IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal No. 84860-7-I Restraint of DIVISION ONE
KING CARNELL WRIGHT, f/n/a TEDGY CARNELL WRIGHT,† UNPUBLISHED OPINION
Petitioner.
SMITH, J. — In 2019, a jury convicted King Wright of rape in the first
degree, rape in the second degree, robbery in the first degree, and two counts of
unlawful possession of a firearm. The conviction rested on two separate
incidents. This court affirmed the convictions on appeal. In 2022, Wright initiated
this personal restraint petition (PRP) asserting that the court should have
severed the charges between the two incidents, that the court improperly
charged the firearm enhancements, that the court should have granted his
motion to suppress evidence, and that he was subject to ineffective assistance of
counsel. Wright raises issues that were addressed in his direct appeal without
demonstrating, or even arguing, that the ends of justice would be served by this
court addressing them now. In addition, he has failed to demonstrate that the
† At the time of his conviction, petitioner’s name was Tedgy Carnell
Wright. Petitioner has since legally changed his first name to King and provided this court with a copy of the order changing name. Accordingly, we have changed the caption to reflect the name change. No. 84860-7-I/2
trial court committed error or that his counsel was ineffective, therefore we deny
Wright’s petition.
FACTS
King Wright brings this PRP challenging the denial of his motion to sever
charges related to two separate incidents, one involving J.B. and one involving
N.F. The complete facts concerning Wright’s initial conviction, trial, and direct
appeal can be found in this court’s published-in-part opinion, State v. Wright, 18
Wn. App. 2d 725, 492 P.3d 224 (2021).
J.B. Incident
In May 2018, J.B., working as an escort, agreed to meet Wright at her
home. When J.B. refused Wright’s advances, he threatened her with a gun and
forced her to perform oral sex. He then forced her to have vaginal sex.
Following the assault, and still armed, Wright began searching J.B.’s room
leaving with a pair of Air Jordan tennis shoes, two gold and diamond “grills,” 1 a
photo of J.B., and J.B.’s wallet.
J.B. later underwent a sexual assault examination. The male DNA
collected from the examination matched a reference sample from Wright.
N.F. Incident
In June 2018, N.F. met Wright to provide sexual services. When N.F.
expressed physical disinterest in Wright, he asked for his money back. N.F.
refused and Wright “threw [her] on the ground,” choked her with both hands
1In her initial contact with law enforcement, J.B. indicated that Wright took what were known as “grills”: gold and diamond dental pieces and teeth coverings.
2 No. 84860-7-I/3
around her neck, and vaginally raped her. He also struck her with his silver
handgun.
In an interview with law enforcement officers the next day, N.F. stated that
Wright had taken $1,300 in marked bills from her purse. Officers later recovered
$1,240 of those marked bills, a locked toolbox containing a black and silver
handgun, and Air Jordan tennis shoes that matched J.B.’s description.
N.F. also underwent a sexual assault examination. The swabs from N.F.’s
assault kit contained male DNA that matched Wright.
Trial
In December 2018, the State charged Wright with six offenses arising from
the two incidents. Wright moved to sever the two counts related to J.B. from the
four counts related to N.F. He also moved to sever the unlawful firearm
possession counts from the other charges involving each victim. The trial court
denied Wright’s motion to sever the counts as to each victim but bifurcated the
trial on the two unlawful possession of a firearm charges
Wright also moved to suppress evidence under CrR 3.6, asserting that the
evidence of the marked bills found in his possession was the result of an illegal
search or seizure. The court denied Wright’s motion, holding that the warrants
were valid and the evidence was therefore admissible.
During deliberations, the jury inquired of the court “[i]f we are unable to
reach a verdict on a count, what happens?” The trial court conferred with both
defense counsel and the State and they agreed to instruct the jury to “see your
3 No. 84860-7-I/4
instructions, particularly instructions #10 and #28.” Wright was not present
during this conference.
That afternoon, the jury returned guilty verdicts on the rape, robbery, and
assault counts as charged. By special verdict, the jury found Wright guilty of the
firearm enhancements related to the assault and two rape charges.
Wright moved to arrest the judgment and for a new trial on multiple
grounds. He argued, among other things, that a new trial was appropriate
because the trial court erred in failing to “have [Wright] present upon its
consideration and response to a jury question that arose during jury
deliberations.” The trial court denied the motion and sentenced Wright to an
indeterminate sentence of 438 months. Wright appealed.
