 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

! STATE OF WASHINGTON,                        )        No. 75538-2-1
                                              )        (consolidated with
                      Respondent,             )        No. 76831-0-1)
                                              )
               v.                             )         DIVISION ONE
                                              )
 ABIGAIL MONDRAGON,                           )         UNPUBLISHED OPINION
                                              )                                       IV          CI:

                      Appellant.              )
                                                                                      rrl   fri

, In the Matter of the Personal Restraint of )7.-
                                             )
  ABIGAIL MONDRAGON,                         )                            -.7:1-
                                                                      (=)
                                                                       •• --4,-
                                             )
                        Petitioner.          ) FILED: February 12, 201U C)-
                                                                                              4-,
                                              )


       APPELWICK, J. — Mondragon was convicted of second degree assault. On

appeal, she argues that her confrontation clause rights were violated, and that she

received ineffective assistance of counsel. In a personal restraint petition, which
i
,is consolidated with her appeal, she contends, based on matters contained outside

the record, that she received ineffective assistance of counsel. We affirm and deny

the personal restraint petition.

                                     FACTS

       Abigail Mondragon met Lindsay Dawson while in a group chat in connection

with an online game that they both played. At that time, Mondragon was dating

Michael Ridley-James, whom Dawson also met through the online game.

,Mondragon and Ridley-James had a relationship for about two years, and have a
No. 75538-2-1/2


daughter together. Ridley-James began dating Dawson after he and Mondragon

ended their relationship. Mondragon sent Dawson harassing messages on Skypel

after Mondragon and Ridley-James ended their relationship.                Mondragon's

harassing messages were about e-mails and suggestive photos that Dawson had

sent Ridley-James.     In March 2015, about four months into their romantic

relationship, Dawson moved to Washington from Wisconsin to live with Ridley-

James.

       Dawson first saw Mondragon in person on Easter at the woodshop where

Ridley-James occasionally works. Dawson testified that, on that day, Mondragon

hit her in the face with her fist. Ridley-James also testified that Mondragon swung

a closed fist at his face, hitting his cheek. Dawson called the police.

       Mondragon was initially charged with assault in the second degree. Then,

the State amended the information and added a charge of assault in the fourth

degree (domestic violence).

       Mondragon was tried by a jury and found guilty of second degree assault

and not guilty of fourth degree assault. The court imposed a standard range

Sentence on the second degree assault conviction.             Mondragon appeals.

Mondragon also filed a personal restraint petition, which was consolidated with this

appeal.




       1 Skype is a live video chat and long-distance voice calling service. It can
also be used to send typed messages.

                                             2
No. 75538-2-1/3


                                  DISCUSSION

  I.   Appeal

       Mondragon argues that the trial court abused its discretion by limiting

testimony on cross-examination of Dawson and Ridley-James about future plans

with Ridley-James's and Mondragon's child. She argues that allowing Officer

Weatherby to testify that the testimony of Dawson and Ridley-James was

consistent with the statements of witnesses at the scene was error. Finally, she

argues she received ineffective assistance of counsel.

       A. Excluding Testimony on Cross-Examination

       First, Mondragon argues that the court erred when it excluded counsel's

questions to Dawson and Ridley-James about their alleged plans for the parenting

of Mondragon's and Ridley-James's child. Mondragon argues that counsel should

have been allowed to question Dawson about Dawson's and Ridley-James's plans

for parenting the child, under a state of mind exception to hearsay. ER 803(a)(3).

And, she argues that the trial court should have allowed her to question Ridley-

James on this subject, to establish the witness's bias.

       The right to confront and cross-examine adverse witnesses is guaranteed

by both the federal and state constitutions. U.S. CONST. amend. VI; WASH. CONST.

'art. I, § 22; State v Darden, 145 Wn.2d 612,620,41 P.3d 1189(2002). A trial court

may, however, refuse to permit cross-examination where the circumstances only

remotely tend to show bias or prejudice of the witness, where the evidence is

vague, or where the evidence is merely argumentative and speculative. State v.

Guizzotti, 60 Wn. App. 289, 293, 803 P.2d 808 (1991).


