In the Matter of the Pers. Restraint of Daniel Christopher Lazcano

• Court: Court of Appeals of Washington
• Decided: September 19, 2019
• Docket: 36440-2
• Status: Unpublished

Opinion

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 ) UNPUBLISHED OPINION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 In a 71-page unpublished opinion, this Court affirmed Mr.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(unpublished), http://www.courts.wa.gov/opinions/pdf/322289.pdf.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 Wn.2d 802, 813, 792

2 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 Wn.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

3 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 Wn.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).

4 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:

lA� I',," (.t- �W\. � 1 C. 0 � •

Lawrence-Berrey, �J.