                                                               FILED
                                                           OCTOBER 1, 2019
                                                      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

In the Matter of the Personal Restraint of     )         No. 36095-4-III
                                               )
DON ARTHUR MOORE,                              )         UNPUBLISHED OPINION
                                               )
                     Petitioner.               )

       PENNELL, A.C.J. — A jury convicted Don Arthur Moore of premeditated

first degree murder. The victim was Mr. Moore’s rural neighbor, Bruce Molony. The trial

evidence was detailed in our prior decision in Mr. Moore’s direct appeal. See State v.

Moore, No. 32925-9-III (Wash. Ct. App. Feb. 9, 2017) (unpublished),

https://www.courts.wa.gov/opinions/pdf/329259_ord.pdf. In this review of Mr. Moore’s

personal restraint petition (PRP), we focus on the theories presented at Mr. Moore’s trial

and sentencing in order to discern whether Mr. Moore’s trial counsel was ineffective for

failing to investigate the possibility of a mental health defense. We hold that, given the

clear signs of mental impairment, counsel’s failure to secure a mental health evaluation

constituted deficient performance. However, Mr. Moore has shown that this deficiency

prejudiced him only with respect to his sentence, not the conviction. We therefore grant

Mr. Moore’s PRP in part, vacate his sentence, and remand for resentencing.
No. 36095-4-III
In re Pers. Restraint of Moore


                                    BACKGROUND

State’s theory of the case

       The State claimed Don Moore murdered Bruce Molony in retaliation for

Mr. Molony’s theft of over $10,000 in property from Mr. Moore’s residence. Mr. Moore

first notified the police of the alleged thefts on April 9, 2013. When no arrest was made,

Mr. Moore became frustrated. On April 19, Mr. Moore told two associates that he was

going to kill Mr. Molony. The associates did not take Mr. Moore seriously. On April 20,

Mr. Moore armed himself with a holstered pistol, three knives, and a pellet gun and drove

out to Mr. Molony’s property. Mr. Moore confronted Mr. Molony while Mr. Molony was

seated outside his home. Mr. Moore made some demands of Mr. Molony and then shot

Mr. Molony with the pistol while Mr. Molony remained seated. 1 After a brief pause, Mr.

Moore fired several more shots, emptying his gun in the process. At that point, Mr.

Molony was mortally wounded. Even so, Mr. Moore proceeded to stab Mr. Molony

several times with one of his knives.

       After killing Mr. Molony, Mr. Moore attempted to drive away from the scene.

However, his vehicle got stuck and was unable to move. At this point, Mr. Moore



       1
         The State theorized that Mr. Molony was seated at the time of the shooting based
on the trajectory of bullet wounds discovered during an autopsy.

                                             2
No. 36095-4-III
In re Pers. Restraint of Moore


inflicted superficial wounds on his abdomen and head. He also made some cuts to his

shirt. Mr. Moore took his knife and placed it next to Mr. Molony’s body. He also stuck

a knife sheath into Mr. Molony’s back pocket, next to his wallet. He then deposited his

gun a short distance from the knife and called 911. Mr. Moore reported that he had been

stabbed and hit in the head with a rock. Mr. Moore requested an ambulance and also told

the 911 operator that he had killed Mr. Molony.

Defense theory of the case

       The defense claimed Mr. Moore acted in self-defense. At trial, Mr. Moore testified

that he had gone out to Mr. Molony’s property in order to perform a citizen’s arrest. Mr.

Moore believed Mr. Molony was dangerous and he therefore armed himself with a loaded

firearm, holstered inside his shirt. Mr. Moore also claimed he had only two knives in his

car, not three. Mr. Moore explained that when he arrived at Mr. Molony’s property, he

encountered Mr. Molony seated next to his home. He confronted Mr. Molony about the

alleged thefts and told Mr. Moony he was going to perform a citizen’s arrest. According

to Mr. Moore, Mr. Molony then came at him, flailing his arms around. Mr. Moore saw a

flash of silver, which he thought was a gun, but turned out to be a knife. Mr. Molony’s

actions prompted Mr. Moore to shoot his gun at Mr. Molony at close range. Mr. Moore

then continued to shoot because Mr. Molony did not stop moving.


                                            3
No. 36095-4-III
In re Pers. Restraint of Moore


       At trial, Mr. Moore could not recall the rest of his encounter with Mr. Molony.

But in pretrial statements, Mr. Moore admitted to stabbing Mr. Molony with the knife

Mr. Molony had used against him. Mr. Moore acknowledged that he was the owner of the

knife in question. Nevertheless, he maintained the knife was one of the many pieces of

property that Mr. Molony had stolen from Mr. Moore’s residence. Mr. Moore asserted he

called 911 immediately after the incident. He claimed his car became stuck when he

attempted to drive himself to the hospital.

Conviction and sentencing

       The trial court instructed the jury on both first degree premeditated murder

and second degree murder. It also provided jurors with a self-defense instruction. As

previously noted, the jury’s verdict was consistent with the State’s theory of premediated

first degree murder.

       Sentencing took place the morning after the jury’s verdict. The State requested a

high-end sentence of 404 months’ imprisonment. The defense did not make a specific

sentencing request, reasoning that any term of incarceration would amount to a life

sentence given Mr. Moore’s age (he was 67 at the time of sentencing). Defense counsel

advised the court that Mr. Moore had been diagnosed with post-traumatic stress disorder




                                              4
No. 36095-4-III
In re Pers. Restraint of Moore


(PTSD) as a result of his service in Vietnam. 2 Mr. Moore also mentioned his military

service during allocution. He stated that he was a 100 percent disabled veteran and that he

had acted pursuant to his training when he killed Mr. Molony. Mr. Moore adamantly

denied experiencing a blackout at the time of his confrontation with Mr. Molony. He

continued to maintain that he had killed Mr. Molony in self-defense.

       In imposing the sentence, the trial court noted that Mr. Moore’s military service

was a mitigating factor. However, the court indicated that it was not aware of “what

medical diagnosis the government has provided.” Report of Proceedings (Sept. 25, 2014)

at 62. In selecting a term of incarceration, the court did not follow the State’s

recommendation of a high-end sentence. Instead, the court imposed a sentence within

the upper region of the standard range, plus firearm and deadly weapon enhancements. 3

Postconviction developments

       Mr. Moore’s judgment and sentence was affirmed on appeal. Mr. Moore then filed

this PRP, alleging ineffective assistance of counsel based on trial counsel’s failure to

investigate his mental health history, and the possibility of a diminished capacity defense

and an exceptional sentence downward at sentencing. Although one of Mr. Moore’s early


       2
         The defense did not submit any documents to support this information.
       3
         The standard range plus enhancements was 324-404 months. The court imposed a
total sentence of 384 months.

                                              5
No. 36095-4-III
In re Pers. Restraint of Moore


attorneys filed a motion for a medical examination to explore issues of competency and

diminished capacity, only a competency evaluation took place. 4 No evaluation regarding

Mr. Moore’s mental state at the time of the offense ever occurred. According to Mr.

Moore, his trial counsel refused to investigate the possibility of a diminished capacity

defense.

       In support of his ineffective assistance of counsel allegations, Mr. Moore has filed

numerous documents that were not part of the original record. They are recounted below.

       Medical records submitted by Mr. Moore state Mr. Moore has a long-standing

PTSD diagnosis, stemming from his service in Vietnam. Through the years, Mr. Moore

has participated in numerous services through the United States Department of Veterans

Affairs (VA). According to VA records, after Mr. Moore was injured in Vietnam, he

“began utilizing anger/rage to combat his pain.” PRP Ex. G at 2. Since that time, Mr.

