Shadan Kapri – Biography

Shadan Kapri was a U.S. Fulbright Scholar on Human Trafficking and a Senior Deputy Prosecuting Attorney in the Criminal and Family Law Divisions.  She has been recognized for demonstrating leadership, dedication, and excellence in the law by becoming a Cambridge Who’s Who Professional of the Year Award Recipient (2011).  She is also a recipient of the Daily Point of Light Award (2007).

The Daily Point of Light was established by a former U.S. President to honor individuals and groups creating meaningful change in communities across America through public service.  Ms. Kapri is an attorney with a diverse range of experiences in the U.S. criminal justice system.  She prosecuted cases from domestic violence to drinking and driving, child abuse and neglect, assault with a deadly weapon, child rape, kidnapping, and first-degree rape.  This site includes a small selection of those cases. (Public Judicial Opinions)

She also worked in the Family Law Division of the Prosecuting Attorney’s Office.  In the trial court level, she advocated on behalf of children in paternity establishment, contempt-of-court, and modifications of court orders in the best interest of the child.

She began her legal career at the Washington State Court of Appeals (Division III).  As a Senior Research Attorney for the Chief Judge, she assisted in drafting over a hundred judicial opinions.  Theses included criminal and civil legal matters ranging from first-degree murder to medical malpractice and negligent issues.  Her role was to analyze various legal issues and recommend to the panel of judges whether to affirm or reverse the rulings of the lower trial courts.

After graduating from law school, she was accepted into the U.S. Fulbright Program.  She completed a Fulbright Fellowship in Canada by analyzing the U.S. – Canadian role in combating human trafficking.  During the fellowship, she gave speeches, wrote published articles, and worked with law enforcement officials and attorneys to understand the unique challenges facing victims of trafficking and how the current laws were undermining their efforts.

Her analyses and conclusions were published in the Canadian Foreign Policy Journal: Special Fulbright Edition (2006) and later used in support of new legislation to protect victims of trafficking.  Specifically, Canada’s Bill S-223, Victims of Human Trafficking Protection Act; Bill S-218, An Act to Amend the Immigration and Refugee Protection Act (in order to provide assistance and protection to victims of human trafficking); and Bill C-49, An Act to Amend the Criminal Code (Trafficking in Persons).

She became interested in human trafficking after volunteering for the United Nations in Geneva, Switzerland and Washington, D.C.  In Geneva, she was one of the editors and contributors for the publication Propose New Ways and Means to Strengthen the United Nation’s Capability for Collective Action.  This was distributed to every Member Nation and the United Nations High Commissioner for Human Rights.  She was also part of a group that received the United Nations Online Team of the Year Award (2007) for their work with the United Nations Development Program in Brasilia, Brazil.

Cases

Jury Finds Cosby Guilty of Killing Wife

STATESMAN-EXAMINER NEWSPAPER

BY JAMIE HENNEMAN, S-E STAFF REPORTER

April 3, 2012

Last week a Stevens County Jury found Marcus resident Craig Cosby guilty of premeditated murder for the shooting death of his wife, Susan, in 2009.  The jury deliberated for two hours before handing over the guilty verdict to Judge Alan Nielsen.

Cosby, 70, was tried for first-degree murder after shooting Susan Cosby, 53, at their home in Marcus on October 3.  Cosby, who was seeking an acquittal for the crime, said he acted in self-defense and only shot Susan Cosby when he thought he saw her reaching for a gun.

Cosby also claimed he “lost all orientation” when he shot and killed Susan ten times with a .40 caliber handgun.  Evidence presented at trial showed that Susan Cosby was planning on leave her husband and was days away from closing on a new home.

The State, represented by Stevens County Prosecutor Tim Rasmussen and Senior Deputy Prosecutor Shadan Kapri, showed over 130 exhibits during the trial, including new luggage Susan Cosby had bought and the pending real estate agreement.

Cosby faces a minimum of 20 to 27 years in prison for the first degree murder conviction, as well as additional time because the crime qualifies as domestic violence committed with a handgun.  Cosby is planning to appeal the ruling.

Senior Deputy Prosecutor Shadan Kapri said she hopes the jury’s decision can bring peace to Susan’s family.  “It was an emotional trial on all levels,” said Kapri.  “Susan’s family was there every day.  Now that the jury has made it’s decision we hope the family can have some closure and start the long process of healing.  Susan will always be remembered.  She was a loving, mother, daughter, friend, sister, and wife.  She was one of a kind.”

______________________________________________________________________________________________

Neighbor Shooting Sentence Upheld

STATESMAN-EXAMINER NEWSPAPER

BY JAMIE HENNEMAN, S-E STAFF REPORTER

February 15, 2012

The Washington State Appeals court recently upheld a 10-year prison sentence for a Colville area man who shot his neighbor over a dispute about a property easement.

John Eberly Jr. was found guilty for first degree burglary and second degree assault in 2010 after he showed up intoxicated at neighbor Muriel Vermillion’s home and shot her through her living room window.  Despite being shot in the hip, court documents note Vermillion was able to fend off Eberly after he broke down the door and fell into the living room.

Vermillion grabbed a hatchet and hit Eberly in the foot with the blunt end.  According to court records, she ran upstairs to call for help, but the phone was dead.  Eberly eventually left and Vermillion drove to a neighbor’s house to call the police, according to court documents.

The altercation was promoted by a dispute Vermillion and Eberly had over a common easement located at 3891 Cedar Creek Road.  Court record indicate the two had gotten into a heated argument earlier in the day regarding a gate Eberly constructed on the easement road.

Eberly appealed his sentence on the premise the court miscalculated the offender score, counting his actions as two separate crimes that were both conducted with a firearm.  The Division III Court of Appeals upheld the sentence, finding the trial court sentence from Judge Baker in Stevens County Superior Court to be correct.

The State was represented by Stevens County Senior Deputy Prosecutor Shadan Kapri in the decision upheld by the appeals court on January 26.  Eberly was represented by Bellingham lawyer Tanesha La Trelle Canzater.

______________________________________________________________________________________________

Prosecutor’s Desk

THE OUTPOST NEWSPAPER

BY MR. TIM RASMUSSEN, Stevens County Prosecuting Attorney

July 6, 2011

One case is finally finished — maybe.

On Wednesday, May 2, 2007, Mr. Preston Carbary was convicted by a jury of three felony counts of Rape by a Health Care Worker. At the time, he was counseling the victim and used his position to force the victim to have sexual relations with him. After some delay, on June 26, 2007, Judge Baker said the only just sentence was at the high end of the range and sentenced him to 194 months in the penitentiary. The state was represented by David Turplesmith and the defendant by Tim Trageser of Spokane.

After his conviction Mr. Carbary petitioned the Court of Appeals for a new trial. He appealed on the basis that he claimed the judge had made a mistake by allowing the jury to hear some of the evidence. One piece of that evidence was that Mr. Carbary had done a similar thing to another person prior to this victim. Another piece was that the physician had been allowed to say to the jury that the victim had been raped. The defense claimed that he should get a new trial without that evidence being heard by the jury. In the summer of 2008, the Court of Appeals ruled he had received a fair trial and denied his appeal.

He then petitioned the Supreme Court to review the Court of Appeals decision. They declined to review it in 2009.