                                            3
No. 75538-2-1/4


       The court may admit relevant evidence, i.e., evidence that tends to make

the existence of any fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence. ER 401; State v.

Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996). Evidence of bias and

interest is relevant to a witness's credibility. Id. Bias includes that which exists at

the time of trial, for the very purpose of impeachment is to provide information that

the jury can use, during deliberations, to test the witness's accuracy while the

witness was testifying. State v. Fisher, 165 Wn.2d 727, 752, 202 P.3d 937(2009).

       A trial court's ruling on the admissibility of evidence is reviewed for abuse

of discretion. Darden, 145 Wn.2d at 619. Abuse exists when the trial court's

exercise of discretion is manifestly unreasonable or based upon untenable

grounds or reasons. Id. Similarly, a court's limitation of the scope of cross-

examination will   not be disturbed unless it is the result of manifest abuse of

discretion. Id. However, the more essential the witness is to the prosecution's

case, the more latitude the defense should be given to explore fundamental

elements such as motive, bias, credibility, or foundational matters. Id.

       Here, on cross, Mondragon intended to question Dawson about her and

Ridley-James's plans for parenting the child and moving to Japan:

       Q.     Okay. Let's talk about Mr. Ridley's background.
              MS. CONNOR: Objection, relevance.
              MR. RANSOM: Oh, it -- it's relevant, Your Honor.
              THE COURT: How is it relevant?



              (The following proceedings were had outside the hearing and
              presence of the jury):


                                              4
No. 75538-2-1/5




            MR. RANSOM: Here is where it's relevant, Your Honor. Here
      is my offer of proof. I want to know if there is some kind of
      discussions about Mr. Ridley's plans to move to Japan.



             MR. RANSOM:The offer of proof is this. I think that Mr. Ridley
      has spoke [sic] to her about his plans to move to Japan. I think she
      knows about his education, his background that he speaks fluent,
      that he has been there before, I think she knows that Mr. Ridley
      wants to take custody of the child. All of this is relevant background
      information which goes to credibility. . . .



             MS. CON NOR: One, I think it's calling for hearsay answer. . .


            MR. RANSOM: If I may. If it is hearsay, then there is an
      exception to the hearsay rule of present sense impression and that's
      the exception that I'm seeking here if the court finds that their
      conversations in the regard that I spoke to you about.

Then, counsel assented that Ridley-James would be a better witness to ask,

stating, "I believe I'm inclined to ask these questions of Mr. Ridley[-James], that

would probably be a better person to ask rather than hearsay from Ms. Dawson,

so if the court instructs me to stop asking questions." At which point the court

sustained the State's objection.

       Now, Mondragon argues that Dawson's testimony would fall under the state

of mind exception to hearsay. ER 803(a)(3), is a hearsay exception for a statement

of the declarant's then existing state of mind.2 State v. Marintorres, 93 Wn. App.



      2 To be admissible on this theory, thehearer's state of mind must be relevant
to an issue at trial. See Marintorres, 93 Wn. App. at 449. The effect on Dawson
of Ridley-James's statements about his intentions for parenting the child was not
relevant to an issue at trial.

                                               5
'No. 75538-2-1/6


442, 449, 969 P.2d 501 (1999). Error in the exclusion of testimony by a trial court

generally cannot be urged under a theory presented for the first time on appeal.

Allen v. Asbestos Corp., Ltd., 138 Wn. App. 564, 578, 157 P.3d 406 (2007). See

also RAP 2.5(a)("The appellate court may refuse to review any claim of error which

was not raised in the trial court."). Thus, because Mondragon did not raise the

state of mind hearsay exception before the trial court, we need not consider this

argument on appeal.

       Mondragon also argues the trial court abused its discretion when, on

relevance grounds, it limited this line of questioning to Ridley-James. The court

sustained the State's relevance objection when defense counsel asked Ridley-

James, "Have you made any long-term plans with Ms. Dawson?" But, the court

allowed defense counsel to question Ridley-James about his plans for parenting

of his daughter. Counsel asked if he had sought "custody" of his daughter, and if

he would prefer to have "full custody" of her. The court overruled the State's

Objection to the latter question.

       A defendant has a right to confront the witness against him with bias

evidence so long as the evidence is at least minimally relevant. Fisher, 165 Wn.2d

at 752. But, a defendant has a right to put specific reasons motivating the witness's

bias before the jury, not specific facts. See id. at 752-53. In Fisher, our Supreme

Court upheld the trial court's decision to exclude evidence of financial details of a

dissolution of marriage where it allowed testimony about the nature of the

dissolution and whether the witness harbored ill will toward the defendant. See id.

at 753.


                                             6
No. 75538-2-1/7


       Here, the court allowed defense counsel to question Ridley-James abou

his intentions for parenting the child, to establish any possible bias Ridley-Jame

might have towards Mondragon. Mondragon does not explain how Ridley-James'

future plans with Dawson were relevant, beyond witness's possible bias, whic

trial counsel explored through other questions. The trial court did not abuse its

discretion in limiting the scope of questioning by excluding the question to Ridley

James about his long-term plans with Dawson.

       B. Confrontation Clause Rights

       Second, Mondragon argues that allowing Deputy Weatherby to testify that

ithe testimony of Dawson and Ridley-James was consistent with the statements o

witnesses at the scene was error. She argues that the testimony about the absen

,witnesses' statements violated her right to confrontation.

       Under the Sixth Amendment's confrontation clause, in all criminal

prosecutions, the accused shall enjoy the right to be confronted with the witnesses

lagainst him. State v. Chambers, 134 Wn. App. 853, 860, 142 P.3d 668 (2006)

Admission of a testimonial statement violates a defendant's right of confrontation

unless the witness is unavailable and the defendant had a prior opportunity to

cross-examine the witness regarding the statement.            Id.   Statements are

testimonial when the circumstances objectively indicate that there is no ongoing

emergency, and that the primary purpose of the interrogation is to establish o

prove past events potentially relevant to later criminal prosecution. State v. Mason

160 Wn.2d 910, 918-19, 162 P.3d 396 (2007). Confrontation clause claims are

reviewed de novo. Id. at 922.


                                             7
No. 75538-2-1/8


       In Crawford v. Washington, citing three-decade old precedent, the United

States Supreme Court reiterated that, "[t]he [Confrontation] Clause also does no

'bar the use of testimonial statements for purposes other than establishing the truth

;of the matter asserted." 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). Eight years later—in plurality, concurring, and dissenting opinions—all

nine Justices continued to adhere to this view. Williams v. Illinois, 567 U.S. 50, 57

132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (plurality opinion).        In a four-justice

iplurality opinion, Justice Alito repeatedly discusses this limitation on the

confrontation right, first observing that"this statement was not admitted for the truth

of the matter asserted, and it is settled that the Confrontation Clause does not bar

the admission of such statements." Id. The plurality repeats this principle, "We

now conclude that this form of expert testimony does not violate the Confrontation

,Clause because that provision has no application to out-of-court statements tha

Lare not offered to prove the truth of the matter asserted." Id. at 57-58. This was

:later again repeated. Crawford, Justice Alito wrote, "took pains to reaffirm the

proposition that the Confrontation Clause 'does not bar the use of testimonia

statements for purposes other than establishing the truth of the matter asserted."

Id. at 70 (quoting Crawford, 541 U.S. at 59-60 n.9).

       Justice Thomas, who possesses a singular view of the confrontation clause

concurred in the judgment but agreed with the foregoing limitation: "As the Cou

has explained,'[t]he [Confrontation] Clause. . . does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted."




                                              8
No. 75538-2-1/9


,Williams, 567 U.S. at 104(Thomas, J., concurring)(alterations in original)(quoting

Crawford, 541 U.S. at 60 n.9). That makes five justices who shared this view.

       The other four justices, although in dissent, shared it also. Id. at 125

(Kagan, J., dissenting).     There is, the dissenters noted, "[A] limit to the

Confrontation Clause recognized in Crawford. 'The Clause,' we cautioned there

,'does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.'" Id.(Kagan, J., dissenting)(quoting

Crawford, 541 U.S. at 59-60 n.9)."

