Personal Restraint Petition of Jordan Robert Wekenborg-Garcia

• Court: Court of Appeals of Washington
• Decided: May 14, 2024
• Docket: 57817-4
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

May 14, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Personal Restraint of No. 57817-4-II

JORDAN ROBERT WEKENBORG- UNPUBLISHED OPINION GARCIA,

Petitioner.

GLASGOW, J.—Jordan Robert Wekenborg-Garcia seeks relief from personal restraint

imposed following his plea of guilty for three counts of first degree rape of a child in Pacific

County Superior Court cause number 22-1-00004-25. In this petition, Wekenborg-Garcia argues

that he received ineffective assistance of counsel for a variety of reasons, that the trial court

imposed excessive bail and violated his right to counsel at the bail hearing, and that the trial court

exceeded its jurisdiction by imposing a maximum term of life. We deny the petition.

FACTS

In early 2022, 10-year-old TD revealed to friends that her mother’s fiancé, Wekenborg-

Garcia, had been raping her since she was 4 years old. The allegation was reported to law

enforcement who interviewed Wekenborg-Garcia. After being read his Miranda 1 rights,

Wekenborg-Garcia admitted to 6-7 incidents involving oral intercourse and digital penetration

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 57817-4-II

with TD. Following the interview, law enforcement arrested Wekenborg-Garcia for 6 counts of

first degree rape of a child.

The State ultimately charged Wekenborg-Garcia with 3 counts of first degree rape of a

child (domestic violence). At his first pretrial appearance, the trial court appointed counsel and set

bail at $1,000,000, as requested by the State. Appointed counsel was not present for that hearing.

The following month, Wekenborg-Garcia entered guilty pleas to all three charges. As part of the

plea negotiations, the State recommended the low-end of the standard sentencing range—162

months.

At sentencing, Wekenborg-Garcia’s defense counsel explained that the speedy resolution

of the case was driven by Wekenborg-Garcia’s desire to “take care of it early.” Verbatim Rep. of

Proc. (VRP) at 25. Counsel informed the court, “This is the exact case where a plea of guilty is

really a benefit to actually everybody,” noting how traumatic testifying at trial could be for child

sex victims. VRP at 25-26. The trial court imposed an indeterminate sentence of 162 months to

life in prison, the low end of the standard sentence range.

Wekenborg-Garcia filed this timely personal restraint petition (PRP) alleging that he

received ineffective assistance of counsel, the trial court imposed excessive bail and denied his

right to counsel at the bail hearing, and his sentence exceeded the trial court’s authority. After

initial consideration, this court determined that Wekenborg-Garcia’s petition was not frivolous,

appointed counsel, and requested additional briefing.

2 57817-4-II

ANALYSIS

I. PERSONAL RESTRAINT PETITION STANDARDS

The petitioner carries the initial burden to support their PRP. RAP 16.4; In re Pers.

Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). A petitioner must prove either a

constitutional error that results in actual and substantial prejudice or a nonconstitutional error that

constitutes a fundamental defect which inherently results in a complete miscarriage of justice. In

re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383 P.3d 454 (2016). The petitioner must

prove the error by a preponderance of the evidence. Lord, 152 Wn.2d at 188. In addition, the

petitioner must support the petition with facts or evidence and may not rely solely on conclusory

allegations. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013); see RAP

16.7(a)(2)(i).

We have three options when reviewing a PRP. We can (1) dismiss the petition, (2) grant

the petition, or (3) transfer the petition to the trial court for either a full determination on the merits

or a reference hearing. Yates, 177 Wn.2d at 17. The threshold question for an alleged constitutional

violation is whether the petitioner has made a prima facie case that a constitutional violation

occurred and that it resulted in actual prejudice. Id. at 17–18. If a petitioner fails to make a prima

facie showing of actual prejudice, we will dismiss the claim. Id. at 17. If the petitioner establishes

that a constitutional violation and actual prejudice occurred, we will grant the petition. Id. at 18. If

a petitioner makes a prima facie showing but we cannot determine the petition’s merits on the

record, we will remand for a reference hearing. Id.

3 57817-4-II

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Wekenborg-Garcia argues that his trial counsel rendered ineffective assistance by failing

to investigate potential witnesses, defenses, or mitigating sentencing factors; by failing to inform

Wekenborg-Garcia of his legal options or adequately discuss the case with him; by failing to

challenge the admissibility of his confessions; and by failing to request a lower bail amount. We

hold that Wekenborg-Garcia fails to show that any deficient performance by his trial counsel was

prejudicial.

