Filed Washington State Court of Appeals Division Two
June 14, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 55016-4-II
FERNANDO ANDRES CELAYA, UNPUBLISHED OPINION Petitioner.
LEE, J. — Fernando A. Celaya brought a personal restraint petition (PRP), alleging that he
is being unlawfully restrained for his convictions on two counts of fourth degree assault, felony
harassment, violation of a no contact order, and witness tampering. Celaya argues that he received
ineffective assistance of counsel because defense counsel failed to move for dismissal based on
government misconduct when the State violated his speedy trial rights by moving to amend the
information on the day of trial and when the State misstated the law in its arguments to amend the
information.
We hold that Celaya did not receive ineffective assistance of counsel because Celaya has
not shown that either motion would have been granted. Therefore, we deny Celaya’s PRP.
FACTS
Fernando A. Celaya and K.J. 1 were in a romantic relationship for about two years. State
v. Celaya, No. 52063-0-II, slip op. at 2 (Wash. Ct. App. Apr. 7, 2020) (unpublished).2 Celaya and
K.J. lived together with Celaya’s friend Brian Pace. Id. On June 21, 2017, the State charged
1 We use initials to protect the identity of the domestic violence victim. 2 https://www.courts.wa.gov/opinions/pdf/D2%2052063-0-II%20Unpublished%20Opinion.pdf No. 55016-4-II
Celaya with second degree assault and felony harassment after a domestic violence incident
involving Celaya and K.J. the day before. Id. On June 22, 2017, Celaya called Pace from jail. Id.
On two occasions, during the call, Celaya asked Pace to convince K.J. to drop the charges against
him. Id. Celaya told Pace that if K.J. did not drop the charges, Pace should kick her out of his
house. Id.
A. TRIAL CONTINUANCES
The trial court set Celaya’s trial date for August 8, 2017. On July 18, the trial court granted
a motion to continue the trial date brought by both parties. Celaya claimed he needed “additional
time to conduct investigation evaluate potential collateral issues.” Clerk’s Papers (CP) at 7.
Further, Celaya’s counsel noted a number of dates they were unavailable. The trial court continued
the trial date from August 8 to October 2, 2017.
On August 18, the State provided Celaya with a list of its witnesses for trial. The State’s
witness list included Brien A. Pace.
On September 19, at the request of both parties, the trial court granted another trial
continuance. Both parties stated, “Defense obtaining records to provide to State, State scheduling
witness interviews, Defense providing witness list. Defense unavailable 9/21 to 9/26 [and] 10/11
to 10/17 [and] DPA unavailable 10/25 to 11/7.” CP at 12. The trial court continued the trial to
November 14, 2017. The bottom of the order was stamped, “NO MORE CONTINUANCES.”
CP at 12.
Also on September 19, the trial court signed an omnibus order in which the State
acknowledged that it was “[a]waiting report on Jail call NCO violations if any,” which had not yet
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been made available to Celaya. The omnibus order also stated that Celaya still needed to “provide
discovery [and] witness list to state.” CP at 16.
On November 13, the trial court granted Celaya’s motion to continue the trial date to
December 12, 2017. Celaya told the court that he “was only recently able to interview alleged
victim and still in the process of obtaining discovery defense will need to provide to the State in
advance of trial.” CP at 24
On December 1, the trial court granted the State’s motion to continue the trial date. The
State stated, “Officer Bradley (3.5) is unavailable for training 12/11 - 12/15. Officer Robillard is
on vacation out of state 12/8 - 12/24. DPA Dillon on vacation 12/23 - 1/1/18.” CP at 27. Celaya
objected to the continuance. The trial court continued the trial date to January 17, 2018. The
bottom of the order was again stamped, “NO MORE CONTINUANCES.” CP at 27.
On January 5, 2018, over Celaya’s objection, the trial court granted the State’s motion to
continue the trial date. The State stated, “Officer Bradley has out of state training 1/15 - 1/21/2018
Officer Rush is unavailable due to training 1/22 - 1/26/2018.” CP at 33. The trial court continued
the trial date a week to January 24, 2018. The expiration of time for trial period was set as February
23, 2018. The bottom of the order was again stamped, “NO MORE CONTINUANCES.” CP at
33.
Also on January 5, the trial court entered a trial readiness order that noted, “An amended
information will be filed on morning of trial to add 1 count Assault [fourth degree]/DV.” CP at
28. The trial readiness order also included the State’s representation that, “Officer Meagan Rush
unavailable 1/22 to 1/26,” and that the trial was estimated to take three to four days. CP at 29.
