Personal Restraint Petition Of Kristopher Rampelberg

Filed
Washington State
Court of Appeals
Division Two
November 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint Petition No. 55064-4-II
of:
KRISTOPHER JOHN RAMPELBERG, UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — This case was transferred to us to be considered as a personal restraint
petition (PRP) under RAP 7.8(c)(2) after Rampelberg filed a motion in the trial court to
withdraw his guilty plea to second degree assault and felony hit and run. Mot. to Withdraw Plea
(Kitsap County Super. Ct., Wash. Nov. 22, 2019) (MWP). Rampelberg moved to withdraw his
plea, arguing (1) the State breached the plea agreement because it later filed charges it had
agreed to forgo, (2) his plea was not knowing, intelligent, and voluntary, (3) he received
ineffective assistance of counsel for advising him that his plea deal included the State’s
forbearance on filing additional charges, and (4) newly discovered evidence. We deny
Rampelberg’s petition.
FACTS
In March, 2018, Kristopher Rampelberg and his then-girlfriend Justice Rieger were
breaking up. The two had a dispute, and Rampelberg became upset. He got into his large diesel
pickup truck and drove by Rieger’s friend’s house. Rieger, and her friend, Elizabeth Anthony,
were outside when Rampelberg’s truck approached. Rampelberg accelerated his truck toward
Anthony, who was standing in the street several hundred feet away from Rampelberg’s truck.
A neighbor stated he heard the noise from the acceleration from his yard. Despite Anthony’s
No. 55064-4-II
efforts to run and jump out of the way, Rampelberg struck her in the knee with the front
passenger side grill of the truck. She sustained injuries to her knee and wrist and was transported
to a hospital. Rampelberg’s truck sustained damages consistent with the collision with Anthony.
Rampelberg immediately fled the scene and did not answer his phone following the incident.
A police officer later spoke with Rampelberg on the phone about the event, and although
he claimed the incident was an accident, he admitted to striking Anthony with his truck.
Rampelberg stated he fled the scene because he “freaked out,” but provided no additional
explanation as to why he did not stop to help Anthony or get her the medical help she needed.
The State charged Rampelberg with one count of second degree assault1 and one count of
felony hit and run.2 Rampelberg initially entered a plea of not guilty. During his pretrial release,
Rampelberg entered into plea negotiations with the State. Rampelberg asserts that his attorney
advised him the State offered to drop the hit and run charge if he would plead guilty to “a
felony.” Rampelberg refused this offer.
In September, 2018, while this case was pending, Rampelberg was involved in another
incident that resulted in a referral to the prosecutor for a misdemeanor reckless driving charge.
Rampelberg asserts that following this incident, his attorney told him he had reached a deal with
the State not to charge Rampelberg with reckless driving stemming from the September incident
if he agreed to plead guilty to the two pending felony counts from the March incident. Jennifer
Wilson, who claims to have been present during conversations between Rampelberg and his
1
RCW 9A.36.021(1)(c).
2
RCW 46.52.020(4)(b).
2
No. 55064-4-II
attorney, states that Rampelberg’s attorney said that he believed the prosecutor “would probably
either drop the reckless driving charge or include it in the plea” if Rampelberg considered
pleading guilty. MWP (Decl. of Jennifer Wilson, ¶ 6). Rampelberg claims that up to this point,
he was opposed to pleading guilty because he was innocent of the felony charges. Rampelberg
asserts he would not have pleaded guilty to felony charges without a promise from the prosecutor
that he would not be charged with misdemeanor reckless driving.3
Rampelberg’s attorney and the State prepared a plea agreement in October 2018, which
was signed by Rampelberg, defense counsel, and prosecutor Kelly Montgomery. In the
agreement, Rampelberg agreed to plead guilty to second degree assault and felony hit and run in
exchange for a jointly-recommended exceptional downward sentence of nine months to be
served via jail alternatives such as electronic home monitoring. The agreement stated “[a]ll prior
offers, whether oral or written, are hereby withdrawn,” and that the State agreed to file no further
charges “for this incident.” Br. of Resp’t at App. D. The plea agreement contained no reference
to any charges stemming from the September 2018 incident.
In November, Rampelberg entered an Alford plea of guilty to second degree assault and
felony hit and run.4 The prosecutor present in court was Ben Turner, a different prosecutor from
the one who had negotiated the plea.
3
In fact, a charging document for reckless driving, dated October 4, 2018 had already been
drafted.
4
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L. Ed. 2d 162 (1970); by entering an
Alford plea, Rampelberg allowed the trial court to examine the probable cause materials in
considering the factual basis for the plea.
3
No. 55064-4-II
On his statement of plea, Rampelberg attested that “[n]o person has made promises of
any kind to cause [him] to enter this plea except as set forth in this statement.” MWP (Decl. of
Teresa Groves (Groves Decl.), Ex. B, at 10, ¶ 10). The statement of plea also contained
language that Rampelberg understood the consequences of his plea. It contained no reference to
the September reckless driving allegation or any promises by the State not to charge him with
offenses from other incidents. The statement of plea also stated “[t]he judge does not have to
follow anyone’s recommendation as to sentence.” MWP (Groves Decl., Ex. B, at 4, ¶ 6(k)). The
trial court signed Rampelberg’s statement of plea declaring “I find the defendant’s plea of guilty
to be knowingly, intelligently and voluntarily made. Defendant understands the charges and the
consequences of the plea.”5 MWP (Groves Decl., Ex. B, at 11).
After Rampelberg’s plea was entered but before he was sentenced, the following
exchange occurred:
PROSECUTOR: The–part of this resolution was–and what Mr. Pimentel made
sure to cover his client, as the court can see from the paperwork, is that he won’t be
able to have a license which will be really good. There is District Court case
pending right now which is for reckless driving that occurred –
DEFENSE COUNSEL: It is not pending. [The other prosecutor] said they weren’t
going to file it.
PROSECUTOR: It is pending. It is filed.
DEFENSE COUNSEL: I was under the impression it wasn’t being filed. We’ll
talk.
PROSECUTOR: It is not part of this. But when I look in DAMION, I believe that
it’s been filed. I can’t be a hundred percent on that. But it was referred to us. So
there was probable cause in an affidavit at a minimum for a pretty bad reckless
5
The record on appeal does not include any plea colloquy. Rampelberg does not argue that the
trial court’s colloquy was insufficient.
4
No. 55064-4-II
driving incident. And [s]o it’s important to the State that this individual get his life
on track, not be a danger to the community, and stay out of his car for a while. And
so with the court’s finding that there was a vehicle obviously used in Counts 1 and
2, would be a license suspension. And so that was an important part of the
negotiated agreement and why I think it’s appropriate that it be EHM instead of
jail. So all these things going into this, we’re asking the court to follow this joint
recommendation.
THE COURT: Okay. Mr. [Defense Counsel]?
DEFENSE COUNSEL: Good morning, Your Honor. I want to state for the record
that I was under the impression that they agreed not to file this because of this plea.
But I will discuss that with [Montgomery] because that discussion took place with
her.
THE COURT: And I’ve already processed the guilty plea, so I think you would be
looking at some collateral relief if you are going to go down that road. But we’ll
continue on this path today.
MWP (Groves Decl., Ex. C, Report of Proceedings (Nov. 28, 2018) at 1-3).
The trial court accepted the recommendation and sentenced Rampelberg to nine months
of jail alternatives to include electronic home detention. According to Wilson, when
Rampelberg learned that this plea agreement did not contain any promise from the State not to
charge him for reckless driving related to the second incident, his attorney assured him that he
would talk to the prosecutor to ensure they would “take care of it.” MWP (Decl. of Jennifer
Wilson, ¶ 9).
In February 2019, Rampelberg began serving his sentence. In April 2019, Rampelberg
was notified by Kitsap District Court that he was being charged with reckless driving, based on
the September 2018 incident. Rampelberg’s parents contacted his attorney by email, stating they
believed the State had agreed not to prosecute this charge. Rampelberg’s attorney replied that he
was working with prosecutors on the new charge, and that Rampelberg would need to appear if it
could not be dismissed.
5
No. 55064-4-II
On May 17, 2019 defense counsel sent an email to the prosecutors on the case that stated:
Justin and Kelly,
I request you talk to Kelly because she promised me this would not be pursued if
he plead to A2 and Hit and Run Injury. Kelly, will you please recall and discuss
our agreement. The fact that Ben was right doesn’t change my position. Kelly
made the final decision on whether this case would be reduced. We discussed it at
length. She indicated that if he plead the State would not follow through on this
case. Kelly, did we or did we not have that conversation?
MWP (Decl. of John Rampelberg, Ex. B at 1).
On May 31, defense counsel sent the prosecutors another email stating:
Attached is the transcript of the felony plea and sentencing to A2 and Hit and Run
Injury and a Notice for Case Setting for Reckless Driving scheduled for May 29,
2019. Please review these documents. I believe they solidify my position on this
issue.
At sentencing, I was clearly of the belief that Kelly had informed me that your
office had not filed a new referral for reckless driving (which turned out to be true)
and if Mr. Rampelberg plead to A2 and Hit and Run, it would not be filed. Ben
was adamant that it had already been filed (that turned out to be not true). In any
event, I have a specific recollection of my conversation with Kelly. Kelly, do you
remember it? Ben, you can attest that I’ve been telling you this all along and made
these statements as an officer of the Court in open court at sentencing? I honestly
believed that the case had not been filed and would not be filed because of the plea
on that day.
I’m now realizing that the reason I didn’t put the non-charge on the Reckless
Driving in the plea agreement is because 1. Ben objected to [i]t but still insisted that
we plead that day or lose the offer (Ben does this all the time) and 2. It was a
representation that Kelly made to me and Ben wasn’t aware of it. I specifically
stated in the hearing that I would clear it up with Kelly. So, when you read the
excerpt from the sentencing hearing you will see a couple things ... First, everything
you guys wanted (specifically a lengthy loss of license) was accomplished by the
plea. Second, I truly believed then and still do that we had an agreement to not
charge the reckless that happened a couple months before this plea if he plead as
agreed. That was specifically one of the reasons he plead–Final resolution to
everything.
Please review this material and if you agree with me please dismiss.
6
No. 55064-4-II
MWP (Decl. of John Rampelberg, Ex. B at 2).
Although neither Turner nor Montgomery replied to the emails, a different prosecutor
claimed they never agreed to dismiss the September 2018 reckless driving charge as part of the
plea agreement.
Because an offender is not permitted to be on electronic home monitoring if he has
pending charges, Rampelberg was removed from electronic home monitoring and taken into
custody on May 24, 2019. On May 29, Rampelberg pleaded guilty to reckless driving.
After Rampelberg pleaded guilty to the two felonies, Anthony sued him for personal
injury. According to an attorney in Rampelberg’s civil case, Anthony had reported to medical
staff following the incident that Rampelberg’s truck “did not make contact with her body.”
MWP (Decl. of Kristopher Rampelberg, Ex. A at 2). This statement contradicted the statement
she had made to police.
Rampelberg moved to withdraw his plea to second degree assault and felony hit and run.
The trial court transferred Rampelberg’s motion to us to be considered as a personal restraint
petition under CrR 7.8(c)(2).6
ANALYSIS
Rampelberg argues that he is entitled to withdraw his plea because (1) the State breached
the plea agreement when it charged him with reckless driving from the September 2018 incident,
(2) his plea was not knowing, intelligent, and voluntary, (3) he received ineffective assistance of
6
The trial court ruled that Rampelberg “had not ‘made a substantial showing that he . . . is
entitled to relief,’ nor does ‘resolution of the motion . . . require a factual hearing.’” Order
Transferring Defendant’s Mot. to Withdraw Guilty Plea as Pers. Restraint Petition Pursuant to
CrR 7.8(c)(2), (Kitsap County Super. Ct., Wash. July 21, 2020) (quoting CrR 7.8(c)(2)).
7
No. 55064-4-II
counsel, and (3) newly discovered evidence. We hold that Rampelberg has failed to show the
alleged errors caused him actual or substantial prejudice and that his claim of newly discovered
evidence fails. Consequently, we deny Rampelberg’s personal restraint petition.
We consider Rampelberg’s motion to withdraw his plea as a PRP. CrR 7.8(c)(2). To
prevail in a PRP, “petitioner must prove either a (1) constitutional error that results in actual and
substantial prejudice or (2) a nonconstitutional error that ‘constitutes a fundamental defect which
inherently results in a complete miscarriage of justice.’” In re Pers. Restraint of Monschke, 160
Wn. App. 479, 488, 251 P.3d 884 (2010) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647,
672, 101 P.3d 1 (2004)). A petitioner may not rely on bald assertions and conclusory allegations.
In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). To prevail on a
constitutional error, a petitioner must show by a preponderance of the evidence that the alleged
error caused him actual and substantial prejudice. Lord, 152 Wn.2d at 188.
In evaluating personal restraint petitions, we can: (1) dismiss the petition if the
petitioner fails to make a prima facie showing of constitutional or nonconstitutional
error; (2) remand for a full hearing if the petitioner makes a prima facie showing
but the merits of the contentions cannot be determined solely from the record; or
(3) grant the PRP without further hearing if the petitioner has proved actual
prejudice or a miscarriage of justice.
In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 176-77, 248 P.3d 576 (2011).
A. Breach
Rampelberg argues that the State breached the plea agreement by charging him with
reckless driving despite promising it would not do so. The State argues that the final plea
agreement contained no such promise. We hold that Rampelberg has failed to prove that the
State breached the plea agreement.
8
No. 55064-4-II
A petitioner can obtain relief from the State’s breach of a plea agreement through a PRP.
Lord, 152 Wn.2d at 189. If the petitioner can prove that the State breached the plea agreement,
then the petitioner has successfully established he or she was actually and substantially
prejudiced by a constitutional error, and thus he or she is entitled to relief. Lord, 152 Wn.2d at
189.
A plea agreement is a contract between a defendant and a prosecutor. Lord, 152 Wn.2d
at 188. When carrying out the terms of a plea agreement, the State is required to act in good
faith. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). When the State breaches a
plea agreement, the defendant is entitled to either specific performance or to rescind the
agreement by withdrawing his or her plea. State v. Tourtellotte, 88 Wn.2d 579, 581-85, 564 P.2d
799 (1977). We review constitutional issues de novo. State v. MacDonald, 183 Wn.2d 1, 8, 346
P.3d 748 (2015).
Because a plea agreement is a contract, we conduct our analysis according to contract
principles. Sledge, 133 Wn.2d at 838-39; State v. Thomas, 79 Wn. App. 32, 39, 899 P.2d 1312(1995). We analyze plea agreements using principles of contract law. See, e.g., State v.
Armstrong, 109 Wn. App. 458, 461, 35 P.3d 397 (2001). But because plea agreements are “more
than simple common law contracts,” additional constitutional issues are considered, including
due process and fairness. Sledge, 133 Wn.2d at 839.
Here, because the written plea agreement is unambiguous, no extrinsic evidence is
necessary to ascertain its meaning. See State v. E.A.J., 116 Wn. App. 777, 785, 67 P.3d 518(2003) (introducing extrinsic evidence to interpret an ambiguous plea agreement). The agreement
states that Rampelberg pleaded guilty to two felony counts and waived his constitutional rights
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No. 55064-4-II
as consideration for the State’s promise to recommend an exceptional sentence downward. The
agreement makes no mention of any promise by the State not to prosecute Rampelberg for the
September reckless driving charge.
Rampelberg contends that the State made such a promise before it executed the written
agreement, and that this promise was intended to be part of the final agreement. The State
disputes this. But even if the State did, at some point, agree to forgo filing the reckless driving
charge, the existence of such a promise is immaterial where the agreement contains an
integration clause disclaiming any such promise. The plea specifically stated that “[n]o person
has made promises of any kind to cause [him] to enter this plea except as set forth in this
statement.” MWP (Groves Decl., Ex. B ¶ 10). Thus, because the contract is unambiguous, we
need no extrinsic evidence to understand the agreement, and we interpret the plea agreement as a
question of law.
