Petition for Writ of Certiorari — Linda Renae Clark, Petitioner v. Washington

Supreme Court briefJun 8, 2020

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APPENDIX A

FILED

SUPREME COURT

STATE OF WASHINGTON

1/8/2020

BY SUSAN L. CARLSON

CLERK

THE SUPREME COURT OF WASHINGTON

In re the Personal Restraint of

)

LINDA RENAE CLARK,

Petitioner.

No. 97108-1

ORDER

Court of Appeals

No. 75330-4-1

)

Department II ot the Court, composed of Chief Justice Stephens and Justices Madsen,

Wiggins, Gordon McCloud and Montoya-Lewis (Justice Yu sat for Justice Madsen), considered

this matter at its January 7, 2020, Motion Calendar and unanimously agreed that the following

order be entered.

IT IS ORDERED:

That the Petitioner’s motion to modify the Commissioners ruling is denied.

DATED at Olympia, Washington, this 8th day of January, 2020.

For the Court

CHIEF JUSTICE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

NO. 75330-4-1

LINDA RENAE CLARK,

Petitioner,

SUPREME COURT NO. 97108-1

MOTION TO MODIFY RULING

DENYING REVIEW

STATE OF WASHINGTON,

Respondent.

COMES NOW Linda Renae Clark, Pro Se Petitioner, and moves the Court for

relief as designated below.

Ms. Clark requests leave from this honorable Court to modify the ruling denying

review of her Personal Restraint Petition signed by the Commissioner of this Court on

September 5, 2019.

Ms. Clark has set forth Jhe reasons for this motion in the attached Memorandum

in addition to the interests of justice.

THEREFORE, Ms. Clark asks that her Motion to Modify Ruling Denying Review

be granted.

DATED this 29th day of October 2019.

Respectfullyjsubmiti/ed,

I ;

-'Vi

4A_

Linda Renae Clark"*

Pro Se Petitioner

k-%

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

NO. 75330-4-1

LINDA RENAE CLARK,

Petitioner,

SUPREME COURT NO. 97108-1

MEMORANDUM IN SUPPORT OF

MOTION TO SET ASIDE RULING DENYING

DISCRETIONARY REVIEW

STATE OF WASHINGTON,

Respondent.

COMES NOW Linda Renae Clark, Pro Se Petitioner, and moves the Court for relief as

designated below.

k'3

TABLE OF CONTENTS

Statement of the Case.........

....1

Argument....................

........5

lternative to

to the Court of Appeals in

™SompsAp

Appeals1. in l„e “Cso^ ^ M°*

B.PUBL,?Def“^

CLARK'S

ion to the, Court of

OFF.CE AND MS.

Mr. Terrillion Filed the Motion in t ™’Commitied Fraud/Promissory Fraud when

Intentionally

Concerning the Necessity Defense and

Affirmative Defense

HAVINGANY lNTENTI0N to Pursue ™is

....14

the CHARGES AgSmsc"^^ED T0 PE™Rm AN ..DEPENDENT lNVEST,GAT,ON OR

...........................

..................................... 20

•"t-.

Memorandum in Support of

Motion to Modify

Stale w. Linda Kenac Clark

table of authorities

RULES AND STATHTpc;

Code of Judicial Conduct.....

........v.5, 6, 8, 13

CrR 7.8(c)(2).....................

....13

Elements of Fraud/Promissory Fraud.........

Law of Contracts (3d ed. 1987) § 9,

................................................16

16, P. 360 Rest. 2d,

contracts § 164,com.c. pp. 246-447

.....17

Prosser, Torts § 104,at 744-45...........

....18

Prosser on Torts 745 (3d ed. 1964)..........

......19

United States Constitution, Amendment VI........

......6, 20

United States Constitution, Amendment XIV

Washington Constitution, Article I, Section 22....

....6

CASES

Sherman v. State, 128 Wash 2d,

State v. Bilal, 77 Wash App 720

164, 206, 905 P.2d 355 (1995)

, 722, 893 P.2d 674 (1995)

Wolfkill Feed & Fertilizer Corp. v. Martin,

Mayberry v. Pennsylvania, 400 US 455,

:::.7

463, 91 S.Ct. 499, 27 L.Ed 2d 531 (1971)

H> 14, 75 S.Ct. 11, 99 L.Ed 11 (1954)

West v. Washington State Ass n ofdist, 361 P.3d 210,

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

103 Wash. App 836, 840,14 P.3d 877 (2000).

State ex rel Carroll, Junker> 79 Wash 2d ^ ^ ^ p ^ ^ ^

Offutt v. United States, 348 U.S.

7,8

Wash COA Div 1 2015

Wilbur v. City of Mount Vernon, 989 F.Supp. 2d 1122 (2013)...........

9,10, 20

State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987)..................1.

State v. Jury, 19 Wn.App. 256, 263, 576 P2d 1302 (1978).................

State v. Ward, Court of Appeals No. 77044-6, Review Denied 9/4/19

11, 12,20

State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010)..................

Lazar v. Superior Court, 909 P.2d 981 Cal.SC 1996..........................

Union Flower Market Ltd. v. Southern California Flower Market, Inc. (1938) 10 Cal 2d 671,

676, 76 P.2d 503

Engalla v. Permanente Medical Group, Inc. 15 Cal 4th 951-Cal Supreme Court 1997 ....17

Yellow Creek Lodging Corp. v. Dave 1963, 216 Cal.App. 2d 50, 55 [30 Cal.Rptr. 620J..17

Earl v. Saks & Co. (1951) 36 Cal.2d 602, 611 [226 P.2d 340]..........................

Estate of Michelle Schwarz v. Philip Morris USA, Inc., 272 Or App 268 (2015)

Law v. Sidney, A1 Ariz. 1, 5, 53 P.2d 64, 66 (1936).....

Edginton v. Fitzmaurice, 1882, L.R. 29 Ch.Div 359

Sproul v. Fossi,'548 P.2d 970, Or Supreme Court 1976

Elzaga v. Kaiser Found Hospitals, 259 O. 542, 548, 487 P.2d 870 (1971)....

Conzelman v. N. W.P. & D Prod. Co., 190 Or. 332, 352, 225 P.2d 757 (1950)

OTHER

Quigley, William P., The Necessity Defense in Civil Disobedience Cases: Bring in the Jury, 38

New.Eng.L.Rev. 3 (2003), Loyola University New Orleans College of Law Research P&per

Memorandum in Support of

Motion to Modify

State I’. Linda Uenae Clurk

iii

Statement of the Case

Ms. Clark was charged in 2014 for burglary in the second degree and intent to

take/conceal a pet. Even before her arraignment, Ms. Clark insisted to her public defender, Dean

Terrillion, that the necessity defense is applicable in her case.

Prior to arraignment Ms. Clark sent Mr. Terrillion numerous documents including a

witness list (which included persons from animal rescue organizations) and numerpus emails to

these various rescue organizations concerning the plight of the dogs.

On or about April 2, 2015, at the request of Mr. Terrillion, Ms. Clark sent him two

proposed motions. One of these motions was titled “Motion for Defense of Necessity.” (Exhibit

A). After being pressed by Ms. Clark for a response to these proposed motions, Mr. Terrillion

responded that his and Ms. Clark’s defense strategies differ in that he is focusing on the

curtilage aspect of the case despite his being confident the state will be able to overcome such

a defense (Exhibit B).

Mr. Terrillion sent Ms. Clark his August, 18, 2015 email outlining his opinion that Ms.

• Clark’s case didrnot satisfy the criteria for a necessity defense. Mr. Terrillion’s email was

erroneous in numerous ways, first and foremost that the protection order he claimed the state

would use against Ms. Clark was not put into place until after the incident for which Ms. Clark

was charged. Further, Ms. Clark did not once agree with Mr. Terrillion that the necessity

defense did not apply in her case.

Based on Mr. Terrillion’s refusal to seek a necessity defense in her case and his

recommendation that she accept the state’s plea agreement, Ms. Clark asked that he

communicate with the prosecutor’s office concerning the plea agreement. When the replacement

prosecutor, Rosemary Kaholokula, relayed the new plea agreement it contained a 1000 foot

Memorandum in Support of

Motion to Modify

Stale v. Linda Rcnue Clark

radius protection order (Exhibit C). Ms. Clark lives in the small town of La Conner. At the time

she lived within 600 feet of the alleged victims’ place of business. 'Ms. Clark’s livelihood of

caring tor and walking her client’s companion animals depended on her ability to move freely

throughout the town. The 1000 foot radius meant Ms. Clark would have to move, close her dog

walking/pet sitting business, leave her clients without care for their companion animals, become

homeless, penniless, and without a car of her own have no way to leave town with any of her

belongings. Mr. Terrillion was unable to properly advocate for Ms. Clark to convince the

prosecutor to reduce the 1000 foot radius distance.

On October 12, 2015 the state filed its Motions in Limine. Motion A requested the court

prohibit Ms. Clark from calling any witnesses other than Ms. Clark herself. Further informing

the court that the state has not been made aware of any witnesses the defense plans to call nor

has the defense filed a witness list. Motion C requested the court prohibit Ms. Clark from

utilizing the necessity defense.

On Octobei 16, 2015 Mr. 'ferrillion filed the defense’s Motions in Limine which included

• among others Motion 2, the ability to utilize the necessity defense, Motion 3, Unanimity, and

Motion 5, Sick Dog, preventing the state from entering evidence that the dog died as a result of

walking by Ms. Clark.

On October 18, 2015, Mr. Terrillion sent an email to Ms. Clark (Exhibit D) attaching the

state and defense’s motions in limine. Mr. Terrillion informed Ms. Clark that he was prepared to

seek a necessity defense instruction. Ha further stated that although the state had made a motion

to preclude the defense of necessity that he had found case law that would allow that to be

overturned on appeal if granted yet the defense provided sufficient evidence for the ruling. Mr.

Terrillion goes on to say he has won many of his cases on appeal. Further, he advised Ms. Clark

Memorandum in Support of

Motion to Modify

Stale v. Linda Rettae Clark

he feels quite positive about her case in

front of a jury and that she will present well to the jury

and will like her. Lastly, Mr. Terrillion advises Ms. Clark that he w

will be questioning her about

her experience as a dog walker, pet owner, small business

owner, etc. with an end goal of

conveying her expertise regarding animals to the jury. (Exhibit E)

A. the pre-trial hearing on October 19,2015, the court granted the State’s Motions A and

B without objection by defense counsel thereb

y precluding the defense from calling anyone other

than Ms. Clark as a witness. The state moved for its Motion C and requested sanctions against

Mr. Terrillion for filing his motion concerning use

of the necessity defense. The court reserved

its right to rule on the state’s Motion C, giving the defense the opportunity to present evidence

concerning the necessity defense. (Exhibit F.) The Court reserved the right to

rule on the

defense’s Motion 2 and denied its Motions 3 and 5.

