IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint No. 86185-9-I Petition of
RICHARD LANE BLAKESLEY, UNPUBLISHED OPINION
Petitioner.
BOWMAN, J. — Richard Lane Blakesley seeks relief through a personal
restraint petition (PRP) from his convictions for three counts of first degree
possession of depictions of a minor engaged in sexually explicit conduct.
Blakesley argues he is unlawfully restrained because the court deprived him of
his constitutional right to continuously consult counsel at sentencing. We deny
his petition.
FACTS
On October 12, 2021, Blakesley pleaded guilty to three counts of first
degree possession of depictions of a minor engaged in sexually explicit conduct.1
Under the plea agreement, the parties stipulated that each would be free to
argue for a sentence within the standard range of 46 to 61 months of
confinement. The court set a sentencing hearing for December 6, 2021. At that
hearing, Blakesley appeared in person but his attorney unexpectedly appeared
remotely because he had “been battling a cold/flu.”
1 The State agreed to dismiss a fourth count of the same charge. No. 86185-9-I/2
The State requested a 54-month sentence, the same recommendation as
the Department of Corrections (DOC) in its presentence investigation report. The
State argued the mid-range recommendation was appropriate because Blakesley
was “not taking full ownership for his actions in this case.” Blakesley continued
to claim that somebody sent him the unlawful images by mistake even though the
evidence showed the images “had been downloaded or viewed over a [2]-year
period.” And besides minimizing his conduct, the State argued that Blakesley did
not follow through with sex offender treatment pending sentencing because
Blakesley believed treatment is “geared towards those with sexual addictions and
is not applicable to him.” The State was particularly concerned about this
because Blakesley had worked as a paraeducator serving children with special
needs, and he was the subject of a complaint by a female student for
inappropriate conduct at one school while another school “terminated [him] for
viewing pornography on school computers.”
Defense counsel then addressed the court. But the court lost its remote
connection with Blakesley’s attorney near the beginning of his argument “for
about [5] to 10 seconds.” After reestablishing the connection, the court asked the
attorney to “go back about [5] to 10[ ]seconds” and resume argument.
Blakesley’s attorney asked for a sentence of 46 months. He pointed out
that Blakesley sought a sex offender evaluation “on his own volition and without a
condition of pre-trial release or order of the Court.” Further, the evaluation
showed that Blakesley was “low risk for re-offense.” And as part of the
evaluation process, he took a polygraph examination that came back “non-
2 No. 86185-9-I/3
deceptive.” Counsel explained that Blakesley did not follow through with
treatment because he knew that he would be serving a prison sentence and
would “have the opportunities for a sexual offender treatment program within
prison.” Finally, defense counsel argued that a low-end sentence is “a small
concession” for a “first-time offender who has been proactive.” He pointed out
that Blakesley was not eligible for a therapy-based resolution like a special sex
offender sentencing alternative even though other sex offenders who have
arguably committed much more serious crimes were eligible.
Blakesley also addressed the court. He said, “I take all the responsibility.
I know that what I did, you know, I know the wrongdoing that I did, and I’m willing
to pay for that.” He explained that he had no malicious intent or premeditation.
But he also told the court that he “was so naïve and out of touch with what was
happening that I didn’t think I was doing something wrong,” and that he “would
never do harm physically or mentally to anybody, much less a child.”
The court again lost its remote connection with Blakesley’s attorney during
Blakesley’s allocution. It stopped the proceedings and resumed after
reconnecting, and Blakesley “c[aught] up” his attorney “on where [he] was at” in
his allocution.
While the court was attempting to reconnect with Blakesley’s attorney,
Blakesley’s girlfriend unexpectedly asked to address the court. When the court
reestablished the remote connection with defense counsel and after Blakesley
finished his allocution, it told defense counsel about the girlfriend’s request and
asked, “Is that something you wanted?” The attorney responded that if Blakesley
3 No. 86185-9-I/4
wanted his girlfriend to speak, “I have no objection to having . . . her make a
statement on [his] behalf.”
Blakesley’s girlfriend then addressed the court on his behalf. She said
that she was proud to see him take responsibility for his crimes and believed he
had “a healthy mind frame to approach” rehabilitation. At one point while she
was speaking, the court heard noise coming from defense counsel’s computer. It
stopped the proceedings to address the issue and then allowed Blakesley’s
girlfriend to resume.
In imposing its sentence, the court weighed several mitigating and
aggravating factors. As a mitigating factor, it considered that Blakesley showed a
low risk to reoffend and took responsibility for his crimes. But the court
expressed concern that Blakesley “seems to have little insight into the causes of
his behaviors” and justified his behavior by saying that “he never asked for [the]
sexual material.” So, the court determined that “the mitigating and aggravating
circumstances are . . . off-setting” and sentenced Blakesley to a concurrent,
standard-range sentence of 53.5 months of confinement.
