Filed Washington State Court of Appeals Division Two
March 4, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57944-8-II
Respondent,
v. UNPUBLISHED OPINION
JOSIAH PAUL SWEENEY,
Appellant.
CHE, J. ⎯ Josiah Sweeney appeals his convictions for two counts of aggravated first
degree murder, first degree burglary, and felony violation of a protective order.
Before trial, Dr. Michelle Hart evaluated Sweeney for competency. Dr. Hart determined
that Sweeney was competent to stand trial and that he presented with no active symptoms of a
mental illness. Before sentencing, Dr. Alexander Patterson evaluated Sweeney multiple times.
After trial and for the purposes of sentencing, Dr. Patterson submitted a report and was “fairly
confident [] Sweeney meets criteria for schizophrenia.” Clerk’s Papers (CP) at 449 (emphasis
omitted).
On appeal, Sweeney argues that (1) sentencing defendants with severe, diagnosed but
untreated, mental illness to life in prison without the possibility of parole is cruel punishment
under the federal and state constitutions, (2) he was deprived of effective assistance of counsel
because his attorney failed to produce evidence that a mental illness prevented him from forming No. 57944-8-II
the requisite mental state to commit the charged crimes and also failed to propose a diminished
capacity instruction, and (3) we should strike the crime victim penalty assessment (VPA).
We affirm the convictions but remand for the trial court to strike the VPA.
FACTS
I. BACKGROUND
In October 2021, law enforcement officers conducted a welfare check at the home of
Michael and Patricia Sweeney.1 In the home, they found the bodies of Michael and Patricia
Sweeney, who had been stabbed to death. They also found Michael and Patricia Sweeney’s son,
Josiah Sweeney, asleep in another room. At the time, there was a no-contact order in effect,
prohibiting Sweeney from contacting Michael Sweeney or going to his father’s home.
Detectives Kyle Kempke and Howard Reynolds detained and interviewed Sweeney. In the
interview, Sweeney denied either stabbing or knowing what happened to his parents.
The State charged Sweeney with two counts of aggravated first degree murder, first
degree burglary, and felony violation of a protective order. All counts carried a deadly weapon
enhancement and a domestic violence allegation.
In January 2022, at the request of Sweeney’s counsel, the trial court ordered a
competency evaluation for Sweeney because “Sweeney has significant memory issues and
possibly processing issues that may interfere with his ability to assist in his defense. [] Sweeney
has demonstrated an inability to retain information communicated by [his attorney] as well as an
inability to recall past events.” CP at 41-42. The competency evaluation order provided that the
1 Because the last name is shared between Josiah Sweeney and his parents, we use “Sweeney” to refer to the appellant, Josiah Sweeney, while we refer to his parents by their first and last name.
2 No. 57944-8-II
evaluation shall include, among other things, “[a] diagnosis or description of the current mental
status of the defendant.” CP at 44.
In February 2022, Dr. Michelle Hart evaluated Sweeney and filed a competency report.
Her evaluation included, among other things, conducting an hour-long interview and mental state
examination of Sweeney and reviewing available records such as notes made by jail mental
health staff, from when Sweeney was previously incarcerated, which stated that Sweeney
“‘appears confused and unsure when answering . . . questions,’” and that he “‘may be
minimizing symptoms of [mental illness].’” CP at 55. Dr. Hart’s report provided that Sweeney
“demonstrated intact attention and concentration. His memory was intact for short-term, recent
and remote. His intellectual functioning likely fell no lower than the average range, based on his
vocabulary, abstract reasoning skills, and fund of information.” CP at 56. The report further
provided, “Sweeney presented in this evaluation with no active symptoms of mental illness.” CP
at 56. Dr. Hart concluded that Sweeney was competent to stand trial. Based on Dr. Hart’s
report, the trial court found Sweeney competent.
The matter proceeded to a jury trial and witnesses testified consistently with the facts
above. Additionally, Detective Kempke testified that Sweeney was “very calm and sort of
without emotion” during the beginning of the interview with Detectives Kempke and Hamilton.
3 Rep. of Proc. (RP) (Jan. 23, 2023) at 1332. However, Detective Kempke stated that Sweeney,
when presented thereafter with “difficult and uncomfortable questions” from the detectives,
“would hunch forward and had his hands—I guess it’s called steepled where he would have his
fingers together, and he would be shaking, and his legs were shaking so that his entire body was
3 No. 57944-8-II
trembling.” 3 RP (Jan. 23, 2023) at 1333.2 Kempke also described Sweeney as chewing on his
tongue during these moments. According to Kempke, Sweeney’s presentation was not
consistent:
So we could be in the middle of him shaking and trembling and there would be numerous occasions where he would -- you could see his entire body just stop. He would sit up, his whole demeanor would change, and he would start talking about going back to school or how he was gonna get to work or something completely not associated with the question that he’d just been asked.
3 RP (Jan. 23, 2023) at 1334.
In January 2023, jury trial commenced and the jury convicted Sweeney on all charges.
II. SENTENCING
In Sweeney’s sentencing brief, Sweeney argued that a sentence of life without the
possibility of parole would be categorically unconstitutional as to individuals suffering from
severe mental illnesses under the constitutional prohibition on cruel punishment, and Sweeney
argued that he was suffering from such an illness. Sweeney largely argued that persons suffering
under such mental illnesses are similar to children for sentencing purposes. Sweeney attached to
his sentencing brief a February 2023 report by Dr. Alexander Patterson.
Dr. Patterson generated the February 2023 report following Sweeney’s counsel’s request
to evaluate “apparent cognitive and/or psychiatric symptoms” Sweeney presented while detained
in jail and to do this evaluation for the purposes of sentencing mitigation. CP at 443. In
introducing his report, Dr. Patterson stated that Sweeney’s counsel “initially requested a
psychological evaluation to clarify the nature of these symptoms and to what degree they may
2 Detectives Kempke and Reynolds also assumed a hunched-over stance several times during their interrogation of Sweeney.
4 No. 57944-8-II
have contributed to [Sweeney’s] crimes.” CP at 443. Dr. Patterson explained that, in conducting
his evaluation, he had interviewed Sweeney three times between February 2022 and July 2022,
administered three different tests, reviewed Dr. Hart’s competency evaluation report which
discussed the jail mental health records, and also reviewed the case’s discovery materials. While
Dr. Patterson commented that “[d]iscovery information relevant to [] Sweeney’s mental health
was rather sparse,” he mentioned reviewing, among other things, comments made by Sweeney’s
neighbors to police that he “had ‘mental problems’ and ‘needed mental health help,’” and
recordings of a police interrogation. CP at 447.
Dr. Patterson’s report noted that, after completing his first interview with Sweeney, “[Dr.
Patterson] initially suspected [] abnormalities [in Sweeney’s speech, behavior, and complained
of symptoms during the interview] were the result of schizophrenia, although [Dr. Patterson] was
not confident in this impression as the available information was relatively sparse.” CP at 448-
49. However, at the time of the report’s filing, Dr. Patterson was “fairly confident [] Sweeney
meets criteria for schizophrenia.” CP at 449 (emphasis omitted). The report further provided
that it was “difficult to comment on the potential nexus between Mr. Sweeney’s mental illness
and the crimes” but it was “likely” that Sweeney was symptomatic at the time of the crimes and
that such symptoms possibly motivated the crimes. CP at 450. Dr. Patterson noted that the
aforesaid conclusions were “obviously speculative” but also that “there is a non-trivial possibility
that symptoms of [Sweeney’s] mental condition played a direct role in his crimes.” CP at 450.
At his sentencing hearing, Sweeney stated that he “[was] not aware of any national
consensus with regard to life without parole for the class of individuals that we’re discussing
5 No. 57944-8-II
here.” RP (Feb. 27, 2023) at 1898. In arguing that Sweeney was a member of the class,
Sweeney referred the trial court to Dr. Patterson’s report. Sweeney’s counsel stated:
[T]here are mental health defenses, diminished capacity and insanity. The report from Dr. Patterson was initially -- the defense asked for Dr. Patterson to do his evaluations in order to explore those defenses. In the report, you can see [Dr. Patterson] was not able to opine on a nexus between the mental illness and the formation of intent or -- for the purposes of diminished capacity or the ability to perceive the nature and quality of the acts for the purposes of insanity.
RP (Feb. 27, 2023) at 1893-94. Sweeney’s counsel then stated, “We’re not trying to
retroactively say that either of those defenses would be appropriate in this case, but [the report] is
a diagnosis.” RP (Feb. 27, 2023) at 1894.
The trial court found that Sweeney failed to establish a diagnosis of schizophrenia
beyond a reasonable doubt or even by a preponderance of the evidence considering Dr. Hart’s
initial report which found no mental illness, the late timing of Dr. Patterson’s report, and “Dr.
Patterson’s equivocation.” RP (Feb. 27, 2023) at 1908. The trial court further found that, even if
Sweeney established a mental illness diagnosis, Sweeney failed to show that a life without parole
sentence is categorically unconstitutional as applied to a class of individuals suffering from
mental illnesses.
The trial court sentenced Sweeney to life imprisonment without the possibility of parole,
found Sweeney indigent for the purposes of determining legal financial obligations, and imposed
the VPA.
ANALYSIS
I. CRUEL PUNISHMENT
Sweeney argues that RCW 10.95.030—which requires mandatory life sentences without
parole for persons convicted of first degree aggravated murder—is categorically unconstitutional
6 No. 57944-8-II
as to persons with a “diagnosed but untreated mental illness” as it constitutes cruel punishment
under both the state and federal constitutions. Br. of Appellant at 21.
A. Legal Principles
When a defendant is found guilty of first degree aggravated murder, the trial court must
sentence them to life imprisonment without the possibility of parole. State v. Moen, 4 Wn. App.
2d 589, 598, 422 P.3d 930 (2018) (citing RCW 10.95.030(1)). To date, our courts have only
recognized one very narrow exception for when such a sentence would be categorically
unconstitutional. See State v. Carter, 3 Wn.3d 198, 232, 548 P.3d 935 (2024) (holding that, for
youthful offenders with first degree aggravated murder convictions, determinate sentences are
permissible because Washington case law has held that sentencing youthful offenders to
mandatory life sentences without the possibility of parole is unconstitutional). Outside of this
limited circumstance, RCW 10.95.030(1) “does not give a trial court discretion to consider
mitigating factors and depart from the prescribed life sentence.” Moen, 4 Wn. App. 2d at 598.
We presume a statute is constitutional and review the constitutionality of a statute de
novo. Id. “The party challenging the statute bears the burden of proving its unconstitutionality
beyond a reasonable doubt.” Id.
B. Membership in the Proposed Constitutionally-Protected Class of Those with a Severe,
Diagnosed but Untreated, Mental Illness
Sweeney asserts that the trial court erred in determining that Sweeney failed to prove a
schizophrenia diagnosis and, thus, erred in finding that Sweeney did not qualify as a member of
Sweeney’s proposed protected class. We disagree that the trial court erred in finding that
Sweeney failed to prove a schizophrenia diagnosis and, because Sweeney fails to show he was
7 No. 57944-8-II
part of any proposed constitutionally-protected class, we do not directly address his cruel
punishment constitutional argument.
1. Standard of Review
Because “we do not make determinations on constitutional issues unless necessary to the
determination of a case,” we must first consider Sweeney’s contention that the trial court erred in
finding that Sweeney failed to prove a schizophrenia diagnosis. State v. Rice, 159 Wn. App. 545,
561, 246 P.3d 234 (2011) (citing State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981)). This is
so because Sweeney’s claim that his sentence is unconstitutional relies on the argument that such
a sentence is unconstitutional to impose on those with a severe, diagnosed but untreated mental
illness. In order for Sweeney’s argument to succeed for the purpose of determining his case,
Sweeney must, thus, be a member of such a class. See Hall, 95 Wn.2d at 539 (declining to pass
judgment on a constitutional issue when such was not “absolutely necessary” per the facts in the
case).
Unless we find a “clear abuse of discretion or misapplication of the law,” we will not
reverse a sentencing court’s decision. Carter, 3 Wn.3d at 212. An abuse of discretion occurs if
the trial court’s decision is “manifestly unreasonable or based upon untenable grounds.” Id.
(quoting State v. Haag, 198 Wn.2d 309, 317, 495 P.3d 241 (2021)). A decision is manifestly
unreasonable if the trial court “adopts a view ‘that no reasonable person would take,’ and arrives
at a decision ‘outside the range of acceptable choices.’” State v. Castillo-Lopez, 192 Wn. App.
741, 746, 370 P.3d 589 (2016) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638
(2003)). “Untenable grounds consist of factual findings that are unsupported by the record.”
Carter, 3 Wn.3d at 212.
8 No. 57944-8-II
We review a trial court’s factual findings by evaluating whether its findings are supported
by “substantial evidence.” Carter, 3 Wn.3d at 212. Evidence is substantial if “‘there is a
sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the
truth of the finding.’” Carter, 3 Wn.3d at 212 (quoting Haag, 198 Wn.2d at 317). However, our
review does not extend to weighing the evidence or determining witness credibility. State v.
Boyer, 200 Wn. App. 7, 13, 401 P.3d 396 (2017) (citing Quinn v. Cherry Lane Auto Plaza, Inc.,
153 Wn. App. 710, 717, 225 P.3d 266 (2009)).
2. The Trial Court Did Not Err in Determining that Sweeney Did Not Establish
Membership in the Proposed Class at the Center of His Constitutional Claim
Sweeney argues that the trial court erred in finding that Sweeney did not have a severe,
diagnosed but untreated mental illness. Br. of Appellant at 41. We disagree.
First, Sweeney contends that the trial court erred in its conclusion that Sweeney failed to
establish that he suffered from schizophrenia because the trial court “in part . . . viewed Dr.
Patterson’s diagnosis as ‘speculative.’ ” Br. of Appellant at 41. However, Sweeney
mischaracterizes the trial court’s findings. In the portion of the record Sweeney cites to for this
contention, the trial court never stated that it based its finding on concluding that Dr. Patterson’s
diagnosis was “speculative.” See Br. of Appellant at 41 (citing RP (Feb. 27, 2023) at 1907-08).3
Instead, the trial court stated it found “Dr. Patterson’s equivocation” relevant to its conclusion
that “the diagnosis of [] Sweeney of schizophrenia is not established beyond a reasonable
3 The only mention of speculation in the two pages Sweeney points to is when the trial court discusses how “[m]uch of Dr. Patterson’s opinions are framed in terms of saying that his opinions are that it is possible or speculative in terms of the possible state of [] Sweeney at the time of the murders and the connection between the diagnosis and the crimes.” RP (Feb. 27, 2023) at 1907-08 (emphasis added).
9 No. 57944-8-II
doubt . . . [nor] a lower standard by a preponderance.” RP (Feb. 27, 2023) at 1908 (emphasis
added). Because equivocation connotes credibility, the trial court’s finding here appears to speak
more to Dr. Patterson’s credibility as opposed to whether the diagnosis itself was speculative.4
Even if the trial court based its determination on finding Dr. Patterson’s diagnosis
speculative, a reasonable, fair-minded person would have come to such a conclusion after
examining the evidence presented. While Dr. Patterson’s report at one point stated that
“Sweeney has a severe mental illness” as well as “I am fairly confident [] Sweeney meets criteria
for schizophrenia,” his report also contained statements of uncertainty in the diagnosis when
defense counsel initially engaged Dr. Patterson’s opinion and around the time Dr. Hart
completed her evaluation. CP 449-50 (emphasis added). Dr. Patterson stated, “I initially
suspected [] abnormalities [in Sweeney’s speech, behavior, and symptoms complained of during
the interview] were the result of schizophrenia, although [I] was not confident in this impression
as the available information was relatively sparse.” CP at 448-49.
However, Dr. Patterson offered no explanation why a schizophrenia diagnosis came
several months after his last meeting with Sweeney in July 2022 and almost a month after trial in
February 2023 when Sweeney had no history of mental health diagnoses or treatment. Nothing
in Dr. Patterson’s report suggests that he conducted additional interviews with Sweeney in the
nearly six-month gap between their last interview and sentencing, and, yet, the evidence Dr.
Patterson relies on for his diagnosis is overwhelmingly based on impressions from his previous
4 “Equivocation” is synonymous with “uncertainty, evasiveness, [and] prevarication.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 769 (3rd ed. 2002).
10 No. 57944-8-II
interviews. Considering this evidence, a reasonable, fair-minded person would have concluded
that Dr. Patterson’s report provided speculation of a mental illness diagnosis.
Second, Sweeney contends that the timing of Dr. Patterson’s report was irrelevant
because “evidence known to the parties and court well before sentencing also established that
[Sweeney] was suffering from a previously undiagnosed and untreated mental illness.” Br. of
Appellant at 41-42. Sweeney relies on both the trial judge’s initial concern about Sweeney’s
competency, as evidenced by the judge’s order for evaluation, and the observations of the jail
mental health staff. But Sweeney’s counsel initiated the competency evaluation, the trial court
appears to have ordered the competency evaluation based on representations by Sweeney’s
counsel, and the jail mental health staff’s concerns were already considered by Dr. Hart who did
not find Sweeney met any mental illness criteria and whose report the trial court relied on in
finding Sweeney competent.5
Further, the equivocal nature and timing of Dr. Patterson’s report were just two reasons
the trial court provided for why it found Sweeney failed to meet his burden in establishing a
schizophrenia diagnosis. In its analysis, the trial court also stated that the timing of Dr. Hart’s
report and its contents also were instructive in deciding whether Sweeney met his burden. Dr.
Hart’s report, while for a different purpose, also evaluated Sweeney’s mental state closer in time
5 Sweeney additionally argues that Dr. Patterson’s report noted that neighbors spoke with investigators and stated that Sweeney “had ‘mental problems’ and ‘needed mental health help,’ ” which established a mental illness. Br. of Appellant. at 42. But Dr. Patterson’s report, immediately following presenting the neighbors statements, then noted that “[v]ery few details were provided” to law enforcement. CP at 447. Without any additional context for the statements or information provided to the trial court, a reasonable, fair-minded person would have found the neighbor’s comments insufficient to establish a mental health diagnosis in light of the other evidence presented to the trial court, including the opinions of two psychologists. And our review does not extend further into weighing evidence. Boyer, 200 Wn. App. at 13.
11 No. 57944-8-II
to the crimes and opined that “it does not appear that [] Sweeney meets diagnostic criteria for
any mental health diagnosis.” CP at 57.
Because a reasonable, fair-minded person considering the evidence in the record would
have doubted Sweeney’s schizophrenia diagnosis, we hold that the trial court did not err in its
finding. As Sweeney fails to establish membership in the very class of defendants he argues is
being unconstitutionally punished, we decline to consider further whether a life without the
possibility of parole sentence is unconstitutionally cruel as applied to defendants with a severe,
diagnosed but untreated, mental illness as that question is not necessary to determining
Sweeney’s case. See Rice, 159 Wn. App. at 561.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Sweeney argues that he was deprived of effective assistance of counsel because his
attorney failed to produce evidence that a mental illness prevented Sweeney from forming the
requisite mental state to commit the charged crimes. Additionally, Sweeney argues that his
attorney deficiently performed by failing to propose a diminished capacity instruction. Sweeney
contends that these failures by his counsel prejudiced his defense at trial. We disagree.
Both the Sixth Amendment to the United States Constitution and article 1, section 22 of
the Washington Constitution guarantee defendants effective assistance of counsel. State v.
Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). However, we give “great deference to trial
counsel’s performance and begin[] the analysis with a strong presumption that counsel was
effective.” State v. Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541 (2019).
12 No. 57944-8-II
To demonstrate that counsel’s performance was constitutionally ineffective, a defendant
must show that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001). A
defendant demonstrates deficient performance by showing that counsel’s performance “fell
below an objective standard of reasonableness based on consideration of all the circumstances.”
Crow, 8 Wn. App. 2d at 507. A defendant must show, based on the record, “the absence of
legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” State v.
Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012) (quoting State v. McFarland, 127 Wn.2d 322,
336, 899 P.2d 1251 (1995)). To demonstrate prejudice, a defendant must show that “but for the
ineffective assistance, there is a reasonable probability that the outcome would have been
different.” Cienfuegos, 144 Wn.2d at 227. Because a defendant must establish both deficient
performance and prejudicial effect, “the failure to show either prong will end our inquiry.” State
v. Case, 13 Wn. App. 2d 657, 673, 466 P.3d 799 (2020).
To establish an insanity defense, a defendant must show, by the preponderance of the
evidence, that:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He or she was unable to perceive the nature and quality of the act with which he or she is charged; or
(b) He or she was unable to tell right from wrong with reference to the particular act charged.
RCW 9A.12.010.
Additionally, if there is substantial evidence that a defendant has a mental illness and
evidence logically connecting that illness to the defendant’s inability to possess the required
13 No. 57944-8-II
level of culpability for the charged crime, then a diminished capacity instruction must be given.
Cienfuegos, 144 Wn.2d at 227. However, a failure to request a diminished capacity instruction
“is not ineffective assistance of counsel per se.” Id. at 229. Instead, determining whether
Sweeney was deprived of effective assistance of counsel because counsel did not request a
diminished capacity instruction presents three questions: (1) whether Sweeney was entitled to a
diminished capacity instruction, (2) whether it was deficient performance for counsel to not have
requested that instruction, and (3) whether the failure to request that instruction sufficiently
prejudiced Sweeney’s defense. Id. at 227.
“‘Diminished capacity’ is a mental condition, not amounting to insanity, ‘that is
demonstrated to have a specific effect on one’s capacity to achieve the level of culpability
required for a given crime.’” State v. Taylor, 18 Wn. App. 2d 568, 585, 490 P.3d 263 (2021)
(quoting State v. Gough, 53 Wn. App. 619, 622, 768 P.2d 1028 (1989). Expert testimony is
required to present a diminished capacity defense. Taylor, 18 Wn. App. 2d at 585. And
“[e]xistence of a mental disorder is not enough, standing alone, to raise an inference that
diminished capacity exists, nor is conclusory testimony that the disorder caused a diminution of
capacity. The testimony must explain the connection between the disorder and the diminution of
capacity.” Gough, 53 Wn. App. at 622; see also State v. Clark, 187 Wn.2d 641, 651, 389 P.3d
462 (2017).
B. Sweeney Fails to Show that His Attorney Performed Deficiently in Not Presenting
Evidence of a Mental Illness at Trial
Sweeney argues that his defense counsel should have presented evidence of Sweeney’s
mental illness at trial to show that he did not have the requisite mental state for the charged
14 No. 57944-8-II
crimes and should have requested a diminished capacity instruction.6 Sweeney asserts that his
counsel should have suspected he had a mental health illness before trial because, during his
interview with Detective Kempke, (1) Sweeney was emotionless at the start of the interview, (2)
Sweeney placed his hands in a steepled position, chewed on his tongue, and shook
uncontrollably in response to difficult questions, and (3) Sweeney strayed off topic and gave
irrelevant answers to Detective Kempke’s questions.
We disagree with Sweeney’s contention that his counsel deficiently performed based on
these facts. Clearly, Sweeney’s counsel recognized that Sweeney may have suffered from a
mental health illness and took reasonable steps to evaluate both competency and the viability of
relative defenses prior to trial. Only a few months after Sweeney’s arrest, Sweeney’s counsel
requested a competency evaluation, which included an evaluation of “the current mental status of
the defendant.” CP at 44. Also, around that same time, Sweeney’s counsel retained Dr.
Patterson to independently explore diminished capacity and insanity defenses. Despite Dr.
Patterson’s post-sentencing report explaining his diagnosis of Sweeney, the report was not
created prior to trial and so Sweeney’s counsel could have neither advanced an insanity defense
nor requested a diminished capacity instruction based on the report. See RCW 10.77.030
(requiring a defendant to file written notice of their intent to rely on such a defense before trial);
Taylor, 18 Wn. App. 2d at 585 (“A diminished capacity defense requires expert testimony.”).
6 At trial, Sweeney’s counsel argued that the State failed to meet its burden of establishing beyond a reasonable doubt the requisite mental state for first degree murder and general denial regarding all the charges. See e.g., 3 RP (Jan. 26 2023) at 1536; 4 RP (Jan. 30, 2023) at 1753.
15 No. 57944-8-II
Furthermore, at sentencing, Sweeney’s counsel explained why they did not pursue either
an insanity or diminished capacity defense at trial, and, even, stated that Dr. Pattersondid not
support such defenses:
The report from Dr. Patterson was initially -- the defense asked for Dr. Patterson to do his evaluations in order to explore those defenses. In the report, you can see [Dr. Patterson] was not able to opine on a nexus between the mental illness and the formation of intent or -- for the purposes of diminished capacity or the ability to perceive the nature and quality of the acts for the purposes of insanity.
RP (February 27, 2023) at 1893-94. As Dr. Patterson could not opine on a connection between
any mental illness of Sweeney and the circumstances of the crime, Sweeney’s counsel had a
strategic reason for not pursuing such defenses at trial and not requesting Dr. Patterson to write
his report prior to sentencing. See RCW 9A.12.010 (for an insanity defense, evidence a
defendant must establish includes that “at the time of the commission of the offense, as a result
of mental disease or defect” his state of mind was affected to a certain degree); Gough, 53 Wn.
App. at 622 (for a diminished capacity defense, expert testimony “must explain the connection
between the disorder and the diminution of capacity.”). And Sweeney can point to no other
evidence on the record that would have supported either an insanity or a diminished capacity
defense.
Thus, under these circumstances, Sweeney fails to show that his counsel’s failure to
produce evidence of a mental illness during the trial or present either a diminished capacity or
insanity defense at trial was without legitimate strategic or tactical reasons or otherwise deficient
performance. Because Sweeney does not show that defense counsel deficiently performed,
Sweeney’s claim of ineffective assistance of counsel fails before reaching the prejudicial effect
16 No. 57944-8-II
prong of the analysis. See Case, 13 Wn. App. 2d at 673. We hold that counsel’s performance
was not constitutionally ineffective.
III. VPA
Sweeney argues we should strike the VPA from his judgment and sentence because the
trial court found him indigent for the purposes of appeal. The State does not oppose striking the
VPA. “Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the crime
victim penalty assessment on indigent defendants.” See State v. Ellis, 27 Wn. App. 2d 1, 16, 530
P.3d 1048, pet. for rev. filed, 102378-2 (2023). And that amendment applies to cases on direct
appeal. Ellis, 27 Wn. App. 2d at 16. We remand for the trial court to strike the VPA from
Sweeney’s judgment and sentence.
CONCLUSION
We affirm Sweeney’s convictions, but remand for the trial court to strike the VPA.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Che, J. We concur:
Veljacic, A.C.J.
Price, J.