Filed
Washington State
Court of Appeals
Division Two
January 15, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49708-5-II
Respondent,
v.
WILLIAM HOWARD WITKOWSKI, Consolidated with
Appellant.
In the Matter of the Personal Restraint No. 50725-1-II
Petition of
WILLIAM HOWARD WITKOWSKI,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — William Witkowski appeals from his convictions of two counts of
unlawful possession of a controlled substance with intent to deliver and unlawful possession of a
stolen vehicle, asserting that (1) the trial court erred by failing to enter written findings of fact
and conclusions of law following CrR 3.5 and CrR 3.6 hearings, (2) his judgment and sentence
contains a scrivener’s error incorrectly stating he was tried on the State’s original information,
and (3) his judgment and sentence contains a scrivener’s error in that it fails to state the trial
court’s same criminal conduct finding.
In his statement of additional grounds for review (SAG), Witkowski asserts that (4)
evidence seized from his vehicle should have been suppressed based on a faulty search warrant
and because the State failed to produce a record of the telephonic affidavit in support of the
No. 49708-5-II;
Consolidated with No. 50725-1-II
warrant, (5) his defense counsel was ineffective at the suppression hearing and at trial, (6) the
trial court violated his state and federal constitutional rights by conducting the CrR 3.6 hearing
prior to the CrR 3.5 hearing, (7) the State violated his due process and equal protection rights by
failing to timely prepare proposed findings of fact and conclusions of law from the CrR 3.5 and
CrR 3.6 hearings, (8) his right to counsel was violated when he was unrepresented at
postjudgment proceedings, and (9) cumulative error denied his right to a fair trial. Additionally,
Witkowski has filed a personal restraint petition that we have consolidated with his direct appeal,
in which he raises several claims of ineffective assistance of counsel. He also appears to argue in
his petition that the warrantless search of the vehicle’s trunk and the contents therein exceeded
the scope of a permissible scope of a Terry1 stop or scope of a search pursuant to an arrest.
The State concedes that Witkowski’s judgment and sentence contains scrivener’s errors
by incorrectly stating that he was tried on the State’s original information and by failing to reflect
the trial court’s finding that his unlawful possession of a controlled substance with intent to
deliver convictions constituted the same criminal conduct. We accept the State’s concessions
and remand for a correction of Witkowski’s judgment and sentence consistent with this opinion.
In all other respects we affirm. We also deny Witkowski’s petition.
FACTS
On July 2, 2015, Pierce County Sheriff’s Deputies Martin Zurfluh and Lucas Baker
stopped a green Volkswagen Passat that Witkowski was driving. Zurfluh told Witkowski that he
had received information that the vehicle was possibly stolen. Witkowski handed Zurfluh a
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
2
No. 49708-5-II;
Consolidated with No. 50725-1-II
vehicle registration for a white 2000 Volkswagen Passat that listed the same license plate on the
vehicle and the vehicle identification number (VIN) on the dashboard. Witkowski told Zurfluh
that the vehicle had been repainted green.
Zurfluh saw that the VIN on the dashboard had edges on it, making it appear as if a
different VIN had been placed over the original VIN. Zurfluh checked the VIN located under
the hood of the car and saw that it did not match the VIN on Witkowski’s registration. Zurfluh
ran a check of the VIN located under the hood and saw that it matched the VIN for a reported
stolen vehicle. Zurfluh impounded the vehicle and had it towed to a secure facility.
On July 6, 2015, Zurfluh obtained a warrant to search the Passat. Zurfluh saw backpacks
in the trunk of the vehicle that contained $8,956 in cash, a substance later tested and confirmed
to be 13.3 grams of methamphetamines, a substance later tested and confirmed to be 66.3 grams
of heroin, a scale, drug paraphernalia, unused packaging material, and a notebook with names
and numbers written in it. On August 6, 2015, Witkowski called the Pierce County Sheriff’s
Department to inquire about how he could retrieve the car and cash seized by law enforcement.
In October 2015, Zurfluh searched Witkowski’s home during an unrelated investigation and
found the Passat’s original license plate in a closet.
On May 27, 2016, the State charged Witkowski by amended information with two counts
of unlawful possession of a controlled substance with an intent to deliver and unlawful
possession of a stolen vehicle. Before trial, Witkowski filed a motion to suppress “all evidence
and statements obtained as a result of an unlawful search and seizure.” Clerk’s Papers (CP) at 3.
The trial court held a CrR 3.6 hearing addressing Witkowski’s suppression motion on September
1, 2016.