Then he filed a Personal Restraint Petition. He argued that the rape charges were based upon perjured statements by the victim. He claimed that the victim’s boyfriend was always present at the victim’s home during the counseling sessions; therefore he could not have raped her. He also argued that there was insufficient evidence for the rapes and that he lost the case because of ineffective assistance of his attorney, Mr. Tregaser.

Senior Deputy Prosecuting Attorney Shadan Kapri responded for the State. The Court of Appeals found there was no credible evidence in the record that the victim’s boyfriend was living at the house during the time frame the rapes occurred. The Court also found there was no evidence to corroborate his claim that he was never alone with the victim. The Court of Appeals rejected all of his claims just last week.

State v. Eberly [Attempted-Murder]

STATE OF WASHINGTON, Respondent, 

v.

JOHN LEWIS EBERLY, JR., Appellant,

 Court of Appeals of Washington

Division III

No. 29091-3-III

January 26, 2012

JUDICIAL OPINION

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office for Respondent Representing the State of Washington.

Tanesha La Trelle Canzater, Attorney at Law, Canzater Law Office, Bellingham, Washington for Appellant.

Appeal from Stevens Superior Court

FACTS

Mr. Eberly engaged in a heated argument with his neighbor, Muriel Vermillion, about a gate that Ms. Vermillion believed blocked access to her property.  Later that day Ms. Vermillion returned home and saw Mr. Eberly’s truck behind some trees.  She hurried into her house and locked the door.  Mr. Eberly followed; she yelled for him to leave.  Instead, he came on the porch and shook the door while yelling at her.

Ms. Vermillion heard a gunshot and looked through the living room window.  She saw Mr. Eberly on the porch with a pistol in his hand.  A second shot shattered the window and struck Ms. Vermillion in the hip.  Mr. Eberly then forced open the front door and fell into the living room, still holding his gun.  Ms. Vermillion described him as highly intoxicated.  She believed he was trying to kill her.

A fight ensued.  The two eventually landed on the floor with Ms. Vermillion on top.  He lost control of the gun.  She grabbed a hatchet and hit him on the foot with the blunt end, causing him to scream in pain.  She ran upstairs to call for aid, but found that there was no dial tone.  Mr. Eberly eventually left.  Ms. Vermillion drove to a neighbor’s house and summoned aid.

The prosecutor filed charges of attempted first-degree murder, first-degree burglary, and first-degree assault.  Mr. Eberly testified that he went to Ms. Vermillion’s house to give her a key to the gate and instead had to defend himself against attack.  He was not intoxicated at that time, but did drink heavily to deal with the pain of the hatchet injury.  Counsel argued the case on a theory of self-defense.

The jury was unable to reach a verdict on the attempted-murder count.  It did find Mr. Eberly guilty of first-degree burglary and of the inferior degree offense of second-degree assault.  The jury also concluded both crimes were committed with a firearm.

At sentencing, the trial court determined that the two crimes did not constitute the same criminal conduct.  The State sought an exceptional sentence, but the trial court imposed concurrent high-end standard range sentences.  Mr. Eberly timely appealed to this court.

ANALYSIS

The sole issue presented by this appeal, although argued in two separate manners, is whether the two crimes constituted the same criminal conduct for scoring purposes.  We conclude that the trial court did not abuse its discretion in finding the two offenses did not constitute the same criminal conduct.

Except in the circumstance of serious violent crimes, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, directs a trial judge to count the other crimes being sentenced as part of the offender score for each other crime, but then have the sentences for the crimes run concurrently with each other.  RCW 9.94A.589(1).  This requirement is generally referred to as the “multiple offense policy.” State v. Batista, 116 Wn.2d 777, 786-787, 808 P.2d 1141 (1991).  An exception to the requirement that each crime be added to the offender score exists if a trial judge finds multiple current offenses constituted the “same criminal conduct.” In that instance, the multiple offenses are to be treated as one crime for scoring purposes.  RCW 9.94A.589(1)(a).  “‘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.”  Id. Crimes have the same criminal intent if, objectively viewed, one crime furthered the other.  State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992).

A judge’s ruling with respect to a “same criminal conduct” determination is reviewed for abuse of discretion.  State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990).  Discretion is abused if it is exercised on untenable grounds or for untenable reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  Discretion exercised in violation of a statute is untenable and amounts to an abuse of discretion.  Council House, Inc. v. Hawk, 136 Wn. App. 153, 159, 147 P.3d 1305 (2006); State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996).

Typically, the failure to challenge an offender score calculation waives the issue “where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion.”  State v. Wilson, 170 Wn.2d 682, 689, 244 P.3d 950 (2010) (quoting In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)).  Because he did not object or argue the ruling in the trial court, Mr. Eberly has waived a direct challenge to the ruling.  Nonetheless, we will address the claim because he has alternatively argued that his counsel was ineffective for failing to object to the ruling.

Effectiveness of counsel is judged by the two prong standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).  That test is whether or not (1) counsel’s performance failed to meet a standard of reasonableness, and (2) actual prejudice resulted from counsel’s failures.  Id. at 690-692.  In evaluating ineffectiveness claims, courts must be highly deferential to counsel’s decisions and there is a strong presumption that counsel performed adequately.  Id. at 689-691.  When a claim can be disposed of on one ground, a reviewing court need not consider both Strickland prongs.  State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).

Whether or not appellant has satisfied the first Strickland prong is dependent on whether or not the court had to find the two crimes constituted the same criminal conduct.  The answer to that question is “no” for two reasons.  The first is the existence of RCW 9A.52.050.  That statute provides:

Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.

This statute was applied in the context of a “same criminal conduct analysis” in Lessley.  The court concluded that it gives the trial court authority to punish two crimes separately even if they would otherwise encompass the same criminal conduct.  118 Wn.2d at 782-783.

The second reason that the same criminal conduct argument fails is found in the definition of the phrase: the crimes must be committed at the same time and place, involve the same victim, and have the same intent — i.e., they further one another.  RCW 9.94A.589(1)(a); Lessley, 118 Wn.2d at 777.  While these crimes shared the same victim and location, they did not satisfy the other elements of the same criminal conduct test.

First, the crimes did not occur at the same time.  Instead, they were sequential.  Ms. Vermillion was assaulted by the gunshot into the living room window.  Mr. Eberly then committed the burglary by smashing the front door and unlawfully entering the living room.  The time element was not the same.  Instructive in this regard is Lessley.

There the defendant broke into a house at gunpoint and kidnapped a woman inside.  The Washington Supreme Court confirmed that the burglary and kidnapping offenses did not constitute the same criminal conduct.  118 Wn.2d at 778.  One reason was that the two  ofenses were in different locations at different times.  The burglary was accomplished in the home, but the kidnapping only began there and continued through the various locations where the defendant took the victim over the next several hours.  Id. While here the two offenses occurred close in time one after the other, they were not co-temporal.

The sequential nature of the offenses also helps explain why they did not share the same intent.  The assault was completed before the burglary occurred.  Ms. Vermillion was over at the window, not the front door, when she was shot.  The wounding did not assist in the forced entry that constituted the burglary.  Similarly, the burglary, committed after the assault was complete, did not further the assault.  If anything, the burglary furthered the attempted murder count, but that charge was never proven to the jury’s satisfaction.  Neither crime furthered the commission of the other offense.  Accordingly, they did not share the same criminal intent.

