IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 82550-0-I Respondent, Consolidated with No. 82580-1-I v. DIVISION ONE
DERRICK DWAYNE BRANCH, UNPUBLISHED OPINION
Appellant.
In the Matter of the Personal Restraint Petition of:
DERRICK DWAYNE BRANCH,
Petitioner.
CHUNG, J. — Derrick Branch was convicted of rape in the second degree
and felony violation of a domestic violence no-contact order, both alleged as
crimes of domestic violence and carrying additional domestic violence
aggravators. After his first appeal, this court remanded for resentencing. The trial
court imposed a determinate sentence and then, on the State’s motion, modified
it to an indeterminate sentence. Branch now appeals the modified sentence,
arguing that even though the court properly imposed an indeterminate term, he is
entitled to a full resentencing hearing. In his personal restraint petition (PRP),
consolidated here with the direct appeal, Branch claims the State committed
prosecutorial misconduct by eliciting excluded prior act testimony from its No. 82550-0-I /2
complaining witness and his counsel provided ineffective assistance by failing to
raise the claim of prosecutorial misconduct in his prior appeal. He also asserts
the State violated his constitutional rights by failing to meet its Brady1 obligation
to disclose exculpatory evidence on his phone and by refusing to return his
phone unless he agreed to give the State access to its contents. We affirm the
trial court’s order granting the State’s CrR 7.8 motion and amending his
sentence, and we deny his petition.
FACTS
The relevant background and procedural facts are set out in our opinion
on Branch’s first direct appeal:
Branch and S.M. met in February 2015 and began a romantic relationship. After S.M. moved in with Branch, she returned home with physical injuries. On July 1, 2015, Valley Medical Center emergency department treated S.M., where she reported that her boyfriend attacked and raped her. On June 1, 2016, S.M. reported domestic violence at the Des Moines Police Department. The next day, the Des Moines Police Department responded to a 911 call, where S.M. reported that her boyfriend choked her. She was transported to the emergency room at Highline Medical Center where she reported that her boyfriend physically and sexually abused her during their relationship. S.M. went to [the] Des Moines Police Department again on June 3, 2016, and reported more details about the prior rape and abuse from her boyfriend. S.M. then obtained a protection order against Branch. On numerous occasions, Branch was seen with S.M. after the court entered a no-contact order. The State charged Branch with four counts of assault, three counts of violation of a no-contact order, and one count of rape. At trial, S.M. testified that Branch never assaulted or raped her. She explained that her injuries were either caused by someone other than Branch or by herself when she would attack Branch and he would defend himself.
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2 No. 82550-0-I /3
State v. Branch, No. 78379-3-I, slip op. at 2-3 (Wash. Ct. App. Feb. 18, 2020)
(unpublished), http://www.courts.wa.gov/opinions/pdf/783793.pdf.
On remand, after considering mitigating factors, the trial court sentenced
Branch to an exceptionally low determinate sentence of 90 months. Soon
thereafter, however, the State filed a CrR 7.8 motion arguing it had been
incorrect in recommending a determinate sentence for his second degree rape
conviction and that the court should sentence Branch to an indeterminate
sentence. The sentencing court agreed and modified the judgment and sentence
by adding the maximum term of life, thus converting Branch’s sentence to an
indeterminate one. Branch appealed the order granting the CrR 7.8 motion and
modifying his judgment and sentence.
Separately, Branch filed his own CrR 7.8 motion alleging prosecutorial
misconduct. The trial court transferred that motion to this court as a PRP, which
we consolidated with Branch’s direct appeal of his modified sentence after
resentencing.
DISCUSSION
I. Appeal of Indeterminate Sentence
Branch appeals the trial court’s decision to grant the State’s CrR 7.8
motion and amend his exceptional downward determinate sentence of 90 months
to an indeterminate sentence of a minimum of 90 months to a maximum term of
life in prison.
3 No. 82550-0-I /4
We review a ruling on a CrR 7.8 motion for abuse of discretion. State v.
Crawford, 164 Wn. App. 617, 621, 267 P.3d 365 (2011). A trial court abuses its
discretion if its decision rests on untenable factual grounds or was made for
untenable legal reasons. State v. Frohs, 22 Wn. App. 2d 88, 92, 511 P.3d 1288
(2022). Interpretation of the Sentencing Reform Act is a question of law that we
review de novo. Crawford, 164 Wn. App. at 622.
