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February 2018 decisions

Advance Sheet Summaries for WACDL

Prepared by Mark W. Muenster

Cases decided Feb. 1 through Feb. 28, 2018


State v. Buckman, 93545-9, decided Feb. 1, 2018

Buckman pled guilty to second degree rape of a child. He was told, incorrectly, that he could be facing a potential life sentence, based on RCW 9.94A.507. However, since he was 17 at the time of his consensual sexual relationship with a 13 year old, he was not subject to the indeterminate sentence, but only to the standard range. He moved to withdraw the plea based upon the misinformation.

The court holds that he was misinformed, and so the plea was involuntary, but since this was considered a collateral attack under CrR 7.8, he also had to show actual and substantial prejudice. The majority holds that he failed to show prejudice, in that he did not show that, but for the mistaken sentencing advice he would have taken the case to trial. The majority does not take Buckman at his word on this, but evaluate what a reasonable person in his situation would have done. Since there was what the majority characterized as overwhelming evidence he had sexual relations with the girl, success at trial was highly unlikely, absent nullification.

The dissent would hold that the plea was involuntary and that Buckman had shown prejudice through his statements that he would have asserted his right to trial if he had known he was not facing the potential for a life sentence. The dissent would remand for a reference hearing on this point.

State v. Petterson, 94439-3, decided Feb. 1, 2018

This case represents a win for the trial court’s authority to modify a SSOSA sentence, even after the treatment termination hearing has taken place. DOC had advocated for sole control over the conditions after the successful completion of treatment.

“We hold that after imposing SSOSSA, courts retain jurisdiction and may modify discretionary community custody conditions even after treatment is terminated.”

In re Fero, NO. 92975-1, decided Feb. 1. 2018

You have to count judicial noses carefully to determine the practical outcome of this case, but one of the concurring justices complains that it leaves intact the COA ruling granting relief to Heidi Fero. There is a lead opinion authored by Justice Gonzales, and signed by three others, which purports to dismiss the petition as untimely filed. There is a concurrence by Justice Yu, who complains that the fractured decision leaves the COA decision intact. Justice Stephens joined the portion of the lead opinion that gave the state a pass on its procedural mistake, but also joins Justice Gordon-McCloud’s dissent, which would remand for a reference hearing on the newly discovered evidence issue. Justice Fairhurst joined this dissent.

Justice Madson dissents regarding the lead opinion’s extension of the time to file for review (see discussion below) and thus does not reach the merits of whether the medical evidence proffered in the PRP was newly discovered or would change the outcome. She was joined by Justice Wiggins.

The court first has to grapple with a procedural issue, which was whether the state sought review in a timely fashion after the adverse (to the state) COA decision. The State had filed a motion for reconsideration in the COA , and apparently thought that such a motion stopped the clock for seeking discretionary review. If this had been a direct appeal, the state’s position would have been correct, and the clock would have stopped on the 30 days to file for review until the COA ruled on the motion for reconsideration. Since this was a PRP however, the clock was not stopped, and the “petition for review” the state filed was untimely.

The lead opinion allows this untimely filing under the “waiver of the rules” section of RAP 1.2, conveniently ignoring the stringent restriction on extensions of time for petitions for review under RAP 18.8, a fact pointed out by Madson’s dissent. Justice McCloud’s dissent would allow the untimely filing, but disagrees with the lead’s conclusion that the filing was in fact timely.

On the merits:

Fero was convicted of assault of a child in 2002, and the conviction rested heavily on testimony about the so-called “Shaken baby syndrome” which was the state of the art explanation for pediatric brain injuries for children at the time. The science has since evolved considerably, and her PRP was based on the new science which casts doubt on two key facts in the case: the period of lucidity after an injury, and the types of events that can cause traumatic brain injury, such as a “short fall.”

The lead plurality decision says that the new medical evidence is insufficient to meet the criteria of “newly discovered evidence” because it would not likely change the result. It relies on the fact that there was no evidence of an accidental injury, and that there were other injuries to the child such as a broken leg. At trial, the defense had suggested that the injuries to the child may have been caused by her brother. Since the PRP was filed more than a year after the conviction was final after direct appeal, it is time barred,according to the lead plurality opinion.

Justice Gordon-McCloud’s dissent reviews the trial evidence and the proffered new medical evidence extensively, and would remand for a reference hearing, which among other things would decide whether Fero exercised due diligence in discovering the “paradigm shift” in the medical science of childhood traumatic brain injury.

State v. Lopez, No. 94418-1, decided Feb. 15, 2018

This decision reverses an unpublished COA decision on Lopez’s IAC claim. The trial court had granted a motion for new trial, because Lopez’s lawyer, who was suffering from severe depression, showing up late (or not at all) for court, and ignoring his investigator’s information about the case. The COA decision was grounded on it determination that the only basis the trial court had identified was failure to secure reputation witnesses, which in its view would not have been admissible anyway, despite conflicting law on this point in the other two divisions of the COA.

An ineffective assistance of counsel (IAC) claim is a mixed question of fact and law, and therefore the court’s review is de novo, rather than deferential to the trial court’s discretionary decision to grant a new trial. The court rejects the idea that the existence of an attorney’s mental illness creates ineffectiveness per se. But instead, the court looks to what effect the illness had on the effectiveness of the representation.

The majority in this 5-4 decision found that the trial lawyer was both ineffective and that his ineffectiveness caused prejudice, and thus upholds the trial court’s grant of a new trial.

A blistering dissent authored by Justice Johnson and joined by three others, points out the good points of the representation, and that the majority’s characterization of the deficiencies does not amount to ineffective assistance, let alone showing prejudice.

In re Arnold, NO. 94544-6, decided Feb. 15, 2018

Arnold was convicted for failure to register as a sex offender. He pled guilty to second degree statutory rape in 1988. The statute was subsequently repealed and replaced with the analytically similar crime of rape of a child in the second degree. When the registration statute was created in 1990, sex offenses requiring registration were defined in three categories, one of which covered sex offenses for statutes in effect at any time before 1976 that were “comparable” to current sex offenses in RCW 9A.44.

Shortly after his sentencing for the failure to register, Arnold was told that by the Spokane County Sheriff that he did not have to register, based on the decision from Division One in State v. Taylor, 162 Wn. App. 791, 259 P.3d 289 (2011). The Taylor court had held that persons convicted of the repealed statutory rape statutes fell into a “gap” in the registration statute. Taylor was subsequently followed by a similar holding from Division Two, In re Wheeler, 188 Wn App. 613, 354 P.3d 950 (2015). Arnold filed a motion to withdraw his plea which was transferred to Division Three as a PRP. That court granted relief, based on Taylor and Wheeler, which it felt compelled to follow on the basis of what it called “horizontal stare decisis“.

The Supreme Court reverses in a 9-0 decision, holding that the old sex offense statutes fit within the pre-1976 category, and that they are “comparable” to the current 9A.44 sex offenses. The court notes in passing in a footnote that Arnold had not challenged several other failure to register convictions before this one, any of which would support a conviction independently of the statutory rape conviction.

Having disposed of the main issue, the court then demolishes the idea of “horizontal stare decisis“:

“We reject any kind of “horizontal stare decisis” between or among the divisions of the Court of Appeals.” Instead, the divisions of the Court of Appeals can give “respectful consideration” to decisions of another division, but they are not binding precedent.

In re Phelps, NO. 94185-8, decided Feb. 22, 2018

In this PRP, the Supreme Court reverses a COA decision which granted a new trial based on prosecutorial misconduct. The misconduct was the repeated use of the term “grooming” in the prosecutor’s argument and power points. There was no expert testimony on “grooming”, but there was extensive evidence about how Phelps, a high school coach, had cultivated a relationship with one of the students he was coaching, culminating in non-consensual sex.

The majority holds that there was no misconduct in the closing, and that the prosecutor’s rhetoric was just a fair summation of the evidence. Just to make sure, the court holds that since there was no objection during the closing, the defendant would have to show that the misconduct was flagrant, and could not be cured by an instruction. He would have failed on both these hurdles, had he cleared the first one.

The practice tip here is to object during the closing, so that the client does not face a higher hurdle both in direct appeals, and PRPs. This issue was apparently not raised on direct review, and the Supreme Court had denied review on direct appeal.

There is no dissent, but the concurring opinion (Fairhurst, joined by Wiggins and Madsen) expresses reservations about the admissibility of expert testimony on this topic, and would have found misconduct, but “reluctantly” concurs in the result because Phelps could not show there was a substantial likelihood that the misconduct affected the verdict.


State v. Brooks, No. 35002-9, decided Feb. 1, 2018

It is a while into this decision before we actually hear what Brooks was being prosecuted for, which turns out to be driving while suspended and “other misdemeanors.” She was stopped for entering the “neutral zone”, the triangular patch between an on-ramp and the main part of the highway. The court provides a nice diagram. Most troopers usually say that the driver crossed the “gore point”, which is also in the diagram.

The two parts of the decision analyze whether this lane travel violated the “wheels off roadway” statute or the “traffic control device” statute. The majority holds it was the former, the concurrence says the latter. Either way, the driver, who won in the Superior Court, loses here and the case is remanded to the District Court for a trial.

This case represent the prevailing trend away from the victory in State v. Prado, allowing traffic stops and prosecutions based on very marginal driving behavior.

State v. Dunleavy, 34762-1-III, decided Feb. 6, 2018

Prosecution for burglary for entering another inmate’s cell in a jail and stealing food from him.

The court examines the definition of “building” and determines that jail cells within a jail building are each a separate “building ” for the purposes of the burglary statute.

Dunleavy also argued that the judge coerced a verdict in its response to a note from the jury which suggested trouble reaching unanimity. No objection was made to the court’s response, which was basically, “go back and deliberate.”

Since no objection was made, Dunleavy argued manifest constitutional error under RAP 2.5 (a). The court held that while the issue was constitutional, it was not “manifest” in the sense that there was no identifiable and actual prejudice. Consequently, the issue is not reviewable.

State v. Townsend, 34984-5-III , decided Feb. 6, 2018

The issue in this case is whether there has to be an evidentiary hearing before the court can find a breach of a plea agreement by the defendant. A split panel holds that there must be an evidentiary hearing with more than a probable cause affidavit as proof of the breach.

The defendant had entered into a favorable plea bargain, conditioned in part on the commission of no new offenses between the plea and the sentencing. The agreement provided in the event of breach that the prosecutor could make a much harsher recommendation. The state alleged that Townsend had violated the plea agreement by committing new offenses and offered as proof the fact that a court had issued a warrant for his arrest, based on a PC affidavit from the police.

The defendant denied he had committed any new offenses and told the court he had hired counsel to defend against the new charges. The court found the plea bargain had been breached by the unproven conduct.

The divided panel opinion holds that an evidentiary hearing was required, and what did take place instead, the mere consideration of the affidavit, did not satisfy due process. The court also holds that Townsend did not by his conduct waive a challenge to the evidence. The dissent would have held that the hearing that was held was sufficient to establish the breach of the plea agreement.

State v Pinkham, No. 34438-0-III, Decided Feb. 6, 2018

Prosecution for having a loaded firearm in a vehicle under the game code.

The court says little about the situation which led to the charge, other than the game warden came upon Pinkham field dressing an elk. The charging document injected a knowledge element into the case, but the trial court did not require this in the elements instruction, ruling that the statute was strict liability.

The panel reviews the factors from State v. Bash, 130 Wn. 2d 594 (1996) regarding whether a statute can define a strict liability crime. The panel concludes after consideration of these factors that this is a strict liability crime, and upholds the conviction.

State v. Inman, 49174-5, motion to publish by WAPA granted February 6, 2018

Prosecution for vehicular assault arising out of a motorcycle accident.

Blood was drawn from the driver without a warrant. The state relied on exigent circumstances.

The panel first finds there was probable cause to arrest Inman for DUI, based on the accident and that Inman admitted drinking alcohol. The panel then finds that exigent circumstances existed because it would have taken 45 minutes to try to obtain a warrant, and cell phone coverage was sketchy in the area of the crash, a “rural road” somewhere in Jefferson County. The court also speculates that Inman’s treatment in a hospital may have eliminated the opportunity for the police to get an untainted sample of Inman’s blood. The court does not address whether the implied consent statute came into play or was valid. Finally, the court holds that where there are exigent circumstances, no warrant is required, distinguishing Birchfield v. North Dakota, and Riley v. California, both of which the court characterizes as search incident to arrest cases, not exigent circumstances cases.

State v. Braa, No. 75903-5-I, decided Feb. 12, 2018

Denial of motion for DNA testing. Braa’s conviction for manslaughter had been affirmed in an earlier unpublished opinion, which is summarized in this one. Braa shot a man in the back after being beaten up by the man in a tavern fight. He sought testing of blood found in the parking lot of the tavern, which he said would support his theory that the other man had been close to him at the time of the shooting instead of 30 feet or so away.

The panel first rejects the state’s argument that DNA testing is not available, categorically, in self-defense cases. The panel goes on to hold that Braa did not meet his burden to show that successful testing would likely have changed the result of the case, citing the other forensic and other evidence which placed the victim about 30 feet from where Braa was, and which established Braa had fired from a standing position, rather than from a lying down position as he now claims.

State v. Mason, 75408-4-I, decided Feb. 12, 2018

Prosecution for multiple counts of voyeurism, for filming male and female housemates in the bathroom. Mason argues that the unit of prosecution is related to the person filmed, not the number of times they are filmed. The court disagrees and finds that the unit of prosecution is related to the number of videos. In the unpublished part of the opinion, some of the conditions of community custody are stricken.

State v. Dreewes, No. 74055-5-I, decided Feb. 8. 2018

Prosecution for first degree burglary and second degree assault, with firearm enhancements.

Dreewes’ property was stolen by a women originally unknown to her. She was charged as an accomplice for soliciting a friend and another person to go into a house and collect her property, which she thought had been cached there by the thief. The prosecutors put the name of a specific victim in the “to convict” instruction on the assault count. Although the court says there was substantial evidence to prove that Dreewes was an accomplice to an assault on somebody, there was not sufficient evidence she had knowledge of the specific assault that was charged and instructed upon. The state is thus tripped up by the “law of the case” doctrine, and was stuck with proving the unnecessary element it placed in the instructions. See State v Hickman, 135 Wn. 2d 97, 954 P.3d 900 and State v. Johnson, 188 Wn. 2d at 742, 399 P.3d 507 (2017).

The remainder of the case is unpublished, but discusses the admissibility of Facebook posts and other social media with regard to the authentication of such messages

State v Butler, 75410-6-1, decided Feb. 20, 2018

A good Terry stop decision.

Defendant was a passenger in a car that stopped ahead of a car the police stopped for wobbly driving. Butler jogged off in the opposite direction of the officer who stopped the other car, and into some woods, disobeying a command to stay at the scene. The first officer did not pursue, but asked other officers to stop the passenger, whom he thought “might” have warrants. The first officer later sees the man again, and updates his location. Later a K-9 officer sees Butler on the front porch of a nearby house and tells him to “come over “to him. Butler complied. He was identified and in fact did have a warrant, and was arrested. A search of his person revealed heroin and methamphetamine.

The trial court denied a motion to suppress, holding that the initial seizure by the first officer had terminated, and that the second was a “social contact” and thus not unlawful.

The COA panel concludes the initial command to stop by the first office constituted an unlawful seizure. They hold that the second seizure was a continuation of the first, and thus unlawful.

Just for good measure, the panel also analyzes the second seizure on its own and holds that it was unlawful, and not merely a “social contact.” The second officer did not have any further facts available to him than the first, since they had never confirmed whether there was a warrant for the person who walked away from the first encounter.

The court reverses the conviction and dismisses.

State v. Pinkney, NO. 49261-0-II, decided Feb. 21, 2018

Defendant is prosecuted for felony harassment, found guilty on lesser of misdemeanor harassment. He challenges the sufficiency of harassment based on non-verbal conduct, namely shaking his fist in his ex-wife’s face and “growling ” at her. The panel holds non-verbal conduct can constitute a “threat” under the statute, and holds the evidence is sufficient.

Defendant argues the prosecutor misstated the law during closing argument. This argument fails because the prosecutor could argue that non-verbal conduct could constitute a threat.

Pinkney’s third argument, based on the corpus delicti rule for admissibility of defendant’s statements., fails because there was corroboration of his conduct from the victim’s statement which satisfies the rule for admissibility.

In re Brock and In re Nelson, decided Feb. 26, 2018

These are motions for discretionary review in related SVP proceedings.

Issue is whether the state can rely on psychological evidence other than the annual report in making its case at a show cause hearing that a “patient” is not entitled to a trial on his release.

“We hold that at a show cause hearing under RCW 71.09.090(2)(b), the prosecuting agency is free to rely on experts of its choosing rather than relying exclusively on annual evaluations prepared under RCW 71.09.070.”

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