                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        September 4, 2019




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    In the Matter of the                                            No. 52980-7-II
    Personal Restraint of

    REBECCA LYNN ROBERTS,

                                Petitioner.
                                                              UNPUBLISHED OPINION



          WORSWICK, J. — Rebecca Roberts seeks relief from personal restraint imposed as a result

of her 2017 plea of guilty to vehicular homicide.1 The trial court imposed a mid-range standard

range sentence of 90 months.

          First, Roberts argues that the prosecutor committed misconduct when, during the

sentencing hearing, the prosecutor incorrectly suggested that she had ingested benzodiazepine, in

addition to alcohol and marijuana, prior to the crime. Roberts’s counsel did not object to that

statement, so Roberts must show that the statement was so flagrantly erroneous and ill intentioned

that a jury instruction could not have cured the prejudice from the arguments and that the prejudice

had a substantial likelihood of affecting the jury’s verdict. State v. Scherf, 192 Wn.2d 350, 393-

94, 429 P.3d 776 (2018). Roberts’s counsel, later in the sentencing hearing, corrected the

misstatement by informing the court that while there were benzodiazepines in Roberts’s blood


1
 The trial court entered Roberts’s judgment and sentence on January 10, 2018, making her January
9, 2019 petition timely filed. RCW 10.73.090(3)(a).
No. 52980-7-II


sample, they were administered by first responders at the scene after the accident. The trial court

made no reference to the benzodiazepines. Roberts does not show any reasonable likelihood that

she was prejudiced by the prosecutor’s misstatement or a substantial likelihood that the

misstatement had an effect on the trial court’s sentencing decision. Thus, she does not show

prosecutorial misconduct.

       Second, Roberts argues that her counsel was ineffective because she did not argue for an

exceptional sentence below the standard range. To establish ineffective assistance of counsel, she

must demonstrate that her counsel’s performance fell below an objective standard of

reasonableness and that as a result of that deficient performance, the result of her case probably

would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995);

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We

presume strongly that trial counsel’s performance was reasonable. State v. Grier, 171 Wn.2d 17,

42, 246 P.3d 1260 (2011).

       Roberts does not show that her counsel performed deficiently. She does not show that any

of the mitigating circumstances contained in RCW 9.94A.535(1) were present such that her

counsel should have argued for an exceptional sentence below the standard range. The fact that

Roberts’s insurer compensated the estate of her victim does not constitute a defendant’s efforts to

compensate the victim such that it would serve as a mitigating circumstance under RCW

9.94A.535(1)(b). And Roberts’s counsel did argue for a sentence at the bottom of the standard

range. Thus, Roberts fails to demonstrate that she received ineffective assistance of counsel.




                                                2
No. 52980-7-II


        Roberts does not present grounds for relief from restraint. We therefore deny her petition

and deny her request for appointment of counsel.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                    WORSWICK, J.
 We concur:



 MAXA, C.J.




 GLASGOW, J.




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