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On January 24, over Celaya’s objection, the trial court granted the State’s motion to
continue the trial date. The State informed the court that “DPA is assigned out on another trial.”
CP at 35. The trial court continued the trial date to February 8, 2018. The expiration of the time
for trial period was March 10, 2018. The bottom of the order was again stamped, “NO MORE
CONTINUANCES.” CP at 35.
Also on January 24, Celaya filed a trial memorandum. In the memorandum, Celaya stated,
“The Defense does not anticipate any further amendments of the charges.” CP at 40. Celaya also
estimated that the “trial should last, at most, four to five days.” CP at 40. Celaya provided a
witness list to the State on January 26.
On January 29, the State received a report that Pace would be able to testify regarding the
phone call he received from Celaya while Celaya was in jail. VRP (Feb. 8, 2018) 11. On January
30, the State reviewed the report and sent an email to Celaya’s counsel with an amended
information that added charges for fourth degree assault, a presentence no contact order violation,
and witness tampering. The State intended to rely on the amended information at trial.
Defense counsel saw the State’s email on February 4, however, was unable to address it
until counsel was back in the office on February 5. Defense counsel was not able to address the
email sooner because he was out of the office for two days with pinkeye, and then another two
days because his son had surgery.
On February 8, the day of trial, the State moved to amend the information to add a fourth
degree assault charge, a presentence no contact order violation charge, and a witness tampering
charge. The fourth degree assault arose from the same incident as the original charges, while the
no contact order violation and witness tampering charges arose after Celaya was arrested for the
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incident involving K.J. The State alleged the no contact order violation occurred on or about June
22, 2017, while the witness tampering occurred on or between June 20, 2017 and January 30, 2018.
Celaya “strenuously” objected to the State’s attempt to amend the information on the day
of trial. VRP (Feb. 8, 2018) at 4. Celaya argued that the State provided discovery for the new
charges “late last week” even though the State was aware that defense counsel would be out of
office. VRP (Feb. 8, 2018) at 5. Celaya also argued that the amendment prejudiced Celaya, who
had been “awaiting trial for some time.” VRP (Feb. 8, 2018) at 5. Further, Celaya argued that
amending the information would cause the “allegations [to] substantially change . . . bring great
difficulty in the defense that [Celaya] had anticipated putting forth.” VRP (Feb. 8, 2018) at 8.
In response, the State argued that the new charges could not be added previously because
the State was not sure whether Pace would testify as a corroborating witness, and knowing whether
Pace conveyed a message from Celaya to K.J. was an essential element of the witness tampering
charge. VRP (Feb. 8, 2018) 11. The State asserted that it was unable to get confirmation of Pace’s
cooperation until January 30, 2018, the day notice was given to Celaya about the State’s plan to
amend the information. The State stated that it would agree to a continuance if Celaya needed
more time to prepare for trial.
When asked by the trial court why the charges had not been brought sooner, the State again
stated, “I’m not going to be able to prove that witness tampering without Brian Pace and without—
because he is the one that conveys the message from that call to the alleged victim.” VRP (Feb.
8, 2018) at 23. The State then said that it had attempted to contact Pace as early as September 19,
2017 and had made at least nine other attempts to contact Pace before he finally returned their call
at the end of January 2018. The State claimed, “I have to determine whether or not I have a
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reasonable certainty of conviction at trial. That doesn’t happen until I actually have that statement
from Mr. Pace.” VRP (Feb. 8, 2018) at 26. In response, Celaya argued that “we are bordering on
prosecutorial mismanagement here.” VRP (Feb. 8, 2018) at 27.
In its ruling, the trial court stated, “I don’t think that the State mismanaged the case. I
understand why they felt like they couldn’t—they didn’t have a good-faith basis to proceed on
witness tampering charges.” VRP (Feb. 8, 2018) at 30. The trial court repeated, “I don’t think
that there is any prosecutorial misconduct in the management of the case.” VRP (Feb. 8, 2018) at
32. The trial court also stated, “This is when the information developed.” VRP (Feb. 8, 2018) at
33. The trial court then said, “[S]ince I don’t find any prosecutorial misconduct in the management
of the matter or how this played out given the record that I have, I will grant the motion to amend
and accept the Amended Information for filing.” VRP (Feb. 8, 2018) at 35.
Celaya then moved to continue the trial. The State did not object, and the trial court granted
the motion. The trial court continued the trial to February 27, 2018, and the expiration of the time
for trial period was reset to March 29, 2018.