Following her trial and conviction in October 2015, Ms. Clark in November 2015

submitted a fetter to Ms. Conglaton with the Washington State Bar complaining about Mr.

Terrillion, Ms. Kaholokula, and Judge Brian Stiles. (Exhibit G).

On March 18, 2016, Ms. Clark was represented by Jennifer Rancourt,

a conflict attorney

from the Snohomish Public Defender’s Association, in a hearing on a motion for a new trial.

Ms. Rancourt argued Ms. Clark’s original public defender, Dean Terrillion, was ineffective as

counsel for failing to utilize the necessity defense, failing to investigate the charges and Ms.

Clark’s claims, and failing to seek new counsel for Ms. Clark when communication b

roke down

between Ms. Clark and Mr. Terrillion. „

Despite the letter sent by Ms. Clark to the Washington State Bar, Judge Stiles failed to

recuse himself from the matter and heard the

arguments on Ms. Clark’s motion for a new trial.

Her motion was denied.

Memorandum in Support of

Motion to Modify

State f. Linda lienac Clark

Ms. Clark, acting as a pro se litigant, filed a new motion for trial in March 2016.

In March 2016, Ms. Clark filed a Writ for Habeus Corpus with the Superior Court for

Skagit County. Judge Stiles presided over the hearing. Ms. Clark told Judge Stiles something to

the effect that she means no offense but the reason she filed the writ was so that someone other

than Judge Stiles could decide it. Ms. Clark attempted to have Judge Paxton hear her Habeus

Corpus petition, but was informed that Judge Stiles would be handling the Ex Parte calendar on

that particular day. After that, Ms. Clark decided to incorporate her Habeus Corpus petition into

her Motion for New Trial.

At a March 30, 2016 hearing concerning Ms. Clark’s pro se motion for new trial, Ms.

Clark requested that a judge other than Brian Stiles hear the motion. The court denied Ms.

Clark’s request.

At a hearing on April 15, 2016, Ms. Clark formally requested that Judge Stiles recuse

himself from hearing the habeus corpus petition as well as the motion for new trial. Judge Stiles

denied Ms. Clark’s request.

On the first day of the motion for new trial hearing, May 27, 2016, the state objected to

the court hearing Ms. Clark’s motion and indicated the Court of Appeals should hear it. The

court proceeded with the hearing, despite the state’s objection. The court ordered that all but the

ineffective assistance claims present in Ms. Clark’s motion for a new trial be forwarded to the

Court of Appeals as a personal restraint petition. The Superior Court did not address Ms. Clark’s

Writ for Habeus Corpus. (Exhibit H)

During testimony, Ms. Clark garnered testimony from Mr. Terrillion’s paralegal,

Esmeralda Romero, that she did not contact or subpoena any witnesses for Mr. Terrillion nor did

she schedule a pre-trial meeting with Ms. Clark and Mr. Terrillion. (Exhibit I)

Memorandum in Support of

Motion to Modify

State v. Linda lienae Clark

Ms. Clark garnered testimony from Keith Tyne, the Director of Public Defender’s Office

and Mr. Terrillion s supervisor, that “communication breakdown was an issue between Ms.

Clark and Mr.Terrillion”. (Exhibit J)

Ms. Clark garnered testimony from Mr. Terrillion that he relied on the accuracy of the

police reports, his investigator’s interviews of the police officers, and nothing else in determining

his legal strategy in this case. Mr. Terrillion also testified that he had no intention of calling any

witnesses or seeking a defense necessity instruction when he filed the defense’s motion in limine

and forwarding it in his 10/18/15 email to Ms. Clark. (Exhibit K)

On or about July 12, 2016, the Superior Court denied Ms. Clark’s motion for a new trial

based on ineffective assistance of counsel on all counts.

Ms. Clark filed another motion for a new trial, but realized that there was little likelihood

she would be successful as long as Judge Stiles refused to recuse himself and Rosemary

Kaholokuia was the prosecutor. The letter Ms. Clark sent to the court is attached as Exhibit M.

Ms. Clark believed the Notice of Appeal she filed in November 2015 (Exhibit N) would

cover appeal of the denial of the Superior Court of her motion for new trial in March 2016 and

July 2016. The Court of Appeals commissioner disagreed. Ms. Clark’s appellate counsel did not

appeal this ruling nor did counsel request an extension of time pursuant to the Court of Appeal’s

authority to grant the same to file a new Notice of Appeal. Therefore, any evidence and

testimony given during the motion hearing was not available on direct appeal.

Argument

Judge Stiles had a Duty to Recuse Himself or in the Alternative to

Transfer Ms. Clark’s Entire Motion For New Trial of March 2016 to the Court of

Appeals in the Form of a Personal Restraint Petition

Memorandum in Support of

Motion to Modify

State v. Linda lienae Clark

The Code of Judicial Conduct states that “

indispensable to our system of justice,

An Independent, fair and impartial judiciary is

The United States legal system is based

principle that an independent, impartial

upon the

, and competent judiciary, composed of men and women

Of integrity will interpret and apply the law that governs our society".

It also states that ’’judges should strive to

exceed the standards of conduct established by

the Rules, holding themselves to the highest ethical standards a

nd seeking to achieve those

aspirational goals, thereby enhancing the dignity of the judicial office.’’2

It further states that “ a judge shall uphold and promote the independence, i

integrity, and

impartiality of the judiciary, and shall avoid i

impropriety and the appearance of impropriety,

‘'A judge shall uphold a nd apply the law, and shall perform all duties ofjudicial office

fairly and impartially.”4

Rule 2.11 - Disqualificiation - specifically states that “

(A) a judge shall disqualify

himself... in any proceeding in which the judge’s impartiality might

reasonably.be questioned,

including but not limited to the following circumstances:

(1) The judge has a personal bias

Lastly, according to Rule 2.15

or prejudice concerning a party...”

Responding to Judicial and Lawyer Misconduct - “(B) a

judge having knowledge that a lawyer has committed a violation of the Rules

of Professional

Conduct that raises a substantia] question regarding the lawyer’s honest,

fitness as a lawyer in other respects should inform the

trustworthiness, or

appropriate authority.”

Under the state and federal constitutions, a criminal defendant has the right to b

sentenced by an impartial court.5, 6

, Code of Judicial Conduct Preamble

Lode of Judicial Conduct Scope [4]

4 Code of Judicial Conduct Canon 1

Code of Judicial Conduct Rule 2.2

Memorandum in Support of

Motion to Modify

State k Linda Renuc Clark

e tried '&

According to Sh

erman v- StMe, 128 Wash 2d,

164, 206, 905 P.2d 355 (1995),” the test for

determining whether the i

ejudge’s impartiality might

reasonably be questioned is an objective

that assumes a reasonable observer k

test

nows and understands all the relevant facts.”

Sherman at

378.

Sherman also points out that in

deciding recusal matters,

actual prejudice is not the

recognizes that where a trial judge’s decisions

are tainted by even a mere

suspicion of partiality, the effect on th

e public s confidence i

m our judicial system can be

debilitating. Id.

standard. The CJC

Recusal decisions lie wi

within the sound discretion of the trial

court, State v. Bilal, 77 Wash

of discretion Wolfkill Feed &

Fertilizer Corp v. Martin, 103 Wash. App 836,840,

14 P.3d 877 (2000), howeve

found to abuse its dis

cretion when its decision is

untenable grounds or for

manifestly unreasonable or is exercised on

untenable reasons, State ex rel Carroll

482 P.2d 775 (1971). Eve„ where'

Pennsylvania, 400 US 455,

r the court is

v. Junker, 79 Wash. 2d 12, 26,

recusal is not required, it may be w

well-advised. Mayberry v.

463, 91 S. Ct. 499 27 L.Ed 2d 532 (1971).

.....................................................................

attacked. The Court stated “[W]e do

not say that the more viscious the

attack on a judge the less qualified he i

IS to act. A judge cannot

be driven out of a

case.” 400 U.S. at 463-64,

91 S.Ct. 499. Yet, it is generally wise where the

marks of... unseemly conduct hav

e left personal stings to ask a fellow

judge to take his place. Id

3t 464’ 91 S‘Ct- 499. “The vital point i

is that m sitting in judgment...

the judge should not himself

Memorandum in Support of

Motion to Modify

State V. Linda Renae dark

give vent to personal spleen or respond to a personal grievance.” Id at 465, 91 S.Ct. 499

(quoting Offutt v. United States 348 U.S. 11,14, 75 S.Ct. 11, 99 L.Ed 11 (1954).

In West v. Washington State Ass 'n ofdist, 361 P.3d 210, Wash COA Div 1 2015, the

court stated “we review a trial court’s decision whether to recuse for abuse of discretion. West v.

Washington, 162 Wash App 120, 252 P.3d 406 (2011). In determining whether recusal is

warranted, actual prejudice need not be proved, a mere suspicion of partiality may be enough.

Sherman v. State, 128 Wash 2d 164, 205, 905 P.2d 355 (1995). The test for determining whether

a judge’s impartiality might reasonably be questioned is an objective test that assumes that a

reasonable person knows and understands all the relevant facts. Sherman v. State 128 Wash. 2d

164, 206, 905 P.2d 355 (1995).

In November 2015, Ms. Clark sent a lengthy letter to the Washington State Bar

complaining about Mr. Terrillion’s performance as her public defender leading up to and during

trial. As part of this letter, Ms. Clark also complained against Judge Stiles that he failed to

adhere to CJC 2.15 by failing to bring attention to the authorities that Mr. Terrillion lacked the

commensurate skill and preparation for representing Ms. Clark in her defense.

Ms. Clark requested Judge Stiles recuse himself and that the trial court assign a different

judge to her motion for new trial and Habeus Corpus Petition filed in March 2016. Both of these

pertained directly to the performance by Mr. Terrillion and his ineffective assistance as Ms.

