                                                                          FILED
                                                                      JANUARY 21, 2020
                                                                  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. 35548-9-III
 OSCAR ALFRED ALDEN,                            )
                                                )         UNPUBLISHED OPINION
                       Petitioner.              )

       SIDDOWAY, J. — In June 2013, 23-year-old Oscar Alden shot and killed Tom

Maks, allegedly in self-defense. Although Mr. Maks entered, without permission, the

home where Mr. Alden was staying, and accosted and threatened Mr. Alden and other

house guests to the point that someone called police, a jury rejected Mr. Alden’s claim of

self-defense and found him guilty of second degree murder. The trial evidence was

detailed in our decision in Mr. Alden’s direct appeal. See State v. Alden, No. 32695-1-III

(Wash. Ct. App. Mar. 8, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf

/326951.unp.pdf.

       In a personal restraint petition, Mr. Alden now contends he received ineffective

assistance of counsel when his trial lawyers failed to investigate whether his attention

deficit hyperactivity disorder (ADHD) affected his psychological state at the time of the

shooting. His evidence does not support his contention that any failure to investigate

constituted ineffective assistance of counsel in connection with the trial. It is sufficient to
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support referral for a reference hearing on the issue of whether a failure to investigate

constituted ineffective assistance of counsel in connection with his sentencing. We deny

the petition in part and remand for a reference hearing.1

                                 PROCEDURAL HISTORY

                 Mr. Alden’s theory of self-defense and its failure at trial

       Oscar Alden was a college student with no criminal history when he and a number

of others were invited to travel to the family vacation home of Dayton Wiseman on a

weekend in June 2013, to celebrate Mr. Wiseman’s birthday. That same weekend, Tom

Maks was staying at his family’s vacation home next door.



       1
         Mr. Alden also advances an argument he supplementally briefed in his direct
appeal: that he should be resentenced in light of State v. O’Dell, 183 Wn.2d 680, 358
P.3d 359 (2015), which he argued significantly changed the law by holding that youth
can be considered a mitigating factor and the basis for an exceptional sentence. He
argued on direct appeal that “[u]nder normal retroactivity rules, the O’Dell decision is
retroactively applicable to all cases that are not yet final.” Supplemental Br. of
Appellant, No. 32695-1-III, filed Sep. 30, 2015, at 1.
       We rejected the argument in the direct appeal. Alden, slip op. at 33 n.4. The
Washington Supreme Court has since held that O’Dell does not constitute a significant
change in the law for purposes of the one-year time bar under RCW 10.73.090(1) but did
not reach whether it applies retroactively. In re Pers. Restraint of Light-Roth, 191 Wn.2d
328, 338, 422 P.3d 444 (2018).
       Petitioners are generally prohibited from renewing an issue that was raised and
rejected on direct appeal unless the interests of justice require relitigation of the issue.
State v. Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004). The interests of justice do not
require relitigation of the issue here. That being said, if this court ultimately orders
resentencing so that Mr. Alden can present evidence of his ADHD as a mitigating factor,
we would not view him as foreclosed from presenting related evidence on brain
development associated with his youth.

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       On Saturday, Mr. Maks introduced himself to some of the Wiseman house guests,

trading marijuana for some of Raymond Roberts’s ammunition, and trying,

unsuccessfully, to barter for some of Mr. Alden’s Adderall. Mr. Alden is prescribed

Adderall to treat his ADHD.

       When evening arrived, one of the Wiseman house guests invited Mr. Maks to join

them in traveling to Chelan for drinks. Mr. Maks caught a ride with Eric Hansen, and

during the evening, Mr. Maks treated the Wiseman house guests to rounds of margaritas.

According to Mr. Hansen, when he collected his passengers for the drive back to the

Wiseman home, Mr. Maks “seemed to make indications that he was going to take a cab

or, some other way, he didn’t want to leave essentially.” Report of Proceedings (RP)2 at

979. Mr. Hansen and his other passengers left without him.

       It turned out that being left behind angered Mr. Maks, leading him to an extended

confrontation of the Wiseman house guests that ended when he was shot by Mr. Alden.

In Mr. Alden’s trial for the second degree murder of Mr. Maks, the jury heard from many

of the house guests about how Mr. Maks entered the Wiseman home at around 3 o’clock

Sunday morning—uninvited, drunk and angry. They heard evidence that he was loud,

verbally abusive, and made profane threats of violence. He allegedly awakened two




       2
         References to the Report of Proceedings are to the report of the trial proceedings
filed in Mr. Alden’s direct appeal.

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house guests by aggressively shaking them and upended a reclining chair in which Mr.

Alden had been sleeping. House guests became aware that Mr. Maks was armed with a

handgun during the intrusion, either because they saw it tucked in the back of his pants,

or heard about the gun from others who had seen it. House guests testified to being “very

scared,” “frightened,” “alarm[ed],” and “terrifi[ed]” by Mr. Maks’s erratic, threatening,

behavior. RP at 427, 442, 456, 542, 592, 796. One of the house guests called police.

