State Of Washington v. Troy Allen Fisher

• Court: Court of Appeals of Washington
• Decided: July 24, 2017
• Docket: 76736-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

) STATE OF WASHINGTON, ) No. 76736-4-1 ) (-) Respondent, DIVISION ONE (no ) -J 7> IV ) C.- no v. C.:: ) C - ri ) TROY ALLEN FISHER, ) UNPUBLISHED >74n rl0 ) Appellant. ) FILED: July 24, 2017 ) Ln -I c, )

Cox, J. — Troy Allen Fisher argues on appeal that the trial judge abused

her discretion in denying his motion to recuse. He fails to establish that the judge

violated the provisions of RCW 2.08.180 by hearing the motion after her

retirement. Likewise, he fails to establish any violation of the appearance of

fairness doctrine. Further, none of the arguments identified in his Statement of

Additional Grounds is persuasive. We affirm the judgment and sentence.

The State charged Fisher with first degree murder.1 At trial, Fisher

successfully moved to represent himself and was appointed standby counse1.2

Fisher waived his jury trial right, and Judge Barbara Johnson heard the ensuing

State v. Fisher, 188 Wn. App. 924, 926, 355 P.3d 1188 (2015) (published in part).

2 Id. No. 76736-4-1/2

bench tria1.3 She found Fisher guilty of the charged crime.4 She also found that

the State had proven, as an aggravating factor, that Fisher acted with an

egregious lack of remorse.° The court imposed an exceptional sentence upon

Fisher.° He appealed!

Division Two of this court affirmed the conviction but reversed the

sentence, concluding that the trial court's findings did not justify an aggravated

exceptional sentence for egregious lack of remorse.° It remanded for

resentencing.9

Meanwhile, Judge Johnson had retired. She was appointed to resentence

Fisher in a pro tempore capacity. Fisher moved twice for her to recuse from

resentencing him. Judge Johnson denied both motions. She resentenced him to

the top of the standard range.

Fisher appeals.

3 Id.

4 Id. at 927.

5 Id.

6 State v. Fisher, No. 45129-8-11, slip op. (unpublished portion) at 17, https://www.courts.wa.gov/opinions/pdf/D2%2045129-8-11°/020Part%20 Published%200pinion.pdf.

"Id. 8 1d. at 20.

9 Id. at 23.

2 No. 76736-4-1/3

RECUSAL

Fisher appears to argue two bases for recusal. We disagree with both of

them.

He first appears to argue that the trial court violated the provisions of RCW

2.08.180, which states when a previously elected superior court judge may hear

a pending case after retirement without the written consent of the parties.1° But

In doing so, he fails to persuasively explain why the authorities he cites support

his position. And he properly concedes that this resentencing did not present

either new issues or new facts." In short, he fails in his burden to show any

violation of the statute on which he appears to partially rely for his argument.

He also relies on the appearance of fairness doctrine. Under that

doctrine, "'judges should disqualify themselves in a proceeding in which their

impartiality might reasonably be questioned."12 The supreme court has

"characterized a judge's failure to recuse himself or herself when required to do

so by the judicial canons as a violation of the appearance of fairness doctrine."13

The party moving for recusal bears the burden to present "evidence of a

judge's ... actual or potential bias."14 If that party presents such evidence, we

1° Opening Brief of Appellant at 7-9.

11 Id. at 9.

12 State v. Gentry, 183 Wn.2d 749, 761-62, 356 P.3d 714 (2015).

State v. C.B., 195 Wn. App. 528, 545, 380 P.3d 626 (2016); see State v. 13 Post 118 Wn.2d 596, 619 n.9, 826 P.2d 172, 837 P.2d 599 (1992).

14 C.B., 195 Wn. App. at 545.

3 No. 76736-4-1/4

ask whether a "'reasonable person [that] knows and understands all the relevant

facts'" would question the judge's impartiality."

We review for abuse of discretion a trial judge's decision not to recuse

herself."

Code of Judicial Conduct Rule 2.11(A)(1) requires that a judge disqualify

herself when, in relevant part, she has "a personal bias or prejudice concerning a

party or a party's lawyer." Notably, the supreme court held in State v. Belaarde

that remand upon reversal to the same judge creates no presumption of

unfairness or the appearance of unfairness.17 Neither does the mere fact that a

defendant may "disagree]] with the court's rulings."18

Here, Fisher contends that it would appear unfair for Judge Johnson to

resentence him because she had ruled several times against him in trial motions,

allegedly failed to address his motions in April 2013, gave him an ultimately

reversed sentence, and because he filed a judicial complaint against her. He

fails in his burden to show either actual or potential bias.

Regarding the trial court's earlier motion rulings, Fisher fails to argue how

any of these made Judge Johnson appear unfair. As noted above, Fisher cannot

15 Gentry, 183 Wn.2d at 762 (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)).

18 Id. at 761.

11 119 Wn.2d 711, 717-18, 837 P.2d 599 (1992).

18 State v. Palmer, 5 Wn. App. 405, 411, 487 P.2d 627 (1971).

4 No. 767364-1/5

show the trial judge was biased solely because she entered orders with which he

disagreed.19

Regarding the alleged failure to address certain motions in April 2013,

Fisher points to no such motions in the record or any other evidence showing

that they went unaddressed.20 Thus, this contention is without support in this

record.

Fishers contention that the appellate court's reversal and remand

necessarily caused Judge Johnson to be biased is also unpersuasive. The

supreme court has already held that a reversal does not necessarily show this.21

Lastly, regarding Fisher's judicial complaint against the trial court, Fisher

fails to cite authority holding that this would make the trial court appear unfair.22

Fisher also argues that the trial court "addressed only the issue of actual

prejudice and did not evaluate the motion in terms of perceived bias or the

appearance of fairness." Not so.

Here, Fisher alleged that Judge Johnson was actually prejudiced against

him in his motions for her recusal. And in deciding the matter, Judge Johnson

considered the various reasons for which Fisher argued she should recuse

herself. She expressed understanding why a defendant might prefer a different

19 See id.

20 See SheIcon Const. Grp., LLC v. Havmond, 187 Wn. App. 878, 889, 351 P.3d 895 (2015); RAP 10.3(a)(6).

21 E,g2li& 119 Wn.2d at 717-18.

22 See Darkenwald v. Emp't Sec. Dept 183 Wn.2d 237, 248, 350 P.3d 647 (2015); RAP 10.3(a)(6).

5 No. 76736-4-1/6

judge on resentencing. And she specifically considered whether remand made

her appear biased. Thus, she considered the alleged grounds for actual

prejudice as well as the appearance of bias. Even if she did not explicitly

mention the appearance of unfairness, her comments substantively addressed

this concern.

Fisher fails in this respect to show any abuse of discretion in denying his

motion.

STATEMENT OF ADDITIONAL GROUNDS

Fisher also makes fourteen arguments in his Statement of Additional

Grounds. None is persuasive.

Fishers fourth, eighth, twelfth, thirteenth, and fourteenth arguments

include only conclusory legal phrases. We do not address these arguments.23

Fishers fifth and sixth arguments concern whether Judge Johnson could

hear his case on resentencing. In his fifth argument, he argues that Judge

Johnson was not impartial. And in his sixth argument, he contends that Judge

Johnson could not hear this argument on a pro tempore basis. We resolved

these arguments in the previous part of this opinion.

Fisher also contends in his fifth argument that the State failed to prove its

standing to prosecute. But he provides no authority requiring the State to do

so.24 Thus, this argument is unpersuasive.

See RAP 10.10(c); In re Det. of Rushton, 190 Wn. App. 358, 373, 359 23 P.3d 935 (2015).

24 See Darkenwald, 183 Wn.2d at 248; RAP 10.3(a)(6).

6 No. 76736-4-1/7

Fisher's tenth argument is impossible to understand. It is entitled "Brady

Violations" but does not substantively address that. We do not address this

further.

Ineffective Assistance of Counsel

Fisher's first, third, seventh, and eleventh arguments contend that his

various attorneys provided constitutionally ineffective assistance. We address

these argtiments together and disagree with all of them.

The defendant demonstrates the ineffectiveness of his counsel by meeting

a two-part burden. He must first show that counsel's performance was

unreasonably ineffective and, second, that such ineffectiveness prejudiced the

results of his case.25 Because he must meet both elements, we need not

address both if either is found wanting.26

The defendant shows that his counsel's representation "fell below an

objective standard of reasonableness" based on the relevant circumstances and

the "prevailing professional norms."27 So long as the representation was

reasonable, we neither "interfere with the constitutionally protected independence

of counsel [nor] restrict the wide latitude counsel must have in making tactical

decisions."26 The defendant can overcome that presumption by showing "there is

25 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 28 Id. at 697.

27 Id. at 688.

28 Id. at 689.

7 No. 76736-4-1/8

no conceivable legitimate tactic explaining counsel's performance."29 But the

defendant must show this or any other deficiency based on the record

established in the proceedings below.33

Determining whether counsel provided ineffective assistance is a mixed

question of law and fact.31 We review de novo whether a defendant received

ineffective assistance of counse1.32

In each challenge, Fisher fails to satisfy the first element of this test and

thus we need not consider the second, regarding prejudice.

In his first argument, Fisher contends that his appellate attorney in this

case provided ineffective assistance by failing to communicate for certain

durations of time. But he demonstrates nowhere on the record that these alleged

delays were unreasonable given the prevailing professional norms.

In his third argument, Fisher argues that his previous appellate attorney

provided ineffective assistance because he incorrectly stated in his brief that a

piece of carpet was found at Fisher's friend's house. But he fails to indicate

anything in the record showing that this statement was incorrect. Thus, he

cannot demonstrate his previous appellate attorney acted unreasonably.

29 State v. Carson, 184 Wn.2d 207, 218, 357 P.3d 1064 (2015).

30 State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995).

31 State v. Jones, 183 Wn.2d 327, 338, 352 P.3d 776 (2015).

32 Id.; State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006).

8 No. 76736-4-1/9

In his seventh argument, Fisher contends that his resentencing counsel

provided ineffective assistance by failing to "object to many issues," argue that

Judge Johnson was not impartial, or submit certain motions. We disagree.

Here, Fisher fails to identify these allegedly objectionable issues. The

record shows that resentencing counsel did argue that Judge Johnson was not

impartial. And Fisher fails to identify the motions his counsel allegedly failed to

submit in the record or explain why counsel may not have made a legitimate

strategic decision not to submit them. Thus, he cannot satisfy the first element.

Fisher's eleventh argument contends that his standby counsel at his trial,

provided ineffective assistance by coercing him to accept a plea deal. But he

fails to identify evidence in the record substantiating the conduct he alleges.33

Access to the Courts

Fisher's second and ninth arguments concern his access to the courts. In

his second argument, he argues that Division Two of this court impaired his

access to the courts by failing to notify him of the status of certain motions. We

disagree.

Fisher fails either to identify these motions or his correspondence to

Division Two in the record. And he fails to identify any authority entitling him to

notice under these circumstances.34

33 See RAP 10.10(c).

34 Id.

9 No. 76736-4-1/10

In his ninth argument, Fisher argues he was denied access to the courts

because his law library does not have certain legal texts. We disagree.

Prisoners have certain constitutional rights to access a reasonably

adequate law library.35 But Fisher's argument would require us to consider facts

not in this record. The appropriate vehicle to bring such evidence is a personal

restraint petition, not this appea1.36

We affirm the judgment and sentence. CO7(7 i

WE CONCUR:

,

35 Bounds v. Smith, 430 U.S. 817, 829, 97S. Ct. 1491,52 L. Ed. 2d 72 (1977).

36 See RAP 16.4(c)(3); State v. Bates, 196 Wn. App. 65, 78, 383 P.3d 529 (2016), review denied, 188 Wn.2d 1008 (2017).