To prevail on an ineffective assistance of counsel claim, Wekenborg-Garcia must show

that trial counsel’s performance was deficient and that Wekenborg-Garcia was prejudiced by the

deficient performance. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012)

(citing Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A

petitioner demonstrates deficient performance by showing that defense counsel’s conduct fell

below an objective standard of reasonableness. In re Pers. Restraint of Rice, 118 Wn.2d 876, 888,

828 P.2d 1086 (1992). To demonstrate prejudice, Wekenborg-Garcia must show a “‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Crace, 174 Wn.2d at 840 (quoting Strickland, 466 U.S. at 694). “[I]f a personal

restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily

met his burden to show actual and substantial prejudice” under the standard for PRPs. Id. at 846-

47.

A defense attorney’s failure to investigate, when combined with other deficiencies, can

amount to ineffective assistance of counsel. State v. A.N.J., 168 Wn.2d 91, 110, 225 P.3d 956

4 57817-4-II

(2010). The obligation to conduct a reasonable investigation relates to trial counsel’s obligation to

inform his or her client of their options and potential outcomes. Counsel has a duty to assist a

defendant in evaluating a plea offer. Id. at 111. This duty includes assisting the defendant in

making an informed decision about whether to plead guilty or to proceed to trial. Id. “[A]t the very

least, counsel must reasonably evaluate the evidence against the accused and the likelihood of a

conviction if the case proceeds to trial so that the defendant can make a meaningful decision as to

whether or not to plead guilty.” Id. at 111-12.

Here, Wekenborg-Garcia asserts that his trial counsel met with him an average of once per

month and failed to meaningfully discuss the case or his legal options. He also asserts that he

informed his counsel about “a multitude of mitigating evidence as well as a number of character

witnesses” who could have been helpful, but trial counsel did not follow up. Pers. Restraint Pet. at

11. But Wekenborg-Garcia does not explain what the mitigating evidence was, nor does he explain

what his proposed witnesses would have said.

Even assuming without deciding that counsel’s performance was deficient, Wekenborg-

Garcia fails to show that he was prejudiced by that performance. Whether counsel’s failure to

investigate prejudiced the petitioner depends on the likelihood that the evidence would have led

counsel to change his plea. In re Pers. Restraint of Clements, 125 Wn. App. 634, 646, 106 P.3d

244 (2005). That assessment depends on whether the evidence likely would have changed the

outcome of a trial. Id. A bare assertion that the petitioner would not have pleaded guilty but for the

alleged deficiency is insufficient. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 254, 172 P.3d

335 (2007).

5 57817-4-II

Wekenborg-Garcia does not identify with any specificity what evidence could have been

produced in his defense with a more robust investigation before his plea, nor does he show that

such evidence would likely have changed counsel’s plea recommendation. Clements, 125 Wn.

App. at 646. Nor does Wekenborg-Garcia state with particularity that he would not have pleaded

guilty had trial counsel’s performance been different or had he been better informed. Elmore, 162

Wn.2d at 254.

Wekenborg-Garcia does not contest the reasons he originally gave for his quick decision

to plead guilty. Wekenborg-Garcia never denied the allegations. In fact, he admitted to engaging

in sexual intercourse with TD 6-7 times.2 At sentencing, his trial counsel explained that the speedy

resolution of the case was driven by Wekenborg-Garcia’s desire to take responsibility and to spare

his victim the burden of testifying at trial. And in return, Wekenborg-Garcia received a favorable

resolution—3 counts rather than 6 or 7, and a joint recommendation of a low-end standard

sentence.

On this record, Wekenborg-Garcia fails to show that he is entitled to collateral relief

based on ineffective assistance of counsel.3

III. BAIL HEARING

A. CrR 3.2 & Excessive Bail

2 Although Wekenborg-Garcia alleges that his trial counsel should have investigated the admissibility of his confession, he does refute that he received his Miranda warnings before the interview or identify any other deficiency that would prevent the confession from being admissible at trial. 3 On August 11, 2023, the State moved to transfer this petition to Pacific County Superior Court for a reference hearing under RAP 16.12. We initially responded that we would consider that motion upon consideration of the PRP. The State does not concede in its briefing that a reference hearing is necessary. We now deny the State’s motion to transfer for a reference hearing.

6 57817-4-II

Wekenborg-Garcia also argues that the trial court violated CrR 3.2 by failing to consider

the factors required to overcome the presumption of release on personal recognizance and by

imposing excessive bail. This issue is moot.

The issues related to pretrial bail and release are moot because we can no longer provide

effective relief postconviction. State v. Ingram, 9 Wn. App. 2d 482, 490, 447 P.3d 192 (2019).