Mr. Maks’s confrontation with the Wiseman house guests ended when he was shot by

Mr. Alden.

       Evidence would support Mr. Alden’s claim that Mr. Maks created a frightening

and disorienting situation leading up to the shooting. It would support Mr. Alden’s claim

that before shooting Mr. Maks, Mr. Alden heard and believed that Mr. Maks was carrying

a handgun. It would support Mr. Alden’s claim that eventually, when his friends

Raymond Roberts and Dane Meier became involved in a physical fight with Mr. Maks on

a downstairs patio near the driveway where guests had parked their cars, Mr. Roberts

called to Mr. Alden to get his (Mr. Alden’s) handgun. It would support Mr. Alden’s

claim that after retrieving his gun from his car and loading it, he approached the patio

area with apprehension. But the jury did not accept Mr. Alden’s claim that when he came

within sight of Mr. Maks on the ground, Mr. Alden reasonably believed that Mr. Maks

was still armed and lunged at him.



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       The jury heard from three eyewitnesses who were in the immediate vicinity when

Mr. Alden fired the fatal shot, and their testimony was not helpful to his claim of self-

defense. Two of Mr. Alden’s friends, Mr. Meier and Mr. Roberts, testified that following

the 3 o’clock intrusion, they escorted Mr. Maks out of the Wiseman home and watched

him walk to his family’s home next door. They were still standing outside on a small

patio below a deck, waiting for police, when Mr. Maks returned moments later. Mr.

Maks continued to be verbally abusive, prompting Mr. Roberts to say, “If you didn’t have

your gun on you I would kick your ass right now.” RP at 508. Mr. Maks turned in a

circle, demonstrating as he took his shirt off that he was no longer carrying a handgun.

He then stripped down to his underwear, taunting Mr. Roberts that he was taking his

pants off, “so you can suck my dick.” RP at 456.

       According to Mr. Roberts and Mr. Meier, Mr. Maks became increasingly verbally

aggressive and then became physical, striking Mr. Meier hard on the side of the head

with an open palm. Mr. Meier struck him back, causing Mr. Maks to fall or stumble

backwards. Mr. Roberts then joined the fight, punching Mr. Maks with a closed fist. Mr.

Maks fell back, struck a deck post, and then fell forward onto the ground, where Mr.

Roberts straddled him and continued to punch him in the side of the head, about eight

times total. A female house guest who saw part of the fray from inside the house

described Mr. Roberts as “start[ing to] beat[ Mr. Maks] up.” RP at 612. According to

Mr. Meier and Mr. Roberts, Mr. Maks was on the ground, his head down and his hands

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“kind of by his head, kind of protecting himself,” when Mr. Roberts stopped punching

him, stood up, and stepped away. RP at 516-17.

          Mr. Roberts testified that Mr. Maks was lying “relatively still,” only “[b]reathing,

hands across the gravel, things like that,” when Mr. Alden—who had retrieved his gun

after Mr. Roberts yelled for him to do so—walked quickly toward Mr. Maks, his gun

drawn. RP at 522. Mr. Roberts testified that after getting “very, very close . . . [Mr.

Alden] kinds of leans back, and that’s when the shot was fired.” RP at 524. Asked if Mr.

Maks was lunging at the time he was shot, Mr. Roberts answered, “I don’t believe so,

no.” RP at 526. He testified that Mr. Maks might have been reaching up with a hand “a

little bit,” but with “no major movements,” and recalled “his head being fairly still.” Id.

Mr. Roberts did not believe that Mr. Maks was trying to stand up. Asked about what he

did immediately after Mr. Alden shot Mr. Maks, Mr. Roberts testified, “It was completely

surreal to me. I, I couldn’t breathe very well and I, I said, ‘You shot him.’” RP at 527.

He testified that he recalled pacing up and down the driveway and “was in disbelief.” RP

at 528.

          Mr. Meier’s testimony was that after Mr. Roberts stopped punching Mr. Maks and

stepped away, Mr. Maks had been “crunched down,” “[o]n his knees,” but was moving.

RP at 407, 420. He testified that Mr. Maks “wasn’t like laying completely in, you know,

a ball, but he wasn’t, you know, he wasn’t upright, it was somewhere in between.” RP at

408. He described Mr. Maks’s movement as “fairly subtle,” and said he could see that

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Mr. Maks was trying to get up. RP at 411. Asked if Mr. Maks was lunging at anyone

when Mr. Alden shot him, Mr. Meier answered, “No. No.” RP at 419. He described Mr.

Alden as “walking briskly” toward Mr. Maks, holding his gun with both hands and arms

extended, and as then shooting Mr. Maks from a distance of about two feet. RP at 415.