After the parties’ opening briefs were filed, the Washington Supreme Court
decided In re Pers. Restraint of Forcha-Williams, 200 Wn.2d 581, 520 P.3d 939
(2022). Forcha-Williams concludes that sentencing courts lack the discretion to
replace an indeterminate sentence with a determinate one. 200 Wn.2d at 606.
The Court reasoned that setting and altering criminal penalties is the sole
prerogative of the legislature, and RCW 9.94A.507 requires both a minimum and
maximum term for sentencing of sex offenders. 200 Wn.2d at 591-93.
Branch was convicted of second degree rape, and he concedes that under
Forcha-Williams, the court was required to impose an indeterminate term. We
accept the concession. Branch argues that nevertheless, this court should
remand for a full sentencing hearing because if the trial court had known it was
required to impose a maximum term of life, it may have sentenced Branch to a
lower minimum term.
As we noted in Branch’s direct appeal, “[w]here a defendant has
requested an exceptional sentence below the standard range, ‘review is limited
to circumstances where the court has refused to exercise discretion at all or has
relied on an impermissible basis for refusing to impose an exceptional sentence
4 No. 82550-0-I /5
below the standard range.’ ” Branch, No. 78379-3-I, slip op. at 10 (quoting State
v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). We held in
Branch’s first appeal that the trial court initially “did not exercise its discretion”
and ordered “remand so that it can,” Branch, No. 78379-3-I, slip op. at 12, and it
is clear that the sentencing court on remand did so. The trial court held a hearing
and considered evidence, presentence reports and exhibits, and the arguments
of counsel. It then exercised its discretion by sentencing Branch to an
exceptional downward sentence, and supported the exceptional sentence with
written findings of fact and conclusions of law. Thus, the sentencing court had
already exercised its discretion by imposing an exceptional downward minimum
term; subsequently modifying that sentence by granting the State’s CrR7.8
motion and adding the statutory maximum term—a term over which it had no
discretion—did not change that exercise of discretion. Remand for resentencing
is unnecessary.
II. Personal Restraint Petition
In his PRP, Branch claims a violation of his right to a fair trial based on
prosecutorial misconduct and ineffective assistance from appellate counsel
because they failed to raise the prosecutorial misconduct issue in his first direct
appeal. He also challenges the State’s failure to disclose exculpatory evidence
on his cell phone under Brady, claiming it violated his rights to present a defense
and a fair trial. Finally, Branch claims conditioning the return of his phone on his
providing the State with his password violated his rights to privacy, association,
and against self-incrimination.
5 No. 82550-0-I /6
A person is entitled to relief via a PRP when that person is restrained
unlawfully. RAP 16.4; In re Pers. Restraint of Dodge, 198 Wn.2d 826, 836, 502
P.3d 349 (2022). The petition will be granted “if (1) [the defendant] was actually
and substantially prejudiced by a violation of his constitutional rights; or (2) that
the claimed error constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” In re Pers. Restraint of Mulholland, 161 Wn.2d
322, 331-32, 166 P.3d 677 (2007) (internal quotations omitted). The petitioner
has the burden of proof by a preponderance of the evidence. In re Pers.
Restraint of Cook, 114 Wn.2d 802, 814, 792 P.2d 506 (1990).
A. Prosecutorial Misconduct and Ineffective Assistance of Counsel
Branch’s prosecutorial misconduct and ineffective assistance claims both
arise from the same allegedly “improper questions” asked by the prosecutor
during S.M.’s testimony. The State argues that this court rejected the same
grounds in Branch’s first direct appeal.
A personal restraint petition is not meant to be a forum for relitigation of
issues already considered on direct appeal. In re Pers. Restraint of Lord, 123
Wn.2d 296, 329, 868 P.2d 835 (1994). A petitioner is prohibited from renewing
an issue that was raised and rejected on direct appeal unless the interests of
justice require relitigating that issue. In re Pers. Restraint of Yates, 177 Wn.2d 1,
17, 296 P.3d 872 (2013). The interests of justice are served only if there has
been an intervening change in the law or some other justification for the
petitioner’s failure to raise a crucial point or argument in the prior application. Id.
“Simply ‘revising’ a previously rejected legal argument, however, neither creates
6 No. 82550-0-I /7
a ‘new’ claim nor constitutes good cause to reconsider the original claim.” In re
Pers. Restraint of Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990). Nor may a
petitioner recast an issue previously resolved on direct appeal by claiming
ineffective assistance of counsel. In re Pers. Restraint of Benn, 134 Wn.2d 868,
906, 952 P.2d 116 (1998).
In his Statement of Additional Grounds (SAG) in his first direct appeal,
Branch argued the State asked S.M. “objectionable questions knowing that
[S.M.]’s answers would introduce inadmissible evidence.” On this point, this
court’s opinion states, “Branch does not identify any inadmissible evidence
introduced by the State.” Branch, No. 78379-3-I, slip op. at 14. Branch further
argued the questions were “a rape shield violation” and also violated “the motions
in limine.” We noted Branch could not seek relief for violations of the rape shield
statute because it protects victims, not defendants. Further, we stated, “Branch
does not point to any motions in limine that the prosecutor violated.” Id.
While we determine that Branch did previously raise the same issue about
the prosecutor’s questions, with the benefit of briefing in this PRP by appointed
counsel, the basis for Branch’s arguments is more apparent. Thus, while we
determine Branch cannot relitigate that claim via collateral attack, we
nonetheless examine it to explain that conclusion.
Before trial, the State sought to admit ER 404(b) evidence of prior acts of
violence by Branch toward S.M., including statements made to a sexual assault
nurse examiner, to the police, and in support of a petition for a domestic violence
protection order (DVPO) regarding an alleged sexual assault in February 2015.
7 No. 82550-0-I /8
Because S.M. was a recanting victim, the State sought to offer this evidence to
bolster S.M.’s credibility and, thus, to prove the charged acts occurred, as well as
to show her fear of Branch. The court denied the State’s motion to admit this
404(b) evidence because it could not find by a preponderance that the
uncharged acts occurred. It reserved whether the same evidence could be used
later to impeach S.M.
In its direct examination of S.M., the State laid a foundation that S.M. was
living with Branch in the summer of 2015. The following exchange then occurred:
[State] Okay. And were you still going to college at this time? [S.M.] I think no.
[State] Why? [S.M.] Uhm, because some things had happened prior, uhm, that had stopped me from going to college.
[State] What was that? [S.M.] Uhm, I was attacked and sexually assaulted, not by -- not by [Branch], but by someone else, and so I stopped going to college.
During a recess from testimony, Branch argued that the “State can’t open their
own door” for the 404(b) evidence previously excluded, to which the State
responded it “did not have any idea that would be her reply.” After further
discussion, the court reiterated its prior ruling not to allow the State to impeach
S.M. with prior inconsistent statements using evidence of prior uncharged acts—
specifically the February 2015 sexual assault that was the subject of the petition
for a DVPO, in which S.M. had identified Branch.
The next morning, after additional colloquy about the issue, the court
noted that although S.M. mentioned the February 2015 sexual assault on direct,
8 No. 82550-0-I /9
“it didn’t sound like [the State] was specifically trying to elicit” prior act evidence
and characterized S.M.’s testimony as “spontaneous.” Branch asked the court to
strike S.M.’s testimony from the prior day about the February 2015 assault and to
issue a limiting instruction. The State opposed the request and asked instead to
question S.M. about the February 2015 incident in order to distinguish it from the
charged act. The court declined Branch’s request to strike the testimony, stating
the jurors would likely not be able to obey that instruction and it was not
necessary to prevent unfair prejudice to Branch.
When S.M.’s testimony resumed, the State established that S.M. and
Branch’s relationship began in February 2015, that they were living together, that
Branch was her boyfriend in October and November 2015, and that Branch was
the only boyfriend S.M. ever had. Then the State asked S.M. to go back to the
prior day’s testimony “that [S.M.] had been attacked and sexually assaulted by
someone else and that it happened near the college in Auburn.” Branch
objected, the court overruled the objection, and the court asked the parties to
move on.
Later, out of the presence of the jury, the State asked the court to allow it
to “ask clarifying questions to distinguish [S.M.’s testimony] as to the time period,
where it occurred, whether she reported, and if she had injury.” Branch objected,
but the court allowed the State to ask these questions. The court reasoned that
while it had excluded ER 404(b) evidence, at this point, S.M. had testified to a
sexual assault by someone other than Branch, and the State was not asking the
court to revisit the 404(b) analysis. When direct examination resumed, the State
9 No. 82550-0-I /10
asked its questions. Branch objected to the State’s question about whether the
assault by the stranger occurred at the beginning or end of 2015. The court
overruled the objection and S.M. responded it “probably happened [at] the
beginning.”
The crux of Branch’s claim both on direct appeal and in this PRP is that
pre-trial, the court had excluded ER 404(b) evidence relating to uncharged prior
acts of violence by Branch against S.M., and that it was misconduct for the State
to have then elicited S.M.’s testimony about the February 2015 assault.
Generally, to prevail on a prosecutorial misconduct claim, a defendant
who timely objects must prove that the prosecutor’s conduct was both improper
and prejudicial in the context of the entire trial. State v. Zamora, 199 Wn.2d 698,
708-09, 512 P.3d 512 (2022) (citing State v. Loughbom, 196 Wn.2d 64, 70, 470
P.3d 499 (2020)) (internal quotations omitted). On collateral review, a petitioner
must prove that “the alleged misconduct was either a constitutional error that
resulted in actual and substantial prejudice or a fundamental defect that resulted
in a complete miscarriage of justice.” In re Pers. Restraint of Lui, 188 Wn.2d 525,
539, 397 P.3d 90 (2017).
The prosecutor’s questions to S.M. about the February 2015 incident were
not improper. The State did not elicit S.M.’s testimony about it; rather, S.M.
raised the incident herself in response to a question about why she left college.
Further questioning by the State about the incident did not elicit any of the
previously excluded ER 404(b) evidence. ER 404(b) prohibits “[e]vidence of other
crimes, wrongs, or acts . . . to prove the character of a person in order to show
10 No. 82550-0-I /11
action in conformity therewith.” But S.M. did not testify that Branch attacked and
sexually assaulted her. Rather, she testified that the perpetrator was someone
else. Nor did the court permit the State to impeach S.M. with her prior statement
in support of her petition for a DVPO that accused Branch of the February 2015
assault. Because the prosecutor’s questions were not improper, Branch also
cannot establish that they were prejudicial.
Having raised the claim of prosecutorial misconduct on direct appeal,
Branch cannot raise the same claim again in this PRP. He also cannot recast this
claim as ineffective assistance of appellate counsel. See In re Pers. Restraint
Petition of Khan, 184 Wn.2d 679, 688-89, 693, 363 P.3d 577 (2015) (allowing
ineffective assistance claim on new ground not previously raised on direct
review, but refusing to review a separate ineffective assistance claim that was “a
repackaging of” grounds resolved on direct review). Thus, we deny Branch’s
PRP claim based on prosecutorial misconduct.
B. Claims Based on Cell Phone Information
Branch claims his rights to present a defense and to a fair trial were
denied because the State withheld exculpatory evidence on his phone. He further
claims the court violated his rights to privacy, association, and against self-
incrimination by conditioning Branch’s access to his phone. 2
2 Branch at points claims the State, rather than the court, was responsible for these
violations, alleging it “tried to leverage its possession of exculpatory information to force Mr. Branch to give up his rights to privacy, association, and against self-incrimination.”
11 No. 82550-0-I /12
The State seized Branch’s phone incident to his arrest. The State had
warrants to search the phone for evidence that Branch violated a no-contact
order, but it could not unlock the phone, and Branch refused to provide the code.
Pre-trial, S.M. told her victim advocate that “she was concerned that she could
get into trouble for something on the phone, she didn’t specify what.” The State
subsequently informed Branch that “the phone may contain potentially
exculpatory information (based on what the victim represented to the advocate).
Please consult with the defendant as to whether he wants to consent to the
search of his cell phone by providing the password.”
Branch moved for the return of his phone. The court decided Branch
should have access to his phone, but if he decided to use anything from it, then
the State should have access to the unlocked phone. The court offered to let
Branch’s investigator unlock the phone and make a copy of its contents for
Branch’s inspection. If Branch decided to use the copy, a copy would also be
turned over to the State. Branch agreed he would notify the court if he wanted
such an order, but the record does not show he ever did so. The State never
succeeded in unlocking Branch’s phone.
A Brady violation occurs when a prosecutor suppresses “evidence
favorable to an accused . . . where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87, cited in In re Pers. Restraint of Mulamba, 199 Wn.2d 488, 497,
508 P.3d 645 (2022). Brady claims are reviewed de novo. Mulamba, 199 Wn.2d
at 498.
12 No. 82550-0-I /13
A Brady violation consists of three elements. First, the withheld evidence
must be favorable to the accused, either because it is exculpatory or because it
is impeaching; second, the evidence must have been suppressed by the State,
either willfully or inadvertently; and third, prejudice must have ensued. Mulamba,
199 Wn.2d at 498 (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct.
1936, 144 L. Ed. 2d 286 (1999) (internal quotations omitted); In re Pers. Restraint
of Stenson, 174 Wn.2d 474, 486-87, 276 P.3d 286 (2012)).
Here, as to whether the withheld evidence was favorable to Branch,
Branch argues the phone’s contents must have been favorable to him because
the State used the word “exculpatory.” But beyond this speculation, Branch has
not pointed to any evidence that there was exculpatory information. While the
State did not further investigate what S.M. meant by her statement to her victim
advocate, 3 its failure to do so is not evidence that the State knew of any
information on the phone that was exculpatory.
Regarding the second element of suppression of evidence, the
“prosecution is under no obligation to turn over materials not under its control.”
State v. Mullen, 171 Wn.2d 881, 901, 259 P.3d 158 (2011) (quoting United
States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)). Moreover, when a
defendant has enough information to be able to ascertain the supposed Brady
material on the defendant’s own, there is no suppression by the government.
3 A prosecutor has a duty to learn of and disclose any favorable evidence known to
others acting on the government’s behalf. Mulamba, 199 Wn.2d at 499 (citing Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). There is no record evidence that the State followed up with S.M. about what she meant.
13 No. 82550-0-I /14
Aichele, 941 F.2d at 764 (citing United States v. Dupuy, 760 F.2d 1492, 1501 n.5
(9th Cir. 1985) (collecting cases)). Here, Branch knew more about the contents of
his phone than the State. The State agreed it would gain access to the unlocked
phone only if Branch chose to use its contents, and Branch did not so choose.
The State had access to the physical phone, but not the contents, so it did not
suppress information.
Finally, Branch cannot establish the third element for a Brady violation,
prejudice. Prejudice means material to the result. Mulamba, 199 Wn.2d at 498.
Evidence is material for Brady purposes when there is a “reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Mulamba, 199 Wn.2d at 498 (quoting
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481
(1985) (plurality)). Branch does not explain how the suppressed evidence was
material, but rather argues that he cannot make an offer of proof when the State
is in possession of his phone. But the information remained inaccessible to the
State, and Branch had more knowledge about the phone’s information content
than did the State. See Mullen, 171 Wn.2d at 899 (“[A]ny allegation of
suppression boils down to an assessment of what the State knows at trial in
comparison to the knowledge held by the defense.”). Branch also chose to
interview S.M. without creating a record about what she said was on the phone.
Branch fails to establish prejudice from the State’s failure to disclose information
on Branch’s own cell phone.
14 No. 82550-0-I /15
In addition to the alleged Brady violation, Branch also argues that by
conditioning the return of the phone on his providing his password, the court
violated his rights to privacy, association, and against self-incrimination. But he
does not challenge the propriety of the State’s warrants to search his phone. 4 A
valid warrant provides the “authority of law” required to “disturb” a person’s
“private affairs.” CONST. art. I, § 7. While Branch cites cases stating that
cellphones reveal private information, he fails to provide any argument applying
that authority to the facts here. “This court will not consider claims insufficiently
argued by the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).
We affirm the trial court’s order granting the State’s CrR 7.8 motion and
amending his sentence, and we deny Branch’s PRP.
WE CONCUR:
4 Instead, Branch claims the court’s “limitless ruling permitting the government complete
access to all information on the phone far exceeded the information authorized by the . . . narrowly tailored search warrant.”