No. 45103-1-I.The Court of Appeals of Washington, Division One.
Filed: July 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 98-1-02164-5, Hon. Charles S. French, July 22, 1999, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas M. Kummerow, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Karen D. Moore, Sno Co Pros Aty M/S 504, 3000 Rockefeller Ave, Everett, WA 98201.
Kenneth A. Schiffler, 600 University St, Seattle, WA 98101-4170.
George F. Appel II, Sno Cty Pros Atty M/S 504, 3000 Rockefeller Ave, Everett, WA 98201-4060.
PER CURIAM.
Marvin Nickell appeals from the judgment and sentence entered following a conviction for eight counts of violation of a no-contact order. Nickell’s court-appointed attorney has filed a motion to withdraw on the ground that there is no basis for a good faith argument on review. Pursuant to State v. Theobald[1] and Anders v. California,[2] the motion to withdraw must:
[1] be accompanied by a brief referring to anything in the record that might arguably support the appeal. [2] A copy of counsel’s brief should be furnished the indigent and [3] time allowed him to raise any points that he chooses; [4] the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.[3]This procedure has been followed. Nickell’s counsel on appeal filed a brief with the motion to withdraw. Nickell was served with a copy of the brief and informed of a criminal appellant’s right to file a pro se supplemental brief. Nickell filed a supplemental brief and counsel filed a response.
The facts are accurately set forth in counsel’s brief in support of the motion to withdraw. The court has reviewed the briefs filed in this court and has independently reviewed the entire record. The court specifically considered the following potential issues raised by counsel:
1. Did the information adequately apprise Nickell of the nature and cause of the offenses charged?
2. Did the trial court err in granting trial continuances over Nickell’s objection?
3. Did the trial court err in refusing to sever the violation of no-contact order counts from the assault count?
4. Did the trial court abuse its discretion in admitting into evidence a certified copy of the no-contact order?
5. Did the trial court abuse its discretion in failing to declare a mistrial?
6. Was the evidence sufficient to prove Nickell intentionally violated the no-contact order?
7. Did the trial court err in requiring Nickell to undergo evaluations for substance abuse and domestic battery as conditions of probation?
The court also considered the issues raised by appellant pro se:
1. Did the trial court abuse its discretion in denying a motion for mistrial based on testimony regarding three strikes?
2. Did the trial court err in admitting welfare records into evidence?
3. Did the trial court err in admitting evidence of telephone calls because of a lack of proof regarding the recipient of specific calls?
4. Did the trial court lack jurisdiction over the violation of no-contact order charges?
5. Did Nickell have adequate notice of the effective conditions of the no-contact order?
6. Did the conditions of the no-contact order punish Nickell for conduct which was not yet proven?
7. Should Nickell have been allowed to talk to Ms. Chapman while she was listed as a possible defense witness?
8. Did the prosecutor commit misconduct by lying to the judge and jury and shifting the burden of proof in closing argument?
9. Did defense counsel’s statement during closing argument that there was no question that there was contact constitute ineffective assistance of counsel?
10. Did the trial court err in running the sentences for violation of co-contact order consecutively rather than concurrently?
11. Did the trial court err in imposing conditions that Nickell have no contact with his son and that he have alcohol and batterer’s evaluation and treatment?
12. Did the trial court sentence Nickell for the crime of which he was acquitted as well as those of which he was convicted?
The court also raised and considered the following potential issue:
Did the trial court’s failure to inform Nickell of his right to appeal deprive him of this constitutional right?
The potential issues are wholly frivolous. Counsel’s motion to withdraw is granted and the appeal is dismissed.