Personal Restraint Petition Of Michael Lynn Sublett ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
May 10, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
IN RE THE PERSONAL RESTAINT No. 45972-8-II
PETITION OF:
MICHAEL LYNN SUBLETT,
UNPUBLISHED OPINION
Petitioner.
SUTTON, J. — Michael Lynn Sublett petitions for relief from personal restraint imposed
following his conviction for first degree murder. Sublett asserts in his personal restraint petition
(PRP) that we should reverse his conviction and remand for a new trial because (1) the State
committed prosecutorial misconduct by including a PowerPoint slide in its closing argument with
the word “guilty” in red capital letters over his booking photograph, (2) the State deprived him of
due process and violated his right to participate in his defense by forcing him to wear a stun device
without a hearing regarding its necessity, (3) he was denied his right to testify because his attorney
failed to move to reopen testimony after closing arguments when Sublett informed his attorney
that he wanted to testify, (4) he is factually innocent of the two prior California convictions and
the actual innocence doctrine should apply, and (5) he was denied effective assistance of counsel
on three different occasions.
We hold that (1) Sublett was not prejudiced by any prosecutorial misconduct, (2) he was
not denied his right to due process or right to participate in his trial by being forced to wear a stun
device without an evidentiary hearing, (3) he fails to present competent evidence that he was
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No. 45972-8-II
denied the right to testify, (4) he does not meet his burden of showing by clear and convincing
evidence that he is factually innocent of the prior California convictions or that the actual
innocence doctrine applies, and (5) he was not denied effective assistance of trial counsel.
Therefore, we deny Sublett’s personal restraint petition.
FACTS
The State charged Sublett with first degree murder or, in the alternative, first degree felony
murder.1 During closing argument at his trial, the State presented a PowerPoint slide that included
Sublett’s and Christopher Olsen’s, Sublett’s codefendant, booking photographs with the word
“guilty” typed across the pictures in red capital letters. Surrounding the photographs were arrows
pointing to the photographs with descriptive summary words of the evidence presented, like
“FLIGHT,” “MOTIVE,” and “PLANNING,” at the end of each arrow. Olsen objected to the slide
because the booking photographs had not been admitted into evidence.2 The State removed it from
the screen at the trial court’s request.
The jury found Sublett guilty of first degree murder. At sentencing, the trial court found
Sublett to be a persistent offender under the Persistent Offender Accountability Act3 (POAA)
1
The substantive facts of Sublett’s charge and conviction are not at issue in this restraint petition,
but those facts may be found in our Supreme Court’s opinion affirming Sublett’s conviction after
his direct appeal. State v. Sublett, 176 Wash. 2d 58, 292 P.3d 715 (2012).
2
Olsen also objected to his unaltered booking photo, which the prosecutor presented at the
beginning of his presentation in a different slide. Sublett does not assign error to the slide with the
unaltered booking photograph.
3
RCW 9.94A.570.
2
No. 45972-8-II
because he had previously been convicted of robbery in California on at least two other occasions,
which is a “most serious offense” felony. Resp. to PRP, App. A at 5.
Sublett appealed his conviction and, in a consolidated case with Olsen’s appeal, Division
One of this court affirmed. State v. Sublett, 156 Wash. App. 160, 231 P.3d 231 (2010), aff’d 176
Wash. 2d 58 (2012). Our Supreme Court affirmed his conviction and mandated his case on February
12, 2013. State v. Sublett, 176 Wash. 2d 58, 292 P.3d 715 (2012). Sublett timely filed this personal
restraint petition (PRP).
Sublett submitted a personal declaration with his PRP. First, Sublett asserts that he was
forced to wear a shock device during trial without a hearing on whether the device was necessary.
He states that he told his trial attorney he did not want to wear the device and that wearing it made
him unable to concentrate or adequately communicate with his attorney because he was afraid of
being shocked. Second, Sublett asserts that he is actually innocent of the trial court’s POAA
finding because he did not commit the two crimes of robbery in California because he did not
threaten to harm the person from whom he stole money. Finally, Sublett declares that his attorney
did not tell him that two previous California robbery convictions would qualify as “strikes” if he
did not take the State’s offered plea deal, in which the State agreed it would not attempt to treat
those convictions as strikes during sentencing. Decl. of Sublett at ¶ 3. Sublett asserts that he
would have taken the plea deal if he had known this information.
In considering his PRP, we ordered that Sublett’s petition be transferred to Thurston
County Superior Court for a reference hearing on several of Sublett’s claims of error because he
raises factual issues that could not be determined on the limited record before us. We asked the
superior court to address the following questions:
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No. 45972-8-II
(1) Did the State offer Sublett a plea bargain in which the State agreed that it would
not ask the trial court during sentencing to count Sublett’s 1984 and 1985 California
robbery convictions as “strikes” for the purpose of a persistent offender finding
under the persistent offender statute, RCW 9.94A.570?
(2) If so, did Sublett’s counsel advise Sublett of the State’s offer and the potential
consequences of Washington’s persistent offender statute as it applies to Sublett’s
1984 and 1985 California robbery convictions?
(3) Was Sublett wearing a stun belt during trial?
(4) If so, did Sublett raise the stun belt issue with the court and was it visible to the
jury?
(5) Did the stun belt interfere with Sublett’s ability to consult with, or to assist his
counsel at trial, or have any other effect on Sublett or his exercise of any other
rights? If so, what was the effect?
(6) Did Sublett tell his counsel about the stun belt and ask whether the stun belt
could be removed? If so, did Sublett’s counsel object or otherwise bring the stun
belt issue to the trial court’s attention?
(7) If defense counsel did not object to the stun belt, did counsel make a tactical
decision to not do so? If so, why?
Order Transferring Petition For Reference Hearing Opinion at 3 (July 2, 2015).
The superior court held the reference hearing on September 23, 2015, and the following
witnesses testified: Michael Sublett; David Soukup, a former Thurston County Deputy Prosecutor;
David Bruneau, a former Thurston County Deputy Prosecutor and lead attorney in the case;
Charles Lane, Sublett’s attorney during the entire case below; Scott Jackson, a Thurston County
Prosecuting Attorney who second-chaired the trial; retired Thurston County Trial Court Judge
Christine Pomeroy, who presided over the trial; and Sgt. Timothy Mills, Thurston County Sheriff’s
Office. Verbatim Report of Proceedings (VRP) (September 23, 2015). After the hearing, the
superior court issued the following written findings of fact:4
4
Based on its findings at the reference hearing, the superior court did not reach the second question
or portions of question six.
4
No. 45972-8-II
1.0 No plea offer was made to Michael Sublett.
....
2.0 Michael Sublett was wearing a stun device, called a Band-It, at trial. The device
was not a belt nor was it worn as a belt.
2.1 The prosecutors and the defense attorney were aware that Mr. Sublett was
wearing a stun device. Mr. Bruneau and Mr. Jackson both testified that there was
discussion at trial, not on the record, about Michael Sublett wearing a stun device.
Mr. Lane also recalled those discussions, although not with as much certainty.
2.2 The trial judge likely was aware of the device being used. Judge Pomeroy
testified that she did not recall many specifics about the trial or the top of the stun
device, but she would have normally been informed if a defendant was wearing
some type of restraint.
....
3.0 Michael Sublett did not raise the issue of the stun device to the trial court.
3.1 Charles Lane did not recall Mr. Sublett ever telling him he was uncomfortable
because of the device nor did Mr. Sublett ever complain about wearing it.
3.2 Mr. Lane testified credibly that, although his memory on this issue was not
particularly strong, if Mr. Sublett had raised concerns with him about the stun
device he would have raised them with the court.
....