Direct Appeal
On direct appeal, Wright argued that the trial court violated his state and
federal constitutional rights to presence when it considered and responded to the
jury’s inquiry about deadlock, violated the confrontation clause in excluding
certain impeachment evidence, and abused its discretion in admitting two photo
spreads that included Wright’s booking photo. He also contended that the
prosecutor committed reversible misconduct during closing argument, that his
counsel was ineffective for failing to renew the motion to sever, and that
cumulative error deprived him of a fair trial. This court rejected each claim and
affirmed in a partially published opinion. The Washington Supreme Court denied
Wright’s petition for review in January 2022.
Wright timely filed this PRP.
4 No. 84860-7-I/5
ANALYSIS
Standard of Review
Collateral relief from a conviction through a PRP is an extraordinary
remedy and petitioners must meet a high standard to obtain relief. In re Pers.
Restraint of Kennedy, 200 Wn.2d 1, 12, 513 P.3d 769 (2022). “To gain relief
through a PRP, a petitioner must make a heightened showing of ‘actual and
substantial prejudice’ for a constitutional error or ‘a complete miscarriage of
justice’ for a nonconstitutional error.” Kennedy, 200 Wn.2d at 12 (internal
quotation marks omitted) (quoting In re Pers. Restraint of Light-Roth, 191 Wn.2d
328, 333, 422 P.3d 444 (2018)). The petitioner must make this showing by a
preponderance of the evidence. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17,
296 P.3d 872 (2013). Bare assertions unsupported by references to the record,
citation to authority, or persuasive reasoning cannot sustain the petitioner’s
burden of proof. In re Pers. Restraint of Brune, 45 Wn. App. 354, 363, 725 P.2d
454 (1986).
Motion to Sever
Wright asserts that the trial court erred in denying his motion to sever
because joinder of the separate alleged sex offenses would jeopardize his right
to a fair trial. The State argues that Wright may not relitigate issues that were
raised and rejected on direct appeal, including the denial of severance, without a
showing that the interests of justice require relitigation. We agree with the State.
“ ‘A claim rejected on its merits on direct appeal will not be reconsidered in
a subsequent personal restraint petition unless the petitioner shows that the ends
5 No. 84860-7-I/6
of justice would be served thereby.’ ” Yates, 177 Wn.2d at 33-34 (quoting In re
Pers. Restraint of Jeffries, 114 Wn.2d 485, 487, 789 P.2d 731 (1990)).
Here, Wright does not argue that relitigation of severance would serve the
ends of justice. In fact, Wright does not acknowledge that he raised the issue on
direct appeal and that this court affirmed the denial of his motion to sever. Given
that the issue of severance was the subject of his direct appeal and he has failed
to provide argument as to why relitigation would serve the ends of justice, we
decline to address the issue.
Prosecutorial Misconduct
Wright next maintains that the trial court erred when allowing the
prosecutor to vouch for an alleged victim during closing arguments.
As with Wright’s motion to sever, this court rejected Wright’s prosecutorial
misconduct claim on direct appeal. Wright does not address this rejection or
make any argument as to why the ends of justice require relitigation of the issue.
Because Wright again raises an issue addressed in his direct appeal and fails to
argue that relitigation of misconduct would serve the ends of justice, we decline
to address the issue.
Firearm Enhancement
Wright claims that the trial court erred in imposing a firearm enhancement
not included in his charging documents. He further states that the charging
documents are fatally defective and requests dismissal without prejudice. The
State maintains that the amended charging documents include the firearm
enhancement allegations and that Wright’s claim is frivolous. Because the
6 No. 84860-7-I/7
charging documents do include the firearm enhancement statutory authority and
facts supporting the charge, we dismiss Wright’s claim.
The essential elements rule requires the State to identify the crime
charged and allege facts supporting every element of that offense in the charging
documents so as to fully inform the defendant of the charges against them. State
v. Johnson, 185 Wn. App. 655, 673, 342 P.3d 338 (2015). To impose a firearm
enhancement, the State must allege, and prove beyond a reasonable doubt, that
the defendant was “ ‘armed with a firearm’ ” during the commission of the
charged crime. Johnson, 185 Wn. App. at 674 (quoting State v. Recuenco, 163
Wn.2d 428, 439-40, 10 P.3d 1276 (2008)).
