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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. ROGER HOLMES, Appellant. No. 68146-0-1 DIVISION ONE

UNPUBLISHED OPINION FILED: June 10. 2013 

### Spearman, A.C.J. — Roger Holmes appeals the sentence imposed for his 

### conviction of felonyviolation of a court order, arguing thatthe trial court violated his right to a jurytrial bydesignating the offense as one of "domestic violence" and by imposing 

### an aggravating factor ofrapid recidivism. In his pro se statementofadditional grounds, Holmes also challenges his conviction. Finding his arguments are withoutmerit, we affirm. FACTS On October 11, 2010, the Seattle Municipal Court issued a no-contact 

### orderprohibiting Roger Holmesfrom contacting hisex-girlfriend, Michelle Garza. The order precluded Holmes from assaulting or "causing or attempting to cause 

### physical harm, bodily injury" to Garza; from "coming near and from having any contact whatsoever" with Garza; and from "entering or knowingly coming withinNo. 68146-0-1/2 or knowingly remaining within 500 feet distance" ofGarza. Report of Proceedings (RP) (10/31/11) at 11-12. The orderfurther provided that Holmes "can be arrested even ifthe person or persons who obtain the order invite or allow you to violate the order's prohibitions." ]d. at 12. On November 16, 2010, Dustin Byers saw a woman and one other person arguing and fighting inside and around a carparked across the street from his home. The argument was "heated" and "seemed violent in nature." RP (10/27/11) at 35. Byers called the police. When he went outside, the carwas driving away, and the woman was lying inthe street. The woman, Garza, told a Seattle Fire Department lieutenantthat she had been injured and thrown from the car by her boyfriend, Holmes. 

### The State charged Holmes with one count of felony violation of a court 

### order.1 The information alleged that the crime was one of domesticviolence, and that Holmes committed the offense shortly after being released from incarceration. Before trial, Holmes sought a bifurcated proceeding where the rapid 

### recidivism aggravating factor would be determined separately afterthe guilt 

### phase of the trial. The State agreed that should the jury return a guilty verdict, the
samejury would be brought back to heartestimony regarding the aggravating circumstance. Atthe close ofevidence on the guilt phase, counsel and the court

1The State also initially chargedHolmes with one count offirst degree robbery for allegedly stealing the car, butlateramended theinformation todrop thiscountbecause itwas unclearwhether Holmes or Garza owned the car.No. 68146-0-1/3 again discussed the process for the bifurcated proceeding on the aggravating factor. Defense counsel conferred with Holmes, who then stipulated to the rapid recidivism aggravating factor. Thejury convicted Holmes offelony violation of a court order. Given Holmes' stipulation, thejury was not asked to determine ifthis was a crime of domestic violence, and instead, the court made a finding that that a "Crime of Domestic Violence as defined in RCW 10.99.020 was pled and proved
.. .." CP at 45. With an offender score of 17, Holmes was subject to the statutory maximum of 60 months. The court imposed a drug offender sentencing alternative with 30 months of incarceration and 30 months of community custody. 

### Holmes appeals his sentence, and in his pro se statement of additional grounds, he challenges his conviction. DISCUSSION Domestic violence designation. Holmes argues the portion of his 

### judgment and sentence that designates hisconviction forfelony violation of a court order as one of "domestic violence" should be stricken because thejury

was never asked to determine whether the crime was one ofdomestic violence. 