3
No. 49708-5-II;
Consolidated with No. 50725-1-II
Zurfluh testified at the CrR 3.6 suppression hearing that several weeks prior to stopping
Witkowski, a citizen informant had told him that Witkowski was driving a stolen green Passat
with switched license plates and VINs. Zurfluh stated that he worked with the informant on
several different occasions for approximately a year and a half and that the informant had
previously provided accurate information. Zurfluh further stated that the informant personally
knew Witkowski and had been to his residence. Zurfluh said that he and Baker saw a green
Passat on July 2 and ran the license plate, which came back as registered to Witkowski. Zurfluh
stated that Witkowski was cooperative during the stop and had exited the vehicle after handing
over his registration; Zurfluh did not order Witkowski out of the vehicle or restrain him in any
manner. At some point during the stop, Witkowski opened the hood to the vehicle. Zurfluh
stated that he could not recall whether he had asked Witkowski to open the hood but that he
knew he did not order Witkowski to open it.
Zurfluh further testified at the suppression hearing that after receiving a search warrant,
he searched the trunk of the Passat and found a substance resembling heroin. After finding the
suspected heroin, Zurfluh applied for, and received, an addendum to the search warrant to
expand the scope of his search. After receiving the addendum, Zurfluh searched backpacks
located in the trunk of the vehicle and found $8,956 in cash, 13.3 grams of suspected
methamphetamines, 66.3 grams of suspected heroin, a scale, drug paraphernalia, unused
packaging material, and a notebook with names and numbers written in it. Witkowski did not
testify at the CrR 3.6 hearing.
The trial court denied Witkowski’s motion to suppress in an oral ruling, stating that
Zurfluh had a reasonable suspicion sufficient to justify the initial Terry stop of the vehicle based
4
No. 49708-5-II;
Consolidated with No. 50725-1-II
on information provided by the informant, Witkowski had voluntarily opened the hood of his car
revealing in plain sight the VIN therein, and the VIN inside the hood that was associated with a
reported stolen vehicle supplied Zurfluh with probable cause in support of the warrant to search
the contents of the vehicle.
The trial court also conducted a CrR 3.5 hearing to determine the admissibility of
Witkowski’s pre-Miranda2 statements during the stop, at which Zurfluh testified. The trial court
orally ruled that Witkowski’s statements were admissible at trial, finding that he was not in
custody up until the point he was placed in handcuffs and read his Miranda rights. At the
conclusion of the CrR 3.5 hearing, the trial court requested the State to draft proposed findings of
fact and conclusions of law, stating that the State should submit the proposed findings and
conclusions prior to jury deliberations, but the trial court did not enter findings of fact and
conclusions of law for either the CrR 3.5 or CrR 3.6 hearing at this time.
At trial, witnesses testified consistently with the facts stated above. Additionally, Yelena
Girzhu testified at trial that her husband’s car dealership had purchased a green 2004
Volkswagen Passat in 2015. Girzhu reported the vehicle as stolen after she had taken it to a
paint shop and it was never returned. In her 2015 written statement to police, Girzhu identified
the VIN of the stolen vehicle as the same VIN located in the hood of the vehicle Witkowski had
been driving.
The jury returned verdicts finding Witkowski guilty of two counts of unlawful possession
of a controlled substance with intent to deliver and unlawful possession of a stolen vehicle.
2
Witkowski did not make any statements after being advised of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5
No. 49708-5-II;
Consolidated with No. 50725-1-II
Witkowski appealed. After Witkowski filed his opening brief in this appeal, the trial court
entered written findings of fact and conclusions of law in support of its CrR 3.5 and CrR 3.6
rulings.
ANALYSIS
I. LATE ENTRY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
Witkowski first contends that we must remand to the trial court to enter written findings
of fact and conclusions of law as required under CrR 3.5 and CrR 3.6. Because the trial court
entered the required written findings and conclusions while this appeal was pending, and because
Witkowski does not claim any prejudice from the trial court’s delayed entry, we find no error.
A trial court is required to enter written findings of fact and conclusions of law following
a CrR 3.5 or CrR 3.6 hearing on the admissibility of evidence.3 But a trial court may submit
written findings and conclusions while an appeal is pending “if the defendant is not prejudiced
by the belated entry of findings.” State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293 (1996).
And we do not infer any prejudice from delay alone. State v. Head, 136 Wn.2d 619, 625, 964
P.2d 1187 (1998).