Blakesley timely filed this PRP.
ANALYSIS
Blakesley argues he is unlawfully restrained because the sentencing court
deprived him of his constitutional right to consult counsel at a critical stage of the
proceedings. The State concedes a violation of the right to counsel but claims
Blakesley cannot show prejudice. We decline to accept the State’s concession
but agree that even if the circumstances violated his right to counsel, Blakesley
4 No. 86185-9-I/5
cannot show prejudice.2
A petitioner may seek relief through a PRP when he is under unlawful
restraint. RAP 16.4(a); see In re Pers. Restraint of Cashaw, 123 Wn.2d 138,
149, 866 P.2d 8 (1994). But relief through a PRP is extraordinary. In re Pers.
Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A personal
restraint petitioner must show either a constitutional error that resulted in actual
and substantial prejudice by a preponderance of the evidence or
nonconstitutional error that “ ‘constitutes a fundamental defect which inherently
result[ed] in a complete miscarriage of justice.’ ” In re Pers. Restraint of Davis,
152 Wn.2d 647, 671-72, 101 P.3d 1 (2004) (quoting In re Pers. Restraint of
Cook, 114 Wn.2d 802, 813,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint No. 86185-9-I Petition of
RICHARD LANE BLAKESLEY, UNPUBLISHED OPINION
Petitioner.
BOWMAN, J. — Richard Lane Blakesley seeks relief through a personal
restraint petition (PRP) from his convictions for three counts of first degree
possession of depictions of a minor engaged in sexually explicit conduct.
Blakesley argues he is unlawfully restrained because the court deprived him of
his constitutional right to continuously consult counsel at sentencing. We deny
his petition.
FACTS
On October 12, 2021, Blakesley pleaded guilty to three counts of first
degree possession of depictions of a minor engaged in sexually explicit conduct.1
Under the plea agreement, the parties stipulated that each would be free to
argue for a sentence within the standard range of 46 to 61 months of
confinement. The court set a sentencing hearing for December 6, 2021. At that
hearing, Blakesley appeared in person but his attorney unexpectedly appeared
remotely because he had “been battling a cold/flu.”
1 The State agreed to dismiss a fourth count of the same charge. No. 86185-9-I/2
The State requested a 54-month sentence, the same recommendation as
the Department of Corrections (DOC) in its presentence investigation report. The
State argued the mid-range recommendation was appropriate because Blakesley
was “not taking full ownership for his actions in this case.” Blakesley continued
to claim that somebody sent him the unlawful images by mistake even though the
evidence showed the images “had been downloaded or viewed over a [2]-year
period.” And besides minimizing his conduct, the State argued that Blakesley did
not follow through with sex offender treatment pending sentencing because
Blakesley believed treatment is “geared towards those with sexual addictions and
is not applicable to him.” The State was particularly concerned about this
because Blakesley had worked as a paraeducator serving children with special
needs, and he was the subject of a complaint by a female student for
inappropriate conduct at one school while another school “terminated [him] for
viewing pornography on school computers.”
Defense counsel then addressed the court. But the court lost its remote
connection with Blakesley’s attorney near the beginning of his argument “for
about [5] to 10 seconds.” After reestablishing the connection, the court asked the
attorney to “go back about [5] to 10[ ]seconds” and resume argument.
Blakesley’s attorney asked for a sentence of 46 months. He pointed out
that Blakesley sought a sex offender evaluation “on his own volition and without a
condition of pre-trial release or order of the Court.” Further, the evaluation
showed that Blakesley was “low risk for re-offense.” And as part of the
evaluation process, he took a polygraph examination that came back “non-
2 No. 86185-9-I/3
deceptive.” Counsel explained that Blakesley did not follow through with
treatment because he knew that he would be serving a prison sentence and
would “have the opportunities for a sexual offender treatment program within
prison.” Finally, defense counsel argued that a low-end sentence is “a small
concession” for a “first-time offender who has been proactive.” He pointed out
that Blakesley was not eligible for a therapy-based resolution like a special sex
offender sentencing alternative even though other sex offenders who have
arguably committed much more serious crimes were eligible.
Blakesley also addressed the court. He said, “I take all the responsibility.
I know that what I did, you know, I know the wrongdoing that I did, and I’m willing
to pay for that.” He explained that he had no malicious intent or premeditation.
But he also told the court that he “was so naïve and out of touch with what was
happening that I didn’t think I was doing something wrong,” and that he “would
never do harm physically or mentally to anybody, much less a child.”
The court again lost its remote connection with Blakesley’s attorney during
Blakesley’s allocution. It stopped the proceedings and resumed after
reconnecting, and Blakesley “c[aught] up” his attorney “on where [he] was at” in
his allocution.
