                                                     This opinion was filed for record

                                                    at~~-   OD ClM-. oJwM~, 241
                                               o~?--c:i.~
                                                        . SUSAN L. CARLSON
                                                       SUPREME COURT CLERK




           IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            )
                                                )
                           Petitioner,          )                No. 93143-7
                                                )
      v.                                        )                  En Banc
                                                )
KEVIN LEE ESTES,                                )
                                                )     Filed        JUN O8 2017
                           Respondent.          )
                                                )

      OWENS, J. -After an altercation where he cut someone's foot and pinky

finger, Kevin Estes was convicted of felony harassment and third degree assault. The

jury returned deadly weapon verdicts for both convictions, elevating both offenses to

third "strikes" under Washington's three strikes law, the Persistent Offender

Accountability Act (POAA). RCW 9.94A.030. The State then reminded the court

that "this is a third strike case," to which Estes's attorney responded, "He wasn't

convicted of a strike offense." 4 Verbatim Tr. of Proceedings (VTP) (Sept. 12, 2014)

at 504. The prosecutor explained that Estes's convictions counted as strikes because
State v. Estes
No. 93143-7


of the deadly weapon enhancements. Estes was then sentenced to the mandatory

minimum of life in prison.

        Estes appealed, alleging ineffective assistance of counsel. See U.S. CONST.

amend. VI; CONST. art. I, § 22. He claimed his trial counsel did not know that he

would be sentenced as a persistent offender if the jury convicted him of any felony

with a deadly weapon enhancement. The Court of Appeals ordered a new trial,

holding that counsel was ineffective because he did not understand the strike offense

consequences and thus could not fully inform Estes of his options during the plea

bargaining process. We agree and affirm the Court of Appeals.

                                        FACTS

        On February 19, 2014, Kevin Estes went over to his friend James Randle's

apartment in Puyallup. Randle's roommate, Anthony Prusek, was also in the

apartment that evening, along with Prusek' s girlfriend, Ashley Stoltenberg.

        Estes drank alcohol and played video games with Randle and Prusek while

Stoltenberg watched television in another room. Estes soon began making comments

about Stoltenberg's breasts, asking Prusek for a nude photo. Having overheard this

exchange, an angry Stoltenberg came out of the bedroom and told Estes, "'If you do

not stop talking about me like that, I am going to slap you.'" 2 VTP (Sept. 8, 2014) at

84.




                                            2
State v. Estes
No. 93143-7


        According to Stoltenberg, Estes then stood up aggressively and said, "'Time to

die, bitch"' while taking a knife out of his pocket. Id. at 86. Prusek grabbed Estes,

and the two men struggled. Estes began "flailing around" with the knife, and Prusek' s

foot and pinky finger were cut while the men wrestled. Id. at 133.

        Stoltenberg left the room and called 911. Meanwhile, Randle took the knife

from Estes and put it on top of the refrigerator. Randle told Estes to leave because the

police were coming, and Estes complied.

        A responding officer, Officer Greg Massey, found Estes sitting in his car in the

driveway. After an "angry and agitated" Estes opened the car door and told the

officer that there had been a fight, the officer searched Estes and found a knife in his

pocket. Id. at 209. Estes told the officer that this was not the knife from the incident.

Nevertheless, Massey confiscated the knife and took it into evidence.

        Another officer, Officer Steve Pigman, responded later in the evening and

entered the apartment. He noticed a different knife on top of the refrigerator, and

Stoltenberg told him that it was the knife used in the incident. That knife was not

taken into evidence.

        The State charged Estes with second degree assault against Prusek, second

degree assault against Stoltenberg, and felony harassment against Stoltenberg, with

deadly weapon enhancements added to each count. Because Estes had previously

been convicted of two strike offenses under RCW 9.94A.030, the State filed a



                                            3
State v. Estes
No. 93143-7


persistent offender notice warning that if the jury found Estes guilty of second degree

assault, felony harassment, or any other most serious offense, he would be sentenced

to life without the possibility of parole. The persistent offender notice did not provide

any information about the impact of the deadly weapon enhancements.

        During a discussion of jury instructions, defense counsel objected to an

instruction on the lesser included offense of third degree assault and proposed

instructions on fourth degree assault and self-defense. He did not object to the court's

instructions on the deadly weapon enhancements or to the deadly weapon special

verdict form for the felony harassment charge.