Wright contends that the trial court, rather than the State, charged him
with a firearm enhancement after the close of trial and that his charging
documents failed to include the enhancement. Wright is incorrect. The original
information alleged that Wright was armed with a firearm when he robbed N.F.
In the second amended information, the State added the statutory authority for a
firearm enhancement for the robbery count, as well as for the assault of N.F. in
the second degree and rape of J.B. in the first degree. The third amended
information included the same language and statutory authority. The jury then
found that Wright was armed with a firearm when he committed the three
specified offenses.
The charging document cited the firearm enhancement statute and
included facts supporting that charged offense. The jury then determined that
7 No. 84860-7-I/8
Wright actually was armed with a firearm during the commission of the charged
offenses.
Motion to Suppress
Wright asserts that the trial court erred in denying his CrR 3.6 motion to
suppress evidence found in the search of his apartment because the search
warrant was not supported by probable cause. He also contends that, in
searching a purse within his apartment, the search exceeded the scope of the
warrant. The State disagrees. We conclude that probable cause supported the
search warrant and that Wright lacks standing to challenge the search as
exceeding the scope of the warrant.
In reviewing a trial court’s suppression decision, we consider whether
substantial evidence supports the findings of fact and whether those findings
support the conclusions of law. State v. Alexander, 5 Wn. App. 2d 154, 159, 425
P.3d 920 (2018). Substantial evidence exists where there is enough to persuade
a fair-minded person of the truth of the finding. Alexander, 5 Wn. App. 2d at 159.
We treat unchallenged findings of fact as verities on appeal and review the trial
court’s conclusions of law de novo. Alexander, 5 Wn. App. 2d at 159. We review
a magistrate’s decision to issue a search warrant for an abuse of discretion.
State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002).
Article I, section 7 of the Washington Constitution provides, “[n]o person
shall be disturbed in his private affairs, or his home invaded, without authority of
law.” A search warrant grants the requisite “authority of law” to support a search.
State v. Garner, 26 Wn. App. 2d 654, 660, 529 P.3d 1053 (2023). A search
8 No. 84860-7-I/9
warrant may only be issued upon a determination of probable cause. State v.
Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). “ ‘Probable cause exists if the
affidavit in support of the warrant sets forth facts and circumstances sufficient to
establish a reasonable inference that the defendant is probably involved in
criminal activity and that evidence of the crime can be found at the place to be
searched.’ ” State v. VanNess, 186 Wn. App. 148, 165, 344 P.3d 713 (2015)
(quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). Probable
cause may be based on the report of a citizen provided that the citizen’s basis of
knowledge and reliability is established. Vickers, 148 Wn.2d at 111-12.
In general, a person may only challenge a search or seizure if they have a
personal Fourth Amendment or article I, section 7 interest in the area searched or
property seized. State v. Libero, 168 Wn. App. 612, 616, 277 P.3d 708 (2012).
But a defendant who has no legitimate expectation of privacy may be able to
assert automatic standing under article I, section 7. Libero, 168 Wn. App. at 616-
17. To claim automatic standing, the defendant must show that possession is an
essential element of the charged offense and that the defendant was in
possession of the seized property at the time of the contested search. State v.
Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002).
Here, Wright claims both that the search warrant was not supported by
probable cause and that the actual search exceeded the scope of the search
warrant. We disagree.
First, probable cause supports the search warrant. The affidavit
supporting the warrant request establishes that N.F. had personal knowledge of
9 No. 84860-7-I/10
the facts she relayed to law enforcement, N.F. accurately described Wright’s car,
accurately identified and led law enforcement to Wright’s apartment, and
definitively identified Wright out of a photographic montage. The evidence N.F.
provided, corroborated by law enforcement, establishes her knowledge as
sufficiently reliable to establish probable cause. N.F.’s descriptions of the crimes
committed against her then establish a reasonable inference that Wright was
involved in criminal activity. Given that the alleged criminal activity took place at
Wright’s apartment, N.F.’s statement similarly raised a reasonable inference that
evidence of the crime could be found at the place to be searched. Because
probable cause supported the warrant, the court did not abuse its discretion in
issuing the search warrant.
