STATE v. MAULE, 124 Wn. App. 1051 (2004)

No. 53818-7-IThe Court of Appeals of Washington, Division One.
Filed: December 27, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No. 00-1-00414-8. Judgment or order under review. Date filed: 01/29/2004. Judge signing: Hon. Nicole K MacInnes.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Donald Ir Maule — Doc #218513 (Appearing Pro Se).

Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor’s Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.

PER CURIAM.

After an appeal and a remand for resentencing on convictions for child molestation and sexual exploitation of a minor, the court ordered Donald Maule to provide a biological sample for DNA identification. Maule argues that this order violates his Fourth Amendment right to be free from unreasonable searches. He also argues that there is no authority for using a cheek swab to collect such a sample. In a pro se statement of additional grounds which refers to a separately filed personal restraint petition (PRP), Maule contends that his counsel was ineffective in his first appeal for failing to raise certain issues, that his counsel was ineffective at trial for failing to argue a speedy trial issue and a search and seizure issue, and that his constitutional rights were violated when a prosecuting attorney from another jurisdiction served as the foreman on his jury. In this appeal, we do not address the issues raised in the statement of additional grounds, leaving them for consideration in the PRP. We affirm on the issue raised by counsel.

The underlying facts are set out in Maule’s first appeal. State v. Maule, 112 Wn. App. 887, 51 P.3d 811 (2002). In the published portion of the appeal we addressed the procedure used by the trial court to determine if the primary witness against Maule was competent. In the unpublished portion of the case we addressed an ER 404 evidentiary issue regarding the admission of child pornography found on Maule’s computer, a claim that trial counsel was ineffective for failing to propose a limiting instruction regarding the use of this evidence, a sentencing issue concerning the Persistent Offender Accountability Act (POAA), and a speedy trial issue which Maule raised pro se. We rejected additional pro se arguments concerning Maule’s absence from hearings on motions to extend the speedy trial period, a challenge to the sufficiency of the evidence, an allegation that Maule was prejudiced by the late filing of an amended information, a prosecutorial misconduct claim, a challenge to the trial court’s subject matter jurisdiction, and a bail question. We declined to review claims that defense counsel altered documents and that the police unlawfully obtained probable cause for a search warrant because those claims rested on facts outside the record. Maule sought review of our decision in the Supreme Court, which granted review and remanded for reconsideration of the POAA issue. We amended the opinion and remanded the matter to the trial court for resentencing. The present appeal is taken from the decision on resentencing.

Maule contends that RCW 43.43.754, which requires him to provide a biological sample for DNA identification, violates his Fourth Amendment right against unreasonable searches. This issue is controlled by State v. Surge, 122 Wn. App. 448, 94 P.3d 345
(2004). Maule also contends that cheek swabbing is not an authorized method of collecting biological samples. This issue is controlled by State v. S.S., 122 Wn. App. 725, 94 P.3d 1002
(2004). We therefore reject these arguments.[1]

In his pro se statement of additional grounds, Maule contends that his trial counsel, his first appellate counsel, and his second appellate counsel were ineffective for refusing to argue speedy trial and unlawful warrant issues at trial and in either of his appeals. Maule implies that the trial court erred in refusing to consider his pro se motions regarding these issues. In passing, Maule contends that his constitutional rights were violated when a prosecuting attorney from another jurisdiction served as the foreman on his jury. In his statement of additional grounds, Maule presents some argument but appears mainly to rely on his PRP.

Maule’s PRP was opened under cause number 54317-2-I. The argument Maule has submitted for the PRP is much more extensive than the statement of additional grounds he submitted in the appeal. Moreover, Maule lists two additional grounds for review in his statement (although he appears to be raising more than two issues) but lists nineteen grounds for relief in his PRP. On September 30, 2004, this Court stayed consideration of the PRP pending resolution of the appeal.

As we noted in Maule’s first appeal, it is not appropriate to consider in a direct appeal matters that depend on facts outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995). Moreover, as this is Maule’s second appeal, the issues he may now raise are limited. State v. Worl, 129 Wn.2d 416, 424-26, 918 P.2d 905 (1996). Finally, the issues raised in the statement of additional grounds do not appear to relate to the resentencing but rather to earlier proceedings. Under the circumstances, we deem it inappropriate to consider the issues raised in Maule’s pro se statement in this direct appeal or to decide the PRP issues by consolidating the matters or considering all or part of the PRP briefing by reference. Maule may pursue these issues in the context of his PRP, subject to the whatever limitations may bar issues that were or could have been raised previously.

Affirmed.

COLEMAN, J., GROSSE, J. and BAKER, J.

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