The Personal Restraint Petition Of Forrest Eugene Amos ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
March 23, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 52872-0-II
FORREST EUGENE AMOS,
UNPUBLISHED OPINION
Petitioner.
LEE, C.J. — Forrest E. Amos appeals the trial court’s order on remand from this court
denying his personal restraint petition (PRP), arguing that the trial court erred by concluding that
he did not receive ineffective assistance of counsel prior to entering his guilty plea. Amos also
raises additional arguments related to his ineffective assistance of counsel claim in his statement
of additional grounds (SAG).1 Because Amos did not meet his burden to show that he received
ineffective assistance of counsel prior to entering his guilty plea, the trial court properly denied his
PRP. Accordingly, we affirm.
FACTS
On July 31, 2014, Amos pled guilty to several criminal charges.2 In re Pers. Restraint of
Amos, 1 Wn. App. 2d 578, 585, 406 P.3d 707 (2017). Amos’ guilty plea included a waiver of any
appeal or collateral attack. Id. However, on January 5, 2016, Amos filed a PRP with this court.
Id. at 588.
1
RAP 10.10. We note that in a PRP, a petitioner may not file a SAG. However, because Amos
is appealing the trial court’s order determining his PRPs on the merits, we consider his SAG claims.
2
The nature of the charges is not at issue in this case.
No. 52872-0-II
This court held that, while Amos waived his right to collateral attack, the validity of the
waiver was called into question by his allegations of ineffective assistance of counsel. Id. at 593.
Specifically, Amos was arguing that he received ineffective assistance because of his counsel’s
failure to file a CrR 8.3 motion to dismiss the charges based on an alleged violation of the attorney-
client relationship.3 Id. at 594.
This court held,
If the actions of the State violated Amos’ attorney-client relationship, then
the charges should have been dismissed, unless the State proved beyond a
reasonable doubt that the violation did not result in any prejudice to the defendant.
Id. at 597-98. However, this court could not determine whether Amos received ineffective
assistance of counsel based on the record before it. Id. at 600. Instead, this court remanded to the
trial court for an evidentiary hearing to resolve six factual questions and to determine the merits of
Amos’ PRP:
The trial court will conduct a factual hearing to determine (1) the nature of the cell
search, (2) whether officers or other state officials seized or reviewed the
documents, (3) what were the nature and contents of those documents, (4) if a
violation of the attorney-client relationship did occur, whether the State can show
beyond a reasonable doubt that Amos was not prejudiced, (5) whether Amos would
not have pled guilty but for his attorney’s deficient actions or advice, and (6) any
other factual questions the trial court deems necessary to make a determination.
Id. at 600-01.
3
Amos also made other allegations of ineffective assistance of counsel that are not relevant to the
issue currently before this court. Amos, 1 Wn. App. 2d at 594.
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A. EVIDENTIARY HEARING
The trial court held an evidentiary hearing on Amos’ PRP on September 5, 2018. Several
witnesses testified at the hearing, including the officer who performed the cell search, multiple
prosecuting attorneys, the superior court judge who conducted an in camera review of the seized
documents, Amos’ trial attorney, and Amos himself.4
1. Detective Haggerty’s Testimony
Detective Adam Haggerty of the Centralia Police Department testified that he served a
search warrant on Amos’ jail cell on June 18, 2014. Amos was unhappy that Detective Haggerty
was serving the search warrant and expressed concern about his pending lawsuit against the
Department of Corrections (DOC), which was irrelevant to Detective Haggerty’s investigation.
Detective Haggerty did not read the contents of the documents during the search, but he looked
for anything that had a heading or header for “the prosecutor’s office, DOC, his attorney,” or “DOC
legal stamp,” pushed them to the side, and left them behind. I Verbatim Report of Proceedings
(VRP) (Sept. 5, 2018) at 121. He estimated that the entire search took about 10 minutes. Detective
Haggerty secured the seized documents in his police vehicle and returned to his office.
On the way to his office, Detective Haggerty called Amos’ defense attorney, Don Blair,
and advised him of the search. After speaking with Blair, Detective Haggerty decided to secure
4
Amos testified at the evidentiary hearing. However, the trial court explicitly found that “Amos’
testimony was not credible.” Clerk’s Papers (CP) at 240. The trial court included several examples
of Amos’ “complete disregard for the truth.” CP at 241. “‘Credibility determinations are for the
trier of fact’ and are not subject to review.” State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401
P.3d 19 (2017) (quoting State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Because we
do not review a trial court’s credibility determinations, Amos’ testimony has no evidentiary value
and will not be discussed further.
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No. 52872-0-II
the seized documents pending an in camera review by a judge. Detective Haggerty did not review
any of the documents prior to the in camera review.
After the in camera review by Judge Nelson Hunt of the Lewis County Superior Court, the
seized documents were split into three groups: (1) documents that were relevant to Detective
Haggerty’s investigation, (2) documents that were irrelevant to the investigation, and (3)
documents that were not released to Detective Haggerty.5 Judge Hunt kept the documents that
were not released to Detective Haggerty. Detective Haggerty sorted the released documents into
relevant and irrelevant documents. The relevant documents were maintained as evidence. The
irrelevant documents were secured pending release to Blair.
Detective Haggerty reviewed the seized documents. Detective Haggerty did not recall
seeing any letters from either of Amos’ defense attorneys or reviewing any documents pertaining
to legal strategies.
5
The reference to the documents in this case is a bit convoluted because they went through several
transitions and designations. Detective Haggerty originally designated all of the items seized from
Amos’ cell as evidence item number 5. After the in camera review, the evidentiary documents
stayed item number 5, but the irrelevant documents were designated as evidence item number 8.
At the evidentiary hearing, item 5 was admitted as Exhibit 34. Item 8 was admitted as Exhibit 35.
The documents in Exhibit 34 and 35 were uploaded into the discovery system as discovery package
11. The index for discovery package 11 was admitted at the evidentiary hearing as Exhibit 41.
For ease of reference, we will simply refer to the “seized documents,” rather than specific Exhibit
or item numbers.
We also note that Exhibit 43 refers to additional documents that were uploaded to the
prosecutor’s office after Amos pled guilty. Although the trial court appears to have treated these
documents as also resulting from the cell search, the date of the documents contained in them
demonstrate that they were generated after the cell search occurred. Accordingly, we do not
consider Exhibit 43 as relevant to the determination of this case.
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No. 52872-0-II
2. Judge Hunt’s Testimony
Judge Hunt performed the in camera review of the documents seized from Amos’ jail cell.
Judge Hunt testified that he identified some documents “[c]ould be privileged”:
There were several hundred pages, and I went through the documents with the bias,
if you will, to find privileged material so that this kind of a hearing would not
happen at some later date.
So the answer to your question of did I find anything, the answer is I think
there were about six pages that may have had something to do with privilege, but it
was not real clear one way or the other, and with the way that I was approaching
the case, I set them aside. But, you know, I really don’t remember anything like,
“I talked to my attorney, and this is what he said.” There was nothing like that.
I VRP (Sept. 5, 2018) at 182. Judge Hunt exercised caution to protect Amos’ right to counsel.
Judge Hunt determined that something was privileged “if it referenced any contact with his lawyer,
regardless of whether it contained any communications.” I VRP (Sept. 5, 2018) at 187. Judge
Hunt testified “it was very clear what were personal notes.” I VRP (Sept. 5, 2018) at 189.
After his review, Judge Hunt kept the six documents that could be privileged to return to
Blair. The remaining documents were returned to Detective Haggerty. Judge Hunt did not notify
Blair that he was conducting the in camera review. And Judge Hunt would not have permitted
Blair to be present during the in camera review.
3. Prosecuting Attorneys’ Testimony
William Halstead was the deputy prosecuting attorney assigned to Amos’ 2013 case.
Halstead and Blair negotiated a plea agreement to resolve that case. At the evidentiary hearing,
Halstead testified he had no involvement with Detective Haggerty regarding the search of Amos’
cell prior to the actual search. After the search, Halstead confirmed that Detective Haggerty should
request an in camera review of the documents.
5
No. 52872-0-II
The prosecuting attorney’s office received the seized documents in their discovery system
on July 23. The seized documents were provided to Blair as a discovery package on July 24.
Although the prosecuting attorney’s office received the documents and provided the discovery
package to Blair, Halstead testified that he did not remember ever going through any of the
documents and that they had no impact on his plea negotiations with Blair.
Halstead also testified that on July 30, 2014, the trial court signed an order releasing the
seized documents. The next day, Amos entered his guilty plea. Halstead explained that he and
Blair had been working on the plea agreement for “quite some time.” I VRP (Sept. 5, 2018) at
218. Neither the seized documents nor the order had any impact on the plea deal, and Halstead
did not know what was in the documents that were seized.
Eric Eisenberg was a deputy prosecuting attorney with Lewis County Prosecuting
Attorney’s office at the time of the cell search. Eisenberg spoke with Detective Haggerty briefly
after the search was conducted. Detective Haggerty wanted to confirm that an in camera review
was appropriate before reviewing the seized documents. Eisenberg told Detective Haggerty not
to look at any documents until he obtained an in camera review.
4. Blair’s Testimony
Blair represented Amos in the 2013 case. Blair filed numerous motions in the case. There
was also a significant amount of ongoing discovery in the case, including several supplemental
discovery requests. Blair met with Amos many times to prepare for the case. He also received
notes on the case from Amos. Blair explained,
[M]y practice, especially in a case like this, was to make a copy of the discovery,
because he couldn’t come to my office to review it, and I know I couldn’t give him
a copy, but until, I think, yesterday I believed the procedure was—and I believed it
6
No. 52872-0-II
from communicating with the jail—I would deliver a copy of the discovery to the
jail, and they would bring the client/inmate up to booking in the evening, and they
would allow them as much time as they wanted in the evening, for as many evenings
as they needed, to go through the discovery. And my instruction is always go ahead
and make notes on the discovery that I leave.
II VRP (Sept 6, 2018) at 268-69. Blair received about six pages of notes from Amos on the
discovery. Blair testified that Amos was also a “prolific researcher” and would often give case
citations for Blair to review. II VRP (Sept. 6, 2018) at 270. Blair also explained that he did not
believe Detective Haggerty could have actually taken any documents related to discovery:
I don’t know what they took. And here’s the thing. Whatever they took wasn’t
necessarily—it wasn’t anything that I had sent [Amos], because I never have sent
anything to the jail mail-wise, so the only thing that I had given to [Amos]—again,
up until, I think yesterday—was the discovery.
And my understanding until yesterday was that discovery was always kept
up at booking where he would have been, you know, keeping these notes on the
discovery. So in my mind at that time I didn’t think that they would get any secrets,
and what potentially they could get, in my mind, is maybe stuff that [Amos] had
been doing that maybe he shouldn’t have been doing.
II VRP (Sept. 6, 2018) at 297.
Blair also testified that he spoke to Detective Haggerty after Detective Haggerty searched
Amos’ jail cell. Blair advised Detective Haggerty to seek in camera review before reviewing any
of the documents. Blair testified that he had “full trust in Judge Hunt making a determination that
something was or was not privileged.” II VRP (Sept. 6, 2018) at 305.
Blair testified that Amos complained many times about the fact that his materials had been
taken and none of his materials had been returned to him. Amos wanted Blair to file a CrR 8.3
motion to dismiss the case. Blair began preparing a CrR 8.3 motion on July 11. Blair saw two
grounds for the motion: the cell search and the ongoing discovery disputes with the prosecuting
attorney’s office. Blair explained,
7
No. 52872-0-II
Well, the cell search may have been an issue, but, again, I don’t know if it would
have, because I don’t know what was in there. So I can’t tell you if that would have
been the issue.
I know [Amos] didn’t like the fact that they came in and took his stuff from
what he thought of as his home, and I understand that. [Amos] liked to talk a lot.
Too much sometimes. I’m not relying on [Amos] for my motion. The issues that
I was raising with my motions remained in my mind unresolved, because I didn’t
have this discovery. That was the biggest thing for me.
II VRP (Sept. 6, 2018) at 276. Blair felt that the discovery issue was a stronger basis for filing the
motion to dismiss and did not want to file the motion to dismiss too soon to give the State the
opportunity to remedy the discovery issues. Furthermore, Blair was clear that the grounds for the
CrR 8.3 motion that Amos wanted filed was primarily based on missing discovery from the
prosecuting attorney’s office. He knew he would have a higher likelihood of prevailing on the
motion to dismiss if he waited until the eve of trial to file his motion to dismiss. Blair did not think
that there was much urgency in addressing the cell search because, in his experience, he could not
take what Amos said at “face value.” II VRP (Sept. 6, 2018) at 301. Although Blair understood
that Amos believed privileged information had been taken, in Blair’s experience Amos said “a lot
of stuff, and it turns out not to be correct.” II VRP (Sept. 6, 2018) at 313.
Blair testified that he spent hours discussing a plea agreement with Amos. Although Amos
did not want to plead guilty he ultimately realized that “the discovery that we did have was not
good for him.” II VRP (Sept. 6, 2018) at 277. And a guilty plea would allow Amos to avoid a
third strike offense or a potential 240 month sentence based on his high offender score.
Specifically, Blair explained,
And ultimately he decided—because I think during our discussion, I think
we agreed that ultimately when he pled, he would have about seven more years to
serve versus the other end of the spectrum that he could have going to trial, being
convicted of a couple of deliveries, getting 240 [months] or more or life.
8
No. 52872-0-II
II VRP (Sept. 6, 2018) at 285. When discussing the plea agreement, Blair discussed the issues
regarding the cell search with Amos. Blair testified “that was one of those issues that he knew he
was waiving by taking this deal.” II VRP (Sept. 6, 2018) at 280. Blair explained,
So he’s saying, “Hey, [Blair], I have these lists. They took my lists. They
took this, they took that.” Okay. So we get an order saying give us the material
back that Judge Hunt has determined was privileged and the material that was not
privileged.
Before we can, I guess, execute that order, we get an offer. I talk to [Amos]
about it, and he makes the determination—even though he knows we haven’t gotten
that material back, he makes the decision, “Okay, I’m going to take the deal.” And
like I said, I think the order was entered on—I think it was entered on July 30th,
and then he pled [guilty] the very next day.
II VRP (Sept. 6, 2018) at 326. Furthermore, Blair was concerned that focusing on the seized
documents would highlight something that Amos should not have been doing and the plea
agreement alleviated those concerns. Ultimately, “a large part of the reason that [Amos] pled was
the evidence that we did have was not good for [Amos].” II VRP (Sept. 6, 2018) at 314. When
asked why he did not investigate the alleged intrusion into the attorney-client relationship before
deciding to take the deal, Blair responded, “That wasn’t my choice. That was [Amos’] choice.”
II VRP (Sept. 6, 2018) at 332.
B. TRIAL COURT’S ORDER
Following the evidentiary hearing, the trial court entered written findings of fact addressing
the six issues presented by this court’s opinion.
1. Nature of the Cell Search
The trial court found that the cell search was based on a search warrant issued by the district
court. And the trial court found that Detective Haggerty did not involve the prosecuting attorney’s
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No. 52872-0-II
office prior to obtaining the search warrant or performing the search. During the search, Detective
Haggerty only looked at the header of documents in an attempt to separate out documents related
to Amos’ DOC lawsuit.
The trial court specifically found that the search lasted approximately 10 minutes. And, if
Detective Haggerty had read or reviewed all the documents the search would have taken
significantly longer.
2. Whether Officers or Other State Officials Seized or Reviewed Documents
The trial court found that Detective Haggerty seized the documents authorized by his
search warrant. After consulting with Blair and Eisenberg, Detective Haggerty sought in camera
review of the seized documents.
The trial court found that Judge Hunt was “very careful” in performing the in camera
review and erred on the side of caution when determining whether documents were privileged. CP
at 243. The trial court also found,
The documents received in Exhibit 41 (“Discovery packet 11”) contains documents
from the cell search, and were received by the Prosecuting Attorney’s Office.
Exhibit 41 contains no documents that could be construed as work product
protected by the attorney-client privilege. These documents were received by the
Prosecuting Attorney’s Office on July 24, 2014.
Clerk’s Papers (CP) at 244. The trial court further found that none of the seized documents “were
received or reviewed by the Prosecuting Attorney’s Office personnel until the hearing in this
matter.” CP at 244.
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No. 52872-0-II
3. The Nature and Content of the Documents
The trial court’s findings identify all the different types of documents that were seized from
Amos’ cell. The trial court also documented all the documents Amos claimed were privileged.
However, the trial court recognized,
Amos’ testimony regarding his subjective opinion that certain documents constitute
work product does not control the designation of such documents as work product
protected by the attorney-client privilege.
CP at 246. The trial court found that Amos’ handwritten notes were not work product protected
by the attorney-client relationship because they were notes to himself, rather than notes to his
attorney. However, the trial court did find that,
The pages of discovery with notations in the margins constitute work product
protected by the attorney client privilege because Mr. Blair told Amos to write notes
on the police reports.
CP at 246.
4. If a Violation of the Attorney-Client Relationship did Occur, Whether the State Can
Show Beyond a Reasonable Doubt that Amos Was Not Prejudiced
The trial court found,
The only evidence seized in the cell search which may fall within the attorney-client
privilege is the pages of discovery/police reports with Amos’ notes in the margins.
These notes were intended by Amos to be notes to himself that he could later
develop into something his attorney could use—i.e., work product. The court finds
beyond a reasonable doubt that Amos was not prejudiced by the seizure of these
materials.
CP at 246. And the trial court found that Halstead did not review any of the seized documents
before Amos pled guilty. The trial court also found that none of the seized documents had any
impact on the plea negotiations.
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No. 52872-0-II
5. Whether Amos Would Not Have Pled Guilty but for His Attorney’s Deficient
Actions or Advice
The trial court found that Amos decided to plead guilty because the “evidence against him
was not favorable.” CP at 247. And the trial court found that Amos decided to accept the guilty
plea despite discussions with Blair about the cell search. Specifically, the trial court found,
Amos knew he was giving up the ability to bring a motion regarding the cell search
when he decided to accept the plea offer.
CP at 247. And the trial court found that,
Amos’ testimony that he would not have pled guilty but for Mr. Blair’s actions and
advice is not credible.
CP at 247.
6. Other Facts Necessary to Make a Determination
The trial court found that Blair was skeptical of Amos’ statements to him about the search
based on Blair’s history with Amos. The trial court also found that Blair did not have reason to
think that privileged materials were in Amos’ cell. The trial court further found that Blair did not
file a CrR 8.3 motion based on the cell search because he did not know if the attorney-client
privilege had been invaded. And the trial court found,
Mr. Blair had no reason to believe that privileged material was taken in the cell
search because Amos has a history of over-stating matters to Mr. Blair; Mr. Blair
knew that he had not sent anything to Amos; and knew what Amos had already
provided to him, so he did not believe there could be any privileged materials in
Amos’ cell.
CP at 248.
In addition, the trial court found that Blair’s delay in filing the CrR 8.3 motion “was a
strategic decision.” CP at 248. Blair felt the stronger argument would be raising the lack of
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No. 52872-0-II
discovery close to trial. Although Blair started drafting the motion July 11, he waited to file it
because he thought waiting would be strategically more advantageous.
7. Conclusions and Order
Based on its findings, the trial court conclude that “[t]here was no violation of the attorney-
client relationship.” CP at 249. And the trial court concluded that “[a]ny possible violation of the
attorney client privilege was harmless beyond a reasonable doubt.” CP at 249.
The trial court also concluded that Amos’ plea was knowing, intelligent, and voluntary.
The trial court further concluded that Blair’s performance was not deficient. Alternatively, the
trial court found that, even if Blair’s performance was deficient, the outcome of the proceedings
would not have changed.
The trial court denied Amos’ PRP. Amos appeals the trial court’s order denying his PRP.
ANALYSIS
A. LEGAL PRINCIPLES
Amos has sought relief from judgment in a PRP, alleging ineffective assistance of counsel
resulted in him entering a plea that waived his right to collateral attack. Based on RAP 16.11 and
RAP 16.12, this court remanded Amos’ PRP to the trial court for a determination on the merits.
Amos, 1 Wn. App. 2d at 601. It is unclear whether, following remand for a determination on the
merits, we apply a direct appeal standard of review to the substantive issue or whether we apply
the PRP standard of review. However, because review of ineffective assistance of counsel claims
have the same standard of review regardless of whether they are raised on direct appeal or in a
PRP, this distinction does not affect our review. See State v. Grier, 171 Wn.2d 17, 32-33, 246
13
No. 52872-0-II
P.3d 1260 (2011), cert. denied, 574 U.S. 860 (2014); In re Pers. Restraint of Crace, 174 Wn.2d
835, 846-47, 280 P.3d 1102 (2012).
To be entitled to relief in a PRP, the petitioner must show either (1) a constitutional error
resulting in actual and substantial prejudice, or (2) “a fundamental defect of a nonconstitutional
nature that inherently resulted in a complete miscarriage of justice.” In re Pers. Restraint of
Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). “[I]f a personal restraint petitioner makes a
successful ineffective assistance of counsel claim, he has necessarily met his burden to show actual
and substantial prejudice.” Crace, 174 Wn.2d at 846-47.
An ineffective assistance of counsel claim is a mixed question of fact and law that we
review de novo. State v. Lopez, 190 Wn.2d 104, 115, 410 P.3d 1117 (2018). To prevail on an
ineffective assistance of counsel claim, the defendant must show that (1) counsel’s performance
was deficient and (2) counsel’s performance prejudiced the petitioner. State v. Grier, 171 Wn.2d
at 32-33. If the petitioner fails to satisfy either prong, the defendant’s ineffective assistance of
counsel claim fails. Id. at 33.
We review the trial court’s factual findings for substantial evidence. In re Pers. Restraint
of Stenson, 174 Wn.2d 474, 488, 276 P.3d 286, cert. denied, 568 U.S. 959 (2012). “‘Substantial
evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded,
rational person that the declared premise is true.’” Id. (internal quotations marks omitted) (quoting
In re Pers. Restraint of Gentry, 137 Wn.2d 378, 410, 972 P.2d 1250 (1999)). We will not disturb
the trial court’s findings that are supported by substantial evidence despite conflicting evidence.
Id.14
No. 52872-0-II
Furthermore, we recognize the law of the case doctrine applies here. “The law of the case
doctrine provides that once there is an appellate court ruling, its holding must be followed in all of
the subsequent stages of the same litigation.” State v. Schwab, 163 Wn.2d 664, 672, 185 P.3d
1151 (2008). Therefore, based on the this court’s earlier opinion, there are two questions raised in
this appeal: (1) was counsel’s performance deficient for failing to investigate and file a CrR 8.3
motion to dismiss based on the intrusion into the attorney-client relationship (deficient
performance) and (2) would Amos not have pled guilty but for counsel’s alleged deficient
performance (prejudice). Amos, 1 Wn. App. 2d at 594-95, 600-01. Because Amos fails to meet
his burden to prove prejudice, we do not address whether there was deficient performance. See
Grier, 171 Wn.2d at 33.
B. PREJUDICE
Even if Blair’s performance was deficient as Amos alleges, Amos must also establish that
he was prejudiced by Blair’s deficient performance. Amos appears to misunderstand the prejudice
standard applicable to his ineffective assistance of counsel claim. Amos argues that because the
State failed to prove the violation of attorney-client privilege was harmless, the case should be
dismissed. But as explained above, Amos is barred from collateral attack unless he establishes an
ineffective assistance of counsel claim. He is not entitled to relief simply for establishing a
violation of attorney-client privilege. Accordingly, we address whether Amos has met his burden
to show that he was prejudiced by Blair’s deficient performance.6
6
Amos also argues that this court held in its prior opinion that if a CrR 8.3 motion would have
resulted in dismissal, the correct remedy for Amos’ PRP was dismissal. But this is incorrect. As
explained, if Amos meets his burden of showing ineffective assistance of counsel—by proving that
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No. 52872-0-II
Generally, when a petitioner has pled guilty, they must establish prejudice by showing that
a defendant would not have pled guilty and would have insisted on going to trial. Amos, 1 Wn.
App. 2d 595 n.7. However, we held that Amos need only establish a reasonable probability that,
but for counsel’s deficient performance, he would not have pled guilty. Id. at 595.
Here, the trial court concluded that “Amos’ plea was knowingly, intelligently and
voluntarily made, with a full understanding of the consequences of his plea, including the waiver
of his right to litigate the legality of the cell search and the possible violation of the attorney-client
privilege.” CP at 249. Furthermore, the trial court concluded that the outcome of the proceedings
would not have been different. These conclusions are based on the trial court’s findings that Amos
decided to plead guilty because of the unfavorable evidence against him and because Amos knew
he was giving up the ability to bring a motion regarding the cell search when he decided to accept
the plea offer.
Amos assigns error to these findings. However, Amos provides no meaningful argument
regarding why substantial evidence does not support these findings. RAP 10.3(a)(6); State v.
Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012), review denied, 176 Wn.2d 1014 (2013).
Therefore, we consider these findings verities on appeal. State v. Homan, 181 Wn.2d 102, 106,
330 P.3d 182 (2014).
Even if we considered Amos’ assignment of error to these findings, the findings are
supported by substantial evidence. Specifically, Blair testified that Amos pled guilty because he
he would not have pled guilty but for Blair’s deficient performance—then the remedy is dismissal.
Amos, 1 Wn. App. 2d at 597-98, 600-01. Because Amos fails to meet his burden for relief the
proper remedy is denial of Amos’ PRP.
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No. 52872-0-II
came to understand the evidence against him was not favorable. And Blair testified that he
discussed with Amos prior to Amos accepting the plea agreement the fact that Amos would be
abandoning his arguments regarding the cell search by pleading guilty. The only evidence
disputing Blair’s testimony is Amos’ testimony, which the trial court specifically found was not
credible. We do not review the trial court’s credibility determinations. State v. Cardenas-Flores,
189 Wn.2d 243, 266, 401 P.3d 19 (2017).
Based on the trial court’s findings and conclusions, Amos has not met his burden to show
that but for Blair’s deficient performance, he would not have pled guilty. Amos knew he was
giving up the opportunity to obtain possible dismissal, or even preserve the cell search for appeal,
by pleading guilty. “That was [Amos’] choice.” II VRP (Sept 6, 2018) at 332. After spending
hours discussing the plea with counsel, Amos realized that “the discovery that we did have was
not good for him,” and a guilty plea would allow Amos to avoid a third strike offense or a potential
240 month sentence based on his high offender score. II VRP (Sept. 6, 2018) at 277. Therefore,
Amos failed to meet his burden to show that but for Blair’s deficient performance he would not
have pled guilty. Because Amos has not met his burden to show prejudice, his ineffective
assistance of counsel claim fails.
SAG
In his SAG, Amos raises additional arguments regarding why the State intruded on the
attorney-client relationship and why the State failed to meet its burden to prove beyond a
reasonable doubt that there was no prejudice. He also makes other arguments why the State’s
actions were improper. Because Amos failed to prove there was no prejudice, we do not separately
address Amos’ SAG arguments.
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No. 52872-0-II
Amos also claims that our prior opinion holds that he does not have to show a reasonable
probability that but for Blair’s deficient performance he would not have pled guilty. However,
Amos misreads our opinion. As explained here, we held that Amos was not required to show he
would have insisted on going to trial. Amos, 1 Wn. App. 2d at 595 n.7. However, he is required
to prove that he would not have pled guilty in order to establish prejudice. Id. at 595.
Because Amos has failed to meet his burden to show prejudice, his ineffective assistance
of counsel claim fails. Following remand, the trial court properly denied Amos’ PRP.
Accordingly, we affirm the trial court’s order on remand denying Amos’ PRP.
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.
Lee, C.J.
We concur:
Maxa, J.
Glasgow, J.
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