Counsel understandably did not make a same criminal conduct argument because it would have been unavailing under the facts of the case.  Mr. Eberly has not established that his counsel failed to perform to the standard of the profession.  Because he has failed to establish the first Strickland prong, we need not consider the second prong.  Foster, 140 Wn. App. at 273.  The ineffective assistance claim is without merit.

Affirm.

WE CONCUR: Kulik, C.J; Sweeney, J.

Prosecutor’s Note:  The trial court imposed concurrent high-end standard range sentences with firearm enchancements.  Mr. Eberly, Jr. will remain in prison for the duration of his sentence for 130 months, over 10 years, for shooting his neighbor.  The Washington Supreme Court has not accepted review of this case.

State v. Lowden [First-Degree Murder]

STATE OF WASHINGTON, Respondent, 
v.
PATRICK NEIL LOWDEN, Appellant,

 Court of Appeals of Washington

Division III

No. 29546-0-III.

December 8, 2011

JUDICIAL OPINION

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing the State of Washington.

David Koch, Attorney at Law, Nielsen, Broman, & Koch PLLC, Seattle, WA, for Appellant.

Appeal from Stevens Superior Court; Honorable Allen Nielsen

FACTS AND PROCEDURAL BACKGROUND

SIDDOWAY, J. — On June 17, 1994, Mr. Lowden was convicted of murder in the first-degree and sentenced to 320 months in prison.  He appealed his conviction, which we affirmed.

In 2005, Mr. Lowden filed a PRP with this court arguing his conviction was based on inadmissible hearsay in violation of the confrontation clause (U.S. CONST. Amend VI and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).  The petition was dismissed.

On August 23, 2010, Mr. Lowden filed a CrR 7.8 motion in Stevens County Superior Court seeking a correction of his judgment and sentence, arguing that the combination of prison time and community custody imposed exceeded the authorized maximum sentence for his crime and the judgment was invalid on its face.  The prosecutor responded that Mr. Lowden’s motion was untimely.  On November 10, 2010, the superior court issued an order denying the motion on the merits and deeming it untimely.  Mr. Lowden appeals.

ANALYSIS

Mr. Lowden’s appointed counsel argues that the trial court lacked jurisdiction to dismiss the CrR 7.8 motion on the merits and asks that we reverse the trial court, convert the motion to a PRP [Personal Restraint Petition], and consider the PRP on the merits.  He notes that because Mr. Lowden has filed a prior PRP our conversion of the motion does not present a risk of adverse collateral consequences that would warrant our giving notice and an opportunity for Mr. Lowden to object to conversion in the superior court.  Cf. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008) (automatic c of a CrR 7.8 motion could have barred a later PRP under rules applicable to successive collateral attacks).   The State asks us to affirm the superior court’s merits based dismissal, arguing that because CrR 7.8 pertains to the procedure for vacation of judgment, Mr. Lowden’s distinguishable request for correction of his sentence should not be converted to a PRP.

Under CrR 7.8(c)(2), a trial court must transfer a motion to vacate judgment to this court unless it determines that the motion is timely filed under RCW 10.73.090 and “either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.”  In other words, only if the motion is timely and appears to have merit or requires fact finding should the superior court retain and hear the motion;  in all other cases, for purposes of efficient judicial administration, the motion is transferred to this court.  The superior court found that Mr. Lowden’s motion was untimely, which it is.  For that reason, it should have been transferred to us.  Smith, 144 Wn. App. at 863 (superior court did not have authority to dismiss CrR 7.8 motion that was untimely filed under RCW 10.73.090).

The State cites no authority for its suggested distinction between vacation and correction.   Mr. Lowden’s motion for correction of sentence was explicitly one for relief from judgment based on CrR 7.8(b)(4) and, in the superior court, was responded to on that basis by the State.  Clerk’s Papers (CP) at 36, 74.  Other authorities cited by the State in asking us to affirm the superior court address substantive bases for relief from a judgment but do not address the procedural requirements of the current version of CrR 7.8.  We will therefore grant the request to convert the motion.

Treating the appeal as a PRP, we conclude that it is time-barred [as the State originally argued in its brief].  Mr. Lowden argues that the judgment and sentence is invalid on its face because it sentences him to 320 months, the high-end of the standard sentence range for first-degree murder, plus 24 months community custody.  He argues that the sentence exceeds the maximum term set by the legislature.  But the maximum sentence for a Class A Felony was in 1994, and remains today, life imprisonment.  RCW 9A.20.021(1)(a).  When a defendant is convicted of a Class A Felony for which a life sentence is the maximum penalty, there is effectively no statutory maximum limit.  State v. Harvey, 109 Wn. App. 157, 166 34 P.3d 850 (2001), overruled on other grounds by State v. Thomas, 150 Wn.2d 666, 672-73, 80 P.3d 169 (2003).  The judgment and sentence is valid on its face.  Mr. Lowden was advised of the time limit specified in RCW 10.73.090 and 10.73.100.  CP at 16-17.  His motion, filed over 16 years after the June 17, 1994 date on which his judgment because final, is untimely under RCW 10.73.090.

We must also dismiss the petition an unsupported successive petition under RCW 10.73.140.  The statute provides that upon receipt of a successively filed PRP. this court “will not consider the petition unless the person….shows good cause why [he] did not raise the new grounds in the previous petition.”  RCW 10.73.140.  “If upon review, [this court] finds…that the petitioner has failed to show good cause why the ground was not raised earlier, [this court] shall dismiss the petition on its own motion.”  Id.  Mr. Lowden’s motion does not establish any cause for his failure to raise the new grounds in his previous petition.

Having converted Mr. Lowden’s motion to a PRP [Personal Restraint Petition], we dismiss it as successive and untimely.   [Footnote 1 - Mr. Lowden filed a statement of additional grounds.  Each is predicated on the assumption that his motion presented substantive arguments that warrant consideration on the merits.  We have reviewed Mr. Lowden's arguments, conclude they are without merit, and will not further address them.]

Siddoway, J

We CONCUR:   Korsmo, A.C.J;  Sweeney, J.

*Prosecutor’s Note:  This case was appealed to the Washington State Supreme Court.  Review was denied by the Court on May 7, 2012.

State v. Hastings [Child Rape]

STATE of Washington, Respondent,

v.

Flint G. Hastings, Appellant.

In re the Personal Restraint Petition of Flint G. Hastings.

Court of Appeals of Washington

Division III

No. 29777-2–III

August 17, 2011.

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing the State of Washington.

Flint G. Hastings, Pro Se, for Appellant.

JUDICIAL ORDER

Flint G. Hastings seeks relief from personal restraint imposed for his December 19, 2006 Stevens County convictions upon plea of guilty to one count each of second-degree child rape and third-degree child rape.  Mr. Hastings did not file a direct appeal.  The judgment and sentence did, however, contain ambiguity as to whether he received a Special Sex Offender Sentencing Alternative (SSOSA) sentence.  On January 4, 2007, the superior court entered an order clarifying the judgment and sentence that Mr. Hastings did not receive a SSOSA suspended sentence. 

