Personal Restraint Petition Of: Anthony P. Johnson

• Court: Court of Appeals of Washington
• Decided: June 15, 2026
• Docket: 85640-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE PERSONAL RESTRAINT OF: No. 85640-5-I

ANTHONY PAUL JOHNSON, DIVISION ONE

Petitioner, UNPUBLISHED OPINION

MANN, J. — Anthony Johnson petitions this court to vacate his assault convictions

based on allegations of discovery violations by the State, trial delays, and

ineffectiveness of his investigator. Because Johnson does not establish grounds for

relief, we deny the petition.

I

Johnson was convicted of assault in the first degree with a deadly weapon and

assault in the second degree. 1 Johnson appealed. While the appeal was pending,

Johnson also filed the instant personal restraint petition (PRP). Johnson’s PRP was

stayed pending issuance of the mandate in his direct appeal. Ord. of Stay, (Sep. 19,

2023).

We upheld Johnson’s convictions on direct appeal. State v. Johnson, No. 84181-

5-I, (Wash. Ct. App. Jan. 29, 2024) (unpublished), https:// www.courts.wa.gov/opinions/

1 King County Superior Court Cause No. 21-1-03601-8 KNT. No. 85640-5-I/2

pdf/841815.pdf, review denied, 3 Wn.3d 1005 (2024). The stay on Johnson’s PRP was

lifted.

On February 12, 2025, this court issued an order dismissing Johnson’s claim

concerning the accuracy of the verbatim report of proceedings as frivolous and referring

all other claims to a panel for review and determination. Ord. Dismissing in Part &

Referring to a Panel, (February 12, 2025).

II

Collateral relief from a conviction through a PRP is an extraordinary remedy and

petitioners must meet a high standard to obtain relief. In re Pers. Restraint of Kennedy,

200 Wn.2d 1, 12, 513 P.3d 769 (2022). A petitioner may request relief through a PRP

when they are under an unlawful restraint. RAP 16.4(a)-(c). “A personal restraint

petitioner must prove either a (1) a constitutional error that results in actual and

substantial prejudice or (2) nonconstitutional error that ‘constitutes a fundamental defect

which inherently results in a complete miscarriage of justice.’ ” In re Pers. Restraint of

Monschke, 160 Wn. App. 479, 488, 251 P.3d 884 (2010) (quoting In re Pers. Restraint

of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004)). The petitioner must support the

petition with facts or evidence and may not rely solely on conclusory allegations.

Monschke, 160 Wn. App. at 488; RAP 16.7(a)(2)(i). The petitioner has the burden to

prove prejudice by a preponderance of the evidence. In re Pers. Restraint of Lord, 152

Wn.2d 182, 188, 94 P.3d 952 (2004).

In evaluating PRPs, we can (1) dismiss the petition if the petitioner fails to make

a prima facie showing of constitutional or nonconstitutional error; (2) remand for a full

hearing if the petitioner makes a prima facie showing but the merits of the contentions

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cannot be determined solely from the record; or (3) grant the petition without further

hearing if the petitioner has proven actual prejudice or a miscarriage of justice. In re

Pers. Restraint of Stockwell, 160 Wn. App. 172, 176-77, 248 P.3d 576 (2011).

III

Johnson argues that (a) trial delays violated both (b) his right to a speedy trial

under the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution and (c) the time-for-trial rule in CrR 3.3.

A

Johnson was arrested on or around August 21, 2021, and his trial began six

months later on February 22, 2022. See State v. Corrado, 94 Wn. App. 228, 232, 972

P.2d 515 (1999) (a defendant’s constitutional rights to a speedy trial attach when a

charge is filed or arrest is made, whichever occurs first). Johnson remained in custody

during this entire time period and represented himself throughout the proceedings.

Johnson’s argument focuses on four continuances granted during that time, on October

27, 2021, November 9, 2021, January 13, 2021, and February 9, 2022.

At the omnibus hearing on October 27, 2021, the parties disagreed about

redacting witness names and contact information on discovery materials that the State

was providing to Johnson. The witnesses in question lived in the same apartment

building where Johnson resided and where the charged assaults occurred. The State

argued that redaction of witness names and information was required “because of very

valid and serious safety concerns” and “based on the gravity and seriousness of the

offense and what the State knows about [Johnson’s] conduct in the apartment complex

where these witnesses reside.” The court set the discovery dispute for a future motion

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hearing on November 5, 2021. Johnson stated that he had received a list of

investigators and had just begun reaching out to investigators to take his case that

morning “so I need to actually touch base with one, get them locked in. Once I do,

we’re good to go from there.” The trial court found good cause to continue the trial date

to November 23, 2021, setting the speedy trial date to December 23, 2021. Johnson

objected to the continuance.

