IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Personal Restraint No. 87964-2-I of DIVISION ONE
CHRISTOPHER MILES GATES, UNPUBLISHED OPINION
Petitioner.
SMITH, J. — In May 2018, the State charged Christoper Miles Gates with murder in the first degree. Gates’s trial was continued multiple times because of defense counsel preparation, counsel changes, and the COVID-19 pandemic. Gates, or his counsel, asked the court for new counsel multiple times, which the court denied. Gates’s trial began in June 2021, and the jury found him guilty as charged. Gates appealed the decision, and the Court of Appeals affirmed his conviction.
Gates then initiated this personal restraint petition, claiming his right to a speedy trial was violated and his counsel was ineffective for failing to rebut the State’s hearsay objections at trial and for failing to raise the issue of a violation of his Sixth Amendment right to a speedy trial on appeal. We find Gates’s claims without merit and deny his petition.
FACTS
Background
In the early morning hours of April 22, 2018, Robert Baker and Adam Smith left the Cedar Room nightclub in Seattle. Baker and Smith walked to their car, which was about a block away and across the street from the club. Baker told Smith he was going to go back to the club to get his girlfriend and asked Smith to hand him the gun that Smith had in his jacket pocket. Baker began walking back toward the club.
Outside the club, Christopher Gates and three friends—Solomon Leverette, Kamal Brown, and Gates’s girlfriend, Ashley Sollesvik—were standing in the street and talking. Gates and his friends had also been at the Cedar Room. Gates saw Baker and Smith walk to their car, and he saw Smith hand Baker what he believed to be a gun. As Baker was walking back to the club, Gates shot at Baker, firing at least 10 shots. Baker, whose gun was still in his pocket, took cover behind a parked car. Baker attempted to raise his gun but collapsed without firing. Baker died from the gunshot wounds.
On May 2, 2018, the State charged Gates with murder in the first degree and unlawful possession of a firearm for the shooting of Baker. The King County Department of Public Defense (DPD) assigned attorneys Lin-Marie Nacht and Andrew Repanich from the Society of Counsel Representing Accused Persons (SCRAP) to represent Gates. Gates met with Nacht twice before his arraignment on May 16, 2018.
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On September 20, 2018, Gates moved to discharge Nacht, claiming he had “been very unable to participate in [his] defense due to not being able to have access to the information and not being able to communicate effectively with my counsel.” The court told Gates that murder in the first degree was a very serious charge and “a lot happens from the State’s side” at that point in the process. The court denied Gates’s motion and noted that “if it comes up again . . . we may have to hear from you again on this same issue, but right now I’m not hearing sufficient basis to excuse [Nacht].”
Three weeks later, on October 15, 2018, Gates moved again to discharge counsel. Nacht told the court that Repanich had moved on to another rotation and Colleen O’Connor was now co-counsel on Gates’s case, but O’Connor was in trial and had not yet met with Gates. The court told Gates it would not consider a motion to replace counsel until Gates had met with O’Connor. The court told Gates that “in terms of what you’re facing and their skill level and their experience, you’re not going to find two lawyers assigned to one case that have more collective experience and background.” Gates told the court he did not disagree they were competent attorneys, but “it’s more of a personal relationship thing that has been our issue” and Nacht’s busy schedule was “having a very detrimental effect on my defense this far.” When asked if he was willing to continue the matter, Gates responded, “I am, as I’m not ready to set a trial date.”
On November 1, 2018, Gates’s objected to a trial date of March 2019, because it violated his right to a speedy trial. Gates also asked the court to address his concerns with his counsel. The court continued the hearing to
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November 5, 2018, and told Gates he could submit briefing before to the hearing concerning his issues with counsel. On November 5, Gates moved for new counsel, noting the appointment of O’Connor had not resolved the issues he had with his attorneys. When the court asked Gates if he wanted to waive his right to a speedy trial or set the trial today, Gates said he “object[ed] to both of those” options. Gates wanted the court to rule on his motion for new counsel before his trial date was set. The court set a hearing for his motion for new counsel and found good cause to continue the trial to January 2019. Gates told the court, “[I]f the hearing does not end in new counsel, I’ll be going pro se.”
At the hearing on Gates’s motion for new counsel on November 14, Gates told the court he had not spoken with his attorneys since the last hearing. The court told him it would give him more time, but Gates said, “I don’t want more time to meet with Ms. Nacht. I want to go pro se. I no longer want her on my case.” Gates contended the relationship with his attorneys had “proceeded to prejudice [him] multiple times and effectively waive [his] speedy trial rights above [his] objection.” Gates reiterated his dissatisfaction with his counsel and said he was willing to go pro se to prevent further continuances. The court provided Gates with information about going pro se and told Gates he would be responsible for requesting an investigator, working with the State for discovery, filing motions, and knowing procedural rules. Gates asked for time to consider the decision, and the court set the hearing for the following week.