Clark’s counsel. (Exhibit O)

Judge Stiles heard testimony wherein Mr. Terrillion admitted to relying on nothing more

than the police reports in determining Ms. Clark’s defense. He further admitted that he did

nothing to investigate the case other than to interview the officers who had written reports in the

matter and relying on the testimony of the state’s witnesses, e.g. the alleged victims and the

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

reporting oificers. Nor did he meet with Ms. Clark prior to trial to prep her for her testimony and

elaborate On his trial strategy.

MH 86, line 9

So let s go to the trial. Prior to our trial date, what kind of trial preparation had you engaged in?

Investigation by my expert investigator, researching case law, numerous consultations with you,

with other attorneys, extensive plea negotiations with two separate prosecutors where I obtained

misdemeanor deals from both or either. I prepared a trial notebook. I took your case home on the

weekends, several weekends, at least three or four weekends, including the weekend prior to trial, I was

well prepared for trial, I believe.

Had you done any research into animal abuse?

Not research. I did look at the websites you sent me, reviewed some of those materials, but not

what I would call research.

* r|:

Prior to trial, in between our last meeting, our meeting on July 21s1, did you ask Ms. Romero to

schedule an appointment for me to come into your offices so that we could prepare for trial?

I don’t remember. I don’t recall.

Did you call me - did you schedule an appointment at all to prepare for me testifying?

1 don’t recall doing that.

***

MH 25, line 18

So you indicated, again, about the evidence. Did you look at - and you also testified that you

didn’t look at the letters that were part of the police report from the November 6lh incident, is that correct?

If it was information that was accompanying the police reports, I would have'looked at it.

And in those letters, my* concern was not quote/unquote about feces or things in the garage at that

time; is that correct?

I think there were several letters that you — that you wrote. Can you be more specific, which one

we’re talking about?

So in the letter that I sent to Janine Ceja on November 3rd indicating that the dogs were suffering

because the Scotts were not winterizing their garage and closing the man door so that they can have a break

from the winter elements, there was nothing in there about a current condition about feces; correct?

Correct. I think -1 think there was nothing in your letter about them living in feces. Is that what

you're Correct.

I think that’s right. Yes.

And so my concern at the time was about their exposure to the elements, is that correct?

I think at least in part, yes.

And with regard to that, you indicated that you hadn’t contacted any independent parties about

those concerns. Did you do any additional research on your own behalf to confirm whether or not those

concerns expressed in that letter were valid or not?

Beyond what my investigator discovered and the other police reports, no, 1 didn’t - I mean 1 don’t

know how 1 would have done that. 1 don’t know what you’re asking me. I mean Q.

I’m asking if you did any independent investigation as to what constitutes forms of animal abuse.

No.

MH 12, line 21

QQGU0BBI3QBGBGBIBBIBB1BDIBIIIIBIIIIII

Memorandum in Support of

Motion to Modify

State t'. Linda Renae Clark

■■■•>■■.......................... in..................... •■■■■■■■■■in

... Prior to determining that a necessity defense was not a viable option, who had - what

independent third party had you contacted whose primary occupation deals with the

wellbeing of canine companions as to whether my concerns that Zalo and Ellie, who were

senior and ill at the time, were suffering duet to the winter elements and the lack of

proper shelter?

Well, first, there was no evidence ol the dogs suffering or lacking proper shelter. Are

you asking me why 1 didn’t retain a dog expert?

I m asking you if you contacted anybody to confirm whether or not my concerns were

valid.

In terms of, like, an expert witness? A dog expert? No. •

Prior to making that determination, had Mr. Kelly gone to, the house and taken any photos

of the interior of the Scotts’ garage?

I don’t believe so.

Had he taken any photos of the enclosure, the outdoor enclosure?

1 don’t think so. I mean we had -1 had photos of that - of that area, but 1 don’t

remember if Joe took any photos also. I don’t recall using any that he took at trial. We would

have had him come in to testify.

In Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (2013), the District Court,

Western District of Washington found the cities of Mount Vernon, Washington and Burlington,

Washington in violation of the Sixth Amendment rights of indigent criminal defendants for

contracting with public defenders who did nothing more than “see and plea” by encouraging

indigent criminal defendants to plead guilty or some sort of offer made by the prosecutor's office

without having conducted any sort of an independent investigation and relying solely on the

police reports. Judge Stiles’ court is in this same jurisdiction.

in general, counsel presumed that the police officers had done their jobs correctly

and negotiated a plea bargain based on that assumption.... Adversarial testing of

the government’s case was so infrequent that it was virtually a non-factor in the

functioning of the Cities’ criminal justice system. Wilbur at 1124.

jfc ;[c jJ;

As part of the injunctive relief, the court ordered that a quarterly analysis of the

Cities’ public defense system “(i) provides actual representation of and assistance

to individual criminal defendants, including reasonable investigation and

advocacy and, where appropriate, the adversarial testing of the prosecutor’s case.

Wilbur at 1136.

In her motion for new trial in March of 2016, conflict counsel Jennifer Rancourt

submitted an affidavit and informed the court (Judge Brian Stiles) that she reviewed Mr.

Terrillion’s entire case file and found he had conducted no independent investigation.

MH 3/18/2016 Page 12, line 4 -25, page 13, line 1:

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

.hia in ,h. previous pleadings, ,ha, she wanid lo pSe

dark had made i, very clear ,„ Mr.

“

pursued .n*k“ H^;t“S,d^n "'eS,f,h

ab°“' "halis

defense dulies were clarified a liltle bit with O^MUcJ' '"u^l'83'': Aftcr ,he ~ 1 lhit,k th«t the

some son of information that there is a I ense t^e f

5 T’’ y0U knowk°“ ha™

look into that possibility.

CX1StS’ y°U d° have an obligation to at least

deserves

“ b"°W

",el of'=are ,ha,'s appropriate. I think that she

In State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987), this Courl staled:

investigations. State v. Jury, 19 Wn.App. 256, 263,576 P.2d 1302 (1978).

In his March 2016 ruling denying Ms. Clark’s motion for

Ms. Rancourt argue that a breakdown in

new trial, Judge Stiles heard

communication had occurred. Judge Stiles ruled that

since Keith Tyne (director of Skagi, Public Defender’s Off.ee) did noi replace Mr. Terrillion as

counsel that no communication breakdown occurred.

However, during the evidentiary hearing in May 2016, Mr. Tyne testified that h

conversations with Ms. Clark concerning her complaint about Mr. Terrillion

because of the breakdown in communication

e had had

and further that

one of the effects was that Ms. Clark was not made

aware of a meeting scheduled with Messrs. Tyne and Terrillion to discuss their differences.

Despite this, the trial court still did not acknowledge a breakdown i

in communication.

Further, in his March 2016 ruling, the court stated:

There’s keen muck focus placed on the witness list that was presented to

[defense counsel] by Ms. Clark. Sure, you would have liked to see all those

focus on thlt ^b^ [defem6 C°UnSdl °f hiS $taff’ but h seems like *e whole

focus on that was they would only provide character evidence, and generally

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

(\-n

defense!*! “earlTaS the ^ *? Tf ^'° P,0.,he «»»*

one in any event particularly since^eT* ^ • efenSe wasn\g°mg to be a viable

defendant - certi^^K^^011"01.10 t£ffy’1 think that" by the

relative to a necessity defense.

Y mtroductlon of any sort of evidence

Mr. Terrillion testified he had

not contacted the persons Ms. Clark identified as expert

witnesses. The judge heard him testify that he did

area of animal abuse and care of k9

not contact any third parties experts in the

companions. Further, Mr. Terrillion’s decision to proceed

with a "dogs escaped theory” without first

consulting Ms. Clark in this regard denied her the

ability to testify in her own behalf.

In State v. Ward, Court of Appeals No. 77044-6, published opinion by th

e Court

Of Appeals, Division One (review denied by this court 9/4/19), the court cited State v.

Jones, 168 W„.2d 713, 719, 230 P.3d 576 (2010).

(page 5)

Th ngh 15 3 fundamental element of due process of law.

The Ward decision stated:

Below the trial court prohibited Ward from presenting evidence or

According to William Quigley in his article Necessity Defense: Bring

in the Jury

expense of lesser values, and

Memorandum in Support of

Motion to Modify

Stale v. Linda Renae Clark

sometimes the greater good for society will be

accomplished by violating the

ateiai language of the criminal law. 29

Because Ward testified on his own behalf and

to testify on Ward’s behalf and his cause

submitted the names of expert witnesses prepared

for attention to climate change, the Court of Appeals

ruled he presented sufficient evidence that he

reasonably believed the crimes he committed were

necessary to minimize the harms that he perceived.

The Court of Appeals stated that :

calculated^b"“e !°„ averSe^ ^ "“T

“reas0”ably

requires [the] expert testimony 2 e^el“Z he" was^ CHmaih Cha"ge

the {he',’rial

jury, andcourt,To

that whether

hpii^fc "'

not

de^ehie ^)

Because Ward was given the o

* WaS

"" PrePare<^

' qUeS‘i0"to present

the™

pportunity to testify on his own behalf, he

successfully laid the foundation for expert witness testimon

significantly less severe than Ms. Clark

y. Further, his sentence was

s, one must surmise because of his testimon y-

For two criminal acts for which ,h5 fact patterns are almost identical (E

xhibit P), Mr.

Ward received 240 hours of community service.

jail, 6 months community supervision, a

Ms. Clark was sentenced to 30 days in

mental health evaluation, as well as a protective

order in her small town of La Conner.

Further, Ms. Clark has shown her actions have changed the

care in the State of Washington with the passage of new laws in th

minimal standard of

e 2016 legislative

session.

Based on the fact that Ms. Clark complained to the Washington State Bar that Judge

Brian Stiles did no, adhere to the Code of Judicial Conduct 2.15, dud conflict counsel

, Jennifer

Rancourt, swore in an Affidavit that Mr. Terriiiion failed to conduct

Mr. Terriiiion testified himself that he did

Memorandum in Support of

Motion to Modify

State v. Linda Reitae Clark

a proper investigation and

not investigate anything other than the police reports,

it is highly unlikely a reasonable person aware of all of the facts would find that Judge Stiles did

not abuse his discretion by refusing to recuse himself when asked to do so by Ms. Clark on

numerous occasions.

11.

Trial Court had a Duty to Transfer All of Ms. Clark’s Motion to the Court of

Appeals in the Form of a Personal Restraint Petition

On or about May 27, 2016, trial court ordered that all of Ms. Clark’s motion for new trial,

with the exception of the claims for ineffectiveness, be transferred to the Court of Appeals

pursuant to CrR 7.8(c)(2) in the form of a personal restraint petition. The Superior Court did not

transfer Ms. Clark’s Habeus Petition, which was incorporated with the motion for new trial filed

March 2016 nor her ineffective assistance of counsel claim. (Exhibit Q).

Ms. Clark submits that the trial court abused its discretion, as pointed out above, by

failing to transfer her entire motion for decision to the Court of Appeals either before or after the

factual hearing took place.

Skagit County, Tjie Skagit County Public Defender’s Office and Ms.

Clark s Public Defender, Dean Terrillion, Committed Fraud/Promissory Fraud when

Mr. Terrillion Filed the Motion in Limine Concerning the Necessity Defense AND

Intentionally’Lied to Ms. Clark about Having any Intention to Pursue this

Affirmative Defense

From the outset of her case, Ms. Clark insisted that a necessity defense was applicable in

her case. Because of his failure to investigate her case, Mr. Terrillion never agreed with this

defense. Yet, on October 16, 2015, the day after Mr. Terrillion advised Ms. Clark to utilize a

jury trial and not a bench trial

QA.

Do you recall the discussion that we had outside the hearing room on October 15lh right before the

trial confirmation?

Maybe if you refresh my memory.

1 asked you if you would just have a judge find me guilty because I didn’t think that a jury would

understand why I did what I did.

Yes, we discussed that. We discussed the option of the judge bench trial versus a jury trial.

And you indicated that you believed that a jury would understand and that it wouldn’t be advisable

to have a judge just find me guilty, is that correct?

1 don’t recall. I do recall advising you to have a jury trial versus a bench trial.

Memorandum in Support of

Motion to Modify

State v. Linda Renae. Clark

Mr. Terrill ion filed a Motion in Limine asking that a necessity defense be allowed. In this

regard, Mr. Terrillion had done nothing more than:

So let s go to the trial. Prior to our trial date, what kind of trial preparation had you engaged in?

Investigation by my expert investigator, researching case law, numerous consultations with you,

with other attorneys, extensive plea negotiations with two separate prosecutors where I obtained

misdemeanor deals from both or either. I prepared a trial notebook. I took your case home on the

weekends, several weekends, at least three or four weekends, including the weekend prior to trial. I was

well prepared for trial, I believe.

He had not interviewed any third parties concerning Ms. Clark’s concerns and actions.

He had not spoken with her proposed expert witnesses, Tracy McCallum with the Olympic

Peninsula Humane Society, Jeane with Saving Grace Rescue, or Janine Ceja with the Skagit

County Humane Society, nor had he subpoenaed them for their testimony.

So would Tracy McAllen [sic McCallum], or Jean from Saving Grace Rescue, or Janine Ceja with

the Human [sic Humane] Society, would they be considered experts or quasi experts?

1 suppose they could be depending on what the issue was.

If the case was concerning animal abuse and animal cruelty, would they be considered reasonable

experts in that field?

That would be - again, that’s potentially, yes. If they had the requisite training, education, and

experience, then the judge can allow them to testify as experts if there’s an issue.

Were their names present on that potential witness list?

I would have to look, bbt I’m getting the sense that, yes.

Yes, they were. Did you make an effort to contact thoseA.

No. Again, they had no relevant, admissible evidence that I would be allowed to present.

As experts?

Correct in this case.... There would have to be evidence of abuse before they would be allowed

to testify about abuse.

Mr. Terrillion testified he never expected to get a necessity defense instruction. Even

were he to try, his sole strategy for laying the foundation for Ms. Clark’s testimony (were she to

testify) was reliant on two blurry and orange photos.

Correct. So you chose to use the necessity defense for burglary and not the misdemeanors; is that

correct?

To be clear, I did not choose to use a necessity defense. I knew at the outset upon filing this

motion that the Court would never give a necessity defense instruction in this case. This was done to make

our relationship smoother because you would not relent on the necessity defense, even though it was not

available. And I advised you countless times it was not available. So I would say yes to that.

Having no witnesses to bolster Ms. Clark’s assertion she had no choice but to intervene

on behalf of the dogs and having failed to get the state’s witnesses to provide the evidence he

Memorandum in Support of

Motion to Modify

State i>. Linda Kenae Clark

wanted/needed concerning the blurry and orange photos, Mr. Terrillion seized the opportunity to

argue the dogs escaped on their own.

When Mr. Scott testified about the number of times the dogs escaped, is there a reason that you

didn’t use his statements in the police reports to show that was an inconsistency in his statement?

No, I didn’t want that to be inconsistency. That was my theory of the case that the dogs had

escaped, so...

And when did you decide to pursue that theory?

As soon as the jury heard that evidence. I was hopeful at the beginning of the trial that they would

hear that evidence, the Prosecutor would present it, which she did. That was going to, you know, that was

the theory of my case because 1 was certain that we weren’t going to give the necessity instruction. Or at

least I planned not to give the necessity instruction. (Emphasis added)

And is there a reason that you didn’t discuss that theory with me prior to trial?

Which theory, about the dogs escaping?

About the dogs escaping.

Because at the beginning of the trial, I was under the impression the photos - you told me that the

photos you gave me, that we had blown up depicted a certain thing. That’s not what they depicted. So

what 1 was planning to be my primary evidence turned out that it wasn’t what you said that it was. So 1 had

to go with an alternate theory. Unfortunately the evidence about the dogs escaping got in front of the jury.

And with that theory of the dogs escaping, how likely was it that I would be able to testify in order

to bolster that theory?

Almost -1 would say none. We discussed that.

Prior to trial?

Prior to trial 1 didn’t know that you had misrepresented what that evidence showed.

Mr. Terrillion’s promise to seek a necessity defense instruction caused Ms. Clark to

depend on Mr. Terrillion to present a defense in that regard. Ms. Clark expected to be able to

testify in her own defense. Because of this, she did not continue to pursue re-assignment of her

case to another attorney. She entered the courtroom on October 19, 2015 expecting Mr.

Terrillion would put the government’s case to an adversarial testing. She believed she would get

to testify to tell her side of the story to minimize the harm caused by the prosecution and the

state’s witnesses.

Because Ms. Clark was unable to testify, her side of the story did not come out„§nd she

was convicted on both the misdemeanor and felony, sentenced to extensive penalties, among

other life-altering things.

The elements of fraud in the

State of Washington are:

The elements for common law

promissory fraud are:

(1) Representation of an existing fact;

(2) Materiality of the representation;

(1) the defendant made a promissory representation;

(2) the representation was, at the time it was made,

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

(3) Falsity of the representation;

(4) The speaker's knowledge of its falsity;

(5) The speaker's intent that it be acted upon

by the plaintiff;

(6) Plaintiff's ignorance of the falsity:

(7) Plaintiff's reliance on the truth of the

representation;

(8) Plaintiff's right to rely upon it; and

(9) Resulting damage.

false;

(3) the defendant knew that the representation was

false or acted with-reckless disregard of its truth;

(4) it was foreseeable that someone in the claimant’s

position would act or refrain from acting in reliance

on the representation;

(5) the claimant justifiably relied on the

representation, which is to say that, because of the

Representation, the claimant reasonably expected that

promise would be performed and relied on the

Expectation; and

(6) the claimant suffered damages as a proximate

result of his/her reliance

This is likely a case of first impression in the State of Washington. However,

Washington s fellow courts in the Ninth Circuit have this to say concerning promissory fraud.

In Lazar v. Superior Court, 909 P.2d 981 Cal. SC 1996, a case concerning an employee

relying on his potential employer’s intentional false promises which caused him to quit his job,

move from New York to California, remove himself from the New York job market, etc. only to

have his job taken from him about two years later, it stated: Promissory Fraud is a subspecies of

the action for fraud and deceit. A promise to do something necessarily implies the intention to

perform, hence, where a promise is made without such intention, there'-is an implied

• misrepresentation of fact that may be actionable fraud. (Union Flower Market, Ltd. v. Southern

California Flower Market, Inc. (1938) 10 Cal 2d 671, 676, 76 P.2d 503.

In Engalla v. Permanente Medical Group, Inc., 15 Cal 4th 951-Cal Supreme Court 1997

the Court states that "False misrepresentations made recklessly and without regard for their truth

in order to induce action by another are the equivalent of misrepresentations knowingly and

intentionally uttered.” Yellow Creek Lodging Corp. v. Dave 1963, 216 Cal.App. 2d 50, 55 [30

Cal.Rptr. 620] and ;‘A defrauded party has the right to rescind a contract, even without a showing

of pecuniary damages, on establishing that fraudulent contractual promises inducing reliance

have been breached. {See Earl v. Saks & Co. (1951) 36 Cal.2d 602, 611, [226 P.2d 340].

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

The Law of Contracts (3d ed. 1987) § 9,16, p. 360 Rest. 2d, contracts, § 164, com.c. pp.

246-447). The rule derives from the basic principle that a contracting party has a right to what it

contracted for, and so has the right “to rescind where [s]he obtained] something substantially

different from that which he [is] led to expect.” Earl v. Saks & Co., supra, 36 Cal.2d at p.612)

In the Estate of Michelle Schwarz v. Philip Morris USA, Inc., 272 Or App 268 (2015) the

Oregon Court of Appeals upheld a $25 million punitive damages award against Philip Morris for

intentionally misleading the public when they introduced their “low-tar” cigarettes touting their

health benefits, which were believed by Michelle Schwarz, leading to her untimely death at the

age of 53. The initial trial led to a $150 million punitive damages award after the jury found

Morris guilty of fraud by clear and convincing evidence:

No. 1: Philip Morris made false representations that low-tar cigarettes delivered less tar

and nicotine io the smoker and were, therefore, safer and healthier than regular cigarettes and an

alternative to quitting smoking;

No. 2: Philip Morris knew the representations were false or recklessly made the

representations without knowing if they were true or false:

No. 3: Philip Morris intended to mislead Michelle Schwarz;

No. 4: Michelle Schwarz reasonably relied on Philip Morris's representations;

No. 5: Michelle Schwarz suffered injury and death as a direct result of her reliance on

Philip Morris's misrepresentations.