The court explained that the continuance was to allow for the discovery dispute

to be resolved and for Johnson to secure an investigator:

[T]he Court, on its own motion, is finding good cause, understanding currently the administration that still needs to be done on this case, including the fact that you need to secure . . . an investigator, a pending motion in which the parties will determine . . . what redactions are appropriate in light and in the context of somebody proceeding pro se. And hopefully, by then you have an investigator and can start the process at least.

After the hearing, the trial court entered a written order stating that the “court

made this motion to continue for the following reasons” and defense objected: “Court

finds good cause to continue trial date so defendant can have investigator appointed &

so that redaction issues can be litigated.”

At the motion hearing on November 5, 2021, the trial court ordered the State to

provide the witnesses’ addresses and video recordings of interviews.

At a hearing on November 9, 2021, Johnson told the court that there were still

discovery materials from the State that he had not yet received, including witness video

statements, transcripts of 911 calls, and unredacted police reports. Johnson explicitly

answered no when the court asked him if he was answering ready for trial:

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THE COURT: So the question I have to answer today is: Are you answering ready for trial? Or are— MR. JOHNSON: No. I—I have to still reveal the discovery that I don’t have.

Johnson then objected to a proposed continuance, so the court asked again if he was

ready for trial:

THE COURT: So are you prepared to go to trial on November 23rd? MR. JOHNSON: I’m not going to be prepared to go to trial on November—I wasn’t prepared—I believe that a continuance wasn’t the right answer.

The court then gave Johnson a third chance to choose to keep the scheduled trial date,

which Johnson declined:

THE COURT: . . . So you can either go to trial on the 23rd, or I can continue the case and find good cause to do so. If you need to extend the—if you need additional time, I would find good cause to do so. MR. JOHNSON: Well, having to choose between my right to speedy trial or my right to be prepared, I don’t have any choice except to try to be prepared.

Accordingly, the court found good cause for a continuance and set the trial date

for January 13, 2022, speedy trial expiration date of February 11, 2022.

At a hearing on January 13, 2022, the trial court informed Johnson that his trial

would be continued because King County Superior Court was suspending in-person jury

trials through February 11, 2022, due to an increase of the Omicron variant of COVID-

19. The court provided Johnson a written copy of the executive order ordering in-

person jury trials suspended and set his trial for February 14, 2022. Johnson did not

object to this continuance at the hearing.

On February 9, 2022, the State moved to continue the trial one week to February

22, 2022, because there was an upcoming motion hearing on Johnson’s motion for

standby counsel, the State’s lead detective would be unavailable, and the State had

recently received Johnson’s proposed witness list and wanted to interview a few of

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those people before trial. Johnson objected to the continuance. The court granted the

one-week continuance based on “the availability of witnesses, the need to do some final

interviews, and also the Court’s trial schedule.” In a written order after the hearing, the

court wrote that the “State made a motion to reset hearing dates and extend time-for-

trial expiration” by continuing trial date for the following reasons: “State’s lead detective

has unavailability between 02/21-02/27 due to out of state training. State also requires

time to interview defense witnesses.”

B

Johnson argues that the trial court violated his constitutional right to a speedy

trial. We disagree.

The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington Constitution both guarantee a criminal defendant the right to a

speedy trial. State v. Ross, 8 Wn. App. 2d 928, 932, 441 P.3d 1254 (2019). Our

analysis for the right to a speedy trial under the Sixth Amendment and article I, section

22 is substantially the same. Ross, 8 Wn. App. 2d at 941. “We review de novo whether

a defendant’s constitutional right to a speedy trial has been violated.” Ross, 8 Wn. App.

2d at 941.

To trigger a constitutional speedy trial analysis, a defendant must first “make a

threshold showing that the time between the filing of charges and trial exceeded the

ordinary interval for prosecution and crossed into presumptively prejudicial delay.”

Ross, 8 Wn App. 2d at 942. Once a defendant makes this threshold showing, we then

apply the balancing analysis outlined in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 33 L.