On July 6, 2010, Mr. Hastings filed this petition in the Supreme Court, which transferred it to this court in March 2011.  See RAP 16.3(c); RAP 16.5(d).  Because Mr. Hastings filed this petition more than one year from when the judgment and sentence became final, it is barred as untimely under RCW 10.73.090(1) unless the judgment is invalid on its face or the petition is based solely on one or more fo the exceptions in RCW 10.73.100(1)-(6).

In his first ground for relief, Mr. Hastings claims the trial court abused its discretion in imposing an exceptional sentence by running the two counts consecutive under a SSOSA sentence.  He is correct that a sentencing court lacks authority to impose consecutive sentences when the defendant is given a SSOSA sentence.  State State v. Goss, 56 Wn. App. 541, 544-45, 784 P.2d 194 (1990).  But his claim lacks merit in light of the superior court’s order clarifying that he did not receive a SSOSA sentence.

The propriety of Mr. Hastings’ consecutive sentences is nevertheless still at issue.  In a statement of additional authorities filed on June 3, 2011, he cites to State v. Washington, 135 Wn. App. 42, 143 P.3d 606 (2006), as applicable to his case.  Washington reiterates well settled principles that when a defendant (such as Mr. Hastings) is convicted of multiple offenses that are not “serious violent offenses” under RCW 9.94A.589(1)(b), the sentences are presumed to run concurrently and may not be ordered to run consecutively unless a proper aggravating factor is found under the exceptional sentencing provisions of RCW 9.94A.535.  Washington, 135 Wn. App. at 52-53. 

Mr. Hastings had no prior criminal history, making his offender score “3” for each current offense.  The court sentenced him to a 102-month standard minimum term and community custody for up to the life statutory maximum for the second-degree child rape (count 1), and 34-month standard range sentence and community custody for a period of 36-48 months for the third-degree child rape (count II).  The court ran the sentences consecutively for a total 136-month sentence, making only the notation “2 different victims.” (Judgment and Sentence at 7)  A previous section of the judgment and sentence, Paragraph 2.4 entitled “Exceptional Sentence,” is left blank.  And the court made no finding on the document or in any appendix supplied to this court that substantial and compelling reasons justify an exceptional sentence.

The judgment and sentence document on its face is thus, at best, unclear as to the legal basis for which the court imposed consecutive sentences, leaving this court unable to determine facial validity.  The court thus orders the matter remanded to the superior court for written clarification of the judgment and sentence as to the basis articulated by the court during the December 19, 2006 sentencing hearing for imposing consecutive sentences.  See RAP 16.11 (b) (Chief Judge may enter orders necessary to obtain a prompt determination of the petition on the merits.)

Also as part of his first ground for relief, Mr. Hastings claims that at the sentencing hearing on December 19, 2006, the prosecutor violated his obligation under the parties’ plea agreement to recommend a SSOSA sentence.  He says the prosecutor informed the trial court that the State no longer wanted to pursue a SSOSA sentence.  (Petitioner’s Brief at 3, 6)  But a claim that the prosecutor breached the plea agreement does not fall within any RCW 10.73.100 exception to the one-year time bar.  The claim is rejected as untimely under RCW 10.73.090(1).

Mr. Hastings next claims the judgment and sentence is facially invalid because the combination of a 34-month prison sentence and 36-48 months in community custody exceeds the five-year statutory maximum sentence for the Class C Felony third-degree child rape.  RCW 9A.20.021(1)(c); RCW 9A.44.079(2).  The State concedes this point and agrees that the appropriate remedy is a remand for the superior court to amend the sentence with respect to count II to explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum.  In re Pers. Restraint of Brooks, 166 Wn.2d 664, 675, 211 P.3d 1023 (2009).  The court accepts that concession and orders the sentence amended to comport with Brooks.

In his reply brief, Mr. Hastings raises new claims that his 30-day appeal period and one-year period for filing a collateral attack should each be equitable tolled because (1) his trial counsel (James F. Irwin) failed to perfect an appeal despite Mr. Hastings’ belief he was doing so, and (2) another attorney (Paul Wasson) was hired to pursue the appeal but took no action.  Mr. Hastings contends the false promises and deception by counsel deprived him of his rights to a timely direct appeal and collateral attack.

As this court reiterated in Hoisington:

“The doctrine of equitable tolling permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed.” State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997), review denied, 134 Wn.2d 1012 (1998).  Appropriate circumstances for equitable tolling include ” ‘bad faith, deception, or false assurances by the defendant, and the exercise of diligence by the plaintiff.’ ” Id. at 875 (quoting Finkelstein v. Security Properties, INc., 76 Wn. App. 733, 739 – 40, 888 P.2d 161, review denied, 127 Wn.2d 1002 (1995)).

In re Pers. Restaint of Hoisington, 99 Wn. App. 423, 430 – 31, 993 P.2d 296 (2000).

Mr. Hastings provides no evidentiary documentation beyond his own statements to support his claim that neither Mr. Irwin or Mr. Wasson acted in bad faith, deceived him, or gave him false assurances about pursuit of a timely direct appeal.  Moreover, he provides no evidence that he has diligently attempted to preserve his appeal rights prior to filing this personal restraint petition some 3 1/2 years after his judgment and sentence was entered.  One the record presented, his equitable tolling claim amounts to a self-serving conclusory allegation that is insufficient to command further review.  In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).  FN2  The court also notes that Mr. Hastings makes no claim that the sentencing court failed to apprise him of his direct appeal rights.

In summary, Mr. Hastings’ claims that the prosecutor breached the plea agreement is dismissed as time-barred.  RCW 10.73.090(1).  His equitable tolling claim is dismissed as factually unsupported and frivolous.  RAP 16. 11(b).  The matter is remanded to the Stevens County Superior Court for (1) written clarification of the judgment and sentence to reflect the court’s basis articulated at the December 19, 2006 sentencing hearing for imposing consecutive sentences, and (2) amendment of the judgment and sentence in accordance with Brooks to explicitly state that the combination of confinement and community custody for court II shall not exceed the statutory maximum.  The court directs that the superior court take these action on its earliest available docket, no later than 30 days hereof.  The court further directs that the State file in this court the clarified/amended judgment and sentence within 7 days of entry by the superior court.  Thereafter, this court will determine the steps necessary to properly decide any remaining issues in this petition, see RAP 16.11(b), and whether Mr. Hastings will receive appointed counsel.

Dated: August 17, 2011

Honorable Kevin M. Korsmo, Acting Chief Judge

*Prosecutor’s NoteThe Superior Court did revisit this case and based upon written and oral arguments the trial court judge accepted the State’s recommendation that Mr. Hastings be sentenced to a minimum of 130 months to life imprisonment for Count 1 – Rape of Child in the Second Degree.  Count 2 would run concurrently as required by the legislature.

State v. Carbary [Second-Degree Rape by a Health Care Provider]

STATE of Washington, Respondent,

v.

Preston Lynn Carbary, Appellant.

In re the Personal Restraint Petition of Preston Lynn Carbary.

Court of Appeals of Washington

Division III

No. 28768-8-III

June 21, 2011.

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing the State of Washington.

Preston L. Carbary, Pro Se, for Appellant.

SUMMARY: Preston Lynn Carbary seeks relief from personal restraint imposed for his 2007 Stevens County conviction of three counts of second-degree rape by a health care provider. RCW 9A.44.050(1)(d).

