 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal Restraint
 of:                                                       DIVISION ONE

 LARRY D. DALEY JR.,                                       No. 76925-1-I

                          Petitioner.                      UNPUBLISHED OPINION


        DWYER, J. — After his conviction on four counts of assault in the first

degree and two counts of unlawful possession of a firearm in the first degree,

Larry Daley filed this personal restraint petition. He avers that insufficient

evidence supported his assault convictions, that he received ineffective

assistance of counsel at sundry occasions during trial, and that the trial court

abused its discretion by imposing consecutive sentences for his assault

convictions and firearm enhancements in lieu of exceptional concurrent

sentences for both. His assertions of ineffective assistance do not merit

appellate relief. Because his claim of insufficient evidence was already litigated,

and because his sentencing claim is untimely, we will not consider them.

        Accordingly, we deny the petition.




Citations and pin cites are based on the Westlaw online version of the cited material.
No. 76925-1-I/2


                                           I

                                           A

       Daley’s convictions were affirmed on direct appeal. The underlying facts

giving rise to his trial and conviction are set forth in that opinion, State v. Daley,

No. 71956-4-I (Wash. Ct. App. Dec. 28, 2015) (unpublished),

http://www.courts.wa.gov/opinions/pdf/719564.pdf. Therein, we stated:

              Early on November 25, 2012, Seattle Police Department
       detectives Benjamin Hughey, Jonathan Huber, and Thomas Janes
       responded to a request for assistance at the now defunct Citrus
       nightclub on Fairview Avenue. Fights had broken out during the
       evening and a large crowd had gathered outside as the club was
       closing. The detectives arrived in a single car and parked opposite
       the nightclub on the far side of Fairview Avenue.

              They saw a group of three to five men walking along
       Fairview Avenue following a man in a white hooded sweatshirt.
       The man in the sweatshirt was later identified as the defendant,
       Larry Daley Jr. Daley and the group of men appeared to be having
       a heated argument. Daley stepped into the street and began to
       cross Fairview Avenue. The group followed him into the street,
       where they exchanged gestures and yelled back and forth.

              The detectives saw Daley suddenly turn back toward his
       pursuers and reach toward his waistband with his right hand. He
       then drew out his arm, elbow raised, in a motion that the detectives
       immediately recognized as drawing a firearm. Daley extended his
       hand and leveled a nine millimeter semiautomatic pistol directly at
       the group of men. He was only about ten feet from the men when
       he fired multiple shots directly at them, with a crowd of club patrons
       behind them. Detective Hughey testified that he “only
       remember[ed] one distinct round.” Verbatim Report of Proceedings
       (VRP) (3/20/14) at 61. One of the Citrus employees heard three to
       six rounds being fired toward the club. A security guard heard “a
       spurt of four or five shots.” VRP (3/27/14) at 68. The group of men
       scattered and were never identified. The crowd erupted into
       chaos—yelling and screaming, with drivers “peeling out” in their
       cars to get away. VRP (3/27/14) at 140-41.

              As the detectives got out of the vehicle, Janes shouted,
       “Stop, Police!” while Hughey ran to intercept Daley. VRP (3/20/14)



                                           2
No. 76925-1-I/3


      at 67-68. Daley looked in the direction of the detectives, but then
      turned back and fired additional shots at the fleeing men and the
      crowd. He then sprinted toward the detectives. As the distance
      between Daley and Hughey closed to approximately twenty yards,
      Daley raised his gun and pointed it directly at Hughey. In that
      moment, Hughey believed that Daley was about to shoot him.
      Hughey raised his own service weapon and sighted Daley, firing
      twice as Daley veered past him onto Yale Avenue—running above
      and behind the detectives’ position.

             Daley then had the high ground on Yale Avenue, in position
      to present a deadly threat to the detectives. Hughey ran over to the
      retaining wall and spotted Daley, still in possession of his weapon,
      through some rhododendrons. Hughey fired additional shots at
      Daley as he continued to run up Yale Avenue. Meanwhile, Huber
      and Janes had come around the vehicle to get a better angle on
      Daley. As Daley crossed their line of sight on the opposite side of
      the rhododendrons, Huber saw Daley turn and point his gun directly
      toward him and Janes. Huber immediately felt that his life was in
      danger and fired several shots at Daley.

             In that same moment, as Huber fired at Daley, Janes saw
      two amber muzzle flashes coming from Yale Avenue, between the
      rhododendron bushes that lined the street. Janes actually felt and
      heard the bullets pass by his head, recalling the distinctive pop and
      whiz sound caused by the projectiles breaking the sound barrier.
      Janes thought that either he or Huber was going to die and yelled
      for Huber to take cover.

             Meanwhile, Hughey ran to the back of the parking lot to
      access a ramp leading up to Yale Avenue. When he reached the
      ramp, he did not see Daley at first until he turned his weapon
      mounted flashlight on the rhododendron bushes. He saw Daley in
      the bushes and heard him call out, “I’m shot, I’m dying.” VRP
      (3/20/14) at 89. Hughey yelled at him to keep his hands up, then
      called out to Huber and Janes that he had the suspect.

             Huber ran to provide cover, while Hughey ordered Daley out
      of the bushes. Daley no longer had his gun and indicated that he
      had left it in the bushes. Hughey found the gun where Daley had
      indicated. Forensic investigators recovered several spent nine
      millimeter shell casings from the area near Fairview Avenue, three
      of which matched Daley’s pistol. Also recovered under the
      rhododendron bush where Daley was arrested were two matching
      casings.




                                        3
No. 76925-1-I/4


              Detectives Hughey and Janes later viewed security footage
       from cameras on the Fred Hutchinson campus. The footage,
       played at trial, showed Daley running across Fairview Avenue and
       up Yale Avenue, as Hughey fired at him. Exhibit 2, Camera 072 at
       1:56:48 a.m.—1:57:07 a.m. At 1:57:11 a.m., the video showed a
       muzzle flash from Daley’s location. Exhibit 2, Camera 081 at
       1:57:11 a.m.; Appendix E (Screen shot of muzzle flash). The video
       then shows Daley running and crouching in the bushes along the
       side of the research center. Exhibit 2, Camera 072 at 1:57:12
       a.m.—1 a.m. At 1:57:22 a.m., the video shows Daley firing a final
       shot from the bushes at Hughey—in the top right corner of the
       frame. Exhibit 2, Camera 072 at 1:57:22 a.m.; see also Appendix F
       (Screen shot of final muzzle flash—Shot fired at Hughey).

               The State charged Daley with four counts of assault in the
       first degree, while armed with a firearm. In count one, the State
       alleged that Daley, with intent to inflict great bodily harm, did
       assault “John Doe” with a firearm and force and means likely to
       produce great bodily harm or death. Clerk’s Papers (CP) at 12.
       The State made the same allegation as to the three Seattle Police
       Department detectives in counts two through four.

             Daley waived his right to a jury trial. The trial court found
       Daley guilty of all four counts of first degree assault and imposed a
       standard range sentence.

Daley, No. 71956-4-I, slip op. at 2-5 (footnote omitted).

       Because first degree assault is a serious violent offense, the statutory

presumption was that Daley would serve four sentences for those convictions

consecutively. RCW 9.94A.589(1)(b). Daley requested an exceptional sentence

of concurrent terms, arguing that consecutive sentences would be clearly

excessive. While the State agreed that the trial court had discretion to impose

concurrent sentences, it requested consecutive sentences and urged that

Daley’s firearm enhancements be imposed consecutively.

       The trial court agreed with the State that firearm enhancements were

required to be served consecutively. The court also declined Daley’s request for




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No. 76925-1-I/5


exceptional concurrent sentences on the assault convictions, stating that “[t]here

simply is nothing that can be characterized as mitigation in the case.” Thus, the

trial court imposed a 320-month sentence for the assault against “John Doe,” and

consecutive sentences of 153 months for the assaults against each of the three

detectives. In total, the court imposed on Daley a term of 779 months of

confinement.

       Daley then appealed his conviction for assault against “John Doe” on the

basis that the State failed to prove each element of the crime beyond a

reasonable doubt, violated his right to a unanimous verdict, and violated the

constitutional prohibition on double jeopardy. He appealed his convictions for

assault against each police officer on the basis of insufficient evidence. We

affirmed on all grounds. Daley, No. 71956-4-I, slip op. at 1.

                                          B

       On May 31, 2017, Daley filed this personal restraint petition, alleging that

his attorney, Leanne Lucas, was ineffective in several discrete instances during

trial and asserting a new argument of insufficient evidence. On November 3,

2017, Daley moved to add an additional ground for relief to his petition. We

granted the motion. In his supplemental brief, Daley alleged that his sentence

violates the Eighth Amendment, and that he is entitled to resentencing because

the trial court did not take his youth into consideration as a mitigating factor

justifying exceptional concurrent sentences and concurrent firearm

enhancements.




                                          5
No. 76925-1-I/6


       Daley’s petition was stayed pending the Supreme Court’s decision in In

Re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 422 P.3d 444 (2018). On

December 6, 2018, the stay was lifted and we transferred the matter to the King

County Superior Court, directing that court “to determine what statements, if any,

Daley’s attorney made to Daley regarding the potential racial makeup of a jury

and Daley’s chances of an acquittal in front of such a jury.”

       This reference hearing took place on March 18, 2019. On April 15, 2019,

the superior court entered its findings of fact. It found that:

           1. Ms. Lucas predicted to Mr. Daley and to his family
       members that most or all potential jurors would be white.

             2. Ms. Lucas used the phrase, “white union workers,” when
       discussing the racial makeup of the potential jury panel with Mr.
       Daley and his family members.

             3. There is insufficient evidence for the court to find that Ms.
       Lucas used the specific term, “hang,” when discussing the jury-trial-
       waiver issue with Mr. Daley or with his family members.

               4. Ms. Lucas advised Mr. [Daley] that: (a) if the case
       proceeded to trial before a jury, there would be no guaranty of an
       acquittal, and there would be a risk that he would be convicted; and
       (b) likewise, if the case proceeded to a bench trial, there would be
       no guaranty of an acquittal, and there would be a risk that he would
       be convicted.

              5. Ms. Lucas recommended to Mr. Daley that he should
       waive his right to a jury trial and that he should choose a bench
       trial.

               6. To the extent indicated in Findings of Fact 1-5, above, the
       court finds the testimony of Mr. Daley and his family members to be
       more credible than the testimony of Ms. Lucas. It is not
       unreasonable or surprising that Ms. Lucas would have an
       incomplete or inaccurate recollection about what she said to Mr.
       Daley and to his family members regarding the racial makeup of
       potential jurors, whether a jury might convict or acquit Mr. Daley,
       and whether he should choose a jury trial or a bench trial. Her



                                           6
No. 76925-1-I/7


       comments and her recommendation were very important, but they
       were immensely more important to Mr. Daley and to his family
       members than they were to anyone else. Thus, it is much more
       likely that Mr. Daley and his family members would focus upon and
       remember Ms. Lucas’ comments and her recommendation more
       accurately than Ms. Lucas would.

              7. Ms. Lucas did not advise Mr. Daley that he had no choice
       but to waive his right to a jury trial and proceed with a bench trial.

             8. Ms. Lucas did not otherwise knowingly attempt to coerce
       Mr. Daley to choose a bench trial or to waive his right to a jury trial.

              9. To the extent that any other witnesses presented
       testimony, either orally or in writing, that is contrary to Findings of
       Fact 7 and 8, above, the court finds the testimony of Ms. Lucas to
       be more credible than the testimony of the other witnesses with
       respect to those Findings.

       We now address the merits of Daley’s petition.

                                            I

       Daley first avers that the trial court “abused its discretion in heavily relying

on video footage” to convict him. He frames this as a due process violation. On

closer reading, it is readily apparent that this argument is, in fact, a collateral

attack on the sufficiency of the evidence adduced at trial. Because he has

already litigated this issue, he may not do so again.

       A personal restraint petition is not a means by which to relitigate issues

already adjudicated on the petitioner’s direct appeal. In re Pers. Restraint of

Pirtle, 136 Wn.2d 467, 491, 965 P.2d 593 (1998). A mere revision of a legal

argument that has been previously rejected creates neither a new claim nor good

cause to reconsider the original claim. In re Pers. Restraint of Jeffries, 114

Wn.2d 485, 488, 789 P.2d 731 (1990). Nor may a petitioner create a novel




                                           7
No. 76925-1-I/8


ground for relief simply by alleging different facts, asserting different legal

theories, or phrasing the argument differently. Pirtle, 136 Wn.2d at 491.


       Therefore, a personal restraint petitioner is barred from renewing an issue

already raised and rejected on direct appeal unless the interests of justice require

the relitigation thereof. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d

872 (2013). Only when a showing of “an intervening change in the law ‘or some

other justification for having failed to raise a crucial point or argument in the prior

application’” is made can a petitioner argue that reconsideration serves the

interests of justice. Yates, 177 Wn.2d at 17 (internal quotation marks omitted)

(quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1

(2001)). To support “‘a previous ground for relief with different factual allegations

or with different legal arguments’” is insufficient. Yates, 177 Wn.2d at 17 (quoting

In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004)).

       Reviewing Daley’s case on direct appeal, we rejected Daley’s claim that

the evidence was insufficient to support his assault convictions:

               Daley argues that the State failed to prove that he was the
       shooter because no one saw him fire his gun after he ran across
       Fairview Avenue North, and that neither detective testified that they
       actually saw Daley pull the trigger. There is more than enough
       circumstantial evidence in the record, however, for a reasonable
       fact finder to find that Daley shot at all three detectives that night.

               Janes testified that he was heading toward Hughey’s
       location at the loading dock ramp when he saw two amber flashes
       coming [in] his direction. VRP (3/27/14) 76. He explained that
       visible amber is “a fire from when a shell is expelled out of a
       weapon, you get the flameout from the barrel.” VRP (3/27/14) at
       77. He also testified that he felt the whizzing of two bullets coming
       past him, and identified the sounds as such based on his prior
       experience of being fired upon while on a SWAT team. He


                                           8
No. 76925-1-I/9


      indicated on a photo that the muzzle flashes were coming from
      between some rhododendron bushes. Upon review of the security
      tape showing a flash of light, Janes identified that the light on the
      tape came from the area where he noticed the two amber flashes.
      Janes also testified that he was “100 percent” confident that Daley
      was the person in the white sweatshirt. Id. at 95.

             Detective Huber testified that he got out of the car and
      focused on Daley immediately after he saw him pull out a gun and
      fire shots at the group. When Daley ran past him, Huber saw Daley
      “turn and look at [him] and point the gun in [his] direction.” Id. at
      143. Huber testified that at that point he was “scared and
      concerned for his own safety.” Id. at 144. According to Janes,
      Huber was also right next to Janes when he saw the amber flashes
      and heard the bullets whiz past their heads.

               Detective Hughey testified that after Daley shot at the group,
      he began to run toward the officers and saw “his firearm raised and
      pointed at me.” VRP (3/20/14) at 68. Hughey thought at that point
      he “was going to get shot, possibly killed, so I made the decision to
      defend my life and I made the decision to shoot at Mr. Daley before
      he could shoot me.” Id. at 71. He further testified that he did not
      have any independent recollection of Daley shooting at him. Upon
      viewing the video, it “scared the heck out of [him],” because he “had
      no memory [himself] of being shot at,” but “[w]hen you see the
      video, you see me getting shot at, which obviously it really—after
      the fact, it scares you. You’re like oh, wow, somebody really did try
      to kill me.” Id. at 111-112.

