MEMORANDUM OPINION
TERRY McCALL, Justice.
The jury convicted Jonathon Todd Miles of the aggravated sexual assault of his sixteen-year-old cousin and of her fifteen-year-old friend. The jury assessed his punishment at confinement for fifty years in each case. We affirm. Issues on Appeal At trial, appellant did not deny that he had sex with both girls. He did deny that he threatened either girl and maintained that the intercourse was consensual in that neither girl was threatened and both girls were willing participants. On appeal, appellant contends in a sole issue in each case that the evidence is both legally and factually insufficient to support his convictions for aggravated sexual assault. Specifically, appellant argues that there is insufficient evidence of any aggravating factors such as threats. Applicable Law TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009) provides that a person commits aggravated sexual assault when he intentionally or knowingly commits sexual assault as defined by TEX. PENAL CODE ANN. § 22.011 (Vernon Supp. 2009) along with an aggravating factor such as placing the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person or threatening the victim that he would cause the death, serious bodily injury, or kidnapping of any person. Section 22.021 further provides that either the acts or the words of the defendant may convey the aggravating factors. Standards of Review In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275 S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses' testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Due deference must be given to the factfinder's determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The appellate court reviews the factfinder's weighing of the evidence and cannot substitute its judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Evidence at Trial Appellant's cousin testified that, the day after her sixteenth birthday, she had gone to a high school football bonfire with appellant, her friend, her brother, and her brother's girlfriend. Appellant drove. Appellant was drinking, but neither she nor her friend were. After the bonfire, they all went to the travel camper where her brother and his girlfriend lived. At some point, her friend yelled out for her. Her friend looked frightened and said she needed to talk to her. Someone took them home. Her friend was very quiet and never did tell her anything. Four days later, she was back at her brother's camper. Appellant was there. People were drinking mixed drinks, and she tasted one. She went outside to smoke, and appellant followed her. She had decided to walk home when appellant grabbed her by her hair. Appellant told her, "You know you want this." Appellant said it three or four times. She tried to get away, but he pulled her down to the ground. She thought that appellant was going to kill her. Appellant then pulled off her pants and underwear. He put his hand over her mouth and told her that, if she screamed, he would hit her. Appellant then penetrated her vagina with his penis. It hurt. Appellant then turned her around and "kept on going." His cousin testified that, when "he was done," appellant told her "not to worry, he didn't go inside" her so she would not get pregnant. Appellant also told her that this would bring them closer together. Appellant's cousin testified that she was scared the whole time and did not tell anyone until her mother saw the scratches and bruises on her back a few days later. She made a statement to the police and then went to the hospital where she was in a psych ward. She said that, after the attack, she just wanted to die. Appellant's cousin's friend testified that she was fifteen when she went to the bonfire with appellant, appellant's two children, his cousins — her girlfriend and the girlfriend's brother — and the brother's girlfriend. She had not met appellant before that night. He told her that night that he was twenty-two years old. At the bonfire, appellant gave her a beer to hold. Her brother saw that, became upset, and had words with appellant. The principal and the band director came over and told appellant to leave. After that, they went to the camper where appellant's male cousin lived with his girlfriend. They were all outside talking when appellant told her to come inside because he wanted to talk to her about her brother. Appellant closed the door, locked it, and asked her if she wanted to have sex with him. She told him "no" and went around him. He put both of his hands on her chest and pushed her down hard enough on the bed to hurt her. He held her hands over her head with one of his hands and put his other hand over her mouth. He told her that, if she screamed, he would kill her "right then." She was afraid that she was going to die. Appellant took his hand from her mouth and removed her pants and underwear. He climbed on top of her and put his penis in her vagina. She testified that, while he was on top of her, "[h]e had the worst grin on his face ever." She described it as "like the deadliest scary grin" and like he "was getting his satisfaction." After appellant ejaculated, he told her to go out to her friend and that, if she said anything, he would come kill her and her brother. Appellant testified that he had had sex with both girls. Appellant testified that, after the bonfire, no one stayed outside and that everyone went inside the camper. It was really tiny and they all "packed" inside. His sons were playing video games. He did not ask his cousin's girlfriend to come inside. Instead, she came in, and everybody but his sons left. She closed the door and asked him if he wanted to "do it." Appellant pointed to his sons, and she said that they could get under the blankets. She took her pants off under the blankets so that his sons would not see. He took off his pants but kept his boxers on. They were having sex when his boys looked over and there was a knock on the door. Appellant stated that he never restrained her, never threatened her, never hit her, never put his hands on her chest, and never threatened to kill either her or her brother. Appellant testified that a few days later he was back at the camper "[c]hilling" and drinking screwdrivers. His sixteen-year-old cousin had asked him if he wanted a back massage. While she was rubbing his back, he turned around and she massaged his "front side." He decided to go out to his truck to get a shirt. His cousin came outside also. They were talking when his five-year-old son came out of the camper. Appellant told his son to go back inside and play video games. Appellant said that his cousin was telling him that he should stay with his current girlfriend and "not get back with [his] first baby mom." Appellant testified, "[S]omehow it got in, you know, to me and her, and I cannot tell you the exact words, but I can tell you exactly what happened." Appellant then described how his cousin took off her pants and thong. She then said, "Let's get on the ground." While they were having sex, his cousin wanted to get on top. Appellant testified that at first he enjoyed having sex with her. When they were through, his cousin got up and walked home. Appellant testified that he did not threaten or hit his cousin, that he did not pull her hair, and that he did not throw her on the ground. Analysis Both victims described how appellant threatened them and how his actions made them fear for their lives. Appellant admitted to having sex with them but denied making any threats or threatening actions toward either girl. The jury as the finder of fact was the sole judge of the weight and credibility of each witness's testimony. As such, the jury could believe all, some, or none of a witness's testimony. This court has the authority to disagree with the factfinder's determination "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. After reviewing the evidence in the light most favorable to the verdict, we find that a reasonable factfinder could conclude that appellant committed both offenses. The evidence is not legally insufficient. When we view all of the evidence in a neutral light, we find that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. The evidence is factually sufficient. The issues before this court are overruled. Holding The judgments of the trial court are affirmed.
11-09-00166-CR.
11-09-00165-CR.
's unprofessional errors, the result of the proceeding would have been different," but the appellant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case."
Strickland v. Washington, 466 U.S. 668, 694, 693,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). In a PRP, the petitioner usually must show by a preponderance of the evidence that the ineffectiveness claim is supported by a constitutional error that worked to his actual and substantial prejudice or a nonconstitutional error that results in a complete miscarriage of justice.
Davis, 152 Wn.2d at 672;
In re Pers. Restraint of Brett, 142 Wn.2d 868, 874, 883,
16 P.3d 601 (2001);
see In re Pers. Restraint of Benn, 134 Wn.2d 868, 940-41,
952 P.2d 116 (1998);
In re Pers. Restraint of Frampton, 45 Wn. App. 554, 562 n. 8,
726 P.2d 486 (1986);
see, e.g., In re Pers. Restraint of Merritt, 69 Wn. App. 419, 425,
848 P.2d 1332 (1993);
see also Kimmelman v. Morrison, 477 U.S. 365, 375,
106 S. Ct. 2574,
91 L. Ed. 2d 305 (1986).
B. Failure To Object to Jail-Issue Sandals
¶41 Because we hold that Crace failed to demonstrate that his underlying claim that the jail attire and the fleeting glimpse by the juror of his restraint caused actual and substantial prejudice, we reach neither this ineffective assistance of counsel claim nor the parties' arguments about a time bar to amendment.
