State Of Washington, V. Zion Tyrone Grae-el

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 82306-0-I
v.
UNPUBLISHED OPINION
ZION TYRONE GRAE-EL,
Appellant.
DWYER, J. — Zion Grae-El and his spouse were jointly charged with
assaults involving three of their children. Grae-El decided to plead guilty to
reduced charges after he learned that his spouse wished to accept the State’s
plea offer to her, which was contingent on both defendants accepting their
respective offers. Approximately a year after Grae-El pleaded guilty, was
sentenced to credit for time served, and was released from custody, he filed a
CrR 7.8 motion seeking to vacate the judgment, and alleging ineffective
assistance of counsel. The trial court denied the motion after an evidentiary
hearing. Because Grae-El fails to demonstrate that his counsel’s representation
was deficient or that he would have insisted on proceeding to trial but for the
conduct of his counsel, we affirm.
No. 82306-0-I/2
I
In 2018, Zion Grae-El was living in Seattle with his spouse, Caprice
Strange, and five children. Two of the children, E.A.D. and E.M.D., are Grae-El’s
children from a prior relationship, and another two, A.S. and A.G., are Strange’s
children from a previous relationship. The youngest child, Z.G., is the couple’s
child in common. The family came to the attention of law enforcement and Child
Protective Services (CPS) in November 2018 after a school employee noticed
that one of the children had facial injuries and reported suspected abuse.1
Medical professionals at Seattle Children’s Hospital examined the
children, who ranged in age from two to nine years old, and determined that all
five had markings or injuries that were “consistent with abuse.” The children’s
injuries were photographed in conjunction with the examinations. To medical
staff and in later interviews, the children described “doing positions” and
“whoopings” received at the hands of Grae-El and Strange.2 They reported
being hurt by their parents if they failed to hold a position for the allotted amount
of time.3 They described physical discipline involving the use of belts, spoons,
and spatulas. The children recounted specific incidents, including occasions
when Grae-El punched A.S. and gave him a black eye, when E.A.D. was hit on
the head with a belt, and when Grae-El “slammed” E.M.D. to the ground and
caused him to black out.
1 The underlying facts are largely derived from the redacted certification of probable
cause that Grae-El agreed the trial court could consider for purposes of his plea and sentencing.
2 Grae-El later testified that the positions included leg raises, wall sits, and planks.
3 According to Grae-El, the children were generally required to hold positions for a total of
six minutes.
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All of the children were removed from the home and Grae-El’s biological
children, E.A.D. and E.M.D., were sent to Minnesota to live with their mother. In
Minnesota, E.A.D. reported that Grae-El had sexually assaulted her. The State
arranged for separate forensic interviews of the four oldest children.
The State charged Grae-El with rape of a child in the first degree (of
E.A.D.) and assault of a child in the third degree (of A.S.), alleging that both
crimes involved domestic violence. The same information charged Strange with
assault of a child in the third degree (of E.A.D.).4 While the criminal case
progressed, a simultaneous dependency action involving the children was
underway. Attorney Jesse Dubow represented Grae-El in the criminal matter.
Through counsel, Grae-El moved to sever the rape charge. The trial court
granted the motion. In so ruling, the court maintained the defendants’ joint trial
on the assault charges. Prior to trial, the State indicated its intent to assert
additional assault charges.
On September 4, 2019, after a week-long trial on the severed rape
charge, a jury acquitted Grae-El. Within a day of the verdict, the court began to
hear pretrial motions for the assault case and the State moved to amend the
information. The amended information added three additional counts of assault
of a child in the second degree: one count charged Grae-El with assaulting
E.M.D. and two counts charged Grae-El and Strange jointly with assaulting A.S.
and E.M.D. See RCW 9A.36.130. The State alleged that all counts involved
4 The original information incorrectly identified the alleged victim as to this count and was
later corrected.