       Thus, a unanimous United States Supreme Court opined that the

'confrontation clause applies only to statements offered to prove the truth of the

!matter asserted. Following binding United States Supreme Court precedent, w

hold the challenged testimony was not offered to prove its truth and, therefore, i

not subject to a confrontation clause challenge.

       Initially, citing Crawford, the Washington Supreme Court recognized this

authority, "[E]ven testimonial statements may be admitted if offered for purposes

lother than to prove the truth of the matter asserted." State v. Davis, 154 Wn.2d

291, 301, 111 P.3d 844 (2005), aff'd by Davis v. Wasington, 547 U.S. 813, 126S

Ct. 2266, 165 L. Ed. 2d 224(2006). However, two years later, our Supreme Couri

took a contrary view: "[W]e are not convinced a trial court's ruling that a statemen

is offered for a purpose other than to prove the truth of the matter asserted

immunizes the statement from confrontation clause analysis. To survive a hearsay

challenge is not, per se, to survive a confrontation clause challenge." Mason, 160

,Wn.2d at 922. In the six years since the United States Supreme Court decided the


                                             9
    75538-2-1/10


Williams case, the Washington Supreme Court has not disavowed its contrary

!holding in Mason. Thus, we must decide this case on alternative bases.

       On redirect, the State asked Deputy Nicholas Weatherby about his

questioning of other people who were present at the woodshop the day of the

Incident. Weatherby stated that he spoke to A.C. and Jule.3 He stated that he

spoke to A.C. and Jule after Ridley-James and Dawson, explaining, "I usually

;speak with the people reporting the crime or the victim in an investigation first and

get the details and then I speak to the witnesses to see if their observation was

consistent with what I'm being told by the other individuals." Mondragon objected

when the State asked Weatherby, "What key details did A[.]C[.] and Jule tell you

that were consistent?" In response to the Mondragon's objection, the State told

the court,

       Counsel opened the door as to statements being consistent or
       inconsistent, also suggested they weren't here.and he didn't take a
       written statement. I'm asking this witness to clarify what he means
       by consistent and the key details and to explain what he did further
       on in the investigation.

The court allowed the question for "that limited purpose but not to establish the

truthfulness of the statements of the individuals questioned."

       Recounting the statements A.C. and Jule gave him, Deputy Weatherby

testified,

       The observations they made as far as what they saw claiming that
       [Mondragon] attacked [Dawson] and struck her in the face several

       3 Weatherby described A.C. as a "teenage friend" and Jule as Ridley-
James's father. A.C. Charles is Ridley-James's cousin and Jule James is Ridley-
'James's stepfather, and is often referenced as Ridley-James's father in the report
of proceedings.

                                             10
    75538-2-1/11

         times and then [Ridley-James] had to physically pull her off of
         [Dawson] and hold on to her in order to keep her from continuing to
         assault her was the same.

                 They also said --I can't remember if they said they observed
         or just heard the argument. I spoke with them both at the same time,
         so I can't at this, a year later, I can't tell you the exact words but I do
         remember they were consistently the same as what I was being told
         by [Dawson] and by [Ridley-James].

         A.C. and Jule gave statements to Weatherby after the incident, when there

was not an ongoing emergency, during the course of the police investigation. See

Mason, 160 Wn.2d at 918-19(statements are testimonial when there is no ongoing

'emergency and the primary purpose of the interrogation is to establish relevant

events to later prosecution). The trial court admitted the testimonial statements

not for the truthfulness of the individuals questioned.             Under Williams, the

admission of the evidence did not violate the confrontation clause. See 567 U.S

at 57.

         And, even if under Mason any confrontation clause error occurred, it i

'subject to harmless error analysis. State v. Watt, 160 Wn.2d 626, 633, 160 P.3d

640(2007). Constitutional error is presumed to be prejudicial, and the State bear

the burden of proving that the error was harmless. Id. at 635. A constitutional

error is harmless if the appellate court is convinced beyond a reasonable doub

that any reasonable jury would have reached the same result in the absence of the

error. Id. The appellate court looks only at the untainted evidence to determine i

the untainted evidence is so overwhelming that it necessarily leads to a finding o

'guilt. Id. at 636.




