Personal Restraint Petition Of Nathaniel W Mccasland

• Court: Court of Appeals of Washington
• Decided: June 9, 2025
• Docket: 87678-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint No. 87678-3-I of

JONATHAN MONTGOMERY, f/k/a DIVISION ONE NATHANIEL MCCASLAND, 1 UNPUBLISHED OPINION Petitioner.

MANN, J. — Jonathan Montgomery was convicted by a jury of child

molestation in the first degree. In this personal restraint petition (PRP),

Montgomery asks this court to vacate his conviction based on the introduction of

irrelevant, highly prejudicial evidence and ineffective assistance of counsel. We

disagree and deny the petition.

I

Montgomery was convicted by a jury of child molestation in the first

degree. State v. McCasland, No. 50370-1-II, slip op. at 1 (Wash. Ct. App. Feb.

26, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2050370-1-

II%20Unpublished%20Opinion.pdf. The underlying facts were articulated in the

opinion on Montgomery’s direct appeal:

1 At the time of his conviction, petitioner’s name was Nathaniel McCasland. Petitioner

has since legally changed his name to Jonathan Montgomery and provided this court with a copy of the order changing name. Accordingly, we have changed the caption to reflect the name change. No. 87678-3-I/2

At trial, witnesses testified to the following relevant facts. D.M. was in the bathroom with McCasland, and he was dressing her for the day when she saw McCasland’s “private parts.” D.M. could not open the door because McCasland closed and locked it. McCasland told her not to tell anyone what he did and that he was trying to keep what happened a secret. McCasland had her hold and stroke his privates. McCasland said, “ ‘This feels good.’ ” McCasland denied exposing himself to D.M. But McCasland admitted that he showed D.M. his privates after D.M. asked to see them. McCasland says he did not know why he let D.M. see his privates. He said that D.M. “reached out [and] grabbed [my] penis and pulled on it.” He “pulled [D.M.] away and told her not to [pull on his penis ‘b]ecause that's what we do to make it feel good.’ ”

McCasland, No. 50370-1-II, slip op. at 2 (alterations in original) (citations

omitted).

Montgomery testified in his own defense. Montgomery testified that he

“didn’t think there was no harm in showing” his penis to D.M. He further testified

that he thought it was okay to allow D.M. to see and touch his penis because he

was “a safe person for her.”

Following Montgomery’s direct examination, the State argued that

Montgomery had opened the door to evidence about the counseling he received

following his earlier Oregon conviction for sodomy in the first degree. After

hearing argument from both attorneys, the trial court ruled that any reference to

Montgomery’s prior conviction should be excluded but that the State could

question Montgomery about the counseling, as it was highly probative of intent

and sexual gratification. The State indicated that it would sanitize the question

by asking whether Montgomery had undergone counseling concerning

appropriate behaviors around children and if so, whether that counseling covered

sexual behavior around children. Montgomery was present for the argument,

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ruling, and discussion of the sanitized versions of the questions to be asked, and

was provided headphones for ease of listening.

On cross-examination, the State asked Montgomery if he thought that

allowing D.M. to touch his penis was appropriate. Montgomery answered that he

did not know whether it was appropriate. The prosecutor next questioned

Montgomery as follows:

Q. Okay. Now, Mr. McCasland, you had been to counseling related to appropriate behavior with children before, correct? A. No, that is not correct. Q. Mr. McCasland, you had been to counseling related to sexual behavior around children before; is that not correct? A. That is not specifically correct.

The court then excused the jury for the parties to address the issue.

After discussing the questioning with his client off the record, defense

counsel explained that at the time Montgomery attended counseling, there was

no component addressing children specifically. The prosecuting attorney and the

court then discussed how to best phrase the question to more accurately reflect

the program without eliciting the prior conviction. During this discussion,

Montgomery interjected, “I’m trying to answer it as honestly as possible without

negating my Fifth Amendment right to not choke my own dang self out.” The

court advised Montgomery, “You’ve waived your Fifth Amendment privilege by

taking the stand.” Defense counsel added, “Yeah, just so you know that.”

When cross-examination resumed, the prosecuting attorney rephrased his

question to Montgomery:

Q. Okay. But before this incident, before [D.M.] came to visit you, you had actually been to counseling specifically about appropriate sexual behaviors, correct?

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A. Yes, ma’am.

Defense counsel did not ask any questions about the counseling during redirect

examination.

