In the Matter of the Pers. Restraint of Daniel Christopher Lazcano ( 2019 )

FILED
SEPTEMBER 19, 2019
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
In the Matter of the Personal Restraint of ) No. 36440-2-III
)
DANIEL CHRISTOPHER LAZCANO, )
)
Petitioner. ) UNPUBLISHED OPINION
KORSMO, J. — A jury convicted Daniel Christopher Lazcano of first degree
murder. In a 71-page unpublished opinion, this Court affirmed Mr. Lazcano’s
conviction. State v. Lazcano, No. 32228-9-III (Wash. Ct. App. Mar. 16, 2017)
(unpublished), http://www.courts.wa.gov/opinions/pdf/322289.pdf. Having been denied
relief from his conviction on direct review, Mr. Lazcano now presents this timely
personal restraint petition. In his petition, Mr. Lazcano recasts arguments previously
raised and decided in his direct appeal under a new heading of ineffective assistance of
counsel. For this reason, we deny Mr. Lazcano’s personal restraint petition as without
merit.
No. 36440-2-III
In re Pers. Restraint of Lazcano
FACTS
The facts surrounding Mr. Lazcano’s conviction are adequately recounted in this
Court’s first opinion. See Lazcano, slip op. Accordingly, we will not recount them
further except as necessary for disposition of this personal restraint petition.
Mr. Lazcano’s first two trials in this matter resulted in hung juries. Following the
second mistrial, Mr. Lazcano and the State reached a plea agreement, under which Mr.
Lazcano would plead guilty to a reduced charge of second degree manslaughter. This
would have resulted in a sentence far below that for first degree murder.
After considering a variety of factors, including proportionality, prosecution
standards, and the facts presented during the first two trials over which he had presided,
the trial judge rejected the plea agreement and amended information. The judge later
granted a motion for change of venue and disqualified himself from further proceedings
on the basis that the very candid reasons he put on the record for denying the plea
agreement presented a potential appearance of fairness issue. The case then proceeded to
trial in a different county before a different judge.
ANALYSIS
To obtain relief in a personal restraint petition, Mr. Lazcano must show actual and
substantial prejudice resulting from alleged constitutional errors, or for alleged
nonconstitutional errors that constitute a fundamental defect that inherently results in a
complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash. 2d 802, 813, 792
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No. 36440-2-III
In re Pers. Restraint of Lazcano
P.2d 506 (1990). To avoid dismissal, the petitioner must support claims with facts and
not merely bald or conclusory allegations. Id. at 813-814. The supporting evidence must
be based on “more than speculation, conjecture, or inadmissible hearsay,” and failure to
meet this calls for dismissal of the petition. In re Pers. Restraint of Rice, 118 Wash. 2d 876,
886, 828 P.2d 1086 (1992).
In this petition, Mr. Lazcano argues that he received ineffective assistance when
his trial counsel failed to move for disqualification of the original trial judge and when
his trial counsel failed to move for vacation of that judge’s decision rejecting the plea
agreement. Mr. Lazcano also argues that the original trial judge erred by ruling on the
proposed plea agreement when he should have instead recused himself for actual
prejudice, bias, and violation of the appearance of fairness doctrine prior to ruling on the
plea agreement.
On direct review, Mr. Lazcano argued that the original judge abused his discretion
by refusing to accept the amended information and accompanying plea agreement.
Lazcano, slip op. at 22. Reviewing the issue, we—like the judge before—found that the
proposed plea agreement was not in the interest of justice; therefore, rejection of it was
not an abuse of discretion. Id. at 24-25.
Although not properly preserved, we also addressed and rejected on the merits Mr.
Lazcano’s claim that the judge should have recused himself before ruling on the plea
agreement and found that “[t]he record shows no bias, prejudice, or animus on a personal
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No. 36440-2-III
In re Pers. Restraint of Lazcano
level against Daniel Lazcano.” Id. at 26; see also id. at 67-69. Accordingly, the judge
was not required to disqualify himself prior to ruling on the proposed plea agreement.
Now, on collateral review, Mr. Lazcano re-raises this issue under the heading of
ineffective assistance of counsel. “A defendant may not recast the same issue as an
ineffective assistance claim; simply recasting an argument in that manner does not create
a new ground for relief or constitute good cause for reconsidering the previously rejected
claim.” In re Personal Restraint of Stenson, 142 Wash. 2d 710, 720, 16 P.3d 1 (2001).
Accordingly, this issue does not merit further review.
The same is true of Mr. Lazcano’s argument that his attorney was ineffective for
failing to seek vacation of the judge’s denial of the plea agreement. Even if we were to
review the issue, Mr. Lazcano’s attorney’s performance was not deficient1 because, as we
found in our earlier opinion, the plea agreement was not in the interests of justice. There
is also no prejudice because it cannot be shown with any likelihood that a different judge
would have accepted this obviously flawed plea agreement. Lazcano, slip op. at 24-25.
1
In a claim of ineffective assistance of counsel, the appellant/petitioner must show
that his counsel’s performance fell below an objective standard of reasonableness, and a
reasonable probability that but for counsel’s deficient performance the result would have
been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
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No. 36440-2-III
In re Pers. Restraint ofLazcano
CONCLUSION
Mr. Lazcano fails to meet his burden under Cook. We therefore deny his petition.
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.
WE CONCUR:
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Lawrence-Berrey, �J.
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