Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,
                             Respondent,                         No.  41131-8-II
                                                        Consolidated with No. 41751-1-II
       v.
                                                         PART PUBLISHED OPINION
JONATHAN MARK LUCAS,
                             Appellant.

Personal Restraint Petition of:

JONATHAN MARK LUCAS,

                             Petitioner.

       Van Deren, J.  --  Jonathan Mark Lucas appeals his conviction for second degree and 

fourth degree assault.  In his direct appeal, he contends that the trial court (1) abused its 

discretion in admitting evidence of his prior conviction when he did not testify and (2) violated his 

speedy trial rights when it granted a continuance over his objection to allow his counsel more time 

to prepare a diminished capacity defense.  In his personal restraint petition (PRP), he contends 

that the trial court failed to timely file necessary documents related to his appeal.  We hold that 

the trial court abused its discretion in admitting evidence of Lucas's prior conviction and that the 

error was not harmless.  We reverse Lucas's conviction and remand for further proceedings. We 

also deny his PRP.

                                            FACTS

       On September 4, 2009, while walking down the street in Vancouver, Washington, around  

No.  41131-8-II, consolidated with No.  41751-1-II

6:00 p.m., Terry Taylor heard "[a] bunch of yelling."  Report of Proceedings (RP) at 219.  While 

Taylor waited to cross the street, Lucas, the source of the yelling, came into view and continued 

walking toward Taylor.  Taylor felt that Lucas's behavior was "erratic" because Lucas was 

unintelligibly cursing, "yelling," and "ranting."  RP at 220, 229-30.  Lucas followed Taylor across 

the street and overtook him. Taylor, who felt fearful, turned to face Lucas, and Lucas stepped 

within arm's length.  Taylor told Lucas to stop and to get away from him, and Lucas, who was 

still ranting and yelling unintelligibly, cursed and punched Taylor in the side of his face and ear.  

As Taylor backed away, Lucas advanced, so Taylor fled down the street and called 911.  

       Boulder County, Colorado, Deputy Sheriff Jeffrey Caton, who was off-duty and pulling 

into a nearby restaurant parking lot, observed Taylor running down the street with Lucas in 

pursuit.  A man emerged from the restaurant and told Caton that Lucas had just assaulted Taylor.  

Caton identified himself to Taylor, Taylor told him what had happened, and Lucas walked around 

the corner and began approaching them.  Caton ordered Lucas to go away and to leave the area 

but Lucas continued approaching.  Caton displayed his firearm and badge, identified himself as a 

deputy sheriff, and again ordered Lucas to back away and to leave, but Lucas continued 

advancing.  

       When Caton tried to push Lucas away, Lucas reached over Caton's arms and punched him 

in the nose.  Caton drew his firearm and ordered Lucas to get down.  Lucas, who was yelling, 

screaming, and cursing, refused to comply, said "'I don't care'" and "'I'm not going to do what 

you say,'" and began walking away.  RP at 245-46.  

       Vancouver Police Department Officer Franklin Gomez, who had arrived at the scene, 

repeatedly ordered Lucas to get on the ground.  When Lucas turned, stared at Gomez, and 

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No.  41131-8-II, consolidated with No.  41751-1-II

refused to comply, Gomez drew his stun gun and warned Lucas that he would deploy it if Lucas 

did not comply.  Eventually, Lucas complied and was handcuffed and placed in the back of 

Gomez's patrol car.  

       Another responding police officer read Lucas his Miranda1 rights and asked Lucas what 

had happened.  Lucas said that Taylor had "disrespected" him, so he "slapped" Taylor.  RP at 

308.  Lucas denied hitting Caton and repeatedly stated, "'Why am I under arrest?  Just let me go 

home.  I won't cause any more problems.'" RP at 308.  

       Gomez also spoke with Lucas.  Lucas also told him that he "slapped" Taylor because 

Taylor had disrespected him, denied hitting Caton, and said "'I don't know what you are talking 

about and take me to jail.'" RP at 287.  Although Lucas was responsive to Gomez's questions, 

Lucas had a strong odor of alcohol on his breath, his speech was slurred, and when he vomited in 

Gomez's patrol car, his vomit also smelled of alcohol.  

       The State charged Lucas with second degree assault, count one, and fourth degree assault, 

count two.  At his arraignment, Lucas's counsel stated that after reviewing the police report and 

Lucas's mental health treatment history, he believed that Lucas should pursue a diminished 

capacity defense.  But Lucas's counsel indicated that he needed Lucas to waive his speedy trial 

rights to effectively prepare this defense because he needed to obtain more of Lucas's mental 

health records and to retain an expert to evaluate Lucas.  Lucas's counsel stated, "'[Lucas] has 

indicated he may not want to do that.  No, I don't think -- I think he indicated he wants to rely on 

his speedy trial rights . . . I think I should waive speedy trial for him.  He may not want to.  He 

may want to have an objection to it.'" RP at 3-4.  Later, Lucas's counsel stated, "'[Lucas] is not 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  
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No.  41131-8-II, consolidated with No.  41751-1-II

apparently waiving.'" RP at 4-5.  The trial court found that Lucas's counsel needed additional 

time to prepare a possible diminished capacity defense, set a new commencement date of 

November 28, 2009, and set trial for January 27, 2010.  The trial court entered a written speedy 

trial waiver that Lucas refused to sign.  

       Lucas's trial began on March 8, 2010.2 Doctor Jerry Larsen, a psychiatrist, testified as an 

expert for Lucas on his diminished capacity defense.  According to Larsen, a review of Lucas's 

mental health treatment history demonstrated a history of paranoid schizophrenia "going back 

many years," "characterized by hallucinations, by delusions, [and] by behavioral excesses such as 

bizarre behaviors." RP at 326.  He stated that alcohol consumption would exacerbate those 

symptoms.  

       Larsen also interviewed and examined Lucas.  Lucas told him that on the morning of 

September 4, 2009, he had consumed a large amount of alcohol and that he remembered little else 

other than vomiting and waking up in jail.  Lucas also said that he had not taken his psychotropic 

medication for 10 days.  Larsen stated that Lucas's assault on Taylor and Caton was consistent 

with acting out on a paranoid schizophrenic delusion.  He opined that at the time of the assaults, 

Lucas was incapable of forming the necessary intent to commit a crime or of calculating the risk 

of his actions.  

       Outside the presence of the jury, the State moved to cross-examine Larsen with evidence 

2 The record does not indicate why trial began on March 8, 2010, instead of the January 27, 2010,
trial date set by the trial court at Lucas's arraignment.  On February 5, 2010, the trial court held a 
hearing on the State's motion to appoint experts to evaluate Lucas based on his diminished 
capacity defense.  Defense counsel observed that "[t]here is no issue of competency so trial time is 
not tolling, as I understand the rule," and the trial court's order appointing experts did not 
mention continuing the trial date.  RP at 11.  It appears from the record that Lucas remained in 
custody pending trial.  
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No.  41131-8-II, consolidated with No.  41751-1-II

of Lucas's 2001 first degree robbery conviction, arguing that Lucas was "essentially testifying 

through [Larsen] about the events in question" and, because Larsen partially based his evaluation 

on Lucas's statements, Lucas's "credibility and truthfulness" was at issue.  RP at 340.  Over 

Lucas's objection, the trial court allowed the State to cross-examine Larsen about Lucas's 

conviction, reasoning:  

       [I]n general, the hearsay statements that experts testify to are subject to a curative 
       instruction; that the hearsay is only introduced for the purpose of explaining how 
       the individual formed their opinion.  It is not offered for the truth of the matters 
       asserted and only to allow the set up to their opinion.  However, to the extent that 
       credibility is an issue with regard to the doctor's opinion, [ER] 806 would appear 
       to apply.   It does say that a hearsay statement, once it has been admitted, 
       credibility of the declarant may be attacked and may be supported by any evidence 
       that would be admissible for those purposes, if the declarant had testified as a 
       witness [sic].  So, it is permissible for the State to bring in [Lucas's robbery 
       conviction].  

RP at 341-42.  

       During cross-examination, Larsen stated that he was aware of Lucas's 2001 first degree 

robbery conviction.  Larsen also testified on cross-examination that (1) he evaluated Lucas four 

months after the assaults; (2) Larsen could not verify Lucas's statements and took them at "face 

value"; (3) Lucas was very specific in stating the number of drinks and number of days without 

taking his medication despite his claim of memory loss on the day of the assaults; (4) Larsen did 

not know what symptoms Lucas experienced while not taking his medication, paranoid 

schizophrenics usually avoid people instead of confronting them; (5) someone who has "blacked 

out" from excessive alcohol consumption can still engage in a series of intentional acts; and (6) 

Lucas demonstrated cognitive ability after the assaults by complying with law enforcement's 

commands and by conversing with them.  RP at 350, 355.  

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No.  41131-8-II, consolidated with No.  41751-1-II

       Doctor Gregory Kramer, a psychologist, testified as the State's expert.  He also diagnosed 

Lucas with paranoid schizophrenia based on Lucas's mental health treatment history.  But Kramer

stated that during the assaults there was evidence of only Lucas's intoxication, not symptoms of 

paranoid schizophrenia.  He testified that Lucas's statement that he slapped Taylor because he 

"felt disrespected" and his conversation with law enforcement and eventual compliance with their 

commands demonstrated his capacity to form intent at the time of the assaults.  RP at 402.  

Kramer opined that the evidence showed that Lucas was capable of both forming intent and of 

making risk calculations at the time of the assaults.  

       The jury found Lucas guilty as charged.  Lucas unsuccessfully moved for arrest of 

judgment or for a new trial.  Lucas filed his direct appeal and then he filed a motion to dismiss the 

entire case because appellate counsel, due to the trial court's untimely filing of documents with 

this court, was never appointed.  We converted his motion to dismiss into a PRP and consolidated 

it with his direct appeal.  

                                          ANALYSIS

               ER 806 and Expert Testimony Based on Out-of-Court Statements

       Lucas first argues that the trial court abused its discretion in allowing the State to cross-

examine Larsen about Lucas's prior conviction.  The State counters that the trial court did not

abuse its discretion because Lucas's statements, to which Larsen testified as part of the basis of 

his expert opinion, were offered for the truth of the matter asserted and, thus, impeachment under 

ER 806 was proper.  We agree with Lucas.  

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No.  41131-8-II, consolidated with No.  41751-1-II

       A.  Standard of Review

       We review the trial court's admission of evidence for abuse of discretion.  State v. 

Bashaw, 169 Wn.2d 133, 140, 234 P.3d 195 (2010).  A trial court abuses its discretion when it 

bases its decision on unreasonable or untenable grounds.  State v. Rafay, 167 Wn.2d 644, 655, 

222 P.3d 86 (2009).  We review the interpretation of evidentiary rules de novo.  State v. 

DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).

       B.  Basis of Expert's Opinion Was Not Hearsay      

         ER 806 provides, "When a hearsay statement . . . has been admitted in evidence, the 

credibility of the declarant may be attacked, and if attacked may be supported, by any evidence 

which would be admissible for those purposes if declarant had testified as a witness."

         ER 801(c) defines "[h]earsay" as "a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted." (Emphasis added.)  Thus, "ER 806 authorizes impeachment of a declarant only when 

the declarant's statement has been offered to prove the truth of the matter asserted.  If the 

statement is offered for some other nonhearsay purpose, ER 806 does not apply."  State v. Fish, 

99 Wn. App. 86, 95, 992 P.2d 505 (1999).  

       ER 703 allows expert witnesses to base their opinions on facts otherwise inadmissible as 

long as the facts are "of a type reasonably relied upon by experts in the particular field in forming 

opinions or inferences upon the subject." ER 705 provides, "The expert may testify in terms of 

opinion or inference and give reasons therefor without prior disclosure of the underlying facts or 

data." Thus, as our Supreme Court has observed:

              The trial court may allow the admission of otherwise hearsay evidence and 
       inadmissible facts for the purpose of showing the basis of the expert's opinion[.]  

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No.  41131-8-II, consolidated with No.  41751-1-II

       The admission of these facts, however, is not proof of them.  
              "[I]f an expert states the ground upon which his opinion is based, his 
       explanation is not proof of the facts which he says he took into consideration[.]
       His explanation merely discloses the basis of his opinion in substantially the same 
       manner as if he had answered a hypothetical question.   It is an illustration of the 
       kind of evidence which can serve multiple purposes and is admitted for a single, 
       limited purpose only."

Group Health Coop. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 399-400, 722 

P.2d 787 (1986) (first alteration in original) (citations omitted) (internal quotation marks omitted) 

(quoting State v. Wineberg, 74 Wn.2d 372, 382, 444 P.2d 787 (1968)).  

       In other words, out-of-court statements on which experts base their opinions are not 

hearsay under ER 801(c) because they are not offered as substantive proof, i.e., "the truth of the 

matter asserted." Rather, they are offered "only for the limited purpose of explaining the expert's 

opinion."  5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington 

Evidence author's cmts. at 387, 400 (2011 -- 2012 ed.); see also State v. Lui, 153 Wn. App. 304, 

322-23, 221 P.3d 948 (2009), review granted, 168 Wn.2d 1018 (2010) (stating that admission of 

out-of-court statements did not implicate the confrontation clause because they were admitted to 

explain the bases for experts' opinions, not for the truth of the matter asserted); State v. 

Anderson, 44 Wn. App. 644, 652-53, 723 P.2d 464 (1986) (stating that trial court did not abuse 

its discretion in allowing the State's experts to testify about Anderson's out-of-court statements 

to them because the statements were not offered to prove the truth of the matter asserted); State 

v. Fullen, 7 Wn. App. 369, 379, 499 P.2d 893 (1972) (quoting Dutton v. Evans, 400 U.S. 74, 88, 

91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)) ("'The hearsay rule does not prevent a witness from 

testifying as to what he has heard; it is rather a restriction on the proof of fact through 

extrajudicial statements.'").3 Accordingly, out-of-court statements offered at trial as the basis of 

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No.  41131-8-II, consolidated with No.  41751-1-II

an expert's opinion are not hearsay and, thus, do not expose the declarant to impeachment under 

ER 806.  

       The State argues that such an interpretation of ER 806, ER 703, and ER 705 would allow 

a defendant to "place his version of the events before the jury without any adversarial testing."  

Br. of Resp't. at 4.  But we rejected a similar argument in State v. Eaton, 30 Wn. App. 288, 291-

93, 633 P.2d 921 (1981), concluding that "the proper way to test the reliability of the [expert's] 

opinion [i]s through cross-examination of the [expert], not by requiring the defendant to testify"

and impeaching the defendant with a prior conviction.  We observed:  

       [T]he probative value of expert medical testimony may be lessened when it is 
       based on subjective symptoms and narrative statements given by a defendant after 
       he has been charged with a crime.  The assumption underlying ER 703, however, 
       is that opposing counsel will forcefully bring that point to the jury's attention 
       during cross -- examination of the expert.    Jurors are quite aware that a criminal 
       defendant may be motivated to fabricate a defense and are unlikely to be influenced 
       unduly by an expert opinion that is shown to rest on questionable sources of 
       information.  Moreover, experienced forensic psychiatrists are equally aware of the 
       danger of fabrication and are trained to detect untruthful answers to their 
       questions. 

Eaton, 30 Wn. App. at 294-95 (citations omitted).  Here, the State extensively and effectively 

cross-examined Larsen, including casting doubt on the credibility of Lucas's statements by 

3 We note that the United States Supreme Court recently heard oral argument in People v. 
Williams, 238 Ill.2d 125, 939 N.E.2d 268, 345 Ill.Dec. 425 (2010), cert. granted, ___ US ___, 
131 S. Ct. 3090 (2011).  In Williams, the Illinois Supreme Court held that an expert's testimony 
about the facts and out-of-court statements in another laboratory's report not admitted into 
evidence was offered to explain the basis of the expert's opinion, not for the truth of the matter 
asserted, and, thus, did not implicate the confrontation clause.  238 Ill.2d at 132-33, 141, 143-45, 
150.  
       We also note that the Washington State Supreme Court granted review in Lui, 168 Wn.2d 
1018, and on September 19, 2011, stayed review pending the United States Supreme Court's 
decision in Williams.  Although we continue to rely on existing case law about the purpose for 
which trial courts admit facts and out-of-court statements forming the basis of expert opinions, 
we note the uncertainty currently surrounding this area of law.         
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No.  41131-8-II, consolidated with No.  41751-1-II

adducing Larsen's testimony that he took such statements at "face value" with no means to verify 

them, thus rendering any reference to Lucas's prior conviction unnecessary.  RP at 350.  Under 

these circumstances, we hold that the trial court abused its discretion in allowing the State to 

cross-examine Larsen with evidence of Lucas's prior conviction.  

       C.  Error Was Not Harmless

       Lucas argues that the trial court's admission of his prior conviction burdened his 

constitutional right to present a defense and, thus, we should review the issue under the 

constitutional harmless error standard.  He also argues that the error was not harmless under the 

nonconstitutional standard of review.  

       But if the error was not harmless under the less stringent nonconstitutional standard, we 

need not decide whether the trial court's error was constitutional in magnitude,.  Accord Eaton, 

30 Wn. App. at 297.  An error of nonconstitutional magnitude is harmless unless we can conclude 

that, within reasonable probabilities, the error materially affected the trial's outcome.  Eaton, 30 

Wn. App. at 295-96.      

       For example, in Eaton, Eaton did not deny at trial that he broke into a liquor store, but he 

contended that he was too intoxicated to form the necessary intent to commit a crime.  30 Wn. 

App. at 290.  He intended to call a psychiatrist to opine, based largely on two interviews with 

Eaton in which he gave his recollection of the events of the date in question, that Eaton was 

incapable of forming the required intent to commit a crime when entering the store.  Eaton, 30 

Wn. App. at 290.  Concerned about the potential introduction of Eaton's out-of-court statements 

through the expert's testimony, the trial court erroneously required Eaton to testify at trial and 

allowed the State to impeach him with evidence of a prior robbery conviction.  Eaton, 30 Wn. 

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No.  41131-8-II, consolidated with No.  41751-1-II

App. at 290-91, 295.  We noted based on empirical studies of the time that "[t]here is a significant 

danger that jurors will consider prior convictions admitted for impeachment purposes as 

substantive evidence of guilt, regardless of instructions to the contrary."  Eaton, 30 Wn. App. at 

291 n.4.  In holding the error was not harmless, we reasoned:

       [Eaton']s prior robbery conviction was revealed to the jury as a result of his taking 
       the stand. . . . In all likelihood, the jurors' verdict depended greatly on their 
       assessment of defendant's credibility.  A negative assessment of his credibility 
       conceivably would have influenced the weight the jury gave to the opinion of Dr. 
       Maletzky, defendant's key witness.  In these circumstances, we must conclude that
       the additional evidence placed before the jury as a result of the court's error 
       probably had an effect on the verdict.

Eaton, 30 Wn. App. at 297.

       We observe that, generally, cases finding that the erroneous admission of defendants' prior 

criminal convictions was harmless "have turned on the fact that the defendant had other prior 

convictions that were properly admissible."  State v. Calegar, 133 Wn.2d 718, 728, 947 P.2d 235 

(1997).  That factor is not present in Lucas's case.  

       Further, the State admits that, like the credibility contest in Eaton, "[t]his case came down 

to a disagreement between experts." Br. of Resp't. at 11.  The jury's possibly negative 

assessment of Lucas's credibility -- arising from the erroneous admission of his prior 

conviction -- conceivably and negatively influenced the weight they gave to Larsen's testimony,

and Lucas's key witness for his only viable defense of diminished capacity.  Accordingly, we hold 

that the error was not harmless and reverse and remand for further proceedings.

       A majorityof the panel having determined that only the foregoing portion of this opinion 

will be printed in the Washington Appellate Reports and that the remainder shall be filed for 

public record pursuant to RCW 2.06.040, it is so ordered.

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No.  41131-8-II, consolidated with No.  41751-1-II

                                          Speedy trial

       Lucas also argues that the trial court violated his right to a speedy trial under CrR 3.3 by 

entering a waiver of that right and by granting a continuance, over his objection, to allow Lucas's 

counsel more time to prepare a diminished capacity defense.  Specifically, Lucas argues that the 

waiver and continuance were invalid because they violated his constitutional right to control his 

own defense.  We disagree.  

       A.  Standard of Review

       We review a trial court's order granting or denying a continuance for abuse of discretion.  

State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996).  We review issues of constitutional 

interpretation, which are questions of law, de novo.  State v. Robinson, 171 Wn.2d 292, 301, 253 

P.3d 84 (2011).  

       B.  No Constitutional Right To Control Defense at Trial 

       Generally, "a defendant has a constitutional right to at least broadly control his own 

defense."  State v. Jones, 99 Wn.2d 735, 740, 664 P.2d 1216 (1983) (emphasis omitted).  But this 

right is not absolute.  Jones, 99 Wn.2d at 741.  Thus, "the details of strategy are generally for 

counsel to decide, not the client" and, "[g]enerally, the client decides the goals of litigation and 

whether to exercise some specific constitutional rights, and the attorney determines the means."  

State v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80 (2006).  For example, "A competent defendant 

may forbid counsel to put on a mitigation case if his goal is to have the death penalty imposed,"

but when the defendant decides he does "not wish to be put to death . . . the strategy is largely in 

the hands of his attorneys."  Cross, 156 Wn.2d at 613.  

       Lucas cites three cases in support of his argument:  Jones; State v. Saunders, 153 Wn. 

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No.  41131-8-II, consolidated with No.  41751-1-II

App. 209, 220 P.3d 1238 (2009); and State v. McSorley, 128 Wn. App. 598, 116 P.3d 431 

(2005).  In Jones, at the prosecutor's request, the trial court entered a not guilty by reason of 

insanity (NGI) plea for Jones and appointed amicus counsel to argue the insanity defense over 

Jones's objection and despite his desire to plead not guilty and argue self-defense.  99 Wn.2d at 

737-38.  Although our Supreme Court referenced a defendant's right to control his own defense, 

it observed:  

       Refusing to enter an NGI plea can be viewed as both one -- half of a guilty 
       plea -- since one is guilty only if one both does a proscribed act and is mentally 
       responsible at the time -- and as an aspect of defense strategy.  The extent to which 
       a defendant has a right to refuse to plead NGI is therefore intertwined with any 
       right he has to plead guilty [under CrR 4.2(a)] and/or control his own defense.

Jones, 99 Wn.2d at 739-40.  In holding that the trial court erred in sua sponte entering an NGI 

plea for Jones, it primarily relied on a defendant's right to enter a plea and the particular factual 

circumstances and potential consequences surrounding an NGI plea.  Jones, 99 Wn.2d at 743-44.  

       Likewise, in McSorley, at the request of the State and over McSorley's objection, the trial 

court instructed the jury on an affirmative defense to the charged crime of child luring.  128 Wn. 

App. at 600, 603.  In reversing his conviction, we held that "neither the State nor the trial court 

may compel a defendant to raise or rely on [an] affirmative defense."  McSorley, 128 Wn. App. at 

605.

       Finally, in Saunders, the trial court granted a series of continuances, either to allow more 

time for plea negotiations or for inadequately articulated reasons, despite Saunders's desire to 

cease plea negotiations and to proceed to trial.  153 Wn. App. 212, 217-21.  On appeal, we noted

that "[b]ecause 'the client controls the goals of litigation,' where the client's goal is to go to trial 

and the client has rejected further negotiation, a strategy to delay trial for further negotiation is a 

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No.  41131-8-II, consolidated with No.  41751-1-II

breach of the attorney's ethical duties."  Saunders, 153 Wn. App. at 218 n.9 (quoting Cross, 156 

Wn.2d at 613).  We held that, "[a]bsent convincing and valid reasons for the continuances," the 

trial court abused its discretion when it granted them.  Saunders, 153 Wn. App. at 221.  

       Lucas's case is easily distinguishable from Jones, McSorely, and Saunders.  Unlike Jones 

and McSorley, neither the trial court nor the State imposed a particular plea or defense on Lucas.  

Further, unlike Jones or Saunders, this case does not involve decisions between types of pleas or 

forgoing plea negotiations to proceed to trial, i.e., decisions about the goals of litigation the client

controls.  Cross, 156 Wn.2d at 606.  Instead, having chosen to plead not guilty, Lucas's defense 

was a matter of trial strategy counsel controlled.  See Cross, 156 Wn.2d at 606, 613.  

       Finally, unlike Saunders, here both Lucas's counsel and the trial court adequately 

articulated that a continuance was necessary to allow Lucas's counsel to prepare a diminished 

capacity defense.  A trial court does not abuse its discretion in granting a continuance to allow 

defense counsel more time to prepare for trial, even over the defendant's objection, to ensure 

effective representation and a fair trial.  State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 

(1984); State v. Williams, 104 Wn. App. 516, 523, 17 P.3d 648 (2001).  Accordingly, the trial 

court neither violated Lucas's right to control his defense nor abused its discretion when it 

granted the continuance.  Lucas's claims fail.  

                                   Personal Restraint Petition

       In his PRP, Lucas contends that the trial court failed to timely file with this court 

necessary documents relating to his appeal, thus violating his constitutional due process rights and 

requiring dismissal of this case with prejudice.  We disagree.

       Lucas bears the burden of establishing either a constitutional violation resulting in actual 

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No.  41131-8-II, consolidated with No.  41751-1-II

prejudice or a nonconstitutional error that "'constitutes a fundamental defect which inherently 

results in a complete miscarriage of justice.'"  In re Pers. Restraint of Nichols, 171 Wn.2d 370, 

373, 256 P.3d 1131 (2011) (internal quotations omitted) (quoting In re Pers. Restraint of Lord, 

152 Wn.2d 182, 188, 94 P.3d 952 (2004)).  

       Here, the only prejudice Lucas alleges is that he was never appointed appellate counsel.  

But appointed counsel represents him in his direct appeal.  Thus, his claim fails and we deny his 

PRP.      

       We reverse Lucas's conviction, deny his PRP, and remand for further proceedings.

                                                 Van Deren, J.
We concur:

Worwsick, A.C.J.

Johanson, J.

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