       Most damaging was the testimony of Andrew Ross. Mr. Ross, concerned about

his own and the other guests’ safety, had already armed himself with a handgun and had

walked his girlfriend a block away so that she could await the arrival of police from a

safer spot. When he hurried back to the Wiseman house, he encountered Mr. Alden

retrieving his own handgun from his car. After Mr. Alden retrieved and loaded his gun,

Mr. Ross described himself and Mr. Alden as walking within “a couple feet” of each

other as they passed the vehicles parked near the patio area to see what was happening

between Mr. Roberts, Mr. Meier, and Mr. Maks. RP at 692-93. When the two rounded

the back of a truck together, “pretty close to being side-by-side” according to Mr. Ross,

he could see that Mr. Maks was lying on the ground, so he lowered his gun. RP at 695.

He testified that the “[b]est [he] could describe” Mr. Maks’s position was “you know,

Muslim prayer position where your feet are kind of tucked under you, you know, butt on

your feet, body kind of laid out at a bit of an angle with his head on the ground.” RP at

699-700. He testified that Mr. Maks was not moving.

       He testified that Mr. Alden then took “maybe one or two more steps and fluidly

kind of pulled the gun up with one hand and pulled the trigger.” RP at 698. Mr. Ross

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described his own reaction to the shooting as “very shocked.” RP at 711. At that point,

Mr. Ross testified, he was “[a] little bit [afraid]” of Mr. Alden, and told him to take the

magazine out of his gun, which Mr. Alden did. RP at 712-13.

       At trial, Mr. Alden testified, consistent with his self-defense claim, that before he

pulled the trigger Mr. Maks made a sudden movement “like a football player lunging to

tackle me.” RP at 1130. He testified that he believed Mr. Maks was still armed and

denied seeing that he had stripped down to his underwear. He presented testimony from

both a medical expert and a firearm expert to support his self-defense claim. His medical

expert testified, based on autopsy results, that Mr. Maks had his arm up and in front of

him at the time the bullet struck him. His firearm expert testified that when Mr. Alden

fired his gun he was between three and six feet away from Mr. Maks, and Mr. Maks had

his left hand raised in the air.

       In closing argument, the State compared Mr. Alden’s alleged belief about the

danger presented by Mr. Maks to the perception of the other witnesses in the immediate

vicinity:

              The other three people present knew that Tom was not a threat.
       Ray had stopped beating on Tom and had stood up and moved away.
       And Dane, too. Dane, too, had moved away. But when we start looking
       at okay, so, Oscar says these things but are they reasonable? Let’s look at
       what the other person who was present did. The other person who was
       armed with a firearm . . . . What did Andrew do under the same
       circumstances, not similar circumstances, same circumstances? He was
       upstairs. He heard and saw Tom upstairs. He heard the loud thud when
       Oscar was upended. He knew what was going on, he knew about the fight

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       out front, he knew these things. Andrew knew the same thing essentially
       that Oscar did, but what did Andrew do? After he rounded the truck he
       cautiously approached, took his time to make sure that he was not in
       danger, that he was not going to shoot other people in the dark, and he
       approached the scene with caution. That’s what the reasonable person did
       that night.

RP at 1400-02.

       The jury found Mr. Alden guilty of second degree murder.3 At Mr. Alden’s

sentencing hearing, he requested an exceptional sentence of 48 months for the murder,

together with 60 months for the firearm enhancement, relying on two statutory mitigating

circumstances: that “[t]o a significant degree, the victim was an initiator, willing

participant, aggressor, or provoker of the incident,” and that “[t]he defendant committed

the crime under duress, threat or compulsion insufficient to constitute a complete defense

but which significantly affected his or her conduct.” RCW 9.94A.535(1)(a), (c).

       After hearing argument and considering the many letters and statements from

family and friends of both Mr. Alden and Mr. Maks, the trial court refused the defense

request for an exceptional sentence, explaining:

              I thought that Mr. Alden’s testimony was dramatically different than
       those who testified and dramatically different than what happened. I, to
       this day, don’t know why it happened. Maybe Mr. Alden doesn’t, I don’t
       know. I suspect that Mr. Maks’ mother and father will never know why it
       happened. But the concern that the Court has is that sentencing Mr. Alden,
       no matter how or what kind of life that Mr. Alden has led up to this
       particular point, sentencing him below the standard sentencing range would

       3
        It also found him guilty of first degree manslaughter, but that charge was
dismissed to avoid double jeopardy.

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       rightfully be offensive to Mr. Maks’ parents and family and friends, and
       clearly his daughters. I think sentencing Mr. Alden below the standard
       range would be offensive to the jury’s struggle in this particular matter.
       I recognize they didn’t struggle very long, but I know that they struggled
       because only one juror stuck around to talk to me and that juror told me that
       most of the people had to go home because they were emotional, and this is
       the kind of case that you get emotional in.

