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Full Opinion
FILED
JAN 7, 2025
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. 39526-0-III
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JOSHUA JAMES GLAZIER, )
)
Appellant. )
COONEY, J. ā Richard Plumlee was shot and killed in December 2019. The State
charged Joshua Glazier with second degree murder for Mr. Plumleeās death and second
degree unlawful possession of a firearm.
Mr. Glazier was arraigned on May 4, 2020, but his trial did not begin until January
3, 2023. Mr. Glazier was eventually convicted of both counts. At sentencing, the court
determined Mr. Glazier had an offender score of 2 and sentenced him to a total of 292
months of incarceration. The court found Mr. Glazier indigent, but assessed the crime
victim penalty assessment (VPA).
No. 39526-0-III
State v. Glazier
Mr. Glazier appeals, arguing he was afforded ineffective assistance of counsel, the
offender score was incorrectly calculated, and the VPA should be struck from his
judgment and sentence. We conclude Mr. Glazierās trial counsel was not ineffective, but
remand for a full resentencing with an accurate offender score.
BACKGROUND
On December 17, 2019, Richard Plumlee was shot and killed at the Yakima Inn,
located in Yakima, Washington. Sheila Martin, a witness to the shooting, identified her
nephew, Mr. Glazier, as the shooter. Ms. Martin also reported her grandson, Ahmad
Nolan, was present when Mr. Plumlee was shot. Ex. SE-21A; Tr. of Ex. 21A at 5.
During an interview, Mr. Nolan provided law enforcement with information that
implicated Mr. Glazier in Mr. Plumleeās death. Four months later, Mr. Glazier was
charged with second degree murder and second degree unlawful possession of a firearm.
The State further alleged Mr. Glazier was armed with a firearm during the commission of
the murder.
Mr. Glazier was arraigned on May 4, 2020, and an initial trial date was set for July
13, 2020, without any objection from defense counsel. Thereafter, Mr. Glazierās trial was
continued seven times. When his case was ready for trial, the court postponed trial for
three weeks, over Mr. Glazierās objection, as Mr. Glazierās attorney had fallen ill with the
flu. Of the seven continuances, Mr. Glazier personally agreed to three, objected to three,
and both he and his trial counsel objected to one. The three continuances Mr. Glazier
2
No. 39526-0-III
State v. Glazier
individually objected to were requested by his trial counsel to allow him time for trial
preparation, including locating and interviewing the Stateās witnesses. The sole
continuance objected to by both Mr. Glazier and his attorney was requested by the State
because the deputy prosecutor had three trials scheduled during the same period of time.
In a pretrial omnibus order, Mr. Glazier asserted his defense was a āGeneral
Denial.ā Clerkās Papers (CP) at 11. Mr. Glazier did not submit a witness list. Before
trial, and again over Mr. Glazierās objection, defense counsel and the State entered an
Old Chief 1 stipulation. In the stipulation, it was agreed that Mr. Glazier had a previous
felony conviction, alleviating the State from having to prove that element for the second
degree unlawful possession of a firearm charge.
Trial commenced on January 3, 2023. During his opening statement, Mr.
Glazierās attorney presented the jury with the possibility that they would be unable to find
beyond a reasonable doubt that Mr. Glazier was the person who shot Mr. Plumlee due to
Mr. Nolanās presence at the scene:
Good afternoon, folks. The first time Ms. Martin speaks to the
police in the heat of the moment in what the police will describe as an
excited utterance, she says Iām inside when I hear a shot. She doesnāt say I
saw my nephew with a gun. She doesnāt say, I saw my nephew shoot
1
519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) (The defendant
voluntarily stipulated to an element of a charged crime rather than requiring the State to
offer evidence supporting the element that is admissible but also potentially prejudicial to
the defendant for jury consideration.)
3
No. 39526-0-III
State v. Glazier
anyone. She doesnāt even say, I saw my boyfriend and my nephew having
some sort of beef over money.
The story changes over time because Ms. Martin talks to people. Itās
like a game of telephone.
....
What Iām discussing is what is my understanding of the evidence
from reading the reports, from interviewing the witnesses. If there wasnāt
going to be a difference of interpretation there wouldnāt be a case.
Mr. Nolan is the person who fired the shot. And maybe just as
important to folks, are when youāre trying to determine what happened you
have to believe beyond a reasonable doubt that Mr. Glazier was armed and
that Mr. Glazier fired that shot. You will not have that evidence because
you will not have a version of events that you can rely on because Ms.
Martin changes her story.
....
Ms. Martin gives four separate interviews. . . Each interview things
change. People are in different places. People have different roles.
....
In the end there will not be any question that Richard Plumlee was
shot. That on its face is a tragedy. You will not know beyond a reasonable
doubt who did what.
1 Rep. of Proc. (RP) (Jan. 5, 2023) at 438-42 (emphasis added).
The jury was taken from the courtroom for a recess after the Stateās first witness
finished testifying. During the recess, defense counsel informed the court that the
windows on the courtroom doors were causing a distraction. The court agreed to cover
one of the two windows to accommodate defense counsel. The State suggested placing a
sign on the door that indicated the courtroom was open.
Throughout the trial, and outside the presence of the jury, defense counsel
repeatedly claimed Mr. Nolanās presence at the scene created a reasonable doubt as to
4
No. 39526-0-III
State v. Glazier
whether it was Mr. Glazier who shot Mr. Plumlee. Defense counsel never asserted an
āother suspectā defense or a missing witness:
Is the state really concerned that our argument is that someone else
in the parking lot shot him and that that is the correct order of things? I
mean, our argument is not going to be that because of how [Ms. Martin]
described describes the order of things that Mr. Glazier isnāt guilty. I
havenāt hidden the ball. You heard [Ms. Martin] testify. And we
referenced Mr. Nolan. Iām not suggesting that thatās what this is about.
And I donāt know how many times you got to say the thing they want
before thatās enough.
[Ms. Martin]ās confused about all kinds of things. Iād probably have
the argument that she didn't know really what happened. That they
shouldnātāIām telling you that Iām going to be saying to the jury you canāt
rely on her. You canāt on her memory. You canāt rely on any of this.
2 RP (Jan. 9, 2023) at 657.
I donāt know what [Mr. Nolan] is going to say. And I believe he has
a right to have counsel because, Your Honor, I am arguing that it is at least
as likely that [Mr. Nolan] is the shooter as it is my client.
2 RP (Jan. 10, 2023) at 707-08.
Let me be clear. Iām not arguing a missing witness. I want to
takeāIām not arguing a missing witness. Iām not going to argue that they
didnāt hear from [Mr. Nolan] because he did. If he takes the stand, Iām
saying [Mr. Nolan] did it.
What I said in opening was it as likely as in questioning the main
witnessās credibility and bias. If they donāt call [Mr. Nolan], Iām not going
to point out if they had him, they didnāt call him. I donāt think that thatās
fair. I agree. But thatās never been my defense. Thatās not what Iām
saying.
2 RP (Jan. 10, 2023) at 820-21 (emphasis added).
5
No. 39526-0-III
State v. Glazier
And to be clear, I did not say in opening that [Mr. Nolan] did do it. I
said as it is as likely on the evidence that [Mr. Nolan] did it as Mr. Glazier
having done it.
2 RP (Jan. 11, 2023) at 842.
Mr. Nolan was named on the Stateās witness list. The State intended to call
Mr. Nolan to testify about his previous statements to law enforcement that implicated
Mr. Glazier as the shooter. However, neither party was able to interview Mr. Nolan as
his whereabouts were unknown. During trial, Mr. Nolan was found to be incarcerated in
the King County jail.
Mr. Nolan was transported to Yakima and assigned counsel. Mr. Nolanās attorney
informed the court that Mr. Nolan was asserting his Fifth Amendment right to remain
silent under the United States Constitution and would refuse to be interviewed by the
State or defense counsel. Mr. Nolanās competency was also at issue based on an
evaluation from King County. Mr. Nolanās attorney opined that because Mr. Nolan was
refusing to speak, the court was effectively stymied from making any competency
determination.
In the hopes of enticing Mr. Nolan to testify, the State presented his attorney with
a verbal limited offer of immunity. Mr. Nolanās attorney rejected the offer, in part,
because it was not in writing. The State eventually relieved Mr. Nolan of his subpoena.
During trial, the court asked defense counsel whether Mr. Glazier was maintaining
his opposition to the stipulation of his criminal history. Defense counsel, citing State v.
6
No. 39526-0-III
State v. Glazier
Humphries,2 incorrectly claimed he could stipulate to an element of a crime over his
clientās objection as a trial tactic. The court reviewed Humphries, read aloud the relevant
authority, and correctly interpreted the case as precluding the court from accepting a
stipulation over the defendantās objection. However, after further consultation with his
attorney, Mr. Glazier stipulated to having a previous felony conviction for the purpose of
the State having to prove that element of unlawful possession of a firearm.
At the conclusion of the Stateās case, but prior to it resting, Mr. Glazierās counsel
moved for dismissal, arguing the State failed to prove each of the elements of the charged
crimes. After the State rested its case-in-chief, defense counsel informed the court that
Mr. Glazier would not be calling any witnesses and rested.
Ultimately, the jury found Mr. Glazier guilty of second degree murder and second
degree unlawful possession of a firearm and additionally found he was armed with a
firearm during the commission of the murder. At sentencing, the court found Mr. Glazier
had two juvenile felony convictions: a third degree assault from July 23, 2009, and
second degree unlawful possession of a firearm from February 16, 2011. In calculating
Mr. Glazierās offender score, the court counted each juvenile conviction as one-half of a
point and counted each current conviction as one point against the other. The court
concluded Mr. Glazier had an offender score of 2 on each count. The court sentenced
2
181 Wn.2d 708, 336 P.3d 1121 (2014).
7
No. 39526-0-III
State v. Glazier
Mr. Glazier to 220 months on the second degree murder conviction, 60 months for the
firearm enhancement, and 12 months on the second degree unlawful possession of a
firearm conviction. The court ordered the sentences be served consecutively. The court
found Mr. Glazier indigent, yet ordered him to pay the VPA.
Mr. Glazier timely appeals.
ANALYSIS
On appeal, Mr. Glazier argues he was afforded ineffective assistance of counsel,
his offender score was miscalculated, and the VPA should be struck from his judgment
and sentence. We hold Mr. Glazier failed to establish his trial counselās representation
was deficient, but remand for a full resentencing with an accurate offender score.
Because Mr. Glazier is granted a full resentencing, we refrain from addressing the VPA.
In a statement of additional grounds (SAG), Mr. Glazier alleges numerous errors.
Because Mr. Glazierās SAG was untimely, we decline review.
WHETHER MR. GLAZIER WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Glazier claims four instances of ineffective assistance of counsel. He asserts
his attorney was deficient: (1) by failing to call Mr. Nolan as a witness, (2) through
conduct related to his right to a speedy trial, (3) in misleading the court on the law
concerning an Old Chief stipulation, and (4) in requesting the court place window
coverings over the courtroom doors. We address each contention in turn.
8
No. 39526-0-III
State v. Glazier
INEFFECTIVE ASSISTANCE OF COUNSEL
Criminal defendants have a constitutional right to effective assistance of counsel.
U.S. CONST. amend. VI; WASH. CONST. art. I, Ā§ 22; State v. Lopez, 190 Wn.2d 104, 115,
410 P.3d 1117 (2018). A claim of ineffective assistance of counsel is an issue of
constitutional magnitude that may be considered for the first time on appeal. State v.
Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Claims of ineffective assistance of
counsel are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310
(1995).
A defendant bears the burden of showing that his counselās performance āfell
below an objective standard of reasonableness based on consideration of all the
circumstancesā and, if so, there is a reasonable probability that but for counselās poor
performance the outcome of the proceedings would have been different. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). āIf either element . . . is not
satisfied, the inquiry ends.ā State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
In reviewing the record for deficiencies, there is a strong presumption that
counselās performance was reasonable. McFarland, 127 Wn.2d at 335. āThe burden is
on a defendant alleging ineffective assistance of counsel to show deficient
representation.ā Id. āThe reasonableness of counselās performance is to be evaluated
from counselās perspective at the time of the alleged error and in light of all the
circumstances.ā Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed.
9
No. 39526-0-III
State v. Glazier
2d 305 (1986). āWhen counselās conduct can be characterized as legitimate trial strategy
or tactic[ ], performance is not deficient.ā Kyllo, 166 Wn.2d at 863 (citing State v.
Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)).
A defendant must also affirmatively prove prejudice, rather than simply show that
āthe errors had some conceivable effect on the outcome.ā Strickland v. Washington, 466
U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant demonstrates
prejudice by demonstrating that the result of the proceedings would have been different
but for counselās deficient representation. McFarland, 127 Wn.2d at 337. Even if we
were to find that the performance was deficient, the defendant still needs to prove
prejudice. If a defendant fails to satisfy either prong, a court need not inquire further.
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Failure to Call Mr. Nolan as a Witness
Mr. Glazier contends that his attorney asserted an āother personā defense
during his opening statement but failed to present any evidence that someone else shot
Mr. Plumlee. Because the presumptive āother person,ā Mr. Nolan, was present when the
Mr. Plumlee was shot, Mr. Glazier asserts his attorney was deficient in not calling
Mr. Nolan as a witness. We disagree.
To demonstrate an āother personā defense, the defense must present some
evidence that there is another person who committed the charged crime. See State v.
Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932). Citing State v. Greiff, Mr. Glazier asserts
10
No. 39526-0-III
State v. Glazier
trial counsel can be ineffective during an opening statement. 141 Wn.2d 910, 925-26, 10
P.3d 390 (2000). Greiff highlighted three out-of-state cases 3 in which the defense
promised to provide āother personā evidence during its opening statements and then
failed to do so. However, unlike Greiff, here, defense counsel never asserted an āother
personā defense. Rather, during his opening statement, defense counsel suggested that,
based on Mr. Nolanās presence at scene, āYou will not know beyond a reasonable doubt
who did what.ā 1 RP (Jan. 5, 2023) at 442. This statement was intended to inform the
jury that the State would be unable to prove the murder charge beyond a reasonable
doubt. The statement was also consistent with Mr. Glazierās stated defense of a āGeneral
Denialā and the lack of a witness list. CP at 11.
Moreover, defense counsel informed the court on at least four occasions that he
was using Mr. Nolanās presence at the scene to cast doubt rather than designate him as
the suspect. Defense counselās actions also support the stated defense. At the conclusion
of the Stateās case, defense counsel moved for dismissal, arguing the State had not proved
all the elements of the charged crimes. Defense counselās actions were consistent with
his intended āGeneral Denialā defense. CP at 11.
3
The cases cited in Greiff are Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988)
(promised to call doctors as witnesses but failed to do so); People v. Lewis, 240 Ill. App.
3d 463, 469, 609 N.E.2d 673 (Ill. App. Ct. 1992) (defense counsel promised to provide
evidence that was inadmissible during opening statements); and People v. Ortiz, 224 Ill.
App. 3d 1065, 1073, 586 N.E.2d 1384, 167 Ill. Dec. 112 (1992) (defense counsel
promised to provide evidence of another suspect but failed to produce it during the trial).
11
No. 39526-0-III
State v. Glazier
Mr. Glazierās trial counsel made a valid strategic decision to present a general
denial defense rather than an āother personā defense. The right to counsel does not
include the right to have trial counsel raise every issue advanced by the defendant. State
v. Elwell, 199 Wn.2d 256, 272, 505 P.3d 101 (2022). Mr. Glazierās trial counsel was not
ineffective in failing to call Mr. Nolan as a witness.
Even if we were to conclude Mr. Glazierās trial counselās performance was
deficient, Mr. Glazier is unable to prove that the deficiency had some conceivable effect
on the outcome of the trial. Because Mr. Nolan asserted protection under the Fifth
Amendment, he was unavailable to testify. Had Mr. Glazierās attorney called him as a
witness, the jury still would not have heard from him. Further, given the questions
surrounding Mr. Nolanās competency, even assuming the Stateās verbal limited immunity
offer was enforceable, it is unlikely Mr. Nolan could have made an intelligent decision on
the offer. Consequently, Mr. Glazier is unable to demonstrate that he was prejudiced by
his trial counselās alleged deficiency in not calling Mr. Nolan as a witness.
Time for Trial ā Failure to Object
Mr. Glazier argues his attorney was ineffective in failing to object to the initial
trial setting. We disagree.
CrR 3.3(d)(3), Washingtonās time for trial rule, provides:
A party who objects to the date set upon the ground that it is not within
the time limits prescribed by this rule must, within 10 days after the notice
is mailed or otherwise given, move that the court set a trial within those
12
No. 39526-0-III
State v. Glazier
time limits. Such motion shall be promptly noted for hearing by the
moving party in accordance with local procedures. 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.
(Emphasis added). In State v. Walker, the Supreme Court reinforced the plain language
of the rule:
[O]nce the time-for-trial period has expired, a party cannot object to the
untimely trial date under CrR 3.3(d)(3) because it is no longer reasonably
possible to comply with the rule's requirement to āobjectā in the prescribed
manner, i.e., by moving to set the trial date within the time-for-trial period.
This conclusion is further supported by the language of the final sentence of
CrR 3.3(d)(3), which contemplates that any remedy under the rule will be
lost if the party cannot comply āfor any reason.ā
199 Wn.2d 796, 802, 513 P.3d 111 (2022). In reaching this holding, the Supreme Court
recognized the only remedy CrR 3.3(d)(3) offers is an adjustment of the trial setting
within the parameters of CrR 3.3(b)(1)(i) as dismissal is not available to an aggrieved
defendant. Id. at 806.
Mr. Glazier was arraigned on May 4, 2020. The trial court set trial for July 13,
2020, outside the time limitations of CrR 3.3(b)(1)(i). Mr. Glazierās counsel failed to
move for a trial date within 60 days of the arraignment within 10 days of receiving notice
of the trial date. Although defense counselās performance may have fallen below an
objective standard of reasonableness by not moving for a trial date within the limitations
of CrR 3.3(b)(l)(i), Mr. Glazier is unable to demonstrate that the result of the proceedings
would have been different but for counselās deficient representation. Rather, had defense
13
No. 39526-0-III
State v. Glazier
counsel brought the appropriate motion, the remedy would have been a timely trial
setting.
Because Mr. Glazier cannot establish prejudice, he was not afforded ineffective
assistance of counsel when his trial counsel failed to object to the untimely trial setting.
Time for Trial ā Constitutional Right
Mr. Glazier next contends his attorney was ineffective in failing to safeguard his
constitutional right to a speedy trial. We disagree.
We review both constitutional speedy trial challenges and rules-based time-for-
trial challenges de novo. State v. Rafay, 168 Wn. App. 734, 769, 285 P.3d 83 (2012).
Where a defendant alleges a violation of their right to a speedy trial as guaranteed
by the Sixth Amendment, we apply the framework provided in Barker v. Wingo.4 State v.
Iniguez, 167 Wn.2d 273, 283, 217 P.3d 768 (2009). Under Barker, a defendant who
alleges a speedy trial violation must first show the delay ācrossed a line from ordinary to
presumptively prejudicial.ā Iniguez, 167 Wn.2d at 283. If this initial threshold is met,
we then analyze the remaining Barker factors: (1) the length of the delay, (2) the reasons
for the delay, (3) whether the defendant asserted their right to a speedy trial, and (4)
whether prejudice resulted. Id. However, these factors are neither exclusive nor,
independently, necessary. Id.
4
407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
14
No. 39526-0-III
State v. Glazier
Mr. Glazier was arraigned on May 4, 2020, and his trial commenced on January 3,
2023. This approximate 32-month period, as the State concedes, is āāpresumptively
prejudicial.āā See Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L.
Ed. 2d 520 (1992) (quoting Barker, 167 Wn.2d at 652). We therefore analyze the Barker
factors.
The first Barker factor is the length of the delay. Following Mr. Glazierās
arraignment, the trial court granted seven motions to continue trial and once postponed
the trial due to defense counselās illness. Of the seven continuances, defense counsel
either requested or mutually agreed to six. Defense counsel objected to the Stateās lone
motion for a continuance. Albeit Mr. Glazier personally objected to three of the
continuances sought by his attorney, when defense counsel requests a delay, even over
the objection of the defendant, the delay is chargeable to the defendant. In re Pers.
Restraint of Benn, 134 Wn.2d 868, 920, 952 P.2d 116 (1998).
Defense counselās requested continuances were due to his need to prepare for trial,
including locating and interviewing witnesses. Defense counselās ability to prepare for
trial is āan extremely important aspectā to consider in deciding whether the length of the
delay was reasonable. State v. Ollivier, 178 Wn.2d 813, 831, 312 P.3d 1 (2013).
Because this was a homicide trial, the delay was not highly disproportionate to the
complexity of the issues and trial counselās need to prepare. The length of delay factor
weighs against Mr. Glazier.
15
No. 39526-0-III
State v. Glazier
The second Barker factor is the reasons for the delay. When, like here, the delay
is based on defense counselās need to prepare for trial, the first and second Barker factors
are closely related. Ollivier, 178 Wn.2d at 831.
As previously discussed, delays caused by defense counsel are attributable to the
defendant. Id. at 832. Most of the continuances were based on defense counselās need to
prepare for trial. Delay was also attributed to the State being unable to locate some of the
witnesses to be interviewed. Indeed, Mr. Nolan was not located until after trial had
begun.
Because defense counselās requested delays are attributable to Mr. Glazier and the
delays were largely based on his attorneyās need to prepare for trial, locate witnesses, and
interview witnesses, the reason for the delay factor weighs against Mr. Glazier.
The third Barker factor is whether the defendant asserted his right to a speedy
trial. Mr. Glazier objected to three of the motions to continue that were brought by his
trial counsel. Both Mr. Glazier and his trial counsel objected to the Stateās motion for a
one-month continuance due to the deputy prosecutorās unavailability. Mr. Glazier also
objected to the resetting of the trial date, within speedy trial, due to his attorneyās illness.
Mr. Glazier asserted his right to a speedy trial on at least four occasions. The
assertion of the right to a speedy trial factor weighs mildly in favor of Mr. Glazier.
The final Barker factor is whether any prejudice resulted from the delay. We
assess prejudice by examining the interests that the right to a speedy trial protects, which
16
No. 39526-0-III
State v. Glazier
includes the prevention of harsh pretrial incarceration, the minimization of the
defendantās anxiety and worry, and limiting the impairment to the defense. Iniguez,
167 Wn.2d at 295. Of these, impairment to the defense is the most serious to consider
but demonstration of this factor is not required to show a constitutional speedy trial
violation. Id.
At a pretrial hearing, Mr. Glazier expressed he was experiencing anxiety and
depression, and had been subject to harsh treatment while awaiting trial. Nevertheless,
his defense was not impaired by the delays. To the contrary, the delays likely benefited
Mr. Glazier as Ms. Martin, a key witness for the State, had suffered a stroke and was
having memory issues. During trial, defense counsel was able to point out deficiencies in
Ms. Martinās memory or inconsistencies in her testimony. Furthermore, the Stateās case
did not seemingly benefit from the delays as its case mainly relied on the veracity of the
witnessā testimony. Witness memories fade and become less reliable over time. 5
Therefore, the prejudice factor weighs against Mr. Glazier.
In sum, the Barker factors weigh against Mr. Glazier. The delay was not
unreasonably lengthy, especially in light of the nature of the charges; nearly all the delays
were either agreed to by Mr. Glazier or credited to his attorneyās need to prepare for trial,
locate witnesses, and interview witnesses; and Mr. Glazier asserted his right to a speedy
5
E.g., State v. Lawson, 352 Or. 724, 746, 291 P.3d 673 (2012) (āMemory
generally decays over time.ā).
17
No. 39526-0-III
State v. Glazier
trial by objecting to only three of the continuances and the final three-week rescheduling
of his trial date. Compellingly, Mr. Glazier is unable to show he was specifically
prejudiced by the delay.
Because Mr. Glazierās constitutional right to a speedy trial was not infringed upon,
he was not afforded ineffective assistance of counsel due to his trial attorney failing to
safeguard the right, nor was Mr. Glazier prejudiced by the delay.
Lastly, Mr. Glazier asserts several of the continuances were improper. He first
claims the continuance granted on July 10, 2020, did not meet the requirements of CrR
3.3(f)(1) because there was no written agreement. CrR 3.3(f) provides, in pertinent part:
Continuances. Continuances or other delays may be granted as
follows:
(1) Written Agreement. Upon written agreement of the parties, which
must be signed by defense counsel or the defendant or all defendants, the
court may continue the trial date to a specified date. In the absence of the
defendantās signature or presence at the hearing, defense counselās
signature constitutes a representation that the defendant has been consulted
and agrees to the continuance. The courtās notice to defense counsel of
new hearing dates constitutes notice to the defendant.
A continuance order signed by the parties constitutes a writing in satisfaction of CrR
3.3(f)(1). Here, the continuance at issue was in writing and signed by Mr. Glazierās
attorney who stated Mr. Glazier authorized the continuance. The continuance complied
with CrR 3.3(f)(1).
Mr. Glazier also presents vague challenges to the continuances granted on
February 5, 2021, November 5, 2021, January 21, 2022, July 15, 2022, and the courtās
18
No. 39526-0-III
State v. Glazier
order of December 8, 2022, that postponed trial for three weeks. His limited arguments
are generally based on conjecture about his trial counselās conduct or are otherwise
indiscernible. An appellant must provide āargument in support of the issues presented for
review, together with citations to legal authority and references to relevant parts of the
record.ā RAP 10.3(a)(6). We need not consider arguments that a party has not properly
developed in their briefs and for which the party has cited no authority. State v.
Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990) (citing Smith v. King, 106 Wn.2d
443, 722, P.2d 796 (1986)). Consequently, we decline to review Mr. Glazierās remaining
challenges to the continuances.
Old Chief Stipulation
Mr. Glazier contends his defense counsel was ineffective when he misled the court
on the law related to defense counselās authority to stipulate to an element of a crime over
the defendantās objection. We disagree.
Inaccurately citing the holding in State v. Humphries, defense counsel asserted,
over Mr. Glazierās objection, that he could stipulate to Mr. Glazier having a previous
felony conviction, alleviating the State from having to prove that element of second
degree unlawful possession of a firearm. 181 Wn.2d at 708. Problematic to this claim is
the trial court correctly interpreted and followed the holding in Humphries. Moreover,
Mr. Glazier later stipulated to the previous felony conviction, alleviating the State from
having to prove that element of unlawful possession of a firearm. Assuming defense
19
No. 39526-0-III
State v. Glazier
counsel was deficient due to him inadvertently misleading the court on the holding
in Humphries, because the trial court correctly interpreted and applied the law, and
Mr. Glazier later stipulated to his previous felony conviction, there exists no reasonable
probability that the outcome of the proceedings would have been different but for trial
counselās alleged deficient performance.
Mr. Glazier was not afforded ineffective assistance of counsel when his attorney
inadvertently misstated the law to the trial court.
Courtroom Closure
Mr. Glazier contends his attorney effectively requested closure of the courtroom,
in violation of State v. Bone-Club,6 when he requested window coverings on the doors to
the courtroom. We disagree.
The Sixth Amendment and article I, section 22 of the Washington State
Constitution guarantees the criminally accused the right to a public trial. A courtroom
closure occurs āwhen the courtroom is completely and purposefully closed to spectators
so that no one may enter and no one may leave.ā State v. Lormor, 172 Wn.2d 85, 93, 257
P.3d 624 (2011). To prevail on a courtroom closure claim, the proponent bears the
burden of showing a closure had occurred. State v. Love, 183 Wn.2d 598, 605, 354 P.3d
841 (2015).
6
128 Wn.2d 254, 906 P.2d 325 (1995)
20
No. 39526-0-III
State v. Glazier
Here, the trial court, at defense counselās request, placed a cover over one of the
two windows on the courtroom doors. However, Mr. Glazier has failed to show that
anyone was deprived access to the courtroom because of the window covering.
Moreover, because Mr. Glazier brings this claim under the guise of ineffective assistance
of counsel, he would have to show his attorneyās performance fell below an objective
standard of reasonableness and, if so, there was a reasonable probability that but for
counselās poor performance the outcome of the proceedings would have been different.
He fails to present argument on either factor.
Mr. Glazier was not afforded ineffective assistance of counsel when his attorney
requested window coverings nor was Mr. Glazier deprived of a public trial.
OFFENDER SCORE
Mr. Glazier contends his offender score was miscalculated when the trial court
included two juvenile convictions that had washed out. The State concedes the alleged
error, but requests it be allowed to present additional evidence concerning the convictions
at resentencing. We accept the Stateās concession and grant its request to present
additional evidence at resentencing.
We review the trial courtās calculation of an offender score de novo. State v.
Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011). Challenges to illegal or erroneous
sentences may be raised for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477,
973 P.2d 452 (1999).
21
No. 39526-0-III
State v. Glazier
An offender score is used to establish the standard sentencing range for a felony
offense. See RCW 9.94A.525, .530(1). To calculate an offender score,
the court relies on the seriousness level of the current offense together with the
defendantās criminal history, including juvenile adjudications and other current offenses.
RCW 9.94A.030(11), .589(1). Juvenile nonviolent felony convictions count as one-half a
point towards a defendantās offender score. Former RCW 9.94A.525(7), (9) (2019).
However, prior class C convictions do not count toward an offender score if the
defendant spent five consecutive years from the time of the defendantās release from
confinement in the community without committing any crime that resulted in a
conviction. Former RCW 9.94A.525(2)(c).
Here, the court concluded Mr. Glazier had an offender score of 2 for each count.
The trial court calculated this score by counting each current offense against the other and
adding 1 point for the two juvenile convictions. Both of Mr. Glazier juvenile convictions
were class C felonies.7 The maximum sentence for a class C felony is imprisonment for
a term of not more than five years. RCW 9A.20.020(1)(c). Mr. Glazier was sentenced
on his most recent juvenile felony on February 16, 2011. Assuming he received the
maximum term of five years, he would have been released in 2016. In this matter, the
7
Third degree assault sentenced on July 23, 2009, and unlawful possession of a
firearm in the second degree sentenced on February 16, 2011.
22
No. 39526-0-III
State v. Glazier
crime was committed in December 2019, and Mr. Glazier was sentenced in February
2023. It is possible Mr. Glazier may have been crime-free for more than five consecutive
years between the time of his release on the most recent juvenile conviction and the date
of the crimes at issue here.
Thus, we remand for a full resentencing. On remand, the State may present
additional evidence regarding Mr. Glazierās criminal history. See RCW 9.94A.530(2).
VICTIM PENALTY ASSESSMENT
Mr. Glazier contends that the VPA must be struck from his judgment and sentence
due to recent changes in the law. Although the State concedes, we decline review
because Mr. Glazier has been afforded a full resentencing. Mr. Glazier may raise this
issue before the sentencing court.
STATEMENT OF ADDITIONAL GROUNDS
RAP 10.10(a) allows an appellant to āfile a pro se statement of additional grounds
for review to identify and discuss those matters related to the decision under review.ā
RAP 10.10(d) requires an appellantās attorney to promptly āadvise the defendant of the
substance of [RAP 10.10]ā when they provide the defendant a copy of the brief being
filed by counsel. The purpose of a SAG is to āidentify and discuss those matters related
to the decision under review that the defendant believes have not been adequately
addressed by the brief filed by the defendantās counsel.ā RAP 10.10(a) (emphasis
added).
23
No. 39526-0-III
State v. Glazier
Mr. Glazier first attempted to raise numerous issues through a purported SAG.
The purported SAG appears to be correspondence between Mr. Glazier and his
appellate counsel. The document contains a handwritten date of ā2023/06/11.ā We are
unsure whether ā2023/06/11ā refers to June 11, 2023, or November 6, 2023. Based on
Mr. Glazier handwriting the date in month/day order on his second SAG, we surmise the
document was likely dated June 11, 2023. The document was filed on November 17,
2023, but was rejected because it was unsigned. The same document was refiled on
December 6, 2023, with the inclusion of Mr. Glazierās signature.
Mr. Glazierās appellate counsel filed an opening brief on November 7, 2023.
Because Mr. Glazierās purported SAG predates the filing of his opening brief by
approximately five months, coupled with the document appearing to be a communication
between Mr. Glazier and his attorney, the document was likely prepared without
Mr. Glazier first reviewing the opening brief as required by RAP 10.10(a).
Mr. Glazierās attorney filed an amended opening brief on February 23, 2024.
Mr. Glazier filed a second SAG on April 29, 2024. Although Mr. Glazierās second SAG
was filed on the proper āStatement of Additional Grounds for Reviewā form, it was
rejected as untimely. In rejecting the SAG, the court clerk informed Mr. Glazier that his
counsel would have to file a motion before an untimely SAG would be accepted for
filing. (See May 10, 2024 letter to Mr. Joshua Glazier). No such motion was made.
24
No. 39526-0-III
State v. Glazier
Because Mr. Glazierās first purported SAG is a communication with his attorney
and was drafted before Mr. Glazier had an opportunity to review the brief filed by his
attorney to determine what issues had not been adequately addressed, we decline review
of his first SAG. Further, because Mr. Glazierās second SAG was rejected as untimely,
and no motion was filed for us to accept it, we decline review of his second SAG.
Mr. Glazierās remedy is through a personal restraint petition.
CONCLUSION
Mr. Glazier was not afforded ineffective assistance of counsel. However, we
remand for a full resentencing with an accurate offender score. Because Mr. Glazier is
granted a full resentencing, we decline to review the VPA.
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:
Fearing, J.
Lawrence-Berrey, C.J.
25
Case Information
- Court
- Wash. Ct. App.
- Decision Date
- January 7, 2025
- Status
- Precedential