Here, the trial court entered its written findings of fact and conclusions of law after
Witkowski filed his opening brief. The trial court’s belated findings and conclusions are
consistent with its oral rulings following the CrR 3.5 and CrR 3.6 hearings, and Witkowski does
3
CrR 3.5(c) provides, “After the hearing, the court shall set forth in writing: (1) the undisputed
facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to
whether the statement is admissible and the reasons therefor.” CrR 3.6(b) provides, “If an
evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact
and conclusions of law.”
6
No. 49708-5-II;
Consolidated with No. 50725-1-II
not claim that the delayed entry caused him prejudice. See Cannon, 130 Wn.2d at 329-30
(finding no prejudice when late-filed findings and conclusions were consistent with the trial
court’s oral ruling). Accordingly, we find no error in the trial court’s late entry of written
findings and conclusions.
II. SCRIVENER’S ERRORS
Next, Witkowski asserts that his judgment and sentence contains scrivener’s errors in that
it (1) incorrectly states he was tried on the State’s original information, and (2) fails to reflect the
trial court’s same criminal conduct finding. The State concedes that Witkowski’s judgment and
sentence contains these scrivener’s errors. We accept the State’s concessions and remand to the
trial court for a correction of Witkowski’s judgment and sentence consistent with this opinion.
A scrivener’s error is a clerical mistake that, when amended, would correctly convey the
trial court’s intention as expressed in the record at trial. State v. Davis, 160 Wn. App. 471, 478,
248 P.3d 121 (2011), superseded by statute on other grounds as recognized in In re Pers.
Restraint of Combs, 176 Wn. App. 112, 119, 308 P.3d 763 (2013); see also Presidential Estates
Apartment Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100 (1996). The remedy for a
scrivener’s error is remand to the trial court for correction. State v. Makekau, 194 Wn. App. 407,
421, 378 P.3d 577 (2016); CrR 7.8(a).
Witkowski is correct that his judgment and sentence states he was tried on the State’s
original information when, in fact, he was tried on an amended information. We accept the
State’s concession.
Witkowski is also correct that his judgment and sentence fails to state the trial court’s
finding that his two convictions for unlawful possession of a controlled substance with intent
7
No. 49708-5-II;
Consolidated with No. 50725-1-II
deliver constituted the same criminal conduct. Here, the State asserted at sentencing that
Witkowski’s two unlawful possession of a controlled substance with intent to deliver convictions
constituted the same criminal conduct for purposes of calculating his offender score at seven for
those convictions. The trial court agreed with the State’s offender score analysis and imposed a
standard range sentence for Witkowski’s unlawful possession of a controlled substance with
intent to deliver convictions based on an offender score of seven. Thus, the trial court implicitly
found that Witkowski’s two convictions for unlawful possession of a controlled substance with
intent to deliver constituted the same criminal conduct for purposes of calculating his offender
score.4 The trial court, however, did not reflect its same criminal conduct finding in Witkowski’s
judgment and sentence.5 Accordingly, we accept the State’s concession and remand to the trial
court for a correction of Witkowski’s judgment and sentence to correctly reflect that he was tried
on the State’s amended information and to correct Witkowski’s judgment and sentence to reflect
4
RCW 9.94A.589(1)(a) provides in relevant part:
[W]henever a person is to be sentenced for two or more current offenses, the
sentence range for each current offense shall be determined by using all other
current and prior convictions as if they were prior convictions for the purpose of
the offender score: PROVIDED, That if the court enters a finding that some or all
of the current offenses encompass the same criminal conduct then those current
offenses shall be counted as one crime. . . . “Same criminal conduct,” as used in
this subsection, means two or more crimes that require the same criminal intent, are
committed at the same time and place, and involve the same victim. . . .
5
Witkowski’s judgment and sentence contains preprinted language that states, “Current offenses
encompassing the same criminal conduct and counting as one crime in determining the offender
score are (RCW 9.94A.589): . . . .” CP at 31. The trial court did not check the box next to this
preprinted language and did not complete the preprinted language to state that Witkowski’s two
current offenses for unlawful possession of a controlled substance with intent to deliver
encompassed the same criminal conduct.
8
No. 49708-5-II;
Consolidated with No. 50725-1-II
its finding that his two unlawful possession of a controlled substance with intent to deliver
convictions constituted the same criminal conduct.
III. SAG
A. Search Warrant
Witkowski appears to contend in his SAG that evidence seized from the Passat should
have been suppressed based on an invalid search warrant. Specifically, Witkowski contends for
the first time on appeal that the search warrant was invalid because the issuing court did not sign
the warrant until four days after it was executed. Witkowski also contends for the first time on
appeal that the trial court was required to suppress evidence seized from the vehicle because the
State failed to produce a record of the telephonic affidavit in support of the search warrant.