Wright moved to suppress the evidence based on the claim that probable
cause was not established because the evidence weighed against finding that
N.F. was a credible witness. The record, as noted above, does otherwise. In
reviewing N.F.s corroborated statements, the trial court relied on substantial
evidence to determine that probable cause existed. The finding of probable
cause then supported the trial court’s determination that the search warrant was
valid. We conclude that the trial court appropriately denied Wright’s motion to
suppress.
Next, Wright contends that law enforcement’s search exceeded the scope
of the search warrant by including a purse on the property. He asserts he has
automatic standing to bring this claim. But Wright lacks standing to bring such a
claim.
10 No. 84860-7-I/11
To reiterate, a person generally has standing to challenge a search or
seizure only if they have a personal interest in the area searched or property
seized. A person without a personal interest has standing only if possession is
an essential element of the charged offense and they were in possession of the
property at the time of the contested search.
The purse at issue here belonged to Gloria McGee, the mother of Wright’s
children. Accordingly, Wright did not have a personal interest in the property
sufficient to allow standing. In addition, Wright was charged with rape in the
second degree, robbery in the first degree, and assault in the second degree for
his crimes against N.F. Possession of N.F.s marked currency is not an essential
element of any of the three charged offenses, nor was Wright actively in
possession of the purse at the time of the search.2 Wright lacks standing to
challenge the search as outside the scope of the warrant.
Improper Jury Instructions
Wright asserts that the trial court erred in providing jury instructions that
relieved the State of its burden to prove each element beyond a reasonable
doubt. The State maintains that Wright’s claim is frivolous because he fails to
identify the instructions to which he objects. We agree with the State.
Again, in initiating a PRP, the petitioner bears the burden of providing the
facts upon which the claim rests and evidence to support the factual allegations.
RAP 16.7(a)(2). Thus, a petitioner must state with particularity facts that, if
2 RCW 9A.44.050(1)(a); RCW 9A.56.200(1)(a)(ii); RCW 9A.56.190; RCW 9A.36.021(1)(c).
11 No. 84860-7-I/12
proved, would entitle the petitioner to relief. In re Pers. Restraint of Rice, 118
Wn.2d 876, 886, 828 P.2d 1086 (1992).
Here, Wright does not identify the instructions to which he objects.
Rather, Wright notes two cases: State v. Brown, 147 Wn.2d 330, 58 P.3d 889
(2002) and United States v. Kaiser, 660 F.2d 724 (9th Cir. 1981), which he cites
incorrectly.3 Neither clarify his argument.
Brown involves a faulty accomplice liability instruction, which was not
given in this case. And the case Wright cited while intending to reference Kaiser
is a drug conspiracy case that centers on evidentiary errors and Privacy Act
violations, neither of which are at issue here.
Because Wright fails to provide more than conclusory assertions, we
dismiss this claim.
Ineffective Assistance of Counsel
Wright lastly contends that his appellate counsel was ineffective in failing
to raise each of the issues he addresses above, as well as in failing to argue that
the right to “appear and defend” under article I, section 22 of the Washington
State Constitution is broader than the corresponding right to presence under the
Sixth and Fourteenth Amendments to the United States Constitution. The State
asserts that Wright fails to demonstrate deficient performance or resulting
prejudice. We agree with the State.
3 Wright provides the wrong case citation for Kaiser. Because he does not provide any detail about the facts of the case, it is difficult to find his intended citation.
12 No. 84860-7-I/13
A petitioner claiming ineffective assistance of counsel in a PRP
necessarily establishes actual and substantial prejudice if the petitioner meets
the standard of prejudice applicable on direct appeal. In re Pers. Restraint of Lui,
188 Wn.2d 525, 538, 397 P.3d 90 (2017). Ineffective assistance of counsel
claims are “mixed questions of law and fact” that we review de novo. In re Pers.
Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001).
To demonstrate ineffective assistance of counsel, a defendant must show
that counsel’s performance was deficient and that the defendant was prejudiced
by that deficient performance. In re Pers. Restraint of Crace, 174 Wn.2d 835,
840, 280 P.3d 1102 (2012). To establish deficient performance, the defendant
must show that counsel’s performance fell below an objective standard of
reasonableness. State v. Goldberg, 123 Wn. App. 848, 852, 99 P.3d 924 (2004).
“ ‘To establish prejudice, a defendant must show that but for counsel’s
performance, the result would have been different.’ ” Goldberg, 123 Wn. App. at
852 (quoting State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)). Mere
speculation that a different result might have followed is insufficient. State v.
Crawford, 159 Wn.2d 86, 99-100, 147 P.3d 1288 (2006). “ ‘An attorney’s failure
to raise novel legal theories or arguments is not ineffective assistance.’ ” State v.
Clark, 17 Wn.App.2d 794, 799, 487 P.3d 549 (2021) (quoting State v. Brown, 159
Wn. App. 366, 371, 245 P.3d 776 (2011)).
To demonstrate ineffective assistance of appellate counsel, a defendant
must demonstrate the merit of any legal issue that appellate counsel failed to
raise, in addition to prejudice. In re Pers. Restraint of Salinas, 189 Wn.2d 747,
13 No. 84860-7-I/14
760, 408 P.3d 344 (2018). The failure to raise all possible non-frivolous issues
on appeal does not constitute ineffective assistance of counsel. In re Pers.
Restraint of Dalluge, 152 Wn.2d 772, 787, 100 P.3d 279 (2004). Rather, “the
exercise of independent judgment in deciding what issues may lead to success is
the heart of the appellate attorney’s role.” Dalluge, 152 Wn.2d at 787. Thus, the
petitioner must show a reasonable probability that, but for his counsel’s
unreasonable failure to raise a particular claim, he would have prevailed on his
appeal. Dalluge, 152 Wn.2d at 788.
1. Wright’s Initial Claims
Wright maintains that his appellate counsel was ineffective in failing to
raise all of the issues he asserts in his PRP. This includes his arguments
surrounding the motion to sever, prosecutorial misconduct, firearm
enhancements, CrR 3.6, and improper jury instructions. We conclude that Wright
fails to provide sufficient facts, evidence, or authority to support his claims.
To reiterate, the petitioner bears the burden of providing facts upon which
his claim rests and evidence sufficient to support those factual allegations.
RAP 16.7(a)(2). Conclusory statements and stand-alone allegations are
insufficient. Rice, 118 Wn.2d at 886; Yates, 177 Wn.2d at 18.
For the five above-listed claims, Wright offers only slight variations on “my
lawyer not raising this claim was ineffective.” He provides no factual allegations
specific to the ineffective assistance of counsel claims, no evidence specific to
those claims, and no applicable case law. Because Wright fails to provide more
14 No. 84860-7-I/15
than conclusory allegations, we dismiss these ineffective assistance of counsel
claims.
2. Right to Presence Claim
Wright next asserts that appellate counsel failed to adequately argue that
the trial court violated his constitutional right to presence because counsel failed
to present a state constitutional claim independent of a federal constitutional
claim. The State maintains that Wright fails to establish deficient performance or
prejudice. Because raising a state constitutional claim independent of a federal
constitutional claim is a novel legal argument, we conclude that appellate counsel
was not deficient in failing to raise the issue.
Washington appellate courts have “routinely analyzed alleged violations of
the right of a defendant to be present by applying federal due process
jurisprudence.” State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011).
In fact, an appellate court considering both the state and federal
constitutional right to presence has yet to find a violation of the state
constitutional right to presence without a violation of federal due process.
Wright points to Irby and the dissent on his direct appeal as evidence that
the state constitution provides more protection than the federal constitution. But
neither Irby nor the dissent establish that the state constitution’s right to presence
can be violated independent of the federal right. Although a footnote in Irby
provides that the state right is “arguably” broader than the federal, the case
determined that the exchange at issue violated both the state and the federal
constitutions. Irby, 170 Wn.2d at 885. Similarly, the dissent in Wright concluded
15 No. 84860-7-I/16
that the jury inquiry at issue on direct appeal violated both the state and federal
right to presence. The dissent would have held that the exchange violated the
state constitution for the exact same reason that it violated the federal right to
presence: “as discussed, the response to the inquiry could have the effect of
either nudging the jury toward a verdict or increasing the chances of a mistrial.”
Wright, 18 Wn. App. 2d at 739-43 (Coburn, J. dissenting). Thus, the dissent
does not establish that the state constitution is more protective than the federal
due process clause.
Because a court has yet to find a violation of the state right without a
violation of the federal right, raising a state claim independent of a federal claim
is a novel legal argument. As failure to raise a novel legal argument cannot be
ineffective assistance of counsel, Wright fails to establish deficient performance.
Without deficient performance, we do not address prejudice.
The petition is denied.
WE CONCUR: