In re the Personal Restraint of Crace

Quinn-Brintnall, J.

¶59 (dissenting) — I respectfully dissent from the majority opinion for two reasons. First, in my opinion, on the evidence presented that Deputy Theron Hardesty continued to fear for his safety as Hoyt William Crace ran toward him after having dropped the sword, no ordinary, reasonable juror could find that Crace committed only the lesser offense of displaying a weapon. Second, and of greater concern, I believe the majority improperly applies the direct review standard for reviewing an ineffective assistance of counsel claim to Crace’s personal restraint petition (PRP). The majority thus fails to place on Crace the burden of proving his counsel failed to conduct his defense as would an ordinary, reasonably prudent attorney and that this failure caused him actual and substantial prejudice sufficient to trigger this court’s authority to vacate a mandated judgment and sentence entered following his direct appeal of the jury’s verdict.

¶60 Citing Strickland v. Washington, 466 U.S. 668, 693-94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the majority properly characterizes the standard of review for determining the prejudice prong of an ineffective assistance of counsel claim brought in a direct appeal. See majority at 105. The majority also acknowledges our limited review of PRPs under the “actual and substantial prejudice” standard. But the majority explicitly disregards the limitations on this court’s authority to vacate final judgments, weighs the evidence in Crace’s favor, and reviews Crace’s claim de novo as if it had been raised on direct review. See majority at 96, 104, 106.

¶61 When, as here, a personal restraint petitioner bases his challenge on an alleged constitutional error, he must demonstrate that he “was actually and substantially prejudiced by the error.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004). Appellate courts are limited to granting collateral relief through a PRP under this higher standard because such collateral relief “ ‘undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders.’ ” In re Davis, 152 Wn.2d at 670 (quoting In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992)). The principles underlying limited collateral relief are no less compelling where a petitioner claims ineffective assistance of counsel.

¶62 The majority cites several Washington cases granting PRPs based on a petitioner’s ineffective assistance of counsel claim which appear to apply the Strickland “reasonable probability” standard for determining prejudice without further determining whether the petitioner demonstrated “actual and substantial prejudice” resulting from his counsel’s deficient performance, the appropriate standard upon which we can grant relief through a PRP. See majority at 111-12 (citing In re Pers. Restraint of Brett, 142 Wn.2d 868, 883, 16 P.3d 601 (2001); In re Pers. Restraint of Fleming, 142 Wn.2d 853, 866-67, 16 P.3d 610 (2001); In re Pers. Restraint of Hubert, 138 Wn. App. 924, 930-32, 158 P.3d 1282 (2007); In re Pers. Restraint of Sims, 118 Wn. App. 471, 478, 480, 73 P.3d 398 (2003); In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 434-35, 993 P.2d 296 (2000); see In re Pers. Restraint of McCready, 100 Wn. App. 259, 265, 996 P.2d 658 (2000)). But none of the majority’s cited cases have squarely addressed whether the “reasonable probability” standard is appropriate when the ineffective assistance of counsel claim is raised for the first time in the context of a PRP, which requires a showing of “actual and substantial prejudice” before the reviewing court may grant the petition. Instead, these cases assume without analysis that reviewing courts apply the same standard to ineffective assistance of counsel claims whether brought in a direct appeal or in a PRP and thus do not acknowledge the court’s limited authority to grant collateral relief through a PRP.

¶63 The majority also cites In re Davis, 152 Wn.2d at 700, a capital case, for the proposition that the “actual and substantial prejudice” standard equates with the Strickland prejudice standard. Majority at 111 n.16. But in In re Davis, our Supreme Court reviewed the petitioner’s numerous ineffective assistance of counsel claims related to the guilt phase of his trial and held that the petitioner failed to meet the Strickland prejudice prong. Thus, our Supreme Court in In re Davis did not address whether meeting the Strickland prejudice standard alone would satisfy the “actual and substantial prejudice” standard required to grant collateral relief through a PRP on a judgment of conviction. Although the In re Davis court determined that petitioner’s trial counsel was ineffective during the penalty phase of his trial, our Supreme Court applied a heightened level of scrutiny applicable to claims of error associated with the penalty phase in capital cases. State v. Benn, 120 Wn.2d 631, 661, 845 P.2d 289 (citing State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992)), cert. denied, 510 U.S. 944 (1993). Because of the unique nature of punishment for capital offenses, a personal restraint petitioner who claims his counsel was ineffective during a capital sentencing proceeding shifts the burden and our Supreme Court errs on the side of finding prejudice. See In re Davis, 152 Wn.2d at 763 (Chambers, J. concurring). Accordingly, the In re Davis court’s review of petitioner’s ineffective assistance of counsel claim as related to the penalty phase of his trial for a capital offense does not control the analysis in this case involving the jury’s verdict of the substantive offense.¹⁹

¶64 Additionally, it is not at all clear to me that Crace’s counsel’s conduct fell below that of a modern, ordinary, reasonably prudent defense counsel. Under court rules governing jury instructions, counsel are directed to (1) file proposed jury instructions and (2) take exception to instructions or lack of instructions in order to call potential instructional deficiencies to the trial court’s attention. CrR 6.15(a), (c). Through a tortuous series of cases, however, an exception to the requirement that defense counsel must except to the trial court’s instructions to preserve error for review has developed. As Justice Horowitz recognized in State v. Ermert, 94 Wn.2d 839, 850 n.1, 621 P.2d 121 (1980), absent a claim of ineffective assistance of counsel, appellate courts lack authority to review jury instructions to which no exception was taken.

¶65 Through the intervening years, the ineffective assistance of counsel exception to the issue preservation requirement has become so pervasive that an ordinary, reasonably competent defense counsel routinely ignores rules requiring the presentation of defense proposed instructions as required under CrR 6.15(a) and, to a lesser extent, the taking of exceptions to the trial court’s jury instructions as required under CrR 6.15(c). This decision appears to be based on the fact that the invited error doctrine has been pretty consistently enforced, see, e.g., State v. Momah, 167 Wn.2d 140, 153-55, 217 P.3d 321 (2009) (discussing application of the invited error doctrine), cert. denied, 131 S. Ct. 160 (2010), while the ineffective assistance of counsel argument has undermined normal preservation requirements and resulted in appellate courts reviewing the merits of issues never presented to or decided by the trial court. As such, in my opinion, the failure to propose or except to instructions has become either a tactical decision which cannot form the basis of an ineffective assistance of counsel claim, see State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (legitimate trial tactics cannot form basis for ineffective assistance of counsel claim), or has become conduct so pervasive that the ordinary, reasonably prudent defense counsel intentionally fails to comply with court rules requiring issue preservation to provide what amounts to de novo review of the trial on appeal and, as the majority demonstrates, in a collateral proceeding. Accordingly, such conduct does not fall below that of the ordinary, reasonably prudent defense counsel and the first Strickland prong is not satisfied. 466 U.S. at 687-88.

¶66 Undeniably, the wholesale de novo review of a conviction on direct appeal via claims of ineffective assistance of counsel presents a challenge to the principle of finality of judgments. But in my opinion, the majority here has exceeded the reviewing authority granted an appellate court by reviewing de novo defense counsel’s tactical jury instruction decisions raised for the first time in a collateral attack and construing the evidence in the light most favorable to Crace and against the validity of the mandated judgment and sentence. The law is clear. To prevail on a collateral attack of a mandated final judgment, Crace must prove he was “actually and substantially prejudiced by the [claimed constitutional] error.” In re Davis, 152 Wn.2d at 671-72. The majority’s analysis does not demonstrate that Crace has made such a showing and, accordingly, its ruling granting Crace’s petition and vacating the mandated judgment exceeds the authority of this court.

¶67 Moreover, the majority’s application of the direct review standard to a personal restraint petitioner’s ineffective assistance of counsel claim undermines the purpose of our limited PRP review standard, namely principles of finality of litigation, degradation of the prominence of trial, and deprivation of society’s right to punish admitted offenders. In re Davis, 152 Wn.2d at 670. And rather than ensuring a defendant’s right to effective assistance of counsel, the majority’s mistaken application of the direct review standard to Crace’s PRP acts as a disincentive for trial counsel to timely litigate issues at trial and preserve issues for appeal by complying with the appropriate court rules. Lowering the standard by which we grant collateral relief in a PRP results in degradation of the trial and direct review process. Accordingly, I respectfully dissent.

Review granted at 171 Wn.2d 1035 (2011).

19 I note that the In re Davis opinion also mischaracterizes the penalty phase process. Initially, In re Davis states that “the jury recommended that leniency not be granted.” 152 Wn.2d at 662. But in an aggravated murder death penalty phase, the jury does not make a sentencing recommendation, it enters a finding to a specific question: “ ‘Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?’ ” RCW 10.95.060(4). If the jury answers “Yes,” the trial court is required to impose a sentence of death. RCW 10.95.080(1). If it answers “No,” the trial court is required to impose a sentence of life without possibility of parole. RCW 10.95.080(2).