Filed Washington State Court of Appeals Division Two
November 4, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 58567-7-II
ERIC DURAN MACK,
Petitioner. UNPUBLISHED OPINION
VELJACIC, A.C.J. — In this personal restraint petition (PRP), Eric D. Mack seeks relief
from restraint following his guilty plea to rape in the first degree and assault in the second degree.
In his initial pro se petition, Mack alleges his guilty plea was involuntary and gives numerous
reasons why he received ineffective assistance of counsel. In a supplemental brief, appointed
counsel raised additional grounds for relief not included in Mack’s initial petition. We dismiss
these new grounds raised in Mack’s supplemental brief as time barred and deny Mack’s PRP.
FACTS
I. BACKGROUND FACTS
In 2020, CD reported to police that she had been raped. She reported to police that the rape
occurred outdoors in Centralia, that she saw a Geo Metro, and that the person involved had an axe.
CD went to the hospital where a sexual assault nurse practicer swabbed CD for deoxyribonucleic
acid (DNA). The DNA matched Mack. 58567-7-II
The police located Mack, and Centralia Police Sergeant David Clary interviewed him.
During the interview, Mack admitted to having sex with CD. He claimed that he met a woman in
Centralia while driving his Geo Metro. Mack said he drove to an area without people around and
then the two had consensual sex. Clary inquired about an axe. Mack told the officer that he had
an axe in his door panel. Mack claimed that the axe was only for protection and that he set it down
while having sex with CD.
II. CHARGES AND START OF TRIAL
The State charged Mack with rape in the first degree and later amended the charges to add
kidnapping in the second degree. The State alleged three aggravating factors on the rape charge
and one aggravating factor on the kidnapping charge.
The State moved to admit evidence of four similar rapes that occurred in Las Vegas under
ER 404(b). After a hearing, the court allowed evidence from one victim, BG (formerly known as
BK).
The matter proceeded to trial. After the State presented its case, defense counsel requested
a recess to consult with Mack. The parties took a one-hour recess. When they reconvened, defense
counsel informed the court that Mack intended to enter a guilty plea.
III. PLEA AGREEMENT
In exchange for Mack’s guilty plea, the State amended the charges to rape in the first degree
and assault in the second degree. The second amended information alleged that Mack committed
rape in the first degree by engaging in sexual intercourse with another person by forcible
compulsion and using or threatening to use a deadly weapon, kidnapping the victim, inflicting
serious physical injury, or feloniously entering a building or vehicle where the victim was situated
contrary to former RCW 9A.44.040(1) (1998). The assault in the second degree charge was based
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on the allegation that Mack intentionally assaulted another with a deadly weapon contrary to RCW
9A.36.021(1)(c). The State agreed to remove all aggravating factors as part of the plea agreement.
Mack signed his guilty plea statement, acknowledging that he had been informed that he
was pleading guilty to rape in the first degree and assault in the second degree and that he was
voluntarily making his plea. The statement included a hand-written statement of the facts of the
charges. The trial court had the following colloquy with the parties:
THE COURT: Okay. And you had the opportunity to go over this Statement of Defendant on Plea of Guilty with [defense counsel]? MACK: Yes, I have. DEFENSE COUNSEL: So I’m going to ask for the plea form back to make a change. I have indicated on the plea form “sexual intercourse by forcible compulsion.” The prosecutor indicates that that’s Rape 2, and I’m going to change—with my client’s permission change the language from “forcible compulsion” to “kidnapping.” THE COURT: Okay. DEFENSE COUNSEL: And the reason for that is we don’t want to do it while armed with a deadly weapon because of the Assault 2. THE COURT: Okay. DEFENSE COUSNEL: Would the State agree with the that? PROSECUTOR: It’s “and,” not—you don’t take out the “forcible compulsion”; you just add “and threatened with”—or add “kidnapped.” DEFENSE COUNSEL: Okay. All right. THE COURT: And your client understands that [defense counsel]? DEFENSE COUNSEL: Do you understand what I just said? MACK: Yes. DEFENSE COUNSEL: Yes? MACK: Yes. DEFENSE COUNSEL: You have to say it out loud. THE COURT: He did. MACK: Yes. THE COURT: He’s essentially correcting to make it legally sufficient to match the elements of the crime that you’re pleading guilty to. MACK: Okay; that’s fine.
2 Rep. of Proc. (RP) at 178-79. Defense counsel then added the words “with kidnapping” to
Mack’s statement of the facts on his guilty plea statement, which then read: “On 10-24-2020, in
Lewis Co WA, I had sexual intercourse with another by forcible compulsion with kidnapping the
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victim and threatened the victim with a deadly weapon (Assault 2°).” Clerk’s Papers (CP) at 28
(emphasis added).
Mack acknowledged that defense counsel went over the second amended information with
him, which included the elements of each crime. Specifically, Mack was notified that rape in the
first degree was charged based on an allegation of kidnapping. The trial court then stated, “So in
paragraph 11 of the statement on plea of guilty, it states ‘On October 24th, 2020, in Lewis County,
Washington, I had sexual intercourse with another by forcible compulsion and with kidnapping
the victim, threatened the victim with a deadly weapon,’ which is the Assault 2. Is that your
statement?” 2 RP at 184-85. Mack replied, “Yes.” 2 RP at 185. The court then asked Mack if
this was “a true and accurate statement of what you believe makes you guilty in both of these
counts in the Second Amended Information?” 2 RP at 185. Mack again replied, “Yes.” 2 RP at
185.
The State agreed to recommend an indeterminate sentence of 160 months to life.
IV. SENTENCING
On August 24, 2022, the trial court agreed with the prosecutor’s sentence recommendation
and sentenced Mack to an indeterminate sentence of 160 months to life. Mack did not appeal his
judgment and sentence and instead filed this PRP.1
1 Mack originally filed a CrR 7.8 motion. The superior court found that the motion was timely, but that Mack did not make a substantial showing that he was entitled to relief. The superior court transferred the motion to this court as a personal restraint petition under CrR 7.8(c)(2). Mack had previously filed a PRP in December 2022, but he withdrew the petition. See Ruling Terminating Review, In re Pers. Restraint of Mack, No.58042-0-II (June 13, 2023). Since we did not “entertain” Mack’s initial petition, his current petition is not successive and is therefore properly before us. RAP 16.4(d).
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ANALYSIS
Mack alleges that his guilty plea was involuntary and that defense counsel rendered
deficient performance for failing to make sure Mack understood the elements of the rape in the
first degree charge before pleading guilty. Mack further argues in his initial petition that defense
counsel rendered ineffective assistance of counsel by not discussing defense strategy with him, not
objecting to evidence, failing to interview witnesses, not allowing Mack to testify, failing to cross
examine CD, falling asleep during an interview, and not ensuring that the State recommended 120
months instead of 160 months. In his supplemental brief, Mack alleges that defense counsel
rendered ineffective assistance of counsel by not providing Mack with photographs later entered
as exhibits, failing to meaningfully cross examine BG, and not ensuring disclosure of National
Crime Institute Center information to him. Because Mack has not shown unlawful restraint, and
the other issues he raises in his supplemental brief are dismissed as time-barred, we deny his
petition.
I. PRP PRINCIPLES
A. Legal Principles
To prevail in a PRP, the petitioner must establish by a preponderance of the evidence (1) a
constitutional error that resulted 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 Meredith, 191 Wn.2d 300, 306, 422 P.3d 458 (2018). Establishing “actual and
substantial prejudice” means more than merely showing the possibility of prejudice; the petitioner
must establish that if the alleged error had not occurred, the outcome more likely than not would
have been different. In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315-16, 440 P.3d 978
(2019).
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RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to
support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503,
384 P.3d 591 (2016). Conclusory allegations are insufficient. Id. Any factual allegations must
be based on more than speculation and conjecture. In re Pers. Restraint of Yates, 177 Wn.2d 1,
18, 296 P.3d 872 (2013). The petitioner must show that he has competent, admissible evidence to
establish facts that would entitle him to relief. Id.
We have three options when considering a PRP. First, if the petitioner does not show actual
prejudice for constitutional errors or a fundamental defect resulting in a miscarriage of justice for
nonconstitutional errors, we will dismiss the PRP. Id. at 17-18. Second, if the petitioner has
proved actual prejudice or a fundamental defect resulting in a miscarriage of justice, we will grant
the PRP. Id. at 18. And third, if the petitioner makes at least a prima facie showing but the merits
of their contentions cannot be resolved solely on the record, we will remand the matter to the trial
court for a full hearing on the merits or a reference hearing. Id.
B. Timeliness Principles
A personal restraint petition generally must be filed within one year of the date that the
petitioner’s judgment and sentence becomes final. RCW 10.73.090(1). A judgment and sentence
becomes final on the date that it is filed with the clerk of the superior court. RCW 10.73.090(3)(a).
A petition filed more than one year later is time barred unless the petitioner shows that their
judgment and sentence is facially invalid or was not rendered by a court of competent jurisdiction.
RCW 10.73.090(1). Or the petitioner must show that their petition is based solely on one of the
enumerated exceptions to the time bar in RCW 10.73.100.
If a petition raises claims that are both timely and untimely under RCW 10.73.100, then
the petition is mixed and must be dismissed. In re Pers. Restraint of Hankerson, 149 Wn.2d 695,
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702, 72 P.3d 703 (2003). However, if any supplemental brief includes new claims, the new claims
would be subject to the time bar based on the timing of the supplemental brief, not the initial
petition. See In re Pers. Restraint of Wilson, 169, Wn. App. 379, 393-94, 279 P.3d 990 (2012).
Therefore, the mixed petition rule as stated in Hankerson does not apply to the timely-filed claims.
In re Pers. Restraint of Ramsey, ___ Wn. App. 2d. ___, 576 P.3d 597, 601 (2025).
II. VOLUNTARINESS OF GUILTY PLEA
Citing CrR 4.2, Mack contends that his guilty plea was involuntary and, therefore, he
should be permitted to withdraw it. We disagree.
Whether a guilty plea is knowing, intelligent, and voluntary is a constitutional issue;
therefore, in a PRP based on the voluntariness of a plea, the petitioner must show actual and
substantial prejudice. In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383 P.3d 454 (2016).
To show this level of prejudice, the petitioner must show that there is a reasonable probability that
the petitioner would not have pleaded guilty and would have instead insisted on going to trial.
State v. Buckman, 190 Wn.2d 51, 65, 409 P.3d 193 (2018). “A ‘reasonable probability’ exists if
the defendant ‘convince[s] the court that a decision to reject the plea bargain would have been
rational under the circumstances.’” State v. Sandoval, 171 Wn.2d 163, 175, 249 P.3d 1015 (2011)
(alteration in original) (quoting Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 176 L.
Ed. 2d 284 (2010)). “Rationality is an objective inquiry informed by the circumstances of the
defendant.” Buckman, 190 Wn.2d at 66-67. Therefore, “‘[a] bare allegation that a petitioner would
not have pleaded guilty if he had known all the consequences of the plea is not sufficient to
establish prejudice,’ regardless of whether that allegation is credible or not.” Id. at 67 (alteration
in original) (quoting In re Pers. Restraint of Riley, 122 Wn.2d 772, 782, 863 P.2d 554 (1993)).
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When the petitioner pleads guilty, CrR 4.2 is also implicated. In re Pers. Restraint of
Clements, 125 Wn. App. 634, 640, 106 P.3d 244 (2005). Trial courts must allow a defendant to
withdraw their guilty plea “whenever it appears that the withdrawal is necessary to correct a
manifest injustice.” CrR 4.2(f). Manifest injustice is a demanding standard and the defendant
must establish that they suffered “‘an injustice that is obvious, directly observable, overt, [and] not
obscure.’” Clements, 125 Wn. App. at 640 (quoting State v. Branch, 129 Wn.2d 635, 641, 919
P.2d 1228 (1996)). When a motion to withdraw a guilty plea is made after judgment, review is
governed by CrR 7.8. CrR 4.2(f). A postjudgment motion must show a constitutional error that
resulted in actual and substantial prejudice. Swagerty, 186 Wn.2d at 807. “[A] postjudgment
motion to withdraw a guilty plea must either meet the requirements of both CrR 4.2(f) and CrR
7.8 or only CrR 7.8.” State v. Lamb, 175 Wn.2d 121, 129, 285 P.3d 27 (2012) (emphasis omitted).
Here, Mack argues that he did not understand the nature of the charges against him because
defense counsel altered his guilty plea statement to include the words “with kidnapping.” CP at
28. But the State notified Mack in the second amended information that he was charged with rape
in the first degree based on his engaging in sexual intercourse with another person, by forcible
compulsion and that he “kidnapped the victim.” CP at 15. And Mack acknowledged that counsel
went over the second amended information with him. Mack also signed his guilty plea statement,
acknowledging that he had been informed that he was pleading guilty to rape in the first degree
and assault in the second degree and that he was voluntarily making his plea. Moreover, Mack
repeatedly informed the trial court that he understood the correction on the guilty plea form. Mack
also received a favorable plea agreement mid trial that removed all aggravating factors. Mack
does not show a reasonable probability exists that a decision to reject the plea bargain would have
been rational under the circumstances. Sandoval, 171 Wn.2d at 175. Accordingly, Mack has not
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met his burden to show constitutional error that resulted in actual and substantial prejudice nor
manifest injustice that requires withdrawal of his guilty plea.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Mack next argues defense counsel rendered deficient performance for failing to make sure
Mack understood the elements of the rape in the first degree charge before pleading guilty. We
disagree.
Both the United States Constitution and the Washington Constitution guarantee the right
to effective assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. In the
context of a PRP alleging ineffective assistance of counsel, a petitioner who demonstrates
ineffective assistance of counsel necessarily shows actual and substantial prejudice. In re Pers.
Restraint of Crace, 174 Wn.2d 835, 843, 280 P.3d 1102 (2012).
To prevail on an ineffective assistance of counsel claim, the petitioner must show (1) that
counsel’s performance was deficient and (2) the deficient performance resulted in prejudice. State
v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024). An ineffective assistance of counsel claim
fails if the petitioner fails to satisfy either prong of the inquiry. Crace, 174 Wn.2d at 847.
Therefore, we need not consider both prongs if the petitioner fails to satisfy one. Id.
Deficient performance is performance falling “‘below an objective standard of
reasonableness.’” Bertrand, 3 Wn.3d at 128 (quoting State v. McFarland, 127 Wn.2d 322, 334-
35, 899 P.2d 1251 (1995)). The petitioner alleging ineffective assistance must overcome a strong
presumption that counsel’s performance was reasonable. Bertrand, 3 Wn.3d at 128. To show
prejudice, the petitioner must demonstrate that “‘there is a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceedings would have been different.’” Id.
at 129 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).
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Here, Mack cannot show that defense counsel’s performance fell below an objective
standard of reasonableness. Counsel negotiated a favorable plea agreement mid trial that removed
all aggravating factors. Additionally, when counsel needed to edit the guilty plea statement,
counsel went over the charges with Mack and repeatedly, on the record, inquired whether Mack
understood the changes. Mack responded in the affirmative. Accordingly, Mack cannot show that
defense counsel’s performance was deficient. His ineffective assistance of counsel claim on this
basis fails.
IV. OTHER INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS IN INITIAL PETITION
In his initial petition, Mack also argues that defense counsel rendered ineffective assistance
of counsel for failing to meet with him to discuss defense strategy, not objecting to evidence,
failing to interview witnesses, denying Mack an opportunity to testify, failing to cross examine
CD, falling asleep during an interview, and not ensuring the State recommended 120 months
instead of 160 months. However, Mack fails to specifically identify the evidence available to
support these factual allegations as required under RAP 16.7(a)(2). Wolf, 196 Wn. App. at 503.
Instead, he merely provides conclusory allegations, which are insufficient to warrant relief. Id.
Therefore, we decline to address these allegations further.
V. TIME BARRED ISSUES IN SUPPLEMENTAL PETITION
In his supplemental brief, Mack alleges that defense counsel rendered ineffective assistance
of counsel by failing to provide Mack with photographs later entered as exhibits, failing to
meaningfully cross examine BG, and not ensuring disclosure of National Crime Institute Center
information to him. We dismiss these claims as time barred.
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Mack’s judgment and sentence was entered on August 24, 2022. Mack filed his initial
petition on August 14, 2023. Thus, the initial petition was timely under RCW 10.73.090(1).
Mack’s supplemental brief was filed on September 30, 2024. As discussed above, if a
supplemental brief includes new untimely claims, the matter is not dismissed as a mixed petition;
rather, the new claims are subject to the time bar based on the timing of the supplemental brief.
See Wilson, 169, Wn. App. at 393-94; Ramsey, 576 P.3d 597, 601.
Mack argues that his additional ineffective assistance claims are not time barred because
they are part and parcel to the claims raised in his initial petition.
Division One of this court has held that an ineffective assistance of counsel claim was not
time-barred when it was “part and parcel” of a claim raised in the timely PRP. Wilson, 169 Wn.
App. at 387-88. In Wilson, the petitioner filed a timely petition arguing instructional error and
then later, in a supplemental brief filed after the time-bar, his attorney reframed the issue as
ineffective assistance of counsel for proposing a defective instruction. Id. at 387. The State argued
that this was a new claim that could not be brought after the expiration of the time bar. Id. at 387.
The court held that the ineffective assistance of counsel argument was not a new claim. Id.
at 387-88. Rather, it was part and parcel of the instructional error claim made in the timely petition.
Id. at 387. This was so because under the facts of Wilson, there was no avenue for the petitioner
to seek relief from a clearly erroneous instruction except through an ineffective assistance of
counsel claim. Id. Wilson’s trial counsel had proposed the erroneous instruction, preventing
Wilson from raising the claim directly because the invited error doctrine barred relief. Id.
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We have held that Wilson is limited. In re Pers. Restraint of Tricomo, 13 Wn. App. 2d
223, 243, 463 P.3d 760 (2020). Wilson dealt specifically with an instructional error that could not
be raised outside a claim of ineffective assistance of counsel because it would have been precluded
be the invited error doctrine. Id. at 243-24. In that sense, the claim was “‘part and parcel of the
original claim and not a new claim.’” Id. at 244 (quoting Wilson, 169 Wn. App. at 387).
Here, Mack’s ineffective assistance of counsel claims regarding photographs, the cross
examination of BG, and National Crime Institute Center information are not part and parcel of the
ineffective assistance of counsel claim raised in the initial petition. Resolution of the different
claims rests on distinct facts and legal theories. Moreover, Mack does not demonstrate that his
judgment and sentence is facially invalid or was not rendered by a court of competent jurisdiction,
or that any of the time-bar exceptions in RCW 10.73.100 apply. Therefore, the three additional
ineffective assistance claims raised in the supplemental brief are time-barred and must be
dismissed.2
CONCLUSION
Because Mack has not shown unlawful restraint, and the other issues he raises are
dismissed as time-barred, we deny his petition.
2 The State moves to strike Mack’s pro se motions filed on September 26, 2023 and January 3, 2024. Mack’s September 26, 2023 filing objected to the CrR 7.8 transfer and also included a motion to supplement the initial petition with additional argument. This court informed Mack that it would address his September 26, 2023 objection when the court considers his petition. We conclude that the trial court properly transferred this matter to us as a PRP under CrR 7.8(c)(2), and because Mack provides no basis for accepting his time-barred supplemental arguments contained within his September 26, 2023 filing, we deny—rather than strike—his motion to supplement. Regarding the January 3, 2024 motion, Mack was represented by counsel when he filed this motion. Therefore, we properly placed this motion in Mack’s file without further action under State v. Romero, 95 Wn. App. 323, 326, 975 P.2d 564 (1999).
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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.
Veljacic, A.C.J.
We concur:
Maxa, J.
Price, J.