       At closing arguments, the State argued that both the knife found on Estes' s

person and the one on top of the refrigerator were "deadly weapon[s ]" because of their

blade length or capacity to cause death. 4 VTP (Sept. 10, 2014) at 444-46, 453-54.

Defense counsel argued that due to inconsistent accounts from witnesses, the State

could not meet its burden of proving an assault occurred. He argued that the knife

that was introduced into evidence was not the knife used in the incident, noting that

witnesses remembered that the knife was "long and big and whatever," but that they

knew nothing more about it. Id. at 468-69.

        The jury acquitted Estes of both second degree assault charges, but found Estes

guilty of one count of third degree assault ( a lesser included offense) and felony




                                            4
State v. Estes
No. 93143-7


harassment. They returned deadly weapon verdicts for both crimes, elevating them to

strike offenses. 1

       After the jury returned its verdicts and was excused, the following exchange

took place:

               [PROSECUTOR]: ... As the Court is aware, this is a third strike
        case. There's no issue as to - as to -

                 [DEFENSE COUNSEL]: He wasn't convicted of a strike offense.

              [PROSECUTOR]: Apparently, the Defendant is a third strike case
        because of the deadly weapon enhancements, so there's no issue as to the
        sentencing.                                                  -

Id. (Sept. 12, 2014) at 504.

        Defense counsel then moved to dismiss the deadly weapon verdicts, arguing

that they were inconsistent with the acquittals on second degree assault. He noted that

"[t]he jury was not asked to make a determination of the weapon's length nor were

they asked to determine whether the knife was per sea deadly weapon," and also

argued that the sentences were disproportionate. Clerk's Papers (CP) at 340. The trial

court denied the motion.

        Constrained by the POAA, the trial court sentenced Estes to total confinement

for life without the possibility of release. The trial judge stated at the close of




1
 Second degree assault is a strike in and of itself. By contrast, third degree assault and felony
harassment count as strikes only when coupled with a deadly weapon verdict, as they were here.
RCW 9.94A.030(33)(b), (t).


                                                5
State v. Estes
No. 93143-7


sentencing, "I will just say that ... this is not the kind of strike that we typically

would be looking for as a community to be a third strike." 4 VTP (Nov. 7, 2014) at

534.

        Estes appealed, alleging ineffective assistance of counsel. The Court of

Appeals reversed Estes' s convictions, holding that defense counsel was ineffective

because he did not understand the strike offense consequences and thus could not

fully inform Estes of his options during the plea bargaining process. State v. Estes,

193 Wn. App. 479, 494, 372 P.3d 163 (2016). Judge Maxa dissented, stating that the

record was inconclusive as to what Estes's attorney did or did not know. Id. at 495.

        The State petitioned for review, which was granted. State v. Estes, 186 Wn.2d

1016, 380 P.3d 522 (2016).

                                            ISSUES

        1.       Was Estes' s trial counsel prejudicially ineffective?

        2.       Did the Court of Appeals rely on facts outside the record when it found

ineffective assistance of counsel?

                                          ANALYSIS

        The State argues that Estes cannot show that his attorney's performance was

deficient and that even if it was, he failed to show he suffered any prejudice resulting

from deficient performance. Relatedly, the State also contends that the Court of




                                                6
State v. Estes
No. 93143-7


Appeals relied on facts outside of the record when it found ineffective assistance of

counsel. We disagree, affirm the Court of Appeals, and remand for a new trial.

       A. Ineffective Assistance of Counsel

        The Sixth Amendment to the United States Constitution and article I, section

22 of the Washington Constitution guarantee the right to effective assistance of

counsel. See U.S. CONST. amend. VI; CONST. art. I,§ 22. We review ineffective

assistance of counsel claims de novo. State v. Jones, 183 Wn.2d 327, 338-39, 352

P.3d 776 (2015).

        Washington has adopted Strickland v. Washington's two-pronged test for

evaluating whether a defendant had constitutionally sufficient representation. 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Cienfuegos, 144 Wn.2d

222,226, 25 P.3d 1011 (2001). Under Strickland, the defendant must show both

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

assistance claim. Strickland, 466 U.S. at 687; Jones, 183 Wn.2d at 339.

       Performance is deficient if it falls "below an objective standard of

reasonableness based on consideration of all the circumstances." State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice exists if there

is a reasonable probability that "but for counsel's deficient performance, the outcome

of the proceedings would have been different." State v. Kyllo, 166 Wn.2d 856, 862,

215 P.3d 177 (2009); Strickland, 466 U.S. at 694. The defendant must affirmatively



                                            7
State v. Estes
No. 93143-7


prove prejudice and show more than a "'conceivable effect on the outcome"' to

prevail. State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006) (quoting

Strickland, 466 U.S. at 693). At the same time, a "reasonable probability" is lower

than a preponderance standard. Strickland, 466 U.S. at 694; Jones, 183 Wn.2d at 339.

Rather, it is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694.

        Washington courts also indulge a strong presumption that counsel's

representation was reasonable. Kyllo, 166 Wn.2d at 862. Performance is not deficient

if counsel's conduct can be characterized as legitimate trial strategy or tactics. Id. at

863.

        Finally, the Strickland court warned against mechanical application of these

guidelines. It reminded that "a court should keep in mind that the principles we have

stated do not establish mechanical rules .... [T]he ultimate focus of inquiry must be

on the fundamental fairness of the proceeding whose result is being challenged."

Strickland, 466 U.S. at 696. Thus, we consider not just Strickland's basic test, but

also this guiding principle in our analysis.

        B. The POAA and Third Strikes

        Estes' s ineffective assistance claim hinges on whether or not his trial counsel

knew that deadly weapons enhancements would elevate Estes' s convictions to third




                                               8
State v. Estes
No. 93143-7


strikes. Thus, a bit of background into relevant portions of the POAA is necessary to

provide context.

        Under the POAA, trial courts are required to sentence "'persistent offenders"'

to life in prison without the possibility of parole. Crawford, 159 Wn.2d at 89-90;

RCW 9.94A.570. A "persistent offender" is one who has been convicted of any

felony considered a "most serious offense" under RCW 9.94A.030(38)(a)(i) and who

has twice been previously convicted of such offenses or equivalent offenses in other

states. The definition includes a list of specific felonies, but also includes "[a]ny other

felony with a deadly weapon verdict." RCW 9.94A.030(33)(t). The statute defines a

"deadly weapon" as "an implement or instrument which has the capacity to inflict

death and from the manner in which it is used, is likely to produce or may easily and

readily produce death." RCW 9.94A.825. Any knife with a blade longer than three

inches is a deadly weapon. Id.; State v. Thompson, 88 Wn.2d 546,548,564 P.2d 323

(1977).

        For purposes of evaluating defense counsel's performance, it is also important

to know that second degree assault, with which Estes was charged but not convicted,

also involves the term "deadly weapon." A person is guilty of second degree assault

if, among other things, he or she "[a]ssaults another with a deadly weapon." RCW

9A.36.021(1)(c). Thus, the term "deadly weapon" is relevant not just for the




                                             9
State v. Estes
No. 93143-7


applicability of deadly weapon enhancements, but also as the basis for establishing the

elements of second degree assault (a strike in and of itself).

        1. Defense Counsel's Performance Was Deficient: the Record Demonstrates
           That He Was Unaware That the Deadly Weapon Enhancements Converted
           Estes 's Convictions into Strike Offenses

       First, we consider the first Strickland prong: whether defense counsel's

performance was deficient. We must, therefore, evaluate whether his conduct was

reasonable considering all the circumstances. Strickland, 466 U.S. at 688. The State

first contends that Estes cannot show his attorney's performance was deficient,

primarily arguing it is not clear from the record that counsel was unaware that Estes

was convicted of a strike offense. We disagree. As explained below, the record

clearly demonstrates that defense counsel was unaware that his client was convicted

of a strike offense. He was thus unable to inform Estes of a key matter in the case.

       The duty to provide effective assistance includes the duty to research relevant

statutes. In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91,102,351 P.3d 138

(2015) (counsel has a duty to advise on immigration consequences for a noncitizen

defendant). Failing to conduct research falls below an objective standard of

reasonableness where the matter is at the heart of the case. Kyllo, 166 Wn.2d at 868.

For example, in Crawford, we found deficient performance when defense counsel

knew that her client had an extensive criminal record but failed to conduct additional

research to ascertain whether her client was at risk of a third strike. 15 9 Wn.2d at 91,



                                            10
State v. Estes
No. 93143-7


99. And in State v. Aho, we found deficient performance where reasonably adequate

research would have prevented the possibility of conviction based on acts predating

the relevant statute's effective date. 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999).

        Similarly, defense counsel's failure to investigate the impact of deadly weapon

enhancements under the POAA was objectively unreasonable here. While counsel

was aware of Estes' s criminal history and the fact that he had already been convicted

of two strike offenses under the POAA, the record shows that he was unaware that

Estes' s convictions converted to strike offenses when coupled with deadly weapon

verdicts. Counsel stated that he was unaware that his client was convicted of a strike

offense, repeatedly acquiesced to characterizations of both knives as "deadly

weapons," and argued against the enhancements posttrial only after he became aware

of his mistake. We review each of these facts in turn.

       First, defense counsel's statement at the close of trial is direct evidence that he

was unaware of the impact of the deadly weapon enhancements. After the jury

returned its verdicts and immediately after the prosecutor informed the trial court that

"this is a third strike case," defense counsel stated that he believed Estes was not

convicted of a strike offense. 4 VTP (Sept. 12, 2014) at 504. We should take him at

his word: he was not aware that Estes had been convicted of a third strike.

       The State argues that this "single, offhand remark" is not enough to

demonstrate deficient performance, suggesting that counsel "may have been



                                            11
State v. Estes
No. 93143-7


momentarily confused or simply misspoke." Suppl. Br. of Pet'r at 15. We disagree.

Attorneys may be momentarily confused about many things: the proper page number

of a citation, the name of a case cited in a brief, the age of a party. Momentary

confusion about an essential point of law-whether or not a client was convicted of a

third strike-is far less likely. We have found deficient performance when counsel

later admitted that she was unaware of a key matter in the case. See Crawford, 159

Wn.2d at 92, 99 (attorney testified posttrial that she had not investigated defendant's

out-of-state conviction because she assumed it had been a misdemeanor). We find no

differently here, where counsel admitted as such-albeit inadvertently-at the close

of trial.

        To support its argument that Estes's attorney may have known about the

significance of the enhancements, the State also points out that the record reveals

multiple instances where counsel attempted to exclude evidence relating to the knife.

These attempts show that counsel likely understood the significance of excluding the

knife for purposes of avoiding a conviction for second degree assault (a strike in and

of itself), as the jury instructions stated that a person commits second degree assault

when he "assaults another with a deadly weapon." CP at 301; RCW 9A.36.02l(l)(c).

However, it is clear that counsel did not understand the significance of the deadly

weapon enhancements, in particular their ability to elevate a usually "nonstrike"

charge to a strike offense.



                                            12
State v. Estes
No. 93143-7


       Defense counsel often acquiesced to the characterizations of the knives as

deadly weapons. For example, he objected when the State moved to admit the knife

that Officer Massey took from Estes's person, but appeared to not have a problem

with that knife being admitted for "deadly weapon purposes," stating that "I agree that

they can argue that he was armed with a deadly weapon during the assault, that's the

deadly weapon, that's fine. As long as they can't say that that's not the knife that was

used in the assault." 2 VTP (Sept. 8, 2014) at 204. He also failed to object to other

witness characterizations of the knife as "deadly," "sharp," "capable of causing

serious bodily injury," and capable of causing "[v]ery, very, very, very grave harm."

3 VTP (Sept. 9, 2014) at 270; 2 VTP (Sept. 8, 2014) at 87, 134.

       These choices might be characterized as trial strategy except for the fact that

counsel did begin to vigorously fight the deadly weapon enhancements posttrial, after

the prosecutor pointed out that the enhancements elevated Estes' s convictions to strike

offenses. Posttrial, defense counsel moved to dismiss the enhancements due to

insufficient evidence, conflicting verdicts, the length of the blade, and a

disproportionate sentence. He explained that when he measured the actual "blade"

with a ruler, it did not measure more than three inches and, therefore, did not meet the

definition of a "per se deadly weapon." He argued that the jury had never been asked

to make a determination of the weapon's length or determine whether the knife was a

per se deadly weapon. There is no tactical explanation for why these arguments were



                                            13
State v. Estes
No. 93143-7


not brought up at any point during the trial, especially when these distinctions could

mean the difference between a life sentence and a shorter one.

       A defendant can overcome the presumption of effective representation by

demonstrating "that counsel failed to conduct appropriate investigations." State v.

Thomas, 109 Wn.2d 222,230, 743 P.2d 816 (1987) (citing State v. Jury, 19 Wn. App.

256, 263, 576 P.2d 1302 (1978)). Estes has done so here. Counsel's statement that

"[Estes] wasn't convicted of a strike offense" coupled with other evidence from the

record demonstrates that he was unaware of the impact of the deadly weapon

enhancements. 4 VTP (Nov. 7, 2014) at 504. This failure to familiarize himself with

a key aspect of the POAA was objectively unreasonable, especially in light of the fact

that Estes was facing a third strike. As such, we find deficient performance.

        2. Estes Was Prejudiced When He Was Deprived of the Ability To Make an
           Informed Decision about Whether To Plead Guilty

       Establishing deficient performance is not the end of our analysis. Estes must

also show that counsel's poor performance was prejudicial. The State argues that

Estes was not prejudiced at trial, noting that at least some of counsel's arguments

"were effective in convincing the jury not to convict [Estes] of the more serious

offenses." Suppl. Br. of Pet'r at 12. We agree: counsel's performance at trial is not,

in and of itself, enough to demonstrate prejudice. But the right to effective assistance

of counsel applies to more than just the trial itself.




                                             14
State v. Estes
No. 93143-7


       The United States Supreme Court has recently held that the right to effective

assistance of counsel applies in the plea bargaining context. Lafler v. Cooper, 566

U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); see also Missouri v. Frye, 566

U.S. 133, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). In Lafler, the Court held that a

defendant was prejudiced by trial counsel's deficient performance in advising him to

reject a plea offer and go to trial. The majority opined, "Even if the trial itself is free

from constitutional flaw, the defendant who goes to trial instead of taking a more

favorable plea may be prejudiced from either a conviction on more serious counts or

the imposition of a more severe sentence." Lafler, 566 U.S. at 166. Similarly, in

another case, the Court held that the failure to advise a client of the risk of deportation

in pleading guilty constitutes deficient performance, given that the justices had "long

recognized that deportation is a particularly severe 'penalty."' Padilla v. Kentucky,

559 U.S. 356, 365, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (quoting Fong Yue Ting

v. United States, 149 U.S. 698, 740, 13 S. Ct. 1016, 37 L. Ed. 905 (1893)); see also

Yung-Cheng Tsai, 183 Wn.2d at 102.

       This court, too, has recognized a right to effective assistance in plea bargaining,

stating that effective assistance includes "assisting the defendant in making an

informed decision as to whether to plead guilty or to proceed to trial." State v. A.N.J.,

168 Wn.2d 91, 111, 225 P.3d 956 (2010). Counsel must, at a minimum, "reasonably

evaluate the evidence against the accused and the lilrnlihood of a conviction if the case



                                             15
State v. Estes
No. 93143-7


proceeds to trial so that the defendant can make a meaningful decision as to whether

or not to plead guilty." Id. at 111-12; see also State v. Edwards, 171 Wn. App. 379,

394, 294 P.3d 708 (2012). Uncertainty about the outcome of plea bargain

negotiations should not prevent reversal where confidence in the outcome is

undermined. State v. James, 48 Wn. App. 353, 363, 739 P.2d 1161 (1987);

Strickland, 466 U.S. at 694.

       However, in Crawford, we addressed an issue involving a third strike

conviction but found that the defendant did not prove prejudice. 159 Wn.2d at 89-90.

There, a defendant was sentenced to life in prison without the possibility of parole

under the POAA. At a posttrial hearing, his trial attorney admitted that she had not

investigated one of Crawford's out-of-state convictions because she assumed it had

been a misdemeanor. Id. at 92. We found that counsel's failure to investigate

Crawford's prior convictions was deficient under the first Strickland prong. Id. at 98-

99. However, a five-justice majority of this court found no prejudice, concluding that

Crawford had not demonstrated that but for counsel's error, he would have avoided

sentencing under the POAA. The majority noted that (1) Crawford presented no

evidence that the prosecutor would have allowed him to plead guilty to a lesser

offense and (2) there was a lack of mitigation evidence in the record. Id. at 100-02.

The dissent urged that the majority misapplied the Strickland standard in concluding

that Crawford had not established prejudice, stating, "[W]e need not be certain the



                                           16
State v. Estes
No. 93143-7


errors of counsel determined the outcome .... [I]nstead, a mere reasonable probability

of a different outcome is all that is required." Id. at 104.

        This case is distinguishable from Crawford. In Crawford, the record contained

no evidence that the prosecutor would have been willing to allow him to plead guilty

to a lesser offense. Here, however, at the close of sentencing, the prosecutor stated as

follows:

        [O]ur office has a policy on third strike cases where the defense ... has
        an opportunity to seek mitigation ... [and ask] for something other than a
        third strike resolution. The Defendant, Mr. Estes, declined to enter into
        any negotiations whatsoever during the entire course of this case. Also he
        did not wish to avail himself of the mitigation process.