Between October 2004 and January 2005, Mr. Carbary, a licensed mental health counselor in private practice, provided state family preservation services to a family comprised of P.R. and her four children, and P.R.’s boyfriend Daniel Maners and his two children (the P.R./Maners family). In May 2005, P.R. first reported to her physician, Dr. Barry J. Bacon, that Mr. Carbary had repeatedly coerced her into having sexual intercourse and threatened to remove her children from her home if she told anyone. Dr. Bacon contacted authorities and the State eventually charged Mr. Carbary with three counts of second degree rape by a health care provider. A jury found him guilty and he appealed. This court affirmed the judgment and sentence. See State v. Carbary, unpublished opinion No. 26297-9-III (Wa Ct. App. 2008), review denied, 165 Wn.2d 1025 (2009). The appeal mandate was issued on February 12, 2009. This petition followed.

To obtain relief in a personal restraint petition, Mr. Carbary must show actual and substantial prejudice resulting from alleged constitutional errors, or, for alleged nonconstitutional errors, a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To avoid dismissal, the petition must be supported by facts, not merely conclusory allegations. Id. at 813-14. The supporting evidence must be based on “more than speculation, conjecture, or inadmissible hearsay,” and failure to meet this burden calls for dismissal of the petition. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

The primary theme of Mr. Carbary’s petition is that the rape charges were based upon perjured statements made by P.R. – first to a police detective and later when she signed a Standard Tort Claim Form seeking $3 million from the State stemming from its referral of Mr. Carbary as her family preservation counselor. (PRP Exhibit 1) In particular, he claims P.R. falsely stated that Mr. Maners was not allowed to live in the family residence during the counseling period, but that his daughter J.F.M., who was the subject of a protective order because he allegedly assaulted her, was living in the house instead. Mr. Carbary contends the truth is that Mr. Maners was always present when he was with P.R. at the residence for the counseling sessions, and therefore the alleged rapes could never have occurred. Mr. Carbary contends that P.R. perpetuated her lies in her trial testimony as part of her scheme to falsely accuse him and profit from her civil suit, and that the prosecutor knowingly allowed her false testimony.

Facts

In October 2004, Mr. Maners and P.R. were living together at a residence on Kitt Narcisse Road along with her four children and his two children, including his teenage daughter J.F.M. Mr. Maners was accused of assaulting J.F.M. and on October 22, the court released him on conditions that he live at the Kitt Narcisse Road home unless J.F.M. was living there, and that he not be allowed to go to the premises where J.F.M. was residing. The court entered a restraining order reflecting those conditions. (State’s Supplemental Response, Appendix B1)

On October 25, 2004, P.R. and Mr. Maners entered into a voluntary contract agreement with the Department of Social and Health Services (DSHS) that provided, among other things, for J.F.M.’s supervision by her grandparents; for the parties to enlist the family preservation services of counselor Preston Carbary; and for Mr. Maners to abide by all court orders including the alleged assault incident. (PRP Exhibit 28) Mr. Carbary’s documents filed with this petition indicate that J.F.M was placed with her grandparents in late October, and that she returned to live at the Kitt Narcisse Road home sometime between November 15 and 17, 2004 – after the restraining order against Mr. Maners was lifted (PRP Exhibits 5, 11, 12, 13, 18, 29, 30)

In May and June 2005, P.R. disclosed to Dr. Bacon that Mr. Carbary had raped her in November 2004. In a statement to a sheriff’s detective Fran Lynn, P.R. reported that Mr. Carbary threatened to have her children taken away if she did not do as he said. P.R. said three rapes occurred – all prior to Thanksgiving and in the basement area of the house where the kitchen and her bedroom were located. Mr. Carbary acknowledged to detectives that he always talked to P.R. in this area of the house. P.R. also told Detective Lynn that Child Protective Services (CPS) representative Bill Wilson did not want Mr. Maners living in the house with J.F.M. until the counseling was completed, so Mr. Maners moved into the family’s bus during November and part of December. P.R. said that Mr. Maners would come to the house during the day while J.F.M was in school but would leave after she came home. (PRP Exhibit 20)

The State charged Mr. Carbary with the rapes on September 7, 2005 (State’s Response, Appendix B) The prosecutor’s probable cause affidavit was based upon the reported by P.R., Dr. Bacon and Detective Lynn, as well as Mr. Carbary’s statements. The probable cause affidavit referenced P.R. ‘s statements to Detective Lynn that Mr. Maners was not allowed to live in the home until counseling was completed (State’s Supplemental Response, Appendix A1)

In July 2006, P.R. signed the Standard Tort Claim against the State under penalty of perjury. The document stated that CPS’s safety plan for the family included that Mr. Maners remaining out of the family home. (PRP Exhibit 1 at 3) P.R. ultimately settled her lawsuit against the State in June 2008 for $500,000. (PRP Exhibit 25) Meanwhile, Mr. Cabary’s criminal case proceeded to trial on April 30, 2007.

Mr. Carbary now claims that P.R. lied in her statement to Detective Lynn and in her tort claim when she asserted that Mr. Maners was not allowed to live in the family home. To support his perjury claim, Mr. Carbary appends to his petition his treatment progress notes from ten counseling sessions on or between October 25, 2004 and January 6, 2005. These documents indicate that Mr. Maners participated in the counseling sessions – a fact consistent with DSHS’s ordering of preservation services for the entire P.R./Maners family. Mr. Carbary also supplies his personal affidavit in which he states that Mr. Maners lived in the home with P.R. the whole time; that he met with Mr. Maners and P.R. together during those ten visits; and that at no time did he meet with P.R. alone. (PRP Exhibits 6-16; 17) Mr. Carbary thus contends he has shown that the State’s criminal charges and probable cause affidavit are based upon the perjured statements of P.R. His arguments fail.

Aside from Mr. Carbary’s affidavit statement, there was no evidence in the record before this court that Mr. Maners was actually living in the Kitt Narcisse Road residence during November 2004 when the rapes occurred. At best, Mr. Carbary shows that Mr. Maners participated in counseling sessions as he was supposed to do. In any event, the most critical point is that there is also no evidence to corroborate Mr. Carbary’s affidavit statement that he was never alone with P.R., such that he could have raped her. His affidavit contains mere unsupported self-serving conclusory allegations that do not create a material factual issue and do not command further review in a personal restraint petition. In re Pers. Restraint of Rice, 118 Wn.2d at 886; In re Pers Restraint of Cook, 114 Wn.2d at 813.

Nor has Mr. Carbary made any evidentiary showing that P.R. perjured her trial testimony. First, Dr. Bacon testified that when P.R. reported the rapes to him in May 2005, she said the children were asleep and Mr. Maners was gone from the home at the time. (Report of Proceedings “RP” 189) Defense counsel elicited from P.R. on cross-examination that Mr. Maners lived in the family’s bus in November 2005 during the times when J.F.M. was living in the home with P.R. and the other children. (RP 263-64) The cross-examination essentially clarified P.R.’s more general direct testimony that Mr. Maners was not allowed to be at the house after 4:00 p.m. when the children returned from school. (RP 232) According to P.R., the rapes always occurred late in the evening (after 10:00 p.m.) when the children were asleep and Mr. Maners was not present. (RP 238, 276, 280-81) With respect to J.F.M, the CPS worker Mr. Wilson testified that she was initially removed from the home under a police-authorized emergency placement at the outset of Mr. Maner’s criminal proceedings.