In determining whether the $25 million award was unreasonable the court evaluated it based on

the reprehensibility of defendant's conduct, e.g. whether:

the harm caused was physical as opposed to economic; the tortuous conduct

evinced an indifference to or reckless disregard of the health or safety of others;

the target of the conduct had financial vulnerability, the conduct involved

repeated actions or was an isolated incident; and the harm was the result of

intentional malice, trickery, or deceit, or mere accident. (Emphasis added)

In Law v. Sidney (47 Ariz. 1, 5, 53 P.2d 64, 66 (1936) “such promissory fraud lies not in

the subsequent failure to perform, but in the misrepresentation of present state of mind. See

Prosser, Torts § 104, at 744-45 statement in Edginton v. Fitzmaurice, 1882, L.R. 29 Ch.Div 359,

to the effect that “The state of a man’s mind is as much a fact as the state of his digestion.”

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

In Sprout v. Fossi, 548 P.2d 970, Or Supreme Court 1976 “[i]t is sufficient if the

evidence shows either an intent not to perform the promise or that the promise is made with a

reckless disregard whether the promisor can or cannot perform the promise. Elzagu v. Kaiser

Found Hospitals, 259 Or. 542,548, 487 P.2d 870 (1.971) citing Prosser on Torts 745 (3d. ed.

1964) “It is also established that a fraudulent intent not to keep a promise can be inferred if

sufficient circumstances are shown to support such an inference.” Conzelman v. N.W.P. & D.

Prod. Co., 190 Or. 332, 352, 225 P.2d 757 (1950).

Ms. Clark submits the sworn testimony of Mr. Terrillion at the hearings on May 27,

2016, June 17, 2016, and July 5, 2016 provides undeniable evidence that Mr. Terrillion made a

promise to Ms. Clark when he informed her he had filed a Motion in Limine concerning his

seeking a necessity defense instruction on her behalf; and that she would be able to testify on her

own behalf consistent with a necessity defense. Mr. Terrillion intentionally lied to Ms. Clark

regarding his intention to seek the necessity defense instruction and provide supporting evidence

at trial in that regard. Mr. Terrillion had conducted no independent investigation into Ms.

Claik s case prior to making this promise nor had he subpoenaed any witnesses or expert

witnesses on Ms. Clark’s behalf. Nor did he object when the court granted the state’s motion to

preclude defendant from calling any witnesses other than the defendant herself.

Further, Mr. Terrillion had made no effort to prep Ms. Clark concerning her own

testimony at trial to offer evidence supporting a necessity defense.

Because Mr. lerrillion was Ms. Clark’s court-appointed attorney, she made reasonable

reliance on the promise made to her by Mr. Terrillion. Because Mr. Terrillion had no intention

°f presenting evidence in order to get a necessity defense instruction he jumped at the

opportunity to claim the dogs had escaped on their own which he testified gave Ms. Clark no

Memorandum in Support of

Motion to Modify

State v. Linda Renae Clark

basis for testifying on her own behalf. As a result, Ms. Clark had no opportunity to minimize the

damage done by the prosecuting attorney and to get her side of the story in front of the jury.

I hus, Ms. Clark's sentence was likely significantly more severe than it likely would have been.

In State v. Kenneth A. Ward, a case with a very similar fact pattern and similar charges

against the defendant, Mr. Ward was able to testify on his own behalf giving his side of the story

and being sentenced only to community service. Ms. Clark’s punishment was 30 days in jail, 6

months community probation, mental health evaluation, and a protection order against her.

Ms. Clark relied on Mr. Terrillioif s promise to her great detriment. Therefore, Ms. Clark

requests this court to act in the interests of justice and grant her a new trial.

Skagit County, and the State of Washington Violated Ms. Clark’s

Constitutional Rights when they Contracted with Public Defenders who Relied

Solely on the Police Reports and Failed to Perform an Independent Investigation of

the Charges Against Ms. Clark

Pursuant to Wilbur v. City ofMount Vernon, 989 F. Supp. 2d 1122 (2013) the direct

testimony of Dean Terrillion (Exhibit R) providesprima facie evidence that Skagit County and

the State of Washington violated at least Ms. Clark’s Sixth Amendment Rights when they

contracted with Skagit County Public Defender’s Office who relied solely on the police reports

when determining Ms. Clark’s defense and ability to negotiate concerning plea deals made by

the Skagit County Prosecuting Attorney’s Office.

THEREFORE, Petitioner motions this court to modify or set aside its Ruling Denying

Discretionary Review.

DATED this 29th day of October 2019.

;

IRespectfully Mbmitted,

\jL^-

Linda Renae'CIark

Pro Se Petitioner

Memorandum in Support of

Motion to Modify

Stare r. Linda ttenae Clark

APPENDIX B

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of:

No. 9 7 1 0 8-1

LINDA RENAE CLARK,

Petitioner.

Court of Appeals No. 75330-4-1

RULING DENYING REVIEW

Linda Clark timely filed a motion for a new trial in Skagit County Superior Court

following her jury conviction for second degree burglary and taking a pet animal. The

superior court transferred all of the claims in the motion except ineffective assistance

of counsel to Division One of the Court of Appeals for consideration as a personal

restraint petition. CrR 7.8(c)(2). The petition was stayed pending final resolution of

Ms. Clark's direct appeal, then lifted after the Court of Appeals affirmed the judgment

and sentence and this court denied review. The acting chiefjudge dismissed the petition,

and Ms. Clark now seeks this court’s discretionary review. RAP 16.14(c).

To obtain this court’s review, Ms. Clark must show that the acting chiefjudge’s

decision conflicts with a decision of this court or with a published Court of Appeals

decision, or that she is raising a significant constitutional question or an issue of

substantial public interest. RAP 13.4(b); RAP 13.5A(a)(l), (b). To obtain

postconviction relief, generally, Ms. Clark must show that she was actually and

substantially prejudiced by constitutional error or that her trial suffered from a

SrA

No. 97108-1

Page 2

nonconstitutional error that inherently resulted in a complete miscarriage of justice. In

re Pers. Restraint of Gomez, 180 Wn.2d.337, 347, 325 P.3d 142 (2014). If Ms. Clark

ultimately fails to present an arguable basis for collateral relief in law or in fact given

the constraints of the personal restraint petition procedure, her collateral challenge must

be dismissed as frivolous under RAP 16.11 (b). In re Pers. Restraint of Khan, 184 Wn.2d

679, 686-87, 363 P.3d 577 (2015).

Ms. Clark s'eeks review of three issues: (1) whether the acting chief judge had a

conflict of interest; (2) whether the acting chief judge erred by not considering all of

Ms. Clark’s grounds for relief; and (3) whether the petition that was transferred from

the superior court to the Court of Appeals is not a true and accurate copy of the petition

that

Ms. Clark filed.1

Ms. Clark argues the acting chief judge has a conflict of interest because he is

paid a salary by the State of Washington and therefore has a personal bias concerning

the State’s case against her. The fact that judicial officers receive a salary from the State

does not create a conflict of interest, since there is no evidence that a judicial officer’s

salary is changed based upon judicial rulings or decisions in any particular case. No

independent observer could reasonably question any judicial officer’s impartiality on

.... this basis. CJC 2.11 (disqualification).

.................. ..

Ms. Clark also contends that the acting chief judge failed to address her claims

of ineffective assistance of counsel, but as noted above, the superior court did not

transfer that claim asserted in the motion for a new trial. Instead, that claim was

addressed by the superior court and then litigated on direct appeal. Ms. Clark also

argues that additional claims were not addressed, but she fails to include any argument

1 Ms. Clark has also moved to quash the personal restraint petition because it was

missing a document that she declares was included in her original pleading, and she moves

to quash the order of dismissal based on the alleged conflict of interest. But Ms. Clark fails

to cite precedent establishing that quashing the petition is the appropriate remedy, and she

fails to establish a conflict of interest. The motions to quash are denied.

e>^

No. 97108-1

Page 3

or cite facts demonstrating why additional review of such claims is warranted. This

court generally does not consider such unsupported arguments. Cowiche Canyon

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

Finally, Ms. Clark contends that the petition that was transferred from the

superior court is not true and accurate because it does not include a copy of a letter she

sent to the bar association complaining about the trial judge. But she fails to provide

any evidence supporting this contention, and thus she fails to establish any basis for

review.

The motion for discretionary review is denied.

COMMISSIONER

September

;

2019

VIA U.S. MAIL (confirmation copy and envelope enclosed)

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

PETITION NO. 75330-4-1

LINDA RENAE CLARK,

Petitioner,

SUPREME COURT NO.

MOTION FOR DISCRETIONARY REVIEW

STATE OF WASHINGTON,

Respondent.

COMES NOW Linda Renae Clark, Pro Se Appellant, and moves the Court for relief as

designated below.

Pm suant t0 the Order of Dismissal from the Court of Appeals dated March 25, 2019 (but

not received until April 5, 2019 (Exhibit A)), Ms. Clark hereby motions this court for

discretionary review of this Order of Dismissal for the following reasons.

1•

Judge David Mann has a conflict of interest and therefore his judgment of Ms.

Clark’s petition must not stand.

The Order of Dismissal does not address Ms. Clark’s petition in its entirety.

The Petition as filed with the Court of Appeals by the Superior Court of Skagit

County does not represent a true and accurate copy as originally filed by Ms.

Clark.

Conflict of Interest

According to the Code of Judicial Conduct:

RULE 2.11

Disqualification

(A)

A judge shall disqualify himself or herself in any proceeding in which the

judge's impartiality might reasonably be questioned, including but not limited to

the following circumstances:

1. The judge has a personal bias or prejudice concerning a party or a party's

lawyer, or personal knowledge of facts that are in dispute in the proceeding.

❖*V

j. The judge knows that he or she, individually ..., has an economic interest in the

subject patter in controversy or in a party to the proceeding.

Judge David Mann has been paid by the Respondent, the State of Washington, since at

least 2017. According to Washington State Salaries, in 2017, Judge Mann was paid $175,400 by

the State of Washington (Exhibit A). It can be reasonably expected that his income increased in

2018 to accommodate a change in cost of living. Therefore, since Judge Mann depends on his

livelihood from the State of Washington it can reasonably be argued he has a personal bias or

prejudice concerning the state’s case and his Order of Dismissal must be quashed.

As shown below, Judge Mann’s Order is nearly identical to the Response filed by the

State of Washington in this matter.'' He has taken absolutely nothing iri Ms. Clark’s Petition into

. consideration. Nor did he consider the Petition in its entirety.

