or joined many of the continuance

motions. We disagree.

Moving for a continuance “by or on behalf of any party waives that party’s objection to

the requested delay.” CrR 3.3(f)(2). Under the time for trial rule, defense counsel has authority

to make binding decisions to seek continuances. State v. Ollivier, 178 Wn.2d 813, 825, 312

P.3d 1 (2013).

A trial court does not necessarily abuse its discretion by granting defense counsel’s

request for more time to prepare for trial to ensure effective representation and a fair trial, even

over defendant’s objection. State v. Saunders, 153 Wn. App. 209, 217 n.8, 220 P.3d 1238

(2009). This rule applies where defense counsel’s requests are adequately supported by reasons

designed to avoid prejudice to defendant, even in the case of multiple requests for such

continuances. See Ollivier, 178 Wn.2d at 824-25.

Thunder analogizes his case to Saunders, where the appellate court dismissed a

conviction based on CrR 3.3 after the trial court granted multiple continuances requested by both

the State and defense counsel despite the defendant’s objections. 53 Wn. App. at 220-21.

However, in Saunders the continuances at issue were granted to facilitate ongoing plea

negotiations contrary to the defendant’s desire to go to trial. Id. And the appellate court

18
No. 50266-6-II

ultimately reversed not because the defendant objected to the continuances, but because the trial

court did not give an adequate explanation for granting them. Id. at 221.

Here, the continuances were not granted to permit plea negotiations. Instead, every

continuance was to allow for either substitution of counsel, ensuring Thunder’s competency to

stand trial, ongoing developments in the trial evidence, or short periods of court congestion.

Each continuance was granted with the goal of ensuring Thunder’s right to a fair trial. And the

trial court gave explanations for each continuance, either on the record or in a scheduling order.

Although Thunder made repeated objections, his attorney was authorized to request the

continuances in order to avoid prejudice to him.4

c. Reasonableness of the Continuances

Thunder argues that the trial court abused its discretion by granting continuances that

were manifestly unreasonable. He argues that although both the State and defense counsel

claimed they needed more time to prepare for trial, none of the continuances had a valid basis.

We find that each continuance was reasonable.

First, the trial court granted continuances in April and June 2016 to allow both parties

additional time to prepare for trial. In both instances, a new attorney had recently appeared in

the case: new defense counsel in April and a new prosecutor in July.

Second, the trial court granted a continuance in August because defense counsel had a

preplanned vacation and because the State was still waiting for DNA analysis results from WSP.

Under CrR 3.3(f), the trial court can consider scheduling conflicts in granting continuances.

4
Thunder also argues that defense counsel’s motions for continuance were inconsistent with his
ethical obligations under RPC 1.2(a), which requires counsel to “abide by a client’s decisions
concerning the objectives of representation.” But Thunder has not asserted an ineffective
assistance of counsel claim. Therefore, we need not address this argument.

19
No. 50266-6-II

Flinn, 154 Wn.2d at 200. And granting a short continuance to accommodate defense counsel’s

vacation plans is not abuse of discretion, in the absence of any showing that defendant was

prejudiced by delay. State v. Selam, 97 Wn. App. 140, 143, 982 P.2d 679 (1999). Here, trial

was only continued six days, during which time nothing occurred to prejudice Thunder’s case.

In fact, the State was still awaiting test results and likely would have secured a continuance on its

own even without the conflict with defense counsel’s vacation.

Third, the trial court granted a continuance in September to allow time for WSP to

complete the DNA analysis. A continuance necessary for the State to obtain DNA evidence does

not deprive a defendant charged with rape of his statutory right to speedy trial where no harm

was done to defendant’s case in the interim. See State v. Cauthron, 120 Wn.2d 879, 910, 846

P.2d 502 (1993). Here, nothing occurred during the additional time the State requested to wait

for the DNA results that harmed Thunder’s case. In fact, during this time, defense counsel

prepared and filed a motion to dismiss for speedy trial violations and late disclosure of DNA

evidence.

Fourth, the trial court granted a two-day continuance on November 7 to allow the State

time to respond to Thunder’s motion to dismiss based on speedy trial violations. When the

parties returned to court on November 9, the court denied this motion and granted defense

counsel a continuance to secure a DNA expert to review the State’s evidence. Thunder himself

seems to have condoned this request, because the record reflects that he verbally authorized his

attorney to find an expert.

Fifth, in December, the trial court granted the State a continuance in order to comply with

the defense’s request for supplemental discovery regarding the DNA analysis from WSP.

Allowing for discovery is a reasonable basis for a continuance. See Ollivier, 178 Wn.2d at 825.

20
No. 50266-6-II

Given the trial court’s broad discretion in addressing continuances and the absence of any

prejudice, we hold that the trial court did not abuse its discretion in granting the continuances in

Thunder’s case. The proper continuances extend the time for trial deadlines, meaning that no

time for trial violations occurred. Accordingly, we hold that the trial court did not violate the

time for trial requirements under CrR 3.3.

2. Constitutional Right to Speedy Trial

a. Legal Principles

Both the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution guarantee a criminal defendant the right to a speedy trial. State v.

Iniguez, 167 Wn.2d 273, 281-82, 217 P.3d 768 (2009). The analysis for speedy trial rights under

article I, section 22 is substantially the same as the analysis under the Sixth Amendment.

Ollivier, 178 Wn.2d at 826. We review questions of constitutional speedy trial rights de novo.

Iniguez, 167 Wn.2d at 280-81.

We use the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.

Ed. 2d 101 (1972) to determine whether the defendant’s constitutional right to speedy trial was

violated. Ollivier, 178 Wn.2d at 827. Among the nonexclusive factors to be considered are the

“ ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice

to the defendant.’ ” Id. (quoting Barker, 407 U.S. at 530). None of these factors alone is

sufficient or necessary to find a violation, but they assist in determining whether the right to a

speedy trial has been violated. Ollivier, 178 Wn.2d at 827.

In order to trigger the analysis under Barker, the defendant must make a threshold

showing that the time between the filing of charges and trial exceeded the ordinary interval for

prosecution and crossed into presumptively prejudicial delay. Id. (citing Doggett v. United

21
No. 50266-6-II

States, 505 U.S. 647, 651-52, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). The longer the delay

and the less complex the case, the more likely the court will find presumptive prejudice. See

Ollivier, 178 Wn.2d at 828. If this threshold showing is met, the court then considers “ ‘the

extent to which the delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim.’ ” Id. at 828 (quoting Doggett, 505 U.S. at 652). In addition, courts

generally have found presumptively prejudicial delay at the point where the delay approaches

one year. Ollivier, 178 Wn.2d at 828.

Here, there was a period of 357 days between Thunder’s arraignment and the start of his

trial. The charges against Thunder, four counts of second degree child rape, were relatively

straightforward. Because the length of the delay is at odds with the complexity of the case, the

delay is presumptively prejudicial and triggers the Barker analysis.

b. Length of Delay

The first Barker factor is length of delay. Ollivier, 178 Wn.2d at 827-28. Thunder

argues that the 12-month delay in his case weighs in his favor because his case was not complex

and because he objected to the continuances requested by both attorneys.

But we disagree that this was a case where the delay was highly disproportionate to the

complexity of the issues and both parties’ need for preparation. Early on, Thunder’s volatile and

uncooperative behavior necessitated a competency hearing to ensure he was able to stand trial.

The State did not learn until July 2016 that DNA evidence from the rape kit was available to

compare to Thunder’s DNA. The trial court concluded that the three months it took to test the

DNA was not unduly lengthy. Defense counsel then requested additional time to secure an

expert and subsequently filed a supplemental discovery request on the DNA evidence for which

22
No. 50266-6-II

the State required additional time to respond, delaying the trial from November 2016 to February

2017.

In Ollivier, the Supreme Court concluded that a 23-month delay weighed against the

defendant when the delay was sought by defense counsel and was reasonably necessary for

defense preparation. 178 Wn.2d at 828-31. Similarly, nearly all of the continuances here were

sought in order to ensure that defense counsel was fully prepared and to ensure that Thunder

received a fair trial after new issues came to light. We conclude that the length of delay was

reasonably necessary for defense counsel’s trial preparation and therefore weighs against

Thunder.

c. Reason for Delay

The second Barker factor is the reason for the delay. Ollivier, 178 Wn.2d at 827, 831.

Thunder argues that this factor in the Barker analysis weighs in his favor because he objected to

each continuance requested by his attorney and was ready to represent himself at all times.

However, even where continuances are sought over the defendant’s objection, delay caused by

the defendant’s counsel can be charged against the defendant under the Barker balancing test if

the continuances were sought in order to provide professional assistance in the defendant’s

interests. Ollivier, 178 Wn.2d at 834.

