In Re The Personal Restraint Petition Of Rebecca L. Roberts ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
September 4, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 52980-7-II
Personal Restraint of
REBECCA LYNN ROBERTS,
Petitioner.
UNPUBLISHED OPINION
WORSWICK, J. — Rebecca Roberts seeks relief from personal restraint imposed as a result
of her 2017 plea of guilty to vehicular homicide.1 The trial court imposed a mid-range standard
range sentence of 90 months.
First, Roberts argues that the prosecutor committed misconduct when, during the
sentencing hearing, the prosecutor incorrectly suggested that she had ingested benzodiazepine, in
addition to alcohol and marijuana, prior to the crime. Roberts’s counsel did not object to that
statement, so Roberts must show that the statement was so flagrantly erroneous and ill intentioned
that a jury instruction could not have cured the prejudice from the arguments and that the prejudice
had a substantial likelihood of affecting the jury’s verdict. State v. Scherf, 192 Wash. 2d 350, 393-
94, 429 P.3d 776 (2018). Roberts’s counsel, later in the sentencing hearing, corrected the
misstatement by informing the court that while there were benzodiazepines in Roberts’s blood
1
The trial court entered Roberts’s judgment and sentence on January 10, 2018, making her January
9, 2019 petition timely filed. RCW 10.73.090(3)(a).
No. 52980-7-II
sample, they were administered by first responders at the scene after the accident. The trial court
made no reference to the benzodiazepines. Roberts does not show any reasonable likelihood that
she was prejudiced by the prosecutor’s misstatement or a substantial likelihood that the
misstatement had an effect on the trial court’s sentencing decision. Thus, she does not show
prosecutorial misconduct.
Second, Roberts argues that her counsel was ineffective because she did not argue for an
exceptional sentence below the standard range. To establish ineffective assistance of counsel, she
must demonstrate that her counsel’s performance fell below an objective standard of
reasonableness and that as a result of that deficient performance, the result of her case probably
would have been different. State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995);
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We
presume strongly that trial counsel’s performance was reasonable. State v. Grier, 171 Wash. 2d 17,
42, 246 P.3d 1260 (2011).
Roberts does not show that her counsel performed deficiently. She does not show that any
of the mitigating circumstances contained in RCW 9.94A.535(1) were present such that her
counsel should have argued for an exceptional sentence below the standard range. The fact that
Roberts’s insurer compensated the estate of her victim does not constitute a defendant’s efforts to
compensate the victim such that it would serve as a mitigating circumstance under RCW
9.94A.535(1)(b). And Roberts’s counsel did argue for a sentence at the bottom of the standard
range. Thus, Roberts fails to demonstrate that she received ineffective assistance of counsel.
2
No. 52980-7-II
Roberts does not present grounds for relief from restraint. We therefore deny her petition
and deny her request for appointment of counsel.
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:
MAXA, C.J.
GLASGOW, J.
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