STATE v. WALKER, 124 Wn. App. 1007 (2004)

STATE OF WASHINGTON, Respondent, v. RAY WALKER, a/k/a CARL S. ANDERSON, Appellant.

No. 53649-4-IThe Court of Appeals of Washington, Division One.
Filed: November 8, 2004 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County. Docket No. 00-1-09271-3. Judgment or order under review. Date filed: 12/22/2003. Judge signing: Hon. Philip G Jr Hubbard.

Counsel for Appellant(s), Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

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.

Ray Walker appeals the judgment and sentence entered by the trial court on resentencing. We affirm.

In 2001 Walker was charged and convicted in a bench trial of burglary in the first degree. Based on an offender score of 10, the standard range was 87 to 116 months. The court imposed a sentence of 90 months. Walker appealed. The State conceded that Walker’s offender score was incorrect. The court affirmed the conviction, granted accelerated review of the sentencing issue, and remanded for resentencing.[1]

On remand, the parties initially disagreed as to Walker’s offender score. The State argued it was 8; defense counsel and Walker argued it was 6. The court concluded that the offender score was 6, resulting in a standard range of 57 to 75 months, and imposed a sentence of 60 months.

Walker appealed. Appointed counsel filed a brief arguing only one issue, that the portion of Walker’s sentence requiring him to provide a biological sample for DNA identification violates the Fourth Amendment. Recently, in State v. Surge[2] we rejected this argument.

Walker filed a pro se statement of additional grounds for review. He argues that his counsel should not have raised the non-meritorious DNA challenge, but should have raised a challenge to “want of jurisdiction.”[3] He argues that counsel has provided ineffective assistance on appeal and counsel’s actions have the effect of denying him his right to appeal.

An attorney need not advance every argument, regardless of merit, urged by the appellant.[4] Because this is Walker’s second appeal following a remand for resentencing, the potential issues on appeal are very limited. Walker has done nothing more than identify the “want of jurisdiction” issue, which is inadequate to permit review.[5] Walker has demonstrated neither deficient representation, nor prejudice.[6] In short, he has failed to overcome the presumption that appellate counsel provided effective representation.[7]

The judgment and sentence is affirmed. Costs shall not be awarded for this appeal.

GROSSE, J., COX, C.J. and ELLINGTON, A.C.J.

[1] State v. Ray Walker, No. 49520-8-I.

[2] State v. Surge, Wn. App., 94 P.3d 345 (2004) (holding that State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993) is controlling and binding on this court).

[3] Before the decision in Surge was filed, Walker moved to strike counsel’s opening brief, arguing that counsel’s brief raised no meritorious issues and failed to raise the jurisdiction issue. A commissioner denied the motion to strike without prejudice for Walker to present any arguments in his pro se statement of additional grounds for review. After Walker filed a memorandum in support of his motion to strike, a commissioner again denied the motion to strike and also denied Walker’s effort to disqualify counsel.

[4] State v. Frampton, 45 Wn. App. 554, 562 n. 8, 726 P.2d 486
(1986) (citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

[5] RAP 10.10 (appellate court will not consider a defendant/appellant’s statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors).

[6] Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

[7] See Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (it is possible to bring a Strickland claim based on counsel’s failure to raise a particular argument, but it is difficult to demonstrate counsel was incompetent; generally only when ignored issues are clearly stronger than those presented will the presumption of effective assistance be overcome).

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