Montgomery was convicted as charged. McCasland, No. 50370-1-II, slip

op. at 3. On appeal, Montgomery argued that the State had failed to present

sufficient evidence of sexual contact because the purpose of the touching was

not for sexual gratification. McCasland, No. 50370-1-II, slip op. at 7.

Montgomery also argued that a prior conviction from Oregon was not equivalent

to a Washington offense and that his persistent offender accountability act

(POAA) sentence violated his rights to equal protection, due process, and trial by

jury. McCasland, No. 50370-1-II, slip op. at 12. This court rejected all of

Montgomery’s arguments and affirmed his judgment and sentence. McCasland,

No. 50370-1-II, slip op. at 14. The Supreme Court denied Montgomery’s petition

for review.

Montgomery timely filed a PRP on June 22, 2020. After receiving multiple

extensions, Montgomery filed an amended PRP on April 19, 2023. Division Two

of this court dismissed as untimely all claims newly raised in the amended

petition, but referred the remainder for a decision on the merits.

II

A petitioner may request relief through a PRP when he or she is under an

unlawful restraint. RAP 16.4(a)-(c). “A personal restraint petitioner must prove

either a (1) constitutional error that results in actual and substantial prejudice or

(2) nonconstitutional error that ‘constitutes a fundamental defect which inherently

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results in a complete miscarriage of justice.’” In re Pers. Restraint of Monschke,

160 Wn. App. 479, 488, 251 P.3d 884 (2010) (quoting In re Pers. Restraint of

Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004)). The petitioner must prove

prejudice by a preponderance of the evidence. In re Pers. Restraint of Lord, 152

Wn.2d 182, 188, 94 P.3d 952 (2004). “The petitioner must support the petition

with facts or evidence and may not rely solely on conclusory allegations.”

Monschke, 160 Wn. App. at 488; RAP 16.7(a)(2)(i).

In evaluating PRPs, we can (1) dismiss the petition if the petitioner fails to

make a prima facie showing of constitutional or nonconstitutional error; (2)

remand for a full hearing if the petitioner makes a prima facie showing but the

merits of the contentions cannot be determined solely from the record; or (3)

grant the petition without further hearing if the petitioner has proven actual

prejudice or a miscarriage of justice. In re Pers. Restraint of Stockwell, 160 Wn.

App. 172, 176-77, 248 P.3d 576 (2011).

A

Montgomery first asserts that the trial court erred by allowing the

prosecutor to ask him if he had attended counseling about appropriate sexual

boundaries. We disagree.

“We review the trial court’s evidentiary rulings for abuse of discretion and

defer to those rulings unless no reasonable person would take the view adopted

by the trial court.” State v. Clark, 187 Wn.2d 641, 648, 389 P.3d 462 (2017).

“The trial judge has broad discretion in balancing the probative value of the

evidence against its possible prejudicial impact.” State v. Rice, 48 Wn. App. 7,

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11, 737 P.2d 726 (1987). Abuse of discretion is “discretion manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.”

Rice, 48 Wn. App. at 11.

Relevant evidence may not be admitted if its probative value is

substantially outweighed by the danger of unfair prejudice. ER 403. “A party

may open the door to otherwise inadmissible evidence by introducing evidence

that must be rebutted in order to preserve fairness and determine the truth.”

State v. Wafford, 199 Wn. App. 32, 36-37, 397 P.3d 926 (2017) (citing State v.

Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969)). Here, the trial court

determined that evidence of Montgomery’s prior conviction was too prejudicial to

be admitted. However, the court determined that evidence of the counseling

Montgomery underwent following his prior conviction was admissible after

Montgomery opened the door through his testimony on direct examination that

he didn’t see any harm in showing his penis to D.M. and that he allowed her to

touch it because he was a “safe person.” The trial court reasoned that the

evidence was relevant because “it’s probative of his intent and his knowledge on

how to behave around children,” and intent and sexual gratification were the

primary issues in the case. The court further reasoned that the probative value

of the evidence was not outweighed by the danger of unfair prejudice because

the proposed question was sanitized to remove any reference to the prior

conviction. The trial court’s well-reasoned decision to permit the question asked

does not constitute an abuse of discretion. 2

2 Montgomery also argues that the trial court erred by failing to instruct the jury to

disregard the first version of the counseling question posed by the prosecutor. Because the trial

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Montgomery nonetheless asserts that he did not open the door because

there was not enough information about the content of the counseling for the

court to correctly weigh the probative value of the evidence against its prejudicial

effect. The facts in this matter demonstrate otherwise. On direct examination,

Montgomery testified that he did not know whether it was normal to allow a child

to touch their father’s penis and believed it was okay to let D.M. do so because

he was “a safe person for her.” The State was entitled to rebut this testimony

with evidence that Montgomery’s explanation was not credible. Montgomery was

required to enroll in sex offender treatment following his conviction in Oregon for

sodomy in the first degree. The victim in that case was a young child related to

Montgomery. Furthermore, Montgomery himself was a minor at the time of the

offense and being ordered to attend sex offender treatment should have

educated him that it is not appropriate for children to engage in sexual touching.

The trial court acted well within its discretion to permit the State to ask

Montgomery if he had attended counseling regarding appropriate sexual

behavior.

B

Montgomery next asserts that he was deprived of effective assistance of

counsel because his trial attorney did not adequately advise him of the

consequences of testifying on his own behalf. We disagree.

The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution guarantee the right to effective

court did not abuse its discretion in permitting the prosecutor to ask Montgomery about the counseling he received, it also did not err by not instructing the jury to disregard the question.

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assistance of counsel. U.S. CONST. amend. VI; CONST. art. I § 22. To claim

ineffective assistance of counsel, the petitioner must show (1) that counsel’s

performance was deficient and (2) that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). When a petitioner complains of the ineffectiveness of

counsel’s assistance, they must show that counsel’s representation fell below an

objective standard of reasonableness. Strickland, 466 U.S. at 687-88.

Montgomery asserts that his trial counsel was ineffective because counsel

failed to adequately advise him of the consequences of choosing to testify on his

own behalf. The evidence Montgomery presents in support of this claim is only

counsel’s statement on the record “Yeah, just so you know that,” after the trial

court advised him that he had waived his Fifth Amendment privilege by testifying.

While this statement does not reflect favorably on counsel, we cannot conclude

that this one sentence alone constitutes evidence sufficient to warrant a

reference hearing. Montgomery did not provide a declaration outlining the

conversation he had with defense counsel before deciding to testify. And

although Montgomery submitted a declaration from his trial counsel, that

declaration concerns his conversation with a juror and neglects to address

Montgomery’s ineffective assistance claim. Because Montgomery “may not rely

solely on conclusory allegations,” Monschke, 160 Wn. App. at 488, Montgomery

fails to satisfy his burden of proof.

Montgomery additionally claims that his counsel was ineffective for

advising him to answer “yes” to the prosecutor’s question about whether he

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received counseling about appropriate sexual behavior and by not

simultaneously objecting to the question. In particular, Montgomery asserts that

the question did not accurately reflect the scope of the program in which he

participated and thus presented false information to the jury. To prevail on a

claim of ineffective assistance of counsel, the petitioner must demonstrate “the

absence of legitimate strategic or tactical reasons supporting the challenged

conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251

(1995). The record demonstrates that counsel previously argued extensively

against the introduction of any evidence about prior counseling. By the time the

prosecutor cross-examined Montgomery, the trial court had made it clear that

evidence about counseling would be admitted. Further, as was discussed on the

record, had Montgomery continued to answer “no” to the prosecutor’s questions

about the counseling he received, the prosecutor would have been entitled to ask

even more prejudicial questions about preventing relapse of sexually deviant

behavior. Thus, defense counsel had a legitimate strategic reason not to

continue arguing over the precise nature of the counseling Montgomery received

following his sodomy conviction. Montgomery’s claim of ineffective assistance

therefore fails on the first part of the Strickland test.

Montgomery also asserts that his appellate counsel was ineffective for

failing to raise all possible issues in his direct appeal. “Failure to raise all

possible nonfrivolous issues on appeal is not ineffective assistance, however.” In

re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). Rather, to

prevail on a claim for ineffective assistance of appellate counsel, the petitioner

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must demonstrate “that the legal issue which appellate counsel failed to raise

had merit and that they were actually prejudiced by the failure to raise or

adequately raise the issue.” In re Pers. Restraint of Maxfield, 133 Wn.2d 332,

344, 945 P.2d 196 (1997) (citing Lord, 123 Wn.2d at 314). Because Montgomery

does not show any meritorious issue that appellate counsel failed to raise, his

claim of ineffective assistance necessary fails.

We deny Montgomery’s PRP.

WE CONCUR:

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