Ed. 2d 101 (1972) to determine whether the delay violated the defendant’s constitutional

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right to a speedy trial. State v. Ollivier, 178 Wn.2d 813, 827, 312 P.3d 1 (2013). The

nonexclusive Barker factors include the “[l]ength of delay, the reason for the delay, the

defendant’s assertion of [their] right, and prejudice to the defendant.” Barker, 407 U.S.

at 530. The Barker analysis is fact-specific and dependent “on the particular

circumstances of the case.” Ross, 8 Wn. App. 2d at 942. No one Barker factor “is

sufficient or necessary to find a violation, but they assist in determining whether the

speedy trial right was violated.” Ross, 8 Wn. App. 2d at 942.

As to the threshold showing, Johnson’s trial occurred six months after he was

arrested and charged. Johnson cites two Ninth Circuit cases finding a six-month delay

sufficient to trigger inquiry into the remaining factors. United States v. Valentine, 783

F.2d 1413, 1417 (9th Cir. 1986); United States v. Simmons, 536 F.2d 827, 831 (9th Cir.

1976). Johnson does not cite any Washington state cases finding a six-month delay

sufficient. The State’s response cites State v. Iniguez, 167 Wn.2d 273, 293, 217 P.3d

768 (2009), finding an eight-month delay is “just beyond the bare minimum needed to

trigger the Barker inquiry under these circumstances.” Turning to the facts here,

Johnson remained in custody throughout the six-month period. Johnson was charged

with two felonies; although the charges were not particularly complex, Johnson claimed

self-defense, which added to the disputed issues at trial. The State’s case rested on

eyewitness testimony, with the State endorsing more than a dozen witnesses for trial.

Johnson represented to the trial court that he was not prepared for trial at the first two

continuance hearings at issue and the third continuance was due to a public health

emergency temporarily suspending in-person jury trials. The State also points out that

Johnson chose to represent himself, “lengthening the time required for even the most

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basic pretrial tasks.” In light of all these circumstances, the six-month delay was not

presumptively prejudicial. Johnson has not proven a constitutional error that resulted in

actual and substantial prejudice.

C

Johnson also argues that the trial court violated the time-for-trial rule in CrR 3.3.

Again, we disagree.

CrR 3.3(b)(1)(i) requires a defendant who is in custody to be brought to trial

within 60 days after the date of arraignment. Certain time periods are excluded from the

computation of time, including continuances granted by the trial court. CrR 3.3(e).

Continuances may be granted on the motion of a party or the court when “required in

the administration of justice and the defendant will not be prejudiced in the presentation

of his or her defense.” CrR 3.3(f)(2).

CrR 3.3 is a procedural right that is designed to protect, but not guarantee, the

constitutional speedy trial right. State v. Andrews, 66 Wn. App. 804, 809-10, 832 P.2d

1373 (1992). A criminal charge not brought to trial within the time limits of CrR 3.3 must

be dismissed with prejudice. CrR 3.3(h). We review alleged violations of CrR 3.3 de

novo. State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). We review the

decision to grant or deny a continuance for abuse of discretion. State v. Downing, 151

Wn.2d 265, 272, 87 P.3d 1169 (2004).

Johnson argues that the trial court violated CrR 3.3 because the trial court did not

explain on the record why the continuances were “required,” failed to identify “exclusion

periods,” and failed to set a new trial within the time limits prescribed by CrR 3.3. As

detailed in the timeline above, the trial court did explain at each hearing why the

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continuance was required and set a new trial date that was within the prescribed time

limits. The continuance periods granted by the trial court were the “excluded periods”

Johnson refers to.

Johnson further argues that the State delayed or denied discovery to try to force

him to be unprepared or lose his speedy trial rights. Again, as explained in the timeline

above, the record reflects a genuine dispute about discovery redaction due to concerns

about witness safety which was timely resolved at a motions hearing, not a conclusion

that the State deliberately withheld discovery beyond a reasonable time after the

dispute was resolved.

Johnson further argues that the trial court’s January 13, 2022 continuance was

unnecessary because his trial was scheduled to begin on January 13, 2022, five days

before the order suspending new in-person jury trials was to take effect. The State

responds that January 13, 2022, was a Thursday, and King County Superior Court does

not conduct trials on Fridays. The following Monday, January 17, was a federal and

state holiday, the State further explains, and the rest of that week King County Superior

Court judges were in training and thus unavailable for trials. Given these administrative

scheduling challenges, the trial court did not abuse its discretion in granting this

continuance.