Thereafter, CPS facilitated her removal to her grandmother’s home for a short time before she was returned to the home with P.R. (RP 301, 310-11) P.R. did not give any testimony regarding J.F.M. that was inconsistent with that of Mr. Wilson. (See RP 263-64, 267-68) Neither witness testified to exact dates when referring to J.F.M.’s residential placements. Mr. Wilson did not give any testimony as to where Mr. Maners was residing at any particular time during November 2004.

And in this petition, Mr. Carbary does not provide any evidence from others, e.g., not Mr. Maners, Mr. Wilson, or any of the family members, about where Mr. Maners resided. Moreover, whether or not J.F.M was living at the house when the rapes occurred is not dispositive. The critical fact is that there is no evidence in the record beyond Mr. Carbary’s self-serving statements that he had no opportunity to have been alone with P.R. to commit the rapes. Mr. Carbary provides no evidence of perjury by P.R.; thus, he likewise fails to show there was any apparent perjury for the prosecutor to call to anyone’s attention. Accordingly, his additional claim that the prosecutor improperly used known perjured statements by P.R. as the basis for admitting ER 404(b) evidence of similar misconduct with his prior counseling client (T.C.) is also without merit.

Mr. Carbary next claims the evidence was insufficient to support his rape convictions. He contends the State failed tp rove the requisite element that the rapes occurred during a treatment session, consultation, or interview as required under RCW 9A.44.050(1)(d). His theory is that P.R. gave conflicting testimony as to that element, thus requiring the jury to base its guilty verdicts solely on speculation.

This court already rejected Mr. Carbary’s challenge to the sufficiency of the evidence in the direct appeal, specifically explaining that the trier of fact resolves inconsistencies in the testimony and issues of credibility. See unpublished opinion at 10 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Claims that were rejected on the merits in the direct appeal are not reconsidered in the personal restraint petition absent a showing “the ends of justice would be served by reexamining the issue[s].” In re Personal Restraint of Gentry, 137 Wn.2d 379, 388, 972.2d 1250 (1999). Mr. Carbary makes no such showing. In re Pers. Restraint of Gentry, 137 Wn.2d 379, 388, 972 P.2d 1250 (1999).

The court thus declines to revisit the sufficiency of the evidence issue, except to observe that the gist of P.R.’s testimony was that Mr. Carbary raped her on three occasions when his legitimate purpose for being at the home was to provide the state-contracted family counseling services. (See RP 276-81, 285) The evidence viewed in light most favorable to the State amply supported all three convictions. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). Again, this court defers to the trier of fact on issues of inconsistent or conflicting testimony. See also State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). Thus, Mr. Carbary’s attendant claim that the prosecutor committed prejudicial misconduct in closing argument by asserting that the evidence supported each element of rape by a health care provider is also without merit.

Finally, Mr. Carbary claims he received ineffective assistance from his trial counsel. To establish ineffective assistance of counsel, he must show that his attorney performed deficiency and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel performed reasonably. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot be the basis of an ineffective assistance claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.2d 280 (2002).

Mr. Carbary faults counsel for (1) not cross-examining P.R. on her “perjured” trial testimony that J.F.M. was living with her and that Mr. Maners was not allowed to live in the home, (2) not introducing into evidence CPS notes and Mr. Carbary’s progress notes (PRP Exhibits 6-16) that were in defense counsel’s possession and which documented that P.R. and Mr. Maners were always in the counseling sessions together, (3) telling the jury in closing argument that Mr. Maners was not living in the home, (4) failing to move to dismiss the charges prior to the ER 404(b) hearing regarding his similar misconduct with another counseling client, and (5) failing to call an expert witness to testify that P.R. was not Mr. Carbary’s counseling client for purposes of the rape by a health care provider statute.

Mr. Carbary’s first three allegations provide not basis for an ineffective assistance claim when he shows not perjury by P.R., and the only evidence (besides Mr. Carbary’s self-serving statements in this petition) was that Mr. Maners lived outside the home and was not present when the alleged rapes occurred. Moreover, nothing in the progress notes themselves precludes his opportunity to have been alone with the victim and committed the rapes. He fails to show absence of legitimate trial tactics by counsel and she shows not prejudice from any performance of counsel.

Next, Mr. Carbary’s counsel objected, albeit unsuccessfully, to admission of the ER 404(b) prior misconduct evidence. (See RP 2-18) There was otherwise no basis for counsel to move to dismiss the charges, which were amply supported by admissible evidence. The fact that the properly admitted ER 404(b) evidence bolstered the State’s case against Mr. Carbary does not show any deficient performance by his counsel.

Finally, the decision whether to call a witness is also ordinarily a matter of legitimate trial tactics and will not support an ineffective assistance claim. State v. Kolesnick, 146 Wn. App. 790, 812, 192 P.3d 937 (2008). Here, a potential expert witness expressed the opinion to defense counsel that Mr. Carbary’s theory he was not providing services as a health care provider, and that the alleged intercourse did not occur during a treatment session with a client, would not likely be successful. (PRP Exhibit 32) Ms. Carbary offers no expert opinion to the contrary; he shows no deficient performance by counsel.

Mr. Carbary makes no showing that he was prejudiced by any performance of counsel under Strickland standards. His ineffective assistance claim fails.

Mr. Carbary makes no claim entitling him to relief in a personal restraint petition. He fails his burden during Cook and Rice.

Accordingly, the petition is dismissed pursuant to RAP 16.11(b). The court also denies Mr. Carbary’s request for appointed counsel. In re Pers. Restraint of Gentry, 137 Wn.2d at 390; RCW 10.73.150(4).

Dated June 21, 2011

Chief Judge Teresa C. Kulik

*Prosecutor’s Note:  Mr. Carbary appealed this ruling to the Supreme Court of Washington.  The Supreme Court denied review and Mr. Carbary remains in prison for the duration of his sentence.

State v. Hyde [Kidnapping and Rape]

STATE of Washington, Respondent,
v.
Gregory Lee Hyde, Appellant.

Court of Appeals of Washington,

Division III

No. 26315-1-III. March 23, 2010.
Reconsideration Denied April 23, 2010.

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecutor’s Office for Respondent Representing State of Washington.

Gordon R. Stoa, Attorney at Law, Spokane, WA, for Appellant.

Appeal from Stevens Superior Court; Honorable Rebecca M. Baker

JUDICIAL OPINION

BROWN, J.

Gregory L. Hyde appeals his first-degree rape and first-degree kidnapping convictions. His trial was delayed for competency evaluations. While incarcerated, Mr. Hyde communicated with his attorney through “kites.” He asked jail authorities to copy these “kites.” Mr. Hyde contends (1) his speedy trial rights were violated, (2) his attorney-client privilege was violated, and (3) the trial court erred in not granting his late continuance request. Pro se, Mr. Hyde argues he did not consent to a competency evaluation. We find no error, and affirm.

FACTS

The facts derive from the trial court’s unchallenged findings of fact following Mr. Hyde’s motions to dismiss for speedy trial violation and attorney-client privilege violation. Since the court’s findings are unchallenged, they are verities on appeal. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006).

The State charged Mr. Hyde with first-degree rape and first-degree kidnapping, and arraigned him November 22, 2005. He waived speedy trial until February 6, 2006. On January 18, 2006, defense counsel, Paul Wasson, presented a proposed agreed order for an examination of Mr. Hyde at Eastern State Hospital (ESH). The court inadvertently checked the box related to a sanity evaluation instead of a competency evaluation on the order. The judge, however, “clearly understood that there was an issue of the defendant’s competency to stand trial.” Clerk’s Papers (CP) at 731.

ESH’s evaluation report was filed in August 2006. Then, the court realized the original order for evaluation had not included a request for evaluation as to competency to stand trial. On September 27, 2006, another proposed agreed order was presented by Mr. Wasson. Since competency was not addressed in ESH’s first evaluation, another order for evaluation was necessary. On November 6, 2006, Mr. Wasson again presented a proposed agreed order for mental health evaluation as to competency. The exam was to take place at ESH. This order stayed further proceedings pending the entry of an order of competency.
During this time, Mr. Hyde was sending several “kites” to Mr. Wasson. Kites are blank forms given to inmates in the Stevens County Jail to communicate with jail staff or attorneys. In mid-2006, Mr. Hyde became unhappy with Mr. Wasson’s representation and asked jail staff to provide him with a copy of kites he drafted for Mr. Hyde’s file. Evidently, Mr. Hyde was trying to make a record of his correspondence with Mr. Wasson. Mr. Hyde knew he could contact his attorney by a more confidential manner (i.e., sealed envelopes), but instead chose to use the kite method. Some of the kites were sent to ESH for evaluating Mr. Hyde’s competency and later to the prosecutor. The jail chief was clear that permission was first obtained by Mr. Wasson prior to letting ESH and the prosecutor review the kites.
On January 16, 2007, the court appointed new counsel for Mr. Hyde, Robert Simeone. The court granted Mr. Simeone’s request for time to discuss the competency issue with Mr. Hyde. Although on January 24, Mr. Simeone requested additional competency evaluations, on March 19, 2007, he withdrew all defenses related to competency. On March 26, 2007, the court entered an order of competency; speedy trial expiration date was now April 16, 2007. The court set trial for April 16, 2007.
On April 2, 2007, Mr. Hyde objected to the trial date based on speedy trial expiration. Due to the trial judge’s unavailability, the matter was not heard until April 16, 2007, the morning of trial. The court concluded Mr. Hyde’s speedy trial rights were not violated. On April 13, Mr. Hyde requested a continuance so counsel could better prepare for trial, and agreed to waive his speedy trial argument if the continuance was granted. The continuance motion was also heard and denied on April 16. Mr. Hyde requested discretionary review of the trial court’s denial of his continuance request. A commissioner of this court stayed the proceedings pending a decision. Ultimately, discretionary review was denied. Trial began on May 10, 2007.
The jury found Mr. Hyde guilty as charged. He filed a CrR 8.3(b) motion to dismiss, contending the State violated his attorney-client privilege by providing copies of his kites to Mr. Wasson, ESH for its competency consideration, and eventually to the prosecutor. The court denied the motion, concluding the kites were not privileged. Mr. Hyde appealed.

ANALYSIS

A. Speedy Trial

The issue is whether Mr. Hyde’s speedy trial rights under both CrR 3.3 and the state and federal constitutions were violated.
We review a trial judge’s speedy trial rulings de novo. State v. Carlyle, 84 Wash.App. 33, 35-36, 925 P.2d 635 (1996). As noted, the unchallenged findings of fact are verities on appeal. The standard of review in such a case requires the determination of whether the trial court’s findings support the conclusions of law. State v. Ross, 106 Wash.App. 876, 880, 26 P.3d 298 (2001).
CrR 3.3 generally requires the State to bring an in-custody defendant to trial within 60 days of arraignment; if not, the trial court will dismiss the case with prejudice. CrR 3.3(b)(1)(i),(h). The threshold for a constitutional speedy trial violation, however, is higher than that for a violation of CrR 3.3. State v. Fladebo, 113 Wash.2d 388, 393, 779 P.2d 707 (1989); see also U.S. Const. amend. VI; Wash. Const. art. I, § 22. The constitutional right to a speedy trial is not violated by passage of a fixed time but, rather, at the expiration of a reasonable time. State v. Monson, 84 Wash.App. 703, 711, 929 P.2d 1186 (1997). Courts consider four factors in determining whether a delay in bringing a defendant to trial impairs the constitutional right to the prompt adjudication of criminal charges: “the ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ” In re Pers. Restraint of Benn, 134 Wash.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).
Mental incompetence at the time of trial is a bar to trial. RCW 10.77.050. If the trial court has reason to doubt the defendant’s competency to stand trial, the court must order an expert evaluation of the defendant’s mental condition. RCW 10.77.060(1)(a). The “reason to doubt” language “vests a large measure of discretion in the trial judge.” City of Seattle v. Gordon, 39 Wash.App. 437, 441, 693 P.2d 741 (1985). “Defense counsel’s opinion as to the defendant’s competence is a factor that carries considerable weight with the court.” State v. Harris, 122 Wash.App. 498, 505, 94 P.3d 379 (2004). An order for evaluation under RCW 10.77.060(1)(a) automatically stays the criminal proceedings until the court determines that the defendant is competent to stand trial. CrR 3.3(g)(1).
Once initiated, Mr. Hyde’s competency proceedings tolled the time calculations until the trial judge was satisfied Mr. Hyde was competent. Based on the unchallenged findings of fact, on January 18, 2006, Mr. Hyde’s initial attorney secured an agreed competency determination order for Mr. Hyde’s competency evaluation at ESH. ESH’s evaluation was filed on August 30, 2006. During the interim time, neither party requested a hearing for a new trial date. On September 27, 2006, another proposed agreed order was presented by defense counsel, who “represented that he indeed felt his client lacked competency to stand trial.” CP at 733. In December 2006, three competency reports were filed. Defense counsel was replaced and yet another evaluation was requested.
On March 26, 2007, “after making inquiry of counsel and the defendant himself as to defendant’s competency, and being satisfied of defendant’s competency to stand trial, the undersigned [trial judge] entered an Order on Competency.” CP at 738. It was determined that the new expiration date for speedy trial under CrR 3.3 was April 16, 2007. The trial judge then entered an order setting the trial date for April 16, 2007. The matter was stayed per order of this court. Trial promptly commenced once discretionary review was denied.
Based on our record, speedy trial time was tolled to determine whether Mr. Hyde was deemed competent to stand trial. While competency was not initially checked on the evaluation order that oversight was corrected in a subsequent order per the court’s unchallenged findings of fact. The delay was necessary to ensure Mr. Hyde understood the nature of the charges and was competent to stand trial and assist in the nature of his defense as required by our State. State v. Hahn, 106 Wash.2d 885, 894, 726 P.2d 25 (1986). It is clear from the trial court’s unchallenged findings of fact that the court correctly concluded that Mr. Hyde’s right to speedy trial had not been violated under either CrR 3.3 or the United States or Washington Constitutions. “The constitution guarantees a fair trial, not a perfect trial.” State v. Ingle, 64 Wash.2d 491, 499, 392 P.2d 442 (1964). The facts in the record show that occurred here.

B. Attorney-Client Privilege

The issue is whether the trial court erred in denying Mr. Hyde’s CrR 8.3(b) motion to dismiss for violation of the attorney-client privilege. Mr. Hyde contends the kites to his attorney were privileged communication that should not have been provided to ESH and the prosecutor.
We review a trial court’s denial of a motion to dismiss under CrR 8.3(b) for an abuse of discretion. State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587 (1997). An abuse of discretion occurs when the trial court’s order or decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Ryan v. State, 112 Wash.App. 896, 899, 51 P.3d 175 (2002) (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)).
CrR 8.3(b) provides, “The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” This rule requires a defendant seeking dismissal to show both (1) that the government entity engaged in arbitrary action or misconduct and (2) that this misconduct “materially affected” the outcome of the case. The trial court found Mr. Hyde met neither prerequisite.
Mr. Hyde relies unsuccessfully on State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963) and State v. Garza, 99 Wash.App. 291, 994 P.2d 868 (2000) to support his argument the trial court abused its discretion in failing to grant his motion to dismiss. In Cory, the Washington State Supreme Court analyzed government intrusion into the attorney-client relationship. Mr. Cory met with his attorney to discuss his case in a private jail room, where the sheriff had secretly installed a microphone. Cory, 62 Wash.2d at 372, 382 P.2d 1019. Ultimately, the Supreme Court set aside the judgment and sentence, and dismissed the charges based on clear prejudice from eavesdropping on confidential information about Mr. Cory’s case and defense strategy. Id. at 377-78, 382 P.2d 1019.
Unlike the facts in Cory, the unchallenged findings of fact show Mr. Hyde knew he could write to his attorney in a confidential manner by sending his communication in a sealed envelope. He chose instead to use the kite method. He then requested the kites be copied by jail staff. And, defense counsel later gave permission for the kites to be provided to ESH and subsequently the prosecutor. Thus, Mr. Hyde has failed to establish governmental misconduct entitling him to dismissal under CrR 8.3(b).
Moreover, to prevail on a CrR 8.3(b) motion to dismiss, a defendant must show how the alleged prejudice “materially affected his or her rights to a fair trial.” Garza, 99 Wash.App. at 295, 994 P.2d 868 (citing City of Seattle v. Orwick, 113 Wash.2d 823, 830, 784 P.2d 161 (1989)). Because Mr. Hyde failed to establish governmental misconduct, we do not elaborate on whether prejudice resulted, but note he fails to show how use of the kites “materially affected” his right to a fair trial. In sum, the trial court did not abuse its discretion in denying Mr. Hyde’s motion for dismissal under CrR 8.3(b).

C. Continuance

The issue is whether the trial court erred in denying Mr. Simeone’s request for a trial continuance. Mr. Hyde contends the court denied him his right to effective assistance of counsel by refusing to grant a continuance on the day of trial.FN1

FN1. Mr. Hyde contends he was denied effective assistance of counsel during Mr. Wasson’s representation as well. To the extent this argument is outside his assignment of error that the court erred in denying Mr. Simeone’s motion for a continuance, we do not reach this contention. See RAP 10.3(a)(4) (an appellant’s assignment of error should be a “concise statement of each error a party contends was made”).

We review the decision whether to grant a continuance for abuse of discretion. State v. Flinn, 154 Wash.2d 193, 199, 110 P.3d 748 (2005). As set forth above, a trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Id. But, “ ‘[b]ecause claims of ineffective assistance of counsel present mixed questions of law and fact, we review them de novo.’ ” State v. A.N.J., 168 Wash.2d 91, —-, 225 P.3d 956 (2010 WL 314512 at *8) (Jan. 28, 2010) (quoting In re Pers. Restraint of Fleming, 142 Wash.2d 853, 865, 16 P.3d 610 (2001)).
The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to professional standards. Counsel’s failure to live up to those standards will require a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995).
Relying on State v. Hartwig, 36 Wash.2d 598, 219 P.2d 564 (1950), Mr. Hyde contends the court should have continued the trial date due to Mr. Simeone’s late appointment. In Hartwig, unlike here, defense counsel only had a few hours to consult with his client in preparing his defense. Mr. Simeone was appointed on January 16, 2007. Trial did not commence until May 10, 2007, almost four months to prepare.
Mr. Hyde argues Mr. Simeone’s unpreparedness resulted in his failure to timely designate an expert witness as a defense witness and to object to hearsay and damaging testimony. Yet, matters that go to trial strategy or tactics do not show deficient performance, and Mr. Hyde bears the burden of establishing there were no legitimate strategic or tactical reasons behind his counsel’s choices. State v. Rainey, 107 Wash.App. 129, 135-36, 28 P.3d 10 (2001). Mr. Hyde must further show his counsel’s deficient performance resulted in prejudice such that “there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different.” State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996). Courts employ a strong presumption that counsel’s representation was effective. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). Further, we need not address both prongs if the defendant makes an insufficient showing on one prong. State v. Fredrick, 45 Wash.App. 916, 923, 729 P.2d 56 (1986).
Counsel’s choice of whether to object “is a classic example of trial tactics.” State v. Madison, 53 Wash.App. 754, 763, 770 P.2d 662 (1989). Mr. Hyde fails to show where in the record hearsay and damaging testimony occurred that should have been objected to by defense counsel. Turning to counsel’s alleged failure to timely designate a defense witness, Mr. Hyde fails to persuade this court that the outcome of the trial would have been any different given the evidence of guilt against Mr. Hyde. Given all, Mr. Hyde has failed to show he was denied effective assistance of counsel based on the trial court’s refusal to grant a defense-requested continuance.

D. Additional Grounds

In his statement of additional grounds for review, Mr. Hyde argues pro se that he did not consent to a sanity/competency evaluation and therefore did not waive his right to a speedy trial.
A situation where a defendant may be forced to waive his speedy trial rights is not a trivial event. Michielli, 132 Wash.2d at 245, 937 P.2d 587. Our Supreme Court, “ ‘as a matter of public policy has chosen to establish speedy trial time limits by court rule and to provide that failure to comply therewith requires dismissal of the charge with prejudice.’ ” Michielli, 132 Wash.2d at 245, 937 P.2d 587 (quoting State v. Duggins, 68 Wash.App. 396, 399-400, 844 P.2d 441, aff’d, 121 Wash.2d 524, 852 P.2d 294 (1993)).
The unchallenged findings of fact show defense counsel presented a proposed agreed order for a competency examination. Several months later, another agreed order for evaluation was presented by defense counsel. And, following Mr. Simeone’s appointment another competency evaluation was requested. Based on our record, Mr. Hyde consented to these evaluations which tolled the expiration of the speedy trial time. If Mr. Hyde has information outside this court’s record showing defense counsel acted against his wishes, the appropriate procedure for review would be a personal restraint petition. McFarland, 127 Wash.2d at 335, 899 P.2d 1251.
Affirmed.

WE CONCUR: KULIK, C.J., and KORSMO, J.

See Case HERE

Prosecutor’s Note*  Mr. Hyde appeals this ruling to the Supreme Court of Washington.  The Supreme Court denied review of this case.  Mr. Hyde will remain in prison for the duration of his prison sentence for first-degree kidnapping and rape.