State Of Washington, Respondent V. Kenneth D. Bolden, Appellant

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Filed
Washington State
Court of Appeals

Division Two

September 16, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 59790-0-II
Respondent,
v.
KENNETH DWAYNE BOLDEN, UNPUBLISHED OPINION
Appellant.

CRUSER, C.J——In 1989, Kenneth Bolden pleaded guilty to three counts of first degree
robbery. As part of his judgment and sentence, the trial court ordered Bolden to pay restitution. In
2023, Bolden filed two motions requesting post-conviction DNA testing. The trial court denied
these motions.

Bolden appeals the superior court’s order denying his post-conviction motions requesting
DNA testing. Bolden argues that (1) his 1989 guilty plea was not knowing and voluntary because
the trial court did not inform him of the restitution amount before he entered the plea and (2) the
trial court abused its discretion by denying his request for a “Brady order setting forth the Pierce

County Prosecutor’s disclosure obligations under RCW 10.73.170”! because Brady v. Maryland,

' Bolden’s brief references RCW 5.70.050, but his motion before the trial court referenced RCW
10.73.170. Compare Br. of Appellant at 5, with Clerk’s Papers at 22. We believe he meant to
reference RCW 10.73.170 in his brief.

No. 59790-0-II
2
373 U.S. 83, 83 S. Ct 1194, 10 L. Ed. 2d. 215 (1963), entitles Bolden to post-conviction DNA
testing. Clerk’s Papers at 22 (capitalization omitted). We affirm.
FACTS
In 1989, Kenneth Bolden pleaded guilty to three counts of first degree robbery. The
affidavit for determination of probable cause described the robberies. When the defendant was
arrested a short time after the first robbery, he was found carrying a paper bag containing several
items belonging to the victim, including her identification card. In three of the four other robberies
described in the probable cause affidavit, the victims later identified Bolden in a photo montage.
The trial court ordered Bolden to pay restitution as part of his judgment and sentence.
In 2023, Bolden filed two motions requesting post-conviction DNA testing. The first
requested DNA testing “pursuant to RCW 10.73.150 and 10.73.170.” Clerk’s Papers (CP) at 17.
In this motion, Bolden contended that “the results of testing evidence would more likely than not
demonstrate the defendant’s actual innocence,” but identified no evidence that should be tested
and provided no explanation as to how DNA would exonerate him. Id. at 18. Nor did this motion
make any of the statements required by RCW 10.73.170(2). The second motion asked the trial
court to “enter a Brady order setting forth the Pierce County Prosecutor’s disclosure obligations
under RCW 10.73.170.” Id. at 22 (capitalization omitted). This motion likewise provided no
explanation for how testing any piece of evidence would probably exonerate Bolden. The trial
court treated both motions as requests for post-conviction DNA testing. In a single order, the trial
court denied both motions on the basis that they did not meet any of the requirements of RCW
10.73.170(2). On appeal, Bolden “seeks review by the designated appellate Court of the[ ] order
on defendant’s motions requesting post-conviction DNA testing, Brady order, Zoom hearing[,]

No. 59790-0-II
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and appointment of counsel.” Id. at 24 (capitalization omitted). Bolden only assigns error to the
trial court’s denial of his motion requesting a “Brady order.” Br. of Appellant at 1.
ANALYSIS
I. DENIAL OF BRADY ORDER
Bolden argues that the trial court abused its discretion by denying his motion requesting a
“Brady order” that would “[set] forth the Pierce County Prosecutor’s disclosure obligations under
RCW [10.73.170].” Br. of Appellant at 5. The State contends that we should decline to review this
assignment of error because (1) Bolden fails to provide an adequate record for review, (2) he fails
to support his arguments with facts and citations to the record, and (3) the trial court did not abuse
its discretion by denying Bolden’s motions. We conclude that the trial court did not abuse its
discretion when it denied Bolden’s request for a “Brady order” because Brady, 373 U.S. 83, is not
an independent basis to request post-conviction DNA testing and because Bolden did not meet the
statutory requirements to compel post-conviction DNA testing under RCW 10.73.170.
A. Legal Principles
Bolden frames his motion to the trial court as a request for a “Brady order.” As explained
by our supreme court in State v. Mullen,
In Brady, the United States Supreme Court articulated the government's
disclosure obligations in a criminal prosecution: “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. In subsequent
years, the Supreme Court expanded the Brady rule’s reach. Favorable evidence
under Brady now includes not only exculpatory evidence but also impeachment
evidence. Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972). Brady obligations extend not only to evidence requested by the
defense but also to favorable evidence not specifically requested by the defense.
United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
The government must disclose not only the evidence possessed by prosecutors but

No. 59790-0-II
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also evidence possessed by law enforcement as well. Kyles v. Whitley, 514 U.S.
419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
171 Wn.2d 881, 894, 259 P.3d 158, 165 (2011).
In Washington, discovery in criminal cases is governed by CrR 4.7, which provides,
(a) Prosecutor's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not
subject to disclosure, the prosecuting attorney shall disclose to the defendant the
following material and information within the prosecuting attorney's possession or
control no later than the omnibus hearing:
(i) the names and addresses of persons whom the prosecuting attorney
intends to call as witnesses at the hearing or trial, together with any written or
recorded statements and the substance of any oral statements of such witnesses;
(ii) any written or recorded statements and the substance of any oral
statements made by the defendant, or made by a codefendant if the trial is to be a
joint one;
(iii) when authorized by the court, those portions of grand jury minutes
containing testimony of the defendant, relevant testimony of persons whom the
prosecuting attorney intends to call as witnesses at the hearing or trial, and any
relevant testimony that has not been transcribed;
(iv) any reports or statements of experts made in connection with the
particular case, including results of physical or mental examinations and scientific
tests, experiments, or comparisons;
(v) any books, papers, documents, photographs, or tangible objects, which
the prosecuting attorney intends to use in the hearing or trial or which were obtained
from or belonged to the defendant; and
(vi) any record of prior criminal convictions known to the prosecuting
attorney of the defendant and of persons whom the prosecuting attorney intends to
call as witnesses at the hearing or trial.
(2) The prosecuting attorney shall disclose to the defendant:
(i) any electronic surveillance, including wiretapping, of the defendant's
premises or conversations to which the defendant was a party and any record
thereof;

No. 59790-0-II
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(ii) any expert witnesses whom the prosecuting attorney will call at the
hearing or trial, the subject of their testimony, and any reports they have submitted
to the prosecuting attorney;
(iii) any information which the prosecuting attorney has indicating
entrapment of the defendant.
(3) Except as is otherwise provided as to protective orders, the prosecuting
attorney shall disclose to defendant's counsel any material or information within
the prosecuting attorney's knowledge which tends to negate defendant's guilt as to
the offense charged.
Under CrR 7.5(a), a convicted person may file a motion for a new trial based on, among
other reasons, newly discovered evidence or the misconduct of the prosecution. Such a motion
must be filed within 10 days after the verdict or decision, or the trial court may extend the time for
filing such a motion in its discretion. CrR 7.5(b).
Under CrR 7.8, a convicted person may file a motion for relief from judgment or order
based on, among other reasons, newly discovered evidence or any other reason justifying relief
from the operation of the judgment. CrR 7.8(b). Such a motion must be filed according to the
procedures outlined in CrR 7.8(c).
A person who is currently serving a term of imprisonment for a felony conviction may
submit a motion requesting DNA testing to the court that entered the judgment of conviction
pursuant to RCW 10.73.170(1). The statute requires that:
(2) The motion shall:
(a) State that:
(i) The court ruled that DNA testing did not meet acceptable scientific standards;
or
(ii) DNA testing technology was not sufficiently developed to test the DNA
evidence in the case; or
(iii) The DNA testing now requested would be significantly more accurate than
prior DNA testing or would provide significant new information;

No. 59790-0-II
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(b) Explain why DNA evidence is material to the identity of the perpetrator of, or
accomplice to, the crime, or to sentence enhancement; and
(c) Comply with all other procedural requirements established by court rule.
(3) The court shall grant a motion requesting DNA testing under this section if such
motion is in the form required by subsection (2) of this section, and the convicted
person has shown the likelihood that the DNA evidence would demonstrate
innocence on a more probable than not basis.
RCW 10.73.170.
We review the trial court’s denial of a motion requesting DNA testing for abuse of
discretion. State v. Riofta, 166 Wn.2d 358, 370, 209 P.3d 467 (2009). A trial court abuses its
discretion if the court’s “ ‘decision is manifestly unreasonable, or is exercised on untenable
grounds, or for untenable reasons.’ ” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)
(quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)). A decision is manifestly
unreasonable if no other reasonable person would make the same decision. Id. A decision based
on untenable grounds occurs if the decision rests on facts unsupported by the record, and a decision
is based on untenable reasons when the court applies the wrong legal standard. Id.
B. Analysis
As we note, Bolden filed a motion that he titled “Motion Requesting Brady Order.” CP at
22 (capitalization omitted). There is no such specific post-conviction motion in Washington. If, by
his motion, Bolden was seeking discovery under CrR 4.7, pretrial discovery was completed in this
case. If, on the other hand, Bolden was purporting to seek a new trial based on newly discovered
evidence under CrR 7.5(a)(3), Bolden neither indicated that nor followed the procedure for filing
such a motion outlined in CrR 7.5(b). If Bolden was seeking to have his judgment vacated under
CrR 7.8, he, again, did not alert the trial court to that fact or follow the procedures for filing such
a motion outlined in CrR 7.8(c).

No. 59790-0-II
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Instead, it is clear from the language used in Bolden’s motion that he actually sought post-
conviction DNA testing without having to satisfy the requirements of RCW 10.73.071. Bolden
asks us to treat Brady as an independent basis to compel post-conviction DNA testing, but he cites
no authority for this proposition.2 The State does not have a continuing obligation to conduct
discovery after the defendant has entered a plea. See CrR 4.7. If Bolden believed that DNA
evidence he did not have at the time of his conviction would exonerate him, the proper course of
action would be to petition the superior court for post-conviction relief through a recognized post-
conviction motion, or request post-conviction DNA testing under RCW 10.73.170.
Here, Bolden requested post-conviction DNA testing under RCW 10.73.170 and a “[Brady
order]” under the same authority. CP at 17, 22. The trial court correctly treated Bolden’s motion
requesting a “Brady order” as a repackaged version of his request for post-conviction DNA testing
under RCW 10.73.170. And the trial court correctly denied both motions because Bolden failed to
make the required statutory showings. Bolden’s motions did not allege any of the procedural
circumstances required by RCW 10.73.170(2)(a), nor did they “[e]xplain why DNA evidence is
material to the identity of the perpetrator” or show the “likelihood that the DNA evidence would
demonstrate innocence on a more probable than not basis.” RCW 10.73.170(2)(b), (3). In fact,
Bolden did not identify, here or at the trial court, a single piece of potentially exonerating evidence
that could be in the State’s possession. Bolden’s attempt to escape the requirements of RCW
10.73.170 by repackaging his request as a Motion Requesting Brady Order is unavailing. We
2 Where, as here, “no authorities are cited in support of a proposition, the court is not required to
search out authorities, but may assume that counsel, after diligent search, has found none.” DeHeer
v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).

No. 59790-0-II
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conclude that the trial court did not abuse its discretion when it denied Bolden’s request for a
“Brady order” compelling post-conviction DNA testing.
II. INVOLUNTARY PLEA
Bolden argues that his plea was not knowing and voluntary because the trial court failed to
inform him of the restitution amount prior to entering the plea agreement. The State contends that
this assignment of error is outside of the scope of review. We agree with the State.
Generally, we review the decision designated in the notice of appeal. RAP 2.4(a). We will
review a trial court order not designated in the notice of appeal if the order prejudicially affects
the decision designated in the notice and the order was entered before we accept review. RAP
2.4(b). Here, Bolden appealed the trial court’s 2023 order denying his motion to compel DNA
testing. The initial plea agreement is not designated in the notice of appeal. Bolden makes no
argument explaining how his initial plea agreement prejudicially affects the trial court’s decision
regarding his motions for post-conviction DNA testing. Accordingly, Bolden’s argument related
to the voluntariness of his plea is outside of the scope of his appeal and we do not address it further.
CONCLUSION
We conclude that the trial court did not abuse its discretion when it denied Bolden’s motion
for a “Brady order.” Further, we decline to consider Bolden’s argument related to his plea
agreement because his plea is outside of the scope of appeal. We affirm the superior court’s order
denying Bolden’s motion for post-conviction DNA testing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.

No. 59790-0-II

CRUSER, C.J.
We concur:
J
GLASGOW, J: J
> 2. 5 -
PRICE, J.