Moore has struggled with his anger. He has experienced rage against the government

and a tendency to respond to external injustices with anger. Mr. Moore found that

medications helped him address his anger problems.


       4
         The competency evaluation was based on a clinical profile, routine laboratory
testing, a treatment planning session and forensic interview. Although the evaluation
referred to police reports and criminal history, it did not include a review of medical or
mental health records. The evaluation report does not indicate that there was any
assessment of Mr. Moore’s mental state at the time of the offense conduct.

                                              6
No. 36095-4-III
In re Pers. Restraint of Moore


       The documents submitted with Mr. Moore’s PRP indicate that during the months

and days leading up to Mr. Molony’s April 2013 death, Mr. Moore’s mental health was

deteriorating. In 2011, Mr. Moore began experiencing blackouts, periods of confusion,

and often lost his sense of time. An MRI in December 2012 revealed that Mr. Moore had

white spots on his brain. By this same time, Mr. Moore had also lost close to 60 pounds

and was physically unstable. In January 2013, a VA medical provider suspected Mr.

Moore was suffering from delirium secondary to drug withdrawal. Mr. Moore was

provided a medication reduction plan. The plan appeared to be working, but on April 9,

2013, Mr. Moore was hospitalized after he collapsed at the sheriff’s office while

reporting Mr. Molony for theft. Medical records from April 14, 2013, report that Mr.

Moore was having memory problems, causing him to forget what was going on around

him.

       One of Mr. Moore’s longtime friends states that Mr. Moore was acting in a “very,

very weird” manner in the weeks prior to his arrest. PRP Ex. N at 2. “He was wearing a

cowboy hat with a sheriff’s badge and kept calling himself the ‘sheriff.’ . . . He was

acting totally paranoid and he constantly forgot what he was talking about. He would say,

frequently, that he could not remember what he had just said.” Id. A photograph of a hat




                                             7
No. 36095-4-III
In re Pers. Restraint of Moore


with a replica sheriff’s badge that had been found in Mr. Moore’s vehicle was admitted

into evidence at trial.

       Also in support of the PRP, Mr. Moore has submitted a declaration from April

Gerlock Ph.D., ARNP, a board certified, adult psychiatric/mental health nurse

practitioner. Dr. Gerlock explains that she has been unable to conduct a complete in-

person evaluation of Mr. Moore due to lack of funds. However, based on a review of

Mr. Moore’s record and the case file, Dr. Gerlock believes that Mr. Moore’s PTSD

could have caused him to experience heightened arousal and aggression at the time of

Mr. Molony’s death. According to Dr. Gerlock, an evaluation of how Mr. Moore’s PTSD

affected his state of mind in the weeks leading up to Mr. Molony’s death was warranted.

       In response, the State has filed a declaration from Mr. Moore’s trial counsel. Trial

counsel states that he did not investigate a mental health defense because Mr. Moore felt

there was no need for a mental health evaluation and was adamant that he knew exactly

what he had done. According to trial counsel, “Mr. Moore’s version of the events that led

up to the incident as well as the facts of the incident itself was consistent during the

entirety of my representation.” State’s Response to PRP, App. J at 2. “Mr. Moore clearly

knew what he was doing and what was happening at [the point he shot Mr. Molony].

There was no reason to raise a mental health defense and Mr. Moore agreed.” Id. at 4.


                                              8
No. 36095-4-III
In re Pers. Restraint of Moore


          This court’s initial screening of Mr. Moore’s PRP determined his claims for relief

were not frivolous. Thus, the case was referred to a panel of judges for review on the

merits.

                                          ANALYSIS

          The right to effective assistance of counsel is guaranteed both by the federal and

state constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. To prevail on an

ineffective assistance of counsel claim, a litigant must show that counsel performed

deficiently and that this deficient performance was prejudicial. State v. Grier, 171 Wn.2d

17, 32-33, 246 P.3d 1260 (2011). Proof of both prongs of this analysis are necessary to

warrant relief. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984). We therefore review each in turn.

Deficient performance

          We assess the sufficiency of trial counsel’s conduct according to the facts and

circumstances known at the time of representation and invoke “a strong presumption

that counsel’s conduct” was reasonable. Id. at 689. This is an extremely deferential

standard of review. But it has limits. If counsel’s decisions about how to proceed

with representation are based on inadequate preparation or investigation, they cannot

be deemed reasonable. See Wiggins v. Smith, 539 U.S. 510, 524-26, 123 S. Ct. 2527,


                                                9
No. 36095-4-III
In re Pers. Restraint of Moore


156 L. Ed. 2d 471 (2003). Reasonable investigation “includes expert assistance necessary

to an adequate defense.” State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006)

(citing Ake v. Oklahoma, 470 U.S. 68, 72, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985)).

       Mr. Moore’s trial counsel has disclosed that he did not investigate the possibility

of a mental health defense because Mr. Moore felt there was no need for a mental

health evaluation, Mr. Moore appeared to know exactly what he had done, and because

Mr. Moore had a viable self-defense claim. Trial counsel also explains that he could not

discern how Mr. Moore’s PTSD could have provided a defense to the State’s charge

of premeditated murder.

       Trial counsel’s explanation of his representation strategy falls short because it

“puts the cart before the horse.” Bemore v. Chappell, 788 F.3d 1151, 1166-67 (9th Cir.

2015). Mr. Moore has not alleged that his attorney settled on the wrong trial strategy. The

argument is that counsel failed to investigate prior to choosing a strategy. The

constitutional guarantee of effective assistance of counsel dictates that counsel’s

investigation “determine[s] trial strategy, not the other way around.” Weeden v. Johnson,

854 F.3d 1063, 1070 (9th Cir. 2017). “Counsel cannot justify a failure to investigate

simply by invoking strategy.” Id.




                                             10
No. 36095-4-III
In re Pers. Restraint of Moore


       The record amply supports the assertion that trial counsel was on notice of

Mr. Moore’s impaired mental state. Trial counsel was aware that Mr. Moore had

suffered from combat-related PTSD, regularly suffered from blackouts, and experienced

a series of unusual medical incidents in the weeks prior to his arrest.

       In addition, there were facts suggesting a mental impairment may have had

relevance to Mr. Moore’s offense conduct. At the time of his arrest, Mr. Moore was in his

late 60s and had no history of felonious conduct. Mr. Moore appears to have been fixated

on his belief that he was entitled to act as a sheriff and had even carried a hat with a false

sheriff’s badge in his car. Although only 10 days had passed since his theft report to law

enforcement, Mr. Moore had grown despondent and believed that he needed to take

matters into his own hands. These circumstances raise the possibility that Mr. Moore

might have been suffering from some sort of delusional disorder, in addition to PTSD,

that impacted Mr. Moore’s actions against Mr. Molony.

       Given Mr. Moore’s obvious struggles with mental health, defense counsel had

a duty to obtain a psychological evaluation before rejecting the possibility of a mental

health defense. See In re Pers. Restraint of Davis, 188 Wn.2d 356, 376, 395 P.3d 998

(2017). Without an expert evaluation, defense counsel was not in a position to reject

the viability of a mental health defense based on his own assumptions about PTSD.


                                              11
No. 36095-4-III
In re Pers. Restraint of Moore


Although Mr. Moore may have seemed adverse to such a defense (a fact that Mr. Moore

disputes), this was not a valid reason for failing to investigate. 5 It is hardly unusual for an

individual who is suffering from mental illness to struggle with accepting the existence

of a disorder. Regardless of Mr. Moore’s resistance, defense counsel had a duty to

investigate Mr. Moore’s condition and then, once armed with an evaluation, counsel

Mr. Moore on whether to raise a mental health defense. The failure to do so constituted

deficient performance. 6

Prejudice

       The fact that trial counsel performed deficiently does not automatically entitle

Mr. Moore to relief. Mr. Moore must also establish prejudice. This involves demonstrating



       5
         The State claims Mr. Moore was adamantly opposed to asserting a mental health
defense. The record does not support this claim. The declaration from Mr. Moore’s trial
attorney states that the attorney was told by Mr. Moore’s original counsel that Mr. Moore
was “unhappy with [the] decision to file a motion for competency evaluation and that Mr.
Moore felt that there was no need for any mental health evaluations.” State’s Response to
PRP, App. J at 1-2. While trial counsel’s declaration states that Mr. Moore “was adamant
that he did nothing wrong” and that “[h]e was firm in his commitment to a self-defense
strategy,” id. at 4, the declaration does not state that Mr. Moore was adamantly opposed
to a mental health evaluation (which is not the same thing as a competency evaluation) or
that he would have refused to participate in an evaluation.
       6
         This is not a case where exploration of Mr. Moore’s mental state would have
undermined Mr. Moore’s proffered defense theory. Cf. Bean v. Calderon, 163 F.3d 1073,
1082 (9th Cir. 1998). Evidence regarding Mr. Moore’s mental health could have been
relevant to explaining the perceived problems with Mr. Moore’s testimony and memory.

                                               12
No. 36095-4-III
In re Pers. Restraint of Moore


a “‘reasonable probability that, but for counsel’s deficient performance, the outcome of

the proceedings would have been different.’” Grier, 171 Wn.2d at 34 (quoting State v.

Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)); see also In re Pers. Restraint of Lui,

188 Wn.2d 525, 538, 397 P.3d 90 (2017); In re Pers. Restraint of Crace, 174 Wn.2d 835,

846-47, 280 P.3d 1102 (2012). This reasonable probability “is a probability sufficient to

undermine confidence in the outcome,” and is thus lower than the preponderance

standard. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (citing Strickland,

466 U.S. at 694).

       Mr. Moore’s primary claim is that defense counsel’s failure to investigate a mental

health defense caused him to be wrongly convicted. Had defense counsel conducted an

adequate investigation, Mr. Moore proffers that he would have been able to raise the

defense of diminished capacity and obtain either acquittal or a lesser conviction for

manslaughter.

       Mr. Moore recognizes that, as the record currently stands, he is unable to

substantiate his claim of prejudice at trial. In order to have raised a diminished capacity

defense, Mr. Moore would need expert testimony, explaining how his “mental condition

specifically related to his ability to achieve a culpable mental state.” State v. Gough,

53 Wn. App. 619, 622-23, 768 P.3d 1028 (1989). The current record is insufficient to


                                             13
No. 36095-4-III
In re Pers. Restraint of Moore


suggest that Mr. Moore might have been able to obtain such testimony. Though the record

establishes that Mr. Moore suffers from PTSD and that he was having emotional

problems at the time of his arrest, there is nothing in the record indicating Mr. Moore

would be able to present a jury with admissible expert testimony linking his mental

condition to the crime of first degree premeditated murder.

       Given the state of the record, Mr. Moore requests the court approve expert funds

so that he may obtain a full psychological evaluation and make an adequate showing of

trial prejudice. This is an unusual request, and one that lacks a clear legal basis. There

is no constitutional right to investigative assistance in postconviction proceedings. In re

Pers. Restraint of Gentry, 137 Wn.2d 378, 390, 972 P.2d 1250 (1999). Whereas the rules

of appellate procedure contemplate the possibility of postconviction expert appointments

in the death penalty context, see RAP 16.27, there is no similar provision that applies to

standard PRPs. In addition, even in the death penalty context, our court rules only allow

for expert funds when there has been legislative authorization and approved funding.

We are unaware of any authorization or approval of expert funds in the nondeath penalty

PRP context.

       The only rule that allows expenditure of funds outside the death penalty context is

RAP 16.15(h). Under that rule, the court of appeals


                                              14
No. 36095-4-III
In re Pers. Restraint of Moore


       may provide for the appointment of counsel at public expense for services
       in the appellate court, order waiver of charges for reproducing briefs and
       motions, provide for the preparation of the record of prior proceedings and
       provide for the payment of such other expenses as may be necessary to
       consider the petition in the appellate court.”

(Emphasis added.) This rule does not obviously apply to expert services. Expert services

are necessary to develop a PRP, not for consideration thereof.

       At best, RAP 16.15(h) might allow for appointment of expert services “in rare

circumstances where the petitioner can demonstrate a substantial likelihood” of

discovering “evidence that would compel relief under RAP 16.4(c).” Gentry, 137 Wn.2d

at 392. Such evidence “must be specific to petitioner’s own case.” Id. There is no legal

authority for “appointment of investigators or experts to identify or develop grounds for

challenging convictions or sentences.” Id.

       Mr. Moore has not satisfied this difficult standard for appointment of expert

services on appeal. Dr. Gerlock’s preliminary report fails to suggest how Mr. Moore’s

mental condition might have undermined his conviction for premediated murder. The

State’s theory was that Mr. Moore developed an intent and plan to kill Mr. Molony prior

to the date of the homicide. Dr. Gerlock’s report does not explain how PTSD could have

undermined Mr. Moore’s capacity to form intent over such a prolonged period of time. As

the record currently stands, Mr. Moore has not made an adequate showing that


                                             15
No. 36095-4-III
In re Pers. Restraint of Moore


appointment of Dr. Gerlock to complete her analysis would compel relief from his

judgment of conviction. See State v. Bottrell, 103 Wn. App. 706, 719-20, 14 P.3d 164

(2000) (evidence of PTSD not relevant to rebut premeditated intent). While it could

be that Mr. Moore was suffering from a disorder beyond typical PTSD that might have

impaired his thinking over a substantial period of time, Dr. Gerlock’s report does not raise

this possibility. Judicial speculation, alone, does not warrant expert appointment under

RAP 16.15(h).

       Mr. Moore argues that if this court does not grant his request for expert services,

the matter should be remanded to the superior court so that Mr. Moore can make a request

to the superior court judge. This argument lacks legal support. A PRP may be transferred

from the court of appeals to the superior court under RAP 16.11(b) “only if the petitioner

demonstrates he or she has competent, admissible evidence establishing facts which

would require relief.” In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593

(1998). Transfer is not appropriate to allow for the development of competent evidence

through appointment of expert services.

       Whereas Mr. Moore has not shown adequate prejudice either to justify relief

from conviction or for appointment of an expert to examine the possibility of relief from

conviction, the same is not true of his claim with respect to sentencing. Even where


                                             16
No. 36095-4-III
In re Pers. Restraint of Moore


insufficient to justify a diminished capacity defense, evidence of the defendant’s

diminished capacity may justify an exceptional sentence downward, RCW 9.94A.535(1)(e),

or at least a sentence at the low end of the standard range. Here, the evidence submitted

along with Mr. Moore’s PRP suggests not only general impairment from PTSD, but

extreme anxiety and aggression caused by combat-induced trauma. Mr. Moore’s experience

with trauma has, historically, diminished his ability to handle perceived injustices. While

medications had helped Mr. Moore deal with this problem in the past, his medications were

being tapered off at the time of his offense conduct. Mr. Moore’s behavior prior to the

offense, especially his practice of representing himself to others as a sheriff, may have

indicated the presence of some delusions. Although there is no evidence to indicate Mr.

Moore’s impairment was sufficient to justify a defense to the crime charged, there is reason

to believe that an investigation of Mr. Moore’s mental health and military service would

have led to a plausible case for either an exceptional sentence downward or, at least, a

sentence at the low end of the standard range. 7




       7
        Mr. Moore’s sentence of 384 months was 5 years longer than the low end of the
standard range.

                                             17
No. 36095-4-III
In re Pers. Restraint of Moore


       Mr. Moore has demonstrated that he was prejudiced at sentencing due to defense

counsel’s failure to conduct a reasonable investigation of his mental state. As such,

Mr. Moore’s sentence must be vacated and the matter remanded for resentencing. 8

                                     CONCLUSION

       Mr. Moore’s PRP is granted in part. Mr. Moore’s petition for relief from

conviction is denied. However, we grant the request for relief from his sentence.

Mr. Moore’s sentence is vacated and this matter is remanded to the superior court for

resentencing and any additional proceedings as may be deemed appropriate. Mr. Moore’s

motion for expert services under RAP 16.15(h) is denied. The motion for current counsel

to be appointed as counsel at public expense is denied as current counsel is not presently

under contract with the Office of Public Defense for cases in Division Three of the Court

of Appeals. All other pending motions are denied as moot.


       8
        Mr. Moore makes two additional claims of ineffective assistance, neither of
which warrant significant analysis. First, Mr. Moore claims defense counsel performed
deficiently in failing to seek to exclude Mr. Moore’s pretrial statements to police as
involuntary. This claim fails for lack of factual support. A statement to police cannot be
excluded as involuntary unless it was elicited by coercive police activity. State v. Unga,
165 Wn.2d 95, 100-01, 196 P.3d 645 (2008). The record here lacks evidence of coercion.
Second, Mr. Moore argues counsel was ineffective in failing to object to the prosecutor’s
statement during voir dire that Mr. Moore was not facing a capital case. This argument
was raised on direct appeal and Mr. Moore has not established a basis for revising our
prior decision. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 670-72, 101 P.3d 1
(2004).

                                            18
No. 36095-4-III
In re Pers. Restraint ofMoore


      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.


                                          £0./k:s
                                          Pennell, A.C.J.

I CONCUR:




   71? ddo U)~,ff-~
Siddoway, J.




                                            19
                                      No. 36095-4-III

       KORSMO, J. (concurring) — I concur in the result because there was mental health

history information that should have been called to the attention of the trial court at

sentencing. However, I disagree with the majority’s pronouncement that trial counsel

was deficient by not conducting a deeper investigation into Mr. Moore’s mental health

background. The majority correctly concludes that in the absence of evidence that there

was a viable diminished capacity defense, Mr. Moore cannot establish prejudice and this

personal restraint petition (PRP) necessarily fails. That should have been the end of its

analysis.

       Courts must evaluate counsel’s performance using a two-prong test that requires

determination whether or not (1) counsel’s performance failed to meet a standard of

reasonableness and (2) actual prejudice resulted from counsel’s failures. Strickland v.

Washington, 466 U.S. 668, 690-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Review is

highly deferential and we engage in the presumption that counsel was competent;

moreover, counsel’s strategic or tactical choices are not a basis for finding error. Id. at

689-691. Thus, an attorney’s failure to perform up to the standards of the profession will

require a new trial when the client has been prejudiced by counsel’s failure. State v.
No. 36095-4-III
In re Pers. Restraint of Moore—concurrence


McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). When a case can be

resolved on one prong, there is no need to analyze the other. Strickland, 466 U.S. at 697.

       Since this case fails due to lack of prejudice, the majority’s discussion about

counsel’s alleged obligation to dig further into possible mental health defenses is only

dicta. It is also erroneous. The majority cites In re Personal Restraint of Davis, 188

Wn.2d 356, 376, 395 P.3d 998 (2017), in support of its conclusion that counsel had a

duty to obtain a psychological evaluation before rejecting a mental health defense. That

cite does not support the proposition. In Davis, the argument before the court was a

claim that trial counsel erred in not having the right type of expert testify in support of its

defense. The cited page of the opinion contains a recitation of earlier death penalty cases

where the court determined that trial counsel either had or had not called the proper

expert to support its defense. Id. It does not support the conclusion that one must always

obtain an expert evaluation before rejecting a mental health defense. Indeed, Davis itself

concluded that the PRP failed to establish that counsel was deficient. Id. at 378.

       The majority’s argument is also a curious one because an evaluation had been

performed by Eastern State Hospital that determined Mr. Moore was competent to stand

trial. That evaluation noted Mr. Moore’s prior history of PTSD, but concluded that his

memory was excellent. Mr. Moore also conveyed his self-defense theory to the

evaluator. The evaluator suggested that Moore’s behavioral history might justify an



                                               2
No. 36095-4-III
In re Pers. Restraint of Moore—concurrence


evaluation for possible involuntary commitment per ch. 71.05 RCW since he appeared to

be a danger to himself and others.

       Nothing in the evaluation suggests that there was a reason to pursue a diminished

capacity defense. 1 Moreover, Moore’s own statements to the police and the Eastern State

Hospital evaluator show that he purposefully acted in self-defense. While self-defense

and diminished capacity are not necessarily exclusive defenses, they are exclusive under

the facts of this case. Raising diminished capacity would undercut self-defense by calling

Mr. Moore’s veracity into question. (“My client did not have the capacity to know what

he was doing when he said he acted in self-defense.”) And given that he displayed

purposeful behavior in planning and shooting his victim, any diminished capacity defense

would also be a very hard sell indeed, especially in light of his statements to law

enforcement.

       Strickland recognizes that the conversations between client and attorney guide,

and might even eliminate, the attorney’s duty to investigate. 466 U.S. at 691. “And

when a defendant has given counsel reason to believe that pursuing certain investigations

would be fruitless or even harmful, counsel’s failure to pursue those investigations may

not later be challenged as unreasonable.” Id. Here, there was no obvious reason to


       1
         The majority’s speculation that Mr. Moore might have been suffering delusions
would suggest a possible psychoses. However, a psychotic break would indicate possible
insanity, not diminished capacity. No one has suggested insanity is a concern in this
case.

                                             3
No. 36095-4-III
In re Pers. Restraint of Moore—concurrence


pursue a diminished capacity defense and a very strong reason to pursue self-defense—

the defendant was telling everyone in the world, as he would later tell the jury, that he

acted in self-defense. Defense counsel did not have to investigate the possibility of

diminished capacity further in light of the competency evaluation and his client’s own

statements that he acted in self-defense.

       While that explains my disagreement with the majority’s analysis, I will briefly

add a few comments about the PRP itself. Washington does not have a state-funded

postconviction relief process and the majority correctly rejects Mr. Moore’s argument to

obtain state funding for efforts here. His tortured argument from the Rules of Appellate

Procedure is absolutely unavailing. Washington court rules cannot create substantive

rights. E.g., State v. Templeton, 148 Wn.2d 193, 213, 59 P.3d 632 (2002). The right to

attorney and experts found in RAP 16.25 and RAP 16.27 for death penalty cases are

based on statutory authorization. RCW 10.73.150(3). Those rules also require advance

court authorization before appointment of counsel or retention of experts.

       Similarly, our right to appoint counsel for non-frivolous PRPs in RAP 16.15(h) is

authorized by RCW 10.73.150(4). Appointment is authorized only after a PRP of

sufficient merit has been filed that counsel would be of assistance to the appellate court.

The rule and statute simply do not allow for courts to go backwards and pay for expenses

already incurred in preparing a PRP. Mr. Moore’s effort to use the court rules to create



                                             4
No. 36095-4-111
In re Pers. Restraint of Moore-concurrence


an expansive right to postconviction assistance of counsel and experts is totally without

legislative authorization. He needs to go to that body if he wants to change the law.

      With those observations, I concur in the result.




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