              Daley argues that there is insufficient evidence that he
      assaulted Janes and Huber, because no bullets or casings were
      found at or near where Janes saw muzzle flash. He also argues
      that the security tape showing muzzle flash near him is
      inconclusive, because you can see only one flash on tape, not two
      flashes as Detective Janes testified. According to Daley, there is
      insufficient evidence as well that he assaulted Hughey, because
      Hughey testified that numerous other people were running on Yale
      Avenue North and that he was unaware of being fired upon until he
      viewed the security videotape. The trial court heard all of this
      evidence and is entitled to deference on issues of credibility and
      conflicting evidence. We find that there is sufficient evidence in the
      record to support Daley’s convictions and affirm.

Daley, No. 71956-4-I, slip op. at 12-14.




                                           9
No. 76925-1-I/10


       Because the claim of insufficient evidence was rejected on direct appeal,

Daley is not entitled to litigate it in the present petition, despite his attempt to

allege different facts or to assert different legal theories concerning particular

evidence. We will not consider his duplicate claim.

                                             III

       Next, Daley avers that he received ineffective assistance of counsel in a

number of instances during trial. As Daley did not assert that he received such

ineffective assistance on direct appeal, he is entitled to argue the question in his

personal restraint petition. We address, in turn, each instance in which Daley

alleges his trial counsel was ineffective.

                                             A

       Our analysis of a claim of ineffective assistance of counsel begins with a

strong presumption that counsel was effective. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). The claimant bears the burden of

demonstrating that counsel’s assistance was ineffective. McFarland, 127 Wn.2d

at 337. The claimant must show that (1) counsel’s conduct fell below a

professional standard of reasonableness and that (2) but for counsel’s

unprofessional conduct, there is a reasonable probability that the outcome at trial

would have been different. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011). If either of these prongs is not met, the claim fails. State v. Garcia, 57

Wn. App. 927, 932, 791 P.2d 244 (1990).




                                           10
No. 76925-1-I/11


        A legitimate tactical decision cannot be the basis of an ineffective

assistance claim. State v. Alvarado, 89 Wn. App. 543, 553, 949 P.2d 831 (1998).

“It is all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689.

Therefore, we make every effort to “eliminate the distorting effects of hindsight”

and evaluate counsel’s performance from counsel’s perspective at the time.

Strickland, 466 U.S. at 689.

        Prejudice is not established merely by showing that an error by counsel

had some conceivable effect on the outcome of the proceeding. Strickland, 466

U.S. at 693. The party claiming ineffective assistance must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694.

                                                 B

        Daley’s principal claim is that his attorney provided constitutionally

deficient representation when she advised him to waive his right to a jury trial.

We disagree. Daley has not established that his attorney’s performance fell

below an objective standard of professionalism, nor does he show that he was

prejudiced as a result of engaging in a bench trial.1




        1
          Relatedly, Daley claims that his attorney failed to inform him that he could “revoke his
waiver of a jury trial at any time.” In fact, the trial court has considerable discretion to deny a
defendant’s request to withdraw a jury waiver. State v. Ashue, 145 Wn. App. 492, 503, 188 P.3d
522 (2008). Daley’s attorney did not inform him of a right to revoke his jury waiver at any time
because such a right did not exist.


                                                11
No. 76925-1-I/12


       Pursuant to both our state and federal constitutions, a criminal defendant

has the right to a jury trial. U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22;

State v. Castillo-Murcia, 188 Wn. App. 539, 547, 354 P.3d 932 (2015). A waiver

of this right is valid if it is knowing, intelligent, and voluntary. State v. Benitez,

175 Wn. App. 116, 128, 302 P.3d 877 (2013). A written waiver “is strong

evidence that the defendant validly waived the jury trial right.” State v. Pierce,

134 Wn. App. 763, 771, 142 P.3d 610 (2006). Trial counsel’s representation to

the court that her client’s waiver is knowing, intelligent, and voluntary is also

evidence of a valid waiver. Benitez, 175 Wn. App. at 128. In assessing a

waiver’s validity, we also consider whether the trial court informed the defendant

of his right to a jury trial. Castillo-Murcia, 188 Wn. App. at 548. An extensive

colloquy between the court and the defendant, however, is not a requirement for

a waiver to be valid. Benitez, 175 Wn. App. at 128-29.

       Daley asserts that his attorney informed him that, should he proceed to a

jury trial, the jury’s makeup would be predominantly “white union workers” who

would be heavily biased against him. After hearing testimony at the reference

hearing, the superior court found that Lucas did, indeed, tell Daley that a jury was

likely to be all or mostly white, or “white union workers,” and that while Daley

might be convicted whether he opted for a jury or a bench trial, she advised him

to choose the latter. The trial court did not find that Lucas told Daley that a jury

trial was certain to produce an unfair verdict, let alone that the hypothetical jurors




                                           12
No. 76925-1-I/13


would “hang” him. It did not find that Daley’s attorney coerced him into waiving

his right.2

        While the trial court’s findings do not disclose the basis for Lucas’s advice,

there are several legitimate tactical reasons supported by the record that would,

in turn, inform an attorney’s decision to advise jury waiver. Among these is the

nature of the crime of which Daley was accused and the testimonial evidence

that was to be presented against him. Daley was a convicted felon who was

charged with four counts of assault and two counts of unlawful possession of a

firearm. Because the latter offense was based on his status as a felon, jurors

would necessarily be informed that Daley had been convicted of a serious

offense. RCW 9.41.040(1)(a). Daley’s attorney could reasonably conclude that

this knowledge was less likely to have a prejudicial impact on a judge than it

would on a jury.

        Furthermore, three of the charges of assault alleged that Daley shot at

three separate police officers. Several of the State’s witnesses were police

officers, and it is a conceivable tactical consideration to expect that an

experienced trial judge would be less likely than a jury to take the officers’

testimony at face value or feel sympathy toward them. This is particularly true in



        2
           Prior to trial, the trial court did engage in a colloquy with Daley regarding waiver of his
right to a jury. The court informed him:
         We bring up, we fill up all those benches in the back of the room with about 50
         prospective jurors from Bellevue and Burien and Renton and wherever they
         come from in King County. We ask them a lot of questions and try to make sure
         that we have 12 that are fair-minded jurors. . . . They’d have to convince all 12 of
         those people beyond a reasonable doubt of your guilt. By waiving the jury trial,
         the case would just be tried to me. I would hear the same evidence. You have
         all those same rights at trial, but ultimately unanimity is a different matter when
         you only have one decider versus the 12 deciders.


                                                  13
No. 76925-1-I/14


a situation in which the officers were expected to testify to what was a near-death

experience. Detective Hughey testified that simply watching the surveillance

video “scared the heck out of [him],” despite having “no memory of being shot at,”

because “[w]hen you see the video, you see me getting shot at, which obviously

it really—after the fact, it scares you. You’re like oh, wow, somebody really did

try to kill me.” Detective Janes testified that the officers “heard the bullets whiz

past their heads.” The possibility that a judge would be less prone to emotion

when hearing this testimony than a group of jurors might be constitutes a

legitimate, conceivable tactical reason for Daley’s attorney to advise a bench

trial.

         Daley’s attorney also argued at trial that, should the trial court find that

Daley did shoot a firearm, the doctrine of transferred intent should not go so far

as to support the notion that Daley committed all of the elements of assault as to

each officer and as to “John Doe”:

         And there’s a recognition in other jurisdictions that courts have
         observed the use of this doctrine where no victim is injured
         potentially causes a principle of limitless liability. And we suggest
         to the Court that’s what’s going on in this case.

                 Should the State prevail and find Mr. Daley guilty of first
         degree assault against John Doe, the sky’s the limit if you add the
         officers in and anyone else that was present at that time.

The possibility that this technical legal argument regarding the transferred intent

doctrine might register better with a judge than with a jury constitutes another

legitimate consideration justifying counsel’s conceivable tactical decision.

         Finally, as our Supreme Court has recognized:




                                            14
No. 76925-1-I/15


              Unlike isolated incidents of juror misbehavior, racial bias is a
       common and pervasive evil that causes systemic harm to the
       administration of justice. Also unlike other types of juror
       misconduct, racial bias is uniquely difficult to identify. Due to social
       pressures, many who consciously hold racially biased views are
       unlikely to admit to doing so. Meanwhile, implicit racial bias exists
       at the unconscious level, where it can influence our decisions
       without our awareness.

State v. Berhe, 193 Wn.2d 647, 657, 444 P.3d 1172 (2019). Just as with our

justices, it is conceivable that Daley’s attorney was aware of the possibility of

implicit bias among jurors, even when strong effort is made to foreclose such a

possibility. A competent trial lawyer could reasonably and conceivably believe

that an experienced trial judge would be less prone to the influence of implicit

bias than would be a jury. Constitutionally deficient performance has not been

established.

       Similarly, Daley does not establish prejudice. Again, prejudice in this

context requires a showing of a reasonable probability of a different outcome if a

jury had heard the case. Strickland, 466 U.S. at 694. Strickland imposes a

significant limitation on the assessment of such prejudice.

       In assessing prejudice, “a court should presume, absent challenge
       to the judgment on grounds of evidentiary insufficiency, that the
       judge or jury acted according to the law” and must “exclude the
       possibility of arbitrariness, whimsy, caprice, ‘nullification’ and the
       like.”

Grier, 171 Wn.2d at 34 (quoting Strickland, 466 U.S. at 694-95). As the Supreme

Court explained in Strickland:

       A defendant has no entitlement to the luck of a lawless
       decisionmaker, even if a lawless decision cannot be reviewed. The
       assessment of prejudice should proceed on the assumption that the
       decisionmaker is reasonably, conscientiously, and impartially
       applying the standards that govern the decision.



                                          15
No. 76925-1-I/16



466 U.S. at 695. This means that, in assessing potential prejudice, we must

assume that a jury would have followed the court’s instructions and properly

applied the law. Grier, 171 Wn.2d at 43-44. Accordingly, Daley cannot rely on

the possibility of jury nullification to argue that the outcome of a jury trial would

have been different from that of his bench trial.

       In light of the abundant evidence against Daley, he cannot demonstrate

that a different outcome would have resulted if his case had been tried to a jury.

The police observed Daley, in a white hooded sweatshirt, firing a handgun into a

crowd. Shell casings recovered from the location of this shooting were linked to

the firearm found near the site of Daley’s arrest. The police followed Daley; as

Daley ran, he pointed a gun in the direction of the police and then fired several

rounds at Detectives Janes and Huber. Video footage from security cameras at

several different locations in the vicinity corroborated this and also showed a

gunshot coming from the rhododendron bush where Daley was found. Daley

was pulled out of the bush, as were a 9-millimeter pistol and two expended

cartridges. A search of Daley’s vehicle yielded a second firearm which had

Daley’s fingerprints on it. Given this evidence, Daley does not establish a

reasonable probability that a law-abiding jury would have reached different

results.

       To prevail on his claim of ineffective assistance of counsel, it is Daley’s

burden to show that his attorney “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. It is also Daley’s burden to show that “counsel’s



                                          16
No. 76925-1-I/17


errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. Indeed, unless Daley makes both

showings “it cannot be said that the conviction . . . resulted from a breakdown in

the adversary process that renders the result unreliable.” Strickland, 466 U.S. at

687.

       Daley fails to make either showing. His ineffective assistance of counsel

claim fails.

                                          C

       Next, Daley alleges that his attorney was constitutionally ineffective in not

objecting to the admission of video and photographic evidence at trial. He claims

that the surveillance video, which captured the shooting as it occurred, had no

probative value and posed a significant risk of unfair prejudice, and that the

photographs, taken at the scene after the crime had occurred, had no relevance.

       “Counsel’s decisions regarding whether and when to object fall firmly

within the category of strategic or tactical decisions.” State v. Johnston, 143 Wn.

App. 1, 19, 177 P.3d 1127 (2007). To prevail on his claim, Daley must prove a

reasonable probability that any objection to the video or photographs would have

been sustained. See State v. Nordlund, 113 Wn. App. 171, 179, 53 P.3d 520

(2002) (defendant must show a motion to suppress, if made, would likely have

been granted to establish deficient performance or prejudice); McFarland, 127

Wn.2d at 337 n.4 (claim of ineffective assistance for failure to make a particular

motion requires an affirmative showing that the motion probably would have been

granted).




                                         17
No. 76925-1-I/18


       All relevant evidence is admissible except as limited by our state or federal

constitutions, state statutes, or court rules. ER 402. Evidence is relevant if it has

“any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” ER 401. Evidence that is relevant may nonetheless be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice. ER 403. We review a trial court’s evidentiary rulings for abuse of

discretion. State v. Garcia, 179 Wn.2d 828, 846, 318 P.3d 266 (2014). A trial

court abuses its discretion when its decision is manifestly unreasonable, based

on untenable grounds, or based on untenable reasons. State v. Dye, 178 Wn.2d

541, 548, 309 P.3d 1192 (2013).

       Here, the video’s probative value was clearly high, as it depicted critical

aspects of the shooting. As attested to at trial and noted in our prior opinion,

distinct muzzle flashes could be seen, corroborating the testimony of the

detectives as to their own location and the shooter’s location. Daley, No. 71956-

4-I, slip op. at 3-4. Daley’s argument that the video lacked clarity and “cut out”

from time to time goes to the weight the trial court gave this evidence, not to the

admissibility thereof. See State v. Gregory, 158 Wn.2d 759, 835, 147 P.3d 1201

(2006) (challenges to evidence not based on evidence’s relevancy go towards

weight, not admissibility), overruled on other grounds by State v. W.R., Jr., 181

Wn.2d 757, 336 P.3d 1134 (2014).

       The probative value of the photographs, meanwhile, was lessened by the

fact that they were taken only after the crime had already occurred. However,




                                         18
No. 76925-1-I/19


Daley does not make any argument as to how he was prejudiced by the

photographs’ admission, instead stating only that “Ms. Lucas did not object,

despite the Court asking if she has any objection.” Daley follows this with a bare

assertion that the State was able to introduce whatever evidence it wished

without any fear of objection. This does not answer the question of what damage

was done to his case by the photographs’ admission. We will not search out

such an answer. In re Pers. Restraint of Williams, 111 Wn.2d 353, 364-65, 759

P.2d 436 (1988).

         It is readily conceivable that Daley’s attorney did not object to the video or

photographic evidence because she knew both would be readily admissible with

a proper foundation and did not want to highlight them. Withholding an objection

that counsel reasonably understands to be unproductive is a legitimate trial

tactic. Davis, 152 Wn.2d at 714. Daley has not established any reasonable

probability that an objection to the video’s, or the photographs’, admissibility

would have been sustained. His claim of ineffective assistance on this ground

fails.

                                            D

         Next, we address Daley’s claim that his attorney was ineffective when she

did not object to “inadmissible speculative testimony” from two of the police

detectives who testified at trial. Daley does not articulate any particular

testimony that he finds objectionable. It is not our function “to comb the record

with a view toward constructing arguments for counsel.” In re Estate of Lint, 135

Wn.2d 518, 532, 957 P.2d 755 (1998). A bare assertion unsupported by




                                           19
No. 76925-1-I/20


references to the record, citations to authority, or persuasive reasoning cannot

sustain the petitioner’s burden of proof on a claim. State v. Brune, 45 Wn. App.

354, 363, 725 P.2d 454 (1986).

        Daley also alleges that his counsel was ineffective in not filing two

evidentiary motions: one to suppress the surveillance video, and apparently one

to suppress evidence of the handgun that was recovered near his hiding place. 3

Because the video evidence was clearly admissible, and because he cannot

show that his attorney was ineffective by virtue of not objecting to its admission,

he cannot show that a motion to suppress the video was warranted or would

have succeeded, let alone that his attorney was ineffective in not making such a

motion. As to the handgun, Daley, again, provides no facts or evidence that

might facilitate our review of the claim. Williams, 111 Wn.2d at 365. He does not

show that a motion to suppress would have succeeded or affected the outcome

of the case. Thus, his claims of ineffective assistance on these grounds fail.4




         3
           Daley’s declaration accompanying his personal restraint petition states merely that he
“asked [Lucas] to file a motion regarding the handgun that was found in the bushes without any of
my DNA or fingerprints on it and she declined to do so or even investigate the matter further.”
         4
           In a similar vein, Daley alleges that his attorney performed deficiently during the
questioning of witnesses, claiming that his attorney did not raise a purported discrepancy
between Detective Janes’s testimony and the video evidence introduced and that his attorney
failed to highlight the testimony of Darren Lenz, a bouncer at Citrus, who stated that the shooter
did not resemble Daley. In fact, his attorney argued extensively to the court, during Daley’s
summation, that Janes’s testimony was inconsistent with other evidence before the court and that
Lenz’s testimony cast doubt on whether Daley was the shooter. Thus, Daley does not show that
the alleged deficient performance actually took place—let alone establish prejudice stemming
therefrom.



                                               20
No. 76925-1-I/21


                                          E

       Next, Daley asserts that his trial counsel was ineffective in negotiating a

plea deal and in advising Daley of the benefits either of going to trial or of

pleading guilty. Specifically, he claims that his attorney (1) failed to negotiate a

fair deal with the State, (2) failed to adequately advise him of the State’s plea

offer, and (3) failed to advise him of the sentencing consequences of his

conviction. Daley does not show that any of these actions constituted deficient

performance or that he was prejudiced as a result thereof.

       A criminal defendant’s right to effective assistance of counsel extends to

the plea bargaining process. U.S. CONST. amend. VI; In re Pers. Restraint of

Riley, 122 Wn.2d 772, 780, 863 P.2d 554 (1993). In the plea bargaining context,

counsel must actually and substantially assist her client in deciding whether to

plead guilty. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984).

Defense counsel has a duty to communicate any formal plea offers made by the

State. State v. James, 48 Wn. App. 353, 362, 739 P.2d 1161 (1987). In order to

show prejudice when a plea offer has been rejected due to counsel’s deficient

performance, a defendant must demonstrate a reasonable probability that he

would have accepted the plea offer had counsel performed effectively and that

the State would not have withdrawn the offer. Missouri v. Frye, 566 U.S. 134,

147, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012).

       Daley has produced no evidence that his attorney failed to negotiate with

the State, failed to properly advise him of a State’s plea offer, or failed to properly

advise him of the sentencing consequences of a conviction. In fact, the




                                          21
No. 76925-1-I/22


prosecutor stated, on the record, that plea negotiations had taken place and that

further attempts to negotiate the case were made on the eve of trial.5 Records of

electronic mail correspondence between the State and Daley’s attorney

corroborate this.

        Furthermore, Daley was informed, on the record, of the sentencing

consequences of his conviction. When the trial court offered to give Daley more

time to discuss the State’s plea offer with his attorney, Daley simply refused,

stating, “I would like to go forward, Your Honor.” Simply put, there is no evidence

in the record of the deficient performance of which Daley complains.

        Nor is there any evidence of prejudice, because Daley makes no showing

that he would have pled guilty but for defense counsel’s actions. He offers only a

self-serving declaration that he would have done so, but allowing statements

such as this, on their own, to establish prejudice would “‘lead to an unchecked

flow of easily fabricated claims.’” State v. Cox, 109 Wn. App. 937, 941, 38 P.3d

371 (2002) (quoting In re Alvernaz, 2 Cal. 4th 924, 938, 830 P.2d 747 (1992)).

Daley cannot show prejudice based on his bare assertion alone. State v.

Crawford, 159 Wn.2d 86, 99-102, 147 P.3d 1288 (2006). Daley, again, fails to

show that counsel’s assistance was ineffective or that he was prejudiced

thereby.6




        5
          This belies Daley’s claim that his attorney was ineffective in failing to notify him of the
plea bargain until the day before trial. Clearly, the negotiations were ongoing.
        6
          The record also does not support Daley’s assertion of an intent to plead guilty. At
sentencing, he explained to the court that he opted to go to trial because “I felt I stood a better
chance at the law not being violated and respected in that the evidence would allow me to be free
with my family.”


                                                 22
No. 76925-1-I/23


                                               F

        Finally, we reach Daley’s claim that he received ineffective assistance of

counsel at his sentencing hearing due to his attorney’s lack of preparedness. In

contrast with the claims of ineffective assistance discussed above, in this

instance defense counsel’s conduct clearly fell below a professional standard of

reasonableness. On the date originally set for Daley’s sentencing hearing, his

attorney failed to prepare, or provide the court with a copy of, Daley’s sentencing

memorandum. Instead, she drafted only a handwritten statement, earning her a

rebuke for what the court described as a “quite frankly slip-shod practice” that

was inappropriate, given the gravity of Daley’s convictions and the length of his

prospective sentence.

        However, no prejudice resulted from defense counsel’s error. The court

simply instructed Daley’s attorney that a request for a continuance was the

appropriate remedy if she could not complete the sentencing memorandum on

time. The court then continued the sentencing hearing. In doing so, it remedied

any harm that otherwise might have arisen from Daley’s attorney’s initial

unpreparedness.7

                                               IV

        Last, Daley claims that his sentence violates the Eighth Amendment and

that resentencing is warranted because “the trial court erred in failing to take into

account Daley’s youth as a mitigating factor” that would justify exceptional




        There is no indication in the record that Daley’s attorney was unprepared on the day that
        7

Daley was actually sentenced.


                                               23
No. 76925-1-I/24


concurrent sentences and concurrent firearm enhancements. All of these claims

are time-barred.

                                         A

       RCW 10.73.090(1) provides that no collateral attack on a criminal

conviction may be filed more than one year after the judgment becomes final so

long as the judgment and sentence is valid on its face and was rendered by a

court of competent jurisdiction. Daley’s conviction became final upon the

issuance of our mandate on June 17, 2016. RCW 10.73.090(3)(b). While Daley

filed his personal restraint petition on May 31, 2017, his supplemental briefing

raising these sentencing issues was filed on December 7, 2017, well over one

year after the judgment became final. To avoid the one-year time bar, Daley

relies on RCW 10.73.100, which provides:

               The time limit specified in RCW 10.73.090 does not apply to
       a petition or motion that is based solely on one or more of the
       following grounds:
               ...
               (6) There has been a significant change in the law, whether
       substantive or procedural, which is material to the conviction,
       sentence, or other order entered in a criminal or civil proceeding
       instituted by the state or local government, and either the
       legislature has expressly provided that the change in the law is to
       be applied retroactively, or a court, in interpreting a change in the
       law that lacks express legislative intent regarding retroactive
       application, determines that sufficient reasons exist to require
       retroactive application of the changed legal standard.

       To bring his challenge within this exception, Daley argues that the

Supreme Court’s decision in State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359

(2015), effected a significant change in the law material to his sentence.




                                        24
No. 76925-1-I/25


However, in Light-Roth, the Supreme Court expressly rejected this assertion. In

pertinent part, the court stated:

       Contrary to Light-Roth’s contentions, RCW 9.94A.535(1)(e) has
       always provided the opportunity to raise youth for the purpose of
       requesting an exceptional sentence downward, and mitigation
       based on youth is within the trial court’s discretion. [O’Dell, 183
       Wn.2d] at 698-99 (“We hold that a defendant’s youthfulness can
       support an exceptional sentence below the standard range . . . and
       that the sentencing court must exercise its discretion to decide
       when that is.”). The fact that Light-Roth misinterpreted [State v.
       ]Ha’mim[, 132 Wn.2d 834, 846, 940 P.2d 633 (1997)] is of no
       consequence in determining whether O’Dell constitutes a
       “significant change in the law.” . . .
               ....
               It is also significant that, in O’Dell, we found the trial court’s
       “failure to exercise discretion is itself an abuse of discretion subject
       to reversal.” 183 Wn.2d at 697. A trial court cannot abuse
       discretion it does not have. If Ha’mim precluded trial courts from
       considering youth as a mitigating factor, we would have ruled that it
       was an error of law for the trial court to refuse to consider youth in
       O’Dell. See Williams v. Tilaye, 174 Wn.2d 57, 61, 272 P.3d 235
       (2012) (“Statutory interpretation is a question of law reviewed de
       novo”). Here, Light-Roth could have argued youth as a mitigating
       factor, as he was permitted to do so under Ha’mim.

              Because O’Dell does not constitute a “significant change in
       the law,” we do not reach whether it applies retroactively or is
       material to Light-Roth’s case.

Light-Roth, 191 Wn.2d at 336-38 (footnote omitted).

       Daley’s argument, as with the defendant’s argument in Light-Roth, is time-

barred. We will not consider it.

                                           B

       Daley next argues that his sentence as imposed violated the Eighth

Amendment. In doing so, he relies on the proposition that the Supreme Court’s

holding in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017),

significantly changed the law as it applied to him. In Houston-Sconiers, the



                                          25
No. 76925-1-I/26


Supreme Court ruled that the Eighth Amendment requires that sentencing courts

be given absolute discretion to impose concurrent firearm-enhancement terms of

incarceration when a juvenile is convicted as an adult. 188 Wn.2d at 9.

       In contrast to the 16- and 17- year-old defendants in Houston-Sconiers,

Daley was 22 years old at the time he committed his crime and was, thus, an

adult. Daley fails to show that the decision in Houston-Sconiers controls

sentencing in such a situation. For adult offenders, RCW 9.94A.533(3) precludes

the imposition of concurrent firearm enhancements. State v. Brown, 139 Wn.2d

20, 26-27, 983 P.2d 608 (1999). Houston-Sconiers, applying only to juveniles,

did not control Daley’s sentencing. It does not authorize a time-barred claim.

                                         C

       Finally, Daley argues that State v. McFarland, 189 Wn.2d 47, 399 P.3d

1106 (2017), effected a significant change in the law by allowing concurrent

firearm-enhancement terms for adults. However, McFarland only recognized the

availability of exceptional concurrent sentences for firearm-related convictions.

189 Wn.2d at 55. It distinguished these from multiple firearm enhancements

imposed pursuant to RCW 9.94A.533. Neither RCW 9.94A.589(1)(c)—the

statute at issue in McFarland—nor the McFarland holding granted sentencing

courts the discretion to impose concurrent terms for firearm enhancements when

the offender is an adult. McFarland effected no significant change in the law that

would bear on Daley’s sentence. Thus, all of Daley’s claims of sentencing error

are time-barred.




                                        26
No. 76925-1-I/27


      The petitioner’s requests for relief are denied.




WE CONCUR:




                                        27