Response

Order

The leads from the dogs and the German

shepherd’s collar were missing from where

they had been hanging. (Response page 8)

She contended the trial court denied her motion

and ordered her to the office of assigned

counsel to obtain conflict counsel. (Response

Page 11)

The defendant’s request to proceed pro se must

be unequivocal in the context of the record as a

whole. (Response page 13)

Here, Clark’s request for self-representation

came after trial when she was dissatisfied with

trial counsel. (Response page 13).

On December 4, 2016, the trial court addressed

The State’s evidence showed the dogs along

with their leads and collars went missing on

November 6,2014. (Order page 6)__________

Clark argues that [t]he [sic] trial court

unreasonably denied her request to proceed pro

se, instead ordering her to obtain conflict

counsel. (Order page 3)

A defendant’s request to proceed pro se must

be unequivocal in the context of the record as a

whole. (Order page 3)

Her request was initially raised after trial,

based on her claims of ineffective assistance of

trial counsel. (Order page 3)

On December 4, 2016, the trial court asked

Clark’s request for counsel. (Response page

Clark subsequently filed a motion for self

representation. Six days later, when new

counsel was going to appear, Clark did not

address her request to represent herself and did

not complain of the new counsel appearing on

her case. (Response page 12)

Regardless, she represented herself on the

other motions. (Response page 13)

Clark also fails to establish that this was a

constitutional error that resulted in actual and

substantial prejudice. (Response page 13)

Clark whether she intended to represent herself

or wanted conflict counsel. (Order page 4)

Clark again moved to proceed pro se. But

when new conflict counsel appeared at a

hearing on December 30, 2015, Clark allowed

counsel to proceed'. (Order page 4)

She also continued to represent herself on her

other motions. (Order page 4)

Clark has not met her burden to show that her

post-trial request for self-representation was a

constitutional error that resulted in actual and

substantial prejudice. (Order page 4)

Clark contends the trial court deprived her of

Clark, citing American Bar Association

the right to a speedy trial citing American Bar

Criminal Justice Section Standard 12-2.1

Association Standard 12-2.1. (Response page

argues that the trial court denied her right to a

14)

speedy trial. (Order page 4)

In Barker, the United States Supreme Court

In Barker v. Wingo.. .the United States

devised a balancing test for determining when

Supreme Court established a balancing test to

a criminal defendant’s right to a speedy trial is determine whether an unconstitutional delay

violated. The Court identified four major

has occurred. The test considers the length of

factors to consider in this balance: the length of the delay, the reasons for the delay, whether

the delay, the reason for the delay, whether or

the defendant complained about the delay, and

not the defendant asserted the right, and the

any prejudice to the defendant. (Order page 4)

prejudice to the defendant. (Response page 15)

Generally, no set time is applicable, we

Generally, no set time is applicable; we

examine the facts to determine whether a

examine the fact to determine whether a

reasonable timefias elapsed. (Response page

reasonable time has elapsed. (Order page 5)

15)

She cites the filing of the case on December

In support of her claim, Clark notes that the

24, 2014, her first court appearance on or about case was filed on December 24, 2014, that her

January 26, 2014, and trial commencing

first court appearance took place on or around

October 20, 2015. (Response page 14)

January 16, 2015, and that trial commenced on

October 20, 2015. (Order page 5)

Clark fails to mention the agreed continuances But Clark fails to acknowledge that the trial

of the trial date and the impact on speedy

was continued by agreement on March 6, 2015,

trial.. .On March 6, 2015, the trial was

March 20, 2015, and May 29, 2015.On July

continued by agreement to May 4, 2015:. .On

17, 2015, trial was set for October 19, 2015-:

March 20, 2015, the trial was continued by

Jury selection began on October 19, 2015, and

agreement to August 23, 2015.... On May 29,

the jury returned the verdicts two days later.

2015 the trial was continued by agreement to

(Order page 5)

August 24, 2015.... On July 17, 2015, trial was

set for October 19, 2015.... On October 19,

2015, the jury trial began with jury selection.

On October 21,2015, the jury returned the

verdicts. (Response page 14)______

The reason for extension of the trial date was

agreed continuances. There was no assertion

by the defendant of the right to speedy trial in

advance of trial. Clark alleges no prejudice.

(Response page 15)_____________________

Clark’s claim of insufficiency of the evidence

is a mix of claims regarding lack of certain

types of evidence, contentions she has

evidence inconsistent with trial testimony and

claims that she was improperly denied a

necessity defense. (Response page 15)

Evidence is sufficient to support a conviction

if, viewed in light most favorable to the

prosecution, it permits any rational trier of fact

to find the essential elements of the crime

beyond a reasonable doubt. (Response page

It is apparent that the primary reason for the

ten-month delay between filing and trial was

the agreed continuances. Moreover, Clark did

not assert this right in advance of trial. Nor

does she allege prejudice. (Order page 5)

Clark argues that the .evidence was insufficient

to sustain the jury’s burglary conviction.

(Order page 5)

Evidence is sufficient to support a conviction if

it permits any reasonable juror to find the

essential elements of the crime beyond a

reasonable doubt when viewed in the light

most favorable to the State. (Order page 5)

16)

A claim of insufficiency admits the truth of the

State’s evidence and all inferences that

reasonably can be drawn therefrom. (Response

page 16)

A petitioner who challenges the sufficiency of

the evidence admits the truth of all of the

State’s evidence as well as all reasonable

inferences that can be made from it. (Order

page 5)______________________________

Circumstantial evidence and direct evidence

are deemed equally reliable. (Order page 5)

This court defers to the finder of fact on

“issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the

evidence.” (Order page 6)

Clark argues that prosecutorial misconduct

during closing argument warrants a new trial.

(Order page 7)

Circumstantial evidence and direct evidence

are equally reliable. (Response page 16)_____

This evidence was sufficient for a rational trier

of fact to find that Linda Clark had taken the

dogs and burglarized the property ...

(Response page J 9)

Clark contends the prosecutor’s closing

argument improperly argued the defendant

must have taken the leads from the dogs from

the garage. (Response page 19)

Clark also claims that the prosecutor

improperly impugned defense counsel by

arguing the dogs could not have cut the fence,

grabbed the collars and leashes and escaped. A

prosecutor can “argue that the evidence does

not support the defense theory.” [Even though

defense counsel offered not even a scintilla

of evidence to corroborate this theory] This

argument was based upon the evidence.

(Response page 19)_____________________

Clark also fails to show that these arguments

were so flagrant and ill-intentioned that

reversal is required because the resulting

Clark further contends that the prosecutor

impugned the closing arguments of defense

counsel by arguing that it was “ridiculous” to

believe the dogs clipped the fence and escaped

with their leashes and collars on theirown. ...

Viewed in context, it is apparent that the

prosecutor was arguing inferences from the

evidence, not expressing a personal opinion

about Clark’s guilt. (Order page 8)

Clark has not shown that the prosecutor’s

comments were improper or prejudicial. (Order

page 8)_______________________________

piejudice could not have been cured.

(Response page 20~>_______

----- -------------- -—------------

against the trial judge Due procesf the

appearance of faimL ' and Can™ 3(D tl) of

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rf'5mi? recusf,from her rase «»«■ she filed

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without bias or preiudice. (Response page 21)

Clark contends her conflict attorney was also

ineffective by focusing her arguments on a

‘‘breakdown in communication” instead of

“utilizing the broad category of ineffective

assistance of counsel,” failing to argue a new

trial was merited based upon claimed evidence

of the victim lying and failing to argue the

prosecutor improperly impugned defense

counsel in dosing argument. (Response page

23)

A defendant claiming ineffective assistance

| bears the burden showing that (1) counsel’s

• performance fell-below an objective standard

of reasonableness and, if so, (2) that counsel’s

poor work caused prejudice. ... (Response

page 24)

P§

Clark argues that her post-trial conflict counsel

provided ineffective assistance. Specifically,

Clark contends that her conflict counsel was

ineffective for (1) improperly narrowing her

ineffective assistance of counsel argument to a

breakdown in communication, (2) failing to

argue a new trial was warranted so she could

<3>

misconduct in closing argument, and (4) failing

to argue that a new trial was warranted based

on severe violation of her constitutional rights.

'Order page 9)

______ '

To establish ineffective assistance, Clark must

show that counsel’s performance was deficient

and that prejudice resulted from the deficiency.

Counsel’s performance is deficient if it fell

3elow and objective standard of

reasonableness. Prejudice is established when

“there is a reasonable probability that, but for

counsel s errors, the result of the trial would

lave been different, (Order page 9)

Clark also bears the burden of rebutting the

strong presumption that counsel’s

representation was not deficient. (Order page

To rebut the strong presumption that counsel’s

performance was effective, the defendant bears

the burden of establishing the absence of any

“conceivable legitimate tactic explaining

counsel s performance.” (Response page 24)

A claim that trial counsel was ineffective does

When counsel’s conduct can be characterized

not survive if trial counsel’s conduct can be

as legitimate trial strategy or tactics, it cannot

characterized as legitimate trial strategy or

serve as the basis for a claim of ineffective

tactics. (Response page 24)______

assistance. (Order page 9)

Clark makes no showing the decisions were

Here, Clark has not shown that conflict

not tactical or that she was prejudiced by the

counsel’s decisions were unreasonable in light

claimed ineffective assistance of conflict

counsel. She makes no attempt to show that the

outcome of the motions for new trial would

have been different had the arguments been

made. (Response 24)

_________________

Her claim of ineffective assistance of the

conflict counsel fails. (Response page 24)

of the evidence and arguments presented at

trial. Nor does she adequately explain or

demonstrate how Counsel’s representation

resulted in prejudice. (Order page 10)

Because Clark shows neither deficient

performance nor resulting prejudice, she fails

to establish ineffective assistance of counsel.

(Order page 10)_______________________

Despite her insistence from the very beginning of this case that SHE DID NOT ENTER

THE GARAGE of the Scotts and the charge of burglary was based on the state’s insistence that

she did, neither the State of Washington nor Judge Mann will acknowledge that someone who

walks dogs for a living does not need leads or collars to escort a dog from danger. Ms. Clark has

plenty of extra leads tor use on a daily basis as she did in November 2014. All she needed to do

to take Zaio and Ellie to safety was one of her leads which could easily be transformed into a

“slip” lead, not unlike the “slip” leads that many veterinarian offices use for clients who forget to

bring a lead to escort their dog or cat into the veterinarian office. If Ms. Clark’s'public defender

had offered up the photos Ms. Clark sent him just prior to trial which showed one or more of the

dogs had their collars on and had properly procured the photos taken by the Sheriffs deputy on

duty at the time the statement by the State of Washington in its Response that Ms. Clark entered

the garage to take the collars can be easily disproved, thereby putting the charges for burglary in

doubt.