### He contends that this designation could lead to increased punishment. We disagree. 

### The rightto a jurytrial, as specifiedin the Sixth Amendment of the United States Constitution and article I, sections 21 and 22 of the Washington 

### Constitution, requires "that a sentence be authorized by the jury's verdict." StateNo. 68146-0-1/4

v. Williams-Walker. 167 Wn.2d 889, 896, 225 P.3d 913 (2010). Thus, due process requires that "[o]therthan the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also Blakelv v. Washington. 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Williams-Walker, 167 Wn.2d at 896-97. In State v. Hagler. 150 Wn. App. 196, 201, 208 P.3d 32 (2009), this court 

### explained thatthe King County prosecutordesignates crimes arising from "domestic violence" in charging documents, so that thejustice system can 

### "'recognize the importance ofdomestic violence as a serious crime against 

### society and to assure the victim of domestic violence the maximum protection from abuse'" (quoting RCW 10.99.010). We also held that this "designation need 

### not be proven to ajury underBlakelv." ]d. (citing Blakelv, 542 U.S. 296, 124S.Ct. 2531: State v.Winston, 135 Wn. App. 400, 406-10, 144 P.3d 363 (2006)). A trial court can make this finding on its own because it"'does not itself alter the 

### elements of the underlyingoffense '" Hagler, 50 Wn. App. at 201 (quoting State v.O.P., 103 Wn. App. 889, 892, 13 P.3d 1111 (2000)). The domestic 

### violence designation, however, would need to be proven to a jury ifit"increases the defendant's potential punishment." State v. Felix, 125 Wn. App. 575, 577, 105 P.3d 427 (2005).No. 68146-0-1/5 Here, itwas the trial court that made a finding of domestic violence, and the parties do not dispute that thejury was not asked to make such a determination. But the trial court's finding did not increase Holmes' punishment, and as such, a jury finding was not required for the domestic violence designation. Hagler. 150 Wn. App. at 201. Holmes nevertheless argues the domestic violence designation must be vacated because, based on a 2010 amendment to the Sentencing Reform Act, the finding could possibly lead to 

### increased punishmentfor future crimes. See Opening Brief ofAppellant at 9 

### (domestic violence finding "will lead to increased punishment should Mr. Holmes be convicted of a new crime involving domestic violence"). 

### Buteven assuming Apprendi applies where a factual determination could 

### increase punishment forfuture, as-yet-uncommitted crimes, the plain language of the statutoryamendment excludes itfrom affecting Holmes. Indeed, RCW 9.94A.525(21)(a) as amended in 2010 affects offender scores only ifthe "domestic violence as defined in RCW 9.94A.030 was plead and proven after 

### August 1, 2011." Here, Holmes' offense was pleadin an information on January 13, 2011, before the August 1, 2011 date specifiedin RCW 9.94A.525(21)(a). The domestic violence designation thus cannot increase Holmes' potential 

### punishment, and the trial court did not err byimposing the designation. Rapid recidivism aggravating factor. Holmes next argues his sentence 

### must be vacated because the rapidrecidivism aggravating factor was not foundNo. 68146-0-1/6 by thejury, and "Mr. Holmes did not waive the right to a trial by jury on this factor, either orally or in writing." Opening Brief at 10. We disagree. A record sufficiently demonstrates waiver ofthe right to a jury trial on an 

### aggravating factor "ifthe record includes either a written waiver signed by the defendant, a personal expression by the defendant of an intent to waive, or an 

### informed acquiescence." State v. Cham, 165 Wn. App. 438, 448, 267 P.3d 528 

### (2011).Additionally, the facts supporting an aggravating factor need not be 

### proven to a jury beyond a reasonable doubtif"the defendant stipulates to the 

### aggravating facts." RCW 9.94A.537(3). In Cham, we held that the defendant's apparent understanding of the role of ajury, combined with defense counsel twicetelling the court the defendant wanted to waive a jurytrial, overcame any presumption of lack of a knowing waiver: Cham's counsel twice told the court that she had consulted with Cham 

### and that he wanted to waive his right to a jurytrial. First, without Cham 

### present, defensecounsel told thecourt, "I spokewith my client and he has agreed towaivejuryfor determining the aggravating factor ofrapid recidivism." Later, with Cham inattendance, defense counsel stated, "[F]or 

### the record, Mr. Cham, after consultation, has waived the presence of the 

### juryfor adecision on theaggravating factor ofrapid recidivism, and, the jury has beendismissed atthis point." Also, during thecourt's colloquy with Cham to determine the adequacy of his interpreters, Cham showed 