On February 27, the trial court granted Celaya’s motion to continue the trial date. Celaya
stated, “Defense council [sic] is in trial. Defense council [sic] on vacation 3/7/18 - 3/14/18 [and]
3/28/18 - 4/2/18.” CP at 66. A new trial was set for March 19, 2018. The expiration of the time
for trial period was reset to April 18, 2018. The bottom of the order was stamped, “NO MORE
CONTINUANCES.” CP at 66.
At a hearing on March 19, the trial court ordered a continuation of the trial date because no
courtrooms were available that day. A new trial date was set for the next day on March 20, 2018.
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Also at the March 19 hearing, the State informed the trial court that Celaya had stated he
was preparing to make a motion, though Celaya would not tell the State what the substance of
the motion would be. The State also noted that Celaya had “a large prosecutorial misconduct
book.” VRP (Mar. 19, 2018) at 2. The State argued that it “need[ed] to know the substance of
the motion so that [it could] be prepared for the Court so that this case, which is already very old,
does not get continued any further.” VRP (Mar. 19, 2018) at 3. Celaya responded that based on
the actions of the State, he believed the State had engaged in “prosecutorial misconduct or
mismanagement” and intended on briefing the issue. VRP (Mar. 19, 2018) at 7.
On March 20, the trial court again continued the trial for a day because there were no
courtrooms available. At the hearing, Celaya stated that he was not certain if he would bring a
CrR 8.3 motion. Instead, he stated that he “would be looking at these issues” and would only file
a motion “if [he] felt it appropriate.” 2 VRP (Mar. 20, 2018) at 14.
On March 21, the trial court granted a motion for continuance from Celaya because his
defense counsel had a prescheduled vacation that conflicted with the trial date. The State did not
object. A new trial was set for April 12, 2018. Although the trial date could have been set sooner,
Celaya asked that the trial be continued to April 12, 2018 because he preferred to have an
uninterrupted trial. The bottom of the order was stamped, “NO MORE CONTINUANCES.” CP
at 75.
On April 4, the trial court granted the State’s motion to continue the trial date. The State
stated, “Officers unavailable: Megan Jones Rush 4/12 - 4/20; Ryan Bradley 4/21 - 5/10; Torvald
Pearson 4/18 - 4/23; Det. Reda 5/1 - 5/3.” CP at 81. A new trial was set for April 17, 2018. Celaya
did not object; instead, Celaya stated, “[I]t would appear to defense counsel that it would make the
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most sense to move [the trial] to the 16th or 17th.” 4 VRP (Apr. 4, 2018) at 34. The bottom of
the order again was stamped, “NO MORE CONTINUANCES.” CP at 81.
B. TRIAL AND JURY VERDICT
The trial started on April 17, 2018. The jury found Celaya not guilty of second degree
assault but found him guilty of the lesser included crime of fourth degree assault. The jury also
found Celaya guilty of an additional count of fourth degree assault, felony harassment, violation
of a no contact order, and witness tampering. The jury also found that Celaya and K.J. were
members of the same household for all counts.
C. DIRECT APPEAL
Celaya appealed his convictions. Celaya, No. 52063-0-II, slip op. at 7. Relevant to this
PRP, Celaya argued that “his convictions should be dismissed because the State committed
governmental misconduct under CrR 8.3(b) that caused the trial court to violate Celaya’s
constitutional right to a speedy trial.” Id. Celaya also argued that his constitutional right to a
speedy trial was violated. Id. at 8. In a statement of additional grounds (SAG), Celaya argued,
among other issues, that he received ineffective assistance of counsel. Id. at 10-14.
We held that because Celaya “abandoned the CrR 8.3(b) issue below, Celaya waived CrR
8.3(b) as a basis for review on appeal.” Id. at 8. We explained, “Celaya’s counsel’s statements to
the trial court show that he clearly recognized the existence of the issue of governmental
misconduct but nevertheless decided to not bring a CrR 8.3(b) motion.” Id. Thus, we held that
“by declining to move to dismiss his charges pursuant to CrR 8.3(b) in the trial court, Celaya has
waived his claim of governmental misconduct on appeal,” and we declined to review Celaya’s
CrR 8.3(b) claim. Id.