4 VTP (Nov. 7, 2014) at 534. Thus, the State indicated its willingness to work with

Estes to reach a different outcome, but Estes apparently refused to negotiate. 2 Had

Estes come forward, the State may have been willing to negotiate "something other

than a third strike resolution." Id.

        The State counters that "[t]his case was not one in which the State appeared

eager to reduce his charges in any meaningful way and [was] not required to do so."

Suppl. Br. of Pet'r at 18. This focus on the prosecutor's actions, rather than Estes's, is

misplaced here. Estes did not attempt to negotiate, and thus we cannot speculate

about the specifics of what the State may or may not have offered him. What we do


2
  During the pendency of his case, Estes filed several motions and documents with the court. CP
at 35-144. In one such document, he wrote, "I would stipulate to a [misdemeanor] drunk and
disorderly or the equivalent that precludes county probation, fine, and or alcohol assessment. ...
If not it's time for trial, no more b.s. continuances." Id. at 86.


                                                17
 State v. Estes
 No. 93143-7


 know is that lacking knowledge about a key matter in his case, Estes declined to

 negotiate from the outset.

         That being said, the State is correct that the record does not show with

 complete certainty that had Estes known about the impact of the deadly weapon

 enhancements, he would have been able to negotiate a different outcome. But we

 need not be 100 percent sure that the outcome would have been different to find

 prejudice here: the Strickland Court clarified that a defendant need not even make his

 showing on a more-likely-than-not basis. 466 U.S. at 693. Here, it is reasonably

 probable that had Estes known that there was a much higher chance that he would be

 spending life in prison, the result of the proceeding would have differed.

        Defense counsel did not research the implications of the deadly weapon

 enhancements, and thus he was unable to communicate crucial information to his

. client. There is a reasonable probability that had Estes been fully informed, he would

 have negotiated a different outcome. Estes was denied the ability to "mak[ e] an

 informed decision" about whether to plead guilty, and we find that defense counsel's

 conduct prejudiced Estes. A.NJ, 168 Wn.2d at 111.

         3. The Court ofAppeals Did Not Rely on Facts outside the Record, and a
            Direct Appeal Is a Proper Remedy Here

        After his convictions, Estes filed a statement of additional grounds (SAG) in

 which he wrote, "[My defense attorney] did not advise me that the weapon

 enhancement was a strike in its self [sic] or when attached to a[ n] Assualt [sic] 3 or


                                             18
State v. Estes
No. 93143-7


felony harassment." SAG at 2. Pointing to this assertion, the State argues that the

Court of Appeals impermissibly considered facts outside the record when it

determined that Estes' s attorney was ineffective. The State also suggests that rather

than file a direct appeal, Estes should file a personal restraint petition in order to

develop a record about what defense counsel knew or did not know. We disagree.

        When an ineffective assistance claim is raised on appeal, this court may

consider only facts contained in the record. McFarland, 127 Wn.2d at 335. Any off-

the-record conversations between Estes and his attorney must be raised in a personal

restraint petition. State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011).

       There is no evidence that the Court of Appeals relied on facts outside the record

in this case. In actuality, the Court of Appeals explicitly declined to take Estes's

statement at face value, stating, "[I]nsofar as [Estes' s] assertion implicates matters

outside the record, we do not consider it. A personal restraint petition is the proper

vehicle for such an issue." Estes, 193 Wn. App. at 488 n.6. The Court of Appeals

went on to base its decision solely on the record itself, citing to the State's persistent

offender notice, defense counsel's statements during and after trial, and other facts

entirely within the record. See id. at 490-91.

        The Court of Appeals did not rely on facts outside the record to reach its

decision, nor do we. The existing record on appeal clearly demonstrates that Estes' s

attorney did not know about the significance of the deadly weapon enhancements.



                                             19
State v. Estes
No. 93143-7


Since he was unaware of a key point of law, there was no way that he could have

communicated that information to his client. We need not look to facts outside the

record to make these inferences. 3

       Relatedly, the State argues that the correct remedy in this case would be for

Estes to file a personal restraint petition, after which a reference hearing might be

appropriate in order to develop what counsel knew or did not know. We disagree. To

reiterate, the record is clear: defense counsel himself stated that he was unaware that

his client was convicted of a third strike. This statement is supported by the rest of the

record. A reference hearing is not necessary.