Johnson has not met his burden to demonstrate a nonconstitutional error that

constitutes a fundamental defect which inherently results in a complete miscarriage of

justice. 2

2 Johnson asserts that CrR 3.3 is unconstitutional but fails to provide any argument or authority in

support of that argument. We therefore decline to address this claim.

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IV

Johnson argues that the “ineffectiveness of his court appointed investigator” and

the investigator’s “untimely” withdrawal deprived him of his constitutional rights to a fair

trial, equal protection, due process, and to compel attendance of witnesses. We

disagree.

Johnson informed the court on the third day of trial testimony that his investigator

had withdrawn from his case due to a death in the investigator’s family. But this court

requires a showing of prejudice as a predicate for a claim of deprivation of the right to

State provided resources necessary to prepare a meaningful pro se defense. See State

v. Silva, 107 Wn. App. 605, 624, 27 P.3d 663 (2001).

The prejudice argued by Johnson is that the investigator would have interviewed

or subpoenaed witnesses for trial who would have testified that he acted in self-defense

and that certain witnesses against him were biased. But Johnson alleges that the

investigator told him earlier in the case that the witnesses were unwilling to talk to the

investigator. Johnson further alleges that the investigator did not provide him with any

documents related to witnesses and did not request witness interviews with the State.

The subpoenas Johnson wanted to use to compel witnesses were not signed by a judge

and thus unenforceable because, Johnson alleges without proof, the investigator told

him a judge’s signature was not required. That being the apparent state of Johnson’s

case during trial, Johnson fails to show how an investigator would have been able to

suddenly produce the hypothetical witness testimony. Because Johnson fails to show

prejudice, he fails to meet the standard for relief on a PRP.

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V

Johnson argues that the State violated his constitutional rights by failing to timely

provide discovery materials. We disagree.

Johnson contends that the first two continuances of his trial date were due to the

State’s “failure to provide discovery.” As described in our discussion of continuances

above, the record shows a good faith discovery dispute based on concerns for witness

safety. Johnson argues that the State violated CrR 4.7 requiring the prosecutor to

disclose certain materials and information to the defendant no later than the omnibus

hearing. Even if, due to the redaction dispute, Johnson did not receive certain witness

information by the omnibus hearing, he received it once the dispute was resolved,

before trial and thus cannot show a nonconstitutional error that constitutes a

fundamental defect which inherently results in a complete miscarriage of justice.

Johnson further argues that the trial court and/or State failed to provide him with

a flash drive to create exhibits for trial. Johnson cites no authority requiring the State or

the trial court to provide him a flash drive. As an alternative, the trial court suggested,

and the parties agreed, that Johnson would provide a list of the audio and video exhibits

that he wanted to introduce at trial and the State would burn those files onto a compact

disc for him. Johnson further alleges that his posttrial proceedings have been

prejudiced by this lack of access to audio and video discovery, but Johnson could have

designated any trial exhibit as part of the appellate record.

Johnson cites Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963), arguing that the State suppressed evidence favorable to him and that resulted in

prejudice to him. Johnson fails to show that the State suppressed any evidence. And

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at a pretrial hearing, the State repeatedly stated that there were no Brady materials in

this case.

Johnson fails to meet his burden to prove either a constitutional error that results

in actual and substantial prejudice or a nonconstitutional error that constitutes a

fundamental defect which inherently results in a complete miscarriage of justice.

VI

Johnson argues that the trial court erred in denying his motion for a new trial.

We disagree.

Many of Johnson’s arguments for a new trial are the same grounds we address

and dismiss above. Beyond that, Johnson’s argument in his PRP focuses on what he

describes as challenges to the facts found by the trial court; specifically, that Johnson

could have requested a continuance to obtain a new investigator, that Johson was

provided the option for the State to burn evidence onto a compact disc for Johnson to

put it before the jury, and that it became apparent that all the tasks Johnson wanted the

investigator to complete would not be done by the trial date. Johnson’s challenges do

not raise or prove either a constitutional error that results in actual and substantial

prejudice or a nonconstitutional error that constitutes a fundamental defect which

inherently results in a complete miscarriage of justice.

The petition is denied.

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WE CONCUR:

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