I
                                                                    FILED
                                                                DECEMBER 22, 2016
                                                             In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division III




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

    STATE OF WASHINGTON,                         )        No. 33343-4-111
                                                 )
                        Respondent,              )
                                                 )
                 V.                              )        UNPUBLISHED OPINION
                                                 )
    PAUL ANTHONY MCVAY,                          )
                                                 )
                        Appellant.               )

          LAWRENCE-BERREY, J. - Paul Anthony McVay appeals his conviction for first

    degree assault. He contends he received ineffective assistance of counsel due to his

    counsel's failure to object to the State amending the information. He argues had his

    counsel objected, the trial court would have been required to not allow the amendment.

    He contends his counsel's failure to object was deficient performance and he was

    prejudiced. The State does not respond to McVay's arguments. We reverse.

                                             FACTS

          McVay was involved in a fight with Keyton Sykes, and Sykes suffered serious

    puncture wounds. The State originally charged McVay with first degree assault under

    RCW 9A.36.0l l(l)(a). That subjection required the State to prove McVay intended to
No. 33343-4-III
State v. McVay


inflict great bodily harm on Sykes with a deadly weapon. At trial, Mc Vay testified that he

stabbed Sykes with a pocket knife. The jury was unable to reach a decision and the trial

court declared a mistrial.

       The State thereafter amended the information. The amendment included the

original means and a new alternative means for first degree assault. The new alternative

means cited RCW 9A.36.01 l(l)(c). That subsection required the State to prove McVay

intended to and actually did inflict great bodily harm on Sykes. McVay's counsel did not

object to the amended information. At trial, Mc Vay again took the stand and related the

same testimony as in his first trial.

       The trial court instructed the second jury on both of the charged means for

committing first degree assault. The trial court also instructed the jury that it need not be

unanimous as to which of the alternative means is proved beyond a reasonable doubt, as

long as each juror finds that either is proved beyond a reasonable doubt. The jury found

Mc Vay guilty of the charged offense. Mc Vay timely appealed.

                                        ANALYSIS

       A claim of ineffective assistance of counsel is an issue of constitutional magnitude

that may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862,

215 P.3d 177 (2009). To establish a claim of ineffective assistance of counsel, a



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State v. McVay


defendant must show: (1) counsel's performance was deficient, and (2) the deficiency

prejudiced the defendant. Id.

       Deficient performance is performance that falls below an objective standard of

reasonableness, and reasonable conduct for an attorney includes carrying out the duty to

research the relevant law. Id. Prejudice requires the defendant to prove there is a

reasonable probability that without counsel's deficient performance the outcome of the

proceedings would have been different. Id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is strongly

presumed to be reasonable. Ky/lo, 166 Wn.2d at 862. Legitimate trial strategy or tactics

is not deficient. Id. at 863. This court reviews a claim of ineffective assistance of

counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

       CrR 4.3.l(b)(3) is the mandatory joinder rule. It provides:

      A defendant who has been tried for one offense may thereafter move to
      dismiss a charge for a related offense, unless a motion for consolidation of
      these offenses was previously denied or the right of consolidation was
      waived as provided in this rule. The motion to dismiss must be made prior
      to the second trial, and shall be granted unless the court determines that
      because the prosecuting attorney was unaware of the facts constituting the
      related offense or did not have sufficient evidence to warrant trying this
      offense at the time of the first trial, or for some other reason, the ends of
      justice would be defeated if the motion were granted.



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State v. McVay


       Mc Vay argues had his trial counsel objected to the State amending the information

to assert a new alternative means, the trial court would have been required to dismiss the

new alternative means as a matter of law. McVay is correct. See State v. Dallas, 126

Wn.2d 324, 329, 892 P.2d 1082 (1995) (an amendment that adds a new alternative means

is a related offense within the meaning of the mandatory joinder rule).

       Mc Vay argues, and the State does not dispute, that his counsel's failure to object

here was deficient performance. Because defense counsel is required to research the law,

failure to object when the objection would be sustained arguably is deficient performance.

See State v. Carter, 56 Wn. App. 217, 225, 783 P.2d 589 (1989); id. at 228 (Winsor, J.

dissenting) (majority and dissent disagree whether failure to object to an amendment that

violates the mandatory joinder rule is necessarily deficient performance).

       Mc Vay further argues, and the State does not dispute, that his counsel's deficient

performance prejudiced him. He argues the difference between the two trials was that the

jury had two means to determine guilt, it was instructed it need not be unanimous as to the

means, and one of the means was improper. McVay, arguably, is correct.

       We conclude McVay has sufficiently established he received ineffective assistance

of counsel. He is, therefore, entitled to a new trial based only on the initial information.

       Reversed.



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No. 33343-4-III
State v. McVay


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-Berrey, J.
                                                                              j
WE CONCUR:




Fe~
                  1
                      J




                                             5
                                        33343-4-III

       KORSMO, J. (concurring in the result)-This appeal presents two questions that I

am uncertain whether we have addressed properly, but that is the fault of the respondent.

First, it is unclear to me that an alternative means of committing the same existing

charged offense, is a "related offense" for purposes of our mandatory joinder rule, CrR

4.3 .1 (b )(3 ). There is some authority that might be applied to this circumstance, although

that case is easily distinguishable. See State v. Russell, 101 Wn.2d 349,678 P.2d 332

(1984) (adding alternative charge of second degree felony murder before retrial).

       The second problem I have is whether appellant has satisfied the standards of

Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Counsel performs ineffectively when she errs to the point that it is below the standard of

care for the profession and that error actually prejudices her client. Id. at 687-688. The

primary case relied on by the appellant and the majority is not apropos here since Mr.

Mc Vay defended on a theory of self-defense. State v. Carter, 56 Wn. App. 217, 783 P .2d

589 ( 1989). In Carter, the prosecution added a charge of first degree assault prior to the

retrial of a charge of first degree robbery. A divided Division One panel determined that
No. 33343-4-111
State v. Mc Vay


counsel was ineffective for failing to object to the amendment. Id. at 225-226. In the

dissent, Judge Winsor believed the record was insufficient to allow the determination that

counsel had actually erred. Id. at 226-228. 1

       Whether or not trial counsel erred here depends in large part on the answer to my

first question. Whether or not Mr. McVay's defense was actually prejudiced by the

additional means of committing first degree assault also is unclear. It was undisputed at

trial that Mr. Mc Vay stabbed the victim, resulting in serious injury. What was in dispute

was whether Mr. Mc Vay was justified in defending himself. It is highly unlikely that the

addition of the alternative means of committing the same crime was prejudicial to the

defense of the case. By claiming self-defense, Mr. McVay agreed that he had committed

the first degree assault and the only question was whether he had sufficient justification

for his actions. This is a far different situation than that in Carter or most other cases

where the addition of a new crime resulted in obvious prejudice--a conviction on an

additional offense with ensuing prejudicial consequences for the defendant.

       We also should be wary of allowing charging document amendment issues to be

heard for the first time on appeal merely because the nonmoving party sometimes can


       1
         His view of the rule problem was supported by the fact that the Carter majority
had to adopt a new construction of a previously undefined portion of the mandatory
joinder rule. See Carter, 56 Wn. App. at 223 (adopting definition of "ends of justice"). It
is difficult to see how defense counsel was expected to anticipate the new definition when
it came time to challenge the proposed amendment in the trial court.


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No. 33343-4-111
State v. McVay


accuse defense counsel of performing ineffectively. The standards governing

amendments are found in CrR 2.l(d) and its case law progeny, while mandatory joinder

is governed by a different standard found in CrR 4.3. I (b )(3). What is needed to justify an

amendment is different from what is needed to join a related offense.2 Without a

challenge being raised, the proper argument and record might not be made. The State

also is entitled to add new charges for a retrial when the interests of justice demands it,

but has no obligation to establish those interests when there is no objection to an

amendment. 3 Without that record, we cannot tell whether the mandatory joinder rule

truly has been violated. We also do not know what defense counsel's view of the

situation was at the time of amendment if the issue is not argued to the trial judge.

Accordingly, there may be times when this issue simply does not present a question of

manifest constitutional error.

       Summing up, I have serious reservations whether Mr. Mc Vay has made his case

on appeal because, if his attorney actually erred by not challenging the amendment, it

does not seem that the self-defense case was prejudiced in the least. However, as the




       2
         This distinction was the legal issue that divided the panel in Carter.
       3
         The prudent prosecutor therefore should always present argument (and, where
appropriate, evidence) in support of an amendment when changing a charging document
before a retrial with the possibility this will later be treated as a joinder issues rather than
as an amendment problem. Similarly, the trial judge should demand that the interests of
justice be established before granting the amendment in this circumstance.

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No. 33343-4-III
State v. Mc Vay


prosecutor has not bothered defending the appeal and Carter at least presents some

authority for granting relief, I concur in the result.




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