                                                                                     Fit- D
                                                                                        E
                                                                            C GE APPEALS
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                                                                           20. 3 APR -2 AM 8: 46
                                                                             1

                                                                           STATE OF ViAS1- I4GTON

                                                                                       U.T




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

In re Personal Restraint Petition of                                    No. 41556 9 II
                                                                                  - -


DANIEL MARSHALL AGUIRRE,

                                    Petitioner,

                                                                   UNPUBLISHED OPINION



              BRINTNALL
         QUINN-                   J. —   A jury convicted Daniel Marshall Aguirre of second degree

       and second        degree assault, with     a   deadly   weapon enhancement.    We affirmed the
rape


conviction      Aguirre-
                       subsequently filed a -personal--
                                     -               restraint.petition-(
                                                               RP)     P- alleging that ( )_
                                                                                        1 his
trial counsel failed to adequately inform him of the State's pretrial plea offer, 2) victim's
                                                                                  ( the

testimony      at   Aguirre's military separation     hearing was newly discovered evidence, and (3)

Aguirre's trial counsel was ineffective for failing to present mitigating evidence at Aguirre's
sentencing hearing. We remanded for a reference hearing. The trial court determined that the

plea   offer   was   adequately   communicated to      Aguirre. Based on the evidence presented at the

reference hearing, the trial court found that Aguirre failed to meet his burden to prove prejudice.

Accordingly, Aguirre's claim that he received ineffective assistance of counsel because of
1
    The military separation hearing was a hearing held by the United States Army to determine
whether   Aguirre      would be   discharged.
No. 41556 9 II
          - -


defense counsel's failure to convey the    plea agreement   fails.   Additionally, we hold that the

victim's testimony was impeachment evidence and Aguirre did not receive ineffective assistance
of counsel at sentencing. We deny Aguirre's PRP.

                                              FACTS


BACKGROUND


       A detailed version of the substantive facts, including trial testimony, is set out in this

court's prior unpublished opinion affirming Aguirre's conviction. State v. Aguirre, noted at 146
Wn. App. 1048, 2008 WL 4062820, at *14, aff'd, 168 Wn. d 350, 229 P. d 669 (2010).
                                                     2             3
Aguirre began dating Emily Laughman in June 2006, when they were both stationed at the
United States Army Noncommissioned Officer Academy.            On August 26, Laughman went to
                                                                             ,

Aguirre's apartment and they got into an argument. Aguirre assaulted and raped Laugbman.
        The State charged Aguirre with two counts of second degree assault with a deadly
weapon enhancement on one count and one count of second degree rape. A jury found Aguirre
                                                     and the second   degree           The trial court
guilty of   one   count of second   degree assault                             rape.


sentenced Aguirre to a standard range sentence of137months confinement.Aguirre,- WL - - -
                                 -                                            2008-
4062820,    at *4.   Pursuant to the indeterminate sentencing requirements for the second degree

rape charge, Aguirre received a maximum sentence of life, subject to the parole determination of
the indeterminate sentencing review board. Aguirre appealed his conviction and we affirmed.

        After we affirmed Aguirre's convictions, he filed this PRP, alleging that (1)his trial

 counsel failed to convey the ' State's pretrial plea offer, 2)Laughman's testimony at Aguirre's
                                                             (

 2 In the transcripts of the military separation hearing, Laughman's name is transcribed as
 McLaughlin."McCloud Decl. App. H.. court reporter transcribed her name phonetically
                                          The
 and Laughman did not spell her name, therefore we refer to her as Laughman, the name used in
 all the briefing and our prior opinion.
                                                     2
No. 41556 9 II
          - -



military separation hearing is newly discovered evidence entitling Aguirre to a new trial, and (3)

Aguirre's trial counsel was ineffective for failing to present mitigating evidence at Aguirre's

sentencing hearing. We remanded for the trial court to determine whether Aguirre's defense

counsel conveyed the plea offer and whether the plea offer was adequately explained.

