IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 81042-1-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
LUCAS RYAN EWING, )
)
Respondent. )
)
HAZELRIGG, J. — Lucas R. Ewing was charged with six domestic violence
crimes, three of which were felonies with domestic violence aggravators. Ewing
was held on bail pending trial and sentenced to prison after conviction on two
domestic violence felonies, one with a deadly weapon enhancement and both with
findings of the statutory domestic violence aggravator. Ewing seeks review of the
court’s rulings on pretrial conditions of release, specifically raising constitutional
challenges to the bail determination. In a Statement of Additional Grounds, he
claims government misconduct and ineffective assistance of counsel deprived him
of a fair trial. We find Ewing’s bail argument is moot and that recent published
opinions sufficiently address any concerns as to the continuing and substantial
public interest in the issue. We further find that Ewing has failed to satisfy the tests
for demonstrating government misconduct and ineffective assistance of counsel.
We affirm.
Citation and pinpoint citations are based on the Westlaw online version of the cited material.
No. 81042-1-I/2
FACTS
Lucas Ewing was charged with assault in the second degree with a deadly
weapon enhancement, two counts of assault in the fourth degree, malicious
mischief in the third degree, and two counts felony harassment, based on events
that occurred on November 12, 2017. All six counts were designated as domestic
violence crimes and the State further alleged the domestic violence pattern
aggravator as to the assault in the second degree with a deadly weapon and felony
harassment charges. The State issued a summons when it filed charges in
December 2017 and sent the information to three different addresses in Roy and
Spanaway, but did not send it to the Puyallup address Ewing had provided at the
time of his arrest.1
Ewing failed to appear for arraignment and the court authorized issuance of
a bench warrant on January 4, 2018. Ewing appeared in custody on March 8,
2018 and was arraigned on the charges. The State requested a requirement that
Ewing post $200,000 bail as a condition of release pending trial, citing concerns of
flight risk, community safety, and risk to the victim. Counsel appointed for the
preliminary hearing offered $60,000 as a bail amount Ewing would more likely be
able to post. The court set bail at $125,000 and noted as bases for its
determination ten prior criminal cases wherein bench warrants had issued, assault
charges dating back to 1994, prior convictions for domestic violence crimes,
including one for assault in the second degree, and that the current allegations
occurred in the presence of two children.
1
However, one of the Roy addresses is the location where the underlying incident occurred
and where Ewing was ultimately arrested on the bench warrant issued in this case.
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Ewing did not post bail and remained incarcerated during the pendency of
his case. He objected to each continuance of his trial date. At a hearing on the
third motion to continue, Ewing moved for dismissal of his charges or, in the
alternative, reconsideration of the prior bail determination. He requested a
reduction to $25,000. After hearing argument as to Ewing’s employment and
residence, criminal history, prior warrant history, and the allegations in the case,
the court declined to reduce the bail amount.
Trial commenced on June 13, 2018; the 97th day after Ewing’s arraignment.
Ewing was convicted of assault in the second degree with a deadly weapon
enhancement and felony harassment, with findings of domestic violence as to
each. The jury found the statutory domestic violence aggravator applied to both
offenses. Ewing was sentenced to a total of 132 months in prison, including time
for the deadly weapon enhancement. He timely appealed.
ANALYSIS
I. Bail Determinations and Mootness
Ewing focuses this appeal on the court’s determinations as to pretrial
detention, specifically the imposition of a requirement that he post $125,000 bail
as a condition of release from custody. However, subsequent to the court’s ruling
on bail, Ewing proceeded to trial and was convicted of two felony domestic violence
crimes. As such, we must first determine whether this issue is moot.
Generally, we do not decide issues that are moot. State v. Hunley, 175
Wn.2d 901, 907, 287 P.3d 584 (2012). “An issue is moot if we can no longer
provide effective relief.” State v. Ingram, 9 Wn. App.2d 482, 490, 447 P.3d 192
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(2019). “Ordinarily, this court will not consider a question that is purely academic.”
State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995). Here, the relief Ewing
seeks is for this court to declare the ruling on his pretrial bail unconstitutional based
on due process and equal protection and remand for dismissal. Ewing has since
been convicted and is presumably now serving his 132 month prison sentence,
less any credit for time held in custody awaiting trial per the terms of his judgment
and sentence. As such, we can no longer grant effective relief regarding his pretrial
detention. See Ingram, 9 Wn. App.2d at 497.
Ewing’s challenges to the imposition of bail are moot.2 The law is clear that
we may “decide a moot appeal ‘if it involves matters of continuing and substantial
public interest.’” State v. Huckins, 5 Wn. App.2d. 457, 463, 426 P.3d 797 (2018)
(quoting Hunley, 175 Wn.2d at 907). In determining if a question qualifies as a
matter of continuing and substantial interest we consider, “(1) the public or private
nature of the issue, (2) whether guidance for public officers on the issue is
desirable, and (3) the likelihood that the issue will recur.” Ingram, 9 Wn. App.2d at
490 (citing State v. Cruz, 189 Wn.2d 588, 598, 404 P.3d 70 (2017)). We also
consider the likelihood the issue will continually escape review due to the factual
basis or issue being short-lived. Id.
Here, the issues raised by Ewing regarding pretrial detention are of a public
nature since monetary pretrial conditions are ordered daily within our jails and
courts across the state. By this same reasoning, they are likely to reoccur. Ewing
2 Ewing all but concedes this point by preemptively addressing mootness in his opening
brief. However, he did not submit a reply brief and thereby fails to respond to the State’s arguments
on mootness.