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We also declined to review Celaya’s claim that his constitutional right to a speedy trial was
violated because it was raised for the first time on appeal and was not a manifest error. Id. at 8-
10. Celaya argued on appeal that the trial delays caused him prejudice because witness memories
faded. Id. at 9. We held that Celaya failed to show how the witness’ forgetfulness caused him
prejudice that affected his right to a fair trial. Id. at 9-10.
We also determined that “[e]ven assuming Celaya’s speedy trial violation was manifest . .
. Celaya’s claim fails at the outset.” Id. at 10 n. 7. We stated that under the balancing test set forth
in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), Celaya did not
“satisfy the threshold burden of demonstrating that the delay was ‘presumptively prejudicial.’” Id.
(quoting State v. Iniguez, 167 Wn.2d 273, 283, 217 P.3d 768 (2009)). Thus, we held that “Celaya
cannot raise nor prevail on a speedy trial violation issue raised for the first time on appeal.” Id.
We also rejected Celaya’s ineffective assistance claim. Id. at 10-14.
Celaya now seeks relief under a PRP.
ANALYSIS
A. PERSONAL RESTRAINT PETITION
To prevail on a PRP alleging a constitutional violation, the defendant must prove that there
was a constitutional error that resulted in actual and substantial prejudice. In re Pers. Restraint of
Williams, 198 Wn.2d 342, 353, 496 P.3d 289 (2021). To obtain relief, the defendant must show
by a preponderance of the evidence that the constitutional error caused him actual and substantial
prejudice. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004).
In evaluating a PRP, we may (1) deny the PRP if the defendant fails to make a prima facie
showing of a constitutional or nonconstitutional error; (2) remand for a full hearing if the petitioner
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makes a prima facie showing but the merits of the contentions cannot be determined solely from
the record; or (3) grant the PRP without further hearing if the petitioner has proved actual prejudice
or a miscarriage of justice. In re Pers. Restraint of Schreiber, 189 Wn. App. 110, 113, 357 P.3d
668 (2015).
B. SPEEDY TRIAL RIGHT VIOLATION GOVERNMENTAL MISCONDUCT CLAIM, AND APPEAL
As an initial matter, the State argues that Celaya cannot raise an ineffective assistance of
counsel claim based on governmental misconduct because that issue, as well as the issue of
whether his right to a speedy trial was violated, was addressed in the direct appeal. The State
claims that Celaya cannot recast an issue already addressed in the direct appeal as an ineffective
assistance of counsel claim.
A petitioner may raise new issues on collateral attack. In re Pers. Restraint of Davis, 152
Wn.2d 647, 671, 101 P.3d 1 (2004). But “[a] ‘new’ issue is not created merely by supporting a
previous ground for relief with different factual allegations or with different legal arguments.” Id.
It is not enough for a defendant to merely recast an issue as an ineffective assistance of counsel
claim; “simply recasting an argument in that manner does not create a new ground for relief or
constitute good cause for reconsidering the previously rejected claim.” In re Pers. Restraint of
Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001). Thus, a petitioner is barred from raising an issue
that was previously raised on direct appeal if the issue was fully litigated on the merits and disposed
of on direct appeal. See In re Pers. Restraint of Knight, 196 Wn.2d 330, 341, 473 P.3d 663 (2020).
However, while a personal restraint petitioner may not renew an issue that was raised and rejected
on direct appeal, review may be had if the petitioner can show that the interests of justice require
relitigation of an issue “by showing an intervening change in the law ‘or some other justification
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for having failed to raise a crucial point or argument in the prior application.’” Stenson, 142 Wn.2d
at 719-20 (internal quotation marks omitted) (quoting In re Pers. Restraint of Gentry, 137 Wn.2d
378, 388, 972 P.2d 1250 (1999)).
1. Speedy Trial Violation Claim
Celaya argues in his PRP that his right to a speedy trial was violated as a result of
governmental misconduct when the State amended the information on the day of trial. This
argument was raised and decided on direct appeal, and therefore, Celaya is barred from again
raising this claim by recasting it as an ineffective assistance of counsel claim in his PRP.
On direct appeal, Celaya argued that “his constitutional right to a speedy trial was violated”
because the delay in trial caused witnesses’ memories to fade, resulting in prejudice to him.
Celaya, No. 52063-0-II, slip op. at 8-10. We declined to consider the alleged error on direct review
because the issue was raised for the first time on appeal and Celaya failed to show the faded
memories caused any prejudice that affected his right to a fair trial; thus, Celaya failed to show a
manifest constitutional error. Id.
