FILED APRIL 16, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 40899-0-III Respondent, ) ) v. ) ) STEPHEN JACKSON, ) UNPUBLISHED OPINION ) Appellant. )
COONEY, J. — Stephen Jackson was convicted of five counts of burglary in the
second degree and one count of criminal trespassing in the second degree and sentenced
to 68 months. Mr. Jackson appeals, arguing the court abused its discretion in denying his
request for a Mental Health Sentencing Alternative (MHSA). Mr. Jackson raises
additional arguments in a statement of additional grounds for review. Finding no error,
we affirm.
BACKGROUND
On July 2, 2023, Mr. Jackson was arrested after he failed to scan merchandise
when going through self-checkout at a Walmart store in Clarkston, Washington. Mr. No. 40899-0-III State v. Jackson
Jackson had been permanently trespassed from all Walmart stores four years earlier. The
State charged Mr. Jackson with burglary in the second degree and criminal trespass in the
second degree.
Walmart later informed law enforcement officers that it had video recordings of
Mr. Jackson either under ringing items or not paying for items on May 7, 2023, June 1,
2023, June 12, 2023, and July 1, 2023. With this additional evidence, the State amended
the information to add four additional counts of burglary in the second degree.
Mr. Jackson later filed a motion to dismiss, arguing there were defects in
Walmart’s trespass form and his right to procedural due process was violated because
Walmart is a public place and could not trespass him without a court order. Mr. Jackson
contended that such defects rendered the notice invalid and incapable of being used to
prove the unlawful entry elements of criminal trespass and burglary. Further, Mr.
Jackson asserted he was denied notice and an opportunity to challenge the trespass notice.
The court denied the motion.
At a later pretrial hearing, Mr. Jackson asked the court, “Is it possible that we
can get a [CrR] 3.5 hearing[?]” Rep. of Proc. (RP) at 126. The court instructed Mr.
Jackson to discuss the issue with his attorney. At another pretrial hearing, Mr. Jackson
stated, without providing any context, “A 3.6 hearing.” RP at 142. When the court told
Mr. Jackson the hearing was over, Mr. Jackson asked, “So, you’re denying me a 3.6
hearing?” RP at 142. The court told Mr. Jackson that his attorney had not requested one.
2 No. 40899-0-III State v. Jackson
The case proceeded to a jury trial. At trial, Jamie Lockie, an asset protection
operations coach employed by Walmart, testified that she observed Mr. Jackson fail to
ring up all the items in his shopping cart while checking out on July 2, 2023. Ms. Lockie
later recovered Mr. Jackson’s cart and found that only 24 of the 41 items in the cart had
been paid for.
Officer Patrick Stilson testified that he responded to a suspected theft near
Walmart and contacted Mr. Jackson. Officer Stilson testified that Mr. Jackson had been
permanently trespassed from Walmart stores on April 26, 2019.
Asotin County Sheriff’s Deputy James Gibson, a former Walmart loss prevention
officer, testified that he trespassed Mr. Jackson from all Walmart stores on April 26,
2019. Deputy Gibson identified Mr. Jackson at trial as the individual that he trespassed.
Regarding the trespass notice, Deputy Gibson testified, “The reason for contact with Mr.
Jackson was two pronged,” one being a prior theft that took place on April 24, 2019. RP
at 353. Defense counsel objected, arguing that although the fact that Mr. Jackson had
been trespassed would be admissible, “the fact that [Mr. Jackson] was trespassed [for
theft]” was “highly prejudicial.” RP at 354-55. The court agreed and, on defense
counsel’s motion, instructed the jury “to disregard the previous testimony about the
circumstances surrounding the officer’s contact with the defendant.” RP at 358. Deputy
Gibson testified that he had read the trespass form to Mr. Jackson, explained the “trespass
process” to Mr. Jackson, and gave Mr. Jackson the form to sign as a recipient. RP at
3 No. 40899-0-III State v. Jackson
359. Rather than signing the form, Mr. Jackson wrote “UCC-1-206” and “UCC-1-208”
on the signature line. Clerk’s Papers (CP) at 34.
Walmart Asset Protection Investigator Tim Neal testified that he searched for
more of Mr. Jackson’s transactions and, through video recordings, found Mr. Jackson
under ringing items on May 7, June 1, June 12, and July 1. Mr. Neal testified he was
able to track the transactions through Mr. Jackson’s “EBT card.” RP at 403.
The jury ultimately found Mr. Jackson guilty of five counts of burglary in the
second degree and one count of criminal trespass in the second degree. Mr. Jackson filed
a motion for an MHSA prior to sentencing. In his motion, Mr. Jackson requested the
court order “a report” to aid it in determining whether to grant the MHSA. CP at 102.
Mr. Jackson’s motion also addressed the statutory requirements for an MHSA and his
willingness to participate in an MHSA.
At the January 3, 2025, sentencing hearing, Mr. Jackson’s attorney restated his
request for an MHSA and requested “that Mr. Jackson be ordered to take the evaluation.”
RP at 490. The State objected, arguing “it’s clear from the record, and from the
defendant’s criminal history, and from the history in this case that mental health is not the
issue.” RP at 491. The State claimed that chemical dependency had been an issue for
Mr. Jackson, not mental health issues. The court denied Mr. Jackson’s request for an
MHSA and sentenced Mr. Jackson to 68 months, the high end of the standard range.
Mr. Jackson appeals to this court.
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ANALYSIS
Mr. Jackson argues the sentencing court erred in denying his request for an MHSA
without considering the statutory factors, in considering nonstatutory factors, and in
categorically denying his request. We disagree.
As a preliminary matter, the State unpersuasively argues Mr. Jackson’s claimed
error is unpreserved because he did not seek an MHSA before the trial court. Mr.
Jackson filed a motion and declaration for an MHSA prior to sentencing. Mr. Jackson’s
attorney then brought the motion to the court’s attention at sentencing. After hearing
minimal argument, the court ruled, “I’m denying the request for the [MHSA].” RP at
492. Mr. Jackson renewed his request for an MHSA during his allocution. The court
denied Mr. Jackson’s request for a second time, stating, “I just do not believe that the
[MHSA] would be successful in this matter.” RP at 510. Because Mr. Jackson raised the
issue and the court addressed the merits of his request, this issue is preserved for our
review. See e.g., State v. Burke, 163 Wn.2d 204, 210-11, 181 P.3d 1 (2008).
Turning to the merits, a trial court must generally impose a sentence within the
standard sentencing range. State v. Osman, 157 Wn.2d 474, 480, 139 P.3d 334 (2006);
RCW 9.94A.505(2)(a)(i). “[T]he court may deviate from the standard range in statutorily
specified sentences,” such as the MHSA. State v. Yancey, 193 Wn.2d 26, 30, 434 P.3d
518 (2019); RCW 9.94A.505(2)(a)(x); RCW 9.94A.695. Sentencing courts are given
considerable discretion to determine eligibility for an alternative sentence and whether
5 No. 40899-0-III State v. Jackson
such a sentence is appropriate. State v. Hender, 180 Wn. App. 895, 900-01, 324 P.3d 780
(2014).
Granting an alternative sentence is entirely within the sentencing court’s
discretion, provided the court does not abuse its discretion by categorically refusing to
consider the request or by denying the request on an improper basis. See State v. Sims,
171 Wn.2d 436, 445, 256 P.3d 285 (2011). A sentencing court abuses its discretion when
it categorically refuses to consider an alternative sentence for an individual or an entire
class of offenders. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). When
a defendant meets the eligibility requirements for an alternative, a sentencing judge must
“meaningfully consider whether a sentencing alternative [is] appropriate.” Id. at 343.
This includes considering whether “‘the offender and the community will benefit’” from
the alternative sentence. State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003)
(quoting RCW 9.94A.660(2)).
A defendant must meet four requirements to be eligible for an MHSA:
(a) The defendant is convicted of a felony that is not a serious violent offense or sex offense;
(b) The defendant is diagnosed with a serious mental illness recognized by the diagnostic manual in use by mental health professionals at the time of sentencing;
(c) The defendant and the community would benefit from supervision and treatment, as determined by the judge; and
(d) The defendant is willing to participate in the sentencing alternative.
6 No. 40899-0-III State v. Jackson
RCW 9.94A.695(1). “If insufficient information is available to determine whether a
defendant has a serious mental illness, the court may order an examination of the
defendant.” RCW 9.94A.695(2) (emphasis added). After considering all the available
information and deeming a defendant eligible for the alternative, “the court shall consider
whether the defendant and the community will benefit from the use of this sentencing
alternative.” RCW 9.94A.695(4).
Mr. Jackson argues the sentencing court did not meaningfully consider the
statutory factors for an MHSA. Specifically, Mr. Jackson contends the court did not
explain how the facts it relied on fit into the statutory factors for an MHSA. The State
responds that Mr. Jackson failed to establish eligibility for an MHSA and that the court
properly considered the criteria for an MHSA.
In denying Mr. Jackson’s first request for an MHSA, the court stated:
Well, under the RCW 9.94A.695(1)(b), it indicates the defendant is diagnosed with a serious mental health illness recognized by the diagnostic manual and used by mental health professionals at the time of sentencing, which is today. I do not have that, so we will proceed with sentencing and I’m denying the request for the [MHSA]. ....
I want to make my record on one other issue. I’m learning more and more it’s important to say it, even though you already said it, that the basis in the defense in this case was that Mr. Jackson had the right to be [at Walmart]. Not like other cases we’ve had where we had a defendant was claiming his severe anxiety condition was what made him go into Walmart and steal. That’s not present in this case, and as noted by the State, the long criminal history of Mr. Jackson includes mostly issues with stealing and drugs.
So, that is another factual basis for why I’m declining the [MHSA].
7 No. 40899-0-III State v. Jackson
RP at 492-93.
During allocution, the following exchange occurred between Mr. Jackson and the
court:
MR. JACKSON: Also—also that day, I did have—I do have mental health issues and I—I had a PTSD attack that day for mental health untreated PTSD attack. And I’ve been—I was diagnosed with mental health in 2020 in Shelton, Washington when I was in Shelton. And I was trying to get [defense counsel] to get the records from Shelton, Washington. I’m diagnosed with PTSD, ADHD, social anxiety, and bipolar mental depression. And I’ve been—I’ve been on mental health meds since I’ve been at the jail the whole time with no problems. ....
THE COURT: All right. I appreciate your statements to the Court. I’ll tell you that I’m familiar with you and have been for a long time. I think I started practicing in 2006. I’m 45. I just calculated you’re 49. And for as long as I’ve been familiar with you, you’re always out here, usually in trouble for the various—obviously, there’s 37 line items here. It looks like 35 are convictions, two parole violations. And I just got to be thinking that you got to be getting tired of this.
MR. JACKSON: Yes.
THE COURT: I also notice in your appearance that I can tell when you’re using and when you’re not. I saw you at Highland Grocery and you approached me to tell me you had a dream about my grandfather.
MR. JACKSON: Yes, ma’am.
THE COURT: And you were skinny and you were being weird, and I thought uh oh, he’s back on drugs again. I’m sorry if there’s—
MR. JACKSON: I wasn’t—I wasn’t. I just had a hernia surgery, ma’am.
THE COURT: Well, I’m sorry if you have mental health issues, but I think that, you know, the lack of medication or the lack of evidence of that for me other than your words, I think you can get that help along with drug treatment while you’re in prison.
8 No. 40899-0-III State v. Jackson
....
THE COURT: I just don’t believe that the [MHSA] would be successful in this matter.
RP at 506, 509-10.
In denying Mr. Jackson’s first request for an MHSA, the court found he had
failed to show he had been diagnosed with a serious mental illness under RCW
9.94A.695(1)(b). Mr. Jackson later asserted, without providing any documentary
support, that he had “PTSD, ADHD, social anxiety, and bipolar mental depression.” RP
at 506. The court was unpersuaded by “the lack of evidence of that . . . other than [Mr.
Jackson’s] words.” RP at 510. Mr. Jackson’s verbal assertion falls short of a formal
diagnosis of “a serious mental illness recognized by the diagnostic manual in use by
mental health professionals.” RCW 9.94A.695(1)(b). The court did not abuse its
discretion in finding that Mr. Jackson’s self-serving assertion was insufficient to establish
compliance with RCW 9.94A.695(1)(b).
The court also found that Mr. Jackson did not demonstrate that he and the
community would benefit from an MHSA under RCW 9.94A.695(1)(c). The court noted
that Mr. Jackson was 49 years old with 35 criminal convictions, most of which were for
“stealing and drugs.” RP at 493. Based on the court’s familiarity with Mr. Jackson
spanning nearly two decades, the court believed Mr. Jackson was likely in need of drug
treatment and unlikely to succeed in an MHSA. The court further found the absence of a
nexus between Mr. Jackson’s crimes and claimed mental illness. See Colon, 34 Wn.
9 No. 40899-0-III State v. Jackson
App. 2d at 358-59. The court’s reasons in finding Mr. Jackson and the community would
not benefit from an MHSA was not manifestly unreasonable.
The sentencing court did not categorially deny Mr. Jackson’s request for an
MHSA. Although the court impliedly found Mr. Jackson met the requirements of RCW
9.94A.695(1)(a) and (d), under its considerable discretion to determine eligibility
requirements and whether such a sentence is appropriate, the court properly articulated its
reasons for denying an MHSA based on Mr. Jackson’s failure to demonstrate his
eligibility under RCW 9.94A.695(1)(b) and (c).
The sentencing court did not abuse its discretion in denying Mr. Jackson’s request
for an MHSA.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
RAP 10.10 permits a defendant to file a statement of additional grounds for review
(SAG) if he believes his appellate counsel has not adequately addressed certain matters.
Mr. Jackson filed a SAG raising seven issues.
STATEMENT OF ADDITIONAL GROUNDS NO. 1
Mr. Jackson argues the “[t]rial court should have granted the motion to dismiss
due to denial of right to appeal the trespass order and due process procedural rights were
violated due to lack of procedures available to challenge the notice of trespass.” SAG at
1 (some capitalization omitted).
10 No. 40899-0-III State v. Jackson
RAP 10.3(a)(6) requires a party to an appeal to provide argument in support of
the issues presented for review and citations to relevant legal authority. The purpose of
RAP 10.3(a) “is to enable the court and opposing counsel efficiently and expeditiously to
review the accuracy of the factual statements made in the briefs and efficiently and
expeditiously to review the relevant legal authority.” Hurlbert v. Gordon, 64 Wn. App.
386, 400, 824 P.2d 1238 (1992). Consequently, we will not consider conclusory
arguments unsupported by citation to authority. Joy v. Dep’t of Lab. & Indus., 170 Wn.
App. 614, 629, 285 P.3d 187 (2012). Moreover, when a party fails to support argument
with citation to legal authority, we presume that none exists. Oregon Mut. Ins. Co. v.
Barton, 109 Wn. App. 405, 418, 36 P.3d 1065 (2001).
Because Mr. Jackson has failed to provide any authority supporting his contention
that a private entity, like Walmart, must provide procedural due process and a means of
appealing a trespass notice, we decline review of this SAG.
STATEMENT OF ADDITIONAL GROUNDS NO. 2
Mr. Jackson argues, “The trespass order is unlawful, was never issued by a court,
is not a court order or judicial order.” SAG at 1. We disagree.
A private property owner may restrict the use of their property. State v. Kutch, 90
Wn. App. 244, 247, 951 P.2d 1139 (1998). A person’s presence may be rendered
unlawful by a property owner’s revocation of the privilege to be on the property. Id. at
249. “The right to exclude others extends even if the property is otherwise open to the
11 No. 40899-0-III State v. Jackson
public.” Id. at 247. Because a private property owner may restrict others from using
their property, we reject Mr. Jackson’s argument that the burglary or trespass conviction
must be based on a court-issued trespass order.
STATEMENT OF ADDITIONAL GROUNDS NO. 3
Mr. Jackson argues the trial court erred in admitting ER 404(b) evidence. Because
the testimony was struck by the court, we disagree.
ER 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
We review a trial court’s decision to admit evidence under ER 404(b) for an abuse of
discretion. State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009). ER 404(b) is read
in conjunction with ER 403. Id. at 745. ER 403 allows a court to exclude relevant
evidence where “its probative value is substantially outweighed by the danger of unfair
prejudice.”
Juries are presumed to follow the instructions of the court including the court’s
directive to disregard testimony. State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982);
State v. Babcock, 145 Wn. App. 157, 164, 185 P.3d 1213 (2008).
Mr. Jackson claims the trial court violated ER 404(b) by allowing testimony about
the conduct that led to the issuance of the trespass notice.
12 No. 40899-0-III State v. Jackson
Deputy Gibson testified that he trespassed Mr. Jackson from Walmart on April 26,
2019, for a theft that occurred on April 24. Defense counsel objected to the testimony,
contending that though the trespass notice was admissible, evidence as to why the notice
was issued would be “highly prejudicial.” RP at 355. The court agreed and instructed
the jury “to disregard the previous testimony about the circumstances surrounding the
officer’s contact with the defendant.” RP at 358. The court further instructed the jury
before deliberations, “[I]f I have asked you to disregard any evidence, then you must not
discuss that evidence during your deliberations or consider it in reaching your verdict.”
CP at 46.
We presume the jury followed the court’s instructions and did not consider the
testimony struck by the court.
STATEMENT OF ADDITIONAL GROUNDS NO. 4
Mr. Jackson argues the unlawful entry element of the criminal trespass charge is
negated because the trespass notice was unlawful. Mr. Jackson further contends that the
State was required to disprove the statutory public premises defense. Mr. Jackson seems
to claim there was insufficient evidence to convict him of criminal trespass in the second
degree. We disagree.
Due process requires that the State meet its burden of proof beyond a reasonable
doubt for every “essential element of a crime.” State v. Hanna, 123 Wn.2d 704, 710, 871
P.2d 135 (1994). Sufficiency of the evidence is a question of law this court reviews de
13 No. 40899-0-III State v. Jackson
novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). In a sufficiency of the
evidence analysis, the court considers whether, “after viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A
challenge to the sufficiency of the evidence “admits the truth of the State’s evidence and
all inferences that reasonably can be drawn therefrom.” Id. The remedy for insufficient
evidence is dismissal with prejudice. State v. Irby, 187 Wn. App. 183, 204, 347 P.3d
1103 (2015).
To convict Mr. Jackson of trespass in the second degree, the State was required to
prove, in part, that he knowingly entered or remained unlawfully in or on the premises of
another. RCW 9A.52.080(1). To prove Mr. Jackson entered or remained unlawfully, the
State had to establish he was “not then licensed, invited, or otherwise privileged to so
enter or remain.” RCW 9A.52.010(2). It is a defense to criminal trespass in the second
degree that “the premises were at the time open to members of the public and the actor
complied with all lawful conditions imposed on access to or remaining in the premises.”
RCW 9A.52.090(2). The State must disprove the public premises defense beyond a
reasonable doubt. See State v. R.H., 86 Wn. App. 807, 811, 939 P.2d 217 (1997);
RCW 9A.52.090(2).
Mr. Jackson does not provide any argument as to how the State failed to disprove
the public premises defense, apart from his argument that the trespass notice is unlawful.
14 No. 40899-0-III State v. Jackson
Here, the jury was instructed on the public premises defense. The State presented
evidence that Mr. Jackson was issued a trespass notice stating that Walmart was
permitted to “prohibit individuals from entering its property who interfere with its
business, shoplift, destroy property, or otherwise behave in a manner that is
unacceptable.” CP at 34. The notice claimed Mr. Jackson had engaged in such conduct
and was no longer allowed on property owned by Walmart. The notice was read to Mr.
Jackson and, although he did not sign his name on the notice, he wrote something to the
effect of “UCC-1-206” and “UCC-1-208” on his signature line before a witness. CP at
34. The State also presented evidence of Mr. Jackson entering Walmart and purloining
merchandise.
In viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found that the State disproved the public premises defense.
STATEMENT OF ADDITIONAL GROUNDS NO. 5
Mr. Jackson argues his due process rights were violated because of the lack of
procedures to challenge the notice of trespass and lack of notice. Mr. Jackson also argues
his due process rights were violated because the court failed to conduct a CrR 3.5 or 3.6
hearing. We disagree with each argument.
As explained above, Mr. Jackson has not provided any authority to support his
contention that a trespass notice issued by a private actor violated his procedural due
process rights. We assume no authority exists.
15 No. 40899-0-III State v. Jackson
Mr. Jackson claims his due process rights were violated because the trial court
failed to conduct a CrR 3.6 hearing.
CrR 3.6(a) states:
Motions to suppress physical, oral or identification evidence, other than motion pursuant to rule 3.5, shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion.
Here, Mr. Jackson did not file a motion to suppress under CrR 3.6. The only
reference to a CrR 3.6 hearing is Mr. Jackson’s statement, “[a] 3.6 hearing,” made
without any context during a pretrial hearing. RP at 142. Because Mr. Jackson never
provided a written motion, an affidavit or document setting forth the facts, or a
memorandum of authorities, the trial court was not required to hold such a hearing.
Mr. Jackson next argues the court erred in failing to conduct a CrR 3.5 hearing.
Under CrR 3.5(a), “When a statement of the accused is to be offered in evidence, the
judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not
previously held, for the purpose of determining whether the statement is admissible.”
However, a defendant may waive their right to a CrR 3.5 hearing. State v. Fanger, 34
Wn. App. 635, 637, 663 P.2d 120 (1983). Further, attorneys are “impliedly authorized to
stipulate to and waive procedural matters,” including a CrR 3.5 hearing. Id. A defendant
may not challenge the court’s failure to conduct a CrR 3.5 hearing when defense counsel
waives the hearing. State v. Ralph, 41 Wn. App. 770, 776, 706 P.2d 641 (1985).
16 No. 40899-0-III State v. Jackson
Additionally, a defendant impliedly waives their right to a CrR 3.5 hearing by failing to
object to the testimony of a law enforcement officer. Fanger, 34 Wn. App. at 638.
Here, Mr. Jackson’s attorney did not request a CrR 3.5 hearing nor did he object to
the officer’s testimony implicated under CrR 3.5. On appeal, Mr. Jackson does not
provide any argument that the waiver was invalid. Because Mr. Jackson’s attorney failed
to request a CrR 3.5 hearing and no objection was made at trial to the officer’s testimony,
Mr. Jackson impliedly waived his right to a CrR 3.5 hearing.
STATEMENT OF ADDITIONAL GROUNDS NO. 6
Mr. Jackson argues the sentencing court miscalculated his offender score.
Specifically, Mr. Jackson contends his five burglary convictions encompassed the same
criminal conduct and should have been counted as a single point in his offender score.
We disagree.
We review a sentencing court’s determination of what constitutes the same
criminal conduct for abuse of discretion. State v. Graciano, 176 Wn.2d 531, 537-38, 295
P.3d 219 (2013).
RCW 9.94A.589(1)(a) provides:
[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.
17 No. 40899-0-III State v. Jackson
Crimes are considered the same criminal conduct when they have the same “criminal
intent, are committed at the same time and place, and involve the same victim.” RCW
9.94A.589(1)(a) (emphasis added). A defendant bears the burden of proving the crimes
entail the same criminal conduct. Graciano, 176 Wn.2d at 539.
Mr. Jackson failed to meet his burden of proving the five convictions constitute
the same criminal conduct for the simple reason that the crimes occurred on five separate
dates. Therefore, the trial court did not abuse its discretion in its calculation of his
offender score.
STATEMENT OF ADDITIONAL GROUNDS NO. 7
Mr. Jackson argues his right to a speedy trial was violated. He cites to one
instance of asserting his right to a speedy trial where he informed the court, “It’s been a
year and 93 days that this case has been going.” RP at 133. We reject Mr. Jackson’s
argument because the continuances he challenges on appeal were sought by his attorney
and he failed to comply with CrR 3.3(d)(3).
This court reviews alleged CrR 3.3 violations de novo. State v. Kenyon, 167
Wn.2d 130, 135, 216 P.3d 1024 (2009). Under CrR 3.3, a defendant must be brought to
trial within either 60 days or 90 days from their arraignment, depending on whether they
are detained in jail. CrR 3.3(b)(1)(i), (2)(i). A party who objects to a trial date as set
beyond the time limits prescribed by CrR 3.3(b) must move the court within 10 days after
notice of trial setting is given to set a trial within the applicable time limits. CrR
18 No. 40899-0-III State v. Jackson
3.3(d)(3). “A party who fails, for any reason, to make such a motion shall lose the right
to object that a trial commenced on such a date is not within the time limits prescribed by
this rule.” CrR 3.3(d)(3).
Our Supreme Court has held that CrR 3.3 grants defense counsel the authority
to make binding decisions to seek trial continuances and that such requests waive the
defendant’s right to object to the continuance. State v. Ollivier, 178 Wn.2d 813, 823-25,
312 P.3d 1 (2013). Mr. Jackson’s attorney had the authority to seek the trial continuances
he now complains of on appeal. Moreover, Mr. Jackson did not file a motion under
CrR 3.3(d)(3) for the court to set a trial date within the time limits for which he now
raises an objection. Thus, Mr. Jackson lost the right to object. CrR 3.3(d)(3).
Mr. Jackson’s right to a speedy trial was not violated.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, J.
WE CONCUR:
Staab, C.J. Lawrence-Berrey, J.