While the court was attempting to reconnect with Blakesley’s attorney,
Blakesley’s girlfriend unexpectedly asked to address the court. When the court
reestablished the remote connection with defense counsel and after Blakesley
finished his allocution, it told defense counsel about the girlfriend’s request and
asked, “Is that something you wanted?” The attorney responded that if Blakesley
3 No. 86185-9-I/4
wanted his girlfriend to speak, “I have no objection to having . . . her make a
statement on [his] behalf.”
Blakesley’s girlfriend then addressed the court on his behalf. She said
that she was proud to see him take responsibility for his crimes and believed he
had “a healthy mind frame to approach” rehabilitation. At one point while she
was speaking, the court heard noise coming from defense counsel’s computer. It
stopped the proceedings to address the issue and then allowed Blakesley’s
girlfriend to resume.
In imposing its sentence, the court weighed several mitigating and
aggravating factors. As a mitigating factor, it considered that Blakesley showed a
low risk to reoffend and took responsibility for his crimes. But the court
expressed concern that Blakesley “seems to have little insight into the causes of
his behaviors” and justified his behavior by saying that “he never asked for [the]
sexual material.” So, the court determined that “the mitigating and aggravating
circumstances are . . . off-setting” and sentenced Blakesley to a concurrent,
standard-range sentence of 53.5 months of confinement.
Blakesley timely filed this PRP.
ANALYSIS
Blakesley argues he is unlawfully restrained because the sentencing court
deprived him of his constitutional right to consult counsel at a critical stage of the
proceedings. The State concedes a violation of the right to counsel but claims
Blakesley cannot show prejudice. We decline to accept the State’s concession
but agree that even if the circumstances violated his right to counsel, Blakesley
4 No. 86185-9-I/5
cannot show prejudice.2
A petitioner may seek relief through a PRP when he is under unlawful
restraint. RAP 16.4(a); see In re Pers. Restraint of Cashaw, 123 Wn.2d 138,
149, 866 P.2d 8 (1994). But relief through a PRP is extraordinary. In re Pers.
Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A personal
restraint petitioner must show either a constitutional error that resulted in actual
and substantial prejudice by a preponderance of the evidence or
nonconstitutional error that “ ‘constitutes a fundamental defect which inherently
result[ed] in a complete miscarriage of justice.’ ” In re Pers. Restraint of Davis,
152 Wn.2d 647, 671-72, 101 P.3d 1 (2004) (quoting In re Pers. Restraint of
Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)).
Criminal defendants have a state and federal constitutional right to the
assistance of counsel at all critical stages of criminal proceedings. State v.
Heddrick, 166 Wn.2d 898, 909, 215 P.3d 201 (2009); Montejo v. Louisiana, 556
U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009); see W ASH. CONST. art.
I, § 22; U.S. CONST. amend. VI. In general, sentencing is a critical stage of the
proceedings. State v. Rupe, 108 Wn.2d 734, 741, 743 P.2d 210 (1987).
The constitutional right to the assistance of counsel “carries with it a
reasonable time for consultation and preparation,” which includes the
“opportunity for private and continual discussions between [the] defendant and
2 Blakesley also argues that the trial court erred by relying on DOC’s presentence
investigation report at sentencing, which contained findings from Blakesley’s pretrial psychosexual evaluation. Blakesley contends that the findings prejudiced him because he did not know at the time of his interview with DOC that the sentencing court would consider his psychosexual evaluation. But Blakesley does not support his argument with legal authority or analysis, so we do not address it. See RAP 10.3(a)(6).
5 No. 86185-9-I/6
his attorney” during the proceedings. State v. Hartzog, 96 Wn.2d 383, 402, 635
P.2d 694 (1981). “The ability for attorneys and clients to consult privately need
not be seamless, but it must be meaningful.” State v. Anderson, 19 Wn. App. 2d
556, 562, 497 P.3d 880 (2021). Like the right to counsel in general, whether the
court violated the defendant’s constitutional right to privately confer with his
attorney is a fact-specific inquiry. See, e.g., Id. at 562-63 (citing State v.
Gonzales-Morales, 138 Wn.2d 374, 382-86, 979 P.2d 826 (1999)). And given
the varied circumstances that may occur, we look to the totality of the
circumstances in considering whether a trial court violated a defendant’s right to
counsel, including whether the court explicitly established a process for
confidential attorney-client communication. Bragg v. State, ___ Wn. App. 2d.
___, 536 P.3d 1176, 1182 (2023).
A complete denial of counsel at a critical stage of the proceedings is
presumptively prejudicial and calls for automatic reversal. Heddrick, 166 Wn.2d
at 910. But not all error involving the right to counsel amounts to a complete
denial of that right. See Satterwhite v. Texas, 486 U.S. 249, 257, 108 S. Ct.
1792, 100 L. Ed. 284 (1988). When a defendant is provided with counsel,
deprivation of the right to confer with that counsel meaningfully and privately
does not trigger structural error. State v. Dimas, No. 57528-1-II, slip op. at 6
(Wash. Ct. App. Mar. 5, 2024), https://www.courts.wa.gov/opinions/pdf/
D2%2057528-1-II%20Published%20Opinion.pdf.
Citing State v. Ulestad, 127 Wn. App. 209, 111 P.3d 276 (2005), Blakesley
argues the court deprived him of the right to counsel such that we should
6 No. 86185-9-I/7
presume prejudice and remand for a new sentencing hearing. In Ulestad, the
State charged the defendant with several counts of child molestation. 127 Wn.
App. at 212. At trial, the child refused to testify in the defendant’s presence, so
the court ordered the child and the attorneys removed from the courtroom and
placed in a separate room while the defendant, judge, and jury remained in the
courtroom and watched the child’s testimony on closed circuit television. Id. at
212-13. As a result, the defendant’s only means to communicate with his
attorney was to signal the court to stop the proceedings in front of the jury. Id. at
213. Division Two of our court concluded that the trial court’s actions deprived
the defendant of his ability to continuously consult his attorney during trial
because the only means to speak with his attorney involved interrupting the trial,
which “carries substantial risk that the defendant will be intimidated from
exercising” communication. Id. at 215. Citing Perry v. Leeke, 488 U.S. 272, 109
S. Ct. 594, 102 L. Ed. 2d 624 (1989), the court determined that the trial court’s
actions completely deprived the defendant of counsel, warranting structural error.
Id. at 214-15.
In Perry, the United States Supreme Court considered whether the trial
court erred by ordering a defendant not to consult with his attorney during a 15-
minute trial recess after the defendant’s direct testimony and before cross-
examination. 488 U.S. at 274, 278-80. Under the facts of that case, the Court
determined that the trial court did not violate the defendant’s right to counsel. Id.
at 284. In doing so, it recognized that government action that interferes in certain
ways with the ability of counsel to make independent decisions about how to
7 No. 86185-9-I/8
conduct a defense may amount to a complete deprivation of the right to counsel,
and such a violation “is not subject to the kind of prejudice analysis” that may
otherwise be appropriate. Id. at 280 (citing Geders v. United States, 425 U.S. 80,
91, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) (bar on attorney-client consultation
during overnight recess); Herring v. New York, 422 U.S. 853, 863-64, 95 S. Ct.
2550, 45 L. Ed. 2d 593 (1975) (bar on summation at bench trial); Brooks v.
Tennessee, 406 U.S. 605, 612-13, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972)
(requirement that defendant be first defense witness); Ferguson v. Georgia, 365
U.S. 570, 596, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961) (bar on direct examination of
defendant)).
Here, the court provided Blakesley an attorney. And, unlike in Ulestad or
the examples illustrated in Perry, the court did not take action that interfered with
the ability of Blakesley’s attorney to conduct a defense such that Blakesley
experienced a complete denial of the right to counsel. Blakesley and his attorney
were both present for the sentencing hearing, and while Blakesley’s attorney
appeared remotely, they could see and hear each other. Finally, because the
alleged error did not occur during the testimony of a key witness at trial,
Blakesley did not face the dilemma of disrupting trial in front of a jury to request
to speak privately with his attorney. The circumstances here do not amount to a
complete denial of counsel warranting structural error. See Satterwhite, 486 U.S.
at 257.
Because the alleged error is not structural, Blakesley must show by a
preponderance of the evidence that any violation of his right to consult his
8 No. 86185-9-I/9
attorney resulted in actual and substantial prejudice. Coggin, 182 Wn.2d at 119-
20. Blakesley argues that if he “had the meaningful access to counsel to which
he was entitled, the court likely would have imposed a lower sentence.” But he
fails to show how this is so. Both Blakesley and his attorney explained to the
court why they believed a low-end standard-range sentence was appropriate.
Blakesley does not assert that his presentation would have changed if his
attorney was physically present in the courtroom. Nor does Blakesley argue that
his attorney’s presence would have changed his decision to have his girlfriend
speak on his behalf. Indeed, his girlfriend’s presentation supported Blakesley’s
request for a low-end sentence. Finally, the record shows that the court
considered the mitigating circumstances offered by Blakesley, his attorney, and
his girlfriend but rejected the request for a low-end sentence after balancing them
with Blakeley’s lack of insight into the causes of his behavior.
Because Blakesley fails to show substantial and actual prejudice arising
from his alleged violation of the right to continuously consult his attorney, we
deny his PRP.
WE CONCUR: