PRP of Endy Domingo Cornelio ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
March 8, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 50818-4-II
ENDY DOMINGO-CORNELIO, UNPUBLISHED OPINION
Petitioner.
BJORGEN, J.P.T.* — Endy Domingo-Cornelio petitions for relief from restraint stemming
from his convictions for first degree child rape and first degree child molestation.
Cornelio argues that he received ineffective assistance of counsel because his trial
counsel failed to (1) conduct an adequate pretrial investigation, (2) object to child hearsay
statements and cross-examine witnesses at the child hearsay hearing, and (3) adequately cross-
examine witnesses, object to impermissible opinion testimony, and object to prosecutorial
misconduct at trial. He also argues that a significant change in the law relating to juvenile
offenses requires remand for resentencing.
We deny his petition.
*
Judge Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW
2.06.150.
.
No. 50818-4-II
FACTS
On October 13, 2012, A.C.1 disclosed to her mother, T.C.,2 that Cornelio had sexually
abused her. At the time of disclosure, A.C. was 8 years old. The abuse occurred when she was
four or five. Cornelio is A.C.’s cousin and would have been between 14 and 16 years old at the
time of the alleged abuse.
A.C.’s parents, T.C. and Jose Cornelio,3 finalized their divorce on October 12, 2012, the
day before A.C.’s disclosure. The day of the disclosure, T.C. was on the phone with her sister
asking why she had not testified on T.C.’s behalf at a child custody hearing. T.C. explained to
her sister that she had wanted her to testify because T.C. believed Jose had had sexual contact
with her sister while her sister was underage and T.C. suspected Jose had done the same or
would do the same to A.C. or other underage family members. It was at that time that A.C.,
thinking that T.C. was talking about her, said that “it wasn’t [Jose], it was [Cornelio].” Personal
Restraint Petition (PRP), Ex. A, at 9. T.C. then called the police and met with an officer later
that night to report the alleged abuse.
The State charged Cornelio with first degree child rape and three counts of first degree
child molestation. The information alleged that each count occurred between November 2007
and November 2009.
1
See Gen. Order 2011-1 of Division II, In re the Use of Initials or Pseudonyms for Child
Witnesses in Sex Crime Cases, http://www.courts.wa.gov/appellate_trial_courts.
2
To protect A.C.’s privacy, we refer to her mother by initials.
3
For the sake of clarity, we refer to him as Jose. We intend no disrespect.
2
No. 50818-4-II
I. PRE-TRIAL INVESTIGATION
Cornelio’s trial counsel interviewed four witnesses: A.C., T.C., Jose, and Maria Perez
(Jose’s girlfriend). In his interview with T.C., counsel learned that A.C. had been acting out
sexually with other children and adults and that AC had seen a counselor at age 4. There is no
indication that counsel attempted to obtain records of A.C.’s counseling sessions.
In his interview with Jose, counsel learned that Cornelio’s brother, Edgar Domingo-
Cornelio,4 typically stayed with Jose whenever Cornelio did. Counsel did not attempt to
interview Edgar.
In his interview with A.C., counsel learned that A.C. disclosed her alleged abuse to her
best friend three months before disclosing it to her mother. According to A.C., her friend is also
a relative of Cornelio’s and “told [A.C.] that it happened to her too.” PRP, Ex. E, at 6. Counsel
did not interview the friend. Counsel also learned that A.C. was concerned that T.C. was going
to have Jose sent to jail and that A.C. “always tell[s] people” that she does not want Jose to go to
jail. PRP, Ex. E, at 20, 22. A.C. also confirmed during this interview that she disclosed the
abuse to her mother because she “kept asking” whether Jose had done something to her and she
“got tired of her asking.” PRP, Ex. E, at 13.
Counsel never interviewed several of Cornelio’s family members whom Cornelio claims
would have testified on his behalf. Among these is his mother, Margarita Cornelio,5 who
babysat A.C. for years prior to and after the alleged abuse. Cornelio asserts that Margarita would
have testified that A.C. was never nervous or upset around him and that A.C. continued to enjoy
coming over to their house even after the allegations surfaced. Cornelio also claims that other,
4
For the sake of clarity, we will refer to him as Edgar. We intend no disrespect.
5
For the sake of clarity, we refer to her as Margarita. We intend no disrespect.
3
No. 50818-4-II
unnamed family members would have testified that T.C. accused Jose of sexually abusing A.C.
prior to A.C.’s disclosure of alleged abuse by Cornelio and that T.C. had a reputation for
untruthfulness.
Cornelio also asserts in his petition that Edgar was at the house with A.C. and him “on
almost every occasion” of the claimed abuse, that Edgar slept on a couch with Cornelio and
A.C., and that Edgar never saw any interaction between Cornelio and A.C. PRP at 24-25.
Cornelio’s petition contains Edgar’s declaration, which states that he and Cornelio “always spent
the night at Jose’s house together, with the exception of only a few times when I recall
[Cornelio] spending the night without me.” PRP, Ex. D, at 3. Edgar claims that every night he
and Cornelio were at Jose’s house together they slept on the small couches in the living room,
while A.C. typically would sleep in Jose’s room, but occasionally would sleep on the large couch
in the living room. Edgar states in his declaration that he was willing to speak to counsel and
testify that he had never seen Cornelio act inappropriately toward A.C. and that he is certain that
he would have been aware of any inappropriate activity between them occurring at Jose’s house.
Cornelio’s investigator, Karen Sanderson, states in her declaration that police reports
show that A.C. was exposed to drugs, violence, and neglect and left in the care of drug users
while in the custody of her mother.6 Cornelio claims counsel never pursued this line of inquiry.
Sanderson’s declaration also states that the documents she obtained from Cornelio’s defense
counsel “did not contain any court records indicating that he had gathered or reviewed” Jose and
T.C.’s publicly available divorce records.7
6
Cornelio does not include these reports in his petition, but relies on Sanderson’s references to
them in her declaration.
7
Cornelio does not include these records in his petition, but relies on Sanderson’s references to
them in her declaration.
4
No. 50818-4-II
II. CHILD HEARSAY HEARING
The trial court held a hearing the first day of trial to determine the admissibility of A.C.’s
statements to T.C. and to forensic child interviewer Keri Arnold under RCW 9A.44.120. The
State called T.C., Arnold, A.C., and Jose to testify. Defense counsel called no witnesses.
T.C. explained that A.C. had first disclosed to her that Cornelio had abused her after A.C.
overheard T.C. on the telephone and A.C. thought that her mother was “saying that her dad had
[done] something to her and she said it wasn’t her dad, it was [Cornelio].” Verbatim Report of
Proceedings (VRP) (Vol. I) at 100. T.C. reported asking A.C. why she had not told her
something earlier because T.C. had questioned A.C. “multiple times” as a result of T.C. seeing
A.C. “trying to do stuff with dolls and her brother and sister.” VRP (Vol. I) at 99. T.C. denied
that A.C. had ever accused anyone else of sexually abusing her.
T.C. explained that A.C. had been “a little instigator” when she was younger by lying to
get her sister and brother in trouble. VRP (Vol. I) at 94. T.C. stated that A.C. had been caught
lying about stealing candy from a store or items from her cousin’s house. When asked whether
A.C. understood that stealing was wrong, T.C. responded that A.C. was “getting there.” VRP
(Vol. I) at 95-96.
