State Of Washington v. Christopher Daniel Barnhill ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68637-2-1
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION Tr
CHRISTOPHER D. BARNHILL, XT-
Appellant. FILED: September 23, 2013
Schindler, J. — The court convicted Christopher D. Barnhill of one count of rape
of a child in the second degree. On appeal, Barnhill contends the judgment and
sentence does not give him credit for time served with the Washington State
Department of Corrections (DOC). The State concedes error. We accept the State's
concession as well taken.
Judgment and Sentence
The judgment and sentence must state the credit a defendant is entitled to
receive on its face. In re Pers. Restraint of Phelan, 97 Wn.2d 590, 596, 647 P.2d 1026(1982). We remand for the court to amend the judgment and sentence to state that
Barnhill is entitled to credit for time served at DOC. "The sentencing court shall give the
offender credit for all confinement time served before the sentencing if that confinement
was solely in regard to the offense for which the offender is being sentenced." RCW
No. 68637-2-1/2
9.94A.505(6). A defendant shall also be credited with time served while imprisoned
pending an appeal. RCW 9.95.062(3); State v. Phelan. 100 Wn.2d 508, 515, 671 P.2d
1212 (1983), superseded by statute on other grounds by RCW 9.94A.729.
Statement of Additional Grounds
Barnhill contends the trial court erred by denying his motion to dismiss under CrR
8.3(b). A court "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[s] the accused's right to a fair trial." CrR 8.3(b). Dismissal under
CrR 8.3(b) is an " 'extraordinary remedy.'" State v. Rohrich, 149 Wn.2d 647, 658, 71
P.3d 638 (2003) (quoting State v. Baker, 78 Wn.2d 327, 332, 474 P.2d 254 (1970)).
We review an order denying a motion to dismiss for abuse of discretion. State v.
Garza, 99 Wn. App. 291, 295, 994 P.2d 868 (2000). A trial court abuses its discretion
when it bases its decision on untenable or unreasonable grounds. State v. Powell, 126
Wn.2d 244, 258, 893 P.2d 615 (1995).
Barnhill argues that the King County Department of Adult and Juvenile Detention
intentionally interfered with attorney work product and his right to a fair trial. The trial
court did not abuse its discretion in denying the motion to dismiss. Following an
evidentiary hearing, the court found that the jail was justified in examining the
documents that Barnhill kept in the box and that the delay in receiving the documents
did not prejudice his right to a fair trial.
Barnhill also contends his attorney provided ineffective assistance of counsel by
failing to address whether legal materials were missing from his box. Because the
No. 68637-2-1/3
record shows that Barnhill's attorney addressed the "missing" legal materials and
argued prejudice, Barnhill cannot establish ineffective assistance of counsel.
Barnhill claims the trial court judge was biased. Criminal defendants are entitled
to a fair trial by an impartial judge. U.S. Const, amends. VI, XIV; Wash. Const, art. I, §
22. The party claiming bias or prejudice must support the claim with evidence of the
trial court's actual or potential bias. State v. Gamble, 168 Wn.2d 161, 187-88, 225 P.3d
973(2010).
Barnhill filed a motion to order the jail to return two USB1 flash drives to him.
After conducting an in-camera review, the court ordered the jail to return the USB drives
to Barnhill "without viewing or tampering with them." The jail copied the information
from the two USB drives onto Barnhill's computer.
Barnhill filed a CrR 8.3(b) motion to dismiss. Barnhill argued the jail violated the
court order by transferring the USB files to his computer. The court denied the motion
to dismiss. The court ruled that even if the jail viewed the documents while copying the
information to Barnhill's computer in violation of the court order, the intrusion did not
interfere with Barnhill's right to due process. The court ruled, in pertinent part: "[Ljet's
assume you actually committed these offenses. I wouldn't be willing to dismiss anyway,
even if I make a finding that it's done intentionally." The portion of the court's ruling that
Barnhill cites does not support his argument that the judge was biased.2
1(Universal serial bus.)
2Barnhill argues that the trial court abused its discretion by denying his Knapstad motion to
dismiss the charges against him. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). Because
Barnhill has not challenged the sufficiency of the evidence supporting his conviction at trial, we do not
address his argument. State v. Jackson, 82 Wn. App. 594, 608-09, 918 P.2d 945 (1996).
No. 68637-2-1/4
Barnhill claims he did not knowingly, intelligently, and voluntarily waive his right
to a jury trial.3 We disagree. Barnhill waived his right to a jury trial in writing. Barnhill
also told the trial court several different times that he was certain he wanted to waive his
right to a jury trial.
We affirm Barnhill's conviction and remand the judgment and sentence for
clarification.
WE CONCUR:
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3Acriminal defendant has the right to a jury trial under both the federal and state constitutions.
U.S. Const, amend. VI; Wash. Const, art. I, § 21. This right may be waived in a knowing, intelligent, and
voluntary manner. State v. Steqall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994).
4