     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

In the Matter of the Personal Restraint of                No. 69390-5-1

                                                                                        3E
                                                                                         I
                                                                                        crv   5-or
                                                                                              J- -C f'T
                                                                                              com,..,

MICHAEL MOCKOVAK,                                         PUBLISHED OPINION
                                                                                        vo
                                                                                                  'CD
                                                                                        CO    O
                     Petitioner.                          FILED: June 6, 2016           en    ~z




       Verellen, C.J. — To establish ineffective assistance of counsel, a defendant

must show that his counsel's performance fell below an objective standard of

reasonableness and that the deficiency prejudiced him. In 2011, a jury convicted

Michael Mockovak of attempted first degree murder, solicitation to commit first degree

murder, first degree theft, and conspiracy to commit first degree theft. We affirmed the

convictions on direct appeal. Mockovak subsequently filed this personal restraint

petition contending that his trial counsel was ineffective for failing to support his

entrapment defense with expert testimony that he suffers from "learned helplessness."

Because Mockovak does not establish a viable ineffective assistance claim, we deny his

petition.

                                           FACTS


        Mockovak's charges arose from his attempt to hire Russian hitmen to murder

Dr. Joseph King, his business partner in a chain of Clearly Lasik refractive eye surgery
No. 69390-5-1/2



centers. Mockovak plotted with Clearly Lasik's information technologies director, Daniel

Kultin, to have King and the company's former chief executive officer, Brad Klock,

murdered. Mockovak did not know Kultin was also working as an informant for the

Federal Bureau of Investigation (FBI) and wore a concealed recording device during

several of their conversations.

       In late 2008, Mockovak approached Kultin about having Klock murdered. Klock

had sued Clearly Lasik for wrongful termination, and Mockovak intimated that a person

like "Klock would not go far in Russia."1 Kultin remembers a conversation during this

time in which Mockovak referenced Klock's civil case and suggested Kultin may have

"friends or somebody, . . . some Russian that can just put an end to it. . . rather than

the legal way."2 Kultin indicated Mockovak made these comments "maybe in a joke

way," but not as a "funny joke."3 Mockovak had previously joked with Kultin on several

occasions about Kultin being in the Russian mafia due to Kultin's Russian accent and

daily attire of suits and ties.

       In early 2009, Mockovak told Kultin that Klock would be traveling to Europe and

this would be a good opportunity for something to "happen" to Klock.4 This

conversation distressed Kultin, who believed Mockovak wanted Klock killed. Kultin then

contacted his father, who eventually put him in contact with FBI agent Lawrence Carr.




       1 Report of Proceedings (RP) (Jan. 24, 2011) at 118.


       3ld
       4 Id. at 121.
No. 69390-5-1/3



       Agent Carr instructed Kultin that he should "never ever bring the subject [of

murder] up with [Mockovak] again."5 Instead, Kultin should only tell Mockovak he was

visiting friends in Los Angeles, including a friend Mockovak believed to be a member of

the Russian mafia. This would give them a "better idea of what Dr. Mockovak was

thinking."6 Agent Carr further instructed Kultin that if the discussion of his trip to Los

Angeles "should spark conversation about murder, that he was not to have any part of

that discussion. He was only to listen and to not contribute whatsoever to it."7 Overthe

next two months, Mockovak and Kultin did not discuss the matter.

       On August 3, 2009, Mockovak called Kultin and cryptically asked if they could

meet to discuss "that thing that we talked about before."8 They met in a parking lottwo

days later. Mockovak expressed his frustration about Klock's lawsuit and that he

wanted something to be "done to him."9 Mockovak also mentioned his partner King had

a $4 million life insurance policy if "something were to happen to him" as well.10 Kultin
told Mockovak he would "make some calls" to get more information.11

       Mockovak and Kultin met again on August 11, 2009. In a conversation recorded

by the FBI, Mockovak answered "yeah" when Kultin told him he had "made some calls"




       5RP(Jan. 20, 2011) at 69-70.
       6 jd at 73.
       7\±
       8RP(Jan. 24, 2011) at 131.
       9 id, at 136.
       10 Id at 134.
       11 Id. at 136.
No. 69390-5-1/4



to the hitmen saying Mockovak was interested in killing Klock.12 When Kultin told

Mockovak "they" could do it, Mockovak replied "Oh good. Good. Good."13 Mockovak

also answered "yeah" repeatedly when discussing killing methods, but finally laughed,

saying "I don't care" when asked how he wanted Klock killed.14 Mockovak then initiated

a discussion about laundering the money to pay the hitmen and Kultin.

       Kultin asked Mockovak if he wanted Klock murdered before his deposition in the

lawsuit was completed. Mockovak responded, "No, no, no, no, I want to go ahead and

have the deposition happen first."15 Mockovak explained that "[i]f it appeared that Klock

would drop his suit, then the murder, which Mockovak described as a purely 'financial

thing,' would be unnecessary."16 Mockovak told Kultin that he must make this clear to

the hitmen.


      The remaining facts of this case were succinctly set forth in Mockovak's direct

appeal as follows:

              Kultin next met with Mockovak on October 20, 2009. Kultin again
      wore a wire. Mockovak first reported that the depositions in Klock's
      lawsuit had been "outstanding." Mockovak told Kultin that there was
      nothing urgent about Klock, whom he described as nothing more than a
      "fly on the wall," but that the situation with King was different. Mockovak
      speculated that King was attempting to force him out of the business
      completely.

              Mockovak told Kultin that King would be traveling to Australia in
       November and showed Kultin the flight information he had discovered
       during his investigation the previous week. Kultin told Mockovak that the


       12 Ex. 54 (Aug. 11, 2009) at 34.
       13 id
       14 id at 40-41.
       15 id at 43.
       16 State v. Mockovak, noted at 174 Wn. App. 1076, 2013 WL 2181435 at *2.
No. 69390-5-1/5



      cost of a murder might be less expensive in Australia, which Kultin
      described as "a wild place." Mockovak replied, "Oh that's good" and
      "That's what I'm thinking." Kultin said that he would ask his friend whether
      the murder could be accomplished in Australia. Mockovak told Kultin that
      he had secreted enough cash to pay for the hit.

             On October 21, 2009, Mockovak called his insurance company and
      requested a copy of the policy on King's life. The policy . . . named
      Mockovak as the beneficiary.

             Kultin and Mockovak met again on October 22, 2009. In this
      conversation, which was also recorded by the FBI, Kultin told Mockovak
      that he had spoken to his friend and that "Australia is actually very easy."
      He told Mockovak that King could be killed "as a robbery" or "as an
      accident." Mockovak remarked that Australia was far away and that any
      investigation of King's death would never "come back here ever." Kultin
      asked whether King's wife, Holly, was also to be killed, and Mockovak told
      him "no." Mockovak told Kultin that he had been gathering cash and had
      by that time set aside $11,000. The two men then discussed when the
      post-murder payment would be required.



           Mockovak and Kultin next met to discuss the details of the plan on
      November 6, 2009. Mockovak described his attempts to discover
      additional details of King's travel plans. Mockovak told Kultin that he was
      trying to sell one of the Canadian surgical centers in anticipation of King's
      death. He said that he was excited about running the business without
      interference from King.

             Kultin asked Mockovak how he would like the murder to be
      accomplished. Mockovak proposed that King could be killed while he ran
      on the beach. When Kultin inquired whether Mockovak would like King's
      body to be found, Mockovak replied that having the body discovered
      would be better for purposes of collecting the proceeds of the insurance
      policy. Mockovak told Kultin that he did not care whether the killers
      delivered any message to King before murdering him. Instead, Mockovak
      explained, "I just want him the fuck out of my way."

             Kultin then asked Mockovak whether he had "thought this through,"
      and Mockovak replied that he was a "little uneasy." Kultin asked him
      whether he was going to "freak out" if the murder occurred, and Mockovak
      told him that he would not. Mockovak explained that although part of him
      was uneasy, he did not want to put himself at the mercy of an arbitrator or
No. 69390-5-1/6



      a judge. He told Kultin that King really "ha[d] this coming." Killing King,
      Mockovak explained to Kultin, was "the only sure way."

                Mockovak and Kultin then discussed how to launder the post-
      murder payment. Mockovak was concerned that his bank account activity
      would look suspicious if he were to withdraw a large sum of money shortly
      before King's death. The two men determined that Mockovak would
      purchase an expensive (but fake) watch from a jeweler associated with
      the same criminal organization for which the hit-men were working. Kultin
      emphasized that the second payment must be made or that both
      Mockovak and he would be in danger. Mockovak told Kultin that he
      understood and that he had no desire to get "serious people like this
      upset."



                Near the end of the conversation Mockovak told Kultin that he had
      often considered going to the garage of Clearly Lasik and killing King
      himself. Kultin replied, "don't do that." He told Mockovak that it was a
      "good thing you came to me because otherwise you would have done it
      the wrong way."

            Mockovak and Kultin agreed to meet the following day near Sea-
      Tac International Airport in order for Mockovak to deliver the first payment.
      The conversation concluded with Mockovak reiterating that the choice of
      Australia for the murder was "almost too good to be true."

           On November 7, 2009, Mockovak and Kultin spoke by telephone.
      Mockovak told Kultin that he had successfully stolen a portrait of King and
      his family from the Clearly Lasik office in Vancouver, Washington. He told
      Kultin that he was pleased that they had met on the previous night
      because it had given him 24 hours to contemplate the murder plan.
      Mockovak said, "It's absolutely the right thing to do."

             That night, Mockovak and Kultin met at a soccer park near the
      airport. The meeting was recorded by the FBI. The men went into a
      restroom where, as they had planned, Mockovak gave Kultin $10,000 in
      cash. Mockovak "wanted to make sure" that he would get his money back
      in the event that the hit was unsuccessful. Kultin replied that Mockovak
      would not lose his money.

            Mockovak then gave Kultin the photograph of King and his family.
      He explained that King now had three children and that the children were
      slightly older than they appeared in the picture. Kultin assured Mockovak
      that the picture of King's wife would be sufficient for the killers to identify
No. 69390-5-1/7



       King. Mockovak also gave Kultin a piece of paper on which he had
       handwritten King's flight information. He told Kultin, "we're ready."

              On November 11, 2009, at the direction of the FBI, Kultin called
       Mockovak and told him that everything was in place for the murder. He
       explained that the killers had located King in Australia and that they were
       now watching him. Kultin told Mockovak that he was expecting to hear
       news of the murder within several days. Mockovak responded, "That
       sounds good."[17]

       Mockovak was arrested the next day. The State charged him with solicitation to

commit first degree murder of King, attempted first degree murder of King, solicitation to

commit first degree murder of Klock, conspiracy to commit first degree theft, and

attempted first degree theft.

       Mockovak retained attorneys Jeffrey Robinson, Colette Tvedt, and Joseph

Campagna to defend him against these charges. Robinson was lead counsel and has

practiced criminal defense for over 30 years in Washington. The defense team

presented an entrapment defense at trial.

       A jury acquitted Mockovak of solicitation to murder Klock, but found him guilty of

the remaining charges. Mockovak appealed. In an unpublished opinion. State v.

Mockovak, this court affirmed his convictions.18

       Mockovak now files this timely personal restraint petition.

                                         ANALYSIS


       To obtain relief through a personal restraint petition, a petitioner must establish

either constitutional error resulting in actual prejudice or nonconstitutional error that




       17 id at *3-5.
       18 Noted at 174 Wn. App. 1076, 2013 WL 2181435.
No. 69390-5-1/8



"'inherently results in a complete miscarriage of justice.'"19 If a petitioner makes a prima

facie showing of actual prejudice but the reviewing court cannot determine the merits of

the claims solely on the record, the court should remand for a full hearing on the merits

or for a reference hearing.20 But "[t]his does not mean that every set of allegations

which is not meritless on its face entitles a petitioner to a reference hearing. Bald

assertions and conclusory allegations will not support the holding of a hearing."21 A

petitioner "must state with particularity facts which, if proven, would entitle him to relief

and must show that he has "competent, admissible evidence" to establish those facts.22

       In his petition, Mockovak claims he suffered prejudicial constitutional error due to

ineffective assistance of his trial counsel. Washington applies the Strickland v.

Washington23 test to determine whether counsel was ineffective.24 To prevail,

Mockovak must show both deficient performance and resulting prejudice.25 To establish

deficient performance, he bears the burden of showing that trial counsel's performance

fell "'below an objective standard of reasonableness.'"26 In assessing counsel's

performance, this court "must make every effort to eliminate the distorting effects of


       19 In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)
(quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)).
       20 In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992).
       21 id at 886.
       22 ]d
       23 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
       24 In Re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013).
       25 State v. Humphries, 181 Wn.2d 708, 719-20, 336 P.3d 1121 (2014) (citing
Strickland, 466 U.S. at 687-88).
      26 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting Strickland,
466 U.S. at 688).



                                              8
No. 69390-5-1/9



hindsight and must strongly presume that counsel's conduct constituted sound trial

strategy."27 It is Mockovak's burden to "show in the record the absence of legitimate

strategic or tactical reasons" for counsel's alleged omission.28 "'When counsel's

conduct can be characterized as legitimate trial strategy or tactics, performance is not

deficient.'"29

        Mockovak contends his trial counsel's failure to buttress his entrapment defense

with expert testimony regarding his "learned helplessness" was deficient performance.

He alleges a psychologist told his counsel prior to trial that he had been sexually

abused for years and had a "history of being easily manipulated and exploited."30 The

psychologist explained that "people who are repeatedly sexually abused as a child tend

to develop the attitude that resistance to, or escape from the abuser, is futile, and this

becomes part of their general response to people who seek to manipulate them."31 In

the psychologist's opinion, Mockovak's "history as a victim of childhood sexual abuse

made him more vulnerable to pressure exerted by others to get him to do something he

did not want to do, and thus made him more vulnerable to entrapment."32 Dr. Natalie

Novak Brown, a psychologist who evaluated Mockovak for this petition in November

2014, concluded that Mockovak's extensive childhood sexual abuse caused both



        27 Rice, 118 Wn.2d at 888-89 (emphasis added) (citing Strickland, 466 U.S. at
689).
        28 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
      29 Grier, 171 Wn.2d at 33 (quoting State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d
177(2009)).
        30 Gonsiorek Decl. at 2, U 5.
        31 id at 2, If 6.
        32 id at 3, H 9.
No. 69390-5-1/10



posttraumatic stress disorder (PTSD) and learned helplessness syndrome. Mockovak

argues it was deficient performance not to present such expert opinions on learned

helplessness in support of his entrapment defense.

      But there are legitimate tactical reasons why defense counsel would elect not to

introduce such evidence. For instance, such testimony would open the door to

evidence that, rather than being suggestible and easily manipulated, Mockovak was

considered manipulative and narcissistic by many of his longtime colleagues. Many

sent letters to the sentencing judge describing Mockovak as an amoral, remorseless,

and calculating sociopath, who referred to himself as Dr. Machiavelli and Dr. Evil. Thus,

a defense portraying Mockovak as helpless and susceptible to the influence of others

could have triggered the introduction of this damaging evidence and undermined

Mockovak's entrapment defense.

       Mockovak argues, however, that because Dr. Novak Brown believes he is a

victim of PTSD and victims of PTSD are often aggressive, counsel could have

countered any suggestion that incidents of aggressive behavior undercut his learned

helplessness and entrapment defense. But even accepting that PTSD explains why

Mockovak is not passive, it does not explain his past amoral, remorseless, and

sociopathic manipulation of others. Such behavior is inconsistent with the proposition

that Mockovak is suggestible and easily manipulated.

       Mockovak also contends that his counsel's misunderstanding of the law, not trial

strategy, is the reason counsel did not employ a learned helplessness theory. He points

to several portions of the record in support of this claim. First, he points to the

declaration of his attorney friend, Ronald Marmer. According to Marmer, during a



                                             10
No. 69390-5-1/11



pretrial discussion about whether there was "a way to put the State to its burden of proof

on the mens rea elements of the charges," trial counsel Tvedt stated that Mockovak had

to choose between the defenses of diminished capacity and entrapment because he

could not present both.33 Second, Mockovak notes trial counsel Robinson's statement

in open court that under Washington law, Mockovak had to admit to the charged offense

before he could plead a defense of entrapment. Mockovak claims that because "the law

does not require defendants to admit the offense in order to plead entrapment, and

does not require an either/or choice between entrapment and diminished capacity," his

counsel mistakenly believed that they could not present both defenses.34 And he

contends these mistakes resulted in counsel deciding not to introduce the learned

helplessness testimony.

       But even assuming counsel suffered from some misunderstanding of the law, it is

the conduct of trial counsel, not counsel's understanding of legal principles, that is

critical to a claim of deficient performance; "Strickland . . . calls for an inquiry into the

objective reasonableness of counsel's performance, not counsel's subjective state of
mind."35 A misunderstanding of the law only supports deficient performance where that

misunderstanding results in acts or omissions adverse to the defendant.36


       33 First Marmer Decl. at 3, ffil 12-14.
       34 Br. of Pet'r at 24.
       35 Harrington v. Richter, 562 U.S. 86, 110, 131 S. Ct. 770, 178 L. Ed. 2d 624
(2011) (citing Strickland, 466 U.S. at 688).
       36 Mockovak cites decisions that discuss a misunderstanding of the law as a
basis for deficient performance, but in each of those cases, counsel's misunderstanding
of the law resulted in conduct detrimental to the client. See, e.g., Williams v. Taylor,
529 U.S. 362, 395, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (counsel who failed to
search public records for mitigation evidence about defendant's childhood, "not because


                                                 11
No. 69390-5-1/12



      Here, Mockovak's counsel did not pursue a diminished capacity defense.

Evidence of diminished capacity seeks to show that the State has failed to prove the

mens rea of the charged crime. But there is no showing that Mockovak had a viable

diminished capacity defense or that learned helplessness in this setting negated

Mockovak's intent. Therefore, Mockovak fails to establish that any misunderstanding

about the compatibility of diminished capacity and entrapment defenses resulted in an

omission adverse to Mockovak's defense.37

      Third, Mockovak points to Robinson's alleged post-verdict comment that the law

of entrapment does not include a subjective component.38 Mockovak claims Robinson

must have rejected the learned helplessness evidence because he mistakenly believed
entrapment was a wholly objective determination. This argument fails because any
misunderstanding about the subjective and objective components ofentrapment did not
result in any deficient conduct by Mockovak's counsel. The entrapment instruction

of any strategic calculation but because they incorrectly thought that state law barred
access to such records" held ineffective); Blackburn v. Foltz, 828 F.2d 1177, 1182 (6th
Cir. 1987) (counsel's failure to move for suppression ofdefendant's prior convictions
constituted deficient performance and was not reasonable trial strategy since counsel's
erroneous understanding and recitation of the law resulted in misinforming defendant
and depriving defendant ofa meaningful opportunity to decide whether to testify);
Washington v. Hofbauer, 228 F.3d 689, 702-03 (6th Cir. 2000) (counsel's failure to
object to prosecutorial misconduct constituted deficient performance when that failure
was due to clear inexperience or lack of knowledge of controlling law rather than
reasonable trial strategy).
       37 We note that Robinson's open court statement occurred in the context of
discussing the differences between federal and state court. But even ignoring that
context, there still is no showing of a viable diminished capacity theory.
       38 Marmer offered his declaration that during a discussion in which he "referred
to the 'subjective test' for entrapment," Robinson interjected, stating that he did not
know where Marmer "got the idea that the test was subjective," and that "use of the
word 'reasonable' in the standard jury instruction on entrapment plainly reflected an
objective standard." First Marmer Decl. at 3-4, U16.


                                             12
No. 69390-5-1/13



proposed by the defense and given to the jury contained both objective and subjective

elements and correctly states the law.39 Moreover, Robinson acknowledged the

relevance of Mockovak's state of mind early in the case,40 and clearly focused upon

Mockovak's subjective state of mind in closing argument.41 Mockovak fails to

demonstrate any adverse effects from counsel's alleged misunderstanding of the law.

He has not overcome the strong presumption that his counsel acted reasonably in

declining to present evidence of learned helplessness. Accordingly, his claim of

deficient performance fails.

       Mockovak's ineffective assistance claim also fails because he does not

demonstrate a reasonable probability that the outcome would have been different had

evidence of his learned helplessness been presented.42 Mockovak claims the evidence

could have affected the verdict because the jury acquitted him of soliciting Klock's

murder and some jurors mentioned in post-verdict interviews that "their decision to




       39 Mockovak's claim that trial counsel was ineffective for proposing this jury
instruction was dismissed in this court's Order Referring in Part and Dismissing in Part
dated May 8, 2015.
       40 RP (Jan. 12, 2011) at 23 ("I will indicate that given the nature of the charges
and the nature of the defense, Dr. Mockovak's state of mind is clearly relevant.").
       41 RP (Feb. 1, 2011) at 6 ("Kultin understood who he was dealing with, and he
understood how to get Michael Mockovak at his most vulnerable points; his ego and his
insecurity."); RP (Feb. 1, 2011) at 12-13 ("Fear is definitely an element in what
happened here, but in the soup, if you will, of entrapment, fear is just one element. It's
one ingredient. The other ingredients are pouring fuel on the fire at every opportunity at
Mockovak's most vulnerable positions in terms of the way he looks at the world.").
         42 See Yates, 177 Wn.2d at 36 (citing Strickland, 466 U.S. at 694). The
"'likelihood of a different result must be substantial, not just conceivable.'" In re Crace,
174 Wn.2d 835, 843-44, 280 P.3d 1102 (2012) (quoting Harrington v. Richter, 562 U.S.
86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2014)).


                                              13
No. 69390-5-1/14



convict on the attempted murder of King charge was a very close call."43 Mockovak's

argument is not compelling.

      First, since 1909, Washington has followed the rule that jury deliberations may be

inquired into only to evaluate a claim of serious misconduct.44 "Neither parties nor

judges may inquire into the internal processes through which the jury reaches its

verdict."45 Mockovak relies on the declaration of David Snyder, a private investigator

who interviewed the jurors after the verdict was returned. But Snyder's declaration

reveals the jurors' internal thought processes and deliberations. Here, there is no

allegation of juror misconduct, and Mockovak offers no authority that analyzing

prejudice includes reflections by jurors on what may have been important or persuasive

to them.

       Second, unlike the plan for Klock, Mockovak finalized the plan to kill King. He

gave Kultin $10,000 in cash for King's murder, along with a photograph of King and his

family and King's flight information. Mockovak responded, "That sounds good" when

Kultin told him that the hitmen had located King in Australia and that everything was in

place for his murder.46 And, as set forth above, there was extensive evidence that

Mockovak initiated discussions with Kultin about hiring Russian hitmen. Because

Mockovak took concrete steps to perfect the plot against King, the acquittal as to vague

discussions about Klock is not remarkable. There is no reasonable probability


       43 Br. of Pet'r at 45.
       44 Ralton v. Sherwood Logging Co., 54 Wash. 254, 256, 103 P. 28 (1909).
      45 State v. Linton, 156 Wn.2d 777, 787, 132 P.3d 127 (2006): see also Long v.
Brusco Tug & Barge, Inc., 185 Wn.2d 127, 134-38, 368 P.3d 478 (2016).
       46 Ex. 54 (Nov. 11, 2009) at 4.



                                            14
No. 69390-5-1/15



that the learned helplessness evidence would have changed the outcome of the trial.

       Because Mockovak has not met the threshold requirement of presenting prima

facie evidence to support his ineffective assistance claim, we deny his request for a

reference hearing and deny his petition.




WE CONCUR:




        Ji~~/t rf.




                                            15