RP at 1562-63. The court followed the State’s recommendation, imposing a midrange

sentence of 231 months.

       Mr. Alden’s judgment and sentence was affirmed on direct appeal. His petition

for review was denied.

                          PERSONAL RESTRAINT PETITION

       Mr. Alden filed the present personal restraint petition (PRP), his first, within a

year of this court issuing the mandate. He seeks relief from personal restraint in the form

of his conviction and sentence, arguing that because he received ineffective assistance of

counsel, the conviction and sentence violate the federal and state constitutions and state

sentencing law. Pointing out that his trial lawyers quickly decided to assert justifiable

self-defense and were aware from the outset that he had been diagnosed with ADHD, Mr.

Alden argues that they should have investigated the effect of ADHD on his thinking. If

they had, he argues, they would have had an answer to why he reacted differently to

circumstances presented in the early hours of June 9 on the poorly-lit Wiseman patio than

did Mr. Roberts, Mr. Meier, and most importantly, Mr. Ross.




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       To obtain relief in a PRP, a petitioner must show actual and substantial prejudice

resulting from alleged constitutional errors, or for alleged nonconstitutional errors a

fundamental defect that inherently results in a complete miscarriage of justice. In re

Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To avoid dismissal,

the petition must be supported by facts and not merely bald or conclusory allegations. Id.

at 813-14; In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). A

“petitioner must demonstrate that he has competent, admissible evidence to establish the

facts that entitle him to relief.” Id.

                           Evidence offered in support of the PRP

       Mr. Alden’s evidence in support of his petition consists of the record of the trial

proceedings and three supplemental declarations. A supplemental declaration of James

Lobsenz, who represented Mr. Alden in his direct appeal and represents him in the PRP,

explains that he was unable to obtain testimony from Mr. Alden’s lead trial lawyer, Max

Harrison, who died during the direct appeal. It states that Mr. Harrison provided Mr.

Lobsenz with his trial file before he died, and Mr. Lobsenz found nothing in Mr.

Harrison’s file to suggest that he ever retained, contacted, or thought about retaining or

contacting any expert witness who could advise him about the effect that ADHD might

have had on Mr. Alden’s thought processes. Mr. Lobsenz acknowledges that the trial

record contains evidence that the firearm expert retained by Mr. Harrison expressed the

opinion to Mr. Harrison that Mr. Alden’s actions might be explained by a “startle

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response” but that Mr. Harrison made a strategic decision to rely on intentional,

justifiable self-defense.

       Mr. Lobsenz’s declaration states he was unable to obtain testimony from William

Fligeltaub, who Mr. Harrison associated to serve as second chair at trial. Mr. Lobsenz

states he spoke with Mr. Fligeltaub, who originally agreed to provide a declaration stating

he never made a strategic decision not to present evidence that ADHD could be relevant

to self-defense. Mr. Fligeltaub later changed his mind and declined to provide a

declaration. Mr. Lobsenz acknowledges that Mr. Fligeltaub produced his file from the

trial, and it contained five documents about medications for the treatment of ADHD, two

articles about ADHD or ADHD medications, and three “‘documents’ (pages stapled

together) that seem to be the results of a more generalized search for information about

ADHD.” Decl. of Lobsenz at 16. Mr. Lobsenz states he found nothing in Mr.

Fligeltaub’s file suggesting that Mr. Fligeltaub ever contacted Mr. Alden’s mother, his

treating psychologist, or his college about Mr. Alden’s ADHD, however, or that he ever

performed relevant legal research or contacted a psychologist or doctor to obtain an

evaluation.

       Mr. Alden further supports his petition with a declaration from Natalie Novick-

Brown, PhD, who was retained to evaluate Mr. Alden in August 2017. Based on her

evaluation, Dr. Novick-Brown agreed with Mr. Alden’s treating psychologist’s diagnosis

of his ADHD and testified that Mr. Alden has impairments in six “cognitive domains:

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auditory learning and memory, visuospatial construction, impulsivity, processing speed,

motor functioning, executive function (i.e., perseveration), and intellectual functioning.”

Decl. of Novick-Brown at 9. She testifies that Mr. Alden displays

       numerous cognitive deficits, including very slow processing speed and
       significant impulsivity and perseveration. In general, he has substantial
       trouble taking in complex visual information (i.e., what’s going on in the
       environment) and difficulty seeing the “whole” picture versus the details.
       Multitasking is problematic for him, which becomes increasingly
       problematic with environmental complexity. He tends to react without
       allowing himself sufficient time to process new situation. As such, he is
       prone to interpretation errors.

Id. at 16-17.

       Dr. Novick-Brown’s declaration identifies eight “consultative questions” she was

asked by Mr. Lobsenz to address, one of which asked whether Mr. Alden’s ADHD was

“relevant to the subjective prong of the defense of self-defense,” and another that asked

whether it was “relevant to the objective prong of the defense of self-defense.” Id. at 2.

She answered yes in both cases. In answering that Mr. Alden’s ADHD was relevant to

the objective prong of self-defense, she states in relevant part:

       Although Mr. Alden testified about what he believed was occurring during
       the offense, the jury did not hear how the impairments associated with his
       ADHD impaired his capacity to quickly process and understand chaotic
       events, formulate valid impressions, and reach a rational decision,
       particularly when he was in a highly anxious state.
              . . . Considering Mr. Alden’s personal physical and mental
       characteristics, the substantial impairments associated with his ADHD
       prevented him from thinking rationally in such a context. In other words,
       his cognitive capacity to form “reasonable” beliefs and perceptions was
       substantially impaired due to his ADHD.

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Id. at 40.

       Finally, Mr. Alden supports his petition with a declaration from Todd Maybrown,

an experienced criminal defense lawyer. Mr. Maybrown expresses the view that Mr.

Alden’s trial lawyers provided deficient performance by failing to present evidence about

ADHD that could have addressed the State’s argument that Mr. Alden did not reasonably

believe he was in imminent danger at the time of the fatal shot. He expresses the view

that Mr. Alden was prejudiced both at trial and at sentencing. He was prejudiced at trial,

Mr. Maybrown opines, because nothing was offered that would allow the jurors to place

themselves in Mr. Alden’s shoes. He expresses the opinion that Mr. Alden was

prejudiced at sentencing because the lawyers were unable to point to evidence that his

capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her

conduct to the requirements of the law, was significantly impaired—a mitigation factor

under RCW 9.94A.535(1)(e).

                         Applicable law and the State’s response

       Effective assistance of counsel is guaranteed by both the federal and state

constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz,

127 Wn.2d 460, 471, 901 P.2d 286 (1995). Effective representation includes a duty to

make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary. Strickland, 466 U.S. at 691. To demonstrate ineffective

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assistance of counsel, a defendant must show two things: “(1) defense counsel’s

representation was deficient, i.e., it fell below an objective standard of reasonableness

based on consideration of all the circumstances; and (2) defense counsel’s deficient

representation prejudiced the defendant, i.e., there is a reasonable probability that, except

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (emphasis

omitted) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). If a

defendant is unable to make one of the required showings, we need not address the other.

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

       We review a claim of ineffective assistance of counsel de novo. State v. Sutherby,

165 Wn.2d 870, 883, 204 P.3d 916 (2009). The review begins with a strong presumption

that counsel’s representation was effective. In re Pers. Restraint of Davis, 152 Wn.2d

647, 673, 101 P.3d 1 (2004).

       The State challenges the petition on three grounds. It first argues that Mr. Alden’s

evidence falls short of the required demonstration of facts entitling him to relief, since he

does not prove that the possible relevance of ADHD was not considered by his lawyers.

It next argues that the existing record demonstrates that pursuing a defense of intentional

self-defense was legitimate trial strategy. Its third challenge is that Mr. Alden fails to

demonstrate that he was prejudiced by his trial lawyer’s failure to obtain the type of

expert testimony provided by Dr. Novick-Brown.

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                                          ANALYSIS

       Different analyses are required when considering the alleged failure to investigate

for purposes of trial and for purposes of sentencing. We begin by considering the alleged

failure to investigate for purposes of trial.

I.     DEFICIENT REPRESENTATION FOR TRIAL PURPOSES IS NOT SHOWN

       It was not deficient performance to fail to investigate whether ADHD impeded

Mr. Alden’s rational assessment of the danger presented by Mr. Maks. Such evidence

would have undercut, not advanced, a claim of justifiable self-defense.

       In Washington, self-defense is defined by statute. State v. Janes, 121 Wn.2d 220,

237, 850 P.2d 495 (1993). Washington’s justifiable homicide statute provides in relevant

part that homicide is justifiable when committed

       [i]n the lawful defense of the slayer, . . . when there is reasonable ground to
       apprehend a design on the part of the person slain to commit a felony or to
       do some great personal injury to the slayer . . . and there is imminent danger
       of such design being accomplished.

RCW 9A.16.050(1) (emphasis added). Washington’s general self-defense statute

provides in part that the use of force upon or toward the person of another is not unlawful

“[w]henever used by a party about to be injured . . . in preventing or attempting to

prevent an offense against his or her person, . . . in case the force is not more than is

necessary.” RCW 9A.16.020(3). “Necessary” is defined for purposes of chapter 9A.16

RCW to mean “that no reasonably effective alternative to the use of force appeared to



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exist and that the amount of force used was reasonable to effect the lawful purpose

intended.” RCW 9A.16.010(1) (emphasis added).

       The longstanding rule in Washington is that evidence of self-defense must be

assessed from the standpoint of the reasonably prudent person, “knowing all the

defendant knows and seeing all the defendant sees.” Janes, 121 Wn.2d at 238 (citing

State v. Allery, 101 Wn.2d 591, 594, 682 P.2d 312 (1984)). The self-defense standard

includes “both objective and subjective elements.” State v. Walden, 131 Wn.2d 469, 474,

932 P.2d 1237 (1997). The subjective component “requires the jury to stand in the shoes

of the defendant and consider all the facts and circumstances known to him or her.” Id.

The objective component requires the jury to use the information from the subjective

analysis “to determine what a reasonably prudent person similarly situated would have

done.” Id.

       Given the subjective component, Mr. Alden’s lawyer was able to argue to jurors

that Mr. Alden did not know or see everything that Mr. Roberts and Mr. Meier knew or

had seen during their contact with Mr. Maks on the patio before Mr. Alden arrived. Had

an expert like Dr. Novick-Brown been engaged, the State identifies no reason why she

would not have been able to explain to jurors the irrational, unreasonable way in which,

given Mr. Alden’s deficits, he might process what he knew and was seeing.

       But given the objective component of self-defense, evidence that Mr. Alden’s

ADHD could lead him to respond irrationally and unreasonably would have been more of

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a problem than a help. This is perhaps most clearly demonstrated by State v. Hughes,

106 Wn.2d 176, 721 P.2d 902 (1986), in which the Washington Supreme Court held that

a theory of “imperfect self-defense”—a defense available in some jurisdictions to reduce

a murder charge to manslaughter—is not available in Washington. “Imperfect self-

defense” is self-defense based on an honest but unreasonable belief that the facts support

self-defense. Id. at 188. Hughes holds that “[t]he statutory definitions of self-defense

and manslaughter in Washington provide no room for the theory advocated by the

defendant that an honest (or good faith) but unreasonable belief that self-defense is

necessary merits leniency.” Id. at 190. The definition of self-defense provides no room

for the theory because it would omit the essential element that the person using force

must reasonably believe that he or she is in danger. Id. at 189.

       Janes also emphasizes the importance under Washington law of the objective,

normative portion of the self-defense inquiry:

              The objective portion of the inquiry serves the crucial function of
       providing an external standard. Without it, a jury would be forced to
       evaluate the defendant’s actions in the vacuum of the defendant’s own
       subjective perceptions. In essence, self-defense would always justify
       homicide so long as the defendant was true to his or her own internal
       beliefs.

121 Wn.2d at 239. The Janes court quotes approvingly Professor Susan Estrich’s

observation that “‘[i]f the reasonable person has all of the defend[ant]’s characteristics,

the standard loses any normative component and becomes entirely subjective.’” Id. at



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240 (first alteration in original) (quoting Susan Estrich, Defending Women, 88 MICH. L.

REV. 1430, 1435 (1990) (reviewing CYNTHIA GILLESPIE, JUSTIFIABLE HOMICIDE:

BATTERED WOMEN, SELF-DEFENSE AND THE LAW (1989))).

       Mr. Alden argues that Washington cases dealing with the prosecution of persons

suffering from “battered woman” or “battered child” syndrome support his position that

jurors can be asked to put themselves inside an irrationally-operating mind in assessing

whether a use of force was justifiable. Those cases might seem analogous if one views

them as exculpating the battered person based on a disability of the battered person. But

given Washington’s definition of self-defense, those cases are properly understood as

exculpating the battered person not based on any disability, but based on the

reasonableness of the battered person’s response.

       Professor Paul Robinson has outlined a system of five categories of defenses under

which self-defense qualifies as a justification and the cognitive deficits identified by Dr.

Novick-Brown would qualify as an excuse. 1 PAUL H. ROBINSON, CRIMINAL LAW

DEFENSES § 21, at 70 (1984).4 He explains that an excuse defense is available when a

disability (the abnormal condition of the actor at the time of the offense) causes an

excusing condition (the effect of the disability creates a condition that renders the



       4
        His three other categories of defenses are failure or proof defenses, offense
modification defenses, and nonexculpatory defenses. See 1 ROBINSON, supra, § 21, at
70.

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defendant blameless). Id. § 25(b), at 92. Professor Robinson explains that justifications

and excuses may seem similar in that both are general defenses that exculpate an actor

because of his blamelessness. Id. § 25(d), at 100. He explains that there remains an

important conceptual distinction, however:

       Justified conduct is correct behavior that is encouraged or at least tolerated.
       In determining whether conduct is justified, the focus is on the act, not the
       actor. An excuse represents a legal conclusion that the conduct is wrong,
       undesirable, but that criminal liability is inappropriate because some
       characteristic of the actor vitiates society’s desire to punish him. Excuses
       do not destroy blame, as do [justifications and two other classes of
       defense]; rather, they shift it from the actor to the excusing conditions. The
       focus in excuses is on the actor. Acts are justified; actors are excused.

Id. § 25(d), at 100-01.

       Battered person cases deal with syndromes that are a subset of post-traumatic

stress disorder (PTSD), and “[a]lthough PTSD is classified as a mental disorder, ‘it is one

of the few kinds of psychiatric disorders that is considered a normal response to an

abnormal situation.’” Janes, 121 Wn.2d at 233 (quoting PAUL A. MONES, WHEN A

CHILD KILLS: ABUSED CHILDREN WHO KILL THEIR PARENTS 63 (1991)). It is “‘an

anxiety-related disorder which occurs in response to traumatic events outside the normal

range of human experience.’” State v. Riker, 123 Wn.2d 351, 359, 869 P.2d 43 (1994)

(quoting Janes, 121 Wn.2d at 233). Expert testimony is admitted in such cases not to

offer an actor-based excuse for irrational behavior, but to show how severe abuse in the

context of a battering relationship affects the victim’s perceptions and reactions in ways



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not immediately understandable to the average juror. Id. “The battered person syndrome

is admitted in self-defense cases to illustrate and explain the ‘reasonableness’ of the

defendant’s actions.” Id. (citing Allery, 101 Wn.2d at 596-98).

       In a homicide involving persons in a battering relationship, expert testimony

provides jurors with particular perceptions held by battered persons that are recognized

by the mental health profession. Armed with information about recognized perceptions

commonly held by battered persons, jurors can assess, on an objective basis, whether a

given defendant’s conduct was reasonable. Dr. Novick-Brown, by contrast, does not

offer scientifically-recognized perceptions of a person with ADHD that jurors could

consider along with other evidence in assessing whether Mr. Alden’s conduct was

objectively reasonable. In fact, she offers her expert opinion that Mr. Alden’s cognitive

deficits can explain why he reacted in a way that was not rational or reasonable.5

       Mr. Alden does not question the decision of his trial lawyers to rely on the defense

of self-defense. Given that defense, his trial lawyers did not perform deficiently in failing

to investigate the availability of an expert who could offer a cognitive impairment excuse,



       5
        Again, she states in relevant part that the impairments associated with Mr.
Alden’s ADHD “impaired his capacity to quickly process and understand chaotic events,
formulate valid impressions, and reach a rational decision, particularly when he was in a
highly anxious state”; she stated that the substantial impairments associated with Mr.
Alden’s ADHD “prevented him from thinking rationally” when presented with chaotic
events and that “his cognitive capacity to form ‘reasonable’ beliefs and perceptions was
substantially impaired.” Decl. of Novick-Brown at 40 (emphasis added).

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but not a justification, for his actions. The testimony of such an expert could help

persuade jurors that Mr. Alden’s testimony about his subjective belief was credible, but

the bigger defense problem was dealing with a shooting that appeared to be objectively

unreasonable. Testimony about Mr. Alden’s cognitive deficits would have strengthened

the State’s argument that the shooting was objectively unreasonable.

       Once a reasonable decision was made to assert self-defense, Mr. Alden’s lawyers’

duty to investigate whether a psychological evaluation would support deficits in his

ability to respond reasonably was, for trial purposes, at an end. Cf. Bean v. Calderon,

163 F.3d 1073, 1082 (9th Cir. 1998) (once defense counsel reasonably chooses a defense

theory, his duty to investigate a conflicting defense is at an end).

II.    A REFERENCE HEARING IS REQUIRED ON WHETHER MR. ALDEN RECEIVED
       INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING

       A trial court may impose an exceptional sentence below the standard range for a

number of reasons. In Mr. Alden’s sentencing memorandum, his lawyers described some

of his characteristics that would make many judges seriously consider leniency: he had

no criminal history, he had responded with “fundamental fairness” when examined and

cross-examined during trial, his friends had described him during trial “in general terms

of quiet, calm, even-tempered, and never even raising his voice,” and until the weekend

of June 7-9, 2013, he had been a full-time college student. Clerk’s Papers at 415.




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       The two mitigating factors that Mr. Alden identified for the trial court as

supporting a reduced sentence depended on pointing to Mr. Maks as an initiator,

aggressor or provoker of what came to pass and arguing that if Mr. Alden was not in

imminent danger, he was at least under duress, threat or compulsion. Both factors

essentially attributed part of the responsibility for Mr. Maks’s death to Mr. Maks. The

trial court rejected this mitigation argument, explained its view that sentencing Mr. Alden

below the standard sentencing range would “rightfully be offensive” to Mr. Maks’s

family and friends and “to the jury’s struggle in this particular matter.” RP at 1563.

       As Mr. Alden argues, expert testimony on his ADHD would have supported a

third statutory mitigating circumstance that would admit he had fired the fatal shot

unreasonably but would offer an explanation. Under RCW 9.94A.535(1)(e), it is a

mitigating circumstance if “[t]he defendant’s capacity to appreciate the wrongfulness of

his or her conduct, or to conform his or her conduct to the requirements of the law, was

significantly impaired.” A mental condition not rising to insanity or diminished capacity

may support an exceptional sentence downward if the defendant can show the existence

of a mental condition and “the requisite connection between the condition and significant

impairment of the defendant’s ability to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirement of the law.” State v. Schloredt, 97 Wn. App. 789,

802, 987 P.2d 647 (1999). As Mr. Alden points out, providing expert evidence on his



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impairment would have answered a question that appeared to trouble the trial court when

it stated, during sentencing:

              I thought that Mr. Alden’s testimony was dramatically different than
       those who testified and dramatically different than what happened. I, to
       this day, don’t know why it happened. Maybe Mr. Alden doesn’t, I don’t
       know.

RP at 1562-63 (emphasis added).

       We can see now that the type of information that Dr. Novick-Brown provided, if

found credible by the trial court, might have proved more persuasive than the mitigation

case that was presented by Mr. Alden’s lawyers. But it does not follow that Mr. Alden’s

lawyers performed deficiently. “A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689. When assessing whether

a lawyer’s investigation was reasonable, we must consider “whether the known evidence

would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510,

527, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).

       Our review of reported and unreported cases from other jurisdictions satisfies us

that a diagnosis of ADHD has often been raised by criminal defendants as relevant to

competency or culpability.6 Mr. Lobsenz points out that our Supreme Court’s recent


       6
           A Westlaw search of state and federal jurisdictions using the search terms

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No. 35548-9-III
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decision in In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 332, 422 P.3d 444 (2018)

observed that Mr. Light-Roth’s ADHD was argued in mitigation at his sentencing in

2004. It has been suggested that an ADHD diagnosis is not compelling mitigation

evidence when it appears in conjunction with a defendant’s other mental deficits and

prior brushes with the law, because it tends to depict a defendant as unstable and unable

to control his actions. E.g., Littlejohn v. Royal, 875 F.3d 548, 560-62 (10th Cir. 2017)

(citing cases), cert. denied,    U.S.   , 139 S. Ct. 102, 202 L. Ed. 2d 65 (2018). Unlike

the cases discussed in Littlejohn, however, Dr. Novick-Brown’s evidence in this case

would provide an explanation for behavior that was aberrant for Mr. Alden.

       We are not prepared to grant Mr. Alden a new sentencing hearing without first

requiring a reference hearing because, as the State points out, whether Mr. Alden’s trial

lawyers provided deficient representation is fact-specific and we lack potentially

important evidence. We lack testimony from Mr. Fligeltaub7 and Mr. Alden. It may be

that the possible relevance of Mr. Alden’s ADHD was discussed between him and his

lawyers, and investigation was not pursued for a good reason. We do not know whether




“sentencing and ADHD /p (reason! process! rational! assess! impulsiv!) and mitigat!”
yielded 240 published and unpublished decisions.
       7
         We reject the State’s argument that the failure to provide a declaration from Mr.
Fligeltaub is fatal to the petition. The absence of a declaration is adequately explained by
Mr. Lobsenz.

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Mr. Alden discounted the effects of his disorder or stated that it was controlled by

medication.8 We do not know whether Mr. Alden’s ADHD was fully or substantially

controlled by medication at the time of the murder. We do know that when interviewed

within hours of the shooting, Mr. Alden told a detective that if his blood was drawn, it

would test positive for Adderall. The State has not had an opportunity to cross-examine

or otherwise challenge Dr. Novick-Brown’s opinions.

       Accordingly, we remand for a reference hearing at which evidence can be

presented on whether Mr. Alden’s trial lawyers did investigate the possible relevance of

his ADHD to sentencing; if so, to what extent; the reasons, if any, for not pursuing

further information or an evaluation; the persuasiveness of Dr. Novick-Brown’s opinions;

and any other matters relevant to whether defense counsel’s representation in connection

with sentencing was deficient and prejudiced Mr. Alden at sentencing.

       A hearing on this matter shall be held within 90 days of the date this opinion is

filed unless the superior court determines that additional time is needed. In that event,

the superior court may grant additional time, provided the court or the parties advise this

court of any delay and the reasons. Following the hearing, counsel shall promptly

forward to this court copies of the written findings and conclusions together with the

clerk’s papers and transcripts of the hearing. Counsel may request permission to file


       8
        We are not suggesting that if Mr. Alden discounted the importance of the
disorder it would necessarily excuse his lawyers from further investigation.

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No. 35548-9-III
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supplemental briefing in this court. This court will then determine the proper disposition

of Mr. Alden's petition on the remaining issue of ineffective assistance of counsel at

sentencing.

       We deny the petition insofar as it challenges the constitutionality of Mr. Alden's

conviction. We remand to the superior court for proceedings consistent with this opinion.

Having ordered a reference hearing, we deny Mr. Alden's motion for leave to depose Mr.

Fligeltaub.

       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.




WE CONCUR:




Fearing, J.




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