FILED AUGUST 19, 2021 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. 37983-3-III AUSTIN RICHARD MOORES NELSON, ) ) Petitioner. ) pETITIONER UNPUBLISHED OPINION
STAAB, J. — On September 9, 2016, Austin Nelson pleaded guilty to first degree
murder, first degree burglary, first degree animal cruelty, and second degree malicious
mischief. The parties agreed on the standard sentencing range, including firearm
enhancements, but did not agree on a sentencing recommendation. Ten months after
sentencing, Mr. Nelson filed this personal restraint petition raising several arguments,
including: (1) that the application of the firearms enhancement to his animal cruelty
conviction was error, (2) the victim statements by persons employed in the court system
created bias and violated his due process rights, (3) the court imposed an exceptional
sentence without sufficient findings of fact or conclusions of law, (4) Mr. Nelson’s
sentencing range was miscalculated because several convictions should have been
counted as “same criminal conduct,” (5) his attorney’s failure to object to these errors
constitutes ineffective assistance of counsel, and (6) his plea was involuntary. No. 37983-3-III In re Pers. Restraint of Nelson
We agree that the firearm enhancement was incorrectly added to the animal
cruelty conviction and remand for resentencing while rejecting the remainder of Mr.
Nelson’s issues.
FACTS
In September 2015, 19-year-old Austin Nelson was dating the 15-year-old
daughter of Teresa Ryan. After Mrs. Ryan learned of the relationship, she spoke to Mr.
Nelson and told him to stay away from her daughter. On January 15, 2016, after Mrs.
Ryan’s daughter ended their relationship, Mr. Nelson damaged her car. On January 17,
2016, Mr. Nelson posted a video on social media of himself and Mrs. Ryan’s daughter
having sex. On January 18, Mr. Nelson went to the home of Teresa and Brent Ryan and
“with premeditated intent” shot and killed Teresa Ryan outside her home. After shooting
Mrs. Ryan, Mr. Nelson entered the Ryan family home and intentionally shot and killed
the family dog.
At the time she was killed, Mrs. Ryan was employed in the clerk’s office at Pierce
County District Court.
Mr. Nelson was appointed an attorney and the services of an investigator. In
September 2016, Mr. Nelson pleaded guilty as charged without the benefit of an agreed
recommendation. At the time of sentencing, the parties agreed that the standard range
sentence for the first degree murder conviction was 281 to 374 months, with the
remaining sentences running concurrently. The parties also agreed that a firearm
2 No. 37983-3-III In re Pers. Restraint of Nelson
enhancement would apply to the convictions for murder, burglary, and animal cruelty and
that these enhancements would run consecutive to the underlying sentences and each
enhancement. According to his statement on plea of guilty, Mr. Nelson understood that
the prosecuting attorney would recommend the maximum allowable in-custody standard
range sentence of 512 total months.
At sentencing, the court reviewed Mr. Nelson’s statement of defendant on plea of
guilty. After accepting Mr. Nelson’s plea, the court considered statements from the
prosecutor, victims, and Mr. Nelson. The court noted that it had read 24 victim impact
statements and heard oral statements from the victim’s sister and co-worker at district
court. The State recommended the maximum standard range as indicated in the statement
on plea of guilty and asked the court to consider the victim impact statements stating “the
defendant committed a premeditated murder, killing a woman whose only crime was to
protect her daughter.” Report of Proceedings (RP) at 18-19.
Mr. Nelson and his attorney argued for an exceptional sentence of 419 months,
based on mental health issues and Miller’s1 application to Mr. Nelson’s youth. To ensure
proportionality to other similarly situated defendants’ sentences and to conform to the
“Real Facts Doctrine,” defense counsel asked the court to disregard the victim impact
statements and the fact that the victim had worked in the Tacoma District Court Building.
1 Miller v. Alabama, 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
3 No. 37983-3-III In re Pers. Restraint of Nelson
Id. at 21. Defense counsel stressed that Mr. Nelson insisted on taking responsibility for
his actions and was “eager to plead out to the original Information.” Id. at 22. Even after
the State added an extra charge, “He stepped up and pled as charged to everything.” Id.
Mr. Nelson personally repeated his goal to take full responsibility. Id. at 24-25.
The trial court accepted Mr. Nelson’s plea, stating:
I don’t know what the evidence is in this case. . . .
I didn’t know Ms. Ryan. I understand she worked in the District Court, worked in the same building. To my knowledge, I never met her. I didn’t know her. The letters I read, she had a lot of people that cared an awful lot about her. You, in many ways, are a parent’s worst nightmare and became her family and friends’ worst nightmare. The involvement with the daughter, being told not to have a relationship and then basically wait for her and kill her, go into the house and end up killing the dog as well.
I appreciate the materials [defense counsel] gave to me. I did read them.
Resp’t Br. App. “E” at 25-26. The court’s comments do not focus on the co-worker
statements, and the record contains no indication that the judge knew any of the victim’s
co-workers. The court concluded that the high-end was appropriate, adopted the stipulated
offender score information, and sentenced Mr. Nelson according to the State’s
recommendation of 512 months, calculated by adding 374 months from count 1 to the
sentencing enhancements from counts 1, 2 and 3. Id. at 26-28; Resp’t Br. App. “A” at 1-5.
On July 19, 2017, Mr. Nelson filed this pro se personal restraint petition (PRP).
He later obtained a stay of the PRP and filed an untimely direct appeal on July 31, 2018,
with a motion to enlarge time, arguing all of the identical issues asserted in this PRP.
4 No. 37983-3-III In re Pers. Restraint of Nelson
State v. Nelson, No. 52228-4-II. His motion to stay the PRP was granted. Commissioner
rulings August 27, 2018 and March 28, 2019. When Mr. Nelson failed to show
extraordinary circumstances to enlarge time, the direct appeal was dismissed by
Commissioner’s Ruling on September 11, 2018. Subsequent motions to modify and for
discretionary review were also denied. The mandate issued on July 18, 2019 and the stay
of this PRP was lifted. Commissioner’s Ruling August 5, 2019; RCW 10.73.090(3)(b).
Upon preliminary review, the court determined that a response was required by the
State. RAP 16.8.1(d). The State responded, and Mr. Nelson replied. Upon initial
consideration, the court determined that the petition was not frivolous, referred the matter
to a panel for decision, and appointed counsel to file a supplemental brief.
Commissioner’s ruling January 10, 2018; RAP 16.11(b); RCW 10.73.150(4). Appointed
counsel filed supplemental briefing, and the State responded.
PRP STANDARDS
Mr. Nelson is under restraint at the Walla Walla State Penitentiary pursuant to the
convictions. His petition was timely filed ten months from sentencing. RCW
10.73.090(1). He has not filed prior petitions.
Our review of a collateral proceeding is different than our standard of reviewing a
direct appeal. A personal restraint petition is not a substitute for an appeal. In re Pers.
Restraint of Hagler, 97 Wn.2d 818, 823-24, 650 P.2d 1103 (1982). To obtain relief in a
personal restraint petition, the petitioner must show actual and substantial prejudice
5 No. 37983-3-III In re Pers. Restraint of Nelson
resulted from alleged constitutional errors or for alleged non-constitutional 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). To avoid dismissal, the
petitioner must support claims with facts and not merely bald or conclusory allegations.
Id. at 813-14. 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). This
court will dismiss a petition if it “fails to present an arguable basis for collateral relief
either in law or in fact, given the constraints of the personal restraint petition vehicle.” In
re Pers. Restraint of Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577 (2015).
A. FIREARM ENHANCEMENT
Mr. Nelson argues that his sentence is erroneous under State v. Soto, 177 Wn.
App. 706, 714, 309 P.3d 596 (2013), which held that the firearm enhancement does not
apply to an unranked felony. The State responds that we should revisit and reject the
holding in Soto.
The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides a firearm
enhancement to sentences for crimes committed when the offender was armed with a
firearm. RCW 9.94A.533. The first section of this statute provides that “[t]he provisions
of this section apply to the standard sentence ranges determined by RCW 9.94A.510 or
6 No. 37983-3-III In re Pers. Restraint of Nelson
9.94A.517.” RCW 9.94A.533(1). RCW 9.94A.510 is the “Table 1” sentencing grid.
RCW 9.94A.517 is the drug offense sentencing grid (inapplicable in this case).
The Table 1 sentencing grid calculates an offender’s standard range using the
individual’s offender score and the offense’s seriousness level. The offense of animal
cruelty in the first degree is defined by RCW 16.52.205(1)-(3). It is a class C felony.
RCW 16.52.205(4). Mr. Nelson was charged with animal cruelty by intentionally
shooting and killing a dog, a violation of RCW 16.52.205(1). No seriousness level has
been assigned to that means of committing first degree animal cruelty. RCW 9.94A.515.
Therefore, a standard sentence range cannot be determined for that means of committing
the offense from RCW 9.94A.510, the Table 1 sentencing grid. “Unranked offense” is
the term commonly applied to offenses that have not been assigned a seriousness level
and whose standard sentencing range cannot be determined on the Table 1 sentencing
grid or the drug offense sentencing grid. Where no seriousness level has been assigned to
an offense, the court determines the sentence by applying RCW 9.94A.505(2)(b).
In Soto, this court considered an identical application of the firearm enhancement to
animal cruelty and determined the statute did not apply to unranked offenses. State v.
Soto, 177 Wn. App. at 714-15. The court read RCW 9.94A.533(1), which explicitly
incorporates the Table 1 grid, to be exclusive and complete, not ambiguous or subject to
amendment by the court. Id. at 715. Thus, under the plain language of the statute,
7 No. 37983-3-III In re Pers. Restraint of Nelson
unranked felonies are excluded from the enhancement. Id. We reconsidered the Soto case
in State v. Vazquez, 200 Wn. App. 220, 225, 402 P.3d 276 (2017) and upheld the decision.
In this case, we are abiding by our prior holdings in Soto and Vazquez. The State’s
legislative intent and history arguments are the same arguments we rejected in Soto and
Vazquez. The legislature’s codified declaration of intent cannot “‘trump the plain
language of the statute.’” See State v. Granath, 190 Wn.2d 548, 556, 415 P.3d 1179
(2018) (quoting State v. Reis, 183 Wn.2d 197, 212, 351 P.3d 127 (2015)). Additionally,
we note that Soto was decided eight years ago. If the legislature intended a different
application, it would have amended the statute in response to Soto. State v. Blake, 197
Wn.2d 170, 190, 481 P.3d 521 (2021).2
Although Mr. Nelson has demonstrated error, because this is a collateral attack he
must show more than error; he must demonstrate a constitutional error or a fundamental
defect that inherently results in a complete miscarriage of justice. State v. Buckman, 190
Wn.2d 51, 61-62, 409 P.3d 193 (2018). Throughout his briefing, Mr. Nelson fails to
articulate whether he is alleging that the sentencing error is a constitutional error or a
fundamental defect. Instead, he argues that the error entitles him to withdraw his plea. In
2 The legislature is presumed to be aware of judicial interpretation of its enactments and where statutory language remains unchanged after a court decision the court will not overrule clear precedent interpreting the same statutory language.
8 No. 37983-3-III In re Pers. Restraint of Nelson
the alternative, he contends that he is entitled to resentencing. We will address these
arguments in reverse order.
Our Supreme Court has already decided that the incorrect application of a firearm
enhancement constitutes a fundamental defect. In re Pers. Restraint of Greening, 141
Wn.2d 687, 694, 9 P.3d 206, 210 (2000). As Mr. Nelson points out, the prejudice
resulting from this error was the additional 18 months added to his sentence. Having
demonstrated a fundamental error and prejudice, Mr. Nelson is entitled to resentencing.
Notwithstanding this conclusion, Mr. Nelson argues that the error entitles him to
withdraw his plea. While we agree that Mr. Nelson’s plea was involuntary, he fails to
demonstrate the prejudice necessary to withdraw his plea.
“Due process requires that a guilty plea may be accepted only upon a showing the
accused understands the nature of the charge and enters the plea intelligently and
voluntarily.” State v. A.N.J., 168 Wn.2d 91, 117, 225 P.3d 956 (2010). A plea is
knowing and voluntary only when the person pleading guilty understands the plea’s
consequences, including possible sentencing consequences. In re Pers. Restraint of
Stockwell, 179 Wn.2d 588, 594-95, 316 P.3d 1007 (2014). A guilty plea is involuntary
when based on misinformation about the direct consequences of a plea. State v.
Mendoza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006). The application of a sentencing
enhancement is a direct consequence of a plea because it directly impacts the defendant’s
range of punishment. State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003).
9 No. 37983-3-III In re Pers. Restraint of Nelson
In this case, Mr. Nelson was misinformed of the sentencing consequences of his
plea. He was told that his sentence would be increased by 18 months for a firearm
enhancement incorrectly applied to an unranked felony. Thus, Mr. Nelson’s plea was
involuntary. See Buckman, 190 Wn.2d at 59-60.
Because this is a collateral attack, however, the conclusion that his plea was
involuntary does not end the analysis. Instead, Mr. Nelson must also show actual and
substantial prejudice. In Buckman, the juvenile defendant was incorrectly advised that he
was facing a maximum penalty of life in prison with the possibility of lifetime
community custody. On collateral review, the court found this misinformation sufficient
to render the defendant’s plea involuntary. Id. at 59-60. Nonetheless, while Buckman
was entitled to resentencing, he failed to establish prejudice sufficient to set aside his
plea. Id. at 60-61. “On collateral review, when the claimed error is ‘a misstatement of
sentencing consequences,’ we require the petitioner to show ‘actual and substantial
prejudice.’” Id. at 60 (quoting Stockwell, 179 Wn.2d at 598-99). “Actual and substantial
prejudice” requires the petitioner to “show that the outcome of the guilty plea
proceedings would more likely than not have been different had the error not occurred.”
Id. In the context of a guilty plea, this means “showing that the petitioner would
have refused to plead guilty and instead would have insisted on proceeding to trial.” Id.
at 62-63. An evaluation of prejudice is objective and conducted from the perspective of a
rational person. Id. at 66.
10 No. 37983-3-III In re Pers. Restraint of Nelson
Mr. Nelson argues that but for the error, he would not have pleaded guilty. Other
than arguing that no rational person would agree to a sentencing enhancement that should
not apply, he does not attempt to demonstrate that he would have insisted on going to
trial.3 Mr. Nelson attempts to distinguish the holding in Buckman by arguing that the
error actually increased his sentence by 18 months, and was therefore substantive, and
not simply procedural. Buckman, 190 Wn.2d at 68-69 (actual and substantial error
requires there be a defect of substance, not merely procedure). We agree that had Mr.
Nelson recognized the error at sentencing, he would not have agreed to the
enhancement’s application. But this is not the same as arguing that he would have
insisted on going to trial.
On the contrary, the record suggests that had he recognized the issue, Mr. Nelson
would have most likely pleaded guilty while arguing that the enhancement should not
apply. Nothing in the record suggests that he would have insisted on a trial. Instead, the
record shows that three months before pleading guilty, Mr. Nelson was advised by his
attorney that he would most likely be found guilty of murder in the first degree based on
the investigation to date. Appendix C to Supplemental Brief of Petitioner. At
sentencing, Mr. Nelson pleaded guilty as charged without the benefit of a favorable plea
3 In his supplement brief, Mr. Nelson repeatedly asserts that he “plead guilty” to the illegal firearm enhancement. To be clear, the firearm enhancement is not a separate charge and Mr. Nelson did not plead guilty to the enhancement.
11 No. 37983-3-III In re Pers. Restraint of Nelson
agreement. Instead, the prosecutor asked for a high-end standard range sentence, while
Mr. Nelson argued for an exceptional sentence below the standard range. Mr. Nelson
indicated that he was pleading “straight up,” without the benefit of an agreed
recommendation because he wanted to take responsibility for his actions. There is no
evidence in the record to suggest that trial was a viable alternative. And no evidence that
the 18-month enhancement was pivotal in his decision to plead guilty to the charges, one
of which had a standard range of 341 to 434 months. (Judgment and sentence, App. A to
Resp. Supp. Br.) Similar to the holding in Buckman, we find that Mr. Nelson has failed
to show prejudice from the error that would entitle him to withdraw his plea of guilty.
B. VICTIM IMPACT STATEMENTS
Next, Mr. Nelson contends that the victim impact statements by persons employed
by the Pierce County District Court created the appearance of bias by the sentencing
judge. After reviewing the record, we find that Mr. Nelson has failed to carry his burden
of showing actual or perceived bias sufficient to violate due process.
A criminal defendant has a due process right to a fair trial by an impartial judge.
WASH. CONST. art. I, § 22; U.S. CONST. amends. V, VI, XIV. “Impartial” means the
absence of actual or apparent bias. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265
(2002). “‘The law goes farther than requiring an impartial judge; it also requires that the
judge appear to be impartial.’” State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837
P.2d 599 (1992) (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)).
12 No. 37983-3-III In re Pers. Restraint of Nelson
Mr. Nelson contends that the proceedings in this case violated the appearance of
fairness doctrine. The appearance of fairness doctrine provides that a “judicial
proceeding is valid only if a reasonably prudent and disinterested observer would
conclude that all parties obtained a fair, impartial, and neutral hearing.” State v.
Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992). Along with the Canons on
Judicial Conduct, the doctrine requires a judge to recuse on any case of actual bias or
where the judge’s impartiality might reasonably be questioned. State v. Dominguez, 81
Wn. App. 325, 328, 914 P.2d 141 (1996). In order to succeed on his appearance of
fairness claim, Mr. Nelson must prove actual or potential bias. In re Pers. Restraint of
Swenson, 158 Wn. App. 812, 818, 244 P.3d 959 (2010). In other words, he must
overcome the presumption that a judge acts without bias or prejudice. Jones v.
Halvorson–Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993).
Mr. Nelson argues that victim impact statements provided by Pierce County
District Court employees violated the appearance of fairness doctrine and his due process
rights. He does not allege actual bias. Instead, he contends that an objective observer
would find a conflict when victim statements are provided by people working in the same
building and the same court system as the Superior Court. Mr. Nelson points out that
while Judge Murphy stated on the record that he did not know the victim, he did not
expressly disclaim familiarity with any of the people providing victim impact statements.
13 No. 37983-3-III In re Pers. Restraint of Nelson
These allegations fail to show actual or potential bias. Mr. Nelson fails to cite any
authority suggesting that a judge should recuse in circumstances such as this. Despite his
claim of institutional bias, a judge is not required to recuse simply because a participant
works in the same building or the same state judicial system.
Mr. Nelson also attempts to benefit from the judge’s lack of specific disclaimer as
to the people presenting victim impact statements, but Mr. Nelson failed to raise this
issue below. See Swenson, 158 Wn. App. at 818 (defendant must act promptly in
requesting recusal). Had he done so, the record could have been sufficiently developed,
and the judge could have clarified whether he knew any of the people who provided
statements. Failing to do so, Mr. Nelson does not get the benefit of the doubt on
collateral review. Instead, we presume the judge acted without bias or prejudice in the
absence of any evidence to the contrary. Jones, 69 Wn. App. at 127. Mr. Nelson’s
failure to prove potential bias sufficient to require the judge to recue from this matter is
fatal to his argument on collateral attack. See Swenson, 158 Wn. App. at 820 (“without a
specific showing of actual or potential bias, Swenson cannot establish a violation of the
appearance of fairness doctrine or CJC Canon 3[.1].”).
C. FINDINGS OF FACT AND SAME CRIMINAL CONDUCT
In his initial PRP, Mr. Nelson makes two arguments that are not further developed
in the briefing. First, he argues that the judge imposed an exceptional sentence requiring
14 No. 37983-3-III In re Pers. Restraint of Nelson
findings of fact and conclusions of law. See RCW 9.94A.535. The record does not
support Mr. Nelson’s argument. He did not receive an exceptional sentence.
Mr. Nelson also claims that his offender score was miscalculated because several
of his convictions constituted the same criminal conduct for purposes of sentencing.
Factually, the record does not support Mr. Nelson’s argument. Legally, he waived the
issue by failing to raise it at sentencing.
“Same criminal conduct,” as used in this subsection, means two or more crimes
that require the same criminal intent, are committed at the same time and place, and
involve the same victim. RCW 9.94A.589(1)(a); State v. Vike, 125 Wn.2d 407, 410, 885
P.2d 824 (1994). The phrase is construed narrowly and “same criminal conduct” will not
be found if any of the three elements are missing. State v. Porter, 133 Wn.2d 177, 181,
942 P.2d 974 (1997). To determine whether each crime shared the same intent, we
objectively look at whether one crime furthered the other, or whether there was a
substantial change in the nature of the criminal objective. State v. Dunaway, 109 Wn.2d
207, 215, 743 P.2d 1237 (1987) (kidnapping committed to further the robbery but
murders committed after robbery distinct and not in furtherance of robbery). In State v.
Lessley, the court found that the objective intent of the burglary was complete the
moment the defendant entered the victim’s residence armed with a deadly weapon and
his intent to subsequently kidnap his girlfriend from the home was distinct. 118 Wn.2d
773, 778-80, 827 P.2d 996 (1992). Even though the Lessley court arrived at its
15 No. 37983-3-III In re Pers. Restraint of Nelson
conclusion on the analysis of intent alone, it also held that the burglary anti-merger
statute supports this result providing, “Every person who, in the commission of a
burglary shall commit any other crime, may be punished therefore as well as for the
burglary, and may be prosecuted for each crime separately.” Id.; RCW 9A.52.050.
Where current offenses are presumed to count separately, the defendant has the burden to
prove same criminal conduct. State v. Graciano, 176 Wn.2d 531, 539, 295 P.3d 219
(2013).
Mr. Nelson has not met his factual burden. None of the counts in the present case
constitute “same criminal conduct.” The murder and malicious mischief counts have
distinct victims (Mrs. Ryan and Mrs. Ryan’s daughter respectively) from the burglary and
animal cruelty charges (the family home and dog being owned by both Teresa Ryan and
her husband Brent Ryan). The objective intent for burglary and animal cruelty are
distinct where neither count furthered the other. Just like the Lessley case, Mr. Nelson
completed burglary the moment he entered the family home with a gun whether or not he
subjectively intended to kill the dog or speculatively intended to commit some other
crime against his ex-girlfriend if he had found her.
Under RCW 9.94A.589(1)(b), when a court sentences multiple current “serious
violent offenses” arising from distinct conduct only the one with the highest level is
scored. Here, the murder count is the highest “serious violent offense.” RCW
9.94A.525(9), .589. “[S]erious violent offenses” run consecutive to each other. RCW
16 No. 37983-3-III In re Pers. Restraint of Nelson
9.94A.589. All other offenses run concurrent. RCW 9.94A.589(1)(b). The score for the
“serious violent offense” includes all other current “violent” and non-violent offenses, but
not the other current “serious violent offenses.” Id. Thus, because Burglary is worth 2
points and malicious mischief and animal cruelty are each worth one point, the correct
offender score for the murder is 4. RCW 9.94A.525(9). The court entered a standard
sentence based on this score.
Even if the same criminal conduct calculation were to apply, Mr. Nelson waived
review of its application by failing to raise the issue at sentencing. While generally a
defendant cannot waive a miscalculated offender score, waiver can be found when the
alleged error involved a matter of trial court discretion. In re Pers. Restraint of
Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). “Application of the same criminal
conduct statute involves both factual determinations and the exercise of discretion.”
State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000). By failing to raise this
issue below, Mr. Nelson has waived it.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
The final issue we review is Mr. Nelson’s claim of ineffective assistance of
counsel. Mr. Nelson argues that his attorney was ineffective in several respects. First, he
argues that his attorney was ineffective for failing to object to the application of the
firearm enhancement to an unranked felony. We note that even if Mr. Nelson is correct,
the remedy is to place him back in the position he would have been without the error.
17 No. 37983-3-III In re Pers. Restraint of Nelson
State v. Drath, 7 Wn. App. 2d 255, 270, 431 P.3d 1098 (2018). Since we have already
granted Mr. Nelson’s request for resentencing, we decline to consider whether counsel’s
failure to spot this issue amounts to ineffective assistance of counsel.
Next, Mr. Nelson contends that his attorney was ineffective for failing to object to
the lack of findings to support an exceptional sentence. As we noted above, Mr. Nelson
did not receive an exceptional sentence and the court was not required to enter written
findings of fact and conclusions of law.
Mr. Nelson also alleges that his trial attorney was ineffective in misadvising him
of the standard sentencing range on his original charges. This issue was not raised in Mr.
Nelson’s original petition. Instead, it was first raised by Mr. Nelson’s attorney in the
supplemental brief filed more than three years after Mr. Nelson was sentenced. In the
supplemental brief, Mr. Nelson contends that three months before his plea, his attorney
mistakenly told him his low-end standard range was 47½ years. This is a new and
separate claim. See In re Pers. Restraint of Haghighi, 178 Wn.2d 435, 447, 309 P.3d 459
(2013). Because it was filed after the one-year time limit, the claim is untimely and will
not be considered. RAP 16.8(e).
Mr. Nelson’s final claim of ineffectiveness is that his attorney pressured him to
hurry and plead guilty without a beneficial plea agreement. In the context of a collateral
attack, a petitioner demonstrates actual and substantial prejudice by proving a claim of
ineffective assistance of counsel under Strickland. In re Pers. Restraint of Dalluge, 152
18 No. 37983-3-III In re Pers. Restraint of Nelson
Wn.2d 772, 787, 100 P.3d 279 (2004). Under Strickland v. Washington4, Mr. Nelson
bears the burden of showing (1) that his counsel’s performance fell below an objective
standard of reasonableness based on consideration of all the circumstances and, if so, (2)
there is a reasonable probability that but for counsel’s poor performance the outcome of
the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 334–35,
899 P.2d 1251 (1995).
In reviewing the record for deficiencies, there is a strong presumption that
counsel’s performance was reasonable. Id. at 335. The burden is on a defendant alleging
ineffective assistance of counsel to show deficient representation. Id. The
reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at
the time of the alleged error and in light of all the circumstances. Kimmelman v.
Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). When counsel’s
conduct can be characterized as a legitimate trial strategy or tactics, performance is not
deficient. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
Mr. Nelson fails to demonstrate that he was coerced into pleading guilty without a
benefit. According to his own affidavit, he received and was able to review his
paperwork for more than a week before his plea and sentencing. Each page of the
statement of defendant on plea of guilty contains the hand-written initials of Mr. Nelson
4 466 U.S. 687, 690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 180 (1984).
19 No. 37983-3-III In re Pers. Restraint of Nelson
and his attorney. In response to the judge’s questions, Mr. Nelson affirmed that his
attorney had gone over the document with him, and he did not have any questions. He
specifically denied that he was pleading guilty in response to any threats or coercion.
The decision to plead guilty without the benefit of a favorable agreement was strategic.
Mr. Nelson told the court that he was pleading straight up to accept responsibility in the
hopes that the court would accept his argument for an exceptional sentence below the
standard range. On this record, we do not find Mr. Nelson’s trial attorney ineffective.
CONCLUSION
We grant Mr. Nelson’s petition and remand for resentencing in light of the
erroneous application of the firearm’s enhancement. We deny the remaining issues
raised by Mr. Nelson and affirm his convictions.
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.
_________________________________ Staab, J. WE CONCUR:
_________________________________ Pennell, C.J.
_________________________________ Siddoway, J.