However, we also determined that “[e]ven assuming Celaya’s alleged speedy trial violation
was a manifest constitutional error and we considered the merits of his claim, Celaya’s claim fails
at the outset.” Id. at 10 n.7. We went on to explain that violations of the constitutional speedy
trial right are analyzed using the balancing test set forth in Barker. Id.
[I]n order to trigger the Barker analysis, [Celaya] must first show “that the length of delay crossed a line from ordinary to presumptively prejudicial.” [State v. Iniguez, 167 Wn.2d at 283.] Celaya does not satisfy the threshold burden of demonstrating that the delay was “presumptively prejudicial.” Id. . . . . Thus, without a manifest constitutional error or a showing of presumptive prejudice, Celaya cannot raise nor prevail on a speedy trial violation issue raised for the first time on appeal.
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Id.
Here, Celaya again raises in his PRP a challenge that his right to a speedy trial was violated.
Although Ceyala now argues that his speedy trial right was violated because the State amended
the information on the first day of trial, this is not a new issue. See Davis, 152 Wn.2d at 671. And
Celaya does not justify his failure to raise his new argument nor does he show that the interests of
justice require relitigation of this issue. See Stenson, 142 Wn.2d at 720. Therefore, Celaya is
barred from again raising this issue in a PRP.
2. Governmental Misconduct Claim
Celaya also argues in his PRP that he received ineffective assistance of counsel because
his counsel failed to move to dismiss for governmental misconduct, which forced him to choose
between his right to a speedy trial and his right to prepare a defense. The merits of this argument
were not addressed on direct appeal.
On appeal, Celaya argued that “his convictions should be dismissed because the State
committed governmental misconduct under CrR 8.3(b) that caused the trial court to violate
Celaya’s constitutional right to a speedy trial.” Celaya, No. 52063-0-II, slip op. at 7. However,
we did not address the merits of Celaya’s argument on direct review. Id. at 8. Instead, we held
that Celaya “waived CrR 8.3(b) as a basis for review on appeal” because he “abandoned the CrR
8.3(b) issue below.” Id. Therefore, the issue of whether there was governmental misconduct that
forced Celaya to choose between his right to a speedy trial and his right to prepare a defense was
not fully litigated on the merits.
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Because the merits of whether governmental misconduct forced Celaya to choose between
his right to a speedy trial and his right to prepare a defense has not been fully litigated and
determined, Celaya’s ineffective assistance of counsel claim based on his counsel’s failure to move
to dismiss for governmental misconduct is not “simply recasting an argument.” Stenson, 142
Wn.2d at 720. Therefore, we address this issue.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Celaya argues that he received ineffective assistance of counsel because his defense
counsel failed to move to dismiss his case for governmental misconduct when the State violated
his speedy trial rights and misstated the law. We disagree.
1. Legal Principles
We review claims of ineffective assistance of counsel de novo. In re Pers. Restraint of
Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017). To establish ineffective assistance of counsel, a
defendant must show that their attorney’s performance was deficient and, if it was deficient, that
it was prejudicial. Davis, 152 Wn.2d at 672-73. An ineffective assistance of counsel claim fails
if the defendant fails to establish either deficient performance or prejudice. Id. at 673.
Performance is deficient if counsel’s representation falls below an objective standard of
reasonableness based on consideration of all the circumstances. Lui, 188 Wn.2d at 538. There is
a strong presumption that counsel’s representation was effective. Davis, 152 Wn.2d at 673. While
defense counsel has a duty to investigate all reasonable lines of defense, counsel need not pursue
strategies that reasonably appear unlikely to succeed. Davis, 152 Wn.2d at 744-45; State v.
McFarland, 127 Wn.2d 322, 334 n.2, 899 P.2d 1251 (1995).
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The burden to establish prejudice for an ineffective assistance of counsel claim is the same
in a PRP as for a direct appeal. In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102
(2012). A defendant is prejudiced by their counsel’s deficient performance where there is a
“‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Id. at 840 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694).
“The failure to seek dismissal of the charges, where a motion to dismiss would probably
be granted, constitutes ineffective assistance of counsel.” State v. Johnston, 143 Wn. App. 1, 18,
177 P.3d 1127 (2007). However, “this court cannot find prejudice unless there is a reasonable
probability that the charges would have been dismissed had trial counsel sought a dismissal.” Id.
Dismissal under CrR 8.3(b) is an “extraordinary remedy.” See State v. Puapuaga, 164
Wn.2d 515, 526, 192 P.3d 360 (2008). However, governmental misconduct need not be of an evil
or dishonest nature to support a dismissal under CrR 8.3(b); rather, simple mismanagement is
sufficient. State v. Salgado-Mendoza, 189 Wn.2d 420, 431, 403 P.3d 45 (2017).