C. Failure To Instruct on the Lesser Included Offense of Unlawful Display of a Weapon
¶42 Under the test announced in State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), a "defendant is entitled to an instruction on a lesser included offense if (1) each element of the lesser offense is necessarily included in the charged offense and (2) the evidence in the case supports an inference that the defendant committed only the lesser crime." State v. Gamble, 137 Wn. App. 892, 905, 155 P.3d 962 (2007), aff'd, 168 Wn.2d 161, 225 P.3d 973 (2010). The two parts of the test are respectively referred to as the "`legal'" and the "`factual'" prongs. State v. Rodriguez, 48 Wn. App. 815, 817, 740 P.2d 904 (1987). After satisfying the two Workman prongs, the "Washington rule" commands that "a lesser included offense instruction is required as a matter of right." In re Pers. Restraint of Andress, 147 Wn.2d 602, 613, 56 P.3d 981 (2002); State v. Lyon, 96 Wn. App. 447, 450, 979 P.2d 926 (1999), overruled on other grounds by Andress, 147 Wn.2d at 613-16.
The "Washington rule" has its origins in the chapter 10.61 RCW authorization for juries to find defendants not guilty or guilty of any lesser crime that the evidence supports. Workman, 90 Wn.2d at 447-48; see State v. Gottstein, 111 Wash. 600, 602, 191 P. 766 (1920); State v. Greer, 11 Wash. 244, 246-47, 39 P. 874 (1895); see also State v. Foley, 174 Wash. 575, 580, 25 P.2d 565 (1933).
This rule is a "procedural safeguard" that reduces the "risk of error in the factfinding process" and "can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal." Beck v. Alabama, 447 U.S. 625, 637, 632-33, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). Underlying the rule is a concern that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973).
¶43 The petitioner satisfies the factual prong of the Workman test "when substantial evidence in the record supports a rational inference that the defendant committed only the lesser included . . . offense to the exclusion of the greater offense." State v. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000). "It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given." State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991). "When determining if the evidence at trial was sufficient to support the giving of an instruction, the appellate court is to view the supporting evidence in the light most favorable to the party that requested the instruction." Fernandez-Medina, 141 Wn.2d at 455-56.
¶44 "Second degree assault" is the act of intentionally assaulting another person and recklessly inflicting substantial bodily harm or assaulting another with a deadly weapon, not amounting to first degree assault. See former RCW 9A.36.021(1)(a), (c) (2003). A "`[d]eadly weapon' means any . . . weapon, device, instrument, article, or substance [that] is used, attempted to be used, or threatened to be used [that] is readily capable of causing death or substantial bodily harm." Former RCW 9A.04.110(6) (1988).
¶45 "To convict a defendant of second degree assault, the jury must find specific intent to create reasonable fear and apprehension of bodily injury." State v. Ward, 125 Wn. App. 243, 248, 104 P.3d 670 (2004) (citing State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995)). For instance, a defendant's "intent may be inferred from pointing a gun, but not from mere display of a gun." Ward, 125 Wn. App. at 248 (citing State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996)).
¶46 To convict based on unlawful display of a weapon, the defendant must
carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.
RCW 9.41.270(1). Because all the elements of unlawful display of a weapon are also necessary elements of second degree assault, unlawful display of a weapon is a lesser included offense of second degree assault, satisfying the legal prong of the Workman test. RCW 9.41.270(1); RCW 9A.36.011; Ward, 125 Wn. App. at 248; see, e.g., Fowler, 114 Wn.2d at 67.
¶47 Under the factual prong of the Workman test, to justify a lesser included offense instruction for unlawful display of a weapon, the evidence must support an inference that Crace only displayed the sword and that he had no intent to create reasonable fear or apprehension of bodily injury, i.e., that he committed only the lesser offense. See Ward, 125 Wn. App. at 248. Crace testified that, even before he realized Hardesty was a deputy, he had no intention of attacking Hardesty and he never formed the intent to assault Hardesty. Crace explained that he dropped the sword as commanded but continued toward the deputy because he wanted to get close enough so that the deputy could protect him from the humans or demons Crace believed were trying to kill him.
¶48 Crace further testified that he only took the sword out of the trailer to protect himself. After reading reports from Western State Hospital and interviewing Crace, Dr. Gollogly testified that Crace suffered from diminished capacity because Crace experienced a psychotic break after ingesting "a lot of drugs" and explained that people can "do really strange and crazy things while they are under the influence of the drugs and [experience a] psychotic episode." RP at 173-74. Deputy Hardesty also testified that he asked whether Crace was under the influence of drugs due to Crace's aberrant behavior, which could confirm Crace's testimony and Gollogly's theory.
¶49 Viewed in the light most favorable to Crace, the evidence presented at trial could have allowed the jury to find Crace was unable to form the intent necessary to commit second degree assault or attempted second degree assault. Thus, Crace satisfies the factual prong of the Workman test, entitling him to an instruction on the lesser included offense of unlawful display of a weapon.
¶50 Because conviction of only that lesser crime would have resulted in a sentence of less than one year instead of a life sentence, Crace meets the deficient performance prong of Strickland: Pursuing an all-or-nothing strategy in these circumstances was not a reasonable trial tactic. See State v. Smith, 154 Wn. App. 272, 278-79, 223 P.3d 1262 (2009); State v. Grier, 150 Wn. App. 619, 642-44, 208 P.3d 1221 (2009), review granted, 167 Wn.2d 1017 (2010); State v. Pittman, 134 Wn. App. 376, 387-89, 166 P.3d 720 (2006); Ward, 125 Wn. App. at 249-50. We do not here establish a rule that pursuing an all-or-nothing strategy is per se defective performance or ineffective assistance of counsel — we merely cannot discern any legitimate reason why Crace's attorney failed to request an instruction for the lesser included offense of unlawful display of a weapon. We hold that Crace's attorney's trial tactics were not reasonable given the disparity between the sentence for unlawful display of a weapon and his life sentence for attempted second degree assault.
When facing a third "most serious offense," an all-or-nothing approach may represent a more reasonable trial strategy where the lesser included offense would result in a similarly lengthy sentence or where the defendant had reached an advanced age or contracted a terminal illness.
As a gross misdemeanor, unlawful display of a weapon is punishable with a jail term of less than one year. RCW 9.41.270(2); former RCW 9A.20.021 (2003).
The maximum standard range sentence for second degree assault is ordinarily 63 to 84 months' confinement. RCW 9.94A.510, .515. But as a persistent offender, Crace received a life sentence without the possibility of early release for his third "most serious offense" — the attempted second degree assault conviction. RCW 9.94A.570; former RCW 9.94A.030(32).
¶51 Under the prejudice prong of his ineffective assistance of counsel claim, Crace must also establish that there is a reasonable probability that the outcome of his trial would have changed had his attorney requested, and the trial court offered, the instruction for unlawful display of a weapon. Smith, 154 Wn. App. at 278-79; Grier, 150 Wn. App. at 644-45; Pittman, 134 Wn. App. at 390; Ward, 125 Wn. App. at 251. Dr. Gollogly testified that, because of diminished capacity, Crace could not form the requisite intent to commit assault, malicious mischief, or criminal trespass. But Dr. Marquez testified that Crace could form the requisite intent for each of the crimes and that Crace had seemed to respond to interviews in an exaggerated or misleading manner to effect the psychological testing.
In Smith, we did not analyze prejudice in depth, focusing our analysis on the deficient performance prong, but mentioned that Smith established "both prongs of his ineffective assistance of counsel claim on the instructional issue." 154 Wn. App. at 279. At no point did we state that establishing defective performance automatically established prejudice. See Smith, 154 Wn. App. at 277-79.
¶52 Although the jury disagreed with Crace's diminished capacity defense for first degree criminal trespass and second degree malicious mischief, the crime of second degree attempted assault requires a different intent. PRP App. G; compare RCW 9A.52.070(1) and former RCW 9A.48.080(1) (1994) with former RCW 9A.36.021(1)(c) and RCW 9A.28.020(1). And the possibility that the jury may have convicted Crace of unlawful display of a weapon undermines confidence in the jury's verdict. Had the trial court instructed the jury on the lesser included offense, there is a reasonable probability that the jury would have convicted Crace of unlawful display of a weapon instead of attempted second degree assault.
¶53 At oral argument, the State contended that Crace must show prejudice beyond that required by the Strickland prejudice prong. We agree that "`there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.'" Davis, 152 Wn.2d at 675 (quoting United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). But we disagree that a petitioner must undermine our confidence in the trial more than an appellant must.
¶54 The reliability of a proceeding is undermined where the petitioner shows how "defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Our Supreme Court has referred to "` reasonable probability'" as "`a probability sufficient to undermine confidence in the outcome' of [the] trial." In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 208, 53 P.3d 17 (2002) (quoting Strickland, 466 U.S. at 694). And this court, our Supreme Court, and the United States Supreme Court have referred to the showing of prejudice in the ineffective assistance of counsel context to be a showing of "actual prejudice." Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000); State v. Crawford, 159 Wn.2d 86, 97, 147 P.3d 1288 (2006); State v. Contreras, 92 Wn. App. 307, 319, 966 P.2d 915 (1998); see McFarland, 127 Wn.2d at 338; Thomas 109 Wn.2d at 225-26; see also In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 789 n. 10, 100 P.3d 279 (2004); In re Pers. Restraint of Yim, 139 Wn.2d 581, 590, 989 P.2d 512 (1999); State v. Sosa, 59 Wn. App. 678, 686-87, 800 P.2d 839 (1990); Dorsey v. King County, 51 Wn. App. 664, 674, 754 P.2d 1255 (1988).
In Davis, our Supreme Court even equated the Strickland prejudice standard with actual and substantial prejudice:
[P]etitioner argues that his defense counsel's failure to object . . . was ineffective assistance of counsel. Assuming that the failure to object was deficient performance, Petitioner still bears the burden of proof that his counsel's failure to object resulted in actual and substantial prejudice. In the
guilt phase of the trial, the question to be answered is "whether there is a reasonable probability that, absent the error[], the factfinder would have had a reasonable doubt respecting guilt."
Petitioner Davis cannot establish actual and substantial prejudice. . . . Because there was overwhelming evidence of his guilt, he cannot show there was a reasonable probability that,
but for his counsel's deficient performance by not objecting, the outcome of his trial would have been different.
152 Wn.2d at 700 (second alteration in original) (footnote omitted) (quoting Strickland, 466 U.S. at 695).
¶55 Washington courts granting petitions based on ineffective assistance of counsel have only stated that the petitioner established the "reasonable probability" standard from Strickland. Brett, 142 Wn.2d at 883; In re Pers. Restraint of Fleming, 142 Wn.2d 853, 866-67, 16 P.3d 610 (2001); In re Pers. Restraint of Hubert, 138 Wn. App. 924, 930-32, 158 P.3d 1282 (2007); In re Pers. Restraint of Sims, 118 Wn. App. 471, 478, 480, 73 P.3d 398 (2003); In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 434-35, 993 P.2d 296 (2000); see In re Pers. Restraint of McCready, 100 Wn. App. 259, 265, 996 P.2d 658 (2000). Some opinions may have led the State to mistakenly believe that a petitioner must satisfy a heightened prejudice requirement under actual and substantial prejudice that exceeds the showing of prejudice necessary to successfully establish the Strickland prejudice prong. See, e.g., In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487-94, 965 P.2d 593 (1998); In re Pers. Restraint of Davis, 151 Wn. App. 331, 337, 211 P.3d 1055 (2009).
¶56 For example, language in Pirtle may have caused some confusion due to its analysis of numerous ineffective assistance of counsel challenges. See 136 Wn.2d at 474 n. 3. Addressing the claims serially, the court held that Pirtle failed to show that different portions of counsel's investigation reflected defective performance, caused "prejudicial error," or represented legal errors. Pirtle, 136 Wn.2d at 488. The court next held that Pirtle failed to demonstrate counsel's cross-examination "was either ineffective or prejudicial." Pirtle, 136 Wn.2d at 489. The court then addressed Pirtle's claim that he received ineffective assistance of counsel when his attorney did not object to testimony and the court held that the underlying substantive claim failed because "even if there [was] an evidentiary error . . ., such an error does not constitute a `fundamental defect' amounting to a `miscarriage of justice' entitling Pirtle to relief, especially in light of Pirtle's own testimony." Pirtle, 136 Wn.2d at 489 (quoting Cook, 114 Wn.2d at 811). The court also held that Pirtle did not show a "reasonable probability the proceeding's outcome would be different" had his attorney not opened the door to "Pirtle's lack of remorse." Pirtle, 136 Wn.2d at 490-91. The court next held that, even assuming Pirtle's attorney discussed legal matters in conferences outside his presence, Pirtle did not demonstrate that his absence from conferences reflected a substantive error that met the standard of "being actually and substantially prejudiced by a violation of his constitutional rights or by a fundamental error of law." Pirtle, 136 Wn.2d at 491. The court declined to reach his jury instruction claim because he already litigated the claim on direct appeal. Pirtle, 136 Wn.2d at 491. And, the court held that his attorney's handling of a police witness did not establish reversible error and failing to impeach the officer did not "constitute[] prejudicial error." Pirtle, 136 Wn.2d at 492.
The relevant challenges included claims that
[Pirtle's] trial counsel was ineffective during the guilt phase because his trial counsel (i) conducted an ineffective investigation; (ii) provided inadequate cross-examination of two prosecution witnesses; (iii) failed to object to inadmissible opinion testimony; (iv) opened the door to examining [a jailhouse informant] about Pirtle's lack of remorse; (v) was ineffective in numerous "off the record conferences;" (vi) failed to provide a jury instruction on a diminished capacity defense; and (vii) was ineffective in handling [a police witness]'s testimony.
Pirtle, 136 Wn. at 487.
¶57 The Pirtle court did not hold that the petitioner established ineffective assistance of counsel and then turned around and denied Pirtle's petition based on an elevated prejudice standard. And no published Washington opinion has reached that result. We decline to so hold, confident that a "criminal defendant who obtains relief under Strickland does not receive a windfall; on the contrary, reversal of such a defendant's conviction is necessary to ensure a fair and just result." Kimmelman, 477 U.S. at 393 (Powell, J., concurring). Instead we hold that Crace's entitlement to an instruction on the lesser included offense, when combined with his ability to establish both prongs of ineffective assistance of trial counsel, demonstrates prejudice sufficient for this court to grant him relief.
Were we to hold otherwise, a PRP would alter the Strickland standard, perhaps requiring a petitioner to show that it is more likely than not that, but for counsel's defective performance, the outcome of the trial would have changed. Our confidence would need be very much undermined in order to grant relief. The Supreme Court declined to use such a standard in Strickland: "[A] defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." 466 U.S. at 693. And raising the standard would fly in the face of the Supreme Court's application of the Strickland standard to collateral review in federal courts: "[P]rinciples governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial." 466 U.S. at 697. Time and again, federal courts have declined to restrict a petitioner's right to collateral review:
Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance, consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal.
Kimmelman, 477 U.S. at 378 (citation omitted).
¶58 We grant Crace's petition in part and remand for retrial on the second degree assault charge.
ARMSTRONG, J., concurs.
¶59 QUINN-BRINTNALL, J. (dissenting)
I respectfully dissent from the majority opinion for two reasons. First, in my opinion, on the evidence presented that Deputy Theron Hardesty continued to fear for his safety as Hoyt William Crace ran toward him after having dropped the sword, no ordinary, reasonable juror could find that Crace committed only the lesser offense of displaying a weapon. Second, and of greater concern, I believe the majority improperly applies the direct review standard for reviewing an ineffective assistance of counsel claim to Crace's personal restraint petition (PRP). The majority thus fails to place on Crace the burden of proving his counsel failed to conduct his defense as would an ordinary, reasonably prudent attorney and that this failure caused him actual and substantial prejudice sufficient to trigger this court's authority to vacate a mandated judgment and sentence entered following his direct appeal of the jury's verdict.
¶60 Citing Strickland v. Washington, 466 U.S. 668, 693-94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the majority properly characterizes the standard of review for determining the prejudice prong of an ineffective assistance of counsel claim brought in a direct appeal. See majority at 105. The majority also acknowledges our limited review of PRPs under the "actual and substantial prejudice" standard. But the majority explicitly disregards the limitations on this court's authority to vacate final judgments, weighs the evidence in Crace's favor, and reviews Crace's claim de novo as if it had been raised on direct review. See majority at 96, 104, 106.
¶61 When, as here, a personal restraint petitioner bases his challenge on an alleged constitutional error, he must demonstrate that he "was actually and substantially prejudiced by the error." In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004). Appellate courts are limited to granting collateral relief through a PRP under this higher standard because such collateral relief "`undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders.' " In re Davis, 152 Wn.2d at 670 (quoting In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992)). The principles underlying limited collateral relief are no less compelling where a petitioner claims ineffective assistance of counsel.
¶62 The majority cites several Washington cases granting PRPs based on a petitioner's ineffective assistance of counsel claim which appear to apply the Strickland "reasonable probability" standard for determining prejudice without further determining whether the petitioner demonstrated "actual and substantial prejudice" resulting from his counsel's deficient performance, the appropriate standard upon which we can grant relief through a PRP. See majority at 111-22 (citing In re Pers. Restraint of Brett, 142 Wn.2d 868, 883, 16 P.3d 601 (2001); In re Pers. Restraint of Fleming, 142 Wn.2d 853, 866-67, 16 P.3d 610 (2001); In re Pers. Restraint of Hubert, 138 Wn. App. 924, 930-32, 158 P.3d 1282 (2007); In re Pers. Restraint of Sims, 118 Wn. App. 471, 478, 480, 73 P.3d 398 (2003); In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 434-35, 993 P.2d 296 (2000); see In re Pers. Restraint of McCready, 100 Wn. App. 259, 265, 996 P.2d 658 (2000)). But none of the majority's cited cases have squarely addressed whether the "reasonable probability" standard is appropriate when the ineffective assistance of counsel claim is raised for the first time in the context of a PRP, which requires a showing of "actual and substantial prejudice" before the reviewing court may grant the petition. Instead, these cases assume without analysis that reviewing courts apply the same standard to ineffective assistance of counsel claims whether brought in a direct appeal or in a PRP and thus do not acknowledge the court's limited authority to grant collateral relief through a PRP.
¶63 The majority also cites In re Davis, 152 Wn.2d at 700, a capital case, for the proposition that the "actual and substantial prejudice" standard equates with the Strickland prejudice standard. Majority at 111 n. 16. But in In re Davis, our Supreme Court reviewed the petitioner's numerous ineffective assistance of counsel claims related to the guilt phase of his trial and held that the petitioner failed to meet the Strickland prejudice prong. Thus, our Supreme Court in In re Davis did not address whether meeting the Strickland prejudice standard alone would satisfy the "actual and substantial prejudice" standard required to grant collateral relief through a PRP on a judgment of conviction. Although the In re Davis court determined that petitioner's trial counsel was ineffective during the penalty phase of his trial, our Supreme Court applied a heightened level of scrutiny applicable to claims of error associated with the penalty phase in capital cases. State v. Benn, 120 Wn.2d 631, 661, 845 P.2d 289 (citing State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992)), cert. denied, 510 U.S. 944 (1993). Because of the unique nature of punishment for capital offenses, a personal restraint petitioner who claims his counsel was ineffective during a capital sentencing proceeding shifts the burden and our Supreme Court errs on the side of finding prejudice. See In re Davis, 152 Wn.2d at 763 (Chambers, J. concurring). Accordingly, the In re Davis court's review of petitioner's ineffective assistance of counsel claim as related to the penalty phase of his trial for a capital offense does not control the analysis in this case involving the jury's verdict of the substantive offense.
I note that the In re Davis opinion also mischaracterizes the penalty phase process. Initially, In re Davis states that "the jury recommended that leniency not be granted." 152 Wn.2d at 662. But in an aggravated murder death penalty phase, the jury does not make a sentencing recommendation, it enters a finding to a specific question: "`Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?'" RCW 10.95.060(4). If the jury answers "Yes," the trial court is required to impose a sentence of death. RCW 10.95.080(1). If it answers "No," the trial court is required to impose a sentence of life without possibility of parole. RCW 10.95.080(2).
¶64 Additionally, it is not at all clear to me that Crace's counsel's conduct fell below that of a modern ordinary, reasonably prudent defense counsel. Under court rules governing jury instructions, counsel are directed to (1) file proposed jury instructions and (2) take exception to instructions or lack of instructions in order to call potential instructional deficiencies to the trial court's attention. CrR 6.15(a), (c). Through a tortuous series of cases, however, an exception to the requirement that defense counsel must except to the trial court's instructions to preserve error for review has developed. As Justice Horowitz recognized in State v. Ermert, 94 Wn.2d 839, 850 n. 1, 621 P.2d 121 (1980), absent a claim of ineffective assistance of counsel, appellate courts lack authority to review jury instructions to which no exception was taken.
¶65 Through the intervening years, the ineffective assistance of counsel exception to the issue preservation requirement has become so pervasive that an ordinary, reasonably competent defense counsel routinely ignores rules requiring the presentation of defense proposed instructions as required under CrR 6.15(a) and, to a lesser extent, the taking of exceptions to the trial court's jury instructions as required under CrR 6.15(c). This decision appears to be based on the fact that the invited error doctrine has been pretty consistently enforced, see, e.g., State v. Momah, 167 Wn.2d 140, 153-55, 217 P.3d 321 (2009) (discussing application of the invited error doctrine), petition for cert. filed, 78 U.S.L.W. 3745 (U.S. June 7, 2010) (No. 09-1500), while the ineffective assistance of counsel argument has undermined normal preservation requirements and resulted in appellate courts reviewing the merits of issues never presented to or decided by the trial court. As such, in my opinion, the failure to propose or except to instructions has become either a tactical decision which cannot form the basis of an ineffective assistance of counsel claim, see State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (legitimate trial tactics cannot form basis for ineffective assistance of counsel claim), or has become conduct so pervasive that the ordinary, reasonably prudent defense counsel intentionally fails to comply with court rules requiring issue preservation to provide what amounts to de novo review of the trial on appeal and, as the majority demonstrates, in a collateral proceeding. Accordingly, such conduct does not fall below that of the ordinary, reasonably prudent defense counsel and the first Strickland prong is not satisfied. 466 U.S. at 687-88.
¶66 Undeniably, the wholesale de novo review of a conviction on direct appeal via claims of ineffective assistance of counsel presents a challenge to the principle of finality of judgments. But in my opinion, the majority here has exceeded the reviewing authority granted an appellate court by reviewing de novo defense counsel's tactical jury instruction decisions raised for the first time in a collateral attack and construing the evidence in the light most favorable to Crace and against the validity of the mandated judgment and sentence. The law is clear. To prevail on a collateral attack of a mandated final judgment, Crace must prove he was "actually and substantially prejudiced by the [claimed constitutional] error." In re Davis, 152 Wn.2d at 671-72. The majority's analysis does not demonstrate that Crace has made such a showing and, accordingly, its ruling granting Crace's petition and vacating the mandated judgment exceeds the authority of this court.
¶67 Moreover, the majority's application of the direct review standard to a personal restraint petitioner's ineffective assistance of counsel claim undermines the purpose of our limited PRP review standard, namely principles of finality of litigation, degradation of the prominence of trial, and deprivation of society's right to punish admitted offenders. In re Davis, 152 Wn.2d at 670. And rather than ensuring a defendant's right to effective assistance of counsel, the majority's mistaken application of the direct review standard to Crace's PRP acts as a disincentive for trial counsel to timely litigate issues at trial and preserve issues for appeal by complying with the appropriate court rules. Lowering the standard by which we grant collateral relief in a PRP results in degradation of the trial and direct review process. Accordingly, I respectfully dissent.
Review granted at 171 Wn.2d 1035 (2011).