This opinion was filed for record
at~~- OD ClM-. oJwM~, 241 o~?--c:i.~ . SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Petitioner, ) No. 93143-7 ) v. ) En Banc ) KEVIN LEE ESTES, ) ) Filed JUN O8 2017 Respondent. ) )
OWENS, J. -After an altercation where he cut someone's foot and pinky
finger, Kevin Estes was convicted of felony harassment and third degree assault. The
jury returned deadly weapon verdicts for both convictions, elevating both offenses to
third "strikes" under Washington's three strikes law, the Persistent Offender
Accountability Act (POAA). RCW 9.94A.030. The State then reminded the court
that "this is a third strike case," to which Estes's attorney responded, "He wasn't
convicted of a strike offense." 4 Verbatim Tr. of Proceedings (VTP) (Sept. 12, 2014)
at 504. The prosecutor explained that Estes's convictions counted as strikes because State v. Estes No. 93143-7
of the deadly weapon enhancements. Estes was then sentenced to the mandatory
minimum of life in prison.
Estes appealed, alleging ineffective assistance of counsel. See U.S. CONST.
amend. VI; CONST. art. I, § 22. He claimed his trial counsel did not know that he
would be sentenced as a persistent offender if the jury convicted him of any felony
with a deadly weapon enhancement. The Court of Appeals ordered a new trial,
holding that counsel was ineffective because he did not understand the strike offense
consequences and thus could not fully inform Estes of his options during the plea
bargaining process. We agree and affirm the Court of Appeals.
FACTS
On February 19, 2014, Kevin Estes went over to his friend James Randle's
apartment in Puyallup. Randle's roommate, Anthony Prusek, was also in the
apartment that evening, along with Prusek' s girlfriend, Ashley Stoltenberg.
Estes drank alcohol and played video games with Randle and Prusek while
Stoltenberg watched television in another room. Estes soon began making comments
about Stoltenberg's breasts, asking Prusek for a nude photo. Having overheard this
exchange, an angry Stoltenberg came out of the bedroom and told Estes, "'If you do
not stop talking about me like that, I am going to slap you.'" 2 VTP (Sept. 8, 2014) at
84.
2 State v. Estes No. 93143-7
According to Stoltenberg, Estes then stood up aggressively and said, "'Time to
die, bitch"' while taking a knife out of his pocket. Id. at 86. Prusek grabbed Estes,
and the two men struggled. Estes began "flailing around" with the knife, and Prusek' s
foot and pinky finger were cut while the men wrestled. Id. at 133.
Stoltenberg left the room and called 911. Meanwhile, Randle took the knife
from Estes and put it on top of the refrigerator. Randle told Estes to leave because the
police were coming, and Estes complied.
A responding officer, Officer Greg Massey, found Estes sitting in his car in the
driveway. After an "angry and agitated" Estes opened the car door and told the
officer that there had been a fight, the officer searched Estes and found a knife in his
pocket. Id. at 209. Estes told the officer that this was not the knife from the incident.
Nevertheless, Massey confiscated the knife and took it into evidence.
Another officer, Officer Steve Pigman, responded later in the evening and
entered the apartment. He noticed a different knife on top of the refrigerator, and
Stoltenberg told him that it was the knife used in the incident. That knife was not
taken into evidence.
The State charged Estes with second degree assault against Prusek, second
degree assault against Stoltenberg, and felony harassment against Stoltenberg, with
deadly weapon enhancements added to each count. Because Estes had previously
been convicted of two strike offenses under RCW 9.94A.030, the State filed a
3 State v. Estes No. 93143-7
persistent offender notice warning that if the jury found Estes guilty of second degree
assault, felony harassment, or any other most serious offense, he would be sentenced
to life without the possibility of parole. The persistent offender notice did not provide
any information about the impact of the deadly weapon enhancements.
During a discussion of jury instructions, defense counsel objected to an
instruction on the lesser included offense of third degree assault and proposed
instructions on fourth degree assault and self-defense. He did not object to the court's
instructions on the deadly weapon enhancements or to the deadly weapon special
verdict form for the felony harassment charge.
At closing arguments, the State argued that both the knife found on Estes' s
person and the one on top of the refrigerator were "deadly weapon[s ]" because of their
blade length or capacity to cause death. 4 VTP (Sept. 10, 2014) at 444-46, 453-54.
Defense counsel argued that due to inconsistent accounts from witnesses, the State
could not meet its burden of proving an assault occurred. He argued that the knife
that was introduced into evidence was not the knife used in the incident, noting that
witnesses remembered that the knife was "long and big and whatever," but that they
knew nothing more about it. Id. at 468-69.
The jury acquitted Estes of both second degree assault charges, but found Estes
guilty of one count of third degree assault ( a lesser included offense) and felony
4 State v. Estes No. 93143-7
harassment. They returned deadly weapon verdicts for both crimes, elevating them to
strike offenses. 1
After the jury returned its verdicts and was excused, the following exchange
took place:
[PROSECUTOR]: ... As the Court is aware, this is a third strike case. There's no issue as to - as to -
[DEFENSE COUNSEL]: He wasn't convicted of a strike offense.
[PROSECUTOR]: Apparently, the Defendant is a third strike case because of the deadly weapon enhancements, so there's no issue as to the sentencing. -
Id. (Sept. 12, 2014) at 504.
Defense counsel then moved to dismiss the deadly weapon verdicts, arguing
that they were inconsistent with the acquittals on second degree assault. He noted that
"[t]he jury was not asked to make a determination of the weapon's length nor were
they asked to determine whether the knife was per sea deadly weapon," and also
argued that the sentences were disproportionate. Clerk's Papers (CP) at 340. The trial
court denied the motion.
Constrained by the POAA, the trial court sentenced Estes to total confinement
for life without the possibility of release. The trial judge stated at the close of
1 Second degree assault is a strike in and of itself. By contrast, third degree assault and felony harassment count as strikes only when coupled with a deadly weapon verdict, as they were here. RCW 9.94A.030(33)(b), (t).
5 State v. Estes No. 93143-7
sentencing, "I will just say that ... this is not the kind of strike that we typically
would be looking for as a community to be a third strike." 4 VTP (Nov. 7, 2014) at
534.
Estes appealed, alleging ineffective assistance of counsel. The Court of
Appeals reversed Estes' s convictions, holding that defense counsel was ineffective
because he did not understand the strike offense consequences and thus could not
fully inform Estes of his options during the plea bargaining process. State v. Estes,
193 Wn. App. 479, 494, 372 P.3d 163 (2016). Judge Maxa dissented, stating that the
record was inconclusive as to what Estes's attorney did or did not know. Id. at 495.
The State petitioned for review, which was granted. State v. Estes, 186 Wn.2d
1016, 380 P.3d 522 (2016).
ISSUES
1. Was Estes' s trial counsel prejudicially ineffective?
2. Did the Court of Appeals rely on facts outside the record when it found
ineffective assistance of counsel?
ANALYSIS
The State argues that Estes cannot show that his attorney's performance was
deficient and that even if it was, he failed to show he suffered any prejudice resulting
from deficient performance. Relatedly, the State also contends that the Court of
6 State v. Estes No. 93143-7
Appeals relied on facts outside of the record when it found ineffective assistance of
counsel. We disagree, affirm the Court of Appeals, and remand for a new trial.
A. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution and article I, section
22 of the Washington Constitution guarantee the right to effective assistance of
counsel. See U.S. CONST. amend. VI; CONST. art. I,§ 22. We review ineffective
assistance of counsel claims de novo. State v. Jones, 183 Wn.2d 327, 338-39, 352
P.3d 776 (2015).
Washington has adopted Strickland v. Washington's two-pronged test for
evaluating whether a defendant had constitutionally sufficient representation. 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Cienfuegos, 144 Wn.2d
222,226, 25 P.3d 1011 (2001). Under Strickland, the defendant must show both
(1) deficient performance and (2) resulting prejudice to prevail on an ineffective
assistance claim. Strickland, 466 U.S. at 687; Jones, 183 Wn.2d at 339.
Performance is deficient if it falls "below an objective standard of
reasonableness based on consideration of all the circumstances." State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice exists if there
is a reasonable probability that "but for counsel's deficient performance, the outcome
of the proceedings would have been different." State v. Kyllo, 166 Wn.2d 856, 862,
215 P.3d 177 (2009); Strickland, 466 U.S. at 694. The defendant must affirmatively
7 State v. Estes No. 93143-7
prove prejudice and show more than a "'conceivable effect on the outcome"' to
prevail. State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006) (quoting
Strickland, 466 U.S. at 693). At the same time, a "reasonable probability" is lower
than a preponderance standard. Strickland, 466 U.S. at 694; Jones, 183 Wn.2d at 339.
Rather, it is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694.
Washington courts also indulge a strong presumption that counsel's
representation was reasonable. Kyllo, 166 Wn.2d at 862. Performance is not deficient
if counsel's conduct can be characterized as legitimate trial strategy or tactics. Id. at
863.
Finally, the Strickland court warned against mechanical application of these
guidelines. It reminded that "a court should keep in mind that the principles we have
stated do not establish mechanical rules .... [T]he ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose result is being challenged."
Strickland, 466 U.S. at 696. Thus, we consider not just Strickland's basic test, but
also this guiding principle in our analysis.
B. The POAA and Third Strikes
Estes' s ineffective assistance claim hinges on whether or not his trial counsel
knew that deadly weapons enhancements would elevate Estes' s convictions to third
8 State v. Estes No. 93143-7
strikes. Thus, a bit of background into relevant portions of the POAA is necessary to
provide context.
Under the POAA, trial courts are required to sentence "'persistent offenders"'
to life in prison without the possibility of parole. Crawford, 159 Wn.2d at 89-90;
RCW 9.94A.570. A "persistent offender" is one who has been convicted of any
felony considered a "most serious offense" under RCW 9.94A.030(38)(a)(i) and who
has twice been previously convicted of such offenses or equivalent offenses in other
states. The definition includes a list of specific felonies, but also includes "[a]ny other
felony with a deadly weapon verdict." RCW 9.94A.030(33)(t). The statute defines a
"deadly weapon" as "an implement or instrument which has the capacity to inflict
death and from the manner in which it is used, is likely to produce or may easily and
readily produce death." RCW 9.94A.825. Any knife with a blade longer than three
inches is a deadly weapon. Id.; State v. Thompson, 88 Wn.2d 546,548,564 P.2d 323
(1977).
For purposes of evaluating defense counsel's performance, it is also important
to know that second degree assault, with which Estes was charged but not convicted,
also involves the term "deadly weapon." A person is guilty of second degree assault
if, among other things, he or she "[a]ssaults another with a deadly weapon." RCW
9A.36.021(1)(c). Thus, the term "deadly weapon" is relevant not just for the
9 State v. Estes No. 93143-7
applicability of deadly weapon enhancements, but also as the basis for establishing the
elements of second degree assault (a strike in and of itself).
1. Defense Counsel's Performance Was Deficient: the Record Demonstrates That He Was Unaware That the Deadly Weapon Enhancements Converted Estes 's Convictions into Strike Offenses
First, we consider the first Strickland prong: whether defense counsel's
performance was deficient. We must, therefore, evaluate whether his conduct was
reasonable considering all the circumstances. Strickland, 466 U.S. at 688. The State
first contends that Estes cannot show his attorney's performance was deficient,
primarily arguing it is not clear from the record that counsel was unaware that Estes
was convicted of a strike offense. We disagree. As explained below, the record
clearly demonstrates that defense counsel was unaware that his client was convicted
of a strike offense. He was thus unable to inform Estes of a key matter in the case.
The duty to provide effective assistance includes the duty to research relevant
statutes. In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91,102,351 P.3d 138
(2015) (counsel has a duty to advise on immigration consequences for a noncitizen
defendant). Failing to conduct research falls below an objective standard of
reasonableness where the matter is at the heart of the case. Kyllo, 166 Wn.2d at 868.
For example, in Crawford, we found deficient performance when defense counsel
knew that her client had an extensive criminal record but failed to conduct additional
research to ascertain whether her client was at risk of a third strike. 15 9 Wn.2d at 91,
10 State v. Estes No. 93143-7
99. And in State v. Aho, we found deficient performance where reasonably adequate
research would have prevented the possibility of conviction based on acts predating
the relevant statute's effective date. 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999).
Similarly, defense counsel's failure to investigate the impact of deadly weapon
enhancements under the POAA was objectively unreasonable here. While counsel
was aware of Estes' s criminal history and the fact that he had already been convicted
of two strike offenses under the POAA, the record shows that he was unaware that
Estes' s convictions converted to strike offenses when coupled with deadly weapon
verdicts. Counsel stated that he was unaware that his client was convicted of a strike
offense, repeatedly acquiesced to characterizations of both knives as "deadly
weapons," and argued against the enhancements posttrial only after he became aware
of his mistake. We review each of these facts in turn.
First, defense counsel's statement at the close of trial is direct evidence that he
was unaware of the impact of the deadly weapon enhancements. After the jury
returned its verdicts and immediately after the prosecutor informed the trial court that
"this is a third strike case," defense counsel stated that he believed Estes was not
convicted of a strike offense. 4 VTP (Sept. 12, 2014) at 504. We should take him at
his word: he was not aware that Estes had been convicted of a third strike.
The State argues that this "single, offhand remark" is not enough to
demonstrate deficient performance, suggesting that counsel "may have been
11 State v. Estes No. 93143-7
momentarily confused or simply misspoke." Suppl. Br. of Pet'r at 15. We disagree.
Attorneys may be momentarily confused about many things: the proper page number
of a citation, the name of a case cited in a brief, the age of a party. Momentary
confusion about an essential point of law-whether or not a client was convicted of a
third strike-is far less likely. We have found deficient performance when counsel
later admitted that she was unaware of a key matter in the case. See Crawford, 159
Wn.2d at 92, 99 (attorney testified posttrial that she had not investigated defendant's
out-of-state conviction because she assumed it had been a misdemeanor). We find no
differently here, where counsel admitted as such-albeit inadvertently-at the close
of trial.
To support its argument that Estes's attorney may have known about the
significance of the enhancements, the State also points out that the record reveals
multiple instances where counsel attempted to exclude evidence relating to the knife.
These attempts show that counsel likely understood the significance of excluding the
knife for purposes of avoiding a conviction for second degree assault (a strike in and
of itself), as the jury instructions stated that a person commits second degree assault
when he "assaults another with a deadly weapon." CP at 301; RCW 9A.36.02l(l)(c).
However, it is clear that counsel did not understand the significance of the deadly
weapon enhancements, in particular their ability to elevate a usually "nonstrike"
charge to a strike offense.
12 State v. Estes No. 93143-7
Defense counsel often acquiesced to the characterizations of the knives as
deadly weapons. For example, he objected when the State moved to admit the knife
that Officer Massey took from Estes's person, but appeared to not have a problem
with that knife being admitted for "deadly weapon purposes," stating that "I agree that
they can argue that he was armed with a deadly weapon during the assault, that's the
deadly weapon, that's fine. As long as they can't say that that's not the knife that was
used in the assault." 2 VTP (Sept. 8, 2014) at 204. He also failed to object to other
witness characterizations of the knife as "deadly," "sharp," "capable of causing
serious bodily injury," and capable of causing "[v]ery, very, very, very grave harm."
3 VTP (Sept. 9, 2014) at 270; 2 VTP (Sept. 8, 2014) at 87, 134.
These choices might be characterized as trial strategy except for the fact that
counsel did begin to vigorously fight the deadly weapon enhancements posttrial, after
the prosecutor pointed out that the enhancements elevated Estes' s convictions to strike
offenses. Posttrial, defense counsel moved to dismiss the enhancements due to
insufficient evidence, conflicting verdicts, the length of the blade, and a
disproportionate sentence. He explained that when he measured the actual "blade"
with a ruler, it did not measure more than three inches and, therefore, did not meet the
definition of a "per se deadly weapon." He argued that the jury had never been asked
to make a determination of the weapon's length or determine whether the knife was a
per se deadly weapon. There is no tactical explanation for why these arguments were
13 State v. Estes No. 93143-7
not brought up at any point during the trial, especially when these distinctions could
mean the difference between a life sentence and a shorter one.
A defendant can overcome the presumption of effective representation by
demonstrating "that counsel failed to conduct appropriate investigations." State v.
Thomas, 109 Wn.2d 222,230, 743 P.2d 816 (1987) (citing State v. Jury, 19 Wn. App.
256, 263, 576 P.2d 1302 (1978)). Estes has done so here. Counsel's statement that
"[Estes] wasn't convicted of a strike offense" coupled with other evidence from the
record demonstrates that he was unaware of the impact of the deadly weapon
enhancements. 4 VTP (Nov. 7, 2014) at 504. This failure to familiarize himself with
a key aspect of the POAA was objectively unreasonable, especially in light of the fact
that Estes was facing a third strike. As such, we find deficient performance.
2. Estes Was Prejudiced When He Was Deprived of the Ability To Make an Informed Decision about Whether To Plead Guilty
Establishing deficient performance is not the end of our analysis. Estes must
also show that counsel's poor performance was prejudicial. The State argues that
Estes was not prejudiced at trial, noting that at least some of counsel's arguments
"were effective in convincing the jury not to convict [Estes] of the more serious
offenses." Suppl. Br. of Pet'r at 12. We agree: counsel's performance at trial is not,
in and of itself, enough to demonstrate prejudice. But the right to effective assistance
of counsel applies to more than just the trial itself.
14 State v. Estes No. 93143-7
The United States Supreme Court has recently held that the right to effective
assistance of counsel applies in the plea bargaining context. Lafler v. Cooper, 566
U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); see also Missouri v. Frye, 566
U.S. 133, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). In Lafler, the Court held that a
defendant was prejudiced by trial counsel's deficient performance in advising him to
reject a plea offer and go to trial. The majority opined, "Even if the trial itself is free
from constitutional flaw, the defendant who goes to trial instead of taking a more
favorable plea may be prejudiced from either a conviction on more serious counts or
the imposition of a more severe sentence." Lafler, 566 U.S. at 166. Similarly, in
another case, the Court held that the failure to advise a client of the risk of deportation
in pleading guilty constitutes deficient performance, given that the justices had "long
recognized that deportation is a particularly severe 'penalty."' Padilla v. Kentucky,
559 U.S. 356, 365, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (quoting Fong Yue Ting
v. United States, 149 U.S. 698, 740, 13 S. Ct. 1016, 37 L. Ed. 905 (1893)); see also
Yung-Cheng Tsai, 183 Wn.2d at 102.
This court, too, has recognized a right to effective assistance in plea bargaining,
stating that effective assistance includes "assisting the defendant in making an
informed decision as to whether to plead guilty or to proceed to trial." State v. A.N.J.,
168 Wn.2d 91, 111, 225 P.3d 956 (2010). Counsel must, at a minimum, "reasonably
evaluate the evidence against the accused and the lilrnlihood of a conviction if the case
15 State v. Estes No. 93143-7
proceeds to trial so that the defendant can make a meaningful decision as to whether
or not to plead guilty." Id. at 111-12; see also State v. Edwards, 171 Wn. App. 379,
394, 294 P.3d 708 (2012). Uncertainty about the outcome of plea bargain
negotiations should not prevent reversal where confidence in the outcome is
undermined. State v. James, 48 Wn. App. 353, 363, 739 P.2d 1161 (1987);
However, in Crawford, we addressed an issue involving a third strike
conviction but found that the defendant did not prove prejudice. 159 Wn.2d at 89-90.
There, a defendant was sentenced to life in prison without the possibility of parole
under the POAA. At a posttrial hearing, his trial attorney admitted that she had not
investigated one of Crawford's out-of-state convictions because she assumed it had
been a misdemeanor. Id. at 92. We found that counsel's failure to investigate
Crawford's prior convictions was deficient under the first Strickland prong. Id. at 98-
99. However, a five-justice majority of this court found no prejudice, concluding that
Crawford had not demonstrated that but for counsel's error, he would have avoided
sentencing under the POAA. The majority noted that (1) Crawford presented no
evidence that the prosecutor would have allowed him to plead guilty to a lesser
offense and (2) there was a lack of mitigation evidence in the record. Id. at 100-02.
The dissent urged that the majority misapplied the Strickland standard in concluding
that Crawford had not established prejudice, stating, "[W]e need not be certain the
16 State v. Estes No. 93143-7
errors of counsel determined the outcome .... [I]nstead, a mere reasonable probability
of a different outcome is all that is required." Id. at 104.
This case is distinguishable from Crawford. In Crawford, the record contained
no evidence that the prosecutor would have been willing to allow him to plead guilty
to a lesser offense. Here, however, at the close of sentencing, the prosecutor stated as
follows:
[O]ur office has a policy on third strike cases where the defense ... has an opportunity to seek mitigation ... [and ask] for something other than a third strike resolution. The Defendant, Mr. Estes, declined to enter into any negotiations whatsoever during the entire course of this case. Also he did not wish to avail himself of the mitigation process.
4 VTP (Nov. 7, 2014) at 534. Thus, the State indicated its willingness to work with
Estes to reach a different outcome, but Estes apparently refused to negotiate. 2 Had
Estes come forward, the State may have been willing to negotiate "something other
than a third strike resolution." Id.
The State counters that "[t]his case was not one in which the State appeared
eager to reduce his charges in any meaningful way and [was] not required to do so."
Suppl. Br. of Pet'r at 18. This focus on the prosecutor's actions, rather than Estes's, is
misplaced here. Estes did not attempt to negotiate, and thus we cannot speculate
about the specifics of what the State may or may not have offered him. What we do
2 During the pendency of his case, Estes filed several motions and documents with the court. CP at 35-144. In one such document, he wrote, "I would stipulate to a [misdemeanor] drunk and disorderly or the equivalent that precludes county probation, fine, and or alcohol assessment. ... If not it's time for trial, no more b.s. continuances." Id. at 86.
17 State v. Estes No. 93143-7
know is that lacking knowledge about a key matter in his case, Estes declined to
negotiate from the outset.
That being said, the State is correct that the record does not show with
complete certainty that had Estes known about the impact of the deadly weapon
enhancements, he would have been able to negotiate a different outcome. But we
need not be 100 percent sure that the outcome would have been different to find
prejudice here: the Strickland Court clarified that a defendant need not even make his
showing on a more-likely-than-not basis. 466 U.S. at 693. Here, it is reasonably
probable that had Estes known that there was a much higher chance that he would be
spending life in prison, the result of the proceeding would have differed.
Defense counsel did not research the implications of the deadly weapon
enhancements, and thus he was unable to communicate crucial information to his
. client. There is a reasonable probability that had Estes been fully informed, he would
have negotiated a different outcome. Estes was denied the ability to "mak[ e] an
informed decision" about whether to plead guilty, and we find that defense counsel's
conduct prejudiced Estes. A.NJ, 168 Wn.2d at 111.
3. The Court ofAppeals Did Not Rely on Facts outside the Record, and a Direct Appeal Is a Proper Remedy Here
After his convictions, Estes filed a statement of additional grounds (SAG) in
which he wrote, "[My defense attorney] did not advise me that the weapon
enhancement was a strike in its self [sic] or when attached to a[ n] Assualt [sic] 3 or
18 State v. Estes No. 93143-7
felony harassment." SAG at 2. Pointing to this assertion, the State argues that the
Court of Appeals impermissibly considered facts outside the record when it
determined that Estes' s attorney was ineffective. The State also suggests that rather
than file a direct appeal, Estes should file a personal restraint petition in order to
develop a record about what defense counsel knew or did not know. We disagree.
When an ineffective assistance claim is raised on appeal, this court may
consider only facts contained in the record. McFarland, 127 Wn.2d at 335. Any off-
the-record conversations between Estes and his attorney must be raised in a personal
restraint petition. State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011).
There is no evidence that the Court of Appeals relied on facts outside the record
in this case. In actuality, the Court of Appeals explicitly declined to take Estes's
statement at face value, stating, "[I]nsofar as [Estes' s] assertion implicates matters
outside the record, we do not consider it. A personal restraint petition is the proper
vehicle for such an issue." Estes, 193 Wn. App. at 488 n.6. The Court of Appeals
went on to base its decision solely on the record itself, citing to the State's persistent
offender notice, defense counsel's statements during and after trial, and other facts
entirely within the record. See id. at 490-91.
The Court of Appeals did not rely on facts outside the record to reach its
decision, nor do we. The existing record on appeal clearly demonstrates that Estes' s
attorney did not know about the significance of the deadly weapon enhancements.
19 State v. Estes No. 93143-7
Since he was unaware of a key point of law, there was no way that he could have
communicated that information to his client. We need not look to facts outside the
record to make these inferences. 3
Relatedly, the State argues that the correct remedy in this case would be for
Estes to file a personal restraint petition, after which a reference hearing might be
appropriate in order to develop what counsel knew or did not know. We disagree. To
reiterate, the record is clear: defense counsel himself stated that he was unaware that
his client was convicted of a third strike. This statement is supported by the rest of the
record. A reference hearing is not necessary.
CONCLUSION
We believe that a defendant facing a third strike should be able to know the
nature and potential consequences of the charges before him in order to make an
informed decision about whether to plead guilty. The record indicates that here, this
was not the case. Trial counsel's deficient performance created a reasonable
probability that the outcome of the case would have been different but for this
performance. Thus, we affirm and remand for a new trial.
3 It is conceivable that Estes might have known about the impact of the deadly weapon enhancements (without being advised as such by his attorney), but there is no reason for us to assume so.
20 State v. Estes No. 93143-7
WE CONCUR:
21 State v. Estes (Kevin Lee)
No. 93143-7
GONZALEZ, J. (concurring)-Kevin Estes was convicted of third
degree assault and felony harassment while armed with a deadly weapon
after he scuffled with a friend over lewd comments he said about the friend's
girlfriend's body. Because of that deadly weapon finding, Estes was
sentenced to life imprisonment without possible release.
I agree with the majority that Estes's convictions should be reversed
and retried because he received ineffective assistance of counsel. See U.S.
CONST. amend. VI; CONST. art. I, § 22. More specifically, I agree that
Estes' s trial counsel was deficient because he was unaware a felony
conviction with a deadly weapon enhancement qualified as a strike offense
under Washington's three strikes law, RCW 9.94A.570. RCW
9.94A.030(38), 33(t). I also agree counsel's failure to recognize the
substantial penalties attached to that deadly weapon enhancement probably
affected the way counsel presented the case to the jury and the outcome of
this case. I write separately because I disagree with the majority about how State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)
that failure prejudic;ed Estes.
Unlike the majority, I am unconvinced Estes would have sought a plea
deal had defense counsel informed him he would be sentenced to life
imprisonment without possible release if the jury found he committed a
felony while armed with a deadly weapon. There is ample evidence that
Estes knew he would be sentenced to life imprisonment without possible
release if the jury convicted him of any one of the two crimes with which he
was charged: second degree assault or felony harassment with a deadly
weapon. 1 Despite knowing he could be sentenced to life in prison and
knowing the State was willing to negotiate a lesser charge, Estes refused to
engage in any plea negotiations. 4 Verbatim Tr. of Proceedings (VTP)
(Nov. 21, 2014) at 534. The majority fails to explain why knowing he could
receive that same sentence for the lesser included offense of third degree
assault with a deadly weapon would have altered Estes's steadfast position
throughout the pendency of his case that he would only accept a
"drastic[al]ly reduced plea" akin to drunk and disorderly conduct with "time
1 Clerk's Papers at 381 (persistent offender notice (third conviction) informing Estes that he is being charged as a persistent offender), 85 (letter from Estes reminding the State that "in essence you've tried to take my life" through filing these charges), 96 (pretrial forensic mental health report confirming Estes "correctly identified [he could receive] the statutory maximum sentence of 'life' in prison given his criminal history (i.e., 'third strike felony')"); 1 Verbatim Tr. of Proceedings (VTP) (Aug. 25, 2014) at 3, 31-32, 50 (State and defense counsel describing the case as a third strike case during pretrial motions in Estes's presence).
2 State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)
served." Clerk's Papers (CP) at 104. 2
While it is possible that this additional knowledge could have altered
Estes' s no-negotiation position and therefore the outcome of this case, it is
not reasonably probable. To prevail on an ineffective assistance of counsel
claim, the "defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id.
In my view, it is more likely--and indeed reasonably probable-that
had defense counsel la1own a deadly weapon finding would elevate a simple
felony to a strike offense, he would have argued during trial against that
finding much like he did posttrial when he realized its significance. See 4
VTP (Nov. 7, 2014) at 509-25. There is also a reasonable probability that
had defense counsel so argued, the jury would have decided this case
2 Estes sent numerous letters to the trial court expressing his belief that the charges against him should be dismissed because they were without legal merit. Twice, however, he mentioned a willingness to accept a misdemeanor plea so he could be released from pretrial custody and reunited with his family. CP at 86 ("I would stipulate to a [misdemeanor] [d]runk and disorderly or the equivalent that precludes County probation, fine, and or alcohol assessment ... [with] credit for time served [and] no more .... If not it's time for trial, no more b.s. continuances."), 104 ("[I]f [the court] support[s] the [State's] probable [cause assessment,] allow me a bail and order a negotiation/arbitration on a drastic[al]ly reduced plea of [d]isorderly conduct. I believe a c-class [misdemeanor] with credit for time served.").
3 State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)
differently.
At trial, the jury was asked to decide two questions regarding deadly
weapons: Did Estes "assault[] another with a deadly weapon" under RCW
9A.36.021(1)(c), and did he commit assault or felony harassment while
armed with a "deadly weapon" under RCW 9.94A.825? The first question
relates to his second degree assault charge. The second question relates to
the deadly weapon sentence enhancement.
What qualifies as a deadly weapon differs under each question. A
"deadly weapon" for purposes of second degree assault means "any ...
weapon, device, [or] instrument ... which, under the circumstances in which
it is used, attempted to be used, or threatened to be used, is readily capable
of causing death or substantial bodily harm." RCW 9A.04. l 10( 6). In
contrast, a "deadly weapon" for purposes of the sentence enhancement
means an "instrument which has the capacity to inflict death and from the
manner in which it is used, is likely to produce or may easily and readily
produce death," which expressly includes "any knife having a blade longer
than three inches." RCW 9.94A.825.
The jury found Estes did not assault anyone with a deadly weapon
capable of causing death or substantial bodily injury and therefore acquitted
him of second degree assault, see CP at 331, 333, but the jury did find he
4 State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)
committed third degree assault, CP at 332, while armed with a deadly
weapon either capable of inflicting death or having a blade longer than three
inches to qualify for the sentence enhancement, see CP at 338.
Because the jury did not specify, we cannot know with certainty
which of the two knives Estes had with him during the assault formed the
predicate for the jury's deadly weapon finding. Was it the knife he used
during the assault that grazed his friend's foot and pinky finger, or was it the
switchblade pocketknife law enforcement officers found in his pocket when
they arrested him?
Based on the jury's acquittal ofEstes's second degree assault charge,
it is unlikely the jury predicated the deadly weapon finding on the knife used
during the assault. To conclude otherwise would require us to believe the
jury found the knife was either capable of inflicting death or had a blade
longer than three inches even though the jury found Estes did not commit
assault with a knife capable of inflicting death or substantial bodily harm
and even though that knife was never produced at trial. Although the friend
testified at first that the blade of the knife was about three and a half to four
inches long, the friend later qualified that testimony, explaining he did not
get a "good look" at the knife because it was "moving around pretty fast." 2
VTP (Sept. 8, 2014) at 134, 186. One officer testified that while he saw the
5 State v. Estes (Kevin Lee), No. 9~ 143-7 (Gonzalez, J., concurring)
knife, he did not know how long the blade was, though he believed the entire
knife was approximately six inches long. 3 VTP (Sept. 9, 2014) at 256-57;
269-70. It is doubtful the jury could find beyond a reasonable doubt based
on the friend's and officer's testimony that the blade of the knife used during
the assault was longer than three inches.
Instead, it is more likely the jury predicated its deadly weapon finding
on the pocketknife the officers found in Estes' s pocket when they arrested
him since that knife was produced at trial. Because Estes did not use the
pocketknife in the assault, the jury could not have concluded the knife was
capable of producing death based on "the manner in which it was used."
RCW 9.94A.825.· Rather, the jury probably found the pocketknife was a
deadly weapon because it had "a blade longer than three inches." Id. Estes,
however, disagrees with that measurement.
According to Estes, the blade of the pocketknife was only three
1 inches, not longer than three inches. CP at 342. Even the State s forensic
expert, who measured the blade, agreed the blade was either "right at three
inches" or "maybe just a little, eighth inch shy, maybe really close to three
inches." 2 VTP (Sept. 8, 2014) at 217. But the expert also testified the
blade was "over three inches" and "almost three and quarter" inches. Id. at
218. Despite the importance of the blade's measurement and the expert's
6 State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)
contradictory testimony, defense counsel never asked the expert to clarify
this critical fact at trial. Id. at 218-19. Counsel's failure to cross-examine
the State's expert regarding this measurement reasonably affected the
outcome of Estes's case.
Because defense counsel did not realize the deadly weapon
enhancement would elevate a felony conviction to a strike offense, defense
counsel did not challenge the State's assertion that the blade was over three
inches long. Had counsel so argued, there is a reasonable probability the
jury would not have entered that deadly weapon finding given their other
findings. For this reason, I concur. Estes's defense counsel was ineffective,
and his convictions should be reversed.
7 State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)