Filed Washington State Court of Appeals Division Two
September 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint Petition No. 53905-5-II of:
ERIC KERMIT JACOBSON, UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — Eric Jacobson seeks relief from personal restraint following his 2016
convictions and sentence for attempted first degree child rape and attempted commercial sexual
abuse of a minor. Jacobson argues that his trial counsel rendered ineffective assistance by failing
to disclose or discuss plea offers from the State and failing to inform Jacobson that he faced a
maximum life sentence and mandatory lifetime supervision if he was found guilty. We
previously remanded Jacobson’s petition to the trial court for an evidentiary hearing. The trial
court held a hearing and entered findings of fact. We hold that Jacobson fails to demonstrate that
he is entitled to relief and deny his petition.
FACTS
In 2015, an undercover investigation caught Jacobson attempting to arrange a sexual
encounter with an 11 year old girl. The State charged Jacobson with attempted first degree child
rape and attempted commercial sexual abuse of a minor. The standard sentence ranges for those
crimes were 90-120 months to life and 27-36 months, respectively. Jacobson proceeded to trial, 53905-5-II
and a jury found Jacobson guilty as charged. The trial court sentenced Jacobson to 85 months to
life on the attempted first degree child rape conviction and 20.25 months on the attempted
commercial sexual abuse of a minor conviction, to run concurrently. Jacobson appealed, and we
affirmed his convictions and sentence in 2018. State v. Jacobson, No. 49887-1-II (Wash. Ct.
App. May 15, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049887-1-
II%20Unpublished%20Opinion.pdf.
In August 2019 Jacobson filed a personal restraint petition arguing that he was entitled to
a new trial based on ineffective assistance of counsel. Jacobson argued that his trial counsel
never communicated to him that in July 2016 the State offered him a plea deal with reduced
charges and a joint sentencing recommendation of 80 months of confinement. He also argued
that his trial counsel never informed him that he faced a potential life sentence if he went to trial
and was convicted. We ordered the trial court to conduct an evidentiary hearing on Jacobson’s
claims.
At the evidentiary hearing, Travis Currie—Jacobson’s trial counsel—and Jacobson
testified. The trial court found that Currie has been defending persons charged with felonies
since 2002 and is experienced in “Net Nanny” cases including cases involving Class A felony
sex offenses that carry a statutory maximum of life in prison and an “indeterminate” or
“determinate-plus” standard range of a minimum term “to life” in prison. Clerk’s Papers (CP)
at 2. The trial court also found that Currie’s regular practice is to communicate every offer he
receives from the State to every defendant he represents. The trial court found that whenever
Currie represents a person charged with a Class A felony sex offense, he informs the defendant
that the statutory maximum term is life in prison and a conviction would carry an
2 53905-5-II
“indeterminate” or “determine-plus” sentence that could mean the defendant might never be
released from prison. CP at 3.
Currie recalled having a conversation with Jacobson before his trial during which
Jacobson maintained his innocence and stated he would not plead guilty, but Currie could not
specifically recall a conversation about the State’s plea offer. In July 2016, the State
communicated a plea offer to Currie including a reduction to determinate sentences. Currie did
not have notes specifically referencing discussing the offer with Jacobson, but Currie was
confident that he did communicate the offer to his client based on his established habit and
practice of communicating offers. Currie testified that he would have recommended Jacobson
accept the State’s offer based on the totality of the circumstances of the case.
The trial court found that Currie not making a counteroffer or communicating to the State
that the offer was accepted was evidence of Jacobson’s rejection of the offer as opposed to
evidence that Currie failed to convey the offer to Jacobson. The trial court found it “a virtual
[certainty] that Mr. Currie followed his normal practice and communicated the State’s July 2016
offer, despite his understandable lack of specific memory of that.” CP at 5.
The trial court found Currie to be a credible witness in the entirety of his testimony.
Jacobson testified at the evidentiary hearing that Currie never told him about any plea
offer from the State. Jacobson denied that Currie ever came to the jail to talk to him, denied that
Currie called him, and claimed that he did not know about the State’s offer until his sentencing
hearing following trial. Jacobson also said that he met Currie 10 or 11 times before trial. The
trial court found Jacobson’s denials unreasonable given the number of times Currie and Jacobson
met prior to trial. Jacobson testified that Currie told him he faced 8 to 10 years in prison and
3 53905-5-II
never told him about the maximum sentence being life in prison, the lifetime community custody
he faced, or anything about the Indeterminate Sentence Review Board. The trial court found
these denials to be unreasonable “based on familiarity with Mr. Currie, based on the charges
involved here, [and] based on the lack of expressed surprise by defendant when the standard
range and statutory maximum were mentioned on the first day of trial.” CP at 6.
The trial court found Jacobson to be a not credible witness in the entirety of his
testimony, and specifically rejected Jacobson’s claim that he never knew about the State’s July
2016 offer.
On the central issue, the trial court found that Currie did communicate the plea offer to
Jacobson and found that Currie informed Jacobson about the statutory maximum and the
potential for an indeterminate sentence of up to life before trial.
ANALYSIS
“Relief by way of a collateral challenge to a conviction is extraordinary, and the
petitioner must meet a high standard before this court will disturb an otherwise settled
judgment.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). To be
entitled to relief on a personal restraint petition, a petitioner must show (1) actual and substantial
prejudice by a constitutional error, 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). A petitioner claiming ineffective assistance of trial
counsel necessarily establishes actual and substantial prejudice if he meets the standard of
prejudice applicable on direct appeal: that but for counsel’s deficient performance there is a
4 53905-5-II
reasonable probability the outcome would have been different. In re Pers. Restraint of Lui, 188
Wn.2d 525, 538, 397 P.3d 90 (2017).
There is no constitutional right to a plea deal. State v. Moen, 150 Wn.2d 221, 226-227,
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Filed Washington State Court of Appeals Division Two
September 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint Petition No. 53905-5-II of:
ERIC KERMIT JACOBSON, UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — Eric Jacobson seeks relief from personal restraint following his 2016
convictions and sentence for attempted first degree child rape and attempted commercial sexual
abuse of a minor. Jacobson argues that his trial counsel rendered ineffective assistance by failing
to disclose or discuss plea offers from the State and failing to inform Jacobson that he faced a
maximum life sentence and mandatory lifetime supervision if he was found guilty. We
previously remanded Jacobson’s petition to the trial court for an evidentiary hearing. The trial
court held a hearing and entered findings of fact. We hold that Jacobson fails to demonstrate that
he is entitled to relief and deny his petition.
FACTS
In 2015, an undercover investigation caught Jacobson attempting to arrange a sexual
encounter with an 11 year old girl. The State charged Jacobson with attempted first degree child
rape and attempted commercial sexual abuse of a minor. The standard sentence ranges for those
crimes were 90-120 months to life and 27-36 months, respectively. Jacobson proceeded to trial, 53905-5-II
and a jury found Jacobson guilty as charged. The trial court sentenced Jacobson to 85 months to
life on the attempted first degree child rape conviction and 20.25 months on the attempted
commercial sexual abuse of a minor conviction, to run concurrently. Jacobson appealed, and we
affirmed his convictions and sentence in 2018. State v. Jacobson, No. 49887-1-II (Wash. Ct.
App. May 15, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049887-1-
II%20Unpublished%20Opinion.pdf.
In August 2019 Jacobson filed a personal restraint petition arguing that he was entitled to
a new trial based on ineffective assistance of counsel. Jacobson argued that his trial counsel
never communicated to him that in July 2016 the State offered him a plea deal with reduced
charges and a joint sentencing recommendation of 80 months of confinement. He also argued
that his trial counsel never informed him that he faced a potential life sentence if he went to trial
and was convicted. We ordered the trial court to conduct an evidentiary hearing on Jacobson’s
claims.
At the evidentiary hearing, Travis Currie—Jacobson’s trial counsel—and Jacobson
testified. The trial court found that Currie has been defending persons charged with felonies
since 2002 and is experienced in “Net Nanny” cases including cases involving Class A felony
sex offenses that carry a statutory maximum of life in prison and an “indeterminate” or
“determinate-plus” standard range of a minimum term “to life” in prison. Clerk’s Papers (CP)
at 2. The trial court also found that Currie’s regular practice is to communicate every offer he
receives from the State to every defendant he represents. The trial court found that whenever
Currie represents a person charged with a Class A felony sex offense, he informs the defendant
that the statutory maximum term is life in prison and a conviction would carry an
2 53905-5-II
“indeterminate” or “determine-plus” sentence that could mean the defendant might never be
released from prison. CP at 3.
Currie recalled having a conversation with Jacobson before his trial during which
Jacobson maintained his innocence and stated he would not plead guilty, but Currie could not
specifically recall a conversation about the State’s plea offer. In July 2016, the State
communicated a plea offer to Currie including a reduction to determinate sentences. Currie did
not have notes specifically referencing discussing the offer with Jacobson, but Currie was
confident that he did communicate the offer to his client based on his established habit and
practice of communicating offers. Currie testified that he would have recommended Jacobson
accept the State’s offer based on the totality of the circumstances of the case.
The trial court found that Currie not making a counteroffer or communicating to the State
that the offer was accepted was evidence of Jacobson’s rejection of the offer as opposed to
evidence that Currie failed to convey the offer to Jacobson. The trial court found it “a virtual
[certainty] that Mr. Currie followed his normal practice and communicated the State’s July 2016
offer, despite his understandable lack of specific memory of that.” CP at 5.
The trial court found Currie to be a credible witness in the entirety of his testimony.
Jacobson testified at the evidentiary hearing that Currie never told him about any plea
offer from the State. Jacobson denied that Currie ever came to the jail to talk to him, denied that
Currie called him, and claimed that he did not know about the State’s offer until his sentencing
hearing following trial. Jacobson also said that he met Currie 10 or 11 times before trial. The
trial court found Jacobson’s denials unreasonable given the number of times Currie and Jacobson
met prior to trial. Jacobson testified that Currie told him he faced 8 to 10 years in prison and
3 53905-5-II
never told him about the maximum sentence being life in prison, the lifetime community custody
he faced, or anything about the Indeterminate Sentence Review Board. The trial court found
these denials to be unreasonable “based on familiarity with Mr. Currie, based on the charges
involved here, [and] based on the lack of expressed surprise by defendant when the standard
range and statutory maximum were mentioned on the first day of trial.” CP at 6.
The trial court found Jacobson to be a not credible witness in the entirety of his
testimony, and specifically rejected Jacobson’s claim that he never knew about the State’s July
2016 offer.
On the central issue, the trial court found that Currie did communicate the plea offer to
Jacobson and found that Currie informed Jacobson about the statutory maximum and the
potential for an indeterminate sentence of up to life before trial.
ANALYSIS
“Relief by way of a collateral challenge to a conviction is extraordinary, and the
petitioner must meet a high standard before this court will disturb an otherwise settled
judgment.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). To be
entitled to relief on a personal restraint petition, a petitioner must show (1) actual and substantial
prejudice by a constitutional error, 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). A petitioner claiming ineffective assistance of trial
counsel necessarily establishes actual and substantial prejudice if he meets the standard of
prejudice applicable on direct appeal: that but for counsel’s deficient performance there is a
4 53905-5-II
reasonable probability the outcome would have been different. In re Pers. Restraint of Lui, 188
Wn.2d 525, 538, 397 P.3d 90 (2017).
There is no constitutional right to a plea deal. State v. Moen, 150 Wn.2d 221, 226-227,
76 P.3d 721 (2003). However, when plea negotiations occur, a defendant has a constitutional
right to effective assistance of counsel. State v. James, 48 Wn. App. 353, 362, 739 P.2d 1161
(1987). Counsel must discuss the State’s offers and help the defendant make an informed
decision on whether to take a plea deal, such as strengths and weaknesses in the case if it
proceeds to trial. James, 48 Wn. App. at 362. This includes adequate investigation into the case
facts and likelihood of conviction. State v. Edwards, 171 Wn. App. 379, 394, 294 P.3d 708
(2012).
When reviewing a claim of failure to advise a defendant about a plea deal, we consider
“whether defense counsel communicated the offers to the defendant and whether the defendant
has demonstrated a reasonable probability that the defendant would have accepted the offer.”
Edwards, 171 Wn. App. at 394. If a defendant’s right to effective assistance of counsel in
considering whether to accept a plea bargain is denied, prejudice can be shown if loss of the plea
opportunity led to a trial resulting in conviction on more serious charges or on the imposition of
a more severe sentence. Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 1387, 182 L.Ed. 2d
398 (2012).
Jacobson contends that his trial counsel never communicated the State’s July 2016 plea
offer to him. To support his claim, Jacobson points to Currie’s inability to recall any specific
conversation about the offer and to Jacobson’s own insistence that he was never informed. But
at the evidentiary hearing, the trial court found Jacobson to be a not credible witness “in the
5 53905-5-II
entirety of his testimony,” and specifically rejected Jacobson’s claim that he never knew about
the State’s July 2016 offer. CP at 7. Additionally, the trial court found Currie to be a credible
witness and found it “a virtual [certainty] that Mr. Currie followed his normal practice and
communicated the State’s July 2016 offer, despite his understandable lack of specific memory of
that.” CP at 5.
Jacobson does not assign error to any of the trial court’s findings of fact. As such, the
trial court’s findings of fact are verities on appeal. State v. Stewart, 12 Wn. App. 2d 236, 240,
457 P.3d 1213 (2020). Moreover, even if we considered Jacobson to have sufficiently assigned
error to the trial court’s findings, which he has not, we would hold that sufficient evidence
supports the trial court’s findings. Currie testified that in his decades of experience with these
types of cases, he has never failed to communicate a pretrial offer to a client. On the other hand,
the only evidence suggesting Currie deviated from his regular practice of communicating plea
offers to his clients is Jacobson’s self-serving testimony, which the trial court found not credible
in its entirety. We do not review credibility determinations. State v. Cardenas-Flores, 189
Wn.2d 243, 266, 401 P.3d 19 (2017). Accordingly, Jacobson fails to show that his trial counsel
rendered ineffective assistance by failing to communicate the State’s July 2016 plea offer.
Jacobson’s claim that his trial counsel failed to adequately warn him that he faced a
potential life sentence suffers a similar fate. The trial court found that Jacobson’s trial counsel
informed him of the statutory maximum and the potential of an indeterminate sentence of up to
life on the charges before trial. The trial court specifically found Jacobson’s contention that his
trial counsel told him only that he faced “8 to 10 years” unreasonable based on the court’s
familiarity with Currie, the charges involved, and the lack of expressed surprise by Jacobson
6 53905-5-II
when the standard range and statutory maximum were mentioned on the first day of trial. CP at
6. Jacobson fails to assign error to any of these findings, and therefore they are verities on
appeal. Stewart, 12 Wn. App. 2d at 240. Accordingly, Jacobson fails to show that his trial
counsel rendered ineffective assistance by failing to inform him that he faced a maximum
sentence of life.
In his initial petition, Jacobson also argues that the cumulative effect of his trial counsel’s
multiple errors entitles him to a new trial. Having determined that Jacobson fails to show any
deficient performance by his trial counsel, we also hold that Jacobson fails to show that
cumulative error entitles him to a new trial.
We deny Jacobson’s petition for relief.
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.
Worswick, J. We concur:
Maxa, J.
Glasgow, C.J.