Filed Washington State Court of Appeals Division Two
February 18, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 60387-0-II
MICHAEL DENNIS McMAHON, UNPUBLISHED OPINION
Petitioner.
CHE, J. — Michael Dennis McMahon seeks relief from personal restraint imposed after
he was convicted of three counts of first degree rape of a child, two counts of first degree child
molestation, and one count of attempted second degree rape of a child. In this petition,
McMahon argues that he received ineffective assistance of counsel from trial counsel’s alleged
failure to discuss a plea offer or inform McMahon of the risks and consequences of proceeding to
trial. We deny McMahon’s petition.
FACTS
I. BACKGROUND
In 2015, KM reported to police that McMahon, her stepfather, raped and molested her
numerous times in the late 1990s and early 2000s. State v. McMahon, No. 56660-5-II, slip op.
at 1 (Wash. Ct. App., Feb. 7, 2023) (unpublished) https://www.courts.wa.gov/opinions/
pdf/D2%2056660-5-II%20Unpublished%20Opinion.pdf. In February 2018, the State charged
McMahon with three counts of first degree rape of a child, three counts of first degree child
molestation, and one count of attempted first degree rape of a child. No. 60387-0-II
The case proceeded to trial in 2021. McMahon testified at trial, denying all of KM’s
allegations. The State proposed, and the court gave, the attempted second degree rape of a child
offense as a lesser included offense jury instruction to attempted first degree rape of a child. A
jury convicted McMahon of three counts of first degree rape of a child, two counts of first degree
child molestation, and one count of attempted second degree rape of a child.1 For each
conviction, the jury entered special verdicts finding that McMahon abused a position of trust and
that the crimes were part of an ongoing pattern of abuse. The jury also found that KM and
McMahon were members of the same family or household.
At sentencing, McMahon made a statement maintaining that he was innocent. The trial
court imposed determinate sentences for most of the convictions, as required by the law that
applied when those crimes occurred. The controlling sentence was for the first degree rape of a
child convictions: the trial court imposed sentences of 240 months for each of those convictions.
The date range for the attempted second degree rape of a child was from 2001 to 2003, after the
creation of the Indeterminate Sentencing Review Board (ISRB), so for that conviction, the trial
court imposed an indeterminate sentence of 157.5 months to life.
McMahon appealed his convictions, and the State conceded an error in the seriousness
level of McMahon’s first degree rape of a child convictions. McMahon, No. 56660-5-II, slip op.
at 10. This court remanded for resentencing with the correct seriousness level. Id., slip op. at
10-11.
The trial court resentenced McMahon on January 12, 2024. With the corrected
seriousness level, McMahon faced standard sentencing ranges of 210 to 280 months for the first
1 The jury acquitted McMahon of one count of first degree child molestation.
2 No. 60387-0-II
degree rape of a child convictions, 149 to 198 months for the first degree child molestation
convictions, and a minimum term of 157.5 months to 210 months and a maximum term of life
for the attempted second degree rape of a child conviction.
At resentencing, McMahon again made a statement maintaining that he was innocent, as
he had throughout all prior proceedings. The trial court imposed sentences of 210 months on
each first degree rape of a child convictions, 198 months on both first degree child molestation
convictions, and an indeterminate sentence of 210 months to life for the attempted second degree
rape of a child conviction, and ordered that the sentences be served concurrently. PRP, Ex. A at
6-7, PDF at 51-52.
II. PERSONAL RESTRAINT PETITION
A. McMahon’s Declaration
On January 7, 2025, McMahon filed this timely personal restraint petition (PRP). The
petition included McMahon’s declaration, which set forth numerous allegations about
McMahon’s trial counsel’s failure to explain the risks of trial or consequences of conviction.
Specifically, McMahon asserts that trial counsel never discussed the maximum sentence or
standard sentencing range for the charges, and never explained aggravating factors,
indeterminate sentencing, or community custody.
McMahon also claims that he learned about a plea offer extended by the State in the
summer of 2018, and discussed the offer with counsel, only after the plea offer had expired on
August 3. The State had issued the offer “in hopes that the Defendant will accept responsibility
at the outset of the case.” PRP, Ex. E, PDF at 93. The offer would have required McMahon to
plead guilty to one count of attempted first degree child molestation, which had a standard range
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of 38.25 to 51 months, among other terms, and allowed him to request a special sex offender
sentencing alternative (SSOSA). The State could oppose the SSOSA and argue for any sentence
within the standard range. If the court granted a SSOSA, McMahon would stipulate to a
suspended minimum sentence of 51 months; and as a condition of the suspended sentence,
McMahon would stipulate to serving 364 days in jail.
The plea offer inaccurately stated that the charges McMahon faced if he went to trial
were all subject to indeterminate sentences with maximum terms of life. And it incorrectly
stated that the standard sentencing ranges for the first degree rape of a child charges were all 240
to 318 months, reflecting the erroneous seriousness level that was corrected on appeal. The plea
offer also stated that if McMahon proceeded to trial, the State would seek an exceptional upward
sentence of greater than 318 months. Lastly, it prohibited McMahon from entering any guilty
plea statement that did not admit relevant conduct, unless the assigned prosecutor consented to
such a guilty plea statement.
McMahon asserts that trial counsel described the offer as “a ‘year in jail’ and ‘some
classes’” but did not further explain SSOSA sentences. PRP, McMahon Decl. at 3, PDF at 38.
McMahon also submits that he sent an email to trial counsel in late 2020, stating he was
willing to plead guilty as long as he did not have “to do any jail or prison time.” PRP, McMahon
Decl. at 4, PDF at 39. The email explained that McMahon was considering pleading guilty only
“[a]fter being persecuted for two years, and enduring a major surgery and its aftermath” as well
as the COVID-19 pandemic and 2020 presidential election. PRP, Ex. G, PDF at 106. McMahon
also said in the email that he was no longer concerned about the job implications of having a
felony on his record or the loss of his gun rights because he was permanently disabled due to his
4 No. 60387-0-II
health conditions. PRP, Ex. G, PDF at 106. But McMahon remained insistent that he “need[ed]
to avoid Jail/Prison at ALL cost,” both because he did not believe he would survive confinement,
and because “my Social Security disability that my family lives on will be lost if I am
incarcerated.” PRP, Ex. G, PDF at 106.
In his declaration, McMahon states, “At the time I sent that email, however, I was simply
not aware of what prison sentence I might expect to face if I was convicted at trial.” PRP,
McMahon Decl. at 4, PDF at 39. “If I knew the standard range sentence, my attitude about an
acceptable consequence for pleading guilty would have been much different, and I would have
been much more inclined to resolve my case through a negotiated plea bargain even if it involved
a substantial jail or prison sentence.” PRP, McMahon Decl. at 4, PDF at 39.
Paragraphs 20 and 21 of McMahon’s declaration included extensive claims:
20. I acknowledge that during my trial, I testified and denied that I committed any of the charged offenses. That decision, however, was distinct from my history of and my experience managing risk. I have no doubt that I was prepared to engage in plea negotiations and plead guilty if I had been properly informed of the penalties of being convicted at trial. If the State’s offer of pleading guilty to one count of Attempted Child Molestation in the First Degree was the best and final offer that the State was willing to make, I would have accepted that plea bargain.
21. The reasons that I did not plead guilty include the following: a. I did not know the maximum penalty for the offense, nor did I understand the sentencing range for those offenses. b. I was never informed of what indeterminate sentencing was or how it might affect me. c. I did not fully understand the terms of the plea bargain, other than the idea that it carried some amount of jail time, the loss of my rights, and sex offender registration. d. [Trial counsel] told me that the State’s plea offer had already expired by the time we had any substantive communication about it. e. [Trial counsel] was constantly assuring me that I did not need to worry about the charges, and that I should have faith.
PRP, McMahon Decl. at 6-7, PDF at 41-42.
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B. Trial Counsel’s Declaration
In response, the State submitted a declaration from McMahon’s trial counsel. To begin,
trial counsel asserts that, “[w]ithout exception” it was his regular practice to convey all
settlement offers and risks from trial. Decl. of Couns. at 1-2. Counsel states that he is
“reasonably sure” he explained the maximum sentences to McMahon but admits that he may not
have explained the standard sentencing ranges for each charge. Decl. of Couns. at 2. Counsel
also contends that he told McMahon that he was charged with Class A felonies “that carried the
potential of a maximum sentence of life in prison,” and also discussed the impact of aggravating
factors. Decl. of Couns. at 5.
In particular, counsel states, “I am reasonably certain that I discussed with Mr. McMahon
on multiple occasions that he faced a very long prison sentence if [he] proceeded to trial and was
convicted of any, or some, of the charges.” Decl. of Couns. at 4. “I may not have provided to
him an exact number of months or years that he faced in confinement, but this was due to the
numerosity of the charges, and the possibility of a split verdict.” Decl. of Couns. at 4. “Our
discussions, the seriousness of the charges, and the offer of settlement, which I shared with him,
made clear that a conviction for some of the offenses for which he was charged would entail a
significantly long prison sentence.” Decl. of Couns. at 4. Trial counsel acknowledges that he
did not discuss indeterminate sentencing with McMahon pretrial because that did not become an
issue until midtrial, when the State proposed a lesser included jury instruction for the attempted
first degree rape of a child charge.2
2 This midtrial development was the subject of a postconviction motion to arrest judgment for the attempted second degree rape of a child conviction, where trial counsel argued that McMahon
6 No. 60387-0-II
Trial counsel also explains that he convinced the State to extend the summer 2018 plea
offer deadline to the end of August, that he spoke with McMahon about the case and sent a copy
of the settlement offer to McMahon in August before the extended deadline, and that McMahon
knew about the extension.3 In other words, even if McMahon received the offer after the original
expiration date, counsel had negotiated an extension that gave McMahon time to consider the
offer after discussing it with counsel.
Counsel insists that he “would have pointed out that the ‘year in jail’ was only possible if
[McMahon] received a SSOSA sentence,” the probability of which was “very slim given that[]
(1) the prosecutor and victim opposed Mr. McMahon receiving a SSOSA sentence; and (2) he
was denying any illegal, sexual contact with the victim.” Decl. of Couns. at 3; App. A. Trial
counsel attaches a July 2018 letter where he told McMahon, “Enclosed is the prosecutor’s offer
to settle the case against you. . . . Given our previous discussions, I assume you are not
interested in settlement in this case and only want to proceed to trial. If I am wrong about that,
please let me know as soon as possible.” Decl. of Couns., App. A. Trial counsel also attaches an
August 16, 2018, letter again enclosing the plea offer.
Finally, trial counsel responded to McMahon’s claims that he would have pleaded guilty
if he were better informed:
In response to ¶ 20 of Mr. McMahon’s declaration: That Mr. McMahon—at any point prior to being convicted at trial—would have pleaded guilty pursuant to the offer of settlement is incompatible with his position throughout his case that he not
had no notice that he was subject to a possible indeterminate sentence. The trial court denied the motion to arrest judgment at sentencing. 3 Trial counsel sent the State’s settlement offer twice to McMahon, but trial counsel did not know if McMahon received the first one sent in July 2018.
7 No. 60387-0-II
serve any time in jail or prison and with his position that he was totally innocent of any and all of the crimes charged.
In response to ¶ 21 of Mr. McMahon’s declaration: I am reasonably sure that (1) Mr. McMahon had a copy of the settlement offer before the offer expired; (2) we had a substantive discussion regarding the terms of the settlement offer before it expired; and (3) the legal advice and counsel I provided regarding the settlement offer, and his case, was far more substantive and detailed than offering assurances to Mr. McMahon that he “did not need to worry” and that he “should have faith.”
Decl. of Couns. at 5.
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL
McMahon argues that he received ineffective assistance of counsel because he did not
receive adequate communication about the plea offer (or inaccuracies therein) and was not
properly advised about the consequences of trial or conviction. McMahon insists that he would
have accepted the plea offer if he were adequately advised about the offer in contrast to the
consequences of being convicted at trial.
The State responds that trial counsel did not perform deficiently because McMahon
received the plea offer before it expired and the general terms were clear, including the total
amount of prison time the State would be seeking if McMahon were convicted. The State
concedes that the plea offer had inaccurate statements regarding “the seriousness level of the
completed rape counts and whether McMahon would be subject to an indeterminate sentence on
those same counts.” Br. of Resp’t at 11, n.3. The State also acknowledges that McMahon’s trial
counsel did not discuss indeterminate sentencing with McMahon. But the State emphasizes that
McMahon was consistently unwilling to entertain any plea deal that required him to serve any
time in confinement, and even a SSOSA sentence (which McMahon was unlikely to receive due
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to maintaining his innocence) would have required close to a year in jail. Accordingly, the State
contends that McMahon cannot demonstrate prejudice. We agree with the State.
A. Legal Principles
To receive relief through a timely personal restraint petition, a petitioner alleging a
constitutional error “‘must show by a preponderance of the evidence that the error has caused
him actual prejudice.’” In re Pers. Restraint of Meredith, 191 Wn.2d 300, 306, 422 P.3d 458
(2018) (quoting In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004)).
“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, 296
P.3d 872 (2013). “Mere ‘[b]ald assertions and conclusory allegations’ are insufficient to justify a
reference hearing.” Id. at 18 (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828
P.2d 1086 (1992)).
The Sixth Amendment to the United States Constitution and article I, section 22 to the
Washington Constitution both guarantee criminal defendants the right to effective assistance of
counsel. U.S. CONST. amend VI; WASH. CONST. art. I, § 22. This includes the right to have
counsel assist the defendant in making an informed decision about whether or not to plead guilty.
State v. Drath, 7 Wn. App. 2d 255, 267, 431 P.3d 1098 (2018).
In a PRP, as in a direct appeal, a petitioner alleging ineffective assistance of counsel must
“show that counsel’s performance was deficient and that the [petitioner] was prejudiced by the
deficient performance.” In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102
(2012). The failure to demonstrate either prong of the ineffective assistance of counsel test will
end this court’s inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018).
9 No. 60387-0-II
“Courts strongly presume that counsel’s representation was effective.” State v. Emery,
174 Wn.2d 741, 755, 278 P.3d 653 (2012). To perform effectively, “[c]ounsel must, at a
minimum, ‘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.’” State v. Estes, 188 Wn.2d 450, 464, 395 P.3d 1045 (2017)
(quoting State v. A.N.J., 168 Wn.2d 91, 111-12, 225 P.3d 956 (2010)). “In the plea bargaining
context, counsel must communicate actual offers, discuss tentative plea negotiations, and discuss
the strengths and weaknesses of the defendant’s case so that the defendant knows what to expect
and can make an informed decision on whether to plead guilty.” State v. Edwards, 171 Wn.
App. 379, 394, 294 P.3d 708 (2012).
To establish prejudice, a petitioner “must ‘prove that there is a reasonable probability
that, but for counsel’s deficient performance, the outcome of the proceedings would have been
different.’” Drath, 7 Wn. App. 2d at 267 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d
177 (2009)). “Prejudice exists when there is ‘a probability sufficient to undermine [the court’s]
confidence in the outcome.’” State v. Bertrand, 3 Wn.3d 116, 129, 546 P.3d 1020 (2024)
(quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674
(1984)). In the context of plea negotiations, McMahon must show that, but for counsel’s
deficient performance, there is a reasonable probability that the plea offer would have been
presented to the court, meaning “that [McMahon] would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening circumstances.” Lafler v.
Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398 (2012); see Drath, 7 Wn.
App. 2d at 267.
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“In evaluating claimed prejudice, we engage in an objective, rational person inquiry,
rather than a subjective analysis.” State v. Buckman, 190 Wn.2d 51, 66, 409 P.3d 193 (2018). A
petitioner’s bare allegation that they would have chosen to plead differently if they had known
all of the consequences of their decision is insufficient to establish prejudice. Id. at 62.
This court has held that an attorney rendered ineffective assistance by misinforming the
defendant that the maximum sentence was 20 months lower than the correct maximum term.
Drath, 7 Wn. App. 2d at 268. Because the defendant rejected four different plea offers, actively
discussed the offers with her attorneys before rejecting them, and testified that she would have
considered the final plea offer if she had known her true sentencing range, this court determined
that counsel’s deficient performance prejudiced the defendant. Id.
B. Analysis
To the extent that McMahon claims that he was not notified of the plea offer until after
the offer expired, the record contradicts McMahon’s claim. McMahon’s trial counsel’s
declaration attached copies of two letters, sent July 20, 2018, and August 16, 2018, each briefly
discussing the attached plea offer. Trial counsel also provided correspondence showing that the
State had agreed to extend the offer until the end of August 2018, and both McMahon and
counsel attest that they discussed the offer during the month of August after McMahon received
the State’s offer from trial counsel. Thus, the record shows McMahon was notified of the plea
offer before it expired.
The substance of the discussion about the plea offer remains in dispute. McMahon
claims that he was not aware of the prison sentence that he would face if convicted. McMahon
Decl. at 4. Trial counsel insists that, although he may not have specified the number of months
11 No. 60387-0-II
or years, he repeatedly told McMahon that “conviction for some of the offenses for which he was
charged would entail a significantly long prison sentence.” Decl. of Couns. at 4. Similarly,
McMahon and counsel dispute whether counsel informed McMahon of the maximum sentences.
Counsel admits that he did not “have a fulsome discussion” with McMahon about indeterminate
sentencing because counsel did not believe that the State had filed a charge that could require
indeterminate sentencing. Decl. of Couns. at 4.
Even assuming without deciding that counsel did not inform McMahon of the prison
sentence he would face if convicted, McMahon must still demonstrate prejudice. Thus, the
primary inquiry is whether there is a reasonable probability “that [McMahon] would have
accepted the plea and the prosecution would not have withdrawn it in light of intervening
circumstances.” Lafler, 566 U.S. at 164; Drath, 7 Wn. App. 2d at 267.
It is worth noting that the plea offer listed erroneous higher sentencing ranges for the
charges. This is distinguishable from Drath, where the defendant was erroneously informed that
the maximum term was 20 months lower than in actuality. 7 Wn. App. 2d at 268. Indeed, the
erroneously high standard sentencing ranges in McMahon’s plea offer should have given him an
increased incentive to plead guilty based on that information.
Next, the indeterminate sentencing issue did not arise until nearly three years after the
plea offer expired, when midtrial in July 2021, the State proposed a lesser included offense jury
instruction for the attempted first degree rape of a child charge. Thus, counsel’s lack of advice
regarding indeterminate sentencing is irrelevant because the plea offer had long expired by the
time that issue arose.
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Overall, the record establishes that McMahon objected to pleading guilty for numerous
reasons unconnected to the actual time served in confinement. He began considering pleading
guilty in 2020 only after health conditions and a major surgery mitigated his concerns about
having a felony record and losing his firearm rights. Even then, McMahon objected to any
confinement because incarceration would cut off his Social Security benefits. Importantly,
McMahon demonstrated this limited change of heart only in December 2020, well over two
years after the State’s plea offer expired.
Even accepting McMahon’s version of the conversations with trial counsel, nothing in
the record demonstrates that McMahon was ever willing to accept any plea offer that required
incarceration. Although the plea offer allowed McMahon to request a SSOSA, which the
prosecutor and victim opposed, a SSOSA would have required McMahon to stipulate to serving
nearly a year in confinement, admit relevant conduct for his crime, lose his right to possess
firearms, and register as a sex offender, among other things. These were all actions and
consequences that McMahon strongly opposed until health concerns changed his mind in late
2020.
The record does not support McMahon’s bald assertion that he would have accepted the
terms of the 2018 plea offer if he had been properly informed of the consequences of conviction
for the charges on which he went to trial. Yates, 177 Wn.2d at 18. Because the record does not
establish a reasonable probability that McMahon would have accepted the plea offer, McMahon
cannot establish prejudice. Drath, 7 Wn. App. 2d at 267. Accordingly, McMahon’s claim of
ineffective assistance of counsel fails.
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CONCLUSION
We deny McMahon’s petition.
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.
Che, J. We concur:
Maxa, P.J.
Lee, J.