3
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domestic violence. Both defendants entered pleas of not guilty and asserted
defenses of general denial and the statutory defense of reasonable and
moderate discipline. See RCW 9A.16.1005 (“[P]hysical discipline of a child is not
unlawful when it is reasonable and moderate and is inflicted by a parent, teacher,
or guardian for purposes of restraining or correcting the child.”). The statutory
reasonable discipline defense was based on Grae-El’s testimony in the rape trial.
He described using “escalating [ ] discipline tactics” for the children involving
warnings, “deprivation,” and “isolation,” followed by “either positions or
whoopin[gs].” Grae-El testified that “whoopings” involved either “whacks” across
the hands with a spoon or plastic spatula, or over-the-knee “spankings” with a
belt.
In the midst of jury selection, the State made plea offers to both Grae-El
and Strange. Each offer was contingent on both defendants accepting their
respective offers and pleading guilty. As to Grae-El, who was in custody pending
trial, the offer allowed him to plead guilty to reduced charges: one felony, assault
5RCW 9A.16.100 provides, in its entirety:
It is the policy of this state to protect children from assault and abuse and to
encourage parents, teachers, and their authorized agents to use methods of correction
and restraint of children that are not dangerous to the children. However, the physical
discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by
a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use
of force on a child by any other person is unlawful unless it is reasonable and moderate
and is authorized in advance by the child’s parent or guardian for purposes of restraining
or correcting the child.
The following actions are presumed unreasonable when used to correct or
restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a
closed fist; (3) shaking a child under age three; (4) interfering with a child’s breathing; (5)
threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause
and which does cause bodily harm greater than transient pain or minor temporary marks.
The age, size, and condition of the child and the location of the injury shall be considered
when determining whether the bodily harm is reasonable or moderate. This list is
illustrative of unreasonable actions and is not intended to be exclusive.
(Emphasis added.)
4
No. 82306-0-I/5
of a child in the third degree (of E.M.D.), and one gross misdemeanor, assault of
a child in the fourth degree (of A.S.). The State agreed to recommend a
standard range sentence on the felony count, comprised of credit for time served,
and a suspended sentence on the nonfelony count. The State’s
recommendation included no-contact orders as to the two victims, and the
agreement contemplated sentencing on the same day that Grae-El entered his
plea. Grae-El initially rejected the offer. However, the following day, after Grae-
El learned that Strange wanted to accept the State’s plea offer to her, he
changed his plea.
On September 11, 2019, Grae-El pleaded guilty. When he was sentenced
immediately thereafter, Grae-El admitted that he had “overstepped [his]
boundaries as a parent, according to Washington State law.” The court followed
the agreed sentencing recommendation, imposed credit for time served, and
entered an order releasing Grae-El.
Dubow continued to represent Grae-El after sentencing and filed two
postsentencing motions on his behalf seeking to lift the no-contact order
prohibiting contact with A.S. The trial court denied both motions.
In September 2020, represented by new counsel, Grae-El filed a CrR
7.8(b) motion seeking to vacate his convictions, alleging ineffective assistance of
counsel during the plea process. Grae-El said that he pleaded guilty because
both he and Strange faced lengthy prison sentences if convicted as charged in
the amended information and he “felt tremendous pressure to spare his wife a
prison sentence so that she would not lose the children.” He explained that his
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No. 82306-0-I/6
receipt of a hand-written letter from Strange encouraging him to accept the plea
bargain tipped the balance in his decision-making. Nevertheless, he maintained
that he would have rejected the State’s offer and proceeded to trial if Dubow had
(1) secured the testimony of three expert witnesses—one medical doctor and two
child welfare experts—who were later retained by counsel in the dependency
case and (2) showed him the photographs taken during the children’s medical
examinations.
In his supporting declaration, Grae-El averred that the experts’ testimony
would have resulted in dismissal of the criminal charges or acquittal at trial. He
claimed that he would have been “better able to assess the case for the purpose
of plea bargaining” with the benefit of the expert opinions and declared that he
“certainly would not have entered a guilty plea had we had these experts
available for trial.” Grae-El also claimed that if counsel had shown him the
photographs from the medical examinations, he “would have been even more
convinced to [go] forward with the trial.”
Grae-El supplied the reports of Dr. Steven Gabaeff, Sonja Ulrich, and
Stephen Wilson in support of his motion. Dr. Gabaeff reviewed the medical
examination photographs and did not agree that they showed bruising,
abrasions, lacerations, or a black eye. Dr. Gabaeff called these characterizations
“inaccurate and inflammatory.” He opined that the photos depicted, at most,
“minor and temporary marks,” indicative of “transient pain” that were consistent
with “accident,” “normal childhood activity,” and “legal disciplinary tactics.” Dr.
Gabaeff asserted that there was “no abuse in this case.”
6
No. 82306-0-I/7
Social workers Sonja Ulrich and Stephen Wilson evaluated CPS’s intake
process and investigation involving Grae-El’s children. Both reports identified
“questionable practices” in the initial intake process and concluded that CPS’s
investigation was unnecessarily “escalated” and otherwise affected by bias.
The trial court held a two-day evidentiary hearing. Dr. Gabaeff, Ulrich, and
Wilson testified consistently with their reports. Both Grae-El and Dubow testified
about the plea negotiations and Dubow testified about his trial preparation and
strategy for the case. At the conclusion of the hearing, the court denied the
motion. The court later entered detailed findings and conclusions, and
determined that Grae-El failed to establish that his counsel’s representation
during the plea process was constitutionally inadequate. In particular, the court
determined that none of the identified expert witnesses would have necessarily
been helpful to the defense and that counsel’s plan to rely on the statutory
reasonable parental discipline defense was reasonable under the
circumstances.6 Grae-El appeals.
II
Under CrR 7.8(b)(5), a court may grant relief from judgment for “[a]ny
other reason justifying relief from the operation of the judgment.” Grae-El’s
motion was premised on ineffective assistance of counsel, which can provide the
6 The trial court also specifically found that Dubow reviewed photographs of the children’s
injuries with Grae-El prior to his plea and rejected Grae-El’s testimony to the contrary as “not
credible.” Grae-El does not challenge this finding and abandons his claim of ineffective
assistance based on the alleged failure to review photographs. See State v. Hill, 123 Wn.2d 641,
644, 870 P.2d 313 (1994) (unchallenged factual findings are verities on appeal).
7
No. 82306-0-I/8
basis for vacating a judgment under CrR 7.8(b)(5). State v. Gomez Cervantes,
169 Wn. App. 428, 434, 282 P.3d 98 (2012).
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984), provides the governing standard for claims of ineffective assistance of
counsel during the plea process. State v. Stowe, 71 Wn. App. 182, 186, 858
P.2d 267 (1993). A defendant must show that (1) his counsel’s performance fell
below an objective standard of reasonableness and (2) the deficient performance
prejudiced him. Strickland, 466 U.S. at 687. In the context of a guilty plea,
constitutionally adequate assistance requires that counsel substantially assist the
defendant in deciding whether to plead guilty. State v. McCollum, 88 Wn. App.
977, 982, 947 P.2d 1235 (1997).
“To combat the biases of hindsight, our scrutiny of counsel’s performance
is highly deferential and we strongly presume reasonableness.” In re Pers.
Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). “For many reasons
. . . the choice of trial tactics, the action to be taken or avoided, and the
methodology to be employed must rest in the attorney’s judgment.” State v.
Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967). “There are countless ways to
provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Strickland, 466
U.S. at 689. “When counsel’s conduct can be characterized as legitimate trial
strategy or tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856,
863, 215 P.3d 177 (2009). The presumption of reasonableness may be
overcome only if, under the circumstances of the case, there was no conceivable
8
No. 82306-0-I/9
tactical reason for counsel’s decisions. State v. Grier, 171 Wn.2d 17, 33-34, 246
P.3d 1260 (2011).
When analyzing prejudice in the context of plea negotiations, the focus is
on whether the alleged deficient conduct “affected the outcome of the plea
process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203(1985). “[T]he defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 59; State v. Buckman, 190 Wn.2d 51,
62, 409 P.3d 193 (2018). A bare assertion that the defendant would not have
pleaded guilty but for the alleged deficiency is insufficient to establish prejudice.
In re Pers. Restraint of Elmore, 162 Wn.2d 236, 254, 172 P.3d 335 (2007).
We review de novo a trial court’s denial of a motion to withdraw a guilty
plea that is based on ineffective assistance of counsel. State v. A.N.J., 168
Wn.2d 91, 109, 225 P.3d 956 (2010). But where a trial court weighs evidence
following a CrR 7.8 hearing, we review its factual findings for substantial
evidence. State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996); State v.
Ieng, 87 Wn. App. 873, 877, 942 P.2d 1091 (1997). Substantial evidence exists
when the record contains sufficient evidence to persuade a “‘fair-minded, rational
person that the declared premise is true.’” In re Pers. Restraint of Davis, 152
Wn.2d 647, 679-80, 101 P.3d 1 (2004) (quoting Ino Ino, Inc. v. City of Bellevue,
132 Wn.2d 103, 112, 937 P.2d 154, 943 P.2d 1358 (1997)). We defer to the trial
court on issues of conflicting testimony, credibility of witnesses, and the
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No. 82306-0-I/10
persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d
850 (1990).
III
Grae-El contends that counsel’s performance was constitutionally
inadequate because Dubow failed to unearth and consult with expert witnesses
who could have testified about the nature and extent of the children’s injuries and
flaws in CPS’s investigation.
The State was prepared to proceed to trial on the second amended
information, which required proof that Grae-El negligently inflicted “bodily harm”
on A.S. (Count 1); that he “recklessly” inflicted “substantial bodily harm” on
E.M.D. (Count 3); and he caused “bodily harm” to both A.S. and E.M.D. that was
“greater than transient pain or minor temporary marks,” and had engaged in a
“pattern or practice” of (1) assaulting the child, or (2) causing physical pain or
agony equivalent of torture (Counts 4 and 5). See RCW 9A.36.140 (assault of a
child in the third degree); RCW 9A.36.031(1)(d) (assault in the third degree by
means of weapon or instrument); RCW 9A.36.130(1) (assault of a child in the
second degree); RCW 9A.36.021(1)(a) (assault in the second degree by means
of inflicting substantial bodily harm). “[B]odily harm” means “physical pain or
injury, illness, or an impairment of [a] physical condition.” RCW 9A.04.110(4)(a).
And “[s]ubstantial bodily harm” means “bodily injury which involves a temporary
but substantial disfigurement, or which causes a temporary but substantial loss
or impairment of the function of any bodily part or organ, or which causes a
fracture of any bodily part.” RCW 9A.04.110(4)(b). Serious bruising can
10
No. 82306-0-I/11
constitute substantial bodily harm if there is sufficient evidence of substantial, but
temporary, disfigurement. State v. Hovig, 149 Wn. App. 1, 13, 202 P.3d 318(2009).
According to Grae-El, the nature and seriousness of the children’s injuries
would have been “key issues” at trial and, therefore, Dubow’s failure to seek out
a medical expert to rebut the State’s evidence necessarily shows that his
investigation and preparation were inadequate. But again, there are “countless”
ways to provide constitutionally adequate assistance. Strickland, 466 U.S. at
689. Generally, “the decision whether to call a witness is a matter of legitimate
trial tactics and will not support a claim of ineffective assistance of counsel.”
State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). In particular,
deficient performance based on a failure to call an expert witness is limited to
circumstances where “the only reasonable and available defense strategy
requires consultation with experts or introduction of expert evidence.” Harrington
v. Richter, 562 U.S. 86, 106, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). It is a
rare case in which the “wide range” of reasonable professional assistance is
reduced to a single approach. Strickland, 466 U.S. at 689; Richter, 562 U.S. at
106.