The plea agreement contained no promise not to prosecute Rampelberg for reckless
driving related to the September incident. In fact, both the agreement and the plea statement
expressly disavowed any promises made outside the written agreement. Therefore, Rampelberg
failed to meet his burden to show that the State breached the plea agreement, and this argument
fails.
B. Knowing, Intelligent, and Voluntary
Rampelberg argues that his plea was not knowing, intelligent, or voluntary because he
believed his attorney had obtained a non-prosecution promise from the State as part of his plea
agreement. Rampelberg claims that he had no knowledge that his ability to serve his jail
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No. 55064-4-II
sentence on electronic home monitoring would be put into jeopardy by the State’s prosecution of
the additional charge. We hold that Rampelberg’s plea was knowing, intelligent, and voluntary.
Due process requires that the accused understands the nature of the charge and enters the
plea intelligently and voluntarily. State v. Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018). A
person makes a plea knowingly and voluntarily when they understand the plea’s consequences.
Buckman, 190 Wn.2d at 59. A defendant need not understand all consequences of a plea but
rather only the direct consequences. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996).
Consequences are “direct” when they have a “definite, immediate and largely automatic effect on
the range of the defendant’s punishment.” State v. Kissee, 88 Wn. App. 817, 821-22, 947 P.2d
262 (1997) (quoting Ross, 129 Wn.2d at 284). Consequences are “indirect” or “collateral” when
they “flow[] not from the guilty plea itself but from additional proceedings.” Kissee, 88 Wn.
App. at 822 (quoting Ross, 129 Wn.2d at 285).
“When a defendant completes a plea statement and admits to reading, understanding, and
signing it, this creates a strong presumption that the plea is voluntary.” State v. Smith, 134
Wn.2d 849, 852, 953 P.2d 810 (1998). If the trial court “inquire[s] orally of the defendant and
satisfies [itself] on the record of the existence of the various criteria of voluntariness, the
presumption of voluntariness is well nigh irrefutable.” State v. Knotek, 136 Wn. App. 412, 428-
29, 149 P.3d 676 (2006) (quoting State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982))
(internal quotations omitted).
Petitioners can establish actual and substantial prejudice in the context of a
constitutionally defective guilty plea when they show that they would more likely than not have
refused to plead guilty and would have insisted on going to trial. Buckman, 190 Wn.2d at 65.
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No. 55064-4-II
But “bare allegation[s] that [he] would not have pleaded guilty if he had known all of the
consequences of the plea is not sufficient to establish prejudice.” Buckman, 190 Wn.2d at 64.
We apply an objective standard to determine whether a rational person in the position of the
defendant would have not pleaded guilty and instead would have chosen to go to trial. Buckman,
190 Wn.2d at 70.
Here, given the unambiguous nature of the plea agreement and the plea statement, which
were both signed by Rampelberg, there is a strong presumption that the plea was voluntary.
Moreover, Rampelberg only claims he lacked knowledge of indirect, collateral consequences,
not direct consequences. He claims he did not know that his ability to serve his jail sentence on
electronic home monitoring would be placed in jeopardy by an additional prosecution. This
argument fails for two reasons. First, as stated in his statement on plea of guilty, the judge does
not have to follow anyone’s recommendation as to sentence, and could have sentenced
Rampelberg to jail without alternatives. Second, the consequence of being ineligible for
electronic home monitoring would only arise from further proceedings. Rampelberg does not
contend that he lacked any knowledge of the “definite, immediate and largely automatic
effect[s]” that his guilty plea would have on his punishment. Ross, 129 Wn.2d at 284.
Rampelberg also fails to establish actual and substantial prejudice. To prevail, he must
establish that a rational person in his situation would more likely than not have rejected the plea
and proceeded to trial. Rampelberg contends through his own declarations and those of his
family members and supporters that he would not have pleaded guilty but for the promise from
the State not to prosecute him for the reckless driving offense. However, we do not conduct a
subjective analysis. Buckman, 190 Wn.2d at 66. Rampelberg only offers bare assertions of
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No. 55064-4-II
prejudice based on his own personal contentions about the weight of the evidence. He provides
no objective, rational person analysis.
Turning to this analysis, we note that the evidence against Rampelberg was
overwhelming, including multiple eyewitnesses to the incident, Rampelberg’s flight from the
scene, damage to Rampelberg’s truck, and his own admissions to police. Rampelberg submits
that Anthony’s contrary statement to medical responders that the car did not hit her body is
exculpatory, but, as discussed below, this statement does not mitigate against an assault
conviction. In addition, under the plea agreement, the State recommended an exceptional
downward sentence of nine months that may be served with jail alternatives. If Rampelberg had
not accepted the plea offer, he would be facing a possibility of 6 to 12 months in jail for each
charge. Rampelberg does not provide any persuasive argument for why a rational person in his
position would have not pleaded guilty and instead would have chosen to go to trial. Not only is
there ample evidence against him, but the plea agreement, in light of the evidence presented, was
generous. A reasonable person in Rampelberg’s position would not have chosen to go to trial.
Based on the record, there is a strong presumption that Rampelberg made his plea
voluntarily. Moreover, because Rampelberg claims he lacked knowledge of only a collateral
consequence of his plea, he cannot show that he has made a plea less than knowingly,
voluntarily, and intelligently. Finally, Rampelberg offers no argument that a rational person in
his situation would have insisted on going to trial, given the overwhelming evidence against him
and the leniency of the plea agreement. Rampelberg’s bare assertions and subjective analysis do
not warrant relief. We hold that Rampelberg has failed to show actual and substantial prejudice
in the context of the allegedly defective guilty plea.
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No. 55064-4-II
C. Ineffective Assistance of Counsel
Rampelberg argues that he received ineffective assistance of counsel. Specifically, he
argues that his attorney assured him he would not be charged with reckless driving if he pleaded
guilty, and that he would have insisted on going to trial but for his attorney’s error.7 We
disagree.
The right to effective assistance of counsel is enshrined in our state constitution and
recognized by the Supreme Court. See WASH. CONST. art. I, § 22; Gideon v. Wainwright, 372
U.S. 335, 337, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance was (1) deficient, and (2) resulted in
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). Performance is deficient if it falls below an objective standard of reasonableness based
on all the circumstances. Strickland, 466 U.S. at 687. Counsel’s error regarding a guilty plea is
prejudicial when there is a “reasonable probability” that the defendant would have insisted on
going to trial but for counsel’s error. In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863
P.2d 554 (1993).
There is a strong presumption that counsel’s assistance was effective. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant cannot show either
prong of the ineffective assistance of counsel test, our inquiry need not go further. See
McFarland, 127 Wn.2d at 334-35.
7
Rampelberg submits the same argument for actual and substantial prejudice for both the
constitutionally defective plea and ineffective assistance of counsel: he would not have pleaded
guilty but for lack of knowledge.
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No. 55064-4-II
Counsel has a duty to assist a defendant in evaluating a plea offer through thorough and
prepared consultation. State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010); RPC 1.1;
RPC 1.2(a). Although the extent of counsel’s investigation and consultation is relative to the
facts and circumstances of each case, at the very least counsel must reasonably evaluate the
evidence against the accused and the likelihood of a conviction if the case proceeds to trial so
that the defendant can make a meaningful decision whether or not to plead guilty. A.N.J., 168
Wn.2d at 111-12.
To be prejudicial, counsel’s error in assisting a client when pleading guilty requires a
showing that but for the error there is a reasonable probability that the client would not have
pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985). We make this determination objectively without regard for
the idiosyncrasies of the particular decision maker. Hill, 474 U.S. at 59-60. This test closely
resembles that of prejudice for a constitutionally defective guilty plea. See Buckman, 190 Wn.2d
at 69.
Here, it appears from the record that Rampelberg’s attorney was misinformed about the
State’s intentions to file charges based on the September 2018 reckless driving incident before he
entered Rampelberg’s guilty plea. The record supports that Rampelberg’s attorney believed he
had obtained a promise from the State not to prosecute that charge. It follows then that
Rampelberg’s attorney informed Rampelberg that reckless driving charges would not be filed.
Nonetheless, Rampelberg’s attorney allowed Rampelberg to sign a plea agreement that did not
include this term, and then allowed his client to enter a plea of guilty under the written terms of
the agreement on the assumption he could adjust the agreement later. This behavior raises
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No. 55064-4-II
questions about whether counsel’s performance was in accordance with an objective standard of
reasonableness in service of his client’s best interests.
But because Rampelberg cannot show he was prejudiced, even assuming his attorney’s
performance was deficient, his claim fails. McFarland, 127 Wn.2d at 334-35. As explained
above, Rampelberg cannot show that a rational person would have insisted on going to trial but
for counsel’s failure to inform him of the collateral consequence that the State may charge him
with reckless driving. Rampelberg makes no attempt to show that a rational person would have
insisted on going to trial instead of accepting an agreement where the State recommended an
exceptional downward sentence.
We hold that Rampelberg’s ineffective assistance of counsel claim fails.
D. Newly Discovered Evidence
Rampelberg argues that newly discovered evidence that Anthony made a contradictory
statement would change the outcome of his case, and that he is now entitled to withdraw his plea.
We disagree.
There are three common law definitions of “assault”: “(1) an unlawful touching (actual
battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending but
failing to accomplish it (attempted battery); and (3) putting another in apprehension of harm.”
State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Newly discovered evidence claims
raised in a PRP are subject to the same standards as a motion for a new trial. In re Pers.
Restraint Pet. of Copland, 176 Wn. App. 432, 450, 309 P.3d 626 (2013). Petitioners must
demonstrate five elements to succeed on a claim of newly discovered evidence when seeking
relief:
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No. 55064-4-II
(1) The evidence must be such that the results will probably change if a new trial
were granted;
(2) The evidence must have been discovered since the trial;
(3) The evidence could not have been discovered before the trial by exercising due
diligence;
(4) The evidence must be material and admissible; and
(5) The evidence cannot be merely cumulative or impeaching.
State v. Harper, 64 Wn. App. 283, 291, 823 P.2d 1137 (1992).
Here, Rampelberg’s claim fails on at least three of the above elements. First,
Rampelberg offers no explanation for why he could not have obtained this evidence before trial
in the exercise of due diligence. Second, Anthony’s statement to medical staff also appears to be
merely impeachment evidence, and Rampelberg offers no explanation otherwise. Finally, this
statement is not material, because even if Rampelberg’s truck did not strike Anthony, the
uncontroverted statements show that she would have been placed in apprehension of harm,
which constitutes assault.
We hold that Rampelberg’s claim for relief based on newly discovered evidence fails.
CONCLUSION
We hold that Rampelberg’s petition for relief based on the allegation that the State
breached the plea agreement fails because Rampelberg fails to show actual or substantial
prejudice. We also hold that Rampelberg’s claim that his guilty plea was not knowing,
intelligent, or voluntary fails because Rampelberg cannot overcome the strong presumption that
his plea was voluntary. He cannot show that he was unaware of the direct consequences of his
plea, nor can he show that there was actual or substantial prejudice resulting from the alleged
error because he fails to objectively show that a rational person would have insisted on going to
trial. We hold that Rampelberg’s claim of ineffective assistance of counsel also fails because he
17
No. 55064-4-II
cannot demonstrate resulting prejudice. Finally, we hold that Rampelberg’s claim of newly
discovered evidence fails because Rampelberg fails to demonstrate why the evidence could not
have been discovered before trial in the exercise of reasonable diligence, why the evidence is not
merely impeachment evidence, or why it is material. Accordingly, we deny Rampelberg’s
petition for relief. 8
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.
Worswick, J.
We concur:
Glasgow, A.C.J.
Veljacic, J.
8
We note that even if Rampbelberg’s arguments were successful, a withdrawal of his guilty plea
would have no effect on the separate reckless driving charge that Rampelberg later pleaded
guilty to. Even if we allowed Rampelberg to withdraw his plea, he did not appeal the reckless
driving conviction, and this PRP would not affect that conviction. Rampelberg would once again
face trial for second degree assault and felony hit and run and assault, while the reckless driving
charge would remain on his record.
18