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suggests that this court should take up the issue “to provide guidance as there are
a limited number of cases on the issue but appears to be a lack of understanding
and application of the rule.” He then cites to this court’s recent published opinions
in State v. Ingram and State v. Huckins as support for his argument that bail
challenges meet the standards for deciding a moot case. 9 Wn. App.2d 48; 5 Wn.
App.2d 457. Ewing acknowledges that no relief was granted as to the bail issue
in those cases, but argues relief could be granted here.
Ewing seeks reversal and dismissal as relief for the asserted violation of
CrR 3.2 as “an incentive for the state or lower courts to comply with the clear
mandates of [the rule].” However, Ingram and Huckins, both of which were
released after the court’s bail decisions in Ewing’s case, provide the very guidance
he argues was previously lacking. Ewing does not raise any issues that were not
already addressed in Ingram and Huckins, which are controlling authority. As
such, we decline to reach the merits of his bail challenge.
II. Statement of Additional Grounds
Ewing raises a number of other challenges in his Statement of Additional
Grounds (SAG).3 We interpret them as two distinct allegations of government
misconduct, various bases for a claim of ineffective assistance of counsel and
cumulative error.
3Ewing’s SAG includes a notation seeking a 30 day extension of time to complete his SAG.
That request is denied.
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A. Governmental Misconduct
Ewing argues that we should remand his case to the trial court to conduct
a hearing into governmental misconduct. We disagree. Under CrR 8.3, Ewing
could have brought a motion to raise his governmental misconduct claim. The trial
court has the authority to conduct an evidentiary hearing on the issue if it is deemed
necessary. See CrR 8.3. The alleged misconduct Ewing identifies is based on his
wife’s testimony that she was coerced into giving a statement to law enforcement
by police holding her daughter hostage. The citation to the record provided for this
claim is his wife’s trial testimony in which she explains why she gave her original
statement to the police. However, Ewing provides no authority supporting his
argument that the mere assertion of coercion would require a hearing on
governmental misconduct. While his wife disclaimed the truthfulness of the original
statement to police, it was signed under penalty of perjury and she later testified
under oath that she must have made it, based on identifying it as her own
handwriting. The record reflects that the jury heard his wife’s testimony and was
provided her original statement to police. As finders of fact, the jury was able to
assess the credibility of the statements and her claims of coercion and do not
appear to have found her claim of coercion credible. We find no error as to this
claim.
The second basis for Ewing’s claims of government misconduct is his
assertion that a juror observed him in shackles while he being transported by jail
deputies in the courthouse during his trial. We recognize this could be a basis for
which to grant relief. See State v. Finch, 137 Wn.2d 792, 842-51, 975 P.2d 967
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(1999). However, there is no evidence in the record before us by which to evaluate
Ewing’s claim. We decline to review this issue based on speculation.
B. Ineffective Assistance of Counsel
Ewing next argues his appointed counsel was ineffective for a number of
reasons. To prevail on his claims for ineffective assistance of counsel, Ewing must
establish his counsel was deficient that the deficient performance resulted in
prejudice. Strickland v. Wash., 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Deficient performance is based on an objective standard of
reasonableness in the context of all the circumstances. State v. McFarland, 127
Wn.2d. 322, 334-35, 899 P.2d 1251 (1995). We engage in our review with a strong
presumption that counsel was effective. Id. at 35.
Ewing first argues that counsel was ineffective for failing to request a
hearing on governmental misconduct, based on the assertions relating to his wife’s
original statement to police described in the previous section. Again, the record
does not demonstrate a basis for such a hearing, nor does Ewing cite any authority
to suggest that such a hearing would be appropriate on these facts or that
counsel’s failure to seek one is deficient performance. As such, this claim fails.
Ewing’s second basis for ineffective assistance of counsel is his attorney’s
decision not to pursue a defense of others theory at trial. Ewing states that this
defense was supported by his claim that he was trying to prevent his wife from
driving away with their son while she was intoxicated. However, case law is well
settled that decisions as to trial strategy are properly within the discretion of
counsel. See State v. Thompson, 169 Wn. App. 436, 459-60, 290 P.3d 996 (2012);
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see also In re Pers. Restraint of Stenson, 142 Wn.2d 710, 733-36, 16 P.3d 1
(2001). Disagreement about trial strategy does not constitute deficient
performance by counsel.
Ewing next argues counsel was ineffective based on failing to elicit
testimony that his wife was intoxicated and trying to drive away with their son
during the assault. Again, trial strategy, which includes the nature of questions
posed to witnesses, properly rests with trial counsel. See Thompson, 169 Wn. App.
at 459-60; see also Stenson, 142 Wn.2d at 733-36. Further, the record
demonstrates there was testimony by Ewing’s wife that she was intoxicated during
the altercation and it appears counsel did try to elicit testimony on cross
examination that she had been trying to drive. Ewing does not demonstrate
deficient performance as to this claim.
Ewing’s final basis for his claim of ineffective assistance of counsel is his
attorney’s failure to move for a mistrial after a juror allegedly saw Ewing in shackles
during transport within the courthouse. While Ewing cites legal authority as to
ineffective assistance of counsel generally, he provides no citations to the record
to support his claim that a juror observed him in restraints. As such, we lack a
sufficient record to review this issue.
C. Cumulative Error
Finally, Ewing asks this court to review the cumulative effect of the errors
raised in his brief and SAG. However, as we find no error in the various issues
raised on appeal, we decline to engage in cumulative error analysis.
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No. 81042-1-I/9
Affirmed.
WE CONCUR:
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