IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint ) No. 81210-6-I (Consolidated Petition of: ) with No. 81211-4-I) ) JON MAJOR, aka, JOZUA HFVAK, ) DIVISION ONE ) Petitioner. ) UNPUBLISHED OPINION ) )
HAZELRIGG, J. — Jon Major1 seeks discretionary review of his motion for a
new trial under CrR 7.8, which was transferred to this court as a personal restraint
petition. Major primarily alleges that the trial court improperly transferred his
motion as time-barred, but also argues a number of purported discovery violations
and misconduct by the State prejudiced him at trial, and seeks reversal. Because
Major fails to meet his burden of demonstrating a Constitutional violation which
caused him prejudice, we deny his personal restraint petition.
FACTS
On December 6, 2018, Jon Major was found guilty of commercial sexual
abuse of a minor and possession of depictions of a minor engaged in sexually
explicit conduct. Major appeared pro se at his jury trial. Throughout the pendency
1 Major uses the name Jozua Hfvak in his pleadings at the trial court and on appeal. The
record demonstrates that he asked the trial court to utilize Hfvak (or only his initials), but the request was denied based on the fact that his legal name is Jon Major. As such, we use his legal name in this opinion.
Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 81210-6-I/2
of his case, Major alleged there was a conspiracy against him by the Seattle Police
Department (SPD), the prosecutors, and various witnesses. Major alleged that the
then-17-year old victim, G.W., falsely accused Major of paying G.W. $500 to
perform oral sex, that Seattle Police Detective Maurice Washington falsified his
report summarizing the accusation, and that the King County Prosecutor’s Office
pursued charges based on evidence it knew was false.
On April 15, 2019, Major made a public disclosure request to the SPD
seeking records related to a report by Washington purported to summarize an
interview with G.W.’s parents. Specifically, Major sought a report that he believed
was written by Washington and referenced a statement by G.W. to his parents that
he received hickeys from “a girl in Tacoma.” Major also requested records related
to an interview of G.W. that Washington conducted. SPD responded in writing that
it had records responsive to Major’s requests that would be released upon
payment of certain processing fees. Major paid only for the transcript of the
interview with G.W.
Based on this information, Major filed a motion for a new trial pursuant to
CrR 7.8 on January 24, 2020. He attached a portion of the transcript of G.W.’s
interview to the motion. The trial court made two findings: first, that Major had
failed to make a substantial showing that he was entitled to relief and second, that
Major’s motion was time-barred. The court checked the box on its order stating
Major’s motion was time-barred and transferred it to this court as a personal
restraint petition. On March 4, 2020, Major filed a notice for discretionary review
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of the superior court’s transfer. This Court consolidated the request for
discretionary review and consideration of the personal restraint petition.
ANALYSIS
I. Transfer from Superior Court under CrR 7.8
Major contends that the trial court erred in transferring his CrR 7.8 motion
for a new trial to this court as untimely. The State concedes that the superior court
erred in finding Major’s motion was untimely, but avers that the court nevertheless
properly transferred the motion by finding Major had failed to establish a
substantial basis for relief.
A trial court must transfer a CrR 7.8 motion to the Court of Appeals unless
it finds that the motion is not time barred, and either the defendant has made a
substantial showing that they are entitled to relief or resolution of the motion
requires a factual hearing. CrR 7.8. This court will remand the petition if the
superior court clearly erred in transferring the CrR 7.8 motion. RAP 16.8.1(c)
(emphasis added). A superior court must “meaningfully engage” in its transfer
analysis. In re Pers. Restraint of Ruiz-Sanabria, 184 Wn.2d 632, 639–40, 362
P.3d 758 (2015).
We review a trial court’s ruling on a CrR 7.8 motion for abuse of discretion.
See e.g., State v. Crawford, 164 Wn. App. 617, 621, 267 P.3d 365 (2011); State
v. Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016); State v. Zavala-
Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005). A trial court abuses its
discretion when its decision is based on untenable grounds or for untenable
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reasons. Robinson, 193 Wn. App. at 217–18 (citing State v. Powell, 126 Wn.2d
244, 258, 893 P.2d 615 (1995)).
Here, the parties agree that Major’s motion was timely and the superior
court erred in finding otherwise. However, the court also made an express finding
that Major had failed to make a substantial showing that he was entitled to relief.
The form order used by the superior court contains two boxes separated by “OR;”
one stating that the defendant’s motion is time-barred, the other stating that “[t]he
defendant’s motion is not time-barred by RCW 10.73.090, but the defendant has
not made a substantial showing that he or she is entitled to relief and resolution of
the defendant’s motion will not require a factual hearing.” Because the second
option on the form begins by stating that the motion is not time-barred, and the
court believed that it was, it is clear why the court would not check both boxes
despite finding two separate bases for transfer.
While the court erred in finding Major’s motion was untimely, it properly
transferred the motion to this court based on its finding that Major had failed to
make a substantial showing that he is entitled to the relief sought. The trial court
meaningfully engaged in its transfer analysis and its decision was not based on
untenable grounds. As such, we need not remand the case to the superior court.
While Major asks us to remand his motion to the superior court so he may
“further develop the factual record,” we have before us all we need to determine
the merits of Major’s collateral attack. However, not every set of allegations, even
those with merit, entitle a petitioner to a reference hearing. In re Pers. Restraint of
Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). A petitioner must state the facts
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underlying their claim and the evidence available to support them. Id. 885–86.
“Bald assertions and conclusory allegations will not support the holding of a
hearing.” Id. 886 (citing In re Pers. Restraint of Williams, 111 Wn.2d 353, 364–65,
759 P.2d 436 (1988)). A reference hearing will not be granted to determine
whether a petitioner has met their evidentiary burden, rather the purpose “is to
resolve genuine factual disputes.” Rice, 118 Wn.2d at 886. If the allegations are
based on facts not in the record, “the petitioner must demonstrate that he has
competent, admissible evidence to establish” those facts. Id.
Major’s motion is primarily based on the allegation that Washington
authored a second report summarizing an interview with the victim’s parents
wherein they indicated that G.W. told them that he received hickeys from “a girl in
Tacoma.” His motion establishes that Major believes this second report
demonstrates that G.W. was sexually involved with at least one other person
during the time of the allegations as to Major and that Washington was not a
credible witness, having drafted inconsistent reports. In support of this assertion
as to a second report by Washington, Major included a letter from the SPD stating
that the department had a “responsive” record to Major’s public disclosure request.
However, Major failed to attach the actual document SPD determined was
responsive, despite this court permitting an extension of time in part for Major to
submit that record.
Major’s second allegation is that the State disclosed an altered audio and
transcript of a police interview with G.W., alleging that he received a different
transcript in response to his public disclosure request. Again, Major fails to meet
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his evidentiary burden of showing how the transcript is different; providing only his
own bare conclusory allegations that the transcripts are inconsistent. Major’s bald
assertions of fabricated evidence are not sufficient to demonstrate an entitlement
to a reference hearing. Accordingly, we decline to remand the matter to the
superior court and will instead reach the merits of Major’s petition.2
II. Review of the Merits of the Personal Restraint Petition
To succeed in a personal restraint petition, a petitioner must show a claimed
constitutional error caused substantial and actual prejudice by a preponderance of
the evidence. Id. at 884; In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 792
P.2d 506 (1990). “Unless a petitioner can make a prima facie showing of such
prejudice, his petition will be dismissed.” Cook, 114 Wn.2d at 810. Again, “[b]ald
assertions and conclusory allegations” are not sufficient to meet this burden. Rice,
118 Wn.2d at 886. Petitioners seeking collateral relief “are in a significantly
different situation than a person facing trial” and face a heavy burden. State v.
Riofta, 166 Wn.2d 358, 369, 209 P.3d 467 (2009) (citing Schlup v. Delo, 513 U.S.
298, 326 n.42, 115 S. Ct. 851 (1995)).
A. Alleged Discovery Violations
Major alleges that the prosecution wrongfully withheld favorable evidence
in violation of its duty under Brady v. Maryland3 by failing to disclose 1) a separate
report by Washington and 2) an un-altered police interview of the victim.
2 Major also asks that the matter be assigned to a different judge on remand. Because we reach the merits of his personal restraint petition, we need not address this request. 3 373 U.S. 83, 87, 83 S. Ct. 1194, 1197 (1963).
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Under Brady, a prosecutor’s failure to disclose evidence favorable to the
accused violates due process if that evidence is material to guilt or punishment.
Id. For a successful Brady claim, a defendant must show that the omission
deprived them of a fair trial. State v. Benn, 120 Wn.2d 631, 650, 845 P.2d 289
(1993) (citing United States v. Bagley, 473 U.S. 667, 675, 105 S. Ct. 3375 (1985)).
The defendant must show that the evidence puts “the whole case in such a
different light as to undermine confidence in the verdict,” and that in absence of
disclosure the defendant did not receive a “fair trial resulting in a verdict worthy of
confidence.” Strickler v. Greene, 527 U.S. 263, 289–90, 119 S. Ct. 1936 (1999);
see also In re Pers. Restraint of Delmarter, 124 Wn. App. 154, 167, 101 P.3d 111
(2004) (“prejudice occurs if there is a reasonable probability that . . . the result of
the proceeding would have been different.”).
First, Major alleges that Washington authored a second report that
contained information regarding an interview with G.W.’s parents that would
contradict Washington’s report which was disclosed in discovery, as well as trial
testimony from Washington, G.W., and G.W.’s mother. Major’s Brady claim suffers
from several fatal issues. Most critically, Major provides no evidence of a second
police report authored by Washington other than a letter from the SPD that only
states that it has “responsive records” to Major’s public records request and a
partial transcript of a defense interview where Washington stated his report
contained a statement about “a girl in Tacoma.” Major was able to question
Washington about this discrepancy during trial and use the inconsistent statements
as impeachment evidence. Washington admitted on the stand he had made a
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mistake, and Major thoroughly cross-examined Washington about the ability to
change or delete from reports at any time. Major also questioned G.W. at trial
about the girl in Tacoma and the romantic relationship that may have existed
between them.
Because of Major’s opportunity to cross-examine Washington and G.W.
about the “girl in Tacoma,” the discrepancies in Washington’s written statement
and testimony, and the ability to change police reports, Major fails to demonstrate
he was deprived of a fair trial by suppression of the evidence—if it existed in the
first place.
Likewise, Major fails to meet his evidentiary burden to show that the audio
and transcript of the police interview with G.W. was in fact altered. Further, he has
not demonstrated that omission of any such evidence related to the audio and
transcript deprived him of a fair trial.
B. Plea Negotiations and Brady Waiver
Major alleges in his motion for a new trial that the State improperly offered
to dismiss the case against him if he waived his right to favorable evidence under
Brady and frames this offer as a violation of his due process rights under the United
States and Washington State constitutions.
To succeed in a personal restraint petition, a petitioner must allege the
violation of a constitutional right and prejudice. Rice, 118 Wn.2d at 884. In United
States v. Ruiz, the United States Supreme Court held that Brady rights, like other
trial rights, may be waived in plea bargaining so long as the waiver is made
knowingly, intelligently, and with sufficient awareness. 536 U.S. 622, 628–29, 122
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S. Ct. 2450 (2002). A year later, our state Supreme Court held that “[t]he
theoretical basis for all plea bargaining is that defendants will agree to waive their
constitutional rights,” and a plea agreement contingent on the waiver of a
constitutional right “does not, by itself, violate due process.” State v. Moen, 150
Wn.2d 221, 230–31, 76 P.3d 721 (2003).
Major’s assertion that the prosecution offered to dismiss the charges in
exchange for a waiver of his Brady rights is supported only by his own affidavit and
a trial transcript wherein he informed the trial court of the offer. But even if the
prosecution had made a plea offer contingent on Major’s waiver of his Brady rights,
Moen holds that would not violate his constitutional rights.
C. The State’s Purported Use of False or Fabricated Evidence
Major next alleges that the State knowingly used false and/or fabricated
evidence to prosecute him without probable cause in violation of his due process
rights.
A conviction obtained through the use of false evidence, known to be false
by the state, violates the due process clause of the 14th Amendment of the United
States Constitution. Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173 (1959).
Likewise, when the State allows false evidence “to go uncorrected when it
appears,” the defendant’s due process rights are violated. Id. False evidence
includes evidence directly related to the defendant’s guilt and issues bearing on
credibility of witnesses. Id. (citing New York v. Savvides, 1 N.Y.2d 554, 557, 136
N.E.2d 853, 854–55 (1956)). However, “[m]ere inconsistency between witness’
testimony is not necessarily perjury, and not every contradiction is material.”
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United States v. Martin, 59 F.3d 767, 770 (8th Cir. 1995) (quoting United States v.
Nelson, 970 F.2d 439, 443 (8th Cir. 1992)).
In State v. Cohen, a prosecuting attorney advised a witness he was not
going to charge her with possession of marijuana found on her person “because
of the seriousness of the murder case and her apparent reluctance to testify.” 19
Wn. App. 600, 609, 576 P.2d 933 (1978). The court declined to reverse because
the defendant failed to demonstrate the testimony was sufficiently material, nor the
error sufficiently prejudicial. Id. at 612. A defendant is entitled to a new trial based
on false testimony if the uncorrected false testimony “could . . . in any reasonable
likelihood have affected the judgment of the jury.” Napue, 360 U.S. at 271.
Major avers that four separate pieces of false testimony were solicited or
left uncorrected by the State. First, that G.W.’s hickeys were caused by “a girl
down in Tacoma” and that “he did not have sex” with Major. Second, that
Washington prepared a second case investigation report summarizing statements
by G.W.’s parents that was inconsistent with the report Major received in discovery.
Third, that Washington falsely testified at a suppression hearing that he did not
wrongfully search Major’s mailbox. Fourth, that property manager Allyson Hubner
falsely testified she had personally met Major in October 2015 and made an in-
court identification based on that alleged falsehood.
First, Major previously brought an allegation of false testimony by G.W. to
the court’s attention during trial. The trial court found no evidence of intentionally
sworn perjury. Additionally, Major had an opportunity to cross-examine G.W.
about the inconsistent statements and introduced them into evidence. Major
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brings forward no other evidence that G.W.’s inconsistent statements were known
to be false testimony solicited or uncorrected by the State. Rather, the record
before us demonstrates mere inconsistencies that Major was able to use in
impeaching G.W.’s credibility.
Likewise, Major had an opportunity to question Washington regarding his
inconsistent statements about “a girl in Tacoma” which Major asserts were missing
from Washington’s case investigation report. At trial, Washington admitted he was
mistaken about the summary referencing “a girl in Tacoma” and misspoke during
the defense interview. Washington explained that he was mistaken about the word
“Tacoma.” Major was able to impeach Washington’s credibility based on that
mistake and question him about the ability to change case investigation reports at
any time. As evidence that this testimony was false and Washington’s case
investigation report was fabricated, Major submitted only the letter from the SPD
stating there is a “Case Investigation Report” that it determined was responsive to
Major’s public disclosure request. Again, Major did not submit the actual document
itself to the trial court, or provide it to this court in the record on appeal, despite this
court granting an extension of time for Major to gain access to the report by paying
the public disclosure fee. This is not sufficient to demonstrate the State knowingly
solicited or failed to correct false testimony. Even if Major could prove the
testimony was false, he does not show that the testimony had a reasonable
likelihood of impacting the outcome of the trial, particularly after his impeachment
of Washington on this issue.
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Additionally, Major does not establish that Washington testified falsely
during the hearing on defense motion to suppress under CrR 3.6. Again, he relies
only on his own bare allegations that Washington’s testimony was false and that
the State knew it was false.
Finally, Major alleges that Hubner falsely testified to personally meeting
Major in October 2015. Hubner, the property manager where Major resided in
October 2015, testified that she met him outside the property and came into
contact with him a handful of times around that same time. On that basis, the court
allowed Hubner to make an in-court identification of the defendant. Again, Major’s
only evidence that Hubner testified falsely is his own affidavit stating he had never
met her. This is insufficient to demonstrate that the State knowingly solicited or
failed to correct false testimony by Hubner.
Major fails to meet his burden to demonstrate that any of the four pieces of
testimony were false or that the State knew the testimony was false. “[B]ald
assertions and conclusory allegations” are insufficient to demonstrate an
entitlement to relief in a personal restraint petition. Rice, 118 Wn.2d 886. Major’s
own affidavits and assertions of false and fabricated evidence are not sufficient to
establish an entitlement to relief on this ground.
III. Statement of Additional Grounds for Review
Finally, Major provided a Statement of Additional Grounds for Review (SAG)
and asserts that the State mischaracterized photos of Major as child pornography
and delayed disclosure of the photographs, depriving him of a meaningful
opportunity to investigate the images, object to their use, or effectively cross-
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examine witnesses about the images. Major alleges that this constitutes
prosecutorial misconduct.
As a general rule, in order to preserve error, a party “must call the alleged
error to the court’s attention at a time when the error can be corrected.” State v.
Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975); see also State v. Mounsey, 31
Wn. App. 511, 525, 643 P.2d 892 (1982) (holding that the defendant waived his
right to objection on appeal because he failed to object at trial to evidence admitted
in violation of CrR 4.7). A party’s failure to raise an issue at trial waives the issue
on appeal “unless the party can show the presence of a ‘manifest error affecting a
constitutional right.’” State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011)
(internal quotation marks omitted) (quoting State v. Kirwin, 165 Wn.2d 818, 823,
203 P.3d 1044 (2009)). An attorney cannot remain silent during trial and later raise
objections on appeal—“neither may a pro se defendant.” State v. Hoff, 31 Wn.
App. 809, 812, 644 P.2d 763 (1982). “In short, a pro se defendant is simply not
entitled to special consideration.” Id.
On December 4, 2018, prior to the jury entering the courtroom for the day,
the State provided Major with Exhibit 9, a summary of the extraction report for texts
between G.W. and Major. The State informed the court that the exhibit included
approximately twelve images, noting its belief that only three of those images
constituted child pornography.4 Major stated that he had not reviewed any of the
4Under State v. Boyd, the State may reasonably restrict the dissemination of evidence which may constitute child pornography without conflicting with its disclosure obligations under CrR 4.7. 160 Wn.2d 424, 158 P.3d 54 (2007).
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twelve images, and requested that the State make them available prior to the
exhibit’s admission.
The State responded that several months ago the prosecution had informed
Major he would have to arrange with the SPD to view the images because they
were all in the exclusive custody of law enforcement. The State then agreed to
make the images available for Major to view during the morning recess. The trial
court took a morning recess for Major to view the images and made it clear that
the court would also make the images available for a longer period of time during
a later recess. During witness testimony, the images from Exhibit 9 were
introduced and Major had five separate opportunities to object to the admission of
each image. Each time, Major stated he had no objection. Additionally, Major
actually used the exhibits himself in his cross-examination of Washington.
Major’s contention in his SAG that the entirety of the twelve images were
wrongfully characterized as child pornography is clearly contradicted by the record
before us, where the State explicitly stated that “only three” out of twelve images
constituted child pornography. Major additionally had occasion months before trial,
and during trial, to view the images and object to their use or admission. Further,
despite his claims to the contrary, Major had five separate opportunities to object
to the use of the images and expressly stated each time that he did not object. In
his SAG, he claims that he was so disturbed by this perceived discovery irregularity
that he “repeatedly stated ‘no’ as in ‘no these cannot be photographs of me,’” but
admits that “only the words ‘no’ came from [his] mouth.” Regardless of what his
internal thought process may have been at trial, the record is clear that the court
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properly provided him an opportunity to object to each of the photographs he now
challenges in this petition. The trial transcript demonstrates only that his
unequivocal response each time was “no.” In his own cross-examination, he then
proceeded to make use of the same images he now claims prejudiced him at trial.
As such, Major has waived this issue.
This court has three options when reviewing a personal restraint petition: 1)
dismiss the petition; 2) transfer to a superior court for a reference hearing or
determination on the merits; 3) grant relief. In re Pers. Restraint of Yates, 177
Wn.2d 1, 17, 296 P.3d 872 (2013). “Dismissal is necessary where a petitioner fails
to make a prima facie showing of actual prejudice for alleged constitutional errors.”
In re Pers. Restraint of Yates, 177 Wn.2d 1, 17–18, 296 P.3d 872 (2013) (citing
Cook, 114 Wn.2d at 813–14).
Here, Major fails to meet his evidentiary burden in each of the alleged
constitutional errors, relying only on his own affidavits, bald assertions and
conclusory allegations. Because Major has not made a prima facie showing of
actual prejudice, his personal restraint petition is denied.
WE CONCUR:
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