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When the parties met on November 19, Gates again requested new counsel, claiming he was “being lied to” by his attorney and there continued to be
a lack of communication and trust. Gates addressed the court:
There’s also multiple times when our communication has continued to deteriorate through disrespect that I’ve received from Miss Nacht, being walked away from in the middle of talking about what’s going on, not being allowed to come into court, having my court dates rolled over my objection when I wanted to come in and address the court, speak to the judge and voice my concerns, and having no consideration for how I want to move forward whatsoever.
The court told Gates that it was not unusual for a case to be continued without a defendant present and noted Gates’s issues appeared to be with “the way our system runs.” Gates replied, “It has nothing to do with the system or my problem with the way the system works. It’s a problem with my counsel.”
The court denied Gates’s motion, stating, “[B]ased on the record I have before me . . . I don’t see enough here, other than you [Gates] don’t like the lack of communication.” The court told Nacht and O’Connor to meet face-to-face with Gates to discuss his case. When the State asked about Gates’s motion to go pro se, the court said it would not address it until Gates met with his attorneys.
Ten days later, on November 29, Gates elected to go pro se. Gates told the court he did not want to go pro se but felt that he had no other option because he was “constructively denied counsel.” When the court found Gates’s request to go pro se was not voluntary, Gates agreed, stating his decision was
made “under duress.” Gates reiterated his issues with counsel:
I have had an irreconcilable conflict with my attorneys for multiple months. I haven't been able to work with them. I don't feel like I can work with them. That hasn't been addressed. I've been forced
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to proceed with them when they—at least Lin has been on my case for many, many, many months, has not made any progress on my case, has forced me to waive my speedy trial rights for numerous months where no further work has been put into my case. My issue is not that I now all of a sudden want to hurry up and go to trial; my issue is that I'm unhappy with the counsel that I have, and I'm not willing to continue to waste time with the counsel that I have while that time is not being utilized to work on my case.
O’Connor updated the court, stating that she had been in trial, but they were working on Gates’s case and had provided discovery to Gates for review. The court scheduled a follow-up hearing for the next week. At the follow-up hearing on December 4, Gates did not appear,1 and the court struck Gates’s motion to go pro se.
At a hearing on January 7, 2019, Nacht notified the court that she was transferring out of Seattle and would be replaced by Victoria Freer. The court found that Nacht’s withdrawal addressed most of Gates’s complaints about counsel. Gates acknowledged as much but requested that the entire SCRAP division be discharged from his case. The court denied Gates’s request. Finding good cause, the court continued the trial date to February 11, 2019. Gates recognized neither of his attorneys were ready for trial but, nonetheless, objected to the continuance.
Defense counsel requested another continuance on February 1, which the court granted, and the court set the trial date for July 29. Gates objected to the continuance. In April, Gates moved again to discharge counsel. At a hearing on the motion, O’Connor agreed that there were “irreconcilable differences.” The court responded, “I have to say my conclusion on the irreconcilable differences is
1 Gates maintains he was not brought down from the jail for the hearing.
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this basically flows one way, and it’s from Mr. Gates, who has a significant desire to control all aspects of his case.” The court denied the motion, and Gates requested to go pro se. The court did not rule on the motion, noting Gates was not sufficiently aware of the consequences of proceeding pro se.
In a letter to the court in May, Gates expressed his dissatisfaction with his attorney’s efforts to meet with him and the lack of discovery he had been provided.2 In June, Gates moved again to discharge counsel. Finding no significant change in circumstances, the court denied the motion. In August, Gates sent another letter to the court documenting his dissatisfaction with the lack of discovery he had been provided, blaming it, in part, on his counsel’s “insufficient time and resources.” Gates wrote it was not the amount of visits from counsel that was the problem, it was his counsel’s “lack of knowledge about the facts of my case.”
In September, Gates moved to discharge counsel for the eighth time.
Gates renewed his complaints about the lack of discovery that had been conducted and the breakdown in communication between himself and his counsel. Gates believed his counsel did “not hav[e] the time to follow up and check on the actual facts and the details of my case.” Nacht and Freer’s supervisor, Seth Conant, attended the hearing. Conant stated the amount of discovery was voluminous, but SCRAP was doing its best to provide Gates with as much as possible. Adrienne McCoy, representing the State, confirmed
2 Gates wrote multiple letters to the court expressing his frustration with his representation.
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O’Connor and Freer had been working on the case, including conducting interviews and working with an investigator. McCoy stated she did not hear anything new from Gates that she had not heard in the past regarding his motion to discharge counsel. The court denied Gates’s motion.
At on omnibus hearing in October, O’Connor told the court, “I spent a considerable amount of time with Mr. Gates this past week, and it’s my understanding he no longer wishes to go forward with the motion for pro se.” O’Connor noted they were almost ready for trial, but needed some additional time to confer with Gates, and Freer was in trial. Gates supported the continuance, but the court denied the motion, stating, “You all know this case is going to get to trial, and I don’t see good cause to move the trial dates because of the schedules.”
On November 7, defense counsel renewed the motion to continue. The court denied the motion, noting there had been multiple motions to continue and “at some point . . . we just have to set this out.” Less than two weeks later, on November 18, defense counsel again renewed the motion to continue, this time citing the disclosure of a new witness and plans to pursue an expert witness. The court granted the continuance and set the trial date for January 6, 2020.
In December, O’Connor moved again to continue the trial date. O’Connor noted she and Freer had both been in trial and had not had adequate time to work on Gates’s case. O’Connor also told the court Freer was rotating out of the unit and a new attorney would be starting on the case. The State objected to the continuance. The court denied the motion without prejudice, allowing O’Connor
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to submit a declaration detailing defense’s efforts to prepare for trial, the timing of the expert request, and why the court should grant a motion to allow Freer to withdraw. After reviewing the declarations, the court denied Freer’s motion to withdraw, but granted the continuance, setting the trial date to February 3, 2020.3 In January 2020, the defense requested another continuance because of conflicting trial dates and additional discovery. Gates agreed to the continuance but noted he had “a standing objection to the way things have been going this far.” The court agreed to the continuance but declared the “case needs to launch and get to trial.” Trial was continued to April 6, over the State’s objection. On March 6, defense counsel moved for a two-month continuance. The court denied the motion.
Shortly after the hearing to continue trial, the Washington Supreme Court suspended all civil and criminal jury trials because of the COVID-19 pandemic.4 The court deemed COVID-19 an unavoidable circumstance under CrR 3.3 and declared any time between the issuance of the order and September 1, 2020, was to be excluded when calculating time to trial.5 Between March 11 and September 4, the court held no hearings on Gates’s case.
3 Gates signed the court’s order, indicating his agreement with the continuance.
4 Ord. re: Modification of Jury Trial Proc., In re Statewide Response by Washington State Courts to the COVID-19 Public Health Emergency (Wash. June 18, 2020), https://www.courts.wa.gov/content/publicUpload/ Supreme%20Court%20Orders/Jury%20Resumption%20Order%20061820.pdf. [https://perma.cc/S5YJ-BWPR]
5 Am. Third Revised & Extended Ord., In re Response by Washington State Courts to the COVID-19 Public Health Emergency in Washington State, No. 25700-B-625 (Wash. May 28, 2020), https://www.courts.wa.gov/content/
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On September 4, 2020, O’Connor and Freer moved to withdraw. DPD director Anita Khandelwal, DPD deputy director Gordon Hill, and SCRAP managing attorney and felony supervisor Alena Ciecko, and Conant attended the hearing. Ciecko told the court there was a complete breakdown in communication and SCRAP “cannot provide [Gates] adequate assistance in his defense.” The court expressed concern about appointing new attorneys, noting Freer and O’Connor “have met their obligation,” and further delay would only lead to the same problems that had occurred over the last two years.
Hill told the court he believed the entire SCRAP division should be released from the case. Hill declared SCRAP had been ineffective and stated, “[W]hat we have, Your Honor, just on the face of this case is a man charged with murder in the first degree who went essentially a year and a half, if not more, with no representation, with no work done in this case.” Hill also admitted he did not know the case, did not know the facts, and had not reviewed the attorneys’ notes or briefings.
The State disagreed and contended a more complete documentation was needed before SCRAP could be deemed ineffective. The State countered that the last time they had been in court—in March—the defense was ready to go to trial except for obtaining a firearm expert. The court granted the motion for SCRAP to withdraw, but only after noting he took the statements from Hill “very seriously” and “they impact the analysis that I have on whether withdrawal is
publicUpload/Supreme%20Court%20Orders/AMENDED%20Third%20Extended %20and%20Revised%20SCT%20Order%20052920.pdf [https://perma.cc/5SVR- E28D].