Wekenborg-Garcia does not contend that these issues are of continuing and substantial public

interest such that we should consider them in spite of their mootness. Id. These claims do not

present an opportunity for us to issue new guidance on these issues and, thus, given that we cannot

provide effective relief, we decline to further review his bail related arguments.

B. Right to Counsel

Wekenborg-Garcia also argues that the trial court violated his constitutional right to

counsel at the bail hearing. The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution both guarantee criminal defendants the right to counsel.

State v. Charlton, 2 Wn.3d 421, 423-24, 538 P.3d 1289 (2023). This constitutional right attaches

at a defendant’s “first appearance before a judicial officer” where “a defendant is told of the formal

accusation against him and restrictions are imposed on his liberty.” Rothgery v. Gillespie County,

554 U.S. 191, 194, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008).

“Denial of counsel at a critical stage of prosecution is structural error that requires

automatic reversal.” Charlton, 2 Wn.3d at 427. A critical stage is one where “‘a defendant's rights

may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case

is otherwise substantially affected.’” State v. Heddick, 166 Wn.2d 898, 910, 215 P.3d 201 (2009)

(quoting State v. Agtuca, 12 Wn. App. 402, 404, 529 P.2d 1159 (1974)). In Charlton, the

7 57817-4-II

Washington Supreme Court held that a pretrial hearing at which bail was set was not a critical

stage of litigation such that the denial of counsel was structural error requiring reversal. 2 Wn.3d

at 427. Likewise, here, nothing happened at Wekenborg-Garcia’s bail hearing that had any kind of

demonstrable effect on the outcome of his case, nor can he establish anything that happened that

affected his judgment and sentence. Id. Accordingly, counsel’s absence at the hearing did not

amount to structural error requiring reversal.

Nonetheless, Wekenborg-Garcia’s constitutional right to counsel had attached at the bail

hearing. Thus, the absence of his counsel violated the Sixth Amendment, and constitutional

harmless error applies. Id. at 428. “When constitutional harmless error applies, we must reverse

unless we are persuaded, beyond a reasonable doubt,” that the error did not affect the outcome. Id.

at 428-29. Nothing in the record suggests that counsel’s absence at the bail hearing affected the

outcome of the case in any way. Accordingly, we hold that while the denial of his counsel at the

hearing was constitutional error, any error was harmless.

IV. STATUTORY MAXIMUM

Wekenborg-Garcia also argues that the superior court exceeded its jurisdiction by imposing

an indeterminate sentence with a maximum term of life. Jurisdiction refers to personal or subject

matter jurisdiction. In re Pers. Restraint of Runyan, 121 Wn.2d 432, 441 n.5, 853 P.2d 424 (1993).

“A court has ‘subject matter jurisdiction where the court has the authority to adjudicate the type of

controversy in the action, and . . . it does not lose subject matter jurisdiction merely by interpreting

the law erroneously.’” In re Pers. Restraint of Vehlewald, 92 Wn. App. 197, 201-02, 963 P.2d 903

(1998) (alteration in original) (quoting State v. Moen, 129 Wn.2d 535, 545, 919 P.2d 69 (1996)).

8 57817-4-II

RCW 9.94A.507 governs the sentences of certain sex offenders, including those convicted

of first degree child rape. Offenders subject to RCW 9.94A.507 are sentenced to indeterminate

sentences within the mandatory minimum sentence and the statutory maximum sentence for the

crime. RCW 9.94A.507(3)(a)-(b). RCW 9A.20.021(1)(a) provides the maximum sentences for

crimes and establishes that the maximum term of confinement for a class A felony is life.

Washington courts have consistently held that the “statutory maximum” means the

maximum sentence under RCW 9A.20.021 and not the high end of the standard range under the

Sentencing Reform Act of 1981 (SRA), ch. 9A.94 RCW. In re Pers. Restraint of Sargent, 20 Wn.

App. 2d 186, 195, 499 P.3d 241 (2021); see, e.g., State v. Bobenhouse, 143 Wn. App. 315, 331,

177 P.3d 209 (2008) (statutory maximum for first degree child rape is life) (citing RCW

9A.20.021(1)(a)); State v. Adams, 138 Wn. App. 36, 51, 155 P.3d 989 (2007) (statutory maximum

for class A felony is life imprisonment) (citing RCW 9A.20.021(1)(a)).

Despite Wekenborg-Garcia’s assertion that the trial court misinterpreted the definition of

statutory maximum, the relevant statues authorized the superior court to impose an indeterminate

sentence with a maximum term of life. Accordingly, the trial court did not exceed its jurisdiction

in imposing the sentence.

CONCLUSION

We deny Wekenborg-Garcia’s petition.

9 57817-4-II

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.

Glasgow, J. We concur:

Maxa, J.

Veljacic, A.C.J.