State of Washington v. Billy J. Dalager

FILED
JANUARY 21, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36664-2-III
Respondent, )
)
v. )
)
BILLY J. DALAGER, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J.— Billy J. Dalager appeals his Spokane County 2019 judgment and
sentence imposed following his conviction for second degree felony murder. He
contends his trial counsel provided ineffective assistance during the sentencing hearing by
failing to request an exceptional sentence downward. Finding no error, we affirm.
FACTS
Prior to July 31, 2016, Mr. Dalager was involved in an ongoing dispute with Don
Mielike over a set of car stereo speakers. On July 30, Mr. Dalager spent the day with his
brother and his fiancé, Alexis Eller, at a house on East Central Avenue in Spokane.
Sometime after midnight on July 31, Ms. Eller’s mother arrived at the residence to
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State v. Dalager
confront Mr. Dalager about the speakers. Mr. Dalager became angry and decided to
confront Mr. Mielike. He removed the speakers from his car and remarked, “[L]et’s go
fucking beat his ass.” Clerk’s Papers (CP) at 4. Mr. Dalager and his fiancé got into their
vehicle and drove eastbound on Central Avenue looking for Mr. Mielike.
Mr. Dalager located Mr. Mielike on the northside of Central Avenue. As he drove
past, Mr. Dalager tossed the speakers out of the car near Mr. Mielike and then made a U-
turn to drive back towards Mr. Mielike. As Mr. Dalager approached, Mr. Mielike threw
one of the speakers at Mr. Dalager’s vehicle, causing the windshield to shatter. Mr.
Dalager then accelerated and drove directly at Mr. Mielike, traveling between 30 mph and
50 mph based on witness estimates. Mr. Dalager drove over the curb and went airborne,
ultimately striking Mr. Mielike and running over him. Mr. Dalager proceeded to flee the
scene, and paramedics pronounced Mr. Mielike dead at the scene.
After waiving his Miranda1 rights, Mr. Dalager informed Detective Brian Cestnik
that he had smoked marijuana and methamphetamine on the day of the incident. He
admitted that he became extremely upset over the dispute regarding the speakers, and that
he and several friends had planned to find Mr. Mielike and assault him. Mr. Dalager
further remarked that he was “[g]onna run that mother fucker down.” CP at 11. Mr.
Dalager denied that he intentionally struck Mr. Mielike, but admitted that he left the
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d (1966).
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crime scene at a high rate of speed.
The State charged Mr. Dalager with one count of first degree murder, or
alternatively one count of felony second degree murder. Prior to trial, the State and Mr.
Dalager reached a plea agreement under which the State agreed to drop the first degree
murder charge in exchange for Mr. Dalager pleading guilty to second degree felony
murder. Mr. Dalager faced a standard range sentence of 123 months to 220 months
confinement on the second degree murder charge. The agreement further provided that
“[t]he parties will argue sentence within the standard range to the court at the sentencing
hearing,” and noted that the State “recommends 220 months.” CP at 56.
The plea agreement included a statement from Mr. Dalager that at the time of the
incident, he believed he was acting in self-defense and the defense of others “based on
threats by Mr. M[ie]like, who was known to carry a gun.” CP at 60. Mr. Dalager also
acknowledged that if he went to trial, he risked being convicted of the greater offense of
first degree murder. If convicted of first degree murder, Mr. Dalager would have faced a
standard range sentence of 240 to 320 months.
Prior to sentencing, Mr. Dalager underwent a forensic psychological evaluation
and was diagnosed with post-traumatic stress disorder (PTSD) and major depressive
disorder. Defense counsel filed a memorandum in support of counsel’s request for a low-
end standard range sentence. Counsel asked the court to consider the mitigating factors
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of diminished capacity to commit the offense based Mr. Dalager’s purported childhood
trauma, coupled with his age and diagnosis of PTSD, and the failed defense of “self-
defense.”
Counsel reiterated these mitigation arguments at the sentencing hearing, and asked
the court to consider “juvenile brain” science since Mr. Dalager was 25 at the time of the
offense. Report of Proceedings (RP) at 36. Counsel also claimed that Mr. Dalager’s
traumatic childhood, when combined with his self-medication, diminished his culpability.
Counsel requested a low-end sentence but not an exceptional sentence downward. The
State recommended a high-end sentence. The sentencing court found that Mr. Dalager
had a chemical dependency that likely contributed to the offense and that Mr. Dalager had
a “terribly traumatic youth.” RP at 41. However, the court also noted that many people
with traumatic youths and chemical dependency issues do not find themselves in Mr.
Dalager’s position. The court further noted that it had concerns given Mr. Dalager’s
violent tendencies. The court ultimately decided to impose a standard range sentence of
205 months. Mr. Dalager timely appeals.
ANALYSIS
On appeal, Mr. Dalager claims his trial counsel provided ineffective assistance by
failing to request an exceptional sentence based on the mitigating factors enumerated in
RCW 9.94A.535(1).
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This court reviews ineffective assistance of counsel claims de novo as they present
mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). To prove ineffective assistance, Mr. Dalager must
demonstrate that his counsel’s performance was deficient and this deficient performance
prejudiced him. Id. at 687; see also State v. McFarland, 127 Wn.2d 322, 334-35, 899
P.2d 1251 (1995).
To meet the deficiency prong, Mr. Dalager must show that his counsel’s
performance fell “below an objective standard of reasonableness.” Strickland, 466 U.S.
at 688. This threshold is high due to the great deference afforded to decisions of defense
counsel. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011); State v. Kyllo, 166
Wn.2d 856, 862, 215 P.3d 177 (2009) (defendant must overcome “a strong presumption
that counsel’s performance was reasonable”). “When counsel’s conduct can be
characterized as legitimate trial strategy or tactics, performance is not deficient.” Kyllo,
166 Wn.2d at 863. However, a defendant can rebut this presumption by showing that
“there is no conceivable legitimate tactic explaining counsel’s performance.” State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
To satisfy the prejudice prong, Mr. Dalager must establish that “there is a
reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceedings would have been different.” Kyllo, 166 Wn.2d at 862.
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A sentencing court must generally impose a sentence within the standard
sentencing range under the Sentencing Reform Act of 1981, chapter 9.94A RCW. State
v. Graham, 181 Wn.2d 878, 882, 337 P.3d 319 (2014). However, the sentencing court
may exercise its discretion and impose an exceptional sentence below the standard range
if “substantial and compelling reasons” justify an exceptional sentence. RCW 9.94A.535.
A failed defense, such as self-defense, and an impaired capacity to appreciate the
wrongfulness of one’s conduct or to conform one’s conduct to the requirements of the
law, can constitute mitigating circumstances. RCW 9.94A.535(1).
Mr. Dalager claims his counsel performed deficiently for failing to pursue an
exceptional downward sentence during plea negotiations and failing to request an
exceptional sentence downward at the sentencing hearing.2
Where the State and defendant reach a plea agreement, it is analogous to a contract
right and its terms are read as a contract. State v. Armstrong, 109 Wn. App. 458, 461, 35
P.3d 397 (2001). If a defendant breaches the plea agreement, the State has the option to
specifically enforce the agreement or move the court to rescind the agreement. State v.
Thomas, 79 Wn. App. 32, 37, 899 P.2d 1312 (1995). In the plea bargaining context,
2
Notably, Mr. Dalager does not claim the existence of a mitigating factor that
counsel failed to raise, but instead claims counsel erred by failing to request an
exceptional sentence based on the same mitigating factors used to argue for a low-end
standard range sentence.
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effective assistance requires that counsel “‘actually and substantially assist his or her
client in deciding whether to plead guilty.’” State v. Osborne, 102 Wn.2d 87, 99, 684
P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)).
The plea agreement allowed defense counsel to argue for a low-end standard range
sentence but not an exceptional downward sentence. Mr. Dalager faults counsel for
failing to seek an exceptional sentence during the plea negotiations, but there is no
evidence in the record that counsel failed to do so. Moreover, Mr. Dalager fails to
demonstrate a reasonable likelihood that the State would have agreed to reduce the charge
to second degree murder and allow Mr. Dalager to seek an exceptional downward
departure on the sentence for the reduced charge.
Mr. Dalager also faults counsel for failing to request an exceptional sentence at the
sentencing hearing. However, doing so would have breached the plea agreement and
risked the State repudiating the agreement and reinstating the first degree murder charge,
which carried a substantially longer standard range sentence. On this record, Mr. Dalager
fails to demonstrate the absence of any conceivable legitimate tactic or strategy where
counsel negotiated a reduced charge for Mr. Dalager while retaining the ability to request
a low-end sentence, and argued for a low-end sentence based on several mitigating
factors.
Mr. Dalager also fails to demonstrate that he was prejudiced by his attorney’s
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performance. As previously noted, nothing in the record suggests that the State would
have agreed, as part of the plea bargain, to allow defense counsel to argue for an
exceptional sentence downward in conjunction with the reduced charge of second degree
murder. Moreover, nothing suggests that the trial court would have imposed an
exceptional sentence downward even had counsel requested one. Defense counsel
presented the court with Mr. Dalager’s mental health examination, his mental health
disorders, his self-medication, his childhood trauma, and his “youthfulness” in support of
a low-standard range. The court acknowledged these mitigating factors but also
expressed concerns about Mr. Dalager’s violent tendencies. He ultimately decided to
impose a standard range sentence above the mid-range. On this record, Mr. Dalager
demonstrates no probability that the sentencing court would have imposed an exceptional
downward sentence had counsel requested one. See e.g., State v. Hernandez-Hernandez,
104 Wn. App. 263, 15 P.3d 719 (2001) (defendant failed to demonstrate ineffective
assistance for failing to request exceptional sentence where defense counsel argued for a
low-end standard range sentence based on mitigating factors and court imposed standard
range sentence).
Mr. Dalager fails to demonstrate that counsel’s performance was deficient or that
he suffered prejudice from counsel’s alleged deficiency. Accordingly, his claim of
ineffective assistance fails.
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CONCLUSION
We affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, J.
WE CONCUR:
c.. ~.
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