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appropriate and whether the breakdown has occurred.” The court also made an express warning to Gates that if he continued to ask for new counsel, “he will not be provided representation at public expense.” The court told Gates, “I’m finding that you have consistently complained about the quality and manner in which your lawyers are preparing your case. And I don’t find your complaints with a lot of merit.”
Gates’s new counsel, Peter Geisness, filed a notice of appearance on September 8, 2020. On March 26, 2021, the court granted Geisness’s motion to continue to allow him time to prepare for trial. The court set a new trial date of June 14. Geisness moved for several continuances over the next two months, requesting more time to familiarize himself with Gates’s case. The court denied these motions. Gates’s trial commenced in June 2021.
Trial
Gates’s defense at trial was that he was acting in self-defense. Gates testified at trial and recounted the events leading up to the shooting. Gates testified that he and his friends were standing outside the back of the bar and talking, nothing unusual was happening. Geisness asked Gates if that changed,
and the following dialogue occurred:
[Gates:] It did. Shortly after, we were just standing out there just talking, joking, hanging out, talking crap to each other. And I don’t recall if it was [Leverette] or [Brown], but one of them mentioned that these two guys were just—
[State:] Objection, hearsay.
[Court:] Sustained.
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Gates went on to testify that two men, later identified as Baker and Smith, were “apparently standing and looking at us,” but then turned and walked away. Gates thought one of the men might be an acquaintance of his, and he testified he had no concerns about the situation at this point.
Later in his testimony, Gates stated he saw Baker hand Smith a weapon.
Geisness asked Gates what happened after he saw the handoff:
[Gates:] Well, I see the hand-off, and Baker immediately grabs the item that’s handed to him and puts it in his right jacket pocket and immediately starts coming southbound down the street.
I tell the people that I’m with that – [State:] Objection, hearsay.
....
[Court:] Sustained.
Gates went on to say that he told his friends he was “confident in what [he] believed [he] just saw.” After the hand-off, Smith turned around and Gates realized he did not know the individual. Geisness asked Gates if his perception
of the situation changed at this point and Gates replied, [I]t’s still pretty much the same as it was before that—I mean, other than realizing that’s not [who] I thought it was, but as far as interpreting what their behavior is, it doesn’t really seem that much out of the ordinary to me because at that point, all he had—all they had done was just arm themselves in response to supposedly, you know, looking at people that were looking at them, but they didn’t know who they were.
Leverette, Brown, and Sollesvik did not testify at trial. The jury found Gates guilty of murder in the second degree – intentional murder, murder in the second degree – felony murder, and unlawful possession of a firearm in the first degree.
Gates appealed, raising numerous claims, including that government mismanagement resulted in trial delays. State v. Gates, No 83243-3-I, slip op. at
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10 (Wash. Ct. App. Oct. 9, 2023) (unpublished), https://www.courts.wa.gov/ opinions/pdf/832433.pdf. Gates also submitted a statement of additional grounds (SAG), adding 10 additional claims, including the trial court erroneously denied his motion to suppress search warrants and the trial court erred when it sustained the State’s hearsay objections. Gates, No. 83243-3-I, slip op. at 45, n. 23. The court affirmed the conviction for murder in the second degree – intentional murder. Id. at 45-46.
In March 2025, Gates initiated this personal restraint petition (PRP), contending the delays in his trial violated his right to a speedy trial, his trial counsel was ineffective for failing to rebut the State’s hearsay objections, and his appellate counsel was ineffective for failing to raise a Sixth Amendment speedy trial claim.6 ANALYSIS
PRP
This court will grant appropriate relief to a petitioner who is under restraint and the restraint is unlawful. RAP 16.4(a). Restraint is unlawful when a conviction is obtained in violation of the Constitution of the United States or the Constitution and laws of the State of Washington. RAP 16.4(c)(2). To obtain relief through a PRP, a petitioner must show either (1) a constitutional error from which they have suffered actual and substantial justice, or (2) a non- constitutional error creating a fundamental defect that resulted in a complete
6 Gates also contended the trial court erred by denying his motion to suppress evidence seized pursuant to search warrants, but that issue was dismissed under RAP 16.11(b).
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miscarriage of justice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).
Relief available through a PRP is limited because collateral relief “ ‘undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders.’ ” Davis, 152 Wn.2d at 670 (quoting In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992)). An issue previously raised on appeal cannot be relitigated in a PRP. In re Pers. Restraint of Lord, 123 Wn.2d 296, 329, 868 P.2d 835 (1994). Similarly, “a ‘petitioner may not create a different ground [for relief] merely by alleging different facts, asserting different legal theories, or couching [their] argument in different language.’ ” Lord, 123 Wn.2d at 329 (alteration in original) (quoting Campbell v. Blodgett, 982 F.2d 1321, 1326 (9th Cir. 1992)).
Right to a Speedy Trial
Gates contends his Sixth Amendment right to a speedy trial was violated by the three-year delay from the time of his arraignment to trial. Considering all the relevant factors, including reasons for the delay and prejudice to Gates, we conclude no violation occurred.
We review de novo whether a petitioner’s right to a speedy trial has been violated. State v. Ollivier, 178 Wn.2d 813, 826, 312 P.3d 1 (2013). The United States Constitution and the Washington Constitution guarantee a defendant the right to a speedy trial. U.S. CONST. Amend. VI; WASH. CONST. art. I, § 22. To determine whether a speedy trial violation has occurred, we employ the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed.
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2d 101 (1972). The Barker court identified four factors to consider: “Length 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 first factor, length of delay, is “a triggering mechanism” for the remainder of the analysis. Id. The petitioner must “ ‘allege that the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial delay.’ ” Ollivier, 178 Wn.2d at 827 (internal quotation marks omitted) (quoting Doggett v. United States, 505 U.S. 647, 651-52, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). Only if the defendant shows the delay is presumptively prejudicial do we engage in the full Barker analysis. Doggett, 505 U.S. at 652.
The Barker analysis is “fact-specific and ‘necessarily dependent upon the peculiar circumstances of the case.’ ” Ollivier, 178 Wn.2d at 827 (internal quotation marks omitted) (quoting State v. Iniguez, 167 Wn.2d 273, 292, 217 P.3d 768 (2009)). No one factor is necessary or determinative. Ollivier, 178 Wn.2d at 827. Additionally, “a showing of presumptive prejudice cannot, by itself, prove a speedy trial violation—more is required.” Iniguez, 167 Wn.2d at 283.
1. Length of Delay As an initial matter, we must determine whether the delay in this case was presumptively prejudicial. Approximately three years elapsed from Gates’s arraignment in May 2018 and the beginning of his trial in June 2021. But six months were due to COVID-19 and are not included in the time to trial; accordingly, the delay was about 31 months.
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Because the analysis is specific to each case, the right to a speedy trial cannot be “quantified into a specific time period.” Iniguez, 167 Wn.2d at 283. The court is less likely to find a defendant’s right to a speedy trial has been violated when the delay was attributable to the defense, particularly when continuances were requested to prepare for trial. Ollivier, 278 Wn.2d at 828, 831.
Gates cites to State v. Lackey, 153 Wn. App. 791, 800, 223 P.3d 1215 (2009), to contend delays of eight months to one year are presumptively prejudicial. The court in Lackey noted that “[d]elays of eight months to one year are presumptively prejudicial.”7 153 Wn. App. at 800. In Iniguez, the Washington State Supreme Court refined the rule put forth in Lackey. The Iniguez court determined that putting a definitive time constraint on the presumptively prejudicial analysis “is out of step with the fact-specific nature of the Barker inquiry, which ‘is necessarily dependent upon the peculiar circumstances of the case.’ ” 167 Wn.2d at 292 (quoting Barker, 407 U.S. at 530-31). While length of delay is an important factor in the presumptively prejudicial analysis, “the complexity of the charges and a reliance on eyewitness testimony are two other factors that also can be examined” in the analysis.
7 For this proposition, the Lackey court cites to State v. Corrado, 94 Wn.
App. 228, 233–34, 972 P.2d 515 (1999) which cites to Doggett, 505 U.S. 647. The court in Doggett noted that “[d]epending on the nature of the charges, the lower courts have generally found postaccustation delay ‘presumptively prejudicial’ at least as it approaches one year.” 505 U.S. at 652, n.1.
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Iniguez 167 Wn.2d at 292. However, the Iniguez court still found a nine-month delay presumptively prejudicial where the defendant spent all their time in custody and the State’s case relied on eyewitness testimony. 167 Wn.2d at 292.
Here, the 31-month delay between Gates’s arraignment and trial was presumptively prejudicial. Gates was in custody during the delay, both parties planned to elicit eyewitness testimony, and Gates was facing serious, criminal charges.
While we conclude that the 31-month delay is presumptively prejudicial and triggers the Barker analysis, Gates cannot show that 31 months is “beyond ordinary” considering the circumstances of his case. The circumstances here are similar to Olliver, where the court found a two-year delay was presumptively prejudicial but was reasonably necessary considering the circumstances. Ollivier, 178 Wn.2d at 828-31. In that case, Brandon Ollivier was arraigned in April 2007 for charges of possession of depictions of minors engaged in sexually explicit activity. Id. at 821. Trial did not commence until March 2009. Id. During the nearly two-year delay, the court granted 22 continuances, most of which were sought by defense. Id. Despite Ollivier objecting to all but two of the continuances, the court on appeal found the delay was not presumptively prejudicial because continuances sought by defense, even over defendant’s objections, are attributable to the defense.8 Id. The court noted that when
8 The opinion also cited to several persuasive cases that did not regard two-year delays, or longer, as exceptionally long when the continuances were requested by defense. Ollivier, 178 Wn.2d at 828-29 (citing United States v. Lane, 561 F.2d 1075 (2d Cir.1977) (58-month delay); Gattis v. Snyder, 278 F.3d
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continuances are sought by defense counsel to prepare for trial it “is an extremely important aspect” of the balancing test. Id. at 831.
Here, while the delay was over two years, the continuances were sought by defense counsel to prepare for Gates’s trial, which was a serious crime involving a great deal of discovery, and to secure an expert witness. Gates cannot establish that a 31-month delay was beyond ordinary considering the circumstances of his case.
2. Reason for Delay Where the length of delay is a triggering mechanism, the reason for delay is “ ‘the focal inquiry.’ ” Ollivier, 178 Wn.2d at 831 (internal quotation marks omitted) (quoting United States v. Santiago–Becerril, 130 F.3d 11, 22 (1st Cir. 1997)). When the reason for delay is trial preparation, the first two factors are similar. Id.
The reason for delay can be viewed on a spectrum. Ollivier, 178 Wn.2d at 831. On one end is the situation where the defendant requests or agrees to the delay, thereby waiving their right to a speedy trial. Id. Delay caused by the defendant’s counsel also weigh against the defendant, even when the defendant objects to the delay. Id. at 833 (“Because ‘the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,’ delay caused by the defendant’s counsel is also charged against the defendant.”) (alteration in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546,
222 (3d Cir.2002) (28–month delay); United States v. Hills, 618 F.3d 619, 630–31 (7th Cir. 2010) (two-year delay)).
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115 L. Ed. 2d 640 (1991)). On the other end of the spectrum is the State’s deliberate delays to frustrate the defense. Id. at 832. In the middle of the spectrum are situations where “the delay is due to the government’s negligence or overcrowded courts.” Id. In this case, the delay weighs against the State, but to a lesser degree. Id.
This factor weighs against Gates because most of the continuances were sought by defense counsel in preparation of trial. Gates does not disagree that the continuances were sought by his counsel, but he contends the delay should be attributable to the State because “ ‘[d]elay[s] resulting from a systemic breakdown in the public defender system could be charged to the State.’ ” To support his claim, Gates cites to a rule proposed under GR 9, which identifies that public defenders in Washington face “a crisis of attrition and an inability to recruit staff brought about by excessive workloads and poor compensation.” In re Suggested Amendments to Standards for Indigent Defense—CrR 3.1 Stds/CrRLJ 3.1 Stds/JuCR 9.2 Stds, No. 25700-A-1568, at 3 (Wash. June 10, 2024) [https://perma.cc/N3WF-HW4C]. But Gates cannot show a breakdown in the public defender system attributed to delay in his case.
Gates implies the “systemic breakdown in the public defender system”
overburdened his attorneys and resulted in “very little” being done on his case before Geisness took over in September 2020, but the record does not support this assertion. Gates’s attorneys were busy and frequently in trial, but they were
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still making progress on Gates’s case.9 And, despite SCRAP requesting to withdraw in September 2020, citing ineffective assistance of counsel, the court
recognized the progress that had been made:
The status of the case since [O’Connor and Freer have]
come on board has been one of fairly steady progress. And what I've heard at the various omnibus hearings that we've had is that witness—probably not as fast as everyone would like, but the witness interviews are occurring, the experts are preparing their respective reports.
Additionally, at the hearing for the motion to withdraw, Hill, who represented SCRAP, noted he had not reviewed the facts of the case or the attorneys’ briefing and notes. Hill’s assertions contradict the record, which shows continuous progress by Gates’s counsel, despite the challenges of their schedules and working with Gates.
Gates cannot show that the delay in his trial was attributable to a breakdown in the public defender system. The continuances in his case were attributable to his counsel’s need to prepare for a complex trial, and his own repeated attempts to discharge counsel. Accordingly, this factor weighs against Gates.
3. Assertion of Right The third Barker factor considers whether the defendant asserted their right to a speedy trial. State v. Nov, 14 Wn. App. 2d 114, 133, 469 P.3d 352 (2020). We determine the extent to which a defendant asserts their right,
9 For example, in November 2018, O’Connor told the court they had an investigator and the State had provided them with discovery. By September 2019, defense counsel had “interviewed many of the very important witnesses” and were continuing to schedule interviews and prepare for trial.
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including “the frequency and force of a defendant’s objections.” Iniguez, 167 Wn.2d at 294-95. Even when a defendant repeatedly objects to continuances, if the continuances were sought for a legitimate reason, such as trial preparation, the objections may not weigh in favor of a conclusion that a constitutional speedy trial violation occurred. Ollivier, 178 Wn.2d at 838.
Here, Gates affirmatively objected to continuing his trial on several occasions. But at other times, he did not object and expressed discomfort at the idea of rushing to trial.
Gates did affirmatively assert objections to waiving his right to a speedy trial, but that alone does not suggest the factor weighs in favor of Gates. As the court noted in Ollivier, “if defense counsel can seek continuances for any purpose and at the same time the defendant can file effective objections—a nearly automatic escape hatch would be created should the trial not proceed as hoped.” 178 Wn.3d at 839. Further, if the court denies a motion to continue and defense counsel is not prepared for trial, then the defendant might have a strong claim of ineffective assistance of counsel. Ollivier, 178 Wn.2d at 838. Gates’s counsel sought continuances for the legitimate purpose of preparing for trial. For this reason, the third factor does not weigh in favor of Gates.
4. Prejudice The final factor in the Barker analysis is prejudice to the defendant. In analyzing this factor, the court assesses any effects that the delay had on the interests protected by the right to a speedy trial. Nov, 14 Wn. App. 2d at 134. These interest include, (1) prevention of a harsh pretrial detention,
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(2) minimization of the defendant's anxiety or worry, and (3) limitation or impairment of the defense. Id. at 134. If the delay is not because of bad faith of the government or is not long enough for a presumption of prejudice to arise, the defendant must show actual prejudice. Ollivier, 178 Wn.2d at 840. For purposes of this factor, “[p]resumed prejudice is recognized only in the case of extraordinary delay, except when the government’s conduct is more egregious than mere negligence.” Id. at 842. Generally, courts consider delays over five years presumptively prejudicial. Id. at 842-43.
Here, Gates does not claim the delay was presumptively prejudicial, he only contends the delay impaired his ability to present a defense. Gates contends the delays resulted in his witnesses forgetting details of the event and not testifying at trial.
In October and November 2019, defense counsel interviewed Sollesvik, Gates’s former girlfriend, who was present the night of the shooting. At the first interview in October, Sollesvik recounted the incident. She stated that when Baker turned from the car and “started walking back in their direction,” Gates turned to her and told her to leave. As she was walking away, she heard gunshots. She did not look in the direction of the noise or know who fired the shots. Sollesvik reiterated the same story at her second interview and confirmed she did not know anything more. Defense counsel served Sollesvik with a trial subpoena. Sollesvik asked for a reference for the Office of Public Defense so she could obtain a public defender.
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In January 2020, defense counsel interviewed Leverette. Leverette told the investigator that on the night of the shooting, outside the bar, he noticed a guy on the opposite sidewalk “looking over at them and giving out weird, threatening vibes.” Leverette said the man looked “suspicious” and “he was scared.” When asked why the man made him feel uneasy or scared, Leverette replied that “he just seemed like he was going to do something, he seemed like he might have been high or something, kind of walking weird.” Leverette said the man’s “vibe” was making him nervous and “[h]is body language seemed a bit aggressive.”
Leverette told the investigator that after he saw the man looking his way, Leverette took off running. He heard gunshots, but he did not look back and did not know who was shooting. He did not discuss that night with Gates afterward. At the end of the interview, Leverette said he did not want to go to court or be involved with the shooting situation.
First, Gates contends that the delay in conducting witness interviews resulted in reduced memory. Gates provides no evidence that Sollesvik’s memory was diminished at the time of her interview. And, while Leverette did state that he did not “remember a lot of the details,” he was able to give a thorough account of the events that happened outside the club the night of the shooting. Gates also claims the delay resulted in Brown not being interviewed, but no evidence exists to show that was a result of delay, as opposed to Brown declining to be interviewed.
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Next, Gates contends that the delay resulted in Sollesvik, Leverette, and Brown deciding not to testify. Gates claims that had Sollesvik and Leverette testified, they would have corroborated his testimony that he was fearful, and the shooting was in self-defense. But in her interview, Sollesvik did not mention Gates appeared scared, nor did she indicate that she saw anything to support Gates’s self-defense claim. Leverette also did not see the shooting or any threatening movements by Baker.
Additionally, Gates presents no evidence that, had the trial happened sooner, any of the witnesses would have agreed to testify. In fact, both Sollesvik and Leverette expressed hesitation to testifying at trial, and Sollesvik appeared ready to retain counsel as soon as her interview was over. Gates cannot show that without the delay, the witnesses would have agreed to testify, and their testimony would have corroborated Gates’s version of events. Because Gates cannot establish actual prejudice, this factor weighs against him.
Balancing the Barker factors, the delay was not unduly long, the reasons for the delay are attributable primarily to the defense, Gates objected to some of the continuances, but repeatedly said he did not intend to rush to trial, and Gates cannot provide support that the delay caused any particular prejudice. Accordingly, we conclude Gates’s right to a speedy trial was not violated.
Ineffective Assistance of Counsel Gates contends his trial counsel was ineffective for failing to rebut the State’s hearsay objections and his appellate counsel was ineffective for not
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including a Sixth Amendment violation. Because neither claim would have been successful, Gates’s counsel was not ineffective for failing to raise the issues.
We review claims of ineffective assistance of counsel de novo. State v.
Wafford, 199 Wn. App. 32, 41, 397 P.3d 926 (2017). Whether counsel performed deficiently is determined “based upon the entire record below.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). We may consider evidence or facts not in the trial record when an ineffective assistance of counsel claim is brought in a PRP. McFarland, 127 Wn.2d at 335.
The right to effective assistance of counsel is guaranteed by the United States Constitution and Washington State Constitution. U.S. CONST. Amend. VI; WASH. CONST. art. I, § 22. To prevail on a claim of ineffective assistance of counsel, the defendant must establish that “ ‘(1) defense counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” State v. Vazquez, 198 Wn.2d 239, 247-48, 494 P.3d 424 (2021) (quoting McFarland, 127 Wn.2d at 334-35).
Courts maintain a strong presumption that counsel’s representation was effective. McFarland, 127 Wn.2d at 335. But this presumption can be rebutted “where there is no conceivable legitimate tactic explaining counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). The decision not to object to trial testimony may be a tactic employed by counsel,
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and the defendant has the burden to show it was not a legitimate strategy, the objection would likely have succeeded, and the outcome of the trial would have been different had counsel objected. State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019).
1. Hearsay Objections Gates claims that he received ineffective assistance of counsel because his counsel did not attempt to rebut the court’s decision to sustain the State’s hearsay objections. The State objected to the following statements made by
Gates during trial:
Shortly after, we were just standing out there just talking, joking, hanging out, talking crap to each other. And I don’t recall if it was [Leverette] or [Brown], but one of them mentioned that these two guys were just—
....
Well, I see the hand-off, and Baker immediately grabs the item that’s handed to him and puts it in his right jacket pocket and immediately starts coming southbound down the street. I tell the people that I’m with that—
This issue is essentially the same issue Gates raised in his direct appeal but couched in a different legal theory. In a statement of additional grounds on direct appeal, Gates contended “the trial court improperly excluded evidence relevant to his perceptions while committing the offense by sustaining hearsay objections.” Gates, No 83243-3-I, slip op. at 45, n.23. Gates cannot now relitigate those claims under the theory of ineffective assistance of counsel. But, even if we were to review the issue, Gates cannot show his counsel was ineffective.
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Gates’s counsel was not ineffective for failing to raise a meritless argument. See Lord, 123 Wn.2d at 314 (“[I]n order to prevail on the appellate ineffectiveness claim, [petitioner] must show the merit of the underlying legal issues his appellate counsel failed to raise or raised improperly and then demonstrate actual prejudice.”). Because the trial court’s ruling on the hearsay objections was affirmed on appeal, even if Gates’s counsel had rebutted the hearsay objections, the outcome of the trial would not have been different. Accordingly, Gates cannot show that he was prejudiced, and Gates’s ineffective assistance of counsel claim fails.
2. Sixth Amendment Gates’s contends his appellate counsel was ineffective for failing to argue Gates’s right to a speedy trial was violated. Because Gates’s right to a speedy trial was not violated, as discussed supra, his counsel was not ineffective for failing to raise the issue.
We deny Gates’s petition.
WE CONCUR: