Personal Restraint Petition Of Armondo Theodor Laforge ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 73178-5-
ARMONDO THEODOR LAFORGE, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
FILED: September 6, 2016
Appelwick, J. — The original charges of first degree robbery and first
degree rape automatically put 16 year old LaForge in adult criminal court. A plea
agreement reduced the charges to second degree robbery and second degree
rape and no longer triggered automatic adult court jurisdiction. No waiver of
juvenile court jurisdiction was filed and no decline hearing was held. In a personal
restraint petition, LaForge argues that the adult criminal court lacked authority to
sentence him and that his trial counsel provided ineffective assistance by failing to
move to transfer to juvenile court. He seeks to be sentenced as a juvenile, or
alternatively, to receive a juvenile decline hearing. We grant the petition and
remand for a decline hearing.
No. 73178-5-1/2
FACTS
On December 22, 2002, Armondo LaForge and Julian Molzhon approached
CD. as he walked to work. LaForge and Molzhon robbed CD. And, LaForge
raped CD.
The State charged LaForge with rape in the first degree and robbery in the
first degree. Because LaForge was 16 years old when these crimes were alleged
to have been committed, the State filed the charges in adult criminal court rather
than juvenile court. Former RCW 13.04.030(1 )(e)(v)(A), (C) (2000) (giving the
adult criminal court exclusive authority over serious violent offenses and robbery
in the first degree ifthe juvenile is 16 or 17 years old). On December 4, 2003, the
State amended the information to include a deadly weapon enhancement on each
charge.
The parties reached a plea agreement on December 12, 2003. In
accordance with this agreement, on December 15, the State amended the charges
against LaForge to rape in the second degree and robbery in the second degree,
without a deadly weapon enhancement. The reduced charges no longer triggered
automatic adult court jurisdiction. See id; former RCW 13.40.110(1), (2) (1997).
No waiver of juvenile court jurisdiction was obtained, and no decline hearing was
held.
LaForge pleaded guilty to both counts. LaForge was sentenced on March
19, 2004 in adult criminal court. He requested an exceptional sentence downward.
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The trial court refused to impose an exceptional sentence downward, but it
imposed a low end sentence due to LaForge's age.
LaForge was sentenced to 14 months on the robbery conviction and 95
months on the rape conviction, to run concurrently. The court imposed a lifetime
term of community custody. LaForge did not file a direct appeal, and he served
his prison term of ten years. He remains subject to community custody. On
November 25, 2014, LaForge filed a pro se personal restraint petition (PRP). . He
was appointed counsel to assist him with his petition.
DISCUSSION
A petitioner may request relief through a PRP when he or she is under
unlawful restraint.1 In re Pers. Restraint of Monschke. 160 Wn. App. 479,488, 251
P.3d 884 (2010). The collateral relief available through a PRP is limited. \± A
petitioner must raise a new constitutional error or a new nonconstitutional error that
inherently results in a miscarriage of justice. In re Pers. Restraint of Lord, 123
Wash. 2d 296, 303, 868 P.2d 835 (1994). To obtain relief, the petitioner must show
that he or she was actually and substantially prejudiced by the error. Id.
LaForge contends that his trial counsel provided ineffective assistance,
because the adult court lost authority over him when the State amended the
charges, but his attorney did not move to transfer the case to juvenile court. The
State agrees that the adult court lacked authority to sentence LaForge after the
1 LaForge is under restraint because he is under a lifetime term of
community custody due to his second degree rape conviction. RAP 16.4(b) (noting
that a petitioner under some disability resulting from a judgment or sentence is
under restraint).
No. 73178-5-1/4
charges were amended, although it disputes LaForge's claim of ineffective
assistance. The parties disagree as to the appropriate remedy.
I. Ineffective Assistance of Counsel
Both the Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington State Constitution guarantee a defendant the right
to effective assistance of counsel in criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 684-86,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State
v. Hendrickson. 129 Wash. 2d 61, 77, 917 P.2d 563 (1996). To succeed on a claim
of ineffective assistance of counsel, a petitioner must satisfy a two-part test. State
v. Thomas, 109Wn.2d 222, 225-26, 743 P.2d 816(1987). First, counsel's conduct
must have fallen below an objective standard of reasonableness, id. Second,
there must be a reasonable probability that this deficiency was prejudicial. Id. A
showing of prejudice under this test is sufficient to satisfy the actual and substantial
prejudice necessary to grant relief in a PRP. In re Pers. Restraint of Crace, 174
Wn.2d835, 847, 280 P.3d 1102(2012): Monschke, 160 Wash. App. at 491.
If a juvenile was 16 or 17 years old when the offense was committed, and
the alleged offense is a serious violent offense, the adult court automatically has
exclusive authority over the case. Former RCW 13.04.030(1 )(e)(v)(A). Such
charges are called automatic decline offenses. See State v. Knippling, 166 Wash. 2d
93, 101, 206 P.3d 332 (2009). LaForge was initially charged with two automatic
decline offenses: first degree robbery and first degree rape. Former RCW
13.04.030(1 )(e)(v)(A), (C); former RCW 9.94A.030(37)(vii) (2002) (defining
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"serious violent offense" as including first degree rape). The State properly
charged LaForge with these crimes in adult criminal court.
But, once the State amended the charges so that LaForge was no longer
charged with serious violent offenses, the adult criminal court no longer had
exclusive authority. See former RCW 13.04.030(1 )(e)(v)(A), (C); Knippling, 166
Wash. 2d at 100. At that point, the juvenile court was required to hold a decline
hearing, at which it could have ordered the case transferred for adult criminal
prosecution if declination would be in the best interest of the juvenile or the public.
Former RCW 13.40.110(1), (2). Or, the court, the parties, and their counsel could
have waived the decline hearing requirement. Former RCW 13.40.110(1).
However, neither situation happened here. The parties did not file an agreed order
and the juvenile court did not hold a decline hearing. Instead, the adult court
continued to sentence LaForge. The court erred in doing so without a waiver or a
decline hearing.2
When counsel's conduct can be characterized as a legitimate trial strategy
or tactic, counsel's performance is not deficient. State v. Kvllo, 166 Wash. 2d 856,
863, 215 P.3d 177 (2009). LaForge asserts that there was no tactical reason
behind his trial counsel's failure to request a transfer to the juvenile court. Instead,
he argues that this was a mere oversight. Here, LaForge's counsel urged the
2 Because the adult court lacked authority to sentence LaForge, the petition
is not procedurally barred by RCW 10.73.090, which prohibits a petition for
collateral attack on a judgment and sentence from being filed more than a year
after the judgment becomes final, if the judgment and sentence was valid on its
face and rendered by a court of competent jurisdiction.
No. 73178-5-1/6
sentencing court to consider LaForge's age and to order detention at a juvenile
facility. This suggests that counsel would have moved to transfer the case to
juvenile court so LaForge might have had the opportunity to be sentenced as a
juvenile if counsel had realized the effect of the amended charges.
LaForge had a right to a decline hearing. Had asserting that right
jeopardized the plea agreement, LaForge also had the right to waive the decline
hearing and preserve the plea. Ignoring the right to a decline hearing and merely
arguing for juvenile sentencing considerations in adult court did not provide any
tactical advantage. Counsel's apparent failure to realize that the amended charges
deprived the adult court of automatic authority over LaForge cannot be construed
as a tactical decision. His failure to move to transfer the case constituted deficient
performance.
LaForge contends that he was prejudiced by this deficient performance,
because he was deprived of the opportunity to be sentenced in juvenile court. In
response, the State contends that LaForge cannot establish prejudice, because
the record does not support the assumption that the juvenile court would have
retained the case, and any error is remedied by remand for a decline hearing. We
disagree with the State's contention. The court rejected such an argument in In re
Personal Restraint of Dalluge, 152 Wash. 2d 772, 788, 100 P.3d 279 (2004). There,
the court noted that Dalluge was prejudiced by his appellate counsel's failure to
raise the issue, because ifappellate counsel had raised the issue on direct appeal,
Dalluge would have been entitled to a de novo hearing, id. It was the denial of
No. 73178-5-1/7
the hearing, not an assumption that the hearing would have resulted in a favorable
outcome that prejudiced Dalluge. Jd. Similarly, had LaForge's trial counsel moved
for the case to be transferred to the juvenile court, LaForge would have been
entitled to a decline hearing. This is sufficient to show prejudice. He need not
show that the juvenile court would have retained jurisdiction.
Once the State amended the charges against LaForge, his trial counsel
should have moved for the case to be transferred to the juvenile court for a decline
hearing. Counsel's failure to do so prejudiced LaForge and constituted ineffective
assistance of counsel.
II. Remedy
LaForge asserts that the appropriate remedy is to remand the case for
imposition of a juvenile sentence, without a decline hearing. Alternatively, he asks
for a decline hearing. If his case is remanded for a decline hearing, LaForge
argues that the trial court should first determine whether a fair hearing is feasible
given the passage of time.
The Washington Supreme Court has recognized that when a juvenile who
is deprived of a decline hearing after charges are amended from automatic decline
offenses to nonautomatic decline offenses, the appropriate remedy is a decline
hearing. Dalluge, 152 Wash. 2d at 776, 786-87. In Dalluge, the court noted that
where the defendant has since turned 18, the appropriate remedy is to remand to
the adult criminal court for a hearing on whether declination would have been
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appropriate, id. If the case would have been declined, the conviction stands, id.
at 787. If not, the defendant is entitled to a new trial. Jd
LaForge asserts that two recent Washington Supreme Court cases have
modified the remedy described in Dalluge. He argues that under State v. Maynard,
183 Wash. 2d 253, 351 P.3d 159 (2015) and State v. Posey. 174 Wash. 2d 131, 134,
272 P.3d 840 (2012) (Posey II), we may remand for sentencing consistent with the
Juvenile Justice Act of 19773 (JJA) without a decline hearing.
We disagree. Posey was charged with an automatic decline offense and
three nonautomatic decline offenses, and he was convicted of only the
nonautomatic decline offenses. State v. Posey. 161 Wash. 2d 638, 641, 167 P.3d
560 (2007) (Posey I). The Washington Supreme Court held that the case should
have been remanded to the juvenile court for a decline hearing for sentencing once
Posey was acquitted of the automatic decline offense, id. at 647. It remanded to
the juvenile court for a decline hearing. Id. at 649. Posey received a hearing on
remand, where he argued that the juvenile court had no authority over him, since
by that point he was 21 years old. Posey II, 174 Wash. 2d at 134. The court agreed,
and it sentenced him as if he were in adult criminal court to a standard range
sentence under the JJA. id. at 134-35. On appeal, Posey argued that no court
had authority to sentence him, because he was acquitted of the automatic decline
offense and because he was over 21 so the juvenile court no longer had authority
over him. Jd. at 140. The Supreme Court rejected this notion, holding that the
3Ch. 13.40 RCW.
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No. 73178-5-1/9
superior court properly sentenced Posey, id. at 140-41. And, the court upheld
Posey's standard range juvenile sentence, jd at 133.
In Maynard, the Washington Supreme Court held that the defendant
received ineffective assistance of counsel when his attorney failed to notice that
the defendant was about to turn 18. 183 Wash. 2d at 260-61. As a result of this
failure, the juvenile court dismissed the charges against Maynard when he turned
18, and the State filed charges in superior court, id at 257-58. The Supreme
Court remanded for further proceedings consistent with the JJA, noting that this
would put Maynard in the same position he was in before the time to extend
juvenile jurisdiction lapsed, id. at 264. And, the court stated that if Maynard was
convicted, the trial court may still impose a juvenile sentence. \_±
Neither Posey II nor Maynard held that the proper remedy for a juvenile
defendant who was entitled to a decline hearing before he could be sentenced in
adult criminal court is to remand for sentencing in accordance with the JJA without
a decline hearing. We reject LaForge's invitation for us to do so here. We adhere
to Dalluge in this regard, and hold that LaForge's case must be remanded to the
superior court for a decline hearing. Under Posey II and Maynard. if the superior
court on remand determines that the juvenile court would not have declined its
authority over the case, it should sentence LaForge in accordance with the JJA.
But, if the court determines that the juvenile court would have declined the case,
LaForge's original sentence will stand.
No. 73178-5-1/10
LaForge further asserts that the trial court on remand must make a
feasibility determination before it can conduct a decline hearing. He compares a
decline hearing to a competency hearing to assert that the trial court must first
inquire as to whether a meaningful decline hearing is still possible, given the
passage of time.
This argument is not persuasive. The passage of time is inevitable in any
retrospective decline hearing. Yet, Washington courts have never reguired such
a determination to be made before a decline hearing can be held. See, e.g.,
Dalluge, 152 Wash. 2d at 786-87 (remanding for a de novo hearing on whether
declination would have been appropriate); State v. Meridieth, 144 Wash. App. 47, 58,
180 P.3d 867 (2008) (same); State v. Anderson, 83 Wash. App. 515, 522, 922 P.2d
163 (1996) (same).
Nor is LaForge's comparison to competency hearings helpful here. In that
context, a feasibility determination means that there is still sufficient evidence to
reliably determine whether the defendant was competent at an earlier time. State
v. P.E.T.. 174 Wash. App. 590, 606, 300 P.3d 456 (2013), modified on remand. 185
Wash. App. 891, 344 P.3d 689 (2015). But, at a decline hearing, the State must
prove by a preponderance of the evidence that declination is in the best interest of
the juvenile or the public. State v. Jacobson. 33 Wash. App. 529, 531-32, 656 P.2d
1103 (1982). In making a decision concerning declination, the court may consider
a number of factors, including:
(1) the seriousness of the alleged offense and whether the protection
of the community requires declination; (2) whether the offense was
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No. 73178-5-1/11
committed in an aggressive, violent, premeditated or willful manner;
(3) whether the offense was against persons or only property; (4) the
prospective merit of the complaint; (5) the desirability of trial and
disposition of the entire case in one court, where the defendant's
alleged accomplices are adults; (6) the sophistication and maturity of
the juvenile; (7) the juvenile's criminal history; and (8) the prospects
for adequate protection of the public and rehabilitation of the juvenile
through services available in the juvenile system.
State v. Furman. 122 Wash. 2d 440, 447, 858 P.2d 1092 (1993). Accurate evaluation
of these factors is nowhere near as time sensitive as a determination that a
defendant was competent at an earlier point in time.
Here, the seriousness of the offense, its violent manner, and its target can
be established by the crimes charged and the facts stated in the certification of
probable cause. LaForge's partial confession and the fact that some of his actions
were corroborated by video surveillance confirm the violent nature of the robbery
and support the merit of the complaint. LaForge's accomplice, Molzhon, pleaded
guilty and has already been sentenced—there is no question of the desirability of
resolving the case in one court. And, whether LaForge had a criminal history at
the time can be determined by looking at the judgment and sentence. Thus, only
two factors may be affected by the passage of time: (1) LaForge's sophistication
and maturity and (2) the prospects for adequate protection of the public and
LaForge's rehabilitation through the juvenile system. But, not all eight factors must
be proved for declination to be in the best interest of the public or the juvenile.
Furman. 122 Wash. 2d at 447. Instead, the factors exist to help guide the court's
discretion, jd That two factors may be more difficult to ascertain now does not
mean that a decline hearing is no longer feasible. We reject LaForge's argument
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No. 73178-5-1/12
that a feasibility determination must first be made before a decline hearing can be
held.
We grant the petition and remand to the superior court for a decline hearing.
If the superior court determines that the case would not have been declined,
LaForge should be resentenced in accordance with the JJA. If the case would
have been declined, LaForge's original sentence stands.
WE CONCUR:
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