Personal Restraint Petition Of: Daniel Marshall Aguirre ( 2013 )

Fit- D
E
C GE APPEALS
D1vf5loj I ?
20. 3 APR -2 AM 8: 46
1
STATE OF ViAS1- I4GTON
U.T
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re Personal Restraint Petition of No. 41556 9 II
- -
DANIEL MARSHALL AGUIRRE,
Petitioner,
UNPUBLISHED OPINION
BRINTNALL
QUINN- J. — A jury convicted Daniel Marshall Aguirre of second degree
and second degree assault, with a deadly weapon enhancement. We affirmed the
rape
conviction Aguirre-
subsequently filed a -personal--
- restraint.petition-(
RP) P- alleging that ( )_
1 his
trial counsel failed to adequately inform him of the State's pretrial plea offer, 2) victim's
( the
testimony at Aguirre's military separation hearing was newly discovered evidence, and (3)
Aguirre's trial counsel was ineffective for failing to present mitigating evidence at Aguirre's
sentencing hearing. We remanded for a reference hearing. The trial court determined that the
plea offer was adequately communicated to Aguirre. Based on the evidence presented at the
reference hearing, the trial court found that Aguirre failed to meet his burden to prove prejudice.
Accordingly, Aguirre's claim that he received ineffective assistance of counsel because of
1
The military separation hearing was a hearing held by the United States Army to determine
whether Aguirre would be discharged.
No. 41556 9 II
- -
defense counsel's failure to convey the plea agreement fails. Additionally, we hold that the
victim's testimony was impeachment evidence and Aguirre did not receive ineffective assistance
of counsel at sentencing. We deny Aguirre's PRP.
FACTS
BACKGROUND
A detailed version of the substantive facts, including trial testimony, is set out in this
court's prior unpublished opinion affirming Aguirre's conviction. State v. Aguirre, noted at 146
Wn. App. 1048, 2008 WL 4062820, at *14, aff'd, 168 Wn. d 350, 229 P. d 669 (2010).
2 3
Aguirre began dating Emily Laughman in June 2006, when they were both stationed at the
United States Army Noncommissioned Officer Academy. On August 26, Laughman went to
,
Aguirre's apartment and they got into an argument. Aguirre assaulted and raped Laugbman.
The State charged Aguirre with two counts of second degree assault with a deadly
weapon enhancement on one count and one count of second degree rape. A jury found Aguirre
and the second degree The trial court
guilty of one count of second degree assault rape.
sentenced Aguirre to a standard range sentence of137months confinement.Aguirre,- WL - - -
- 2008-
4062820, at *4. Pursuant to the indeterminate sentencing requirements for the second degree
rape charge, Aguirre received a maximum sentence of life, subject to the parole determination of
the indeterminate sentencing review board. Aguirre appealed his conviction and we affirmed.
After we affirmed Aguirre's convictions, he filed this PRP, alleging that (1)his trial
counsel failed to convey the ' State's pretrial plea offer, 2)Laughman's testimony at Aguirre's
(
2 In the transcripts of the military separation hearing, Laughman's name is transcribed as
McLaughlin."McCloud Decl. App. H.. court reporter transcribed her name phonetically
The
and Laughman did not spell her name, therefore we refer to her as Laughman, the name used in
all the briefing and our prior opinion.
2
No. 41556 9 II
- -
military separation hearing is newly discovered evidence entitling Aguirre to a new trial, and (3)
Aguirre's trial counsel was ineffective for failing to present mitigating evidence at Aguirre's
sentencing hearing. We remanded for the trial court to determine whether Aguirre's defense
counsel conveyed the plea offer and whether the plea offer was adequately explained.
PLEA OFFER AND REFERENCE HEARING
On November 17, 2006, per defense counsel's request, the State transmitted a written
plea offer to defense counsel. The plea offer was a plea of guilty to second degree assault -
domestic violence and,third degree rape - domestic violence with a determinate sentence of 14
months incarceration. The plea agreement also required that Aguirre be evaluated for " omestic
d
violence, mental health, and sexual deviancy issues and comply, with any recommended
treatment."McCloud Decl. App. B. The standard sentencing range for the current charges was
printed at the top of the plea offer in bold, italicized, and underlined print stating, Standard
"
range for these offenses is 123 159 months to LIFE under RCW 9. with lifetime
- 712
94A.
supervision 94A. McCloud Decl. App. B. The same standard sentence
also per RCW 9.
712."
range was also included in the States cover accompanying the plea -
offer: - -- - -- - -- - -- -
In his PRP, Aguirre alleged that his trial counsel never communicated the above plea
offer to him and trial counsel did not explain to him that by not taking the plea offer he risked a
life sentence. Aguirre also stated that if he had been informed about the plea offer, he would
have accepted it. On May 27, 2011, we remanded to the trial court for a reference hearing. The
trial court was directed to "make findings of fact and conclusions of law as to whether Aguirre's
trial counsel conveyed the State's November 2006 plea offer to Aguirre and if so, whether
Aguirre's trial counsel explained the consequences of that plea offer." Order Remanding to
Superior Ct. for Reference Hr'g May 27, 2011).
(
3
No.41556 9 II
- -
The trial court held the reference hearing on July 18, 2011. Seven witnesses testified at
the reference hearing: Karen Sanderson, the defense investigator; Rose Aguirre,,Aguirre's
mother; Olene Steele, trial counsel's legal assistant; Aguirre; Lt. Stephanie Klein, supervisor at
the Thurston County Jail; George Steele, Aguirre's trial counsel; and John Skinder, the original
prosecuting attorney.
Aguirre testified that when he originally met with Steele, Aguirre told Steele that he
would not take any deal that would get him dismissed from the military (felony, domestic
violence, or sex offenses).Aguirre also stated that Steele told him the maximum sentence for his
crimes was somewhere in the range of 70 months. At some point Aguirre began to change his
mind and decided that if the State made a good offer he would take it,even if it would mean his
discharge from the military. He supported this statement with a letter he wrote to defense
counsel containing the following statement:
So just know if you get a deal some time between now and trial and you feel it is
in my best interests, take it,I will.
1 Report of Proceedings ( RP)at 150. But even after Aguirre decided that he would take a deal
even if it would get him discharged from the military, he was still unwilling to admit to
committing the crime.
Aguirre testified that he never saw the plea offer the State made and Steele did not tell
him about it. Aguirre testified that after Christmas, Steele discussed an offer of possibly 48 to 58
months.
Steele testified that he recalled having "extensive discussions about the case, the plan of
defense, and discussed offers and that type of thing"but he could not recall specific dates and
times of the conversations. 1 RP at 116. Based on Steele's recollection, Aguirre was very
M
No. 41556 9 II
- -
adamant about his innocence and his desire to go to trial. Steele admitted that while he informed
Aguirre of the plea offer the State made and explained the offer to Aguirre, he did not push him
to take the offer because it would not keep him in the military and he believed that Aguirre had a
good case to take to trial. Specifically Steele testified,
Aguirre kind of a " amn the torpedoes, full speed ahead"kind of guy. He
was ... d
was very adamant he did not commit a crime; he did not commit the crimes he
was accuse [sic] of; and he was not about to plead to anything where he would
have to admit that he did do, did commit these crimes.
1 RP at 119. Steele explained that, in context, Aguirre's letter meant a deal that would keep him
in the military because, at the time, Aguirre believed staying in the military was in his best
interest.
Steele reviewed the standard sentencing ranges for offenses prior to meeting with his
client or discussing plea offers. Steele also explained that if a crime carries an indeterminate
sentence, the defendant is subject to the maximum sentence and can be released by the
Indeterminate Sentence Review Board after serving the minimum term. But Steele could not
specifically remember the substance of conversations he had with Aguirre or whether he
specifically explained indeterminate sentencing.
Skinder, the original prosecuting attorney on Aguirre's case, testified that, at Steele's
request, he made one plea offer. Furthermore, there would not have been a plausible plea offer
of 40 to 50 months in prison and, based on the charges, it would have been extraordinarily
difficult to calculate Aguirre's standard sentencing range around 70 months. Skinder also
testified that when he made the offer to Steele, he "made it clear to [Steele] that that was the
5
No.41556 9 II
- -
offer and, if it was not accepted in all regards, it was rejected."2 RP at 216 17. The plea offer
-
was not an Alford plea.
Following the reference hearing, the trial court issued written findings of fact and
conclusions of law. The trial court found that (1)Steele's testimony was more credible than
Aguirre's; Steele conveyed the plea to Aguirre; and (3)Steele explained the consequences of
2) (
the plea offer, including the potential sentence if Aguirre was convicted at trial. Based on the
findings of fact, the trial court determined that Aguirre did not meet his burden of proving by a
preponderance of the evidence that the State's plea was not adequately conveyed to him.
The trial court also made oral findings. In its oral findings, the trial court determined that
Aguirre had been clear, even at sentencing, that he believed staying in the military was in his
best interest. Furthermore,the trial court stated,
And while the difference between a potential maximum sentence versus a
14 month determinate sentence may seem in hindsight to be such an obvious
difference that Mr. Aguirre should have taken that, for the reasons I'e already
v
stated, that is only speculation, and it' really something that has to be resolved by
s
every defendant in their particular case.
2 RP- 265. - -- - — -- -- - -- -- -- - -- - - - - -- - - - -- - -
at-
LAUGHMAN'S SUBSEQUENT TESTIMONY
In 2007, the military held Aguirre's separation hearing, a hearing to determine whether
Aguirre would be discharged from . the military. Laughman also testified at this hearing.
Laughman testified that toward the end of the relationship, Aguirre would not let her "hang out"
with her friends and would become aggressive with her if she wanted to go out. McCloud Decl.
3 See North Carolina v. Alford, 400 U. . 25 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970);
S State v.
Newton, 87 Wn. d 363, 552 P. d 682 (1976).
2 2
6
No.41556 9 II
- -
App. H, at 22. During cross -examination, Laughman testified that both she and Aguirre wanted
to break off the relationship at the time the rape occurred.
She also testified that she told Deputy Carter of the Thurston County Sheriff's Office that
the bruises her body
on . were from Aguirre. However, she also told Carter that they were
practicing self -
defense and she did not want to file a report. Laughman never reported the rape
to Carter.
ANALYSIS
PLEA OFFER
In his supplemental briefing, Aguirre assigns three errors to the trial court's findings of
fact and conclusions of law: ( 1)the trial court erroneously interpreted the meaning of
determinate-
plus"sentencing and, based on that interpretation, erroneously determined that the
State's plea offer was adequately conveyed; 2) trial court erred by refusing to admit expert
( the
testimony regarding standard practice for conveying a plea offer; and (3)the evidence was
insufficient to support the trial court's conclusion that Steele adequately conveyed the plea offer
toAguirre -AlthoughAguirre -challenges the sufficiency of the evidence -establishing-that-he - - -
- . -- - t
plea offer was adequately conveyed to him, he is also required to show prejudice. Aguirre has
failed to demonstrate that there was a reasonable probability that he would have accepted the
State's offer. Accordingly, Aguirre has failed to demonstrate prejudice and his ineffective
assistance of counsel claim fails.
After a reference hearing on an ineffective assistance of counsel claim, we review
findings of fact for substantial evidence and the trial court's conclusions of law are reviewed de
novo. In re Pers. Restraint ofBrett, 142 Wn. d 868, 873 74, 16 P. d 601 (2001).
2 - 3
7
No. 41556 9 II
- -
To prevail on an ineffective assistance of counsel claim, the defendant must show that
counsel's performance was deficient and that the defendant was prejudiced by counsel's
deficient performance. In re Pers. Restraint of Chace, 174 Wn. d 835, 840, 280 P. d 1102
2 3
2012) citing Strickland v. Washington, 466 U. .668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674( S
In
1984)). " a plea bargaining context, ` ffective assistance of counsel' merely requires that
e
counsel `actually and substantially [assist] his client in deciding whether to plead guilty. "' State
v. Osbourne, 102 Wn. d 87, 99, 684 P. d 683 (1984) alteration in original) quoting State v.
2 2 ( (
Cameron, 30 Wn. App. 229, 232, 633 P. d 901, review denied, 96 Wa. d 1023 (1981)).
2 2 Defense
counsel must inform the defendant of all the direct consequences of the guilty plea. State v.
A. .168 Wn. d 91, 113 14, 225 P. d 956 (2010). In the context of a claim that counsel's
J., 2
N - 3
ineffective assistance caused the defendant to reject a plea offer, a defendant demonstrates
prejudice by showing that there is a reasonable probability he or she would have accepted the
offer absent counsel's ineffective assistance. Lafler v. Cooper, _ U. . ,
S 132 S. Ct. 1376,
Missouri
1385, 182 L.Ed. 2d 398 (2012); v. Frye, _ U. . ,
S 132 S. Ct. 1399, 1409, 182 L.
Ed: - 37% denied, 132 -S. Ct. 1789 2012) If adefendant cannot -demonstrate-
2d - cent - -- ( either -
deficient performance or prejudice, the ineffective assistance of counsel claim fails. Strickland,
466 U. .at 697.
S
The trial court determined that Aguirre's claim that he would have accepted the deal was
based on hindsight. Steele's testimony at the reference hearing supports this. Steele testified
that Aguirre was adamant that he was innocent of the charges, he wanted to go to trial, and he
would not accept a deal.hat would result in his removal from the military. The trial court found
t
that Steele's testimony was more credible than Aguirre's. "[ court's determination of a
A]trial
witness's cannot be disturbed appeal."In Pers. Restraint of Davis, 152 Wn. d
2
credibility on re
No. 41556 9 II
- -
647, 682 83, 101 P. d 1 ( 2004)citing In re Pers. Restraint of Gentry, 137 Wn. d 378, 410 11,
- 3 ( 2 -
972 P. d 1250 (1999)).
2 Accordingly, Steele's testimony is substantial evidence supporting the
trial court's finding that Aguirre would not have accepted the deal at the time it was made.
.
Furthermore, Aguirre's own testimony belies his assertion that he would have accepted
the State's offer. Aguirre testified that even after he decided he would be willing to accept a plea
bargain that would result in his separation from the military, he would not have accepted an offer
that required him to admit to committing the crimes. In fact, Aguirre maintained his innocence
throughout trial and sentencing. The State's offer was not an Alford plea, therefore to accept the
offer, Aguirre would have .had to admit he committed the crime. The State's offer was a one-
time, nonnegotiable offer. Aguirre's insistence on maintaining his innocence equated to a
rejection of the State's offer, even assuming he would have accepted terms that would result in
his separation from the military.
Based on the above facts, we conclude that Aguirre has not demonstrated there. as a
w
reasonable probability that he would have accepted the State's offer. Aguirre has failed to meet
j——-- ------- his burden show _
prejudice. - Accordingly, - --
his ineffective -assistance -of-
counsel- claim fails,- - -- - - -
regardless of whether defense counsel was deficient.
Aguirre also argues that the trial court erred by refusing to allow Aguirre's expert to
testify at the reference hearing. We review a trial court's decision to admit expert testimony for
an abuse of discretion. State v. Willis, 151 Wn. d 255, 262, 87 P. d 1164 (2004).The trial court
2 3
abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.
State v. Powell, 126 Wn. d 244, 258, 893 P. d 615 (1995).Under ER 702,
2 2
i] scientific,technical, or other specialized knowledge will assist the trier
f
of fact to understand the evidence or to determine a fact in issue, a witness
9
No.41556 9 II
- -
qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
To be admissible under ER 702, expert testimony must be helpful to the trier. f fact. State v.
o
McPherson, 111 Wn. App. 747, 761, 46 P. d 284 (2002).
3
Here, Aguirre sought to admit the testimony of another defense attorney to testify about
what would have constituted effective assistance of counsel when conveying the plea offer in this
case. According to Aguirre, the expert could have explained "the standard of care required of
competent counsel when the charges carry a determinate plus sentence of life and the offer is a
-
plea to a crime with a guaranteed maximum 14 month determinate sentence,"and the expert
-
could have "clarified the impact of [ ost traumatic stress disorder (PTSD)] Steele's duty to
p on
transmit the plea offer."Suppl. Br. of Pet'r at 14 15. The trial court excluded Aguirre's expert
-
for two reasons: ( 1)with 30 years of criminal law experience, the trial court did not need an
expert to determine what should be told to a defendant to adequately explain a plea offer; and (2)
the opinion went to whether counsel was ineffective not whether the plea offer was conveyed or
explained which
— was what we asked the trial court to determine. As the trier of fact in a
reference hearing, the trial court is in the best position to determine whether an expert's
testimony would be helpful to it. The trial court determined that, based on its knowledge and
experience, Aguirre's expert would not be helpful. The trial court did not abuse its discretion by
excluding Aguirre's expert's testimony.
NEWLY DISCOVERED EVIDENCE
Aguirre argues that Laughman's testimony at the military separation hearing.is newly
discovered evidence warranting a new trial. But the State correctly notes that Laughman's
10
No. 41556 9 II
- -
testimony at the military separation hearing is, at best, impeachment evidence. We agree with
the State.
To obtain a new trial based upon newly discovered evidence, a defendant must
prove that the evidence: (1) probably change the result of the trial; 2)was
will (
discovered after the trial; 3)
( could not have been discovered before. trial by the
exercise of due diligence; ( )is material; and (5)is not merely cumulative or
4
impeaching.
State v. Macon, 128 Wn. d 784, 800, 911 P. d 1004 (1996). Failure to establish any of the
2 2
above factors precludes a new trial. Macon, 128 Wn. d at 800 (citing State v. Williams, 96
2
Wn. d 215, 223, 634 P. d 868 ( 1981)).Impeachment
2 2 " evidence" is "[evidence used to
]
undermine a witness's credibility." BLACK's LAw DICTIONARY 637 (9th ed. 2009). A reliable
recantation may generally be considered newly discovered evidence warranting a new trial.
Macon, 128 Wn. d at 799 800.
2 -
Here, Laughman's testimony at the military separation hearing was not a recantation.
Laughman never testified that Aguirre did not assault or rape her. Aguirre asserts that the
following inconsistencies in Laughman's testimony prove the testimony is newly discovered
Laughman] changed the amount of beers she had that night from " to 5"
4
down to "2 to 3;" [
Laughman] changed from denying that their fight-
training was
called anything like combatives, to admitting that. [ Laughman] changed from
saying she stayed on the couch to claiming she left immediately. [ Laughman]
changed whether she had a cigarette on the couch after sex, or not. [Laughman]
changed whether she affirmatively told Officer Carter after the incident that she
and [ Aguirre] were practicing play -fighting. [ Laughman] even changed her
testimony about what [Aguirre] did to her. First, at trial, she testified that she was
raped on the floor. Later, at the Separation Hearing, she claimed she was raped
on the bed.
Finally, at the trial, Laughman] testified that Aguirre was jealous of her,
[
trying to limit her outside contacts, and keep her for his own.... later, at the
But
Separation Hearing, she admitted that they .both"wanted to end the relationship.
"
11
No. 41556 9 II
- -
Br. of Pet'r at 31 32. But minor inconsistencies regarding specific details are not equivalent to a
-
recantation. Instead, they serve only to cast doubt on the credibility or accuracy of her
testimony. Therefore, Laughman's testimony at the separation hearing is impeachment evidence.
Accordingly, Aguirre has failed to meet his burden of demonstrating that Laughman's testimony
at the military separation hearing is newly discovered evidence warranting a new trial.
MITIGATING EVIDENCE AT SENTENCING
Finally, Aguirre alleges that he received ineffective assistance of counsel at sentencing
because his counsel failed to present mitigating evidence on his behalf. Specifically, Aguirre
contends that his counsel should have presented evidence regarding Aguirre's military service or
Aguirre's mental or social history, including his PTSD.
Aguirre is required to demonstrate both deficient performance and prejudice. Strickland,
466 U. .at 697. Here, Aguirre cannot demonstrate how counsel's failure to offer. his suggested
S
mitigating evidence prejudiced him at sentencing. Aguirre argues that the lack of mitigating
evidence prejudiced him because (1) charges would have been reduced if mitigating evidence
the
had been - resented to - he -State -prior trial, and -2)the-
p - t --- ( trial court would have imposed - -- -
a
standard range sentence if the mitigating evidence had been presented at sentencing.
Aguirre cannot offer anything other than speculation about how the failure to present
evidence of his military service or mental or social history would have affected the length of the
minimum sentence the trial court imposed. Aguirre has not cited any authority that supports the
proposition that military service or the mental or physical effects of military service are a basis
for imposing the low end of the sentencing range, or from departing from a standard range
sentence altogether. See RCW 535( 4A. Even if Aguirre had a basis for arguing that
9. 1).
9
military service or the effects of military service justified a sentence at the low end of the
12
No. 41556 9 II
- -
sentence range, the trial court sentenced Aguirre to a standard range sentence. Because Aguirre
cannot demonstrate that the outcome of his sentencing would have been different if his proposed
evidence had been he has failed to meet his burden to show prejudice. State v.
presented,
Thomas, 109 Wn. d 222, 226, 743 P. d 816 (1987).A failure to demonstrate prejudice defeats a
2 2
claim of ineffective assistance of counsel. Strickland, 466 U. .at 697.
S
Aguirre has failed to meet his burden to show ineffective assistance of counsel for either
failing to adequately convey a plea offer or failing to present mitigating evidence at sentencing.
Furthermore, Laughman's testimony at the military separation hearing is merely impeaching and
not newly discovered evidence. Accordingly, we deny Aguirre's PR- .
P
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 pursuant to RCW 2.6.it is
040,
0
so ordered.
ex, ,
QUINN-
X1 ',
BRINTNALL,J.
x6 , ,
13