A number of reasons factored into the delays in Thunder’s case: new attorneys appearing

in the case on both sides, a competency hearing to ensure Thunder could stand trial, the wait for

DNA test results, occasional court congestion, the defense’s request for more time to find a DNA

expert, and the State’s request for additional time to provide the defense with supplemental

discovery. Of the seven continuances granted in this case, defense counsel brought or joined five

of them for the sake of being better prepared for trial. The two continuances defense counsel did

23
No. 50266-6-II

not join were both for purposes of allowing the State to respond to filings by the defense made

shortly before trial was scheduled.

Thunder also argues that the government negligently mismanaged DNA evidence,

disclosing the results of DNA testing so close to trial that he was forced to choose between a

waiver of his speedy trial right and his right to effective assistance of counsel. However,

Thunder’s defense counsel made this same argument in his November 2016 motion to dismiss,

which the trial court denied. The court found that the delay in completing DNA test results was

not attributable to the State’s negligent handling and that the results were acquired within a

normal time frame. Thunder does not challenge this finding on appeal, and unchallenged

findings of fact supported by substantial evidence are verities on appeal. State v. Chambers, 197

Wn. App. 96, 124, 387 P.3d 1108 (2016), review denied, 188 Wn.2d 1010 (2017).

Given the fact that most of the continuances in this case were granted to accommodate

the trial preparation of both parties, we conclude that the reason for delay factor should weigh

against Thunder.

d. Assertion of Right

The third Barker factor is the defendant’s assertion of his speedy trial right. Ollivier, 178

Wn.2d at 827, 837. Thunder argues that because he requested to represent himself and objected

to each continuance, this factor of the Barker analysis should weigh in his favor.

However, as stated above, continuances sought by defense counsel in the defendant’s best

interest can be charged against the defendant in a Barker analysis even if the defendant himself

objected to the continuances. Ollivier, 178 Wn.2d at 834, 838. Nothing in the record suggests

that defense counsel requested the continuances for any other reason than to be more adequately

prepared to present Thunder’s defense at trial. In Ollivier, the fact that defense counsel

24
No. 50266-6-II

requested many of the continuances and furthered the defendant’s right to counsel meant that this

factor did not weigh in favor of the defendant. Id. at 838-40.

We conclude that the assertion of rights factor does not weigh in Thunder’s favor.

e. Prejudice

The fourth Barker factor is whether the delay has prejudiced the defendant. Ollivier, 178

Wn.2d at 827, 840. Thunder argues that this factor weighs in his favor because the delays in his

case subjected him to heightened anxiety and concern while enduring lengthier pre-trial

incarceration caused by continuances requested by his unwanted counsel.

Prejudice to the defendant as a result of delay may consist of (1) oppressive pretrial

incarceration, (2) the defendant’s anxiety and concern, and (3) the possibility that dimming

memories and loss of exculpatory evidence will impair the defense. Ollivier, 178 Wn.2d at 840.

Prejudice is not always presumed. Id. A defendant ordinarily must establish actual rather than

theoretical prejudice. Id. “ ‘When the government prosecutes a case with reasonable diligence, a

defendant who cannot demonstrate how his defense was prejudiced with specificity will not

make out a speedy trial claim.’ ” Id. at 841 (quoting United States v. Howard, 218 F.3d 556,

564-65 (6th Cir. 2000)).

Here, Thunder has not pointed to any specific way in which his defense was prejudiced as

a result of any of the continuances granted in his case beyond a generalized claim that he was

exposed to heightened anxiety about his case. We conclude that this argument is not sufficient to

show prejudice to Thunder and that this factor weighs against him.

f. Balancing the Factors

We must balance the individual Barker factors. Ollivier, 178 Wn. 2d at 846. Taking all

the Barker factors together, we find that the balancing test weighs against Thunder.

25
No. 50266-6-II

Accordingly, we hold that Thunder’s speedy trial rights under the United States and Washington

Constitutions were not violated.

C. COMMUNITY CUSTODY CONDITIONS

Thunder argues, and the State concedes, that the trial court acted without authority in

imposing community custody conditions prohibiting the use of alcohol, requiring an alcohol and

chemical dependency evaluation, and prohibiting access to the Internet because they were not

crime-related. We agree. Thunder also argues that community custody conditions prohibiting

Thunder from entering sex-related businesses and possessing or viewing sexually explicit

material were not crime-related. We disagree.

1. Standard of Review

We review de novo the sentencing court’s statutory authority to impose a particular

community custody condition. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526 (2010).

However, we review a challenge that the condition is not crime-related for abuse of discretion.

State v. Nguyen, 191 Wn.2d 671, 683-84, 425 P.3d 847 (2018).

If we determine a sentencing court imposed an unauthorized condition on community

custody, we remedy the error by remanding to the sentencing court with instruction to strike the

unauthorized condition. State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008).

2. Crime-Related Community Custody Conditions

Thunder argues that the trial court imposed several community custody conditions that

were not crime related. RCW 9.94A.703(3)(f) provides the sentencing court discretionary

authority to order Thunder to “[c]omply with any crime-related prohibitions.” A “ ‘crime-related

26
No. 50266-6-II

prohibition’ means an order of a court prohibiting conduct that directly relates to the

circumstances of the crime for which the offender has been convicted.” RCW 9.94A.030(10).

“A court does not abuse its discretion if a ‘reasonable relationship’ between the crime of

conviction and the community custody condition exists. . . . The prohibited conduct need not be

identical to the crime of conviction, but there must be ‘some basis for the connection.’ ” Id. at

684 (quoting State v. Irwin, 191 Wn. App. 644, 657, 364 P.3d 830 (2015)).

a. Use of Alcohol

Condition 11 states, “Do not use or consume alcohol.” CP at 243. Where the underlying

crime is not alcohol related, an instruction not to “consume” alcohol is proper, but an instruction

not to “use” alcohol is not. State v. Norris, 1 Wn. App. 2d 87, 100, 404 P.3d 83 (2017), aff’d in

part, rev’d in part sub nom. State v. Nguyen, 191 Wn.2d 671, 425 P.3d 848 (2018). Here, there

is no evidence that alcohol played a role in Thunder’s offense. The State concedes that the

sentencing court did not have authority to order Thunder to refrain from the “use” of alcohol.

Therefore, the trial court erred by prohibiting the “use” of alcohol in condition 11.

b. Alcohol and Chemical Dependency Evaluation

Condition 22 requires Thunder to obtain an alcohol and chemical dependency evaluation

and to follow through with all recommendations of the evaluator. Conditions imposed as

“rehabilitative programs” such as alcohol and chemical dependency interventions “must be

supported by evidence in the record or found by the trial court to be related to the underlying

offense.” State v. Munoz-Rivera, 190 Wn. App. 870, 892, 361 P.3d 182 (2015). The State

concedes that nothing in the record supports the contention that drugs or alcohol contributed to

Thunder’s crimes. Therefore, the trial court erred in imposing condition 22.

27
No. 50266-6-II

c. Use of Internet

Condition 23 states, “No [I]nternet access or use, including email, without the prior

approval of the supervising [community corrections officer].” Condition 24 prohibits “use of a

computer, phone, or computer-related device with access to the Internet.” CP at 244.

Internet use is crime related if there is evidence that Internet use “contributed in any way

to the crime.” O’Cain, 144 Wn. App. at 775. Here, there was no evidence that the Internet use

contributed in any way to Thunder’s offense. The State concedes that conditions 23 and 24 are

not crime related. Therefore, the trial court erred in imposing conditions 23 and 24.

d. Sex-Related Businesses and Sexually Explicit Material

Community custody conditions 9 and 10 are special conditions that apply to sex offenses.

They provide as follows:

9. Do not enter sex-related businesses, including: x-rated movies, adult bookstores,
strip clubs, and any location where the primary source of business is related to
sexually explicit material. – Absent approval of treatment provider[.]

10. Do not possess, use, access or view any sexually explicit material as defined
by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material
depicting any person engaged in sexually explicit conduct as defined by RCW
9.68A.011(4) unless given prior approval by your sexual deviancy provider.

CP at 243.

Thunder argues that these conditions both must be stricken because they are not crime

related and RCW 9.94A.703 does not explicitly authorize them. However, the Supreme Court in

Nguyen held that a trial court did not abuse its discretion in imposing a condition prohibiting the

defendant from entering sex-related businesses when the crime of conviction was child

molestation. The court noted that there was no evidence the defendant in that case met her

victim in a sex-related business or that her presence in such a business played a role in her

crimes. Nguyen, 191 Wn.2d at 687. But the court stated that “this condition has more to do with

28
No. 50266-6-II

[the defendant’s] inability to control her urges and impulsivities than it does with the specific

facts of her crimes.” Id.

Similarly, the court in Nguyen held that a trial court did not abuse its discretion in

imposing a condition prohibiting the defendant from possessing or viewing sexually explicit

material when the crime of conviction was child rape and child molestation. Id. at 686. The

court stated that access to sexually explicit material was reasonably related to the defendant’s

crimes. Id. at 684. The court stated, “It is both logical and reasonable to conclude that a

convicted person who cannot suppress sexual urges should be prohibited from accessing

‘sexually explicit materials,’ the only purpose of which is to invoke sexual stimulation.” Id. at

686.

Based on the court’s analysis in Nguyen, we hold that the trial court did not abuse its

discretion in imposing community custody conditions 9 and 10.

D. IMPOSITION OF LFOS

Thunder argues in a supplemental brief that under recently enacted legislation, we should

strike the criminal filing fee and DNA collection fee the trial court imposed on him. The State

concedes that the criminal filing fee should be stricken but argues that Thunder has made no

showing that a prior DNA collection occurred. We agree that the criminal filing fee should be

stricken, but we affirm the imposition of the DNA collection fee.

The trial court imposed as mandatory LFOs a $200 criminal filing fee and a $100 DNA

collection fee. In 2018, the legislature amended (1) RCW 36.18.020(2)(h), which now prohibits

imposition of the criminal filing fee on an indigent defendant; and (2) RCW 43.43.7541, which

established that the DNA collection fee no longer is mandatory if the offender’s DNA previously

had been collected because of a prior conviction. The Supreme Court in State v. Ramirez held

29
No. 50266-6-II

that these amendments apply prospectively to cases pending on direct appeal. 191 Wn.2d 732,

749-50, 426 P.3d 714 (2018).

Here, the trial court found that Thunder was indigent at the time of sentencing.

Therefore, under the current version of RCW 36.18.020(2)(h) the criminal filing fee imposed

upon Thunder must be stricken.

Thunder argues that the DNA fee must also be stricken because his DNA was collected

before trial in this case. But this collection of Thunder’s DNA does not affect the DNA

collection fee imposed here because the amended RCW 43.43.7541 applies only if the offender’s

DNA has been collected as a result of a prior conviction.

Thunder also argues that his previous convictions would have resulted in the State’s

collection of his DNA in connection with those convictions. Thunder was convicted of a

misdemeanor in 2008 and again in 2010. Under RCW 43.43.7541, the 2010 misdemeanor

harassment conviction should have resulted in the State’s collection of Thunder’s DNA and the

imposition of the $100 collection fee. However, despite a search of WSP records, the State was

unable to find evidence of a prior felony conviction or that Thunder’s DNA was previously

collected, and Thunder presents no evidence that the DNA fee previously was imposed on him.

Therefore, Thunder has not shown that under the current version of RCW 43.43.7541 the

trial court erred in imposing the DNA collection fee.

E. SAG CLAIMS

In his SAG, Thunder identifies two claims: “Allocution Statement of Fraud” and “Notice

of Forgery.” SAG at 1. Also included is a “Certificate of Exemption on Indigenous Grounds

Denial of Corporate Status and Negative Areument [sic] /Affidavit.” SAG at 1. And the SAG

contains a heading stating, “Notice to the Agent is Notice to the Principle [sic] and Notice to the

30
No. 50266-6-II

Principle [sic] is Notice to the Agent.” SAG at 9. The SAG contains many of the same opinions,

assertions, and nontraditional legal theories that Thunder expressed in the form of outbursts

during proceedings on the record.

RAP 10.10(c) states that an “appellate court will not consider a defendant’s statement of

additional grounds for review if it does not inform the court of the nature and occurrence of

alleged errors.” Thunder’s claims essentially are unintelligible, and the SAG does not

meaningfully explain how the trial court erred. In addition, RAP 10.10(c) states that “the

appellate court is not obligated to search the record in support of” the defendant’s SAG claims.

Thunder’s SAG does not contain any specific references to the record.

Accordingly, we decline to consider Thunder’s SAG claims.

CONCLUSION

We affirm Thunder’s convictions, but we remand to the trial court to strike a portion of

community custody condition 11 and community custody conditions 22, 23, and 24 and to strike

the criminal filing fee.

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 in accordance with RCW

2.06.040, it is so ordered.

MAXA, C.J.
We concur:

WORSWICK, J.

MELNICK, J.

31