[No. 35706-2-II. Division Two. July 21, 2009.]
December 1, 2008, Oral Argument
Sheri L. Arnold and Reed M.B. Speir, for petitioner.
Gerald A. Horne, Prosecuting Attorney, and Alicia M. Burton, Deputy, for respondent.
¶1 QUINN-BRINTNALL, J. -- In his personal restraint petition (PRP), Aaron Michael Davis seeks relief from his 2004 convictions for first degree assault, first degree unlawful possession of a firearm, unlawful imprisonment, and violation of a protection order. He argues that his trial and appellate counsel's representation was constitutionally deficient, cumulative errors denied him his right to a fair jury trial, and his sentence is inaccurate.
¶2 Davis asserts that his trial counsel's representation was constitutionally deficient because he (1) failed to investigate the size of the knife Davis used to stab Lana McCorrister, (2) failed to move to suppress the gun seized following a consensual search of his sister's home, (3) failed to move to dismiss the possession of a firearm charge at the close of the State's case, (4) offered an improper self-defense instruction, (5) failed to object to the State's first aggressor instruction, and (6) failed to request a sentence below the standard range. Davis also asserts that his initial appellate counsel's representation was constitutionally deficient for failing to challenge the sufficiency of the evidence supporting his convictions and failing to raise an ineffective assistance of trial counsel issue based on trial counsel's failure to challenge the improper self-defense jury instruction. Davis fails to establish actual and substantial prejudice from any of these alleged errors, and we deny his PRP.
FACTS ¶3 Following a 2004 trial, a Washington jury found Davis guilty of unlawful imprisonment, first degree assault, and unlawful possession of a firearm in connection with the stabbing of his longtime girl friend, Lana McCorrister. He filed an unsuccessful direct appeal, followed by an untimely petition for review to our Supreme Court. Davis is currently housed at a privately-run facility in Florence, Arizona. He filed this PRP seeking release from his 300-month sentence. ¶4 Despite the protection order prohibiting Davis from contacting McCorrister, in September 2003, Davis and McCorrister lived together in Spanaway, Washington. On the morning of September 28, 2003, the two argued over whether they would go to Rick Lovitt's house to retrieve one of Davis's cars. McCorrister testified that when she refused to go with Davis to Lovitt's house, Davis forced her into his truck at gunpoint. ¶5 Davis and McCorrister went to Lovitt's house, where Davis began yelling at Lovitt. McCorrister reached into her purse for a can of pepper spray and pointed it at Davis, who then stabbed her in the arm with his hunting knife, breaking her arm. ¶6 Lovitt brought McCorrister to local authorities, who took her to Tacoma General Hospital. Her physician treated her for the knife wound, a torn palm muscle, lacerations, a black eye, a swollen foot, bruises, and a split scalp. ¶7 The Pierce County Prosecuting Attorney's office charged Davis with first degree kidnapping, first degree assault, violation of a protection order, and first degree unlawful possession of a firearm. ¶8 Davis asserted a self-defense claim, but his trial counsel did not move to dismiss the charge of unlawful possession of a firearm for want of sufficient evidence at the close of the State's case. Instead, Davis's counsel offered an "act on appearances" self-defense jury instruction. This instruction applies self-defense to situations where the defendant believes himself in danger of "great bodily harm." The State offered the jury a first aggressor instruction to which Davis's counsel did not object. The jury convicted Davis of the lesser-included offense of unlawful imprisonment, first degree assault, and first degree unlawful possession of a firearm. ¶9 At sentencing, Davis's counsel recommended a sentence at the bottom of the standard range. The sentencing court calculated Davis's offender score at 5 for unlawful imprisonment, 6 for first degree assault, and 5 for first degree unlawful possession of a firearm. The court imposed a 300-month sentence, with the domestic violence and firearm enhancements running consecutively, and suspended the sentence of one year for the violation of the protection order conviction. ¶10 On direct appeal, Davis's counsel challenged the admission of evidence of injuries sustained by McCorrister when she fell out of the vehicle and testimonial statements given to the police by a witness. In a statement of additional grounds ¶11 In this PRP, Davis complains that his appellate counsel on direct appeal failed to challenge the sufficiency of the evidence supporting the jury's verdicts on appeal. We issued our mandate on Davis's direct appeal on March 13, 2006. He filed his initial PRP on December 12, 2006. He filed an amended PRP on March 3, 2008. ¶12 In the published portion of this opinion, we address the timeliness of Davis's second ineffective assistance of appellate counsel claim and the appropriate standard of review of issues timely raised in his initial petition. Applying this standard to the remaining issues timely raised, we hold that Davis has not demonstrated actual and substantial prejudice and deny his PRP. ANALYSIS TIME BAR ¶13 We first address whether Davis timely filed his petition and amended petition. Although Davis filed a timely petition, we hold that the issues contained in his amended petition are time barred. [1, 2] ¶14 Under RCW 10.73.090(1), "[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." If more than one year has elapsed, we cannot review petitioner's claims unless he shows that either (1) the time bar does not apply because his judgment and sentence is facially invalid or was not rendered by a court of competent jurisdiction or (2) one or more of the six exceptions to the time bar enumerated in RCW 10.73.100 applies. ¶15 Here, we issued a mandate on Davis's direct appeal on March 13, 2006. See RCW 10.73.090(3)(b) (time bar runs from issuance of mandate, if last triggering event). Davis timely filed his original petition on December 12, 2006. In that petition, he asserted that his appellate counsel was ineffective for failing to challenge the sufficiency of evidence, but he did not argue that appellate counsel was ineffective for failing to challenge his trial counsel's representation on his direct appeal. He did not raise this ineffective appellate counsel argument until he filed an amended PRP on March 3, 2008, nearly two years after the one-year deadline under RCW 10.73.090. ¶16 In In re Personal Restraint of Bonds, our Supreme Court held that the principles of finality of judgments and time limitations the legislature imposed in RCW 10.73.090 precluded consideration of arguments presented in an untimely amended petition. 165 Wn.2d 135, 143-44, 196 P.3d 672 (2008). The court explained, "Though the appellate rules do not expressly authorize or prohibit amendment to PRPs, we have accepted amendments to a PRP made within the statutory time limit." In re Bonds, 165 Wn.2d at 140. Relying on In re Personal Restraint of Benn, 134 Wn.2d 868, 952 P.2d 116 (1998), the Bonds court defined RCW 10.73.090 as a statute of limitations, rather than a jurisdictional bar. 165 Wn.2d at 140 (citing Benn, 134 Wn.2d at 938-39). The court went on to note that although Bonds had no counsel at the time he filed his PRP and therefore missed the public trial issue, "we require a pro se petitioner to comply with applicable rules and statutes and hold them to the same responsibility as an attorney." Bonds, 165 Wn.2d at 143. ¶17 Here, Davis's situation is similar to that analyzed in Bonds. Davis had no assigned counsel when he filed his PRP and he did not assign error to an issue he raised in a later amended PRP. See In re Bonds, 165 Wn.2d at 138-39, 143 (holding "there is no constitutional right to counsel in post-conviction collateral attacks"). Thus, we follow In re Bonds and decline to address Davis's argument regarding the ineffective assistance of appellate counsel claim based on appellate counsel's alleged failure to assign error to trial counsel's assistance that he raised in his untimely amended PRP. See 165 Wn.2d at 139-44. Davis raised no potential exceptions or exemptions to this time bar. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD OF REVIEW ¶18 The United States and Washington State Constitutions guarantee a defendant the right to effective assistance of counsel in criminal trials. U.S. CONST. amend. VI; WASH. CONST. art. I, $ 22; Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ¶19 On direct review, an appellant must show that "(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). In making such a showing, the appellant must overcome a strong presumption that his counsel's performance was not deficient. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). [3] ¶20 In a PRP, a petitioner claiming ineffective assistance of appellate counsel for failing to raise a constitutional error or fundamental defect at trial must show that he was actually and substantially prejudiced by the error and that the legal issue, here ineffective assistance of Davis's trial counsel, has merit. In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 777, 100 P.3d 279 (2004). By claiming ineffective assistance of appellate, as well as trial, counsel, Davis seeks to lower the standard of prejudice in a collateral attack necessary to prove that his trial counsel provided constitutionally deficient assistance. We hold that to prevail in this PRP, Davis must prove that he was actually and substantially prejudiced by his trial counsel's representation. This holding is consistent with the standard applied by our Supreme Court for many years. In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000); In re Benn, 134 Wn.2d 868. In light of his and his appellate counsel's full and competent exercise of Davis's direct appeal rights, Davis's attempt to circumvent the "actual and substantial prejudice standard" applicable to errors asserted via collateral attack by also asserting an ineffective assistance of appellate counsel argument is unpersuasive. ¶21 Accordingly, we apply the actual and substantial prejudice standard to the claims raised in the timely filed portion of Davis's petition. ¶22 We deny Davis's PRP. ¶23 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. MOTION TO SUPPRESS GUN ¶24 Davis argues that his trial counsel was ineffective for failing to move to suppress the gun, arguing that the property owner's consent to the search was involuntary. The State responds that because such a motion would not have been successful, Davis suffered no prejudice, let alone actual and substantial prejudice. ¶25 In Washington, a defendant challenging the existence of consent to a search must have a legitimate expectation of privacy in the area searched in order to have automatic standing. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007). Automatic standing requires that possession is an essential element of the offense and that he possessed the contraband at the time of the contested search or seizure. Evans, 159 Wn.2d at 407. The State charged Davis with unlawful possession of a firearm and satisfied the first standing requirement with respect to that conviction. But with respect to the other charges, possession is not an element of first degree assault, first degree kidnapping, or violation of a protection order. ¶26 With respect to the second element of possession, the deputy testified that he discovered the gun under a crawlspace cover in the back of Tarah Davis's house. On direct examination, Davis denied having the gun, dropping it, or ever doing anything with it. Thus, as regards the assault, kidnapping, and violation of the protection order charges, Davis's possession is not an essential element of the offense and he lacked standing to challenge the search and a seizure of items found in another's home. A motion to suppress in a CrR 3.6 hearing would not have been successful. See, e.g., State v. Williams, 142 Wn.2d 17, 23-24, 11 P.3d 714 (2000) (discussing the continued applicability of the automatic standing rule in Washington but finding "no reason to confer additional privacy protections to suspects who are arrested in other person's homes"). Appellate courts do not presume that a "CrR 3.6 hearing is required in every case in which there is a question as to the validity of a search and seizure" and, as the "presumption runs in favor of effective representation," an attorney need not pursue strategies that appear unlikely to succeed. McFarland, 127 Wn.2d at 336. Therefore, Davis's argument that his trial counsel was ineffective for failing to move to suppress the evidence of a gun fails. MOTION FOR DISMISSAL - LACK OF SUFFICIENT EVIDENCE ¶27 Davis also argues that his trial counsel was ineffective for failing to move to dismiss the first degree unlawful possession of a firearm charge for insufficient evidence at the end of the State's case-in-chief. But the jury has rendered its verdict and Davis may not challenge the State's production of a prima facie case. See, e.g., State v. King, 113 Wn. App. 243, 269 n.6, 54 P.3d 1218 (2002) (once verdict rendered, challenge to the prima facie case merges into verdict and only challenge to the sufficiency of the evidence supporting the jury verdict may be raised), review denied, 149 Wn.2d 1013 (2003). ¶28 Moreover, McCorrister testified that Davis forced her into his truck at gunpoint. He signed a stipulation acknowledging his prior conviction for a serious offense, as is required to prove first degree unlawful possession of a firearm, and told the jury that police found no fingerprints on the pistol. Reviewing the record, the trial court would have denied any such motion. The defense's decision to stipulate to certain facts to prevent the jury from learning the nature of Davis's prior conviction is an example of a tactical decision that does not support a claim of ineffective assistance of counsel. State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001) (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)). Davis suffered no actual or substantial prejudice from his counsel's performance in this regard and his claim is wholly unfounded. ¶29 Likewise, Davis's claim that his counsel was ineffective for failing to investigate the size of the knife he used to stab McCorrister is meritless. INVESTIGATION INTO SIZE OF THE KNIFE ¶30 Davis argues that his trial counsel was ineffective for failing to investigate the size of the knife he used to stab McCorrister. Davis cites RCW 9.94A.602, which defines "deadly weapon" for purpose of special jury verdicts. A knife with a blade longer than three inches is a deadly weapon under RCW 9.94A.602 as a matter of law. At trial, Davis testified that the knife's blade was approximately four inches long, while McCorrister testified that the blade was closer to six inches in length. ¶31 Despite his own testimony, Davis argues that his defense counsel's failure to investigate the length of the knife prejudiced him because his "knife is precluded from being considered a deadly weapon as a matter of law." PRP at 20. Davis's interpretation of RCW 9.94A.602 is incorrect. Although a knife with a blade longer than three inches is one example of a deadly weapon, any implement, including a knife with a shorter blade, is a deadly weapon under the statute so long as it "has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death." RCW 9.94A.602. ¶32 McCorrister testified that Davis "stabbed me so hard it broke my arm" and Davis admitted that he swung the knife at her. 2 Report of Proceedings (RP) at 40. Thus, although Davis testified that the knife's blade was longer than three inches, even if he had not done so, the manner in which he stabbed McCorrister satisfied the definition of a deadly weapon under RCW 9.94A.602. Davis's trial counsel was not ineffective for failing to investigate the length of the knife blade. SELF-DEFENSE INSTRUCTIONS ¶33 Generally, the invited error doctrine "forecloses review of an instructional error where the appellant proposed the challenged instruction. But invited error does not bar review of a claim of ineffective assistance of counsel based on such an instruction." State v. Bennett, 87 Wn. App. 73, 76, 940 P.2d 299 (1997) (footnotes omitted), aff'd by State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999). ¶34 In State v. Walden, 131 Wn.2d 469, 475 n.3, 932 P.2d 1237 (1997), our Supreme Court disapproved, using the phrase "great bodily harm" in the self-defense jury instructions (explaining "[t]he Washington Pattern Jury Instructions advocate the use of a third variation on this term: great personal injury. [11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2.04.01, at 28 (3d ed. 2008)]. Despite the potential confusion inherent in the inconsistent use of these three terms, the issue in this case concerns the definition of the term in the context of self-defense . . . advocate using the term 'great personal injury.'"). Here, the State concedes that one of Davis's self-defense jury instructions contained the disfavored phrase "great bodily harm" and that his counsel's decision to propose such an instruction fell below the standard of conduct. But the State argues that Davis has failed to satisfy his burden of proving that the great bodily harm language worked to his actual and substantial prejudice as required. In re Davis, 142 Wn.2d at 171; In re Benn, 134 Wn.2d 868. Given the evidence at Davis's trial, we agree with the State. ¶35 Davis argues that he is required to prove prejudice only by a preponderance of the evidence and that he is prepared to do so. Essentially, Davis argues that because the defense and the State presented the jury with two different factual scenarios regarding the knife assault, the giving of a proper "act on appearances" instruction would have led to a different verdict on a more probable than not basis. In the State's version, McCorrister pulled the can of pepper spray out of her purse and tried to spray Davis when he stabbed her. In Davis's version, McCorrister actually sprayed Davis with the pepper spray before he stabbed her. We do not reweigh the credibility of witnesses. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 410-11, 972 P.2d 1250 (1999). Even under Davis's version of the facts, a reasonable jury would not find that stabbing someone with a hunting knife is a lawful use of deadly force against pepper spray, especially when the evidence of record shows that Davis had initially forced the person wielding the pepper spray into the cab of his truck at gunpoint and then had threatened to stab her if she attempted to escape. FIRST AGGRESSOR INSTRUCTION ¶36 Also, for the first time in his PRP, Davis argues that his trial counsel was ineffective for failing to object to the "first aggressor" instruction. The State argues that the first aggressor "instruction was properly presented to the jury and petitioner was not prejudiced." State's Response at 11. Again, we agree with the State. ¶37 "[A] defendant whose aggression provokes the contact eliminates his right of self-defense. A first-aggressor instruction is proper when the record shows that the defendant is involved in wrongful or unlawful conduct before the charged assault occurred" and provocation by the defendant is therefore an appropriate basis for the trial court to give the instruction. State v. Douglas, 128 Wn. App. 555, 562-63, 116 P.3d 1012 (2005). Both the State and Davis agree that an instruction is proper where credible evidence supports the defendant's provocation. ¶38 Here, McCorrister testified that Davis put a gun to her head, forced her into his truck, and threatened her with a hunting knife before she either sprayed or attempted to spray Davis with pepper spray from her purse. Accordingly, sufficient evidence supported the trial court's decision to instruct the jury on the law of aggression and Davis was not prejudiced by his trial counsel's decision not to object to the proper instruction. Davis's ineffective assistance of counsel claim fails on this basis. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ¶39 Davis also contends that on direct appeal, his appellate counsel rendered ineffective assistance because she failed to challenge the sufficiency of the evidence for his convictions and raise ineffective assistance of trial counsel for failing to assign error to the improper self-defense jury instruction. SUFFICIENCY OF EVIDENCE ¶40 Davis argues that his appellate counsel rendered ineffective assistance when she failed to challenge the sufficiency of the evidence supporting his unlawful possession of a firearm, unlawful imprisonment, and first degree assault charges. As we discussed above, sufficient evidence supported Davis's unlawful firearm possession charge because he stipulated to having a predicate conviction at trial, the police found the gun following a consensual search of his sister's home, and because McCorrister testified at trial that Davis had held the gun that the State produced at trial to her head to force her into his truck. Sufficient evidence supports the unlawful imprisonment charge because McCorrister testified that Davis led her into his truck against her will at gunpoint and threatened her with a hunting knife when she attempted to escape. And sufficient evidence supports the first degree assault charges because both the petitioner and McCorrister testified that Davis broke her arm when he stabbed her with a knife. ¶41 Although Davis maintains that he was justified in using the knife to defend against a pepper spray attack, the jury clearly did not find his testimony credible or reasonable and we do not reweigh such determinations on appeal. Gentry, 137 Wn.2d at 410-11. Sufficient evidence supported Davis's convictions for unlawful possession of a firearm, unlawful imprisonment, and first degree assault, and his appellate counsel did not render ineffective assistance when she decided not to challenge the sufficiency of this evidence on direct appeal because the issue has no merit. Appellate counsel does not render ineffective assistance merely because he or she chooses not to raise all possible issues on appeal. In re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994); see In re Dalluge, 152 Wn.2d at 778. SENTENCING ¶42 Davis next contends that the trial court erred in its determination that his actions were not the same criminal conduct and applied the wrong offender score, thereby sentencing him beyond the statutory maximum. The State counters that the offender score is correct and the crimes are not the same criminal conduct. ¶43 Crimes are considered the same criminal conduct if they have the same criminal intent, are committed at the same time and place, and involve the same victim. RCW 9.94A.589(1)(a). As the intent elements of Davis's crimes were all distinct, the trial court did not err in finding they were not part of the same criminal conduct. When Davis explains his objective was simply to retrieve his car and reasons "[a]nything that happened amongst this objective was furthering Mr. Davis's objective," he confuses discrete elements of criminal intent with a general motive or plan. PRP at 23. ¶44 All elements of RCW 9.94A.589(1)(a) must be met before multiple crimes can be considered the same criminal conduct; if one element is missing, they must be counted separately in calculating the offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). Unlawful imprisonment, assault, and unlawful possession of a firearm each have discrete criminal intents, and the trial court did not err when it found they were not the same criminal conduct for sentencing purposes. Davis's argument that the trial court sentenced him improperly therefore fails. CUMULATIVE ERROR ¶45 Davis finally contends that cumulative error denied him a fair trial. He alleges both cumulative error by trial counsel and cumulative error by appellate counsel. As we discussed above, although the act on appearances instruction was error, Davis has not shown that he suffered from several errors at trial that together actually and substantially prejudiced him and, thus, cumulative error does not form a basis for relief. See State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 378 (2003), review denied, 151 Wn.2d 1031 (2004). ¶46 Accordingly, we deny Davis's PRP. VAN DEREN, C.J., and BRIDGEWATER, J., concur.