                                        CONCLUSION

        We believe that a defendant facing a third strike should be able to know the

nature and potential consequences of the charges before him in order to make an

informed decision about whether to plead guilty. The record indicates that here, this

was not the case. Trial counsel's deficient performance created a reasonable

probability that the outcome of the case would have been different but for this

performance. Thus, we affirm and remand for a new trial.




3
 It is conceivable that Estes might have known about the impact of the deadly weapon
enhancements (without being advised as such by his attorney), but there is no reason for us to
assume so.


                                               20
State v. Estes
No. 93143-7




WE CONCUR:




                 21
State v. Estes (Kevin Lee)




                                No. 93143-7

      GONZALEZ,   J. (concurring)-Kevin Estes was convicted of third

degree assault and felony harassment while armed with a deadly weapon

after he scuffled with a friend over lewd comments he said about the friend's

girlfriend's body. Because of that deadly weapon finding, Estes was

sentenced to life imprisonment without possible release.

      I agree with the majority that Estes's convictions should be reversed

and retried because he received ineffective assistance of counsel. See U.S.

CONST. amend. VI; CONST. art. I, § 22. More specifically, I agree that

Estes' s trial counsel was deficient because he was unaware a felony

conviction with a deadly weapon enhancement qualified as a strike offense

under Washington's three strikes law, RCW 9.94A.570. RCW

9.94A.030(38), 33(t). I also agree counsel's failure to recognize the

substantial penalties attached to that deadly weapon enhancement probably

affected the way counsel presented the case to the jury and the outcome of

this case. I write separately because I disagree with the majority about how
State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)

that failure prejudic;ed Estes.

       Unlike the majority, I am unconvinced Estes would have sought a plea

deal had defense counsel informed him he would be sentenced to life

imprisonment without possible release if the jury found he committed a

felony while armed with a deadly weapon. There is ample evidence that

Estes knew he would be sentenced to life imprisonment without possible

release if the jury convicted him of any one of the two crimes with which he

was charged: second degree assault or felony harassment with a deadly

weapon. 1 Despite knowing he could be sentenced to life in prison and

knowing the State was willing to negotiate a lesser charge, Estes refused to

engage in any plea negotiations. 4 Verbatim Tr. of Proceedings (VTP)

(Nov. 21, 2014) at 534. The majority fails to explain why knowing he could

receive that same sentence for the lesser included offense of third degree

assault with a deadly weapon would have altered Estes's steadfast position

throughout the pendency of his case that he would only accept a

"drastic[al]ly reduced plea" akin to drunk and disorderly conduct with "time

1
  Clerk's Papers at 381 (persistent offender notice (third conviction) informing Estes that
he is being charged as a persistent offender), 85 (letter from Estes reminding the State
that "in essence you've tried to take my life" through filing these charges), 96 (pretrial
forensic mental health report confirming Estes "correctly identified [he could receive] the
statutory maximum sentence of 'life' in prison given his criminal history (i.e., 'third
strike felony')"); 1 Verbatim Tr. of Proceedings (VTP) (Aug. 25, 2014) at 3, 31-32, 50
(State and defense counsel describing the case as a third strike case during pretrial
motions in Estes's presence).



                                             2
State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)

served." Clerk's Papers (CP) at 104. 2

       While it is possible that this additional knowledge could have altered

Estes' s no-negotiation position and therefore the outcome of this case, it is

not reasonably probable. To prevail on an ineffective assistance of counsel

claim, the "defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would

have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). "A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id.

       In my view, it is more likely--and indeed reasonably probable-that

had defense counsel la1own a deadly weapon finding would elevate a simple

felony to a strike offense, he would have argued during trial against that

finding much like he did posttrial when he realized its significance. See 4

VTP (Nov. 7, 2014) at 509-25. There is also a reasonable probability that

had defense counsel so argued, the jury would have decided this case


2
  Estes sent numerous letters to the trial court expressing his belief that the charges
against him should be dismissed because they were without legal merit. Twice, however,
he mentioned a willingness to accept a misdemeanor plea so he could be released from
pretrial custody and reunited with his family. CP at 86 ("I would stipulate to a
[misdemeanor] [d]runk and disorderly or the equivalent that precludes County probation,
fine, and or alcohol assessment ... [with] credit for time served [and] no more .... If not
it's time for trial, no more b.s. continuances."), 104 ("[I]f [the court] support[s] the
[State's] probable [cause assessment,] allow me a bail and order a negotiation/arbitration
on a drastic[al]ly reduced plea of [d]isorderly conduct. I believe a c-class [misdemeanor]
with credit for time served.").


                                             3
State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)

differently.

      At trial, the jury was asked to decide two questions regarding deadly

weapons: Did Estes "assault[] another with a deadly weapon" under RCW

9A.36.021(1)(c), and did he commit assault or felony harassment while

armed with a "deadly weapon" under RCW 9.94A.825? The first question

relates to his second degree assault charge. The second question relates to

the deadly weapon sentence enhancement.

       What qualifies as a deadly weapon differs under each question. A

"deadly weapon" for purposes of second degree assault means "any ...

weapon, device, [or] instrument ... which, under the circumstances in which

it is used, attempted to be used, or threatened to be used, is readily capable

of causing death or substantial bodily harm." RCW 9A.04. l 10( 6). In

contrast, a "deadly weapon" for purposes of the sentence enhancement

means an "instrument which has the capacity to inflict death and from the

manner in which it is used, is likely to produce or may easily and readily

produce death," which expressly includes "any knife having a blade longer

than three inches." RCW 9.94A.825.

       The jury found Estes did not assault anyone with a deadly weapon

capable of causing death or substantial bodily injury and therefore acquitted

him of second degree assault, see CP at 331, 333, but the jury did find he



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State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)

committed third degree assault, CP at 332, while armed with a deadly

weapon either capable of inflicting death or having a blade longer than three

inches to qualify for the sentence enhancement, see CP at 338.

      Because the jury did not specify, we cannot know with certainty

which of the two knives Estes had with him during the assault formed the

predicate for the jury's deadly weapon finding. Was it the knife he used

during the assault that grazed his friend's foot and pinky finger, or was it the

switchblade pocketknife law enforcement officers found in his pocket when

they arrested him?

      Based on the jury's acquittal ofEstes's second degree assault charge,

it is unlikely the jury predicated the deadly weapon finding on the knife used

during the assault. To conclude otherwise would require us to believe the

jury found the knife was either capable of inflicting death or had a blade

longer than three inches even though the jury found Estes did not commit

assault with a knife capable of inflicting death or substantial bodily harm

and even though that knife was never produced at trial. Although the friend

testified at first that the blade of the knife was about three and a half to four

inches long, the friend later qualified that testimony, explaining he did not

get a "good look" at the knife because it was "moving around pretty fast." 2

VTP (Sept. 8, 2014) at 134, 186. One officer testified that while he saw the



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State v. Estes (Kevin Lee), No. 9~ 143-7 (Gonzalez, J., concurring)

knife, he did not know how long the blade was, though he believed the entire

knife was approximately six inches long. 3 VTP (Sept. 9, 2014) at 256-57;

269-70. It is doubtful the jury could find beyond a reasonable doubt based

on the friend's and officer's testimony that the blade of the knife used during

the assault was longer than three inches.

      Instead, it is more likely the jury predicated its deadly weapon finding

on the pocketknife the officers found in Estes' s pocket when they arrested

him since that knife was produced at trial. Because Estes did not use the

pocketknife in the assault, the jury could not have concluded the knife was

capable of producing death based on "the manner in which it was used."

RCW 9.94A.825.· Rather, the jury probably found the pocketknife was a

deadly weapon because it had "a blade longer than three inches." Id. Estes,

however, disagrees with that measurement.

      According to Estes, the blade of the pocketknife was only three

                                                                  1
inches, not longer than three inches. CP at 342. Even the State s forensic

expert, who measured the blade, agreed the blade was either "right at three

inches" or "maybe just a little, eighth inch shy, maybe really close to three

inches." 2 VTP (Sept. 8, 2014) at 217. But the expert also testified the

blade was "over three inches" and "almost three and quarter" inches. Id. at

218. Despite the importance of the blade's measurement and the expert's



                                       6
State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)

contradictory testimony, defense counsel never asked the expert to clarify

this critical fact at trial. Id. at 218-19. Counsel's failure to cross-examine

the State's expert regarding this measurement reasonably affected the

outcome of Estes's case.

      Because defense counsel did not realize the deadly weapon

enhancement would elevate a felony conviction to a strike offense, defense

counsel did not challenge the State's assertion that the blade was over three

inches long. Had counsel so argued, there is a reasonable probability the

jury would not have entered that deadly weapon finding given their other

findings. For this reason, I concur. Estes's defense counsel was ineffective,

and his convictions should be reversed.




                                        7
State v. Estes (Kevin Lee), No. 93143-7 (Gonzalez, J., concurring)




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