### hisknowledge ofthefunction and role ofthejury. As noted bythe State, Cham also invoked hisrightto a jurytrial on the underlying charges twice 

### before agreeing to a bench trial onrapid recidivism. Thespecificfacts of this case, including Cham's colloquywith the court about the role of ajury, 

### hisjurytrial experience, and theunchallenged statements ofhis counsel, overcome any presumption that he did not make a knowing, intelligent, and voluntarywaiver. They establish an informed acquiescence. Cham, 165 Wn. App. at 449. 

### Similar to Cham, the record here shows that Holmes was informed of and 

### acquiesced orstipulatedtowaiving ajurytrial on the aggravating factor ofrapid

6No. 68146-0-1/7 recidivism. Holmes understood the function and role ofthejury. He invoked his right to a jury trial on the underlying charges. He was also presentfor extensive pre-trial discussion and planning for a bifurcated proceeding where the aggravating factor would be determined separately afterthe guilt phase ofthe
trial. Indeed, with Holmes present, the State agreed that should thejury return 

### a guilty verdict, the samejury would be brought back to heartestimony regarding the aggravating circumstance. Atthe close ofevidence on the guiltphase, Holmes was presentwhen counsel and the court, while waiting for thejury to 

### return a verdict, again discussed the process for the bifurcated proceeding on the 

### aggravating factor. At this point, defense counsel conferred with Holmes, who then stipulated to the rapid recidivism aggravating factor: The Court:
... well, let's let Ms. Rivas talk to her client. 

### Ms. Rivas: And, your Honor, Mr. Holmes and Ihad conferred previously aboutthis. Ihave spoken with him again this morning, and Iappreciate the 

### Court's indulgence. We would stipulate to the aggravator should the jury come back with a guilty verdict in this case as itdoesn't add anything to his score. Mr. Holmes has 14 or 15 points listed on his criminal history. It 

### seems unlikely to me the State would fail to prove, youknow, seven of those, which at that point, itwould make a difference forMr. Holmes. So we would stipulate to the aggravator so that becomes an issue. 

### RP (11/1/11) at 6-7. In sum, the facts in the record here establish an informed 

### acquiescence orstipulation to the aggravating factor ofrapid recidivism, and we reject Holmes' arguments on this issue. Statement ofAdditional Grounds. In his RAP 10.10 statement of additional 

### groundsfor review, Holmes argues the police statements in the affidavit ofNo. 68146-0-1/8 

### probable cause were falsified, and that the prosecutor's office committed 

### misconduct by pursing charges based on the affidavit. Given this argument relies upon matters outside the record, it is not reviewable on direct appeal. State v. 

### McFarland. 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995). Holmes next argues that his right to speedy trialwas violated. He does 

### not, however, provide any citations to the record on this issue, or make any specific argument or authority regarding this argument. As such, we are unable to review this argument. See RAP 10.3(a)(6) (appellant must provide "argument insupport ofthe issues presented for review, togetherwith citations to legal authority and references to relevant parts ofthe record"). Finally, Holmes appears to contend his conviction for violation of a nocontact order must be reversed because thejudge who issued the order did not instruct him what to do in a situation where Garza was the person who initiated contact. Holmes' argument is difficult to follow. He does not explain or develop his argument, and his only authorities in support ofthis argument are an unpublished case and a statute, neitherof which are about violation of a nocontact order. To the extent Holmes is arguing the evidence is insufficient to demonstrate he knowingly violated the no-contact order, Holmes has not provided the court with a record adequate for review. To prove this element at trial, the State introduced the no-contact order, as well as a recording of portions ofthe hearing in which the no-contact orderwas entered. Holmes failed to

8No. 68146-0-1/9 designate, however, these exhibits, and as such, we are unable to review this argument. Affirmed.

WE CONCUR: 

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