1. RAP 2.5
In general, we do not address claims of error raised for the first time on appeal. RAP
2.5(a). But RAP 2.5(a)(3) provides an exception to this general rule where an appellant can
show a manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671, 676, 260
P.3d 884 (2011). To show manifest error, Witkowski must demonstrate actual and identifiable
prejudice to his constitutional rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d
125 (2007). To demonstrate actual prejudice in this context, Witkowski must show that the trial
court would have excluded evidence in response to a suppression motion raising these claims and
that such exclusion would have had a practical or identifiable consequence at trial. State v.
McFarland, 127 Wn.2d 322, 333-34, 899 P.2d 1251 (1995); Gordon, 172 Wn.2d at 676. To
determine whether Witkowski has made this threshold showing, we necessarily must preview the
merits of his alleged error. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).
9
No. 49708-5-II;
Consolidated with No. 50725-1-II
2. Preview of Arguments
A preview of Witkowski’s claim that the search warrant was invalid because it was
executed prior to it being signed by the issuing court shows that it clearly lacks merit and, thus,
he fails to demonstrate manifest error warranting review of the claim for the first time on appeal
under RAP 2.5(a)(3). Witkowski does not identify any evidence in the record showing that
Deputy Zurfluh had executed a search warrant prior to it being signed by the issuing court.6 And
Zurfluh’s uncontroverted testimony at the CrR 3.6 hearing and trial was that he did not search
the vehicle until after obtaining a search warrant on July 6, 2015. Because Witkowski fails to
show manifest error, we decline to review this claim under RAP 2.5(a)(3).
A preview of Witkowski’s claim that the State failed to produce a record of a telephonic
affidavit in support of the search warrant also clearly lacks merit based on the limited record
before us. CrR 2.3(c) permits evidence in support of a search warrant to be in the form of sworn
testimony, but the rule states that “[a]ny sworn testimony must be recorded and made part of the
court record and shall be transcribed if requested by a party if there is a challenge to the validity
of the warrant or if ordered by the court.” The failure to record sworn testimony supporting
probable cause to issue a search warrant may violate a defendant’s rights under the Fourth
Amendment to the United States Constitution and article 1, section 7 of the Washington
Constitution. See State v. Myers, 117 Wn.2d 332, 344, 815 P.2d 761 (1991).
Here, the record before us does not reveal whether the court issuing the search warrant
had relied on sworn telephonic testimony or, instead, had relied on a written affidavit. Further,
6
Witkowski has not designated a copy of the search warrant at issue for the record on appeal.
10
No. 49708-5-II;
Consolidated with No. 50725-1-II
even assuming that the issuing court had relied on sworn telephonic testimony, there is nothing
in the record showing that it failed to record such testimony. Because the facts necessary to
address Witkowski’s claim are not in the record before us, he cannot show actual prejudice and,
thus, he fails to show manifest error. See McFarland, 127 Wn.2d at 333 (“If the facts necessary
to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and
the error is not manifest.”). Accordingly, we decline to review this claim under RAP 2.5(a)(3).
B. Ineffective Assistance of Counsel
Next, Witkowski contends in his SAG that his counsel was ineffective at the suppression
hearing and at trial. Specifically, Witkowski contends his counsel was ineffective for (1) failing
to request a Franks7 hearing, (2) failing to request a Casal8 hearing, (3) failing to interview
State’s witnesses, (4) failing to call witnesses to testify at trial, (5) failing to request a lesser-
included offense jury instruction, (6) failing to appeal the trial court’s denial of motion to hire an
investigator, and (7) requesting that he sign postjudgment findings of fact and conclusions of law
absent sufficient consultation.
We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To demonstrate that he received ineffective assistance of
counsel, Witkowski must show both (1) that defense counsel’s performance was deficient and (2)
that the deficient performance resulted in prejudice. State v. Reichenbach, 153 Wn.2d 126, 130,
101 P.3d 80 (2004). Performance is deficient if it falls below an objective standard of
reasonableness. Reichenbach, 153 Wn.2d at 130. Prejudice ensues if there is a reasonable
7
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
8
State v. Casal, 103 Wn.2d 812, 699 P.2d 1234 (1985).
11
No. 49708-5-II;
Consolidated with No. 50725-1-II
possibility that the outcome of the proceeding would have differed but for counsel’s deficient
performance. Reichenbach, 153 Wn.2d at 130. If Witkowski fails to make either showing, we
need not inquire further. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
Additionally, we strongly presume that counsel’s performance was reasonable and, to rebut this
presumption, Witkowski “bears the burden of establishing the absence of any ‘conceivable
legitimate tactic explaining counsel’s performance.’” State v. Grier, 171 Wn.2d 17, 42, 246 P.3d
1260 (2011) (quoting Reichenbach, 153 Wn.2d at 130).
1. Failure To Request Franks Hearing
Witkowski contends that his defense counsel was ineffective for failing to request a
Franks hearing. We disagree.
In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978),
the United States Supreme Court held that the Fourth Amendment requires a trial court to
conduct an evidentiary hearing upon the defendant’s request if the defendant makes a substantial
preliminary showing that an affiant deliberately or recklessly made material misstatements in a
search warrant affidavit. “Allegations of negligence or innocent mistake are insufficient.”
Franks, 438 U.S. at 171. Rather, to be entitled to a Franks hearing “[t]here must be allegations
of deliberate falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof.” Franks, 438 U.S. at 171.
Here, there were no allegations below that a search warrant affiant had made deliberate
misrepresentations that were material to the issuing court’s finding of probable cause, and
Witkowski does not claim any particular misrepresentations in his SAG. Instead, Witkowski
baldly asserts that the “affiant’s warrant affidavit was filled with blatant falsities and
12
No. 49708-5-II;
Consolidated with No. 50725-1-II
inaccuracies submitted willfully to secure search warrant.” SAG at 4. But “[t]o mandate an
evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported
by more than a mere desire to cross-examine.” Franks, 438 U.S. at 171. Because the record
does not support the preliminary showing required for a Franks hearing, Witkowski cannot show
that the trial court would have granted a Franks hearing if requested by counsel. Accordingly, he
cannot demonstrate prejudice, and his ineffective assistance of counsel claim on this ground
fails.
2. Failure To Request Casal Hearing
Next, Witkowski contends that his counsel was ineffective for failing to request a Casal
hearing. Again, we disagree.
In State v. Casal, 103 Wn.2d 812, 820, 699 P.2d 1234 (1985), our Supreme Court held
that when a defendant presents information that “casts a reasonable doubt on the veracity of
material representations made by [a search warrant] affiant” regarding statements allegedly made
by a confidential informant, a trial court should exercise its discretion to conduct an in camera
hearing at which the State must disclose the identity of a confidential informant to the trial
court.9 The purpose of this Casal hearing is for the trial court to determine whether the search
warrant affiant truthfully reported the facts stated by the confidential informant and, based on the
trial court’s determination of the affiant’s veracity, whether probable cause existed to issue the
search warrant. 103 Wn.2d at 822.
9
The defendant and defendant’s counsel are excluded from the hearing and the transcript of the
hearing must be sealed to protect the informant’s anonymity. Casal, 103 Wn.2d at 821.
13
No. 49708-5-II;
Consolidated with No. 50725-1-II
Here, Witkowski did not present any information below casting a reasonable doubt on a
search warrant affiant’s veracity, and presents no such information in his SAG. Instead, similar
to his argument regarding counsel’s decision not to request a Franks hearing, he merely asserts
that his counsel was required to request a Casal hearing “[i]n view of all the false statements
made by the affiant.” SAG at 12. This conclusory allegation that the affiant made false
statements is insufficient to cast a reasonable doubt on the affiant’s veracity and, thus,
Witkowski cannot show that the trial court would have granted a request for a Casal hearing.
Accordingly, Witkowski cannot demonstrate any prejudice resulting from defense counsel’s
decision to not request a Casal hearing, and his claim of ineffective assistance on this ground
fails.
3. Failure To Interview State’s Witnesses
Next, Witkowski contends that his defense counsel was ineffective for failing to
interview State’s witnesses before trial. We cannot address the merits of this claim because there
is nothing in the record before us showing that defense counsel failed to interview State’s
witnesses.
4. Failure To Call Witnesses
Next, Witkowski contends that his defense counsel was ineffective for failing to call
witnesses on his behalf. But Witkowski fails to identify any potential witnesses that his defense
counsel could have called and fails to explain how any potential witness testimony would have
aided in his defense. Accordingly, he demonstrates neither deficient performance nor resulting
prejudice in support of an ineffective assistance of counsel claim on this ground.
14
No. 49708-5-II;
Consolidated with No. 50725-1-II
5. Failure To Request Lesser Included Offense Jury Instruction
Next, Witkowski contends that defense counsel was ineffective for failing to request a
lesser included offense jury instruction. But Witkowski fails to identify what lesser included
offense jury instruction defense counsel should have requested. Accordingly, we do not address
this argument. RAP 10.10(c).
6. Failure To Appeal Trial Court’s Denial of Motion To Hire Investigator
Next, Witkowski contends that counsel was ineffective for failing to appeal the trial
court’s denial of a motion to hire an investigator. We cannot address this claim on the record
before us as it does not contain any trial court ruling regarding a request to hire an investigator.
7. Failure To Meet or Consult Prior to Postjudgment Proceeding
Next, Witkowski contends that the assigned counsel representing him at a postjudgment
proceeding was ineffective for advising him to sign the trial court’s belated CrR 3.5 and CrR 3.6
findings and conclusions without first meeting and consulting with him. The record belies
Witkowski’s contention. Witkowski’s counsel at the postjudgment proceeding requested a
continuance of time to review the transcripts from the CrR 3.5 and CrR 3.6 hearings, which
request the trial court denied. Neither Witkowski nor his assigned counsel signed the written
findings and conclusions from the CrR 3.5 and CrR 3.6 hearings. Therefore, Witkowski fails to
demonstrate that his counsel performed deficiently.
C. Timing of CrR 3.5 and CrR 3.6 Hearings
Next, Witkowski contends that the timing of his CrR 3.5 and CrR 3.6 hearings violated
his right against self-incrimination under the Fifth Amendment to the United States Constitution
and article I, section 9 of the Washington Constitution because Deputy Zurfluh testified at the
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No. 49708-5-II;
Consolidated with No. 50725-1-II
CrR 3.6 hearing about statements Witkowski had made before the trial court conducted the CrR
3.5 hearing to determine the admissibility of those statements. We disagree.
Assuming without deciding that a trial court errs by considering a defendant’s statements
when determining the admissibility of evidence at a CrR 3.6 hearing before determining the
admissibility of those statements at a CrR 3.5 hearing, any such error would be harmless beyond
a reasonable doubt here. The trial court ultimately conducted a CrR 3.5 hearing to determine the
admissibility of Witkowski’s pre-Miranda statements10 and concluded that the statements were
admissible because Witkowski was not in custody for purposes of Miranda when making the
statements. Because Witkowski does not challenge the trial court’s CrR 3.5 ruling on the
admissibility of his statements, any error in considering those statements at the CrR 3.6 hearing
is harmless beyond a reasonable doubt.
D. Failure To Timely Prepare Findings and Conclusions
Next, Witkowski contends that the State violated his constitutional rights by failing to
timely prepare proposed findings of fact and conclusions of law for the CrR 3.5 and 3.6 hearings
as ordered by the trial court. Although the trial court requested the State to prepare and submit
proposed findings and conclusion before the start of jury deliberations, it is unclear from the
record whether the delay in entering written findings and conclusions was due to the State’s
failure to comply with this request or for other reasons. Regardless, as addressed above, a trial
court may submit written findings and conclusions while an appeal is pending “if the defendant
10
The State did not seek to admit any post-Miranda statements made by Witkowski at the CrR
3.5 hearing and did not present any such statements at the CrR 3.6 hearing.
16
No. 49708-5-II;
Consolidated with No. 50725-1-II
is not prejudiced by the belated entry of findings,” and we do not infer any prejudice from the
delay alone. Cannon, 130 Wn.2d at 329; Head, 136 Wn.2d at 625.
Here, Witkowski does not identify any specific prejudice resulting from the State’s
alleged failure to timely prepare and submit proposed findings and conclusions or the trial
court’s belated entry of those findings and conclusions. Instead, Witkowski asserts that the
State’s failure to timely submit proposed findings and conclusion violated his rights under the
United States and Washington Constitutions to due process, equal protection, a fair trial, and to
the administration of justice without unnecessary delay. But Witkowski does not explain how
the State’s failure violated these rights. This assertion of constitutional violations without
explanation are insufficient to “inform the court of the nature and occurrence of alleged errors”
and, thus, we do further consider it. RAP 10.10(c); see also State v. Johnson, 119 Wn.2d 167,
171, 829 P.2d 1082 (1992) (“‘[N]aked castings into the constitutional sea are not sufficient to
command judicial consideration and discussion.’” (internal quotation marks omitted) (quoting In
re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986))).
E. Right to Counsel
Next, Witkowski contends that his right to counsel was violated when he was made to
appear at post-judgment proceedings absent legal representation. Because there is nothing in the
record showing that Witkowski was unrepresented at a critical stage of his criminal proceedings,
we do not further consider this contention.
F. Cumulative Error
Finally, Witkowski contends in his SAG that cumulative error denied his right to a fair
trial. We disagree. The cumulative error doctrine applies when several errors occurred at the
17
No. 49708-5-II;
Consolidated with No. 50725-1-II
trial level, none of which alone warrants reversal, but the combined errors effectively denied the
defendant a fair trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003). Apart
from the scrivener’s errors in Witkowski’s judgment and sentence, which are appropriately
remedied by remanding for corrections, he has not demonstrated any error occurred at trial.
Accordingly, the cumulative error doctrine does not apply, and we affirm Witkowski’s
convictions.
We affirm Witkowski’s convictions and remand for a correction of the scrivener’s errors
in his judgment and sentence consistent with this opinion.
IV. PERSONAL RESTRAINT PETITION
Witkowski raises several ineffective assistance of counsel claims in a personal restraint
petition that we have consolidated with his direct appeal. Specifically, Witkowski argues in his
petition that his defense counsel was ineffective for (1) failing to request a Franks hearing, (2)
failing to request a Casal hearing, (3) failing to propose certain jury instructions, (4) failing to
object to prosecutorial misconduct, (5) failing to object to the State’s discovery violations or
Brady11 violations, (6) failing to call witnesses to testify at trial, (7) failing to interview the
State’s witnesses before trial, (8) failing to hire an investigator or personally conduct an
investigation, (9) making false or misleading statements during closing argument, and (10)
failing to prepare a presentence investigation. Witkowski also appears to argue that Deputy
Zurfluh exceeded the scope of a Terry stop or search pursuant to an arrest when he conducted a
warrantless search of the vehicle’s trunk and of the contents in the trunk. We deny Witkowski’s
petition.
11
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
18
No. 49708-5-II;
Consolidated with No. 50725-1-II
To obtain relief through a personal restraint petition, Witkowski must show either
constitutional error that resulted in actual and substantial prejudice or nonconstitutional error that
resulted in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-
13, 792 P.2d 802 (1990). Additionally, Witkowski must support his claims of error with a
statement of facts on which his claim of unlawful restraint is based and the evidence available to
support his factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2);
In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1998); see also Cook, 114
Wn.2d at 813-14.
A. Failure To Request Franks Hearing
Witkowski first argues in his petition that his counsel was ineffective for failing to
request a Franks hearing. We disagree.
As we noted when addressing this same claim in Witkowski’s direct appeal, the record
does not show any allegations of the search warrant affiant making deliberate misrepresentations
that were material to the issuing court’s probable cause finding. And Witkowski does not
identify in his petition any evidence outside the direct appeal record showing that the search
warrant affiant had made such misrepresentations. Because “allegations of deliberate falsehood
or of reckless disregard for the truth . . . accompanied by an offer of proof” are required to be
entitled to a Franks hearing, and because Witkowski does not identify any evidence showing that
the search warrant affiant had made such falsehoods, he cannot show that the trial court would
have granted a request for a Franks hearing. 438 U.S. at 171. Accordingly, he fails to
demonstrate any prejudice resulting from defense counsel’s decision to not request a Franks
hearing, and his claim of ineffective assistance of counsel on this ground fails.
19
No. 49708-5-II;
Consolidated with No. 50725-1-II
B. Failure To Request a Casal Hearing
Next, Witkowski argues in his petition that his counsel was ineffective for failing to
request a Casal hearing. Again, we disagree.
As we noted when addressing this same claim in Witkowski’s direct appeal, the record
does not show that Witkowski had any information casting a reasonable doubt on material
representations made by a search warrant affiant regarding statements attributed to a confidential
informant. And Witkowski does not identify in his petition any evidence outside the direct
appeal record that casts a reasonable doubt on the affiant’s representations. Because information
casting a reasonable doubt on the affiant’s representations is a necessary prerequisite to a Casal
hearing, Witkowski cannot show that the trial court would have granted a request for a Casal
hearing. 103 Wn.2d at 820. Accordingly, he fails to demonstrate any prejudice resulting from
defense counsel’s decision to not request a Casal hearing, and his claim of ineffective assistance
of counsel on this ground fails.
C. Failure To Request Jury Instructions
Next, Witkowski argues in his petition that his counsel was ineffective for failing to
request a lesser-included offense jury instruction and a jury instruction regarding testimony of an
accomplice. Again, we disagree.
Witkowski does not support his claim regarding a lesser-included offense jury instruction
with a statement of facts and the evidence available to support his factual allegations as required
under RAP 16.7(a)(2). Instead, he merely concludes that his “State and Federal Constitutional
rights to effective counsel were violated by his attorney’s failure to ask for jury instructions for
any lesser included offenses,” without identifying any particular lesser-included offense jury
20
No. 49708-5-II;
Consolidated with No. 50725-1-II
instruction to which he would have been entitled had defense counsel requested it. Petition at 8.
Because Witkowski’s claim on this issue fails to comply with RAP 16.7(a)(2), we do not further
consider it.
Witkowski similarly fails to support his claim regarding an accomplice testimony jury
instruction with a statement of facts and the evidence available to support his factual allegations
as required under RAP 16.7(a)(2). Moreover, this claim clearly lacks merit as the State did not
present any testimony from an alleged accomplice to Witkowski’s crimes at trial.
D. Failure To Object to Prosecutorial Misconduct
Next, Witkowski argues in his petition that his counsel was ineffective for failing to
object to numerous instances of prosecutorial misconduct. But Witkowski does not identify any
particular instance of prosecutorial misconduct to which his defense counsel should have
objected. Accordingly, his claim on this issue fails to comply with RAP 16.7(a)(2), and we do
not further address it.
E. Failure To Object to Discovery Violations or Brady Violations.
Next, Witkowski argues in his petition that his counsel was ineffective for failing to
object to the State’s discovery violations or violations under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But Witkowski does identify any evidence supporting his
factual allegation that the State committed a discovery violation or a Brady violation.
Accordingly, we do not further consider this claim. RAP 16.7(a)(2).
F. Remaining Ineffective Assistance of Counsel Claims
Witkowski fails to support any of his remaining ineffective assistance of counsel claims
with a statement of facts and the evidence available to support his factual allegations as required
21
No. 49708-5-II;
Consolidated with No. 50725-1-II
under RAP 16.7(a)(2). Instead, he merely concludes without explanation that his counsel was
ineffective for “failing to call any defense proposed witnesses, failing to interview State
witness[es] pre-trial, failing to hire investigator, or personal[ly conduct] pre-trial investigations
himself,” making “false/misleading statement confirming State’s assertion of guilt in counsel’s
closing statement/remark,” and “failing to prepare pre-sentence investigation/recommend DOSA
review.” Petition at 2. These conclusory allegations are insufficient to meet the requirements of
RAP 16.7(a)(2) and, thus, we do not further consider Witkowski’s remaining claims. Williams,
111 Wn.2d at 365; Cook, 114 Wn.2d at 813-14.
G. Vehicle Search
Finally, although difficult to discern, it appears Witkowski argues in his petition that
Deputy Zurfluh exceeded the scope of a permissible Terry stop or exceeded the scope of a search
incident to arrest by conducting a warrantless search of the locked trunk of the vehicle and of the
contents therein.12 This claim lacks merit as the unchallenged findings from the CrR 3.6 hearing
show that Zurfluh did not search the vehicle until after he had obtained a warrant. Accordingly,
we deny Witkowski’s petition.
12
In apparent response to this argument, the State asserts that Witkowski’s claim must fail in
part because he failed to provide this court with a copy of the search warrant issued in this case,
which was admitted as exhibit 2 at the CrR 3.6 suppression hearing. We again remind the State
that it is not the petitioner’s burden to provide the record related to claims of error. RAP
16.7(a)(2) requires the petitioner to provide a statement of facts upon which his or her claim is
based and to indicate what evidence is available to support those claims. RAP 16.7 does not
require the petitioner to provide records from court proceedings. Instead, RAP 16.9(a) places the
burden of providing a record from relevant proceedings on the State, stating in part, “If an
allegation in the petition can be answered by reference to a record of another proceeding, the
response should so indicate and include a copy of those parts of the record that are relevant.”
(Emphasis added.) Because we may resolve Witkowski’s claim without reference to the contents
of the search warrant issued in this case, the State’s continued misconception of its burden under
RAP 16.7 is of no consequence in this present action.
22
No. 49708-5-II;
Consolidated with No. 50725-1-II
In summary, we affirm Witkowski’s convictions, remand for a correction of the
scrivener’s errors in his judgment and sentence consistent with this opinion, and deny his
petition.
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.
Worswick, J.
We concur:
Maxa, C.J.
Melnick, J.
23
State Of Washington v. William Witkowski
Combined Opinion