2. Failure To Move To Dismiss Based On The Late Amendment Of The Information
Celaya argues that he received ineffective assistance of counsel because the State forced
him “to choose between a speedy trial and the right to prepare a defense” and counsel failed to
move to dismiss the charges on the grounds that Celaya’s right to a speedy trial was violated due
to government misconduct. PRP at 16 (bold face omitted). We disagree.
Here, the State provided Celaya with notice that it intended to amend the information ten
calendar days, or eight business days, before trial and moved to amend the information on the day
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of trial. Although the State did not deny that it was aware of the conduct that led to the additional
charges for months prior to trial, it argued that it did not have the evidence necessary to prove the
additional charges until January 29, 2018, when it secured the cooperation from Pace to testify
about the amended charges.3
The record shows that the State made multiple efforts to contact Pace. The State attempted
to contact Pace as early as September 19, 2017, and made at least nine other attempts to contact
Pace before he finally returned their call at the end of January 2018. The State relied on Pace’s
testimony to prove the witness tampering charge and also provided Pace’s testimony for the no
contact order violation charge, which arose from the same phone call as the witness tampering
charge. Pace’s testimony was used to lay the foundation for the motion to admit the taped
recording of the call that Celaya made to him from jail. Pace’s testimony also provided context
for the phone call, during which Celaya asked Pace to threaten to kick K.J. out of the house if she
did not drop the charges against him. Pace was Celaya and K.J.’s landlord and had the power to
kick K.J. out of the house. Therefore, as noted by the trial court, the State’s late motion to amend
the information was not caused by mismanagement; rather, the State moved to amend the
information “when the information developed”—after making multiple efforts to contact Pace and
as soon as it knew that Pace would be able to testify. VRP (Feb. 8, 2018) at 33. Thus, given the
3 At the hearing on the State’s motion to amend, the State argued that Pace’s testimony was needed because “an essential element to the Witness Tampering is to know whether or not [Celaya’s message] was actually conveyed to [K.J.].” VRP (Feb. 8, 2018) at 11. But, as pointed out by Celaya and conceded by the State, whether the threat is conveyed to the witness is not an element of the crime and is, in fact, not necessary to prove witness tampering. See State v. Williamson, 131 Wn. App. 1, 6, 86 P.3d 1221 (2004) (“A person violates the witness intimidation statute even if the threat is not communicated to the victim.”). However, the State now argues that it relied on Pace’s testimony in other ways to prove the witness tampering charges.
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facts in the record, there is no reasonable probability that the charges would have been dismissed
had defense counsel sought a dismissal.
Celaya contends that he received ineffective assistance of counsel because his defense
counsel had “no strategic reason not to move to dismiss.” PRP at 13 (bold face omitted). In
support of his contention, Celaya provided defense counsel’s declaration stating he did not have a
strategic reason not to move to dismiss at or after the hearing on February 8, 2018.
However, the record shows that when the State moved to amend the information on
February 8, 2018, defense counsel argued, “[W]e are bordering on prosecutorial mismanagement
here.” VRP (Feb. 8, 2018) at 27. The trial court disagreed with defense counsel, stating, “I don’t
think that the State mismanaged the case.” VRP (Feb. 8, 2018) at 30. The trial court later repeated
this sentiment again, stating, “I don’t think that there is any prosecutorial misconduct in the
management of the case.” VRP (Feb. 8, 2018) at 32. Therefore, defense counsel was alerted to
the fact that the trial court would likely not grant a motion to dismiss for governmental
mismanagement. Counsel need not pursue strategies that “reasonably appear unlikely to succeed.”
Brown, 159 Wn. App. at 371.
Further, at the March 19 hearing, the State informed the trial court that Celaya had stated
he was preparing to make a motion, though Celaya would not tell the State what the substance of
the motion would be. Celaya responded that based on the actions of the State, he believed that the
State engaged in “prosecutorial misconduct or mismanagement” and intended on briefing the issue.
VRP (Mar. 19, 2018) at 7. However, the next day, defense counsel stated that he was not certain
if he would bring a CrR 8.3(b) motion. Instead, defense counsel stated that he “would be looking
at these issues” and would only file a motion “if [he] felt it appropriate.” 2 VRP (Mar. 20, 2018)
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at 14. Defense counsel never brought a CrR 8.3(b) motion. Therefore, the record contradicts
defense counsel’s declaration because defense counsel clearly considered the issue and did not
bring a CrR 8.3(b) motion after stating he would only bring the motion if he “felt it appropriate.”