PLEA OFFER AND REFERENCE HEARING


       On November 17, 2006, per defense counsel's request, the State transmitted a written

plea offer   to defense counsel.   The plea offer was a plea of guilty to second degree assault -

domestic violence and,third   degree   rape -   domestic violence with a determinate sentence of 14


months incarceration. The plea agreement also required that Aguirre be evaluated for " omestic
                                                                                     d

violence, mental health, and sexual deviancy issues and comply, with any recommended

treatment."McCloud Decl. App. B. The standard sentencing range for the current charges was

printed at the top of the plea offer in bold, italicized, and underlined print stating, Standard
                                                                                        "
range for these offenses is 123 159 months to LIFE under RCW 9. with lifetime
                                -                            712
                                                               94A.

supervision                 94A. McCloud Decl. App. B. The same standard sentence
              also per RCW 9.
                           712."


range was also included in the States cover accompanying the plea -
                                                                  offer: - -- - -- - -- - -- -

        In his PRP, Aguirre alleged that his trial counsel never communicated the above plea

offer to him and trial counsel did not explain to him that by not taking the plea offer he risked a

life sentence. Aguirre also stated that if he had been informed about the plea offer, he would

have accepted it. On May 27, 2011, we remanded to the trial court for a reference hearing. The
trial court was directed to "make findings of fact and conclusions of law as to whether Aguirre's

trial counsel conveyed the State's November 2006 plea offer to Aguirre and if so, whether

Aguirre's trial counsel explained the consequences of that plea offer." Order Remanding to

Superior Ct. for Reference Hr'g May 27, 2011).
                                (
                                                    3
No.41556 9 II
         - -



       The trial court held the reference hearing on July 18, 2011. Seven witnesses testified at

the reference   hearing: Karen Sanderson, the defense investigator; Rose Aguirre,,Aguirre's

mother; Olene Steele, trial counsel's legal assistant; Aguirre; Lt. Stephanie Klein, supervisor at

the Thurston County Jail; George Steele, Aguirre's trial counsel; and John Skinder, the original

prosecuting attorney.

       Aguirre testified that when he originally met with Steele, Aguirre told Steele that he
would not take any deal that would get him dismissed from the military (felony, domestic
violence, or sex offenses).Aguirre also stated that Steele told him the maximum sentence for his
crimes was somewhere in the range of 70 months. At some point Aguirre began to change his
mind and decided that if the State made a good offer he would take it,even if it would mean his

discharge from the military.     He supported this statement with a letter he wrote to defense

counsel containing the following statement:

        So just know if you get a deal some time between now and trial and you feel it is
        in my best interests, take it,I will.

1 Report of Proceedings ( RP)at 150. But even after Aguirre decided that he would take a deal
even if it would get him discharged from the military, he was still unwilling to admit to
committing the crime.

        Aguirre testified that he never saw the plea offer the State made and Steele did not tell
him about it. Aguirre testified that after Christmas, Steele discussed an offer of possibly 48 to 58
months.


        Steele testified that he recalled having "extensive discussions about the case, the plan of

 defense, and discussed offers and that type of thing"but he could not recall specific dates and
 times of the conversations.     1 RP at 116.   Based on Steele's recollection, Aguirre was very


                                                 M
No. 41556 9 II
          - -



adamant about his innocence and his desire to go to trial. Steele admitted that while he informed

Aguirre of the plea offer the State made and explained the offer to Aguirre, he did not push him

to take the offer because it would not keep him in the military and he believed that Aguirre had a

good case to take to trial. Specifically Steele testified,

         Aguirre        kind of a " amn the torpedoes, full speed ahead"kind of guy. He
                   was ...        d
         was very adamant he did not commit a crime; he did not commit the crimes he
         was accuse [sic] of; and he was not about to plead to anything where he would
         have to admit that he did do, did commit these crimes.

1 RP at 119. Steele explained that, in context, Aguirre's letter meant a deal that would keep him

in the military because, at the time, Aguirre believed staying in the military was in his best

interest.


          Steele reviewed the standard sentencing ranges for offenses prior to meeting with his

client   or   discussing plea   offers.   Steele also explained that if a crime carries an indeterminate

sentence, the defendant is subject to the maximum sentence and can be released by the
Indeterminate Sentence Review Board after serving the minimum               term.   But Steele could not


specifically remember the substance of conversations he had with Aguirre or whether he

specifically explained indeterminate sentencing.

          Skinder, the original prosecuting attorney on Aguirre's case, testified that, at Steele's

request, he made one plea offer. Furthermore, there would not have been a plausible plea offer
of 40 to 50 months in prison and, based on the charges, it would have been extraordinarily
difficult to calculate Aguirre's standard sentencing range around 70 months.                Skinder also


testified that when he made the offer to Steele, he "made it clear to [Steele] that that was the




                                                        5
No.41556 9 II
         - -



offer and, if it was not accepted in all regards, it was rejected."2 RP at 216 17. The plea offer
                                                                               -

was   not   an   Alford plea.
          Following the reference hearing, the trial court issued written findings of fact and
conclusions of law.           The trial court found that (1)Steele's testimony was more credible than

Aguirre's; Steele conveyed the plea to Aguirre; and (3)Steele explained the consequences of
         2) (
the plea offer, including the potential sentence if Aguirre was convicted at trial. Based on the
findings of fact, the trial court determined that Aguirre did not meet his burden of proving by a
preponderance of the evidence that the State's plea was not adequately conveyed to him.
            The trial court also made oral findings. In its oral findings, the trial court determined that

Aguirre had been clear, even at sentencing, that he believed staying in the military was in his
best interest. Furthermore,the trial court stated,

                 And while the difference between a potential maximum sentence versus a
            14 month determinate sentence may seem in hindsight to be such an obvious
            difference that Mr. Aguirre should have taken that, for the reasons I'e already
                                                                                       v
            stated, that is only speculation, and it' really something that has to be resolved by
                                                    s
            every defendant in their particular case.

2 RP- 265. - -- - — -- -- - -- -- -- - -- - - - - -- - - - -- - -
    at-


 LAUGHMAN'S SUBSEQUENT TESTIMONY

            In 2007, the military held Aguirre's separation hearing, a hearing to determine whether

 Aguirre would         be   discharged       from . the    military.    Laughman also testified at this hearing.

 Laughman testified that toward the end of the relationship, Aguirre would not let her "hang out"
 with her friends and would become aggressive with her if she wanted to go out. McCloud Decl.




 3 See North Carolina v. Alford, 400 U. . 25 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970);
                                      S                                            State v.
 Newton, 87 Wn. d 363, 552 P. d 682 (1976).
              2             2
                                                                    6
No.41556 9 II
         - -



App. H, at 22. During cross -examination, Laughman testified that both she and Aguirre wanted

to break off the relationship at the time the rape occurred.

       She also testified that she told Deputy Carter of the Thurston County Sheriff's Office that

the bruises      her body
              on .            were   from   Aguirre. However, she also told Carter that they were

practicing self -
                defense and she did not want to file a report. Laughman never reported the rape
to Carter.


                                               ANALYSIS


PLEA OFFER


        In his supplemental briefing, Aguirre assigns three errors to the trial court's findings of
fact and conclusions of law: (        1)the trial court erroneously interpreted the meaning of

determinate-
           plus"sentencing and, based on that interpretation, erroneously determined that the
State's plea offer was adequately conveyed; 2) trial court erred by refusing to admit expert
                                            ( the
testimony regarding standard practice for conveying a plea offer; and (3)the evidence was
insufficient to support the trial court's conclusion that Steele adequately conveyed the plea offer
toAguirre -AlthoughAguirre -challenges the sufficiency of the evidence -establishing-that-he - - -
    - . --                             -                                                 t
plea offer was adequately conveyed to him, he is also required to show prejudice. Aguirre has
failed to demonstrate that there was a reasonable probability that he would have accepted the

State's offer.       Accordingly, Aguirre has failed to demonstrate prejudice and his ineffective
assistance of counsel claim fails.


        After a reference hearing on an ineffective assistance of counsel claim, we review

findings of fact for substantial evidence and the trial court's conclusions of law are reviewed de
novo. In re Pers. Restraint ofBrett, 142 Wn. d 868, 873 74, 16 P. d 601 (2001).
                                           2            -       3


                                                     7
No. 41556 9 II
          - -



        To prevail on an ineffective assistance of counsel claim, the defendant must show that

counsel's performance was deficient and that the defendant was prejudiced by counsel's
deficient    performance. In re Pers. Restraint of Chace, 174 Wn. d 835, 840, 280 P. d 1102
                                                                2                  3

2012) citing Strickland v. Washington, 466 U. .668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
       (                                    S
      In
1984)). "        a plea bargaining context, ` ffective assistance of counsel' merely requires that
                                            e
counsel `actually and substantially [assist] his client in deciding whether to                   plead guilty. "' State

v. Osbourne, 102 Wn. d 87, 99, 684 P. d 683 (1984) alteration in original) quoting State v.
                   2                2              (                       (

Cameron, 30 Wn. App. 229, 232, 633 P. d 901, review denied, 96 Wa. d 1023 (1981)).
                                    2                            2              Defense
counsel must inform the defendant of all the direct consequences of the                          guilty plea.   State v.


A. .168 Wn. d 91, 113 14, 225 P. d 956 (2010). In the context of a claim that counsel's
J., 2
 N                    -        3


ineffective assistance caused the defendant to reject a plea offer, a defendant demonstrates

prejudice by showing that there is a reasonable probability he or she would have accepted the
offer absent counsel's ineffective assistance.             Lafler   v.   Cooper, _      U. . ,
                                                                                         S            132 S. Ct. 1376,

                             Missouri
1385, 182 L.Ed. 2d 398 (2012);                        v.   Frye, _       U. . ,
                                                                          S          132 S. Ct. 1399, 1409, 182 L.

Ed: - 37% denied, 132 -S. Ct. 1789 2012) If adefendant cannot -demonstrate-
  2d -  cent -            --       (                                      either -


deficient performance or prejudice, the ineffective assistance of counsel claim fails. Strickland,
466 U. .at 697.
     S


        The trial court determined that Aguirre's claim that he would have accepted the deal was

based   on   hindsight. Steele's testimony          at the   reference hearing supports this. Steele testified


that Aguirre was adamant that he was innocent of the charges, he wanted to go to trial, and he
would not accept a deal.hat would result in his removal from the military. The trial court found
                       t
that Steele's testimony was more credible than Aguirre's. "[ court's determination of a
                                                         A]trial
witness's                   cannot be   disturbed        appeal."In            Pers. Restraint   of Davis, 152   Wn. d
                                                                                                                   2
              credibility                           on                    re
                No. 41556 9 II
                          - -



                647, 682 83, 101 P. d 1 ( 2004)citing In re Pers. Restraint of Gentry, 137 Wn. d 378, 410 11,
                         -        3             (                                            2            -

                972 P. d 1250 (1999)).
                     2               Accordingly, Steele's testimony is substantial evidence supporting the

                trial court's finding that Aguirre would not have accepted the deal at the time it was made.
                      .

                       Furthermore, Aguirre's own testimony belies his assertion that he would have accepted

                the State's offer. Aguirre testified that even after he decided he would be willing to accept a plea

                bargain that would result in his separation from the military, he would not have accepted an offer
                that required him to admit to committing the crimes. In fact, Aguirre maintained his innocence

                throughout trial and sentencing. The State's offer was not an Alford plea, therefore to accept the
                offer, Aguirre would have .had to admit he committed the crime. The State's offer was a one-

                time, nonnegotiable offer.     Aguirre's insistence on maintaining his innocence equated to a

                rejection of the State's offer, even assuming he would have accepted terms that would result in
                his separation from the military.

                        Based on the above facts, we conclude that Aguirre has not demonstrated there. as a
                                                                                                     w

                reasonable probability that he would have accepted the State's offer. Aguirre has failed to meet

j——-- -------   his burden show _
                                prejudice.        - Accordingly, - --
                                                               his ineffective -assistance -of-
                                                                                              counsel- claim fails,- - -- - - -

                regardless of whether defense counsel was deficient.

                        Aguirre also argues that the trial court erred by refusing to allow Aguirre's expert to

                testify at the reference hearing. We review a trial court's decision to admit expert testimony for
                an abuse of discretion. State v. Willis, 151 Wn. d 255, 262, 87 P. d 1164 (2004).The trial court
                                                               2                 3

                abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.

                State v. Powell, 126 Wn. d 244, 258, 893 P. d 615 (1995).Under ER 702,
                                       2                  2

                                 i] scientific,technical, or other specialized knowledge will assist the trier
                                  f
                        of fact to understand the evidence or to determine a fact in issue, a witness


                                                                   9
No.41556 9 II
         - -



       qualified as an expert by knowledge, skill, experience, training, or education, may
       testify thereto in the form of an opinion or otherwise.

To be admissible under ER 702, expert testimony must be helpful to the trier. f fact. State v.
                                                                            o

McPherson, 111 Wn. App. 747, 761, 46 P. d 284 (2002).
                                      3

       Here, Aguirre sought to admit the testimony of another defense attorney to testify about
what would have constituted effective assistance of counsel when conveying the plea offer in this

case. According to Aguirre, the expert could have explained "the standard of care required of

competent counsel when the charges carry a determinate plus sentence of life and the offer is a
                                                       -
plea to a crime with a guaranteed maximum 14 month determinate sentence,"and the expert
                                             -
could have "clarified the impact of [ ost traumatic stress disorder (PTSD)] Steele's duty to
                                    p                                     on

transmit the plea offer."Suppl. Br. of Pet'r at 14 15. The trial court excluded Aguirre's expert
                                                   -
for two   reasons: (   1)with 30 years of criminal law experience, the trial court did not need an

expert to determine what should be told to a defendant to adequately explain a plea offer; and (2)
the opinion went to whether counsel was ineffective not whether the plea offer was conveyed or
explained which
          —            was   what   we   asked the trial court to determine. As the trier of fact in a


reference hearing, the trial court is in the best position to determine whether an expert's

testimony would be helpful to it. The trial court determined that, based on its knowledge and
experience, Aguirre's expert would not be helpful. The trial court did not abuse its discretion by
excluding Aguirre's expert's testimony.

NEWLY DISCOVERED EVIDENCE


          Aguirre argues that Laughman's testimony at the military separation hearing.is newly
discovered evidence       warranting     a   new trial.   But the State correctly notes that Laughman's




                                                          10
No. 41556 9 II
          - -



testimony at the military separation hearing is, at best, impeachment evidence. We agree with
the State.


         To obtain a new trial based upon newly discovered evidence, a defendant must
         prove that the evidence: (1) probably change the result of the trial; 2)was
                                     will                                      (
         discovered after the trial; 3)
                                     ( could not have been discovered before. trial by the
         exercise of due diligence; ( )is material; and (5)is not merely cumulative or
                                    4
         impeaching.

State   v.   Macon, 128 Wn. d 784, 800, 911 P. d 1004 (1996). Failure to establish any of the
                          2                  2


above factors      precludes    a new     trial.   Macon, 128 Wn. d at 800 (citing State v. Williams, 96
                                                                2

Wn. d 215, 223, 634 P. d 868 ( 1981)).Impeachment
  2                  2                 "                                    evidence" is "[evidence used to
                                                                                            ]

undermine a witness's credibility." BLACK's LAw DICTIONARY 637 (9th ed. 2009). A reliable

recantation may generally be considered newly discovered evidence warranting a new trial.

Macon, 128 Wn. d at 799 800.
             2          -

         Here, Laughman's testimony at the military separation hearing was not a recantation.
Laughman         never   testified that   Aguirre    did not assault   or   rape her.   Aguirre asserts that the

following inconsistencies in Laughman's testimony prove the testimony is newly discovered


                    Laughman] changed the amount of beers she had that night from " to 5"
                                                                                  4
         down to "2 to 3;" [
                         Laughman] changed from denying that their fight-
                                                                        training was
         called     anything like combatives, to admitting that. [ Laughman] changed from
             saying she stayed on the couch to claiming she left immediately. [ Laughman]
             changed whether she had a cigarette on the couch after sex, or not. [Laughman]
             changed whether she affirmatively told Officer Carter after the incident that she
             and [ Aguirre]   were   practicing play -fighting. [ Laughman] even changed her
             testimony about what [Aguirre] did to her. First, at trial, she testified that she was
             raped on the floor. Later, at the Separation Hearing, she claimed she was raped
             on the bed.
                     Finally, at the trial, Laughman] testified that Aguirre was jealous of her,
                                            [
             trying to limit her outside contacts, and keep her for his own.... later, at the
                                                                                But
             Separation Hearing, she admitted that they .both"wanted to end the relationship.
                                                           "


                                                           11
No. 41556 9 II
          - -



Br. of Pet'r at 31 32. But minor inconsistencies regarding specific details are not equivalent to a
                   -

recantation.    Instead, they serve only to cast doubt on the credibility or accuracy of her

testimony. Therefore, Laughman's testimony at the separation hearing is impeachment evidence.

Accordingly, Aguirre has failed to meet his burden of demonstrating that Laughman's testimony

at the military separation hearing is newly discovered evidence warranting a new trial.
MITIGATING EVIDENCE AT SENTENCING


       Finally, Aguirre alleges that he received ineffective assistance of counsel at sentencing
because his counsel failed to present        mitigating evidence    on   his behalf.   Specifically, Aguirre

contends that his counsel should have presented evidence regarding Aguirre's military service or

Aguirre's mental or social history, including his PTSD.

       Aguirre is required to demonstrate both deficient performance and prejudice. Strickland,
466 U. .at 697. Here, Aguirre cannot demonstrate how counsel's failure to offer. his suggested
     S

mitigating    evidence     prejudiced   him at   sentencing.   Aguirre argues that the lack of mitigating

evidence prejudiced him because (1) charges would have been reduced if mitigating evidence
                                   the
had been - resented to - he -State -prior trial, and -2)the-
         p -           t      ---                     (    trial court would have imposed - -- -
                                                                                          a

standard range sentence if the mitigating evidence had been presented at sentencing.

        Aguirre cannot offer anything other than speculation about how the failure to present
evidence of his military service or mental or social history would have affected the length of the

minimum sentence the trial court imposed. Aguirre has not cited any authority that supports the

proposition that military service or the mental or physical effects of military service are a basis
for imposing the low end of the sentencing range, or from departing from a standard range
sentence     altogether.    See RCW      535( 4A. Even if Aguirre had a basis for arguing that
                                         9. 1).
                                            9

military service or the effects of military service justified a sentence at the low end of the
                                                        12
No. 41556 9 II
          - -



sentence range, the trial court sentenced Aguirre to a standard range sentence. Because Aguirre
cannot demonstrate that the outcome of his sentencing would have been different if his proposed

evidence had been                he has failed to meet his burden to show       prejudice.   State v.
                    presented,

Thomas, 109 Wn. d 222, 226, 743 P. d 816 (1987).A failure to demonstrate prejudice defeats a
              2                  2
claim of ineffective assistance of counsel. Strickland, 466 U. .at 697.
                                                             S

       Aguirre has failed to meet his burden to show ineffective assistance of counsel for either
failing to adequately convey a plea offer or failing to present mitigating evidence at sentencing.

Furthermore, Laughman's testimony at the military separation hearing is merely impeaching and

not newly discovered evidence. Accordingly, we deny Aguirre's PR- .
                                                                P

       A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.6.it is
                                                                                  040,
                                                                                   0
so ordered.



                                                     ex, ,
                                                  QUINN-
                                                          X1 ',
                                                       BRINTNALL,J.
                                                                       x6 , ,




                                                13