Based on Ms. Clark’s Reply to the State’s Response, there is enough of the Scoffs’

testimony that should have been cross-examined and questioned by Ms. Clark’s public defender.

In addition, the differences in this testimony show that Ms. Clark’s inability to testify on her

behalf failed to give the jury a proper understanding of the matter at hand.

it behooves the State ot Washington to continue funneling people into its criminal

“justice” system in order that its unemployment rate remain low and employees in law

enforcement, the courts, attorneys, judges, etc. stay employed by the state.

Petition mot Addressed in its Entirety

Ms. Clark s Petition as filed with the Superior Court included numerous other issues

which the Court of Appeals failed to address in its Order of Dismissal. Further, the State of

Washington did not provide any objection to these issues. These include, but are not limited to:

Ineffective assistance of Mr. Terrillion (Ms. Clark’s public defender) specifically

due to one or more of the following:

a. Failed to interview witnesses;

b. No independent investigation;

c. No consultation with experts;

d. Failing to object to prosecutor’s closing arguments when she impugned

defense’s closing;

e.„ Failing to adequately present a defense;

Failing to obtain photos taken on day of incident by charging officer;

g. Presenting evidence in closing argument without presenting evidence during

trial to support the evidence;

h. Failing to cross-examine witnesses;

Failing to present expert testimony;

Failing to investigate prior to trial, which resulted in advancing an

unsupported theory of defense during trial;

k. Per se ineffective for conceding guilt in closing argument;

i. Conceding guilt to a lesser offense where I did not consent and

objected during trial to counsel’s strategy;

Failing to adequately investigate and cross-examine witnesses;

m. Conduct regarding plea negotiations deficient;

n. Failure to adequately investigate and present a defense;

i. Failing to meet with Ms. Clark prior to trial;

ii. File contained no evidence witnesses were investigated or interviewed;

iii. During trial, counsel did not subject the state’s case to a meaningful

adversarial testing;

iv. Did not raise or challenge ambiguities and discrepancies in witnesses

accounts/testimony;

v. Performed little cross-examination. Did nothing to test the state’s

case.

Further, even if Ms. Clark was guilty there is no excuse for counsel’s failure to investigate.

That based on Mr. Terrillion’s testimony on June 17, 2016 pertaining to the fact

that he plead guilty on my behalf without my pennission during his closing

arguments that there is presumed prejudice or per se ineffective assistance of

counsel and a new trial should be ordered.

Right to cross-examine a witness who testified against her;

Denied needed expert assistance at trial in violation of the Fourteenth

Amendment;

Denied the opportunity to obtain any witnesses for her side;

Was stripped of her ability to testify on her own behalf.

Petition is Not True aed Accurate

In its Order of Dismissal the Court of Appeals indicated that'Ms. Clark did not file a copy

ot hei letter to the Washington Bar Association concerning her grievance against Judge Brian

Stiles with hei Petition. This letter was absolutely filed with Ms. Clark’s petition and the fact that

the Court of Appeals does not have a copy means the Petition as filed with the Court of Appeals

is not true and accurate.

An Affidavit by Ms. Clark is filed herewith which swears that her letter to the

Washington Bar Association was included with the filing of her Personal Restraint Petition.

THEREFORE, Appellant motions this court for discretionary review of the Order of

Dismissal.

DATED this 15th day of April 2019.

it ful

ill

ubmitted,

Linda Rena^pfark

Pro Se Appellant

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RCW 43.03.012

Salaries of judges.

Pursuant to Article XXVIII, section 1 of the state Constitution and RCW 2.04.092, 2.06.062,

2.08.092, 3.58.010, and 43.03.310, the annual salaries of the judges of the state shall be as follows:

(1) Effective September 1, 2018:

(a) Chief justice of the supreme court.... $193,162

(b) Justices of the supreme court... . $190,415

(d) Judges of the superior court... . $172,571

(e) Full-time judges of the district court.... $164,313

(2) Effective July 1,2019:

(a) Chief justice of the supreme court. ... $213,773

(b) Justices of the supreme court.... $210,732

(d) Judges of the superior court.... $190,985

(e) Full-time judges of the district court.... $181,846

(3) Effective July 1, 2020:

(a) Chief justice of the supreme court.... $223,499

(b) Justices of the supreme court.... $220,320

(d) Judges of the superior court.... $199,675

(e) Full-time judges of the district-court.... $190,120

(4) The salary for a part-time district court judge shall be the proportion of full-time work for which

the position is authorized, multiplied by the salary for a full-time district court judge.

[ 2019 c 5 § 2; 2017 1st sp.s. c 1 § 2; 2015 1st sp.s. c 1 § 2; 2013 c 340 § 2; 2011 c 380 § 2; 2009 c

581 § 2; 2007 c 524 § 2; 2005 c 519 § 2; 2003 1st sp.s. c 1 § 2; 2001 1st sp.s. c 3 § 2; 1999 sp.s. c 3

§ 2; 1997 c 458 § 2; 1995 2nd sp.s. c 1 § 2; 1993 sp.s. c 26 § 2; 1991 sp.s. c 1 § 2; 1989 2nd ex.s. c

4 § 2; 1987 1st ex.s. c 1 § 1, part.]

FILED

3/25/2019

Court of Appeals

Division I

State of Washington

J.-

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Personal

Restraint of:

LINDA RENAE CLARK,

Petitioner.

)

No. 75330-4-I

ORDER OF DISMISSAL

Linda Clark was convicted of second degree burglary and taking a pet animal in

Skagit County Superior Court No. 14-1-00937-1. Clark filed a series of post-trial motions

and documents challenging her convictions. On direct appeal, this court rejected Clark’s

ineffective assistance of counsel claims and affirmed her convictions. See State v.

Clark, No. 74934-0-I. The superior court transferred Clark’s remaining claims to this

court for consideration as a personal restraint petition pursuant to CrR 7.8(c)(2).

Clark alleges (1) the trial court erred in denying her request to proceed pro se, (2)

violation of her constitutional right to a speedy trial, (3) the evidence was insufficient to

support her conviction, (4) the prosecutor’s closing argument was improper, (5) the trial

court judge erred in denying her motion to recuse, and (6) ineffective assistance of post

trial counsel.

No. 75330-4-1/2

In a personal restraint proceeding, the petitioner bears the burden of proof. In re

Pers. Restraint of Gentry. 137 Wn.2d 378, 409, 972 P.2d 1250 (1999); In re Pers.

Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982). To obtain collateral

relief by means of a personal restraint petition, Clark must demonstrate either an error

of constitutional magnitude that gives rise to actual prejudice or a nonconstitutional error

that inherently results in a “complete miscarriage of justice.” In re Pers. Restraint of

Cook. 114 Wn.2d 802, 813, 792 P.2d 506 (1990). Because Clark has not established

that she can satisfy this threshold burden, the petition is dismissed.

In Clark’s direct appeal, this court recited the following relevant facts:

Frank and Rebecca Scott owned two dogs: Ellie, a twelve year old

German wire terrier, and Zalo, a ten year old German shepherd. The dogs

typically slept in the Scotts' house but spent most of their day either in the

Scotts' garage or the fenced yard. The dogs wore collars and the Scotts

stored their leads in the garage.

In approximately February 2014, the Scotts hired Linda Clark, who owned

a dog-walking business, to walk the dogs. Clark was instructed to enter

the garage, put the leads on the dogs' collars, and walk them once a day.

However, within a month or two, Clark began walking the dogs several

times a day of her own accord, sometimes late at night or in heavy rain.

Clark also frequently let herself into the garage at all hours to check on the

dogs and leave notes regarding what she believed was proper care for

them. In addition, Clark replaced the dogs' collars with collars that had her

own name and phone number instead of the Scotts'.

In May or June 2014, concerned by Clark's behavior, Frank told Clark that

her services were no longer necessary. Clark responded, “[I]f you take me

away from these dogs, you're going to regret it.” The Scotts contacted the

Skagit County Sheriffs Office. Deputy Brad Holmes came to the Scotts'

house and observed that both dogs appeared to be in good health for their

age and their living conditions were appropriate. Deputy Holmes went to

Clark's house and told her “that she cannot go back to the residence for

any reason or she could be arrested for trespassing.” Clark agreed that

she would not go back to the Scotts' property. The Scotts built a heavier

fence to keep Clark from coming onto the property.

-2-

& A\d

NO. 75330-4-1/3

However, on the morning of November 6, 2014, the Scotts noticed that

Ellie and Zalo were missing. The Scotts' fence had been cut and pieces of

the fence were found in the Scotts' garbage can. The dogs' leads were

also missing. The Scotts were particularly concerned because Zalo was

required to take medication and had not had his medication yet that

morning.

Sergeant Jennifer Sheahan-Lee located Clark walking around town and

asked if she had seen the dogs. Clark stated that she had last seen the

dogs the previous evening. She admitted that she had gone to the Scotts'

property and petted the dogs through the fence. A few hours later,

Sergeant Sheahan-Lee saw Clark walking a different dog, and

approached her to tell her that Ellie and Zalo were missing. Clark denied

having the dogs or knowing where they were. After receiving a report that

a local citizen had seen Clark with Ellie and Zalo that morning, Sergeant

Sheahan-Lee went to Clark's house. When Sergeant Sheahan-Lee told

Clark that Zalo had not had his medication that day, Clark then admitted

she had the dogs and turned them over Sergeant Sheahan-Lee. Sergeant

Sheahan-Lee also noted that both dogs did not appear to be neglected or

in need of any care.

State v. Clark. No. 74934-0-I.

1. Request to proceed pro se

Clark argues that he trial court unreasonably denied her request to proceed pro

se, instead ordering her to obtain conflict counsel.

A defendant’s request to proceed pro se must be unequivocal in the context of

the record as a whole. State v. Luvene. 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995).

