IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 87066-1-I In the Matter of the Personal Restraint Petition of: DIVISION ONE
NAVIN AVERY MILKO UNPUBLISHED OPINION
Petitioner.
DÍAZ, J. — In 2020, a jury convicted Navin Milko of ten crimes involving five
victims, including attempted and completed rape, attempted and completed
burglary, and completed kidnapping. This court affirmed his convictions on direct
appeal and Milko then filed a timely pro se personal restraint petition (PRP).
Milko’s court-appointed attorney later filed a supplemental brief claiming that one
conviction suffers from insufficient evidence, that an offender score error occurred,
and that the exceptional sentence required a jury finding. Finding no reversible
error or inter alia a sufficient showing of prejudice, we deny his PRP.
I. BACKGROUND
We incorporate the facts set forth in this court’s prior opinion resolving
Milko’s direct appeal. State v. Milko, 21 Wn. App. 2d 279, 505 P.3d 1251 (2022)
(published in part).
Between August and October 2018, Milko on five separate occasions No. 87066-1-I/2
contacted women who worked as paid escorts and arranged to meet them at two
houses in Puyallup which he did not live in or own and, when each woman arrived,
Milko displayed a knife in an attempt to take their money or to rape them. Id. at
282. In 2009 and 2010, Milko had engaged in two similar incidents in Florida
involving paid escorts and pleaded guilty to charges related to both incidents. Id.
And, as stipulated by Milko at trial, the Florida Department of Corrections had
released Milko in August 2018.
In August 2020, a jury convicted Milko on ten of twelve charged crimes,
including one count of rape in the first degree, two counts of attempted rape in the
first degree, one count of burglary in the first degree, one count of attempted
burglary in the first degree, two counts of burglary in the second degree, two counts
of attempted kidnapping in the first degree, and one count of felony harassment.
The jury also found an aggravating factor of rapid recidivism for each conviction.
RCW 9.94A.535(3)(t). As will be elaborated below, the court adopted the State’s
recommendation and imposed an exceptional indeterminate sentence of 602
months in confinement.
In March 2022, this court affirmed Milko’s convictions. Id. Our Supreme
Court denied his petition for review on July 13, 2022, and a mandate was issued
on July 19, 2022. On July 10, 2023, Milko filed a timely pro se PRP (hereinafter,
his “Initial PRP”). On June 21, 2024, Milko’s court-appointed attorney filed a
supplemental brief making additional claims (hereinafter, his “Supplemental
Brief”). 1
1 In July 2024, his counsel filed a reply brief and Milko pro se filed a separate reply
brief, the latter of which the clerk of this court rejected. The following month, Milko 2 No. 87066-1-I/3
II. ANALYSIS
A. Standard of Review
PRPs are a “‘modern version of ancient writs, most prominently habeas
corpus, that allow petitioners to challenge the lawfulness of confinement.’” In re
Pers. Restraint of Meirhofer, 182 Wn.2d 632, 648, 343 P.3d 731 (2015) (quoting
In re Pers. Restraint of Coats, 173 Wn.2d 123, 128, 267 P.3d 324 (2011)). “But
relief by way of personal restraint petition is extraordinary” and “‘[t]o prevent it from
becoming a substitute for an appeal, and to protect the finality of judgments, this
court has imposed significant threshold, prima facie burdens on the petitioner
before the merits of the substantive claim will be considered.’” Id. (alteration in
original) (citation omitted) (quoting In re Pers. Restraint of Grantham, 168 Wn.2d
204, 211, 227 P.3d 285 (2010)). Specifically, a petitioner must show timeliness,
error, and prejudice. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 820, 226
P.3d 208 (2010) (timeliness); In re Pers. Restraint of Heidari, 159 Wn. App. 601,
604, 248 P.3d 550 (2011) (error and prejudice).
As to timeliness, a petitioner generally must file their PRP within one year
of their judgment becoming final. RCW 10.73.090(1). Here, the one-year time bar
is measured from the date of the mandate. Id. Petitions filed outside this one-year
time bar must fall under an exception. In re Pers. Restraint of Turay, 150 Wn.2d
71, 85-86, 74 P.3d 1194 (2003).
The State originally averred both Milko’s Initial PRP and his Supplemental
moved to have his reply brief considered. A commissioner of this court denied his motion. Milko, through his counsel, then moved to modify the commissioner’s ruling under RAP 16.10, RAP 10.1, and RAP 1.2. The motion, having been referred to this panel, is hereby denied. The court is sufficiently and fully advised of the issues herein. 3 No. 87066-1-I/4
Brief “must be dismissed as mixed,” because some claims fell outside the
exceptions to the one-year time limit, while some did not. However, the State
abandoned this argument prior to oral argument. We accept this concession and
hold Milko’s claims within his Initial PRP and Supplemental Brief meet the
timeliness requirements of RCW 10.73.090 and RCW 10.73.100.
After the timeliness threshold is met, the petitioner must establish error and
prejudice. Heidari, 159 Wn. App. at 604. The petitioner must make a “threshold
showing of constitutional error from which he has suffered actual prejudice or
nonconstitutional error that constitutes a fundamental defect that inherently
resulted in a complete miscarriage of justice.” Id. For constitutional errors, the
petitioner “must show by a preponderance of the evidence that a constitutional
error has caused them actual prejudice.” In re Pers. Restraint of Powell, 117
Wn.2d 175, 184, 814 P.2d 635 (1991). A “general claim of possible prejudice is
not sufficient to establish actual prejudice.” In re Pers. Restraint of Delgado, 160
Wn. App. 898, 912, 251 P.3d 899 (2011).
A “petitioner who collaterally attacks a criminal judgment and sentence
bears the overall burden of demonstrating an entitlement to relief.” Quinn, 154
Wn. App. at 820. To carry this burden, a PRP “must be supported by facts or
evidence upon which the petitioner’s claim of unlawful restraint is based and not
solely upon conclusory allegations” or “speculation, conjecture, or inadmissible
hearsay.” In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083
(1999) (citation omitted). In other words, “‘[b]are allegations unsupported by
citation of authority, references to the record, or persuasive reasoning cannot
4 No. 87066-1-I/5
sustain’” a PRP. In re Pers. Restraint of Brennan, 117 Wn. App. 797, 802, 72 P.3d
182 (2003) (quoting State v. Brune, 45 Wn. App. 354, 363, 725 P.2d 454 (1986)).
B. Claims Related to the Sufficiency of the Evidence
“A conviction based on insufficient evidence contravenes the due process
clause of the Fourteenth Amendment and thus results in unlawful restraint.” In re
Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011); U.S.
CONST. amend. XIV. In this way, a challenge on this ground is “constitutional in
nature,” meaning a petitioner must establish error and actual prejudice. Id. at 363.
“The standard for determining whether a conviction rests on insufficient
evidence” and thus error “is ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id. at 364 (quoting State v.
Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). “This standard is a deferential
one, and questions of credibility, persuasiveness, and conflicting testimony must
be left to the jury.” Id.
1. Supplemental Brief: Attempted Burglary in the Second Degree
Milko’s Supplemental Brief argues that the evidence was insufficient to
support only one aspect of the attempted burglary in the second degree conviction,
which required “a finding Milko attempted to enter or remain unlawfully while armed
with a deadly weapon.” Specifically, Milko avers that “K.T. testified [he] had
something in his hands,” but “did not testify she thought it was a knife” and her
testimony that he “had ‘something’ in his hand is not evidence of being armed with
a deadly weapon.” We disagree.
5 No. 87066-1-I/6
Consistent with RCW 9A.52.020(1), the court instructed the jury that
burglary in the first degree requires inter alia that Milko have been “armed with a
deadly weapon,” not necessarily with a “knife.” Consistent with RCW
9A.04.110(6), the instructions defined a deadly weapon as “any weapon, device,
instrument, substance, or article, which under the circumstances in which it is
used, attempted to be used, or threatened to be used, is readily capable of causing
death or substantial bodily harm.” 2 (Emphasis added.)
The concept of a deadly weapon in “RCW 9A.04.110(6) requires more than
mere possession,” as holding “otherwise would eliminate the distinction between
deadly weapons per se (firearms and explosives) and deadly weapons in fact
(other weapons).” Martinez, 171 Wn.2d at 366. Rather, “unless a dangerous
weapon falls within the narrow category for deadly weapons per se, its status rests
on the manner in which it is used, attempted to be used, or threatened to be used.”
Id. (emphasis added); see also In re Pers. Restraint of Cruze, 169 Wn.2d 422, 433,
237 P.3d 274 (2010) (noting that where the jury’s verdict leaves the “deadly
weapon with which the defendant was armed is either unspecified or specified to
be one other than a firearm, only the lesser deadly-weapon-other-than-a-firearm
enhancement is authorized.”) (Emphasis added.) In other words, whether an
object constitutes a deadly weapon turns on whether the defendant demonstrated
“‘some manifestation of willingness to use’” an instrument which “under the
circumstances” may cause the relevant standard of harm. Martinez, 171 Wn.2d at
2 “‘Substantial bodily harm’” is defined as “bodily injury which involves a temporary but
substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b). 6 No. 87066-1-I/7
365-66 (citation omitted) (quoting State v. Gotcher, 52 Wn. App. 350, 354, 759
P.2d 1216 (1988)).
Here, K.T. testified to the following events. Milko arranged to meet K.T. at
a house in Puyallup, Washington at night. Her friend and boyfriend had driven her
to the house, but K.T. left the car alone to meet Milko outside the house. Soon
after K.T.’s arrival, Milko grabbed her arm as they rounded the corner of the house
and had taken “one step out of view of the car.” Milko “clearly had something in
his hand,” which K.T. described as “something dark” as Milko was hidden “in
shadow.” Milko “lifted his hand up” with the instrument in a way that was “not a
nonthreatening gesture.” Milko also “looked murderous” in a manner that K.T.
described as “the scariest thing in [her] life to see that look,” and she felt she
“‘need[ed] to get out of [t]here right now. This person is going to hurt me.’” Soon
after, K.T. managed to escape and ran back to the car for help.
As Milko acknowledges, a “claim of insufficiency admits the truth of the
State’s evidence and all inferences that reasonably can be drawn therefrom.”
Martinez, 171 Wn.2d at 364 (quoting State v. Walton, 64 Wn. App. 410, 415, 824
P.2d 533 (1992), abrogated on other grounds by In re Pers. Restraint of Cross,
180 Wn.2d 664, 681 n.8, 327 P.3d 660 (2014)). Viewing the evidence in this light,
the entire “circumstances” of K.T.’s testimony support the inference that Milko
manifested a willingness to attempt or threaten to use the instrument in his hand
in a manner readily capable of causing death or substantial bodily harm against
K.T. Martinez, 171 Wn.2d at 365-67; RCW 9A.52.020(1); RCW 9A.04.110(6).
That is, a “rational” jury could infer, based on the totality of Milko’s actions—i.e.,
7 No. 87066-1-I/8
his plan to meet K.T. alone, to lure her out of sight of any witnesses, to seize her
arm, to adopt a terrifying even murderous demeanor, and to raise the instrument
in a threatening way—and K.T.’s reactions thereto that Milko was threatening to
use an instrument which could cause serious bodily harm. Martinez, 171 Wn.2d
at 364.
Our Supreme Court’s opinion in Martinez is substantively instructive as well.
There, “[n]o one” saw Martinez either with or reaching for a knife and he further
“manifested no intent to use” a knife based on the record provided. 171 Wn.2d at
368; see also Gotcher, 52 Wn. App. at 356-57 (holding a defendant was armed
with a deadly weapon based on evidence he disregarded police instructions and
“‘fumbled’” with something in his pocket that was later found to be a switchblade).
In Martinez, the only evidence was a knife “found along the path of the chase about
15 feet from the farm shop, suggesting that Mr. Martinez did not have access to
the knife during the scuffle with Deputy Wester” and Martinez’s empty “unfastened
sheath.” 171 Wn.2d at 369. Here in contrast, K.T. saw “something” menacing in
his hand, and her testimony directly connected Milko’s attempt or threat to use that
something to her fear for her life.
Viewing the record in a light most favorable to the State as we must, we
hold there was sufficient evidence from which a rational jury could have found
Milko was armed with a deadly weapon beyond a reasonable doubt. Martinez,
171 Wn.2d at 365, 368-69.
2. Initial PRP: Challenges to Seven of the Ten Convictions
Milko’s Initial PRP makes claims of insufficient evidence as to both
8 No. 87066-1-I/9
convictions for attempted rape in the first degree, both convictions for burglary in
the second degree, the attempted burglary in the first degree conviction previously
discussed, although on distinct grounds from his Supplemental Brief, the
attempted kidnapping in the first degree conviction, and the felony harassment
conviction. In exercising our due diligence, we reviewed the merits of each of
these claims. With the exception of his argument as to one of the attempted rapes
in the first degree convictions, however, he provides only “‘[b]are allegations
unsupported by citation of authority, references to the record, or persuasive
reasoning,’” which is fatal to each claim. Brennan, 117 Wn. App. at 802 (quoting
Brune, 45 Wn. App. at 363).
As to the attempted rape in the first degree, Milko argues the State failed to
establish he made a “substantial step” towards committing this crime against A.Q.
as there “was nothing sexual involved.” This court already rejected in direct appeal
Milko’s assertion that “the State failed to provide sufficient evidence to prove all
elements of first degree attempted rape with respect to AQ,” which claim similarly
relied on “AQ conced[ing] that he never said that he wanted to rape her and that
he never grabbed at her clothes or her private parts.” Milko, No. 55267-1-II, slip
op. (unpublished portion) at 14-16,
https://www.courts.wa.gov/opinions/pdf/D2%2055267-1-
II%20Published%20Opinion.pdf. Thus, as petitioners are “prohibited from
renewing an issue that was raised and rejected 3 on direct appeal unless the
3 “An issue is considered raised and rejected on direct appeal if the same ground
presented in the petition was determined adversely to the petitioner on appeal and the prior determination was on the merits.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 671 n.14, 101 P.3d 1 (2004). 9 No. 87066-1-I/10
interests of justice[4] require relitigation of that issue,” and Milko attempted no such
showing, we deny this claim. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671
n.14, 101 P.3d 1 (2004).
C. Claims Related to Sentencing Errors
1. Claim Related to Calculating the Proper Standard Range
Milko’s Supplemental Brief next claims that the court improperly used the
rape in the first degree conviction, instead of one of the attempted rapes in the first
degree convictions, as the baseline for calculating the standard range for his
serious violent offenses, contrary to State v. Weatherwax, 188 Wn.2d 139, 392
P.3d 1054 (2017). Such errors are nonconstitutional. See, e.g., In re Pers.
Restraint of Goodwin, 146 Wn.2d 861, 867, 50 P.3d 618 (2002). Thus, Milko must
show that any error amounted to a “fundamental defect that inherently resulted in
a complete miscarriage of justice.” Heidari, 159 Wn. App. at 604.
Generally, sentences for multiple current offenses run concurrently.
Weatherwax, 188 Wn.2d at 142 (citing RCW 9.94A.589(1)(a)). However,
“sentences for ‘serious violence offenses arising from separate and distinct
criminal conduct’ must run consecutively.” Id. (quoting RCW 9.94A.589(1)(b)).
Under Weatherwax, “the sentence for each such serious violent offense . .
. is calculated based on ‘the offense with the highest seriousness level under RCW
9.94A.515.’” Id. (quoting RCW 9.94A.589(1)(b)). Outside this baseline offense,
“the standard sentence range for other serious violent offenses shall be
4 “The interests of justice are served by reexamining an issue if there has been an
intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application.” Davis, 152 Wn.2d at 671 n.15. 10 No. 87066-1-I/11
determined by using an offender score of zero.” RCW 9.94A.589(1)(b). However,
“when the seriousness levels of two or more serious violent offenses are identical,
the trial court must choose the offense whose standard range is lower as the
starting point for calculating the consecutive sentences.” Weatherwax, 188 Wn.2d
at 156.
The jury convicted Milko inter alia, in count 1, of rape in the first degree and,
in count 2, attempted rape in the first degree. Both crimes are serious violent
offenses under RCW 9.94A.030(46)(a)(vii), (ix). Both crimes have a seriousness
level of 12. RCW 9.94A.515. Thus, the trial court should have used as the starting
point for calculating the consecutive sentences the offense whose standard range
is lower, here, the attempted rape. RCW 9.94A.533(2) (requiring we “multiply[] the
range by seventy-five percent” for attempt crimes).
The State concedes the court erred by “us[ing] the completed rape instead
of the attempted rape” as “the starting point for calculating sentences.” With count
2 as the baseline, Milko’s total standard range decreases by 21.25 to 28.75
months. RCW 9.94A.030(46)(a)(vii), (ix); RCW 9.94A.510; RCW 9.94A.515; RCW
9.94A.533(2). Still, Milko’s claim is unavailing.
Even when “the sentencing court incorrectly calculates the standard range
before imposing an exceptional sentence, remand is the remedy unless the record
clearly indicates the sentencing court would have imposed the same sentence
anyway.” State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997) (emphasis
added).
Milko argues that “the record does not clearly show the court would have
11 No. 87066-1-I/12
imposed the same sentence” had it known the correct standard range. (Emphasis
added.) At most, he claims it “appears the court imposed the exceptional
sentences in this case with the standard ranges in mind” because the State “noted
precisely how much above the standard range” its recommendation for an
exceptional sentence was. (Emphasis added.)
This argument fails for two reasons. First, Milko misstates and does not
meet the standard. A PRP “must be supported by facts or evidence . . . and not
solely upon . . . speculation [or] conjecture.” Gronquist, 138 Wn.2d at 39 (citation
omitted). Thus, a “lack of clarity” or mere “appearances” are not sufficient to carry
his burden to show actual prejudice. In re Pers. Restraint of Elmore, 162 Wn.2d
236, 251, 172 P.3d 335 (2007).
Second, Milko’s characterization of the discussion around the State’s
sentencing recommendation and the court’s reasoning is reductive and
incomplete. Viewed in its full context, the State only generally noted in passing
how high one of its exceptional sentence recommendations happened to be above
the standard range. See Verbatim Rep. of Proc. (VRP) (Oct. 2, 2020) at 6 (“I’m
asking that you impose 300 months . . . so it’s about 70 months above the standard
range . . . the standard range on that was 69.75 to 92.25”). And for the other count,
the State did not even note the standard range, merely stating “100 exceptional.”
The State’s sentencing memorandum also does not indicate it intended to
recommend a sentence of precisely a certain amount over the standard range.
Rather, the State emphasized a general concern on Milko’s rapid recidivism,
repeated violent actions, and lack of remorse. In other words, the full context of
12 No. 87066-1-I/13
the State’s sentencing request does not indicate its sentencing request was
conditioned on it being precisely 70, 75, or any other specific number of months
above the standard range as Milko now asserts.
Moreover, the court’s comments at sentencing and written findings also
indicate it was particularly concerned with the overall deterrent effect of Milko’s
sentence, after reviewing his offenses, his criminal record, and the public risk as a
whole. And, as will be discussed more below, the jury also found a rapid recidivism
aggravator for all of Milko’s convictions.
Otherwise, Milko fails to explain how a difference in the standard range of
21.25 to 28.75 months—which is relatively small compared to his overall sentence
of 602 months—would have altered the court’s desire to send a forceful deterrent
effect through his sentence. 5
Therefore, notwithstanding any error, we hold reversal is not warranted as
Milko fails to carry his burden to show the court’s sentence would have been
different under the proper standard range. Parker, 132 Wn.2d at 189. In turn,
Milko fails to establish a “fundamental defect that inherently resulted in a complete
miscarriage of justice.” Heidari, 159 Wn. App. at 604.
5 In contrast, our Supreme Court disapproved of a standard range difference of 50
months in relation to the imposed sentence of 120 months as it was “far higher than it should have been” and thus “constitutes a complete miscarriage of justice.” In re Pers. Restraint of Fletcher, 3 Wn.3d 356, 361-63, 379, 552 P.3d 302 (2024) (emphasis added). Even where the Court also suggested that a standard range difference of 21 months resulted in prejudice, it did so because the trial court imposed the State’s “recommend[ed] sentence at the low end of the standard range,” which “resulted in a low-end sentence of 129 months instead of a low-end sentence of 108 months” under the corrected range. In re Pers. Restraint of Call, 144 Wn.2d 315, 320, 323, 327, 28 P.3d 709 (2001), overruled on other grounds by In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 872-73, 50 P.3d 618 (2002). Here, there is no evidence the court followed a low end sentence in the same manner. 13 No. 87066-1-I/14
2. Claim Related to the Imposition of the Exceptional Sentence
Finally, Milko’s Supplemental Brief argues the court improperly imposed an
exceptional sentence as its “finding that the exclusion of Milko’s Florida convictions
from his offender score resulted in a sentence that was clearly too lenient . . .
violated [his] Sixth Amendment right to a jury trial.” As this issue implicates an
alleged constitutional error, Milko must show both error and actual prejudice. 6
Heidari, 159 Wn. App. at 604. We again disagree for two reasons.
First, as Milko acknowledges, “this [claim] was not raised in Milko’s PRP”
and would be time barred under RCW 10.73.090(1) unless he can show that the
judgment and sentence is facially invalid. He cannot.
Our Supreme Court “has never held a judgment facially invalid so long as it
did not exceed the sentencing court's statutory authority.” In re Pers. Restraint of
Toledo-Sotelo, 176 Wn.2d 759, 767, 297 P.3d 51 (2013). “For a judgment to
exceed the court's statutory authority, we require more than an error that ‘invite[s]
the court to exceed its authority’; the sentencing court must actually pass down a
sentence not authorized under the SRA.” Id. (quoting Coats, 173 Wn.2d at 136).
The legislature authorized indeterminate sentencing for completed and
attempted rape in the first degree, for which Milko was convicted. RCW
9.94A.507(1)(a)(i), (iii); In re Pers. Restraint of Forcha-Williams, 200 Wn.2d 581,
584-85, 520 P.3d 939 (2022). Rape in the first degree is a class A felony that
carries a maximum sentence of life in prison. RCW 9A.44.040(2); RCW
9A.20.021(1)(a).
6 Our holding on this issue is unchanged even if this issue is construed to fall under
the heightened nonconstitutional error standard. Heidari, 159 Wn. App. at 604. 14 No. 87066-1-I/15
Thus, the present appeal is more similar to State v. Clarke, 156 Wn.2d 880,
891, 134 P.3d 188 (2006), which involved potential facially invalidity in an
indeterminate sentence, as opposed to cases Milko cites, such as State v. Eller,
29 Wn. App. 2d 537, 540, 546, 541 P.3d 1001 (2024), which involved potential
facially invalidity in a case with a statutory maximum sentence of 120 months.
In imposing an exceptional sentence of 300 months, Milko’s judgment and
sentence is not facially invalid as the court did not impose a sentence that
exceeded its statutory authority because the court “exercised power that it” had,
i.e., to impose up to a life sentence. State v. Fletcher, 19 Wn. App. 2d 566, 573,
497 P.3d 886 (2021). Thus, this claim is time-barred.
Second, even if this claim is not time-barred, Milko does not show prejudice.
The court supported its exceptional sentence with three aggravators. First, the
court noted that the “jury unanimously found beyond a reasonable doubt that the
defendant committed the crimes soon after being released from incarceration.”
Second, as Milko emphasizes, the court found that “the defendant’s prior unscored
foreign criminal history results in a presumptive sentence that is clearly too lenient
in light of the purpose of the” Sentencing Reform Act (SRA), chapter 9.94A RCW.
Finally, the court held that “the defendant committed multiple current offenses and
the defendant’s high offender score results in some of the current offenses going
unpunished.” The second and third aggravators were “alleged by the State” and
“found by the court” without the jury.
As Milko acknowledges, the court further found each aggravator
“independently and sufficiently justifies an exceptional sentence above the
15 No. 87066-1-I/16
standard range.” (Emphasis added.) As Milko’s counsel confirmed at oral
argument, he only challenges the court’s foreign conviction aggravator and not the
other two. Wash. Ct. of Appeals oral argument, In re Pers. Restraint of Milko, No.
87066-1-I (Mar. 11, 2025), at 3 min., 46 sec. through 4 min., 8 sec. video recording
by TVW, Washington State’s Public Affairs Network,
https://www.tvw.org/watch/?clientID=9375922947&eventID=2025031254. 7
In turn, Milko fails to establish “actual prejudice” as his exceptional sentence
is independently supported by at least one of the other two aggravators, including
the recent recidivism aggravator found by the jury, even if the court’s foreign
conviction aggravator arguendo should have been determined by a jury. Heidari,
159 Wn. App. at 604.
3. Milko’s Remaining Initial PRP Claims
Milko’s Initial PRP also presents numerous other claims such as ineffective
assistance of counsel claims against both his trial and appellate counsel, a speedy
trial claim, a merger claim, and alleges the court failed to respond to his motion to
proceed pro se. While we also diligently reviewed the merits of these claims, we
must reject them as insufficiently argued due to Milko’s failure to substantively
discuss the record or binding authority, including his failure to engage in the
required analysis for his ineffective assistance and speedy trial claims. Brennan,
117 Wn. App. at 802; State v. Sardinia, 42 Wn. App. 533, 540, 713 P.2d 122
7 Milko’s reliance on State v. Smith, 123 Wn.2d 51, 864 P.2d 1371 (1993) is inapposite.
There, the court held that, “[g]iven the great disparity between the presumptive sentence and the exceptional sentence, it is unclear whether the trial judge would have imposed the same sentence had he considered only the two valid aggravating factors.” Id. at 58. Specifically, the court had imposed an exceptional sentence of 100 months for each burglary count which had a standard range of 43 to 57 months. Id. at 54. 16 No. 87066-1-I/17
(1986); State v. Ollivier, 178 Wn.2d 813, 826, 312 P.3d 1 (2013).
Additionally, all of Milko’s above-listed remaining Initial PRP claims fail to
specifically or substantively argue prejudice as is his burden. Delgado, 160 Wn.
App. at 912; Heidari, 159 Wn. App. at 604; In re Pers. Restraint of Harvey, 3 Wn.
App. 2d 204, 215, 415 P.3d 253 (2018).
Again, relief by way of PRPs is “extraordinary” and is not a “substitute for
[the] appeal” Milko already litigated. Meirhofer, 182 Wn.2d at 648. Thus, Milko
must meet “‘significant threshold[s]’” to receive relief and his generalized
arguments failed to do so here. Id. (quoting Grantham, 168 Wn.2d at 211).
III. CONCLUSION
We deny Milko’s petition for relief.
WE CONCUR: