STATE v. CHISOM, 47718-8-I (Wash.App. 5-6-2002)

No. 47718-8-I.The Court of Appeals of Washington, Division One.
Filed: May 6, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 001040365, Hon. Carol Schapira, December 5, 2000, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Keith P. Scully, King County Prosecutor’s Office — County Courthouse, 516 3rd Ave, Seattl, WA 98104.

WILLIAM W. BAKER, J.

Frederick Chisom was convicted of delivery of cocaine and a sentencing enhancement of committing the crime within 1,000 feet of a school bus route stop. His central argument on appeal is that the trial court lacked subject matter jurisdiction because the amended information charging the enhancement was not filed until after conclusion of the trial.

We disagree, and affirm because the trial court did not lose subject matter jurisdiction. The amended information, although not filed until after trial, complied with the requirements of CrR 2.1(d). Chisom was charged by information with one count of violation of the uniformed controlled substances act — delivery of cocaine. The State orally amended the information at the omnibus hearing to add a special allegation charging him with delivery of cocaine within 1,000 feet of a school bus route stop. At trial, the court read the amended information to the jury. It is clear from the record that counsel and the court had a copy of the amended information. The case was defended on the basis of the amended information.

The jury found Chisom guilty as charged. At sentencing, Chisom moved for a new trial alleging ineffective assistance of counsel. The trial court denied Chisom’s request for a new attorney to argue the issue and also denied the motion for a new trial. The court imposed a standard range sentence plus 24 months for the school bus zone enhancement. Four days later the State filed its amended information. Chisom appeals. CrR 2.1 provides that a criminal proceeding is commenced when the State files an initial pleading either by indictment or information.[1] `From the time an action is commenced, the superior court acquires jurisdiction.’[2] CrR 2.1(d) authorizes the court to amend any information `at any time before verdict or finding if substantial rights of the defendant are not prejudiced.’[3] A pretrial amendment to an information may include new charges if no specific prejudice results.[4] `[T]he primary purpose of [a charging] document is to supply the accused with notice of the charge that [the accused] must be prepared to meet.’[5] An assignment of error challenging a charging document may be raised for the first time on appeal.[6]

Chisom maintains that the trial court lacked jurisdiction over the school bus stop enhancement because the amended information was not filed until after trial. This issue is controlled by our supreme court’s decision in State v. Barnes.[7] In Barnes, the State moved pretrial to amend the information to add a count of resisting arrest. The motion was granted and Barnes was arraigned on the amended information and entered a plea of not guilty to both counts. The amended information was lost and never filed. He was subsequently found guilty of resisting arrest.[8]
Barnes then appealed to this court. Relying on State v. Corrado,[9] he argued that the trial court did not have subject matter jurisdiction over the resisting arrest charge because the State had not filed the amended information with the court.[10] We rejected this argument and affirmed Barnes’s conviction, citing State v. Franks[11] for the proposition that subject matter jurisdiction is not dependent upon compliance with procedural rules.[12] In affirming our ruling, the supreme court held that the superior court’s continuing subject matter jurisdiction over the criminal action did not depend on the procedural act of filing the amended information with the clerk of the court, and that failure by the State to do so did not warrant reversal of Barnes’s conviction for resisting arrest.[13] An initial pleading invokes the jurisdiction of the court under CrR 2.1.

The initial information in this case was properly filed and, unlike the information in Corrado, the original information was not dismissed. A legally cognizable charge remained before the trial court. Therefore, the trial court did not lose subject matter jurisdiction when the information was amended to add the enhancement. Because the State amended the information in accordance with CrR 2.1(d),[14] the trial court retained jurisdiction over the additional charge in the amended information. Chisom next argues that the trial court was required to appoint separate counsel at the motion for a new trial. Chisom contends that once he raised his claim of ineffective assistance of counsel, there was an actual conflict between his interests and that of his attorney. We disagree, because there is no indication in the record that Chisom and his attorney had an actual conflict of interest.

The trial court’s determination of whether a defendant’s dissatisfaction with court-appointed counsel warrants appointment of substitute counsel is discretionary and will not be overturned on appeal absent an abuse of discretion.[15] Factors to be considered include `the reasons given for the defendant’s dissatisfaction, together with [the trial court’s] own evaluation of the competence of existing counsel and the effect of substitution upon the scheduled proceedings.’[16]
Here, the facts surrounding the alleged ineffectiveness are undisputed. At the hearing, Chisom argued that his attorney was ineffective in several respects. But the trial judge decided that Chisom’s counsel did nothing that would constitute ineffective assistance, noting that `none of these issues change the way the trial was conducted. [They] are strategic issues, questions that get asked in every trial that potentially could affect the outcome.’ Chisom counters that these allegations of ineffective assistance, if substantiated, implicated his attorney in malpractice, thus creating an actual conflict of interest. However, a claim of ineffective assistance, even when combined with a threat of lawsuit, does not necessarily constitute a conflict of interest.[17] Chisom’s attorney did not refute his allegations and the trial court accepted them as true. The trial court did not abuse its discretion in denying substitution of counsel.

Chisom next argues that RCW 69.50.435 is unconstitutionally vague because a person of reasonable intelligence has no means of identifying the location of the school bus stop in the vicinity of the drug transaction. We disagree, because the location of the bus stop was readily available in the school district’s transportation office.

The Fourteenth Amendment due process clause requires fair warning of proscribed conduct.[18] A statute is unconstitutionally vague if (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct it forbids, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement.[19] RCW 69.50.435 provides in pertinent part:

a) Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection. . . .

. . .

(3) Within one thousand feet of a school bus route stop designated by the school district;

. . .

State v. Coria[20] rejected the contention that RCW 69.50.435 was unconstitutionally vague based upon defendants’ claim that they did not subjectively know they were dealing drugs within 1,000 feet of a school bus stop.[21] There, the court held `[t]he statute does not forbid conduct in terms so vague that persons of common intelligence must guess at its meaning and differ as to its application. Nor does it create a risk of arbitrary enforcement by the use of inherently subjective terms or by inviting an inordinate amount of police discretion.’[22] The court concluded that it was permissible under due process to require defendants to determine their proximity to protected areas, provided there were readily available means to do so.[23]

Chisom points out that after Coria was decided, the Legislature ceased to require the statewide Office of the Superintendent of Public Instruction to maintain maps of school bus route stops. Thus, Chisom contends that as currently written, RCW 69.50.435 no longer provides such readily available means to determine where school bus route stops are located because there is no official record or maps of stops. This contention fails. As noted in Coria, these maps were often incomplete or unavailable, and were only one of the means available to the public to ascertain the location of the school bus stops.[24] Members of the public, including Chisom, could determine that the presence of buses and a child during school hours indicates a bus stop. Further, one need only contact the school district’s transportation office and ask for the location of a particular school bus stop. We therefore reject Chisom’s contention that RCW 69.50.435 is unconstitutionally vague.

For the foregoing reasons, we affirm the trial court’s ruling in its entirety.

AFFIRMED.

I CONCUR: APPELWICK, J.