IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  DIVISION ONE
                      Respondent,
                                                  No. 79607-1-I
               v.
                                                  UNPUBLISHED OPINION
 CHRISTOPHER MICHAEL SEAVOY,

                      Appellant.


       DWYER, J. — Christopher Michael Seavoy was convicted of child

molestation in the first degree and rape of a child in the first degree. On appeal,

he contends that his counsel’s representation during his sentencing was

constitutionally deficient, and that this substandard representation resulted in the

sentencing court rejecting his request to be sentenced under a special sex

offender sentencing alternative (SSOSA). Because Seavoy fails to show that he

was prejudiced by his counsel’s performance, we affirm.

                                          I

       From August 2011 through October 2014, Seavoy sexually abused P.K.,

his then-girlfriend’s daughter. At the time, P.K. was between five and eight years

old.
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       After learning about child abuse in school, P.K. reported what she had

endured to her teacher. The school referred the matter to Child Protective

Services, which then referred it to the Snohomish County Sheriff.

       When interviewed by a detective, P.K. asserted that Seavoy had touched

her breasts and genitals. Seavoy had also made P.K. manually stimulate his

penis until he ejaculated. P.K. reported that this had happened many times

between 2011 and 2014. P.K. also reported that Seavoy once began to perform

oral sex on her, but that he stopped after P.K. asked him to quit.

       The State charged Seavoy with child molestation in the first degree and

rape of a child in the first degree. He agreed to forego a jury trial in favor of a

stipulated bench trial on documentary evidence. This evidence included a pair of

statements in which Seavoy admitted that he had engaged in sexual contact and

sexual intercourse with P.K. The trial court found Seavoy guilty of both offenses.

Seavoy then sought a SSOSA, which would have significantly reduced the

amount of time that he would be incarcerated.

       At Seavoy’s sentencing hearing, P.K.’s mother addressed the court. She

spoke about the harm Seavoy had done to her child and said, “I don’t think the

SSOSA is appropriate at all. I want justice served. . . . [I]f you give him a SSOSA

it says that his comfort and his new life is more important than my daughter’s

well-being, and how my daughter is going to grow up.”

       During his allocution, Seavoy expressed his regret for what he had done

and his belief that it was important for him to take responsibility for his actions.

However, he also stated that during the time period when he molested P.K., he




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was “battling a drug addiction and methamphetamines and coming out of steroid

use.”

        Having heard these and other statements, the superior court denied

Seavoy’s request for a SSOSA. The court explained its decision, noting first that

Seavoy’s examination report did not contain his own version of the facts,

rendering it statutorily deficient. The court also expressed concerns about other

sections of the report that, while not statutorily deficient, could have contained

additional relevant information, particularly regarding Seavoy’s polygraph

examination.

        The court further explained that “even if this report met the statutory

criteria, I would find that a SSOSA in this case is not appropriate for a variety of

different reasons.” It noted that Seavoy had linked his abuse of P.K. to his drug

addiction in his statement to the court. The court observed that this blame

shifting was in keeping with what the examiner’s report noted about Seavoy’s

personality type: that people with it “tend[] to blame others or the environment for

their problems.” The report also noted that Seavoy had what the court

characterized as “boundary and judgement issues related to sexual activity . . .

regardless of the abuse issues.” These factors, when considered alongside the

fact that the abuse “took place . . . over the protracted period of time and the

number of different types of instances that were referenced in the documentary

evidence,” led the court to find that “the risk to the community would be too

substantial to permit the defendant to be granted a SSOSA.”




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       Finally, the court observed that P.K.’s mother ardently opposed granting

Seavoy the SSOSA. The judge explained that “the statute is clear” that a judge

should give the victim’s opinion as to whether a SSOSA should be granted “the

most, the greatest weight.” Because the statute also provided that the mother

was herself a victim for sentencing purposes, the court gave the greatest weight

to her opinion.

       The court summarized its decision by stating:

              [Seavoy] abused his position of trust with this young child
       over a long period of time. He acted on impulse consistent with the
       personality issues addressed. The incidents themselves did not
       stop of his own volition but because the relationship ended. As a
       result of that, even if the report satisfied the statutory requirements,
       I would not grant the request for the SSOSA.

       The court then sentenced Seavoy to serve 78 months of

confinement with a lifetime of community custody for the child molestation

conviction and 140 months of confinement with a lifetime of community

custody for the rape of a child conviction, with the sentences to be served

concurrently. These represented “intermediate” sentences within the

standard sentencing range.

       Seavoy appeals.

                                          II

       Seavoy contends that he was denied his constitutional right to effective

assistance of counsel during sentencing. This is so, Seavoy avers, because his

counsel failed to file necessary documentation that would have supported his

request for a SSOSA. We reject this contention. Seavoy cannot prove that he

suffered prejudice from his counsel’s failure to file additional documentation; the



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court plainly stated that it based its decision on factors that the provision of the

missing documentation would not have altered.

       Both the United States Constitution and the Washington State Constitution

guarantee criminal defendants the assistance of counsel. U.S. CONST. amend.

VI; W ASH. CONST. art I, § 22. The United States Supreme Court has recognized

that the guarantee of assistance of counsel is, in fact, a “‘right to the effective

assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759,

771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)). This right extends to all

critical stages of a criminal proceeding, including sentencing. State v. Robinson,

153 Wn.2d 689, 694, 107 P.3d 90 (2005).

       Contentions of constitutionally ineffective assistance of counsel present

mixed questions of law and fact that we review de novo. State v. A.N.J, 168

Wn.2d 91, 109, 225 P.3d 956 (2010). We base our determination on the record

established in the superior court. In re Pers. Restraint of Hutchinson, 147 Wn.2d

197, 206, 53 P.3d 17 (2002). “[T]he defendant must show both (1) deficient

performance and (2) resulting prejudice to prevail on an ineffective assistance

claim.” State v. Estes, 188 Wn.2d 450, 457-58, 395 P.3d 1045 (2017) (citing

Strickland, 466 U.S. at 687).

       While courts often determine whether a defense attorney’s performance

was deficient before addressing prejudice,

       there is no reason for a court deciding an ineffective assistance
       claim to approach the inquiry in [that] order or even to address both
       components of the inquiry if the defendant makes an insufficient
       showing on one. In particular, a court need not determine whether



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      counsel’s performance was deficient before examining the
      prejudice suffered by the defendant as a result of the alleged
      deficiencies. The object of an ineffectiveness claim is not to grade
      counsel’s performance. If it is easier to dispose of an
      ineffectiveness claim on the ground of lack of sufficient prejudice,
      which we expect will often be so, that course should be followed.
      Courts should strive to ensure that ineffectiveness claims not
      become so burdensome to defense counsel that the entire criminal
      justice system suffers as a result.

Strickland, 466 U.S. at 697.

      To establish that any errors made by his counsel were prejudicial, “[i]t is

not enough for the defendant to show that the errors had some conceivable

effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Instead,

Seavoy must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland,

466 U.S. at 694).

      “A reasonable probability is a probability sufficient to undermine
      confidence in the outcome.” Strickland, 466 U.S. at 694; Thomas,
      109 Wn.2d at 226; [State v. ]Garrett, 124 Wn.2d [504,] 519[, 881
      P.2d 185 (1994)]. In assessing prejudice, “a court should presume,
      absent challenge to the judgment on grounds of evidentiary
      insufficiency, that the judge or jury acted according to the law” and
      must “exclude the possibility of arbitrariness, whimsy, caprice,
      ‘nullification’ and the like.” Strickland, 466 U.S. at 694-95.

State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011).

      A SSOSA allows a court to conditionally suspend the full sentence of a

qualifying sexual offender in favor of the defendant undergoing treatment, serving

a much shorter term of confinement, and serving the remaining sentence in

community custody. RCW 9.94A.670(4), (5). To be eligible for a SSOSA, the

defendant must have been convicted of a qualifying sex offense with a sentence



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range that allows for confinement for less than 11 years. RCW 9.94A.670(2)(a),

(f). The defendant must have had an established relationship with the victim, and

the offense must not have resulted in substantial bodily harm to the victim. RCW

9.94A.670(2)(d), (e). The defendant also must not have any prior convictions for

sex offenses or recent adult convictions for violent offenses. RCW

9.94A.670(2)(b), (c).

       If a defendant is eligible for a SSOSA, as all parties agree Seavoy was,

the court “may order an examination to determine whether the offender is

amenable to treatment.” RCW 9.94A.670(3). The resulting examination report

must contain, among other information, the offender’s version of the facts, “[a]n

assessment of problems in addition to alleged deviant behaviors,” and an

appraisal of the “offender’s amenability to treatment and relative risk to the

community.” RCW 9.94A.670(3)(a)(iii), (b).

       After receipt of the reports, the court shall consider whether the
       offender and the community will benefit from use of this alternative,
       consider whether the alternative is too lenient in light of the extent
       and circumstances of the offense, consider whether the offender
       has victims in addition to the victim of the offense, consider whether
       the offender is amenable to treatment, consider the risk the
       offender would present to the community, to the victim, or to
       persons of similar age and circumstances as the victim, and
       consider the victim’s opinion whether the offender should receive a
       treatment disposition under this section.

RCW 9.94A.670(4).

       The statute further requires that the court “give great weight to the victim’s

opinion whether the offender should receive a treatment disposition under this

section.” RCW 9.94A.670(4). It also provides that the parent of a minor child




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victim is herself a victim for the purposes of RCW 9.94A.670. RCW

9.94A.670(1)(c).

        The sentencing court herein plainly stated its reasons for denying Seavoy

a SSOSA: P.K.’s mother’s expressed wishes, Seavoy’s underlying personality

issues—which suggested he posed a danger to the community—and the

examination report’s statutory inadequacies. Among these, the court

acknowledged that the statute required it to place “the most, the greatest weight”

on P.K.’s mother’s stated opinion that Seavoy should not receive the SSOSA.

        The court then stated that it would have made the same decision “even if

the report satisfied the statutory requirements.” Because we presume that the

judge acted according to the law, and we exclude the possibility of arbitrariness

or caprice, we take the court at its word that a more complete report would not

have changed the outcome.1 Grier, 171 Wn.2d at 34 (quoting Strickland, 466

U.S. at 694-95).

        Seavoy does not establish that he was prejudiced by the fact that his

counsel did not provide more complete documentation.2 Thus, his contention

that he was deprived of his right to constitutionally effective assistance of counsel

fails. Estes, 188 Wn.2d at 457-58 (citing Strickland, 466 U.S. at 687).




        1 For the same reasons, we also reject Seavoy’s contentions that his counsel’s failure to
supply the court with a complete polygraph report or “any other documentary support for the
SSOSA recommendation” prejudiced him. The court plainly stated that, as required by statute, it
gave greatest weight to P.K.’s mother’s opinion that the request for a SSOSA should be rejected
and stated that rectifying documentary deficiencies would not have changed the outcome.
        2 Because Seavoy has not established that he suffered prejudice, we do not consider

whether his counsel’s conduct constituted constitutionally deficient performance. Strickland, 466
U.S. at 697.


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      Affirmed.




WE CONCUR:




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