This is not such a case. As is often true, there are “any number of
hypothetical experts” whose “insight might possibly have been useful” to the
defense. Richter, 562 U.S. at 107. On the other hand, as the trial court found,
expert testimony was not required for the defense to make the case that the
photos showed nothing more than minor and transient marks referenced in the
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No. 82306-0-I/12
discipline defense statute. The jury would have been able to evaluate the
photographs to determine whether they showed visible injuries, and the medical
personnel who authored the report would have been subject to cross-
examination. The reasonableness of physical discipline is a factual question for
the jury to resolve. See State v. Birge, 16 Wn. App. 2d 16, 34, 478 P.3d 1144(2021) (trier of fact could conclude that it was unreasonable to hit a nine-year-old
child with a belt more than 20 times hard enough to leave bruises).
Consequently, Dr. Gabaeff’s opinions that no abuse occurred and that Grae-El
employed reasonable discipline would have been of limited value, especially
since Dr. Gabaeff reviewed none of the children’s forensic interviews, the
defense interviews, or the prior trial testimony. As the trial court determined, Dr.
Gabaeff’s testimony “would not have been helpful at the criminal trial or likely
affected its outcome.”
Nor was it necessary to consult with child welfare experts in order to
defend against the charges. As the trial court noted, because the dependency
involves a unique framework and different standards, Wilson’s and Ulrich’s
assessments of CPS’s practices would have been largely irrelevant in the
criminal case. Yet, Grae-El asserts that because both experts raised concerns
that some of the children were initially interviewed in the presence of siblings,
their testimony would have established that the children’s statements to multiple
professionals were “improperly tainted.” But neither expert testified that the
children’s statements were tainted and, not having reviewed the children’s
forensic interviews, neither was in a position to evaluate the children’s
12
No. 82306-0-I/13
statements. The failure to consult experts would not have precluded cross-
examination about the interview process or any challenges to the reliability of the
children’s statements. The record supports the trial court’s finding that none of
the testimony Grae-El presented in support of his motion would have been
necessarily admissible or helpful at trial.
And even assuming that the identified experts were available to the
defense at the time of the plea and their testimony could have supported Grae-
El’s proposed defense, it does not follow that Dubow’s plan to defend against the
assault charges without the benefit of expert testimony was outside of the “range
of legitimate decisions.” Strickland, 466 U.S. at 689. Whether certain evidence
could have conceivably strengthened the defense is not the applicable standard.
Indeed, the purpose of the Sixth Amendment is not to “improve” the performance
of constitutionally adequate counsel. Strickland, 466 U.S. at 689. Counsel’s
obligation is not to consult every potentially useful witness but, rather, to
formulate a strategy that is “reasonable at the time” and “balance[s] limited
resources in accord with effective trial tactics.” Richter, 562 U.S. at 107.
IV
Grae-El argues that Dubow focused on the rape charge, and as a result,
had no strategy to defend against the assault charges. And to the extent Dubow
determined that no expert testimony was necessary, Grae-El claims that he failed
to account for the possibility that the jury might reject his reasonable discipline
defense and might conclude that he was responsible for the more serious injuries
observed by hospital staff.
13
No. 82306-0-I/14
Counsel’s approach was to first address the rape charge because Grae-El
faced the most serious penalty for that charge. See RCW 9A.44.073(2) (first
degree rape of a child is a class A felony); RCW 9.94A.507(1)(a)(i)
(indeterminate sentencing provisions apply to conviction of rape of a child in the
first degree). Dubow successfully moved to sever the rape count, retained an
expert witness to evaluate some of the forensic interviews, and his advocacy
resulted in acquittal following a jury trial. This strategy was reasonable and
clearly not prejudicial to Grae-El.