                                                11
No. 75538-2-1/12


        Here, Dawson had already testified that Mondragon hit her in the face with

,her fist.   And, Ridley-James had testified that Mondragon "struck [Dawson]

'repeatedly in the face with her right hand" and that "[Dawson] did nothing but try

to cover her face as [Mondragon] repeatedly struck her in the nose." Further,

Weatherby testified on direct, without objection, that Mondragon had admitted to

lassaulting Dawson,

        Q. And were you able to contact[Mondragon] when you arrived?

        A. I was. When 1 arrived, . . . we parked. There is a parking lot to
           our right and she was outside of a vehicle standing I believe in
           front of Lummi police vehicle and a couple of Lummi officers
           were speaking with her so I approached them and interviewed
           her.

        Q. Did she agree to talk with you?

        A. She did.

        Q. What did she tell you?

        A. When I first walked up to her, I believe I introduced myself and,
           . . . I asked an intentional open-ended question of what
           happened here today and what she said in reply was -- it still
           sticks out in mind as being usual [sic] -- the first words out of her
           mouth were "I punched the bitch in the face."

        Q. What did you say to that?

        A. I asked more clarifying questions about why she did that and
           what the circumstances were leading up to that.

        Q. And what did she tell you?

        A. She said she had -- she had responded to the property to talk to
           Michael about something. . . . And when she showed up, she
           immediately recognized [Dawson] because she had previously
           seen her pictures on some kind of social media and was under
           the impression that [Ridley-James] possibly had cheated on her
           with [Dawson] while they were still dating. [S]he said what she
           saw her [sic], she felt blind-sided by that and that kind of made
           her lose control of herself and very angry.

                                              12
    75538-2-1/13



       Q. Now while you were talking to her about what happened, did she
          report that the altercation was a fight?

       A. Yes. . . . I am not sure if she used the exact word fight.

       Q. How did she describe it?

       A. She described it more as she kind of blind-sidedly [sic] attacked
          [Dawson]. She said she lost control and went into a rage were
          her words.

       Q. Did she complain of being attacked by [Dawson]?

       A. No. 1 asked and she said [Dawson] did not fight back to [her]
          knowledge.

       Even if the jury could have viewed Dawson and Ridley-James testimony

with skepticism, Officer Weatherby testified that Mondragon admitted to the

assault.   There was no evidence that challenged Mondragon's confession

iMondragon did not testify. As in Watt, even without the evidence of the additional

witnesses' statements that is being challenged here, the untainted evidence would

,have allowed any reasonable jury to find beyond a reasonable doubt that

Mondragon assaulted Dawson and struck her in the nose.

       If the trial court erroneously admitted Weatherby's statement, we find that

the error is nonetheless harmless.

       C. Ineffective Assistance of Counsel

       Third, Mondragon argues on appeal she received ineffective assistance o

'counsel, based on matters contained within the record.4 She argues that trial

,counsel was ineffective by cross-examining Dr. Yost Knops and demonstrating to


      'Mondragon     argues that she received ineffective assistance of counsel on
matters outside of the record in her personal restraint petition.

                                            13
'No. 75538-2-1/14


the State that it had not established the cause of Dawson's nose injury. Further

she asserts that if trial counsel had not cross-examined Dr. Knops, there is a

reasonable possibility that she could have prevailed on a motion to dismiss the

'charge of second degree assault, leaving the fourth degree assault charge. Then

,she argues trial counsel was ineffective by advising her not to testify when the

defense theory was self-defense.