2 VRP (Mar. 20, 2018) at 14. Thus, Celaya has not shown that defense counsel’s performance
was deficient.
Celaya asserts that the State committed government misconduct, citing to State v. Michielli,
132 Wn.2d 229, 937 P.2d 587 (1997), State v. Ralph Vernon G., 90 Wn. App. 16, 21, 950 P.2d
971 (1998), and State v. Earl, 97 Wn. App. 408, 410, 984 P.2d 427 (1999). In Michielli, the State
amended the information to include four additional charges only five calendar days, and only three
business days, before the trial was scheduled to begin and three-and-one-half months after the
initial information was filed. 132 Wn.2d at 243-44. The State admitted that “it possessed all of
the information necessary to file all of the charges when it filed the initial information.” Id. at 243.
The Michielli court stated, “The long delay, without any justifiable explanation, suggests less than
honorable motives.” Id. at 244. Further, the court held that the defendant was prejudiced because
he was forced to waive his speedy trial right or go to trial unprepared. Id. The court also noted,
“Even though the resulting prejudice to Defendant’s speedy trial right may not have been extreme,
the State’s dealing with Defendant would appear unfair to any reasonable person.” Id. at 246.
In Ralph Vernon G., the State informed the defendant five days before trial that it would
be amending the information to add additional charges and filed additional charges one day before
trial even though they were aware of the additional charges for nearly one month. 90 Wn. App. at
19, 22. The State’s statements supported an inference that the State delayed bringing the charges
“until they could be used to persuade Mr. G. to accept a plea agreement or waive his right to speedy
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trial.” Id. at 22. On appeal, the court found that such a delay showed failure on the part of the
State to act with due diligence. Id.
In Earl, the defendant argued that the State violated his right to a speedy trial when the
State sought to amend the information on the day of trial to allege a new count involving a different
victim and did not inform the defendant of the amendment until the night before trial. 97 Wn.
App. at 411-13. The State conceded that the late amendment was not based on new information,
but on information it had possessed for eight months. Id. at 411.
Michielli, Ralph Vernon G., and Earl are distinguishable. Here, unlike in Michielli and
Earl, the State did not possess all of the information necessary to file the amended charges when
it filed the initial information. See Michielli, 132 Wn.2d at 243; Earl, 97 Wn. App. at 411. Also,
unlike in Ralph Vernon G., there is no evidence to support an inference that the State delayed
bringing the charges for tactical purposes. See Ralph Vernon G., 90 Wn. App. at 22. Instead, the
State attempted over the course of months to contact Pace, who proved to be an essential witness
for the witness tampering charge and also provided testimony for the no contact order violation
charge, which arose from the same phone call as the witness tampering charge. Further, the State
notified Celaya that it intended to amend the information the same day it received and reviewed
the report regarding Pace’s agreement to cooperate with the State. Therefore, the State had a
“justifiable explanation” for the delay. See Michielli, 132 Wn.2d at 244.
Further, defense counsel was aware as early as September 19, 2017, that the State was
waiting for a “report on Jail call NCO violations if any.” CP at 15. And the State provided notice
to Celaya about its intent to amend the information ten calendar days, or eight business days, before
trial. Celaya argues that defense counsel was not able to see the notice until February 4, 2018
18 No. 55016-4-II
because defense counsel was sick and then had to tend to a childcare matter. However, the State
could not have anticipated defense counsel’s delay in retrieving the State’s messages.
Celaya asserts that defense counsel stated that he would need at least two weeks to prepare
to defend the new charges brought, which was longer than the eight business days of notice
provided by the State. However, Celaya provides only a conclusory argument without any
evidentiary support that it would have taken defense counsel two weeks to prepare for the new
charges by merely stating, “Given the difficulty the State claimed it had contacting Pace for an
interview, it was reasonable for the defense to anticipate needing significant time to interview the
witness and do other trial preparation.” PRP at 17.
Celaya also argues that the State “doubled the complexity of the trial,” as the trial lasted
seven days when the State had originally expected the trial to last three to four days. PRP at 17.
However, the State’s estimation of three to four days for the trial, which was similar to defense
counsel’s estimation of four to five days, was merely an estimation and there is no evidence to
support that the trial was prolonged due to the additional charges.
The trial court concluded that the State did not mismanage the case nor did it commit
prosecutorial misconduct in the management of the case; thus, the State did not commit
governmental misconduct. The record supports the trial court’s conclusion. Because the State did
not commit government misconduct, there is no reasonable probability that the charges would have
been dismissed had defense counsel sought a dismissal. Therefore, Celaya’s defense counsel’s
performance did not fall below an objective standard of reasonableness and was not deficient.
Celaya has failed to show that he received ineffective assistance of counsel when defense counsel
did not move for dismissal based governmental misconduct due to a speedy trial violation.
19 No. 55016-4-II
3. Failure To Move To Dismiss For The State’s Misstatement Of The Law
Celaya argues that he received ineffective assistance of counsel because defense counsel
failed to move to dismiss for prosecutorial misconduct when the State misstated the law and
defense counsel had no strategic reason not to move to dismiss. Celaya claims the State misstated
the law when it stated that it waited to amend the information until it could secure testimony from
a witness who was needed to show that a threat had been conveyed to K.J. because “that is an
essential element to the Witness Tampering to know whether or not it was actually conveyed to
[K.J.].” VRP (Feb. 8, 2018) at 11. We disagree.
Here, the State concedes that it misstated the law when it argued that conveyance of a threat
is “an essential element” to witness tampering. Br. of Resp’t at 39; VRP (Feb. 8, 2018) at 11.
Whether the threat is conveyed to the witness is not an element of the crime and is not necessary
to prove witness tampering. See State v. Williamson, 131 Wn. App. 1, 6, 86 P.3d 1221 (2004) (“A
person violates the witness intimidation statute even if the threat is not communicated to the
victim.”).
The State misstated the law to the trial court during its argument to amend the information.
The State stated that it could not bring the additional charges earlier because it needed Pace to
show that the threat was conveyed to K.J. However, in its argument the State also stated, “I can’t
bring that charge until I have those witnesses that are all corroborating that story.” VRP (Feb. 8,
2018) at 12.
In its ruling, the trial court did not state that it relied on the State’s misstatement of the law
in making its decision to allow the amended information. Instead, the trial court stated, “I don’t
think that the State mismanaged the case. I understand why they felt like they couldn’t—they
20 No. 55016-4-II
didn’t have a good-faith basis to proceed on witness tampering charges.” VRP (Feb. 8, 2018) at
30. The trial court further stated, “This is when the information developed.” VRP (Feb. 8, 2018)
at 33.
Celaya points to no evidence that would suggest the trial court would have denied the
motion to amend had the State not misstated the law. Instead, the record shows that the trial court
relied on the development of information in the case to allow the amendment. And, as implied in
its argument, the State relied on Pace’s testimony to prove the witness tampering charge. Indeed,
Pace’s testimony laid the foundation for the motion to admit the taped recording of the call that
Celaya made to him from jail. Pace’s testimony also provided context for the phone call, during
which Celaya asked Pace to threaten to kick K.J. out of the house if she did not drop the charges
against him. Pace testified that he was Celaya and K.J.’s landlord and had the power to kick her
out of the house. Therefore, the record shows that the State intended to rely on, and did rely on,
Pace’s testimony to prove the witness tampering charge.
Celaya fails to show that the trial court would have denied the State’s motion to amend the
information if defense counsel had brought a motion to dismiss based on the State’s misstatement.
Thus, Celaya’s argument that defense counsel’s performance was deficient when counsel failed to
bring a motion to dismiss for government misconduct based on the State’s misstatement fails.
Celaya also argues that he received ineffective assistance of counsel because his defense
counsel had “no strategic reason not to move to dismiss” and provides a declaration from defense
counsel stating he did not have a strategic reason not to move to dismiss at the hearing or after the
hearing. PRP at 13 (bold face omitted). But even if defense counsel did not have a strategic reason
to not move to dismiss, Celaya’s ineffective assistance of counsel claim fails for the same reason
21 No. 55016-4-II
the claim fails above—there is no reasonable probability that such a motion would have been
successful.
Given the record, defense counsel’s performance was not deficient. Thus, Celaya did not
receive ineffective assistance of counsel.
CONCLUSION
Celaya did not receive ineffective assistance of counsel because Celaya has not shown that
a motion to dismiss based on government misconduct when the State violated his speedy trial
rights nor a motion to dismiss based on the State’s misstatement of the law in its arguments to
amend the information would have been granted. Therefore, we deny Celaya’s PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Worswick, J.
Cruser, A.C.J.