Arnold testified that she interviewed A.C. Arnold explained that she conducted a truth
and lie exercise with A.C., which she said A.C. appeared to understand. Arnold testified that
A.C. was able to promise to tell Arnold the truth without any difficulty and there was nothing
during the interview that gave her any concern that A.C. had been coached. Arnold reported that
A.C. had disclosed to her that Cornelio abused her.
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No. 50818-4-II
A.C. testified that her mother had discussed with her the importance of telling the truth.
A.C. affirmed that she had told the truth about Cornelio touching her and explained that she had
told Arnold everything.
Jose testified that A.C. never complained about Cornelio. He also testified that he was
not aware of A.C. alleging that anyone else had sexually abused her. Jose denied ever speaking
with A.C. about her allegations against Cornelio and denied telling A.C. what to say when she
came to court. Jose explained that A.C. had been caught lying about fighting with her sister, but
also that A.C. would admit that she lied.
The State argued that A.C.’s statements to T.C. and to Arnold were admissible under
RCW 9A.44.120 and under the Ryan8 reliability factors. Defense counsel conceded that the
factors had been met and did not object to the admission of the statements. The trial court
admitted A.C.’s statements to T.C. and Arnold under RCW 9A.44.120 and the Ryan factors.
III. TRIAL
A.C. testified at trial. She testified that Cornelio frequently would spend the night at
Jose’s house. A.C. reported that she would sleep on a little couch in the front room and Cornelio
would sleep on a big couch in the same room. Jose testified that A.C. would sleep in his room
when Cornelio came over. A.C. claimed the abuse occurred when both she and Cornelio were
sleeping on the living room couches.
A.C. testified that Cornelio would tell her not to tell her father and then would do things
that she did not like. She testified that Cornelio grabbed her behind, touched the part of A.C. that
she used to go to the bathroom, and made her touch his part that he used to go to the bathroom.
A.C. testified that these things happened more than one time. She stated that Cornelio put his
8
State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197 (1984).
6
No. 50818-4-II
mouth on her mouth, but denied that Cornelio put his mouth or tongue anywhere else on her
body.
A.C. further testified that she did not tell her mother about the abuse when it was
occurring because Cornelio told her not to. A.C. further explained that she did not tell any other
adult because she “didn’t want to tell on him,” and she thought it was “none of their business.”
VRP (Vol. VI) at 508.
T.C. testified that A.C. had begun exhibiting sexual behaviors well before the alleged
abuse. This made T.C. concerned that something had happened to A.C. and prompted T.C. to
repeatedly ask A.C. if she had ever been abused. A.C. had always denied any abuse.
T.C. testified that A.C.’s disclosure occurred when A.C. overheard her talking on the
phone because A.C. thought T.C. was talking about her. T.C. did not mention that at that
moment she was discussing her suspicions that Jose had acted inappropriately with her sister and
that she was concerned he was also acting inappropriately with A.C.
Arnold testified that delayed disclosure from children is typical, and “more often than
not” disclosure occurs months or even years after the abuse occurred. VRP (Vol. VI) at 428.
She explained that it is common for children to fear that their disclosure might get a family
member in trouble. She also testified that children often share graphic details of abuse without
“crying or appearing to have a significant emotional response.” VRP (Vol. VI) at 456. She
explained that “[c]oaching refers to the concern that a child is making a false allegation because
they are being instructed to do so by another individual.” VRP (Vol. VI) at 450-51. She then
testified that nothing from her interview with A.C. “caused [her] any concern for suggestibility
or coaching.” VRP (Vol. VI) at 476. Defense counsel did not object to these statements, but did
7
No. 50818-4-II
cross-examine Arnold on the coaching issue and asked her whether a divorce could factor into a
child’s suggestibility.
During closing argument, the prosecutor stated that A.C.’s testimony was all that was
required to find the abuse beyond a reasonable doubt. She then went on to say the following:
Can you imagine a system where we did require something else? You have
heard the testimony. Also, apply your common sense and experience here. Kids
often don’t tell about abuse that they have suffered until well after it’s over and
done with, or has been happening for years. It could be a period of months, but
more often than not, it’s years later, if they ever tell.
. . . . Most of the time, 95 percent of the time, there is no physical findings. And
according to the law, our law here in Washington State, that doesn’t matter. You
don’t need that additional evidence.
It doesn’t matter that these things don’t exist in this case. In such a system,
most children would have to be told, sorry, we can’t prosecute your case, we can’t
hold your abuser responsible because there is nothing to corroborate what you are
telling us and [no one] is going to believe a child. We don’t have a system like that.
That’s not how our system works. A child telling you what happened to them is
evidence and it’s enough.
If more was required, we couldn’t hold the majority of abusers responsible,
including this abuser. We couldn’t hold this defendant responsible for what he did
to [A.C.].
VRP (Vol. VII) at 674-75. Defense counsel did not object.
The jury found Cornelio guilty of one count of first degree child rape and three counts of
first degree child molestation.
IV. SENTENCING
At sentencing, Cornelio’s offender score was calculated as 9, and his standard sentencing
range was 240-318 months. Defense counsel argued for the low end of the range because
Cornelio was a juvenile when the incidents occurred, but did not argue for an exceptional
sentence below that range based on Cornelio’s youth. The trial court sentenced Cornelio to the
minimum 240 months in prison with 36 months of community custody.
8
No. 50818-4-II
V. APPEAL
Cornelio appealed, and we affirmed his convictions in an unpublished opinion. State v.
Cornelio, No. 46733-0-II, slip op. at 193 Wash. App. 1014 (Wash. Ct. App. Apr. 5, 2016)
(unpublished).9 Among the issues discussed in the direct appeal were Cornelio’s arguments that
he received ineffective assistance of counsel because his trial counsel failed to object to (1) the
admission of child hearsay statements and (2) prosecutorial misconduct during closing argument.
We held against each of those arguments.
On August 31, 2016, Cornelio’s petition for review to the Supreme Court was denied.
State v. Cornelio, No. 93097-0, 186 Wash. 2d 1006 (2016). On August 30, 2017, he filed this PRP.
ANALYSIS
I. PRP LEGAL PRINCIPLES & STANDARD OF REVIEW
We will grant appropriate relief to a petitioner who is under unlawful restraint for one or
more of the reasons set out RAP 16.4(c). RAP 16.4(a). To obtain relief through a PRP, a
petitioner must generally “establish that a constitutional error has resulted in actual and
substantial prejudice, or that a nonconstitutional error has resulted in a fundamental defect which
inherently results in a complete miscarriage of justice.” In re Pers. Restraint of Isadore, 151
Wash. 2d 294, 298, 88 P.3d 390 (2004). Among other reasons, a restraint may be unlawful when
there has been a significant change in the law which is material to the petitioner’s sentence and
sufficient reasons exist to require retroactive application of the changed legal standard. RAP
16.4(c)(4).
“As a general rule, ‘collateral attack by [PRP] on a criminal conviction and sentence
should not simply be a reiteration of issues finally resolved at trial and direct review, but rather
9
Http://www.courts.wa.gov/opinions/pdf/467330.pdf.
9
No. 50818-4-II
should raise new points of fact and law that were not or could not have been raised in the
principal action, to the prejudice of the defendant.’” In re Pers. Restraint of Davis, 152 Wash. 2d
647, 670-71, 101 P.3d 1 (2004) (footnotes omitted) (quoting In re Pers. Restraint of Gentry, 137
Wash. 2d 378, 388-89, 972 P.2d 1250 (1999)). A “new” issue is not created merely by supporting a
previous ground for relief with different factual allegations or with different legal arguments. Id.
at 671. “The petitioner in a [PRP] is prohibited from renewing an issue that was raised and
rejected on direct appeal unless the interests of justice require relitigation of that issue.” Id.
(footnotes omitted). The interests of justice may be served by reconsidering a ground for relief if
there has been an intervening material change in the law or some other justification for having
failed to raise a crucial point or argument on appeal. Gentry, 137 Wash. 2d at 388.
The petitioner “must support the petition with facts or evidence and may not rely solely
on conclusory allegations.” In re Pers. Restraint of Monschke, 160 Wash. App. 479, 488, 251 P.3d
884 (2010); RAP 16.7(a)(2)(i). For allegations “‘based on matters outside the existing record,
the petitioner must demonstrate that he has competent, admissible evidence to establish the facts
that entitle him to relief.’” Id. (quoting In re Pers. Restraint of Rice, 118 Wash. 2d 876, 886, 828
P.2d 1086 (1992)).
If the petitioner’s evidence is based on knowledge in the possession of others, he
may not simply state what he thinks those others would say, but must present their
affidavits or other corroborative evidence. The affidavits, in turn, must contain
matters to which the affiants may competently testify.
Rice, 118 Wash. 2d at 886. The rules applicable to PRPs “do not explicitly require that the
petitioner submit evidence, but rather the petition must identify the existence of evidence and
where it may be found.” In re Pers. Restraint of Ruiz-Sanabria, 184 Wash. 2d 632, 641, 362 P.3d
758 (2015). That being said, “[h]earsay remains inadmissible under Rice and is not a basis for
10
No. 50818-4-II
granting a reference hearing or other relief.” In re Pers. Restraint of Moncada, 197 Wash. App.
601, 608, 391 P.3d 493 (2017).10
The petitioner must also show by a preponderance of the evidence that he was prejudiced
by the error. In re Pers. Restraint of Yates, 177 Wash. 2d 1, 17, 296 P.3d 872 (2013). If the
petitioner fails to meet his threshold burden of showing prejudice, the petition must be dismissed.
In re Pers. Restraint of Hews, 99 Wash. 2d 80, 88, 660 P.2d 263 (1983). If the petitioner makes a
prima facie showing of prejudice, but the merits of the contentions cannot be determined solely
on the record, we will transmit the petition to the trial court for a full hearing on the merits or a
reference hearing pursuant to RAP 16.11(a) and RAP 16.12. Id. If we are convinced the
petitioner has proven actual prejudicial error, we will grant the PRP. Id.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Cornelio argues that he received ineffective assistance of counsel in several respects,
thereby denying him his right to a fair trial.11
A. Legal Principles and Standard of Review
Both the Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee the right of a criminal defendant to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674
10
Moncada reasoned that “Ruiz-Sanabria did not overrule or modify Rice . . . nor did Ruiz-
Sanabria involve the question of admitting hearsay . . . Ruiz-Sanabria did not change the
evidentiary standards for obtaining a reference hearing.” 197 Wash. App. at 607.
11
Cornelio contends that the State’s brief concedes two of his ineffectiveness claims (failing to
object to improper vouching and failing to object to errors of constitutional magnitude in closing
argument) by failing to argue them. We disagree. Although the State does not present a detailed
argument on those specific ineffectiveness issues, it does argue that those claims fail to meet the
evidentiary requirements of PRPs and were previously decided on the merits in Cornelio’s direct
appeal.
11
No. 50818-4-II
(1984); State v. Thomas, 109 Wash. 2d 222, 229, 743 P.2d 816 (1987). Ineffective assistance of
counsel is a mixed question of law and fact and is reviewed de novo. State v. Sutherby, 165
Wash. 2d 870, 883, 204 P.3d 916 (2009). Washington follows the Strickland test: the defendant
must show both that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense. 466 U.S. at 687; State v. Cienfuegos, 144 Wash. 2d 222, 226, 25 P.3d 1011
(2011) (stating Washington has adopted the Strickland test).
A trial counsel’s performance is deficient if it falls “below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. There is a “strong presumption that counsel’s
performance was reasonable,” State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009), and a
defendant bears the burden of establishing deficient performance. State v. McFarland, 127
Wash. 2d 322, 335, 899 P.2d 1251 (1995). A defendant can rebut this presumption by
demonstrating that “there is no conceivable legitimate tactic explaining counsel’s performance.”
State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004). That said, the “relevant question
is not whether counsel’s choices were strategic, but whether they were reasonable.” Roe v.
Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). In evaluating
ineffectiveness claims, we must be highly deferential to counsel’s decisions. State v. Michael,
160 Wash. App. 522, 526, 247 P.3d 842 (2011).
In the context of a PRP, a petitioner claiming ineffective assistance of trial counsel
necessarily establishes actual and substantial prejudice if he meets the standard of prejudice
applicable on direct appeal. In re Pers. Restraint of Lui, 188 Wash. 2d 525, 538, 397 P.3d 90
(2017). To show prejudice, the defendant must show that but for counsel’s deficient
performance there is a reasonable probability the outcome of the proceeding would have been
different. State v. Grier, 171 Wash. 2d 17, 34, 246 P.3d 1260 (2011). “A reasonable probability is
12
No. 50818-4-II
a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694;
Thomas, 109 Wash. 2d at 226.
Even if a petitioner raised a claim of ineffective assistance of counsel on direct appeal,
the petitioner may assert ineffective assistance on a different basis on collateral review. In re
Pers. Restraint of Khan, 184 Wash. 2d 679, 688-89, 363 P.3d 577 (2015).
B. Pretrial Investigation
Cornelio first argues that his trial counsel’s performance was deficient because he failed
to obtain records and interview key witnesses prior to trial. Specifically, he claims that his trial
counsel (1) did not seek A.C.’s counseling records which allegedly contradict her claims of
abuse, (2) failed to obtain public divorce records that allegedly showed that A.C. was exposed to
many men during the time of the alleged abuse and that identified the exact date of the divorce as
the day before A.C. accused Cornelio, and (3) failed to interview family members who had daily
interactions with A.C. during the time of the alleged abuse, including Cornelio’s brother Edgar,
who Cornelio alleges stayed with him nearly every time he spent the night at Jose’s house.12
Counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. Strickland, 466 U.S. at 691. Strickland
elaborated:
The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions. For example, when the
facts that support a certain potential line of defense are generally known to counsel
12
Cornelio also claims his counsel failed to interview key prosecution witnesses, including those
who provided the most damaging child hearsay evidence at trial, but does not provide any further
argument. He does not specify which witnesses he is referring to, and he does not give evidence
that counsel failed to interview them or explain how he was prejudiced. Furthermore, as
evidenced from Cornelio’s own petition, counsel did interview T.C., Jose, and A.C. before trial.
The trial transcript also reveals that counsel cross-examined other witnesses for the State, and
there is no indication that having not interviewed them beforehand harmed counsel’s preparation
or performance with respect to those witnesses. We accordingly reject this claim.
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No. 50818-4-II
because of what the defendant has said, the need for further investigation may be
considerably diminished or eliminated altogether.
Id.
Effective assistance of counsel requires that trial counsel investigate the case, which
includes witness interviews. State v. Jones, 183 Wash. 2d 327, 339, 352 P.3d 776 (2015). “Failure
to investigate or interview witnesses, or to properly inform the court of the substance of their
testimony, is a recognized basis upon which a claim of ineffective assistance of counsel may
rest.” State v. Ray, 116 Wash. 2d 531, 548, 806 P.2d 1220 (1991). Courts will not defer to trial
counsel’s uninformed or unreasonable failure to interview a witness. Jones, 183 Wash. 2d at 340.
However, “there is no absolute requirement that defense counsel interview witnesses before
trial.” In re Pers. Restraint of Pirtle, 136 Wash. 2d 467, 488, 965 P.2d 593 (1998).
Whether a failure to interview a particular witness constitutes deficient performance
depends on the reason for the trial lawyer’s failure to interview. Jones, 183 Wash. 2d at 340. In
addition, a defendant raising a “failure to investigate” claim must show “a reasonable likelihood
that the investigation would have produced useful information not already known to defendant’s
trial counsel.” Davis, 152 Wash. 2d at 739. Even if a defendant can show such information would
have been uncovered, the potential resulting prejudice “‘must be considered in light of the
strength of the government’s case.’” Id. (quoting Rios v. Rocha, 299 F.3d 796, 808-09 (9th Cir.
2002)).
1. Counseling and Divorce Records
Cornelio claims that A.C.’s counseling records “capture both the lack of allegations of
abuse during the relevant time periods that A.C. now claims she was abused, but also detail the
alleged abuse after she made her initial allegations.” PRP at 23. He also claims that Jose’s and
T.C.’s divorce records show that A.C. was exposed to many men and inappropriate situations
14
No. 50818-4-II
during the years when the abuse allegedly took place and confirmed that A.C.’s disclosure
occurred the day after the divorce was finalized. These records also purportedly show that Jose
had concerns that T.C. was influencing what A.C. was saying during the custody battle.
Cornelio argues that counsel’s failure to obtain these records and bring out their content
at trial was deficient performance, particularly because the timing of the divorce was critical to
the defense’s case that A.C.’s disclosure was related to her parents’ separation and custody
battle.
There is nothing in the record to suggest why defense counsel declined to pursue A.C.’s
counseling records or the divorce records. Cornelio claims that counsel knew of these records’
existence but clearly did not know their content. Cornelio does not provide us with these
records. With respect to the counseling records, Cornelio does not present any direct evidence of
their content, but claims that T.C. took A.C. in for counseling “to explore her sexual abuse
history.” PRP at 2-3. In support, Cornelio cites Exhibit A of his petition and VRP (Vol. VII) at
561-564. These sources do not state that A.C. was in counseling to explore sexual abuse history,
but do suggest that A.C. was referred for therapy at least in part due to inappropriate boyfriend-
girlfriend play with other children and straddling the legs of adult male visitors. See PRP,
Exhibit A, at 18-20, 28-30; VRP (Vol. VII) at 564. As for the divorce records, Cornelio relies on
Sanderson’s declaration to show that they contain evidence to support his claims.13
The State argues that none of the evidence that Cornelio relies on in his PRP is
admissible. Because Sanderson’s declaration relies on matters outside the existing record,
Cornelio must demonstrate that he has “competent, admissible evidence to establish the facts that
13
Cornelio also cites Sanderson’s declaration to support his claim that trial counsel never sought
A.C.’s counseling records, but that declaration does not mention counseling records.
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No. 50818-4-II
entitle him to relief.” Monschke, 160 Wash. App. at 488. Contrary to the State’s claim,
Sanderson’s declaration need not be admissible itself, but must merely establish that Cornelio
possesses competent, admissible evidence. Id.
Cornelio makes no argument that A.C.’s counseling records would be admissible, and
they are likely protected by privilege. Moreover, even considering the partial purposes of the
counseling described above, he does not show a reasonable likelihood that investigation of the
counseling records would have produced useful information not already known to counsel.
Davis, 152 Wash. 2d at 739. In the absence of any argument or authority that the counseling
records would be admissible, we cannot assume that they would be. In addition, Cornelio has
not shown under the standards above that trial counsel was deficient in not pursuing the
counseling records or that counsel’s failure to pursue them resulted in prejudice to him. We
therefore hold against Cornelio’s claims based on A.C.’s counseling records.
However, it is likely that her parents’ publicly available divorce records would be
admissible. Hence, with respect to the divorce records, Cornelio has met his burden to show that
he possesses competent, admissible evidence. Id.
To show his counsel was deficient, Cornelio must demonstrate a reasonable likelihood
that investigation of the divorce records would have produced useful information not already
known to counsel. Davis, 152 Wash. 2d at 739. There is some support in the record for Cornelio’s
contention that defense counsel did not know the exact date the divorce was finalized, as he
could not refresh Jose’s memory when Jose struggled to provide that date on cross-examination.
However, counsel established in his cross-examination of T.C. that the divorce was finalized on
October 12 and that she contacted the police about A.C.’s disclosure “the day after.” VRP (Vol.
VII) at 565. Furthermore, in his closing argument counsel argued that the disclosure occurred
16
No. 50818-4-II
“right around that time when Jose got custody of the children after a court battle.” VRP (Vol.
VII) at 696. In addition, counsel highlighted the concerns regarding A.C.’s suggestibility and
coaching that were echoed in the divorce proceedings.
It does not appear that investigation of the divorce records would have produced any
useful information not already known to counsel. Davis, 152 Wash. 2d at 739. The record shows
that counsel knew, and established for the jury, that the divorce occurred the day before A.C.’s
disclosure and that there were concerns that she was being influenced by her mother. Because
Cornelio has not shown that further investigation would have produced new information, he
cannot demonstrate deficient performance on this basis.
2. Potential Witnesses
Cornelio also argues counsel was deficient in failing to interview A.C.’s friend and
several of Cornelio’s family members, including his brother. We examine each of these potential
witnesses in turn.
i. A.C.’s friend
First, we conclude it was not deficient performance for counsel not to interview A.C.’s
friend, to whom A.C. disclosed her alleged abuse by Cornelio several months before her
disclosure to T.C. According to A.C., her friend is also a relative of Cornelio’s and “told [A.C.]
that it happened to her too.” PRP, Ex. E, at 6. In fact, the friend separately reported to police
that her male cousin exposed his penis to her, but could not remember any more details or
identify the man by name. This suggests that it was a strategic choice not to interview A.C.’s
friend, since counsel would have had reason to believe that the friend would only corroborate
A.C.’s allegation. Under the circumstances, it was reasonable for counsel not to pursue this line
of inquiry.
17
No. 50818-4-II
ii. Family Members
Sanderson states in her declaration that unnamed family members reported that T.C. had
accused Jose of abusing her sister and A.C. for years and that T.C. was not trustworthy.
Additionally, according to Sanderson’s declaration, those family members reported that A.C.
never appeared nervous or uncomfortable around Cornelio and never complained about coming
over to Cornelio’s house, where Margarita would babysit her. Sanderson’s declaration also
states that Margarita reported that she had almost daily contact with A.C. during the years the
abuse took place, and she continued to babysit A.C. even after the allegations were made.
Cornelio has not provided us with statements by these family members, nor has he
suggested that they would have been willing and able to testify at trial. The State argues that the
family members’ statements referenced in the declaration are inadmissible hearsay and should
not be considered.
With respect to the statements of Cornelio’s family members, Sanderson’s declaration
does not meet the evidentiary standard of Rice. Sanderson cannot competently testify to the
hearsay statements contained within her declaration, and Cornelio has made no argument that
they fall under any hearsay exception. See Rice, 118 Wash. 2d at 886. Instead he argues that these
statements serve as “other corroborative evidence,” and that such evidence can include hearsay.
Reply Br. of Pet’r at 8. However, “[h]earsay remains inadmissible under Rice and is not a basis
for granting a reference hearing or other relief.” Moncada, 197 Wash. App. at 608.
Because Cornelio has not shown that he has competent, admissible evidence of what his
family members would testify to, we reject his claim of ineffective assistance counsel based on
his counsel’s failure to interview them. Monschke, 160 Wash. App. at 488.
18
No. 50818-4-II
iii. Edgar
Finally, Cornelio claims that his brother Edgar would have testified that he was with
Cornelio at Jose’s house on almost every occasion and never saw Cornelio act inappropriately
with A.C.
Unlike Cornelio’s other family members, Edgar submitted his own declaration outlining
what he would have testified to. He claims that he and Cornelio “always spent the night at Jose’s
house together, with the exception of only a few times when [he] recalls [Cornelio] spending the
night without [him].” PRP, Ex. D, at ¶6. Edgar claims that every night he and Cornelio were at
Jose’s house together they slept on the small couches in the living room, while A.C. typically
would sleep in Jose’s room but occasionally would sleep on the large couch in the living room.
Edgar would have testified that he had never seen Cornelio act inappropriately toward A.C. and
that he is certain that he would have been aware of any inappropriate activity between them
occurring at Jose’s house. As Edgar has firsthand knowledge of the facts he would testify to, his
declaration does “contain matters to which [he] may competently testify.” Rice, 118 Wash. 2d at
886. His declaration therefore satisfies the evidentiary standards of Rice.
Even if we assume without deciding that Cornelio’s trial counsel was deficient for failing
to interview Edgar, Cornelio must still demonstrate prejudice. We hold he was not prejudiced.
Cornelio argues he was prejudiced because Edgar’s testimony would have directly
contradicted much of what A.C. claimed at trial. Specifically, Cornelio claims that Edgar’s
statement that he always slept on the living room couches with Cornelio, yet never saw Cornelio
act inappropriately with A.C., would have created a “reasonable chance that some jurors, or even
one juror, would have found [Cornelio] not guilty.” PRP at 25.
19
No. 50818-4-II
Cornelio relies on Jones, which involved a “credibility contest” between the State’s
witnesses and the defendant’s witnesses. 183 Wash. 2d at 344. Jones concluded that the defendant
was prejudiced because defense counsel did not interview a witness who (1) would have directly
contradicted the alleged victim’s version of events, (2) would have corroborated similar
testimony of another witness, (3) would have provided “very defense-favorable testimony” that
the defendant was in fact the victim, and (4) was a neutral observer with no relationship to either
the defendant or the alleged victim. Id. at 341-43.
This case is distinguishable from Jones. First, although Edgar would have contradicted
A.C.’s description of the sleeping arrangements, he would not be able to directly contradict her
claims of abuse because he could not have provided an alibi for the nights when he did not join
Cornelio at Jose’s house. Second, although Edgar’s testimony that he never saw Cornelio act
inappropriately would have supported Jose’s testimony to that point, he also would have
contradicted Jose’s favorable testimony that A.C. always slept in Jose’s room when Cornelio was
there.
For these reasons, we hold that Cornelio was not prejudiced because there is not a
reasonable probability the outcome of the trial would have been different had defense counsel
interviewed Edgar.
3. Cumulative Effect
To the extent Cornelio argues cumulative error, he does not demonstrate ineffective
assistance of counsel taking each of these alleged failures to investigate cumulatively. As
discussed above, much of the evidence Cornelio identifies does not meet PRP evidentiary
standards. The remaining evidence either does not provide new information previously unknown
to counsel or lacks the exculpatory strength, even taken together, to suggest that but for its
20
No. 50818-4-II
exclusion there is a reasonable probability that Cornelio would have been acquitted. We reject
Cornelio’s argument of ineffective assistance counsel for failure to investigate the case.
C. Child Hearsay Hearing
Cornelio’s second ineffective assistance claim is that his trial counsel failed to cross-
examine witnesses at the child hearsay hearing or object to admission of child hearsay
statements.14 Cornelio presents several bases for objecting to A.C.’s statements based on the
factors espoused in Ryan: (1) there was evidence that A.C. had a reputation for untruthfulness,
as articulated by her mother at the hearsay hearing, (2) the disclosure was not spontaneous, but
was in response to her mother’s continued assertions that A.C. was being abused by Jose, and (3)
the timing of the disclosure and facts surrounding the custody battle for A.C. were not discussed
as an apparent motive to lie. He argues that there was no legitimate strategic or tactical reason
for his trial counsel to concede the admission of A.C.’s hearsay statements.
We rejected Cornelio’s claim regarding his trial counsel’s failure to object to the
admission of those statements in his direct appeal. Cornelio, slip op at 193 Wash. App. 1014.
Cornelio must therefore demonstrate that the interests of justice require relitigation of that issue.
Davis, 152 Wash. 2d at 671. He argues that we should revisit this issue because he raises new facts
and analysis not raised in his direct appeal and the alleged error was manifest error affecting a
constitutional right. In re Pers. Restraint of Percer, 111 Wash. App. 843, 847, 47 P.3d 576 (2002)
(“In light of the clear error involving a constitutional right, we reexamine the issue in the
14
Although Cornelio claims ineffective assistance based on his counsel’s failure to cross-
examine witnesses in his grounds for relief, he does not provide any argument in support of this
assertion and instead focuses exclusively on his counsel’s failure to object. Hence, we decline to
consider it. RAP 10.3(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828
P.2d 549 (1992).
21
No. 50818-4-II
interests of justice.”). Specifically, he maintains that his direct appeal did not focus on the lack
of meaningful adversarial testing of the prosecution’s case by his trial counsel, nor did it argue
that the issue involved a manifest error affecting a constitutional right. He contends that the
interests of justice will be served because this issue was only “cursorily discussed” in his direct
appeal. Reply Br. of Pet’r at 12.
We hold this is insufficient justification to relitigate this issue. “[S]imply recasting” a
previously rejected legal argument “‘does not create a new ground for relief or constitute good
cause for reconsidering the previous rejected claim.’” Davis, 152 Wash. 2d at 671 (quoting In re
Pers. Restraint of Stenson, 142 Wash. 2d 710, 720, 16 P.3d 1 (2001)). Moreover, there is no “clear
error” involving Cornelio’s constitutional right to counsel with respect to the child hearsay
hearing. Percer, 111 Wash. App. at 847. Trial counsel’s decision about whether to object is a
classic example of trial tactics and only in egregious circumstances relating to evidence central to
the State's case will the failure to object constitute incompetent representation that justifies
reversal. State v. Madison, 53 Wash. App. 754, 763, 770 P.2d 662 (1989). Even assuming
Cornelio meets this standard, he does not show prejudice: that the trial court would have
sustained the objections if made and the result of the proceeding would likely have been
different. See State v. Saunders, 91 Wash. App. 575, 578, 958 P.2d 364 (1998).
As we noted in Cornelio’s direct appeal, despite defense counsel’s concession on the
Ryan factors, the trial court nevertheless provided a detailed analysis of those factors and
concluded that A.C.’s hearsay statements were admissible under RCW 9A.44.120. See Cornelio,
slip op at 193 Wash. App. 1014. The trial court made specific findings that A.C. was truthful, her
disclosure was spontaneous, and she had no apparent motive to lie. The fact that the court
22
No. 50818-4-II
independently found the Ryan factors met strongly suggests it would not have sustained an
objection arguing the contrary or chosen to exclude the statements.
Moreover, even if Cornelio could show that the court may have decided differently with
respect to any or each of the three Ryan factors he points to in his petition, he must also show
that the trial court would probably have ruled differently with respect to its consideration of all
the Ryan factors taken together. See Kennealy, 151 Wash. App. at 881 (“No single Ryan factor is
decisive and the reliability assessment is based on an overall evaluation of the factors.”). He has
not done so. We are satisfied there was no clear error and that Cornelio has not shown a
reasonable probability that the trial court would have ruled differently had he objected.
Cornelio also argues that his circumstance warrants a presumption of prejudice because
by failing to object to the hearsay statements his counsel “‘entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing.’” PRP at 33 (quoting Davis, 152 Wash. 2d at
673-75). This “‘presumptive prejudice rule’” is limited to circumstances comparable to “‘the
complete denial of counsel’” in the context of the entire representation. Davis, 152 Wash. 2d at
674-75 (quoting Visciotti v. Woodford, 288 F.3d 1097, 1106 (9th Cir. 2002)). That was not the
case here. Defense counsel cross-examined witnesses, raised objections to evidence, presented
closing argument to the jury, and advocated for a shorter prison sentence at sentencing. See id. at
675.
For these reasons, we hold there was no clear error affecting a constitutional right and the
interests of justice do not require us to reconsider our holding on direct appeal that Cornelio was
not prejudiced by his counsel’s performance at the child hearsay hearing.
23
No. 50818-4-II
D. At Trial
Cornelio’s final grounds for arguing ineffective assistance of counsel rest on his
counsel’s performance at trial. Specifically, he argues his counsel failed to (1) cross-examine
witnesses, (2) object to impermissible opinion testimony, and (3) object to prosecutorial
misconduct in closing argument.
1. Cross-Examination
Cornelio argues his counsel was deficient in failing to meaningfully cross-examine key
witnesses who testified against him. Specifically, Cornelio contends his counsel was deficient
because he failed to highlight T.C.’s suspicions that Jose had been abusing A.C. and that A.C.
had been exhibiting sexually inappropriate behaviors before the alleged abuse by Cornelio. He
also argues his counsel “seemed confused at best” in failing to effectively cross-examine Jose
and T.C. about the timing of A.C.’s disclosure to highlight that it occurred the day after their
divorce. PRP at 35.
The extent of cross-examination is a matter of judgment and strategy. Davis, 152 Wash. 2d
at 720. We will not find ineffective assistance of counsel based on trial counsel’s decisions
during cross-examination if counsel’s performance fell within the range of reasonable
representation. Id.
Although counsel may not have emphasized this information as much as Cornelio would
have liked, the fact remains that most of this information was established on the record for the
jury to consider. Counsel did not explicitly draw out the fact that A.C. was exhibiting sexualized
behaviors before the alleged abuse, but he did establish that A.C. claimed she learned those
behaviors from movies and that starting when A.C. was three years old T.C. had harbored
suspicions that Jose had abused A.C. Counsel’s choice to highlight where A.C. learned those
24
No. 50818-4-II
behaviors, rather than when she exhibited them, fell within the range of reasonable
representation.
As for the timing of the disclosure, although counsel did not clarify the timing during
Jose’s testimony, he did establish on cross-examination of T.C. that A.C.’s disclosure occurred
the day after the divorce was finalized. Counsel’s performance in drawing out this fact for the
jury to consider likewise fell within the range of reasonable representation.
Cornelio’s argument essentially “amounts to an assertion that trial counsel could have
done a better job at cross-examination. This is not enough to demonstrate deficient
performance.” State v. Johnston, 143 Wash. App. 1, 20, 177 P.3d 1127 (2007). We hold counsel
was not deficient.
2. Improper Opinion Testimony15
Cornelio next claims that his trial counsel failed to object when the State’s witness
improperly commented on A.C.’s credibility.16 Specifically, Cornelio claims that Arnold
improperly stated that she had “no concern” that A.C. was coached or that suggestibility affected
her disclosure, improperly discussed that delayed disclosure was “typical,” and improperly
15
In his grounds for relief, Cornelio characterizes this argument as part of his claim of
ineffective assistance of counsel. However, in arguing this issue he instead presents the standard
for manifest error of constitutional magnitude, which is an exception to the rule that an appellate
court may refuse to review an unpreserved error on direct appeal. RAP 2.5(a). As that is the
standard on direct appeal, rather than in a PRP, we instead analyze this claim under the ordinary
framework for ineffective assistance of counsel for failure to object.
16
Cornelio initially characterizes this claim as improper vouching, which occurs when a
prosecutor expresses a personal belief in a witness’s credibility. See State v. Thorgerson, 172
Wash. 2d 438, 443, 258 P.3d 43 (2011). However, his argument in fact is not that the State
prosecutor vouched for A.C.’s credibility, but that the State’s witness provided impermissible
opinion testimony on A.C.’s credibility.
25
No. 50818-4-II
suggested that it was common for children not to show a significant emotional response when
talking about their abuse. PRP at 36; VRP (Vol. VI) at 428-29, 455-56, 476.
No witness may state an opinion about a victim’s credibility because such testimony
“invades the jury’s exclusive function to weigh the evidence and determine credibility.” State v.
Alexander, 64 Wash. App. 147, 154, 822 P.2d 1250 (1992). Impermissible opinion testimony
regarding the defendant’s guilt may be reversible error because it violates the defendant’s
constitutional right to a jury trial, which includes the independent determination of the facts by
the jury. State v. Kirkman, 159 Wash. 2d 918, 927, 155 P.3d 125 (2007).
Testimony on general child victim interview protocol does not improperly comment on
the truthfulness of the victim. Kirkman, 159 Wash. 2d at 934. Furthermore,
it has long been recognized that a qualified expert is competent to express an
opinion on a proper subject even though he thereby expresses an opinion on the
ultimate fact to be found by the trier of fact. The mere fact that the opinion of an
expert covers an issue which the jury has to pass upon, does not call for automatic
exclusion.
Id. at 929 (internal citations omitted).
Cornelio argues that Arnold’s explanations of delayed disclosure and children’s lack of
emotional response to recounting their abuse improperly went beyond general testimony about
child victim interview protocol. We disagree.
Arnold at no time linked her discussions of delayed disclosure or the common lack of
emotional response from child victims to A.C. specifically; she merely described some of the
psychological factors that generally bear on how children might act and present themselves after
they are abused or in recounting their abuse. The jury was then left to weigh this general
information in its consideration of A.C.’s credibility.
26
No. 50818-4-II
Cornelio also argues that Arnold’s statement that she had no concern that A.C. had been
coached amounted to an “explicit statement regarding the accuracy and truthfulness of A.C.’s
accusations” and that, therefore, trial counsel’s failure to object to it was a manifest
constitutional error. PRP at 38. Again, we disagree.
Arnold did not say that A.C. was telling the truth or that she believed her, but rather made
an inference based on her interactions with A.C. that A.C. was not exhibiting certain behaviors
of coaching or suggestibility. Arnold testified that in her professional experience, these can be
an issue when interviewing and counseling child victims.
We hold Arnold’s statements were not improper, and defense counsel was not deficient
for failing to object to them.
3. Prosecutorial Misconduct17
Finally, Cornelio argues his trial counsel failed to object to alleged prosecutorial
misconduct during closing argument.18
Although prosecutors enjoy “wide latitude to argue reasonable inferences from the
evidence,” they “must ‘seek convictions based only on probative evidence and sound reason.’”
In re Pers. Restraint of Glassman, 175 Wash. 2d 696, 704, 286 P.3d 673 (2012) (quoting State v.
Casteneda-Perez, 61 Wash. App. 354, 363, 810 P.2d 74 (1991)). To prevail on a prosecutorial
17
Cornelio classifies this argument as an ineffective assistance of counsel claim, but instead
argues under the framework for analyzing prosecutorial misconduct on direct appeal. We
accordingly address this argument as an ordinary claim of prosecutorial misconduct in the
context of PRP requirements that Cornelio show actual and substantial prejudice.
18
Although Cornelio made several claims of prosecutorial misconduct in his direct appeal, none
of them overlap with the statements he challenges in his PRP. Hence, this argument raises new
points of fact and law that were not raised in the principal action. See Davis, 152 Wash. 2d at 670-
71. If there is doubt about whether two grounds are distinct, we resolve the doubt in the
petitioner’s favor. In re Pers. Restraint of Taylor, 105 Wash. 2d 683, 688, 717 P.2d 755 (1986).
27
No. 50818-4-II
misconduct claim, a defendant must show that the conduct was both improper and prejudicial “in
the context of the record and all of the circumstances of the trial.” Id.
In establishing prejudice where the defendant did not object at trial, the defendant is
deemed to have waived the error unless the misconduct was so flagrant and ill-intentioned that
an instruction could not have cured the resulting prejudice. State v. Emery, 174 Wash. 2d 741, 760-
61, 278 P.3d 653 (2012). In that case “the defendant must show that (1) ‘no curative instruction
would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in
prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting
State v. Thorgerson, 172 Wash. 2d 438, 455, 258 P.3d 43 (2011)).
Cornelio challenges the following segment of the State’s closing argument, which
followed its statement that A.C.’s testimony was all that was required to find the abuse beyond a
reasonable doubt:
Can you imagine a system where we did require something else? You have
heard the testimony. Also, apply your common sense and experience here. Kids
often don’t tell about abuse that they have suffered until well after it’s over and
done with, or has been happening for years. It could be a period of months, but
more often than not, it’s years later, if they ever tell.
. . . . Most of the time, 95 percent of the time, there is no physical findings. And
according to the law, our law here in Washington State, that doesn’t matter. You
don’t need that additional evidence.
It doesn’t matter that these things don’t exist in this case. In such a system,
most children would have to be told, sorry, we can’t prosecute your case, we can’t
hold your abuser responsible because there is nothing to corroborate what you are
telling us and [no one] is going to believe a child. We don’t have a system like
that. That’s not how our system works. A child telling you what happened to them
is evidence and it’s enough.
If more was required, we couldn’t hold the majority of abusers responsible,
including this abuser. We couldn’t hold this defendant responsible for what he did
to [A.C.].
VRP (Vol. VII) at 675 (emphasis added). Defense counsel did not object.
28
No. 50818-4-II
Cornelio compares these remarks to those in State v. Thierry, which we held constituted
prosecutorial misconduct. In her opening argument, the prosecutor in Thierry stated:
If the law required more, if the law required anything, something, anything beyond
the testimony of a child, the child’s words, [J.T.’s] words, those instructions would
tell you that, and there is no instruction that says you need something else. And,
again, if that was required, the State could rarely, if ever, prosecute these types of
crimes because people don’t rape children in front of other people and often because
children wait to tell.
190 Wash. App. 680, 685, 360 P.3d 940 (2015), review denied, 185 Wash. 2d 1015 (2016). After
defense counsel’s closing argument, in which counsel tried to rehabilitate Thierry’s credibility
and highlight inconsistencies in the child victim’s statements and the victim’s potential motive to
lie, the prosecutor returned to her theme in rebuttal:
[Defense counsel] says, “It’s a good thing to tell kids, ‘Tell someone if you’ve been
abused. You’re not going to get in trouble.’” She said, “It’s a good thing to make
sure that they know that they can tell when this has happened to them.” That
statement contradicts everything that she just stood up here and argued to you
about. How is it a good thing when basically the crux of her argument is: “They
aren’t going to be believed. Children can’t be believed. There’s never any other
physical evidence. We can’t believe what they say because they make up stories,”
so how is it a good thing to tell them that they should tell somebody because we’re
going to bring them in here to court to have a Defense attorney say, You can’t
believe them.”
....
[Defense counsel] wants you to basically disregard everything that [J.T.] has said
between what he told [his mother], between what he told Ms. Arnold-Harms,
between when he told his primary care provider Ms. Lin and what he told Amber
Bradford. “Just disregard all of that because he’s a child, because he was 8 when
he said these things and because he was 9 when he was on the stand. Nothing he
said is credible so just disregard it all.” If that argument has any merit, then the
State may as well just give up prosecuting these cases, and the law might as well
say that “the word of a child is not enough.”
Id. at 687-88.
“It is improper for prosecutors to ‘use arguments calculated to inflame the passions or
prejudices of the jury.’” Id. at 690 (quoting Glassman, 175 Wash. 2d at 704). Thierry reasoned
that an argument that “‘exhorts the jury to send a message to society about the general problem
29
No. 50818-4-II
of child sexual abuse’ qualifies as such an improper emotional appeal.” Id. (quoting State v.
Bautista-Caldera, 56 Wash. App. 186, 195, 783 P.2d 116 (1989)). The court accordingly held that
the comment was improper because it essentially told the jury that it needed to convict the
defendant in order to allow reliance on the testimony of victims of child sex abuse and protect
future victims. Id. at 691.
The prosecutor’s comments in this appeal do not share the flaws present in Thierry. As
noted, the prosecutor’s message in Thierry was essentially that the jury needed to convict the
defendant in order to allow reliance on the testimony of child victims in future cases and to
protect future victims of such abuse. Here, the prosecutor instead highlighted the standard of
evidence to make sure the jury understood that A.C.’s testimony alone may be sufficient to meet
the State’s burden of proof, should the jury find A.C. credible. The prosecutor’s statement in this
case merely reflected the law and did not have the inflammatory effect of the statement in
Thierry. Because the statement was not improper, we need not consider whether Cornelio was
prejudiced.19
III. SIGNIFICANT CHANGE IN LAW
Cornelio argues that a significant change in law applies retroactively to his case and
requires remand for a new sentencing hearing. Specifically, he argues that State v. O’Dell, a
recent Washington Supreme Court decision issued after the imposition of his sentence, holds that
trial courts should consider youth as a mitigating factor and gives courts the discretion to impose
an exceptional sentence below the standard range applicable to adults. 183 Wash. 2d 680, 358 P.3d
359 (2015), review denied, 189 Wash. 2d 1007 (2017). He argues similarly that State v. Houston-
19
For the same reason, we likewise need not address Cornelio’s conclusory argument that
defense counsel was ineffective for failing to object.
30
No. 50818-4-II
Sconiers, 188 Wash. 2d 1, 391 P.3d 409 (2017), constituted a significant change in the law through
its requirement that trial courts consider the characteristics of youth in sentencing for offenses
committed while a juvenile.
A. Legal Principles and Standard of Review
A restraint may be unlawful when there has been a significant change in the law which is
material to the petitioner’s sentence and sufficient reasons exist to require retroactive application
of the changed legal standard. RAP 16.4(c)(4). A significant change in the law occurs “when an
intervening appellate decision overturns a prior appellate decision that was determinative of a
material issue.” State v. Miller, 185 Wash. 2d 111, 114, 371 P.3d 528 (2016). An intervening
decision that “‘settles a point of law without overturning prior precedent’” does not constitute a
significant change in the law. Id. at 114-15 (quoting In re Pers. Restraint of Turay, 150 Wash. 2d
71, 83, 74 P.3d 1194 (2003)). One test to determine whether a decision represents a significant
change in the law is whether the defendant could have argued the issue in question before
publication of the intervening decision. Id. at 115.
B. Significant Change in the Law
RCW 9.94A.535(1)(e) provides that a trial court may impose an exceptional sentence
below the standard range if it finds mitigating circumstances, including impairment of the
defendant’s capacity to appreciate the wrongfulness of his conduct. O’Dell held that “a
defendant’s youthfulness can support an exceptional sentence below the standard range
applicable to an adult felony defendant, and that the sentencing court must exercise its discretion
to decide when that is.” 183 Wash. 2d at 698-99. The court explained,
Until full neurological maturity, young people in general have less ability to control
their emotions, clearly identify consequences, and make reasoned decisions than
they will when they enter their late twenties and beyond.
31
No. 50818-4-II
Id. at 692. In drawing these conclusions, O’Dell relied on the reasoning and scientific
information underlying the United States Supreme Court’s decisions in Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012).
In rejecting O’Dell’s argument that it should consider his age as a mitigating
circumstance at sentencing, the trial court in O’Dell relied on State v. Ha’mim, which held that a
defendant’s age, alone, does not automatically support an exceptional sentence below the
standard range applicable to an adult felony offender. O’Dell, 183 Wash. 2d at 689; State v.
Ha’mim, 132 Wash. 2d 834, 847, 940 P.2d 633 (1997). The trial court in O’Dell interpreted this
holding as “absolutely barring any exceptional downward departure sentence below the range on
the basis of youth.” O’Dell, 183 Wash. 2d at 698. O’Dell reversed the trial court and specified that
Ha’mim did not bar trial courts from considering youth at sentencing. Id. at 689. Rather, O’Dell
characterized Ha’mim as holding “only that the trial court may not impose an exceptional
sentence automatically on the basis of youth, absent any evidence that youth in fact diminished a
defendant’s culpability.” Id. Hence, rather than directly overturning Ha’mim, O’Dell merely
“disavowed” Ha’mim’s reasoning to the extent that it was inconsistent with its own. Id. at 696.
Cornelio argues that under O’Dell he is entitled to a new sentencing hearing so that the
trial court can be allowed to consider his youth as a mitigating factor. Although Cornelio was
tried and convicted as an adult, his crimes were committed when he was between 14 and 16
years old.
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No. 50818-4-II
After both parties filed their briefs, our Supreme Court held that O’Dell did not constitute
a “significant change in the law.”20 In re Pers. Restraint of Light-Roth, 191 Wash. 2d 328, 422
P.3d 444, reconsideration denied (2018). Light-Roth reasoned that the O’Dell court had
“explained that Ha’mim did not preclude a defendant from arguing youth as a mitigating factor
but, rather, it held that the defendant must show that his youthfulness relates to the commission
of the crime.” Id. at 336. Hence, “RCW 9.94A.535(1)(e) has always provided the opportunity to
raise youth for the purpose of requesting an exceptional sentence downward, and mitigation
based on youth is within the trial court’s discretion.” Id.
Because we are bound by Light-Roth’s holding that O’Dell did not constitute a significant
change in the law, we reject Cornelio’s argument for resentencing based on O’Dell.
Cornelio also points to Houston-Sconiers as a recent expansion of the principles espoused
in O’Dell justifying resentencing.21 He notes that Houston-Sconiers held that “[t]rial courts must
consider mitigating qualities of youth at sentencing and must have discretion to impose any
sentence below the otherwise applicable [sentencing range].” 188 Wash. 2d at 21.
As Light-Roth held, trial courts have always had this discretion to impose an exceptional
sentence based on the youth of the defendant. This, however, does not resolve whether the
requirement to consider the characteristics of youth significantly changes prior law. To answer
20
Although Light-Roth interpreted the concept of “significant change in the law” for the
purposes of the exceptions to the one year PRP time bar under RCW 10.73.090(1), its reasoning
applies equally to that phrase’s usage in RAP 16.4(c)(4).
21
The State argues that Cornelio cannot rely on Houston-Sconiers because it was decided after
his case was “final” for the purposes of retroactivity analysis. Br. of Resp’t at 25, 26 n.3. But in
the context of RAP 16.4(c), there is no need for the petitioner’s case to be ongoing for us to
consider whether there has been a significant change in the law that should be applied
retroactively. As Cornelio’s petition is timely, it need not meet the retroactivity criteria of RCW
10.73.100(6) as an exception to the one-year time bar under RCW 10.73.090(1). Rather, it must
meet the retroactivity standard of RAP 16.4(c)(4).
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No. 50818-4-II
that question, we follow Miller, 185 Wash. 2d at 114, and ask whether Houston-Sconiers overturns
a prior appellate decision that was determinative of a material issue. Houston-Sconiers does not
overturn any such decision.
First, the requirement to consider youth in Houston-Sconiers did not overturn Ha’mim.
As clarified by O’Dell and Light-Roth, Ha’mim did not preclude a defendant from arguing youth
as a mitigating factor, but held that the defendant must show that his youthfulness relates to the
commission of the crime. Light-Roth, 191 Wash. 2d at 336. Houston-Sconiers recognized the
constitutional differences between children and adults and required courts to consider the
characteristics of youth in sentencing. 188 Wash. 2d at 18. These principles do not overturn the
holdings of Ha’mim, as clarified by O’Dell and Light-Roth.
For similar reasons, Houston-Sconiers also did not overturn State v. Scott, 72 Wash. App.
207, 866 P.2d 1258 (1993). Scott deemed the argument that youth limited the defendant’s
capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the
requirements of the law as one that “borders on the absurd.” Scott, 72 Wash. App. at 218.
However, Light-Roth also clarified that Scott did not categorically preclude consideration of
youth, but rather, like Ha’mim, required the defendant to explain how his youthfulness related to
the commission of the crime. 191 Wash. 2d at 336. Although Houston-Sconiers repudiates the
apparent attitude of Scott, it cannot be said to have overturned its holdings.
Houston-Sconiers merely “‘settle[d] a point of law without overturning prior precedent,’”
and so does not constitute a significant change in the law under RAP 16.4(c)(4). Miller, 185
Wash. 2d at 114-15 (quoting Turay, 150 Wash. 2d at 83). Cornelio’s argument for resentencing based
on Houston-Sconiers therefore fails.
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No. 50818-4-II
Neither Houston-Sconiers nor O’Dell constitute a significant change in the law material
to Cornelio’s sentence. Therefore, Cornelio’s petition for relief under RAP 16.4(c)(4) fails.
CONCLUSION
We deny Cornelio’s petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Bjorgen, J.P.T.
We concur:
Worswick, P.J.
Johanson, J.
35