       In order to prevail on a claim of ineffective assistance of counsel, the

defendant must demonstrate (1) deficient performance, that her attorney's

'representation fell below the standard of reasonableness, and (2) resulting

'prejudice, that, but for the deficient performance, the result would have been

different. See State v. Hassan, 151 Wn. App. 209, 216-17, 211 P.3d 441 (2009)

,If a defendant fails to establish either prong, we need not inquire further. Id. a

,217. To establish deficient performance, the defendant has the heavy burden of.

showing that her attorney made errors so serious that counsel was not functioning

as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. This

'court approaches an ineffective assistance of counsel argument with a strong

,presumption that counsel's representation was effective. State v. McFarland, 127

,Wn.2d 322, 335, 899 P.2d 1251 (1995). The defendant has the burden to show

that based on the record, there are no legitimate strategic or tactical reasons for

The challenged conduct. Hassan, 151 Wn. App. at 217. The extent of cross-

examination is a matter ofjudgment and strategy. State v. Jon hston, 143 Wn.App

1, 20, 177 P.3d 1127 (2007). This court will not find ineffective assistance o




                                            14
No. 75538-2-1/15


counsel based on trial counsel's decisions during cross-examination if counsel's

;performance fell within the range of reasonable representation. Id.

       Mondragon claims her counsel was ineffective when he cross-examined Dr.

:Knops. She asserts that defense counsel's cross examination established that(1

Knops did not know how Dawson received the injury, and (2) did not see how she

received the injury,(3)there are many causes of a broken nose, and (4) Dawson's

breathing was slightly affected by the injury. She asserts that this was after the

State had failed to elicit from Knops how Dawson had broken her nose, and implies

that the cross-examination elevated her charge from fourth degree assault to

second degree assault.

       Here, as the State notes, there is nothing in the record to show that it was

'defense counsel's questioning that prompted the prosecutor to ask Dr. Knops

about what Dawson had said. On redirect, the State asked Dr. Knops, "For

purposes of medical diagnosis and treatment, do you ask the patient what

,happened?" This testimony is admissible under ER 803(a)(4), statements for

purposes of medical diagnosis. Defense counsel's cross-examination of Knops

included,

       Q. Let's discuss what you did not witness or know.

       A. Okay.

       Q. You don't know the background of how Ms. Dawson received her
          injury?

       A. Correct.

       Q. You did not see how she suffered the injury?

       A. I was not there.


                                           15
No. 75538-2-1/16

       Q. All you know is what Ms. Dawson told you about how she
          received that injury.

       A. That's correct.

       From these questions, we conclude that defense counsel's strategy was to

,establish the limits of the doctor's knowledge. Whether this was a particularly

'helpful inquiry is doubtful. But, this questioning was not necessary for the State to

establish the nexus between the assault and the injury treated.

       Witness testimony already had been given which allowed the State to argue

that Mondragon's assault caused Dawson's injury. Dawson testified that after the

incident, when the police finished questioning her, she went to the emergency

room for medical treatment. She testified that the emergency room referred her to

,the ear, nose, and throat specialist, who later diagnosed her injury as a nose
i
 fracture. On direct, Dr. Knops testified that Dawson's injury was a nasal fracture

and that the nose was displaced and moved. He stated a nose will become

disaligned or displaced if there is any type of force applied to it. And, that this can

lhappen from fists, softballs, stray elbows, car accidents, or anything that strike

the nose. Dawson's direct testimony established a sufficient nexus between he

'injury and the diagnosis of a fracture.       And, Dr. Knops's direct testimony

established that Dawson's injury was consistent with the alleged assault. Thus

the link was established, from which the State could argue that Mondragon'

assault caused Dawson's injury without the testimony elicited on redirect

Counsel's performance in cross-examining Knops falls within the reasonable

range of representation.




                                             16
No. 75538-2-1/17


        Mondragon next claims that her counsel was ineffective by advising her no

.to testify when the theory of the defense was self-defense. Mondragon states in

her brief that "it is clear that trial counsel did advise Ms. Mondragon not to testify.

        A defendant who is able to prove that his attorney actually prevented him

from testifying has satisfied the first step in the ineffective assistance of counsel

'test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 20:1

674 (1984). See State v. Robinson, 138 Wn.2d 753, 766, 982 P.2d 590 (1999)

And, to satisfy the second prong of ineffective assistance, the defendant must

prove that his testimony would have a reasonable probability of affecting a differen

outcome. See id. at 769-70.

        Mondragon does not cite to anywhere in therecord to support her assertion

that trial counsel prevented her from testifying. Therefore, she has not proven in

her direct appeal that she received ineffective assistance of counsel.

  II.   Personal Restraint Petition

        In the personal restraint petition, Mondragon contends that errors require

this court to vacate her conviction and remand for a new trial, or at least remanJ

for an evidentiary hearing. She argues that she was denied effective assistance

of counsel when counsel advised her not to testify. She asserts that this causeJ

 counsel to forsake the only viable defense in this case, self-defense, and proceed
1
  with general denial. And, she asserts that cumulative errors, of the trial court ancl

trial counsel, denied her the right to a fair trial.




                                                17
NO. 75538-2-1/18


       A. Standard of Review

       A personal restraint petitioner must prove either a constitutional error that

'results in actual and substantial prejudice or a nonconstitutional error tha

constitutes a fundamental defect which inherently results in a complete

miscarriage of justice. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488

251 P.3d 884 (2010). The burden is on the petitioner to prove the error by a

preponderance of the evidence. Id. A petitioner claiming ineffective assistance o

,trial or appellate counsel necessarily establishes actual and substantial prejudice

:if the petitioner meets the standard of prejudice applicable on direct appeal. In re

Pers. Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017). To prevail, the

'petitioner must prove that but for counsel's deficient performance there is a

,reasonable probability the outcome would have been different. Id.

       The petitioner must state in his petition the facts underlying the claim o

unlawful restraint and the evidence available to support the factual allegations. In

re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Bald

lassertions and conclusory statements are not sufficient to entitle the petitioner t

,a reference hearing. Id. at 886. If allegations are based on matters outside the

,record, the petitioner must demonstrate that competent, admissible evidence

would establish the facts. Id. And, if the allegations are based on the knowledge

of others, the petitioner must present their affidavits or other corroborative

levidence. Id. If the petitioner makes this threshold showing, the court examines

the State's response, which should identify any material disputed questions offact




                                             18
No. 75538-2-1/19


Id. If there are material disputed issues of fact, then the trial court will be directed

to hold a reference hearing to resolve the factual questions. Id. at 886-87.

       B. Right to Testify

       Mondragon asserts that she received ineffective assistance of counsel

,because she wished to testify and was functionally prevented from doing so. Pet

In support of this argument, Mondragon provides her own declaration and the

declaration of her trial counsel, Alexander Ransom.

       A defendant has a fundamental constitutional right to testify in his or her

'own defense. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed

'2d 37 (1987). This right is protected at a federal level by the Fifth, Sixth, and

Fourteenth Amendments. Id. The Washington constitution explicitly protects the

right to testify. WASH. CONST. art. I, § 22. This fundamental right cannot b

abrogated by counsel or the court. Robinson, 138 Wn.2d at 758. Only the

defendant, not counsel, has the authority to decide whether or not to testify. State

V. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). A defendant's right t

testify is violated if the final decision that the defendant would not testify was made

'against his will. Robinson, 138 Wn.2d at 763.

       In order to prove that an attorney actually prevented the defendant from

testifying, the defendant must prove that the attorney refused to allow him to testify

in the face of unequivocal demands that he be allowed to do so. Id. at 764. When

a defendant proves that his attorney actually prevented him from testifying, we

address the appropriate remedy as a claim of ineffective assistance of counse

under Strickland. Id. at 765-67. To succeed on a claim of ineffective assistance


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,of counsel, a defendant must show (1)that counsel's representation was deficient

in that it fell below an objective standard of reasonableness, and (2) this deficien

representation prejudiced the defendant, meaning that there is a reasonable

probability that the result of the proceeding would have been different absent

counsel's errors. McFarland, 127 Wn.2d at 334-35; Strickland v, 466 U.S. at 687

88.

       While the decision to testify should ultimately be made by the client, it is

,entirely appropriate for the attorney to advise and inform the client in making the

,decision to take the stand. Robinson, 138 Wn.2d at 763. In Robinson, the court

noted that we must distinguish cases in which the attorney actually prevents the

,defendant from taking the stand, from cases in which counsel merely advises the

'defendant against testifying as a matter of trial tactics. Id. If the defendant cannot

prove by a preponderance of factual evidence that counsel ignored his unequivocal

demands to testify, we will presume that the defendant voluntarily elected not to

take the stand upon the advice of counsel. Id. at 764.

        Here, Mondragon states,
               After I hired Mr. Ransom, I told him about what happened and
       we planned to plead self-defense at trial. I told Mr. Ransom shortly
       after I retained him as my attorney that there were Skype messages
       from before the incident in which I called Ms. Dawson foul names. I
       did not have copies of them as they had been deleted.

              From the beginning, I had planned to testify. After the
       prosecutor gave Mr. Ransom the Skype messages, he and I spoke
       again about me testifying. Mr. Ransom said that the Skype
       messages were really incriminating. He said,"I can't give you a good
       opinion as to whether to testify". [sic] The prosecutor is going to nail
       you to the cross with these. He advised me not to testify. I knew it
       was my decision, but I trusted my lawyer's advice.



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No. 75538-2-1/21


       Mondragon's trial defense counsel describes his trial tactics, in part,

      It was always Ms. Mondragon's and my intention that we would
      advance the defense of self-defense at trial. I gave written notice of
      that intent to the court and the State. . . . Several days into trial, the
      prosecutor, Ms. Connor, gave me documents that would later be
      marked as Exhibits 24 and 25. Those documents were copies of
      Skype messages between my client, Ms. Mondragon and the alleged
      victim, Ms. Dawson sent before the incident in question. Exhibits 24
      and 25 speak for themselves. . . . I felt that if I moved forward with
      self-defense and had Ms. Mondragon testify despite those
      messages,then the State would have(1)admitted the text messages
      under ER 404(b) as proof of motive, intent, etc.; and/or (2) admitted
      the messages as business records or other hearsay exceptions;
      and/or (3) admitted [11 Washington Patter Jury Instructions:
      Criminal] 16.04[, at 253 (4th ed. 2016) (WPIC),] to show that
      Mondragon, and not Dawson, was the true and primary aggressor.
      They contained, among other things, threats by Ms. Mondragon
      towards Ms. Dawson. . . . I advised Ms. Mondragon not to testify.
      What I recall of the conversation is that(1) if she testified, she risked
      being be cross-examined by the Prosecution regarding the
      comments she made on Skype to Ms. Dawson, and (2) perhaps we
      could move forward with a "lack of evidence" and "lack of victim
      credibility" defense in lieu of Ms. Dawson's role in essentially
      breaking up Ms. Mondragon's family; the odd facts surrounding the
      actual assault itself and our wilting self-defense defense. Ms.
      Mondragon accepted my advice that she should not testify. Ms.
      Mondragon did tell me that she was afraid of being injured by Ms.
      Dawson when she struck her. The reason I did not consider the path
      of Ms. Mondragon acknowledging that she sent the messages
      contained in Exhibits 24 and 25 — and then arguing that because
      she had sent these to Ms. Dawson,she was afraid of being assaulted
      by Ms. Dawson when she approached Ms. Mondragon — was
      because the State would have submitted WPIC 16.04 as an
      "Aggressor" instruction which would have nullified Ms. Mondragon's
      a self-defense defense.
       Defense counsel's advice to Mondragon not to testify was a reasonable tria

tactic, given the nature of the Skype messages. Further, Mondragon states in he

declaration that her counsel advised her not testify based on these messages, and

that she "knew it was her decision."




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No. 75538-2-1/22


       Unlike Robinson, Mondragon has not raised specific facts to create a

credible allegation that she was prevented from testifying. See 138 Wn.2d at 760

,Mondragon elected not to take the stand upon advice from counsel. The affidavits

'do not establish by a preponderance of evidence that he prevented her against hei.

will from testifying. Thus, Mondragon has failed to allege facts that show counsel's

performance was deficient. We need not consider both prongs of Strickland

(deficient performance and prejudice) if a petitioner fails on one. See In re Pers

Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012). We deny he

claim of ineffective assistance of counsel.




WE CONCUR:




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