FILED MARCH 20, 2018 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In the Matter of the Personal Restraint of ) ) No. 34783-4-III WILLIAM LEE FULTZ, ) ) UNPUBLISHED OPINION Petitioner. )
SIDDOWAY, J. — Through retained counsel, William Fultz seeks relief from
personal restraint resulting from his 2013 convictions of first degree burglary and first
degree robbery. He contends he received ineffective assistance of counsel because his
trial lawyer allegedly never investigated his history of mental health issues and failed to
advance a theory of diminished capacity at the time of trial. Because he fails to support
his petition with necessary evidence, we dismiss it.
BACKGROUND OF 2013 CONVICTIONS1
In April 2013, Tamara Knight was living in Deer Park with her son Nicholas and
three others. At around 11:00 p.m. on April 4, a woman named Donna arrived at the
1 Most of the following facts can be found in this court’s opinion in Mr. Fultz’s direct appeal, State v. Fultz, No. 31936-9-III (Wash. Ct. App. Mar. 10, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/319369.unp.pdf. We refer to the opinion hereafter as “Fultz, Slip. Op.” Other facts are based on the record in that proceeding and this one. No. 34783-4-III In re Personal Restraint of Fultz
home with two men: Jason Koch, described by Ms. Knight as a mutual friend of hers and
Donna’s, and William Fultz, who she did not know. Donna was angry because she had
given Ms. Knight a $140 down payment on a Ford Bronco with a failing battery that Ms.
Knight was selling, and when Donna did not come up with the $360 balance on time, Ms.
Knight sold the car to someone else. According to Ms. Knight, she agreed to return the
down payment and was in the process of doing so when Donna grabbed the money,
ripping it in half. Ms. Knight asked Donna to leave. As she left, Donna told Mr. Fultz to
“take care of it.” Fultz, Slip Op. at 2.
Several hours later, around 3:00 a.m., Mr. Koch and Mr. Fultz were driven back to
the Knight home by a third man, Robert Moody who, when asked his occupation at Mr.
Fultz’s trial, said, “I sold dope and collected money.” 1 Report of Proceedings (No.
31936-9-III) (RP) (Aug. 27, 2013) at 150. Mr. Moody admitted to jurors at Mr. Fultz’s
trial that on the early morning of April 5, he was at Ms. Knight’s house to collect
Donna’s money. Armed with a baseball bat and accompanied by Mr. Koch and Mr.
Fultz, Mr. Moody knocked on the door to Ms. Knight’s house. He then entered
uninvited. He confronted those in the house about Ms. Knight’s debt. According to Ms.
Knight, Mr. Koch pulled her outside the house as Mr. Moody was entering. At the same
time, her son Nicholas came out the front door and attacked Mr. Fultz. While wrestling
with Mr. Fultz, Nicholas was hit from behind. Ms. Knight attempted to get Mr. Fultz off
her son and ripped his shirt while doing so. Meanwhile, Mr. Moody hit two people inside
2 No. 34783-4-III In re Personal Restraint of Fultz
the home with his bat, grabbed a PlayStation, and ran. Mr. Moody, Mr. Koch and Mr.
Fultz left the scene in a white sport utility vehicle (SUV) driven by Mr. Moody.
A state trooper saw the SUV headed south toward Spokane shortly after hearing a
report of the disturbance and a description of the vehicle. He radioed for backup and
pulled the SUV over. When questioned, Mr. Fultz admitted to an investigating officer
that he had gone to the Knight home with the others. He told the officer he went there
with Mr. Koch “to get his battery back” and was assaulted. 1 RP (Aug. 27, 2013) at 130.
Hearsay evidence in support of the personal restraint petition (PRP) suggests that Mr.
Fultz had loaned a working car battery to Donna to check out the Ford Bronco, and it was
still in the car when Ms. Knight sold it to someone else.
The stolen PlayStation and two baseball bats were found in the SUV stopped by
the trooper. Mr. Moody, Mr. Koch, and Mr. Fultz were all placed under arrest that night.
Mr. Fultz was charged as an accomplice with first degree burglary, first degree robbery,
and two counts of second degree assault with the baseball bat.
Evidence submitted in support of Mr. Fultz’s PRP shows that after learning of the
arrest, Mr. Fultz’s father contacted the lawyer who had been appointed to represent him.
The father is a retired naval officer who the lawyer addressed as “Commander” Fultz.
We will refer to him that way as well, to make clear whether we are referring to the father
or the son. Cdr. Fultz expressed surprise at the seriousness of the charges against his son,
stating, “Bill is normally the victim not the perpetrator.” Decl. of William E. Fultz,
3 No. 34783-4-III In re Personal Restraint of Fultz
Ex. A at 3. He told his son’s lawyer, “I am not sure if you are aware Bill is mentally
disabled and when you have time I can provide you with more details.” Id. The lawyer
responded, “The issue of mental health is one of the issues I will want to inquire about”
and copied the e-mail to the paralegal for counsel for defense, stating that he wanted to
“keep him in the loop.” Id. at 2.
The State offered plea deals to all three defendants. Mr. Moody and Mr. Koch
accepted the State’s offers. Mr. Moody testified at Mr. Fultz’s trial that he had agreed to
a sentence of 48 months in prison and 18 months’ supervision by the Department of
Corrections. At Mr. Fultz’s sentencing, the prosecutor told the court that Mr. Moody and
Mr. Koch both pleaded guilty and “are doing four and five years for what they did.”
1 RP (Sept. 11, 2013) at 274.
The evidence submitted in support of Mr. Fultz’s PRP reveals he was offered a
sentence of 31 months. In an e-mail to Cdr. Fultz when the offer was pending, his son’s
lawyer had the following to say:
According to the public record of the case (which I can share without permission) your son is charged with 4 counts. . . . [A]ll four counts carry a weapon enhancement because one of the codefendants was armed with a bat. In Washington if one defendant has a weapon then all defendants are treated as if they were armed. All four counts are considered to be “strike” offenses. If convicted of all counts William is facing an extremely long sentence and the enhancements add additional time that is not subject to a good time reduction and enhancements run consecutively to one another.
4 No. 34783-4-III In re Personal Restraint of Fultz
Please be aware that I am not saying the offer of 31 months is an ideal solution. The deputy prosecutor have had [sic] communications on that issue but the offer he has made is what it is. If William rejects the offer I will do my best at trial with the facts of the case and with William’s assistance.
Decl. of William E. Fultz, Ex. A at 1. Mr. Fultz did not accept the offer.
At trial, Mr. Fultz’s lawyer focused his defense on the evidence that his client did
not enter the Knight home, did not personally commit the two assaults, and did not
personally take the PlayStation. Mr. Fultz did not testify. The State’s theory was, of
course, that Mr. Fultz was liable as an accomplice, but Mr. Fultz’s lawyer emphasized the
statement in the court’s instructions that “more than mere presence and knowledge of the
criminal activity of another must be shown to establish that a person present is an
accomplice.” 1 RP (Aug. 28, 2013) at 239-40. He persuaded the court to instruct the
jury on self-defense to the charges of assault and on a person’s right to act on
appearances in defending himself. The jury nonetheless found Mr. Fultz guilty on all
counts and found that he was armed with a deadly weapon at the time he committed each
crime.
Although Mr. Fultz’s only criminal history consisted of two misdemeanors
committed in 1998 and 1999, the total sentencing range, given the seriousness of the
5 No. 34783-4-III In re Personal Restraint of Fultz
charges and deadly weapon enhancements for the two counts that did not merge,2 was 89-
102 months. The trial court sentenced him to the low end of the standard range.
Mr. Fultz appealed, arguing the evidence was insufficient to prove he was an
accomplice to the burglary and robbery and did not act in self-defense. This court found
the evidence sufficient and affirmed in an unpublished decision filed on March 10, 2015.
A petition for review by the Washington Supreme Court was denied and the mandate
from this court issued on October 13, 2015. This PRP was filed a little under a year later,
making it timely under RCW 10.73.090(1).
PERSONAL RESTRAINT PETITION
Mr. Fultz’s PRP asserts he was deprived of his constitutional right to effective
representation of counsel when his lawyer, knowing that Mr. Fultz suffered from “severe
mental illness” and “on notice of a diminished capacity defense that he acknowledged
needed to be explored,” nonetheless “neither investigated [the defense] nor pursued nor
raised [it] at trial.” Br. in Support of PRP at 10. Mr. Fultz seeks remand for a new trial.
As evidence in support of his PRP, Mr. Fultz submits the declaration from his
father, e-mail communications taking place between his father and his lawyer during the
spring and summer of 2013, and three reports addressing Mr. Fultz’s mental health
problems that range in date from July 1997 to October 2000.
2 It was conceded by the State and found by the court that the second degree assaults merged with the robbery conviction.
6 No. 34783-4-III In re Personal Restraint of Fultz
The declaration of Cdr. Fultz evokes sympathy. It establishes that Mr. Fultz had a
severe seizure at age 13 months, was unconscious for 3 days, and woke up having lost the
ability to walk and talk. The inability to talk persisted through age 3, and Mr. Fultz was
referred for special education that continued until he was age 15. He was then in a
mental hospital for residential treatment until he was age 18. The treatment center
assisted him in applying for Supplemental Security Income (SSI), which Mr. Fultz has
lived on ever since.
Cdr. Fultz states in his declaration that “[t]hroughout Bill’s history, he has been
known to be friendly and helpful, but does not understand that not everyone is.” Decl. of
William E. Fultz at 2. He provides examples of Mr. Fultz being taken advantage of by
others. Yet his own declaration and communications with his son’s lawyer establish that
Mr. Fultz was living independently and had been living independently for some time.
Given Mr. Fultz’s February 1979 birth date, he was 34 years old at the time he committed
the crimes for which he is presently serving time.
Cdr. Fultz attaches two mental health assessments to his declaration. The first, a
short report by clinical psychologist Karen Zappone, Ph.D., was prepared when Mr. Fultz
was 21 years old and is dated 9/27/00. Its content suggests it was prepared to support Mr.
Fultz’s successful application for SSI. Dr. Zappone explains that Mr. Fultz was referred
to her upon his release from the Devereux Treatment Center in Texas in August 1997
with a diagnosis of Intermittent Explosive Disorder and Borderline Personality Disorder,
7 No. 34783-4-III In re Personal Restraint of Fultz
and a rule out (R/O) of Post-Traumatic Stress Disorder. Dr. Zappone made further
diagnoses of Depression NOS, Cognitive Disorder NOS, and ADHD Combined Type.
She reports that during the period of her treatment,
mood swings have prevented [Bill] from working on a consistent basis. Attempts at job training and sheltered work have failed. He wants to do well. However, personality factors, environmental factors and mood swings get in the way.
Decl. of William E. Fultz, Ex. B at 1. She considered Mr. Fultz 100 percent disabled,
with a poor prognosis and no expectation he would recover.
The second, even shorter report is from Captain R. Nicoll Pratt, a staff psychiatrist
in the Child and Adolescent Division of the Naval Medical Center in San Diego, where
Cdr. Fultz had been stationed. It is dated October 5, 2000, shortly after Dr. Zappone’s
report, suggesting that it, too, was provided to support Mr. Fultz’s application for SSI.
Capt. Pratt reports:
Mr. Fultz was my patient from age 12 to 17. He suffered from severe emotional and behavioral problems that have persisted into adulthood characterized by ADHD, marked immature reaction to stress, severe learning disabilities, very maladaptive judgement [sic], and lack of control of anger. He has been unable to hold a job, has a child out of wedlock, and a history of 5 incarceration[s] all related to poor interpersonal judgment. [H]e has been in residential treatment on 4 separate occasions. He is permanently emotionally disabled.
Id. at 3.
A third, earlier, report is not authenticated but is attached to the brief in support of
the PRP. It appears to be a portion of a progress report completed on Mr. Fultz’s
8 No. 34783-4-III In re Personal Restraint of Fultz
discharge from the Devereux Treatment Center in Texas and is dated July and August
1997. It reflects the center’s diagnoses reported in Dr. Zappone’s later report. Among
other discussion of Mr. Fultz’s problems and progress, it identifies the following eight
major presenting problems at the time of Mr. Fultz’s admission:
1. Aggressive/assaultive behavior 2. Property destruction 3. Oppositional/Defiant Behavior 4. AWOL behavior 5. Academic difficulties 6. Family conflict 7. History of seizure disorder 8. History of anti-social behavior including lying and stealing
Br. in Support of PRP, Ex. 1 at 1. Its prognosis for Mr. Fultz is “guarded.” Id. at 3.
PRP Review Standard
To obtain relief in a PRP, a petitioner must show actual and substantial prejudice
resulting from alleged constitutional errors, or for alleged nonconstitutional errors a
fundamental defect that inherently results in a complete miscarriage of justice. In re
Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). Where a PRP alleges
and successfully demonstrates ineffective assistance of counsel, the actual and substantial
prejudice required for relief on collateral review has been shown. In re Pers. Restraint of
Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).
Effective assistance of counsel is guaranteed by both the federal and state
constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Strickland v.
9 No. 34783-4-III In re Personal Restraint of Fultz
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz,
127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective assistance of
counsel, a defendant must show two things: “(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)). When a claim can be disposed of on one
ground, this court need not consider both. Strickland, 466 U.S. at 697.
To avoid dismissal, the petition must be supported by facts and not merely bald or
conclusory allegations. Cook, 114 Wn.2d at 813-14; In re Pers. Restraint of Rice, 118
Wn.2d 876, 886, 828 P.2d 1086 (1992).
Analysis
The disposition of Mr. Fultz’s PRP turns on his failure to support his contentions
of deficient performance and prejudice with more than bald or conclusory allegations.
A criminal defendant is entitled to have the jury instructed on diminished capacity
only if the defendant satisfies three requirements: (1) the crime charged must include a
particular mental state as an element, (2) the defendant must present evidence of a mental
disorder, and (3) expert testimony must logically and reasonably connect the defendant’s
10 No. 34783-4-III In re Personal Restraint of Fultz
alleged mental condition with the asserted inability to form the mental state required for
the crime charged. State v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d 626 (2001); State
v. Eakins, 127 Wn.2d 490, 502, 902 P.2d 1236 (1995).
As to the first requirement—that a particular mental status is an element—
accomplice liability includes such an element, but it is merely knowledge. RCW
9A.08.020(3)(a)(i)-(ii) (an accomplice is one who, “[w]ith knowledge that it will promote
or facilitate the commission of the crime . . . encourages . . . or . . . aids” another). The
instruction to which Mr. Fultz claims he was entitled would have informed the jury that it
could take into consideration whether, given a demonstrated mental disorder, he had the
capacity for such knowledge.3 An “accomplice must have acted with knowledge that his
or her conduct would promote or facilitate the crime for which he or she is eventually
charged,” State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000) (emphasis omitted),
but he or she need have only general knowledge of the substantive crime, not specific
knowledge of the crime’s elements. State v. Truong, 168 Wn. App. 529, 540, 277 P.3d
74 (2012) (citing State v. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984)).
3 The pattern jury instruction on diminished capacity states: Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form (fill in requisite mental state). 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.20, at 302 (4th ed. 2016).
11 No. 34783-4-III In re Personal Restraint of Fultz
As to the second and third requirements for a diminished capacity defense, “It is
not enough that a defendant may be diagnosed as suffering from a particular mental
disorder. The diagnosis must . . . be capable of forensic application in order to help the
trier of fact assess the defendant’s mental state at the time of the crime.” Atsbeha, 142
Wn.2d at 921.
Mr. Fultz contends his lawyer never investigated his mental history and
limitations, but we do not have a declaration from Mr. Fultz or his trial lawyer that the
two of them never discussed those issues. Clearly there was a downside to asserting a
defense that would open the door to evidence of Mr. Fultz’s prior convictions and his
treating providers’ observations of his problems with anger and aggression. We cannot
rely on Cdr. Fultz’s declaration as demonstrating everything his son’s lawyer did or did
not do; by Cdr. Fultz’s own admission, he and his son were not in regular
communication.4 We have no evidence that the trial lawyer was asked to provide
information for purposes of this PRP but refused to cooperate. We have only Mr. Fultz’s
bald assertion through his present counsel that his trial lawyer did nothing.
4 In a June 2013 e-mail, Cdr. Fultz told his son’s trial lawyer: Last year I tried to get Bill to stay at a [c]ondo I had for him in San Diego where we have family for support but he decided he wanted to go to Spokane. I gave [B]ill some money to settle in and said if you get on the plane I am done. Bill took me by my word and had very little contact with me[;] most of my information comes from our daughter. Decl. of William E. Fultz, Ex. A at 2.
12 No. 34783-4-III In re Personal Restraint of Fultz
Mr. Fultz also contends that he “suffered from severe psychological and mental
health issues[,] negating his ability to form the intent element required in all the crimes
for which he was convicted,” Br. in Support of PRP at 1, but he presents no competent
supporting evidence. Where, as here, there was no expert testimony at trial on a
defendant’s mental disorder or condition at the time of the crimes, it is incumbent upon a
petitioner to “demonstrate that he has competent, admissible evidence to establish the
facts that entitle him to relief.” Rice, 118 Wn.2d at 886.
If the petitioner’s evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits, in turn, must contain matters to which the affiants may competently testify. In short, the petitioner must present evidence showing that his factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.
Id.
As the State correctly observes, Mr. Fultz has provided only evidence of his
mental condition 13 or more years before the relevant time frame. Arguably even more
unhelpful is the fact that none of the reports touches on whether the mental disorders
diagnosed would render Mr. Fultz incapable of the relevant mental state. Reviewing the
reports as laypersons, it does not appear to us that any of the diagnosed disorders would
necessarily impair Mr. Fultz’s capacity for knowing that his presence as backup to a debt
collector at 3:00 a.m. could promote or facilitate the collector’s commission of a late
night home invasion and robbery.
13 No. 34783-4-111 In re Personal Restraint ofFultz
To meet the threshold showing required by Rice, Mr. Fultz needed the support of
an expert that he had a viable diminished capacity defense. Because he has failed to
make the threshold showing, the petition is dismissed.
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.
d]dLDw?7- ~ . Siddoway, J . '
WE CONCUR:
Fearing,ci