The record belies Grae-El’s claim that counsel lacked a strategy for the
remaining assault charges. He acknowledges that the “focus” of Dubow’s
planned defense was to assert reasonable and moderate discipline. Dubow
anticipated that Grae-El would testify at trial in accordance with his prior
testimony, and that testimony was “consistent with the statutory defense.”
According to Dubow, Grae-El would also deny causing some of the allegedly
more serious injuries. The children’s statements about roughhousing among
themselves would support this strategy. Counsel also said that he engaged in
strategic discussions with Grae-El about whether to request lesser included
offense instructions as to some counts and ultimately decided against it. Dubow
testified that since the photographs depicted no more than bruising and
scratches, he did not believe the “level of injury was going to be a huge issue for
the jury.”
The record supports the court’s finding that Dubow’s strategy was
reasonable in light of the facts. Given the evidence of the “relatively minor nature
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No. 82306-0-I/15
of the marks and bruises on the children,” assertion of the statutory defense was
a “viable” tactic. It was within the realm of sound trial strategy to pursue
defenses that did not involve expert testimony.
V
Independently fatal to his claim, Grae-El fails to demonstrate prejudice.
Grae-El’s assertion that he would have rejected the State’s plea offer if counsel
had consulted experts is contrary to the record.
In the declaration supporting his motion, Grae-El candidly acknowledged
that he pleaded guilty after he received Strange’s hand-written letter encouraging
him to accept the plea offer, and that he later regretted that decision. At the
hearing on his motion, Grae-El testified to the following additional details. In the
10 months he was incarcerated pending trial, he had rejected several plea offers.
Grae-El said he was determined to go to trial and, in fact, had instructed Dubow
not to communicate any further offers made by the prosecutor. But then, in the
middle of jury selection, Grae-El learned that Strange would have to go to trial if
he rejected the State’s final plea offer and that she would be sentenced to a term
of incarceration, if convicted. Grae-El felt “enormous” pressure to avoid this
outcome. He had grave concerns about the implications for his family if both he
and his wife went to trial, with both facing the risk of significant sentences.7
Grae-El said that although counsel communicated his wife’s wishes, he
needed to hear directly from her. Dubow then brought him a letter from Strange.
7 If Grae-El had been convicted of a single count of assault of a child in the second
degree, with an offender score of two, he would have been subject to a standard range of 41-54
months. See RCW 9.94A.515; RCW 9.94A.510.
15
No. 82306-0-I/16
Grae-El testified that the letter said: “take this deal. We’ll bounce through it. My
charges will be gone in two years.” According to Grae-El, Strange “was basically
telling me that this is a minor setback for a major comeback” and Grae-El had “no
question in [his] mind” that Strange had written the letter. Grae-El testified that
even though he believed he would be exonerated at trial and felt that his conduct
was “entirely” within the bounds of reasonable discipline, he could not be
responsible for the potential consequences to Strange of foregoing the plea. He
explained that, “as much as I felt of my innocence, I wanted to protect her.”
Grae-El admitted that, but for the contingent nature of the plea offers, he would
have been willing to assume the risks of trial: “if that contingency clause was not
there, we could have trialed it out without expert witnesses.”
There was no testimony at the hearing that Dubow advised Grae-El to
accept the plea offer. Dubow testified that he reviewed the terms of the offer with
Grae-El. Dubow believed that the testimony in the first trial provided a clear
“avenue” for the defense, but informed Grae-El that trial always entails risk and
there was a significant chance of being convicted of some crime. Grae-El’s
dependency attorney was also present during the discussions to advise him of
consequences related to the dependency. Dubow said that the contingent nature
of the plea agreements did not figure in to his advice, because the impact on
Strange was something only the defendant could weigh. There is nothing in the
record to suggest that the expert reports Grae-El relied on would have affected
Dubow’s advice.
16
No. 82306-0-I/17
Dubow testified that Grae-El was adamant that his conduct was lawful and
he was “very close to certain” that Grae-El would not have changed his plea if
Strange’s plea offer had not been dependent on his. The trial court found that
Grae-El’s change of plea was related to several factors: “withering” confidence in
the judicial system, his months-long separation from his wife and children, the
knowledge that his wife would face trial and a potential prison sentence if he
rejected the plea offer, and his desire to protect her interests in this case and in
the pending dependency. The testimony in the record supports this finding.
Despite his present contrary assertion, it is abundantly clear that Grae-El
changed his plea based on factors wholly unrelated to Dubow’s performance or
his assessment of the State’s evidence. The evidence, including Grae-El’s own
unequivocal statements, demonstrate that what mattered most to him at the time
of the plea was that, given the contingent nature of the plea offers, accepting the
State’s offer was the only way he could protect Strange from a prison sentence
and potentially serious repercussions in the dependency case. To put a finer
point on it, what Grae-El is now seeking is not a return to the position he was in
before he accepted the State’s offer. See In re Pers. Restraint of Thompson, 141
Wn.2d 712, 730, 10 P.3d 380 (2000) (withdrawal of plea allows both parties to
start over and places them “back in the position they were in before they entered
into the agreement”). Instead, he seeks a deal that was not on the table at the
time of his plea: the ability to take his case to trial and for Strange to take
advantage of a favorable, noncontingent offer that eliminated her risks in the
criminal matter and the dependency.
17
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Grae-El establishes neither deficient performance nor prejudice. His claim
of ineffective assistance of counsel fails. The trial court did not err in denying his
motion to vacate.
VI
In a statement of additional grounds for relief, Grae-El asserts that the trial
court judge harbored bias against him because of his race and disapproval of his
approach to discipline. He relies on the court’s statement at sentencing that
forcing young children to hold physically challenging positions as punishment is
inappropriate and its denial of postsentencing motions to lift the no-contact order
as to A.S. He also points to the trial court’s failure to be persuaded by his
proffered expert testimony. But the only order before this court on review is the
order denying the CrR 7.8 motion, not the judgment and sentence or orders
denying motions to lift the no-contact order.8 More fundamentally, there is simply
nothing in the court’s rulings or statements to indicate personal bias. See Davis,
152 Wn.2d at 692 (“Judicial rulings alone almost never constitute a valid showing
of bias.”).
In his motion below, Grae-El asserted that the State filed excessive
charges in order to coerce him and Strange into pleading guilty. On appeal, he
claims the trial court erred by allowing the State, with “miniscule supporting
evidence,” to add more assault charges after his acquittal on the rape charge.
8Those orders do not appear to be final orders under RAP 2.2 or other orders specifically
designated under that rule. As such, they would be subject only to discretionary review under
RAP 2.3.
18
No. 82306-0-I/19
CrR 2.1(d) allows amendment of the information “any time before verdict
or finding if substantial rights of the defendant are not prejudiced.” The
defendant bears the burden of showing prejudice. State v. Brooks, 195 Wn.2d
91, 101, 455 P.3d 1151 (2020). This court reviews a decision to grant a motion
to amend an information for abuse of discretion. Brooks, 195 Wn.2d at 96.
Here, the State moved to amend the information before the second trial.
Grae-El’s counsel conceded appropriate notice of the proposed amendments.
Counsel nonetheless objected, asserting a lack of factual basis for the torture
prong of assault of a child in the second degree, as charged in Counts 4 and 5.
See RCW 9A.36.130(1)(b)(ii) (requiring proof of a pattern or practice of “causing
the child physical pain or agony that is equivalent to that produced by torture”). 9
The trial court allowed the amendment, ruling that based on the evidence
presented at the trial on the rape charge, there was an adequate factual basis for
the charges. At the same time, the court stated that the issue could be raised
again after the presentation of the State’s evidence.
Grae-El does not allege lack of notice, and cannot show prejudice in view
of the court’s willingness to revisit its decision if the evidence did not support the
added charges. The trial court did not abuse its discretion in allowing the
amendment.
9 Strange’s counsel did not object.
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No. 82306-0-I/20
Affirmed.
WE CONCUR:
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