3.4 There is no evidence that the jury saw any restraint device. The testimony of
the attorneys as well as Mr. Sublett was that Mr. Sublett was seated farther from
the jury than anyone else, including the attorneys and the co-defendant. Mr. Sublett
never walked in the presence of the jury.
4.0 The stun device had no negative effect on Michael Sublett’s exercise of any of
his rights at trial. The Band-It more likely than not affected Mr. Sublett’s behavior
during trial but it is also more likely than not that he actively and regularly
participated in this trial.
4.1 While the stun device might have partially limited Mr. Sublett’s ability to speak
with his attorney at the time and in the manner he wished, Mr. Lane did not want
Mr. Sublett to speak to him during trial and would have not allowed him to do so.
Mr. Lane preferred, in all cases including this one, that his clients communicate
only in writing in the courtroom during trial. Every example given by Mr. Sublett
at the hearing as an example of the Band-It interfering with his ability to
communicate with his attorney was an example of Mr. Lane’s trial tactics.
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No. 45972-8-II
4.2 Mr. Sublett was able to assist his counsel at trial. They communicated regularly
during the trial, during recesses, and otherwise. He and Mr. Lane testified that they
were seated approximately one foot apart at the counsel table. Mr. Sublett wrote a
number of notes to Mr. Lane, and Mr. Lane read those notes.
....
4.4 The presence of the stun device more likely than not affected Mr. Sublett’s
behavior at trial. It may have caused him to behave consistently with the
instructions of his attorney. He made no physical gestures to get his attorney’s
attention partly because of the device and partly because of Mr. Lane’s instructions.
....
5.0 It is more likely than not that Mr. Sublett did not ask his counsel whether the
stun device could be removed.
5.1 Although Mr. Sublett testified that he complained to Mr. Lane about having to
wear the device, and Mr. Lane refused to take any action, the attorneys and the
judge testified that it was not the practice at that time to hold hearings regarding the
issue of the stun device. Mr. Lane observed nothing that caused him concern that
the jury was aware of any restraints. The prosecutors testified that they did not
notice any restraint or anything unusual.
5.2 Mr. Lane testified that his practice was and is that if a defendant raises concerns
about wearing a security device[,] he will bring it to the attention of the trial court.
Nothing at the trial caused him any concern.
....
6.0 It is more likely than not that Mr. Lane made a tactical decision not to object
to the stun device. . . . Mr. Lane testified that he would have brought to the attention
of the court any concerns he observed or that were raised by Mr. Sublett. He did
not recall Mr. Sublett objecting to the stun device.
Findings of Fact Following Reference Hearing and Order Transferring Record (Dec. 3, 2015)
(FOF).
ANALYSIS
I. STANDARD OF REVIEW ON PRPS
We may grant a petitioner collateral relief from unlawful restraint if he establishes by a
preponderance of the evidence that a constitutional violation resulted in actual and substantial
prejudice. In re Pers. Restraint of Coggin, 182 Wash. 2d 115, 121, 340 P.3d 810 (2014). We
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No. 45972-8-II
determine actual prejudice in light of the totality of the circumstances. 5 In re Pers. Restraint of
Brockie, 178 Wash. 2d 532, 539, 309 P.3d 498 (2013). The ultimate question in determining whether
the petitioner has been actually prejudiced is whether the error “so infected petitioner’s entire trial
that the resulting conviction violates due process.” In re Pers. Restraint of Music, 104 Wash. 2d 189,
191, 704 P.2d 144 (1985). To receive relief following a nonconstitutional error, the petitioner
must show a fundamental defect resulting in a complete miscarriage of justice. In re Pers.
Restraint of Cross, 180 Wash. 2d 664, 676, 327 P.3d 660 (2014).
We review the trial court’s findings of fact from the reference hearing to determine whether
they are supported by substantial evidence and whether the findings support the conclusions of
law. In re Pers. Restraint of Gentry, 137 Wash. 2d 378, 410, 972 P.2d 1250 (1999). Unchallenged
findings of fact will be treated as verities on appeal. In re Pers. Restraint of Davis, 152 Wash. 2d
647, 679, 101 P.3d 1 (2004). We defer to the trial court on issues related to the credibility of
witnesses. Gentry, 137 Wash. 2d at 410-11.
II. PROSECUTORIAL MISCONDUCT
Sublett first argues that we must grant him relief due to a slide in the State’s PowerPoint
presentation during closing argument that included his booking photograph with the word “guilty”
typed in red capital letters across his face, arrows pointing to the photograph, and descriptive
5
In his supplemental brief, Sublett claims that because he could not raise the stun device issue on
his direct appeal, he should not have to prove actual and substantive prejudice in his PRP citing
State v. Sandoval, 171 Wash. 2d 163, 168-69, 294 P.3d 1015 (2011). We disagree that this standard
of review of a PRP applies in this case.
7
No. 45972-8-II
summary terms of evidence that the prosecutor discussed during closing argument.6 We disagree
because Sublett cannot prove that he was prejudiced by the slide.
Both the United States Constitution and the Washington State Constitution grant the right
to a fair trial. U.S. CONST. amend. VI, XIV; CONST. art. I, § 22. Prosecutorial misconduct
jeopardizes that right. In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673
(2012). A prosecutor may use graphics in closing argument and generally has “wide latitude to
argue reasonable inferences from the evidence,” but those visual aids cannot deprive a defendant
of the constitutional right to a fair trial. State v. Hecht, 179 Wash. App. 497, 503, 319 P.3d 836
(2014).
To prove prosecutorial misconduct, a personal restraint petitioner must show that in the
context of the record and all of the circumstances at trial, the prosecutor’s conduct was both
improper and prejudicial. In re Pers. Restraint of Monschke, 160 Wash. App. 479, 496, 251 P.3d
884 (2010). To establish prejudice, the petitioner must show a substantial likelihood that the
misconduct affected the jury’s verdict. Monschke, 160 Wash. App. at 496.
We look to the context of the prosecutor’s argument, the issues in the case, the evidence,
and the jury instructions. State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 (2003). When a
petitioner does not object to misconduct at trial, he or she has waived the claim of error unless the
misconduct was so flagrant and ill-intentioned that it caused an enduring prejudice that could not
6
On his direct appeal, Sublett argued that the slide in question constituted prosecutorial
misconduct, but we declined to review the error because Sublett relied on facts outside the record
and did not provide any legal argument or citations. Sublett, 156 Wash. App. at 199.
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No. 45972-8-II
have been cured with a jury instruction. State v. Thorgerson, 172 Wash. 2d 438, 443, 258 P.3d 43
(2011).
Assuming without deciding that the slide at issue here was improper, Sublett cannot
demonstrate prejudice. The prosecutor’s closing argument did not “essentially [produce] a media
event with the deliberate goal of influencing the jury to return [a guilty verdict]” against Sublett.
Glasmann, 175 Wash. 2d at 708. The record is unclear on whether the jury saw the word “guilty” on
the slide at all, given the context of the prosecutor’s statements when Olsen’s counsel objected.
Even assuming that the jury saw the word “guilty,” however, it was before the jury only a few
moments because Olsen’s counsel objected to the slide and the trial court asked the prosecutor to
remove the slide from the jury’s view.
Furthermore, according to the facts in the Supreme Court’s Sublett opinion, there is no
likelihood that the slide affected the jury’s verdict. After April Frazier7 and Sublett stole over
$51,000 from the victim over a period of time, Frazier testified that she, Olsen, and Sublett went
to the victim’s home. Olsen and Sublett then “proceeded to beat [the victim] with a baseball bat.”
Sublett, 176 Wash. 2d at 66. The three later returned to the victim’s home where they proceeded to
“loot” for valuables. Sublett, 176 Wash. 2d at 66. Sublett’s defense at trial was a general denial that
he was involved in the crime at all. Sublett, 156 Wash. App. at 180.
The trial court instructed the jury to decide the facts based on the evidence presented to it
and that the lawyer’s remarks, statements, and arguments were not evidence. Jurors are presumed
to follow the court’s instructions. State v. Kalebaugh, 183 Wash. 2d 578, 586, 355 P.3d 253 (2015).
7
Frazier was a third person involved in the crime. Sublett, 176 Wash. 2d at 65.
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No. 45972-8-II
Given the evidence presented at trial and the trial court’s instruction, Sublett fails to show that the
slide so infected his entire trial that his conviction violated due process. Thus, Sublett cannot
demonstrate actual prejudice.
III. USE OF STUN DEVICE
Sublett next claims that his right to due process was violated because he was forced to wear
a stun device during trial without a hearing on its necessity and that the device prevented him from
adequately communicating with his attorney or participating in his defense and thus reversal is
required.8 We disagree.
A criminal defendant has the right to appear at trial without physical restraint except in
extraordinary circumstances. State v. Jennings, 111 Wash. App. 54, 61, 44 P.3d 1 (2002). Restrains
are disfavored because they may impact the constitutional right to the presumption of innocence
as well as the right to testify in one’s own behalf and the right to confer with counsel during trial.
State v. Damon, 144 Wash. 2d 686, 691, 25 P.3d 418 (2001). The trial court must undertake on the
record a reasoned analysis of weighing the reasons for restraining a defendant against the
defendant’s right to due process. State v. Elmore, 139 Wash. 2d 250, 273, 985 P.2d 289 (1999). A
trial court’s failure to do so constitutes constitutional error. State v. Clark, 143 Wash. 2d 731, 775,
24 P.3d 1006 (2001).
8
Sublett claims that reversal “should be” required where no hearing on restraints was held and
where “it is clear that the use of the restraint was unjustified.” PRP at 9. Sublett does not provide
any citation to authority for this asserted rule. Thus, we do not further address it. State v. Mason,
170 Wash. App. 375, 384, 285 P.3d 154 (2012) (“We do not consider conclusory arguments
unsupported by citation to authority.”).
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No. 45972-8-II
The State concedes that the trial court did not conduct a hearing to address the stun device
that Sublett wore during the trial. At the reference hearing, the superior court found that Sublett
was wearing a stun device at trial, the attorneys and the trial court were aware of that fact, and the
trial court likely was aware and normally would have been informed of a security device. FOF
2.0–2.2. However, the superior court found that there was no evidence that the jury saw the stun
device and the attorneys at trial did not notice the device on Sublett. FOF 3.4. The superior court
also found at the reference hearing that defense counsel did not observe anything that caused him
to be concerned that the jury was aware of the stun device and that if a defendant raises concerns
about a security device, defense counsel would have brought the issue to the trial court’s attention.
FOF 3.4, 5.1.
Furthermore, the superior court found that the device did not negatively impact Sublett’s
rights although Sublett testified at the reference hearing that he believed it did. FOF 4.0, 5.1. The
device did not prohibit Sublett from communicating with his counsel at trial and he was able to
assist with his defense. FOF 4.1, 4.2. Although the device more likely than not affected Sublett’s
behavior, the superior court found that Sublett regularly communicated with his counsel during
trial and recesses. FOF 4.1, 4.2, 4.4. The superior court also found that it was defense counsel’s
practice to instruct all of his clients to communicate by writing notes during trial. FOF 4.1. The
superior court also found that defense counsel did not recall Sublett objecting to the stun device or
asking that it be removed and he determined that the device must not have been interfering with
Sublett’s ability to communication with him or assist in his defense. FOF 6.0. Because Sublett
failed to challenge any of the findings of fact entered after the reference hearing, they are verities
on appeal.
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No. 45972-8-II
Sublett fails to demonstrate that the stun device caused actual and substantial prejudice,
and this claim fails. Coggin, 182 Wash. 2d at 120.
IV. RIGHT TO TESTIFY
Sublett next claims that his constitutional right to testify and to effective assistance of
counsel was violated because his attorney failed to move to reopen testimony after closing
arguments so that he could testify. But Sublett’s declaration does not provide any facts that, if
proven true, would support his claim.9 Thus, he has not demonstrated by a preponderance of the
evidence that he is entitled to relief. Coggin, 182 Wash. 2d at 119.
V. ACTUAL INNOCENCE DOCTRINE
Sublett claims that he is actually innocent of the two prior California robberies because he
committed a lesser offense which is not comparable to second degree robbery in Washington and
thus, are not strike offenses.10 Sublett cites to the actual innocence doctrine and In re Pers.
Restraint of Carter, 172 Wash. 2d 917, 263 P.3d 1241 (2011).
The actual innocence doctrine applies when a defendant can show by clear and convincing
evidence that an alleged constitutional error resulted in the conviction of an actually innocent
9
In Sublett’s direct appeal he raised this issue in his statement of additional grounds and we
declined to address it because supporting facts for the claim of error were not part of the record.
Sublett, 156 Wash. App. at 199.
10
He claims that he did not “threaten to harm” the person from whom he stole the money, instead
he “tricked” a teller into opening a cash drawer and then he grabbed the money, and he would have
been convicted of a lesser crime, which would not be considered a strike offense. Decl. of Sublett
at ¶ 9.
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No. 45972-8-II
defendant and a “fundamental miscarriage of justice would otherwise result if the collateral attack
is dismissed.” Carter, 172 Wash. 2d at 923.11
On direct appeal, our Supreme Court already held that Sublett’s California convictions
qualify as strike offenses and affirmed his life sentence as a persistent offender.12 Sublett, 176
Wash. 2d at 89. Assuming without deciding that the actual innocence doctrine even applies, Sublett
fails to provide any evidence of a constitutional error related to the persistent offender sentence.
Thus, he has not met his burden of showing by clear and convincing evidence that he was actually
factually innocent of the underlying California robberies upon which the court based its persistent
offender finding.
11
“There are two forms of an actual innocence claim. The first are free-standing constitutional
claims of actual innocence in which innocence itself provides a basis for relief. The second are
so-called gateway claims used to avoid procedural time bars so that a court may review other
claimed constitutional errors. In re Pers. Restraint of Weber, 175 Wash. 2d 247, 256, 284 P.3d 734
(2012) (internal quotation marks omitted).
12
At sentencing in Washington, the State filed its sentencing memorandum, Sublett’s criminal
history, evidence of Sublett’s California 1994 and 1997 robbery charges and convictions, a copy
of California Penal Code § 211, and a transcript of the California sentencing hearing for the 1994
robbery conviction. For each count of robbery, the charging document in 1994 and 1995 alleged
that Sublett “willfully, unlawfully, and by means of force and fear take personal property from the
person, possession, and immediate presence” of the victim. Resp. to PRP, App. H at 18, 26.
Sublett’s California defense counsel argued to the California sentencing court that “[Sublett’s
actions] while I’m sure it frightened and upset [the victim], she was physically unharmed by the
incident.” Resp. to PRP, App. H at 15 (VRP at 3 (Feb. 15, 1994)). The sentencing court in
Washington agreed that the elements of California Penal Code § 211 were comparable to the
elements of Washington’s counterpart for the crime of second degree robbery. Resp. to PRP,
App. H at 3 (Plaintiff’s Sentencing Memorandum). On direct appeal, the Court of Appeals
affirmed, finding the elements of both crimes substantially similar, with each crime requiring a
specific intent to steal. Sublett, 152 Wash. App. 160 at 187.
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VI. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Lastly, Sublett claims that his trial counsel provided ineffective assistance on three
different occasions: (1) during plea bargain negotiations, (2) by failing to object to the stun device,
and (3) during the State’s closing argument by failing to object to slide 46. We disagree that
Sublett was denied effective assistance.
The Sixth Amendment guarantees a defendant effective assistance of counsel. U.S. CONST.
amend. VI; State v. Kloepper, 179 Wash. App. 343, 354, 317 P.3d 1088 (2014). In deciding whether
a defendant was deprived of effective assistance, we apply the two-prong test of Strickland v.
Washington—whether (1) counsel’s performance failed to meet an objective standard of
reasonableness and (2) the defendant was actually prejudiced by counsel’s deficient performance.
Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When
a defendant fails to demonstrate one prong of the Strickland test, we need not consider both prongs.
Klopper, 179 Wash. App. at 354-55.
We are highly deferential to counsel’s decisions, and a strategic or tactical decision is not
a basis to find deficient performance. Kloepper, 179 Wash. App. at 354. On a claim of ineffective
assistance of trial counsel in a personal restraint petition, a petitioner establishes actual and
substantial prejudice if he or she demonstrates that but for counsel’s deficient performance there
is a reasonable probability that the outcome would have been different. In re Pers. Restraint of
Crace, 174 Wash. 2d 835, 840, 280 P.3d 1102 (2012).
A. PLEA BARGAIN NEGOTIATIONS
Sublett claims that he was denied effective assistance of counsel during plea bargain
negotiations because his counsel did not tell him about a plea bargain that he asserts he would have
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No. 45972-8-II
accepted. After its reference hearing the superior court found that credible evidence proved that
the State did not make any plea offer to Sublett. FOF 1.0. Because no plea offer was made to
Sublett, this claim fails.
B. STUN DEVICE
Sublett claims that his counsel failed to object to the stun device constituting ineffective
assistance of counsel. We disagree.
Trial counsel’s decision of whether to object is “a classic example of trial tactics. Only in
egregious circumstances . . . will the failure to object constitute incompetence of counsel justifying
reversal.” State v. Madison, 53 Wash. App. 754, 763, 770 P.2d 662 (1989). The superior court
found after its reference hearing that Sublett’s trial counsel was aware that Sublett was wearing a
stun device. FOF 2.1. However, the superior court also found that it is more likely than not that
Sublett did not ask his trial counsel for the device to be removed. FOF 5.1, 6.0. The superior court
also found that Sublett’s counsel made a tactical decision to not raise the issue of the stun device
with the trial court and that the device had no impact on Sublett’s constitutional rights. FOF 6.0.
Thus, Sublett cannot show that counsel was deficient for failing to object nor that he was
prejudiced by the decision to not object.
C. CLOSING ARGUMENT
Sublett claims his trial counsel was ineffective for failing to object to slide 46. Again, we
disagree.
Trial counsel’s decision to not object is a “classic example of trial tactics” to which we are
highly deferential in a claim of deficient performance. Madison, 53 Wash. App. at 763; Kloepper,
179 Wash. App. at 354. Sublett cannot demonstrate that he was prejudiced for his counsel’s decision
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No. 45972-8-II
to not object to the slide because Olsen’s counsel objected to it and the trial court asked the
prosecutor to remove the slide from the jury’s view. Thus, even if Sublett’s counsel had objected,
the result would have been the same. Therefore, Sublett cannot meet his burden to show that he
was actually prejudiced by his trial counsel’s decision to not object.
CONCLUSION
We hold that Sublett has failed to show he was actually and substantially prejudiced by any
prosecutorial misconduct, he was not denied his right to due process or right to participate in his
trial by being forced to wear a stun device without an evidentiary hearing, he fails to present
competent evidence that he was denied the right to testify, he does not meet his burden of showing
by clear and convincing evidence that he is factually innocent of the prior California convictions
or that the actual innocence doctrine applies, and he was not denied effective assistance of trial
counsel. Therefore, we deny Sublett’s personal restraint petition.
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.
SUTTON, J.
We concur:
MAXA, A.C.J.
LEE, J.
16