“This requirement protects defendants from inadvertently waiving assistance of counsel

and protects trial courts from ‘manipulative vacillations by defendants regarding

representationState v. Currv. 191 Wn.2d 475, 482, 423 P.3d 179 (2018) (quoting

State v. DeWeese. 117 Wn.2d 369, 376, 816 P.2d 1 (1991)).

Here, the record viewed as a whole shows that Clark did not unequivocally assert

her right to proceed pro se. Her request was initially raised after trial, based on her

-3-

B-n

No. 75330-4-1/4

claims of ineffective assistance of trial counsel. On December 4, 2016, the trial court

asked Clark whether she intended to represent herself or wanted conflict counsel. Clark

agreed with the trial court’s recommendation to assign conflict counsel. On December

24, 2015, Clark again moved to proceed pro se. But when new conflict counsel

appeared at a hearing on December 30, 2016, Clark allowed counsel to proceed. She

also continued to represent herself on her other motions. Clark has not met her burden

to show that her post-trial request for self-representation was a constitutional error that

resulted in actual and substantial prejudice.

2. Speedy trial

Clark, citing American Bar Association Criminal Justice Section Standard 12-2.1

argues that the trial court denied her right to a speedy trial.1 Both the federal and

Washington state constitutions guarantee a criminal defendant's right to a speedy trial.

U.S. Const, amend. VI; Const, art. I, § 22. In Barker v. Winqo. 407 U.S. 514, 92 S. Ct.

2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court established a

balancing test to determine whether an unconstitutional delay has occurred. The test

considers the length of the delay, the reasons for the delay, whether the defendant

complained about the delay, and any prejudice to the defendant. State v. Lackey. 153

Wn. App. 791,800, 223 P.3d 1215 (2009). ’’Generally, no set time is applicable; we

1 American Bar Association Criminal Justice Standard 12-2.1(b) states that ”[t]he

presumptive speedy trial time limit for persons held in pretrial detention should be [90] days from

the date of the defendant’s first appearance in court after the filing of a charging instrument. The

presumptive limit for persons who are on pretrial release should be [180] days from the date of

the defendant’s first appearance in court after either the filing of any charging instrument or the

issuance of a citation or summons. Shorter presumptive speedy trial time limits should be set for

persons charged with minor offenses.” The ABA Standards are not binding legal authority.

Rather, they serve as a source of guidance for policymakers and practitioners.

-4-

NO. 75330-4-1/5

examine the facts to determine whether a reasonable time has elapsed.” State v.

Whelchel. 97 Wn. App. 813, 823, 988 P.2d 20 (1999).

In support of her claim, Clark notes that the case was filed on December 24

2014, that her first court appearance took place on or around January 26, 2015, and

that trial commenced on October 20, 2015. But Clark fails to acknowledge that trial was

continued by agreement on March 6, 2015, March 20, 2015, and May 29, 2015. On July

17, 2015, trial was set for October 19, 2015. Jury selection began on October 19, 2015,

and the jury returned the verdicts two days later.

It is apparent that the primary reason for the ten-month delay between filing and

trial was the agreed continuances. Moreover, Clark did not assert this right in advance

of trial. Nor does she allege prejudice. Clark fails to establish that the delay amounted to

a constitutional violation that resulted in actual and substantial prejudice or

circumstances amounting to a complete miscarriage of justice. See In re Pers. Restraint

of Caldellis. 187 Wn.2d 127, 145-46, 385 P.3d 135 (2016).

3. Sufficiency of the evidence

Clark argues that the evidence was insufficient to sustain the jury’s burglary

conviction. Evidence is sufficient to support a conviction if it permits any reasonable

juror to find the essential elements of the crime beyond a reasonable doubt when

viewed in the light most favorable to the State. State v. Pinckney. 2 Wn. App.2d 574,

579, 411 P.3d 406 (2018). A petitioner who challenges the sufficiency of the evidence

admits the truth of all of the State’s evidence as well as all reasonable inferences that

can be made from it. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct

evidence are deemed equally reliable. State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d

-5-

No. 75330-4-1/6

99 (1980). This court defers to the finder of fact on “issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence.” State v. Ainslie. 103

Wn. App. 1,6,11 P.3d 318 (2000).

A person is guilty of second degree burglary if she enters or remains unlawfully in

a building other than a vehicle or a dwelling with the intent to commit a crime against a

person or property therein. RCW 9A.52.030. A person is guilty of taking a pet animal if,

with intent to deprive or defraud the owner thereof, she takes away, leads, confines,

secrets, or converts any pet animal with a value less than $750. RCW 9.08.070(1 )(a).

Clark contends that the evidence for these charges was insufficient because (1) the

State did not offer certain types of physical evidence commonly associated with

burglary, (2) Clark’s evidence conflicted with the State’s evidence and testimony at trial,

and (3) she was denied the opportunity to argue a necessity defense.

The State’s evidence showed the dogs along with their leads and collars went

missing on November 6, 2014. Police told Clark she had been seen with the dogs. Clark

initially did not admit having the dogs. But when told one dog had missed its medication,

Clark led police to her garage where the dogs were being held. Police subsequently

found that the owners’ fence had been cut, and pieces of the wire found in the trash

can. Viewed in the light most favorable to the State, a reasonable jury could conclude

that Clark committed the crimes. The evidence was sufficient to support Clark’s

convictions.2

-6-

N'o. 75330-4-1/7

4. Prosecutorial misconduct

Clark argues that prosecutorial misconduct during closing argument warrants a

new trial. To prevail on a claim of prosecutorial misconduct, the defendant has the

burden to establish “ ‘that the prosecutor's conduct was both improper and prejudicial in

the context of the entire record and the circumstances at trial.’ ” State v. Thorqerson,

172 Wn.2d 438, 442, 258 P.3d 43 (2011) (quoting State v. Maqers. 164 Wn.2d 174,

191, 189 P.3d 126 (2008). To establish prejudice, the defendant must prove “there is a

substantial likelihood [that] the instances of misconduct affected the jury’s verdict.”

Maqers. 164 Wash.2d at 191, 189 P.3d 126 (alteration in original) (quoting State v.

Pirtle. 127 Wn.2d 628, 672, 904 P.2d 245 (1995)).

Clark argues that the prosecutor improperly argued that the evidence showed

she unlawfully entered the yard and garage to get the dogs. She contends that there

was no evidence apart from the victims' perjured testimony to support this portion of the

prosecutor’s closing argument. However, “[t]his court must defer to the trier of fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence.” State v. Thomas. 150 Wn.2d 821,874-75, 83 P.3d 970 (2004). "A prosecutor

has wide latitude in closing argument to draw reasonable inferences from the evidence

and may freely comment on the credibility of the witnesses based on the evidence.”

State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).

Clark further contends that the prosecutor impugned the closing arguments of

defense counsel by arguing that it was “ridiculous” to believe the dogs clipped the fence

2 Clark’s ability to argue a necessity defense is not relevant to the analysis of whether the

evidence admitted at trial was sufficient to support the conviction.

-7-

S'2-l

No. 75330-4-1/8

and escaped with their leashes and collars on their own. “The State is entitled to

comment upon the quantity and quality of the evidence the defense presents." State v.

Anderson. 153 Wn. App. 417, 428, 220 P.3d 1273 (2009). Viewed in context, it is

apparent that the prosecutor was arguing inferences from the evidence, not expressing

a personal opinion about Clark’s guilt. Clark has not shown that the prosecutor’s

comments were improper or prejudicial.

5. Recusal

Clark argues that the trial court judge erred in refusing to recuse from her case

after she filed a bar grievance.3 Due process, the appearance of fairness, and Canon

3(D)(1) of the Code of Judicial Conduct require disqualification of a judge who is biased or

whose impartiality may be reasonably questioned. State v. Dominquez. 81 Wn. App. 325,

328, 914 P.2d 141 (1996). The trial court is presumed, however, to perform its functions

regularly and properly without bias or prejudice. Kay Coro, v. Anderson, 72 Wn.2d 879,

885, 436 P.2d 459 (1967); Jones v. Halvorson-Bera. 69 Wn. App. 117, 127, 847 P.2d 945

(1993). Consequently, the party seeking recusal must support the claim with evidence

of the judge’s actual or potential bias. State v. Dominguez. 81 Wn. App. at 328-29, 914

P.2d 141 (1996).

Clark contends the trial judge was biased against her because the judge (1)

failed to intervene when she claimed trial counsel was ineffective, (2) erred in sustaining

an objection during closing argument based on insufficiency of the evidence, (3) denied

her an opportunity to present a necessity defense, (4) improperly found that no

3 The bar grievance Clark references was not attached to her petition.

-8-

No. 75330-4-1/9

breakdown in communication between herself and defense counsel existed, and (5)

failed to Clark has not shown that any of the trial court’s rulings were erroneous or

unsupported by the record. Her conclusory assertions of bias are insufficient to satisfy

her burden.

6. Ineffective assistance of post-trial counsel

Clark argues that her post-trial conflict counsel provided ineffective assistance.

Specifically, Clark contends that her conflict counsel was ineffective for (1) improperly

narrowing her ineffective assistance of counsel argument to a breakdown in

communication, (2) failing to argue a new trial was warranted so she could properly

cross examine the alleged victims, (3) failing to argue the prosecutor committed

misconduct in closing argument, and (4) failing to argue that a new trial was warranted

based on severe violation of her constitutional rights.

To establish ineffective assistance, Clark must show that counsel’s performance

was deficient and that prejudice resulted from the deficiency. Strickland v. Washington.

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s performance is

deficient if it fell below an objective standard of reasonableness. State v. Stenson. 132

Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice is established when “there is a

reasonable probability that, but for counsel’s errors, the result of the trial would have

been different.” State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Clark

also bears the burden of rebutting the strong presumption that counsel’s representation

was not deficient. State v. McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

When counsel’s conduct can be characterized as legitimate trial strategy or tactics, it

-9-

Mo. 75330-4-1/10

cannot serve as the basis for a claim of ineffective assistance. State v. Day. 51 Wn.

App. 544, 553, 754 P.2d 1021 (1988).

Here, Clark has not shown that conflict counsel’s decisions were unreasonable in

light of the evidence and arguments presented at trial. Nor does she adequately explain

or demonstrate how counsel’s representation resulted in prejudice. Because Clark

shows neither deficient performance nor resulting prejudice, she fails to establish

ineffective assistance of counsel.

Now, therefore, it is hereby

ORDERED that the personal restraint petition is dismissed under RAP 16.11(b).

Acting Chief Judge

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