                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                               July 5, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II
 In re the Personal Restraint Petition of:                            No. 46987-1-II

 JAKE JOSEPH MUSGA,
                                                               UNPUBLISHED OPINION

                        Petitioner.


       MAXA, A.C.J. – In this personal restraint petition (PRP), Jake Musga seeks freedom from

restraint imposed following his guilty pleas for first degree felony murder and first degree child

rape. Musga argues that his two defense attorneys provided ineffective assistance by failing to

(1) review various discovery documents with him, (2) conduct an adequate investigation of his

case and the State’s evidence against him, (3) adequately advise him regarding pleading guilty to

first degree murder, and (4) inform him that when he pled guilty he also stipulated to aggravating

factors that could be used to impose an exceptional sentence and that the trial court had authority

to impose an exceptional sentence. In addition, Musga argues that we should reinstate his right

to a direct appeal because the trial court failed to inform him of his right to appeal his

exceptional sentence.

       After an initial review of Musga’s PRP, we entered an order remanding the petition to

superior court for a reference hearing on the second, third, and fourth ineffective assistance of
No. 46987-1-II


counsel claims identified above.1 We directed the superior court to enter all findings of fact

necessary to address whether defense counsel’s representation was deficient in one of the ways

Musga asserted and, if the representation was deficient, whether Musga was prejudiced with

regard to his decision to plead guilty and/or his sentencing.

       The superior court conducted a reference hearing. Following the hearing, the superior

court entered extensive findings of fact stating that Musga did not prove by a preponderance of

the evidence that defense counsel was deficient in any of the three ways claimed or that any of

the claimed deficiencies caused prejudice. Musga now argues that substantial evidence does not

support the trial court’s findings.

       We hold that (1) Musga did not establish a prima facie case that he was prejudiced by his

defense counsel’s failure to provide him with discovery documents; (2) Musga did not establish

that he received ineffective assistance of counsel because substantial evidence supports the

superior court’s findings that Musga failed to prove that defense counsel (a) inadequately

investigated Musga’s case, (b) did not adequately advise him regarding pleading guilty to first

degree murder and (c) did not explain to him the consequences of pleading guilty with regard to

an exceptional sentence; and (3) Musga did not demonstrate that his right to direct appeal should

be reinstated.

       Accordingly, we dismiss Musga’s PRP.




1
 In our reference hearing order, we stated that Musga failed to demonstrate a prima facie case of
prejudice regarding the first ineffective assistance of counsel claim and therefore that the
superior court did not need to address it.


                                                 2
No. 46987-1-II


                                             FACTS

Musga’s Arrest and Charging

       In March 2013, police responded to a 911 call related to the death of CC, a 2-year-old

boy. Musga had been dating CC’s mother, Laura Colley, and was alone watching CC that

evening. An investigation produced evidence indicating that Musga anally raped CC with a

foreign object and beat him, causing CC’s death. Musga was arrested and charged with first

degree felony murder and first degree child rape.

       The charging information also included several aggravating circumstances. Relating to

the felony murder charge, the information stated that Musga knew or should have known that CC

was particularly vulnerable or incapable of resisting under RCW 9.94A.535(3)(b), that Musga’s

conduct manifested deliberate cruelty under RCW 9.94A.535(3)(a), and that CC’s injuries

substantially exceeded the level of harm necessary to satisfy the offense’s elements under RCW

9.94A.535(3)(y). Relating to the rape charge, the information included aggravators for deliberate

cruelty and CC’s vulnerability.

       Musga’s parents retained attorneys Keith Hall and Richard Warner to represent Musga

and to provide all services reasonably necessary to his defense, including “pre-charge

investigation and representation from arraignment through trial or other resolution upon payment

for those services.” PRP App. D ¶ 1.

Musga’s Guilty Plea and Sentencing

       On August 13, 2013, the State communicated a plea offer to Musga’s attorneys that

would allow Musga to plead guilty as charged. The State indicated that if Musga declined the

offer, it would amend his charge to first degree murder with aggravating circumstances, for



                                                3
No. 46987-1-II


which the sentence would be either be death or life imprisonment without the possibility of

release or parole. The offer expired on August 30. The State informed Musga’s attorneys that it

would not accept an Alford2 plea and would instead require Musga to submit a factual statement

of guilt. Musga told his attorneys on August 29 that he wanted to accept the offer.

          Musga’s guilty plea was expressed in two documents titled Statement of Defendant on

Plea of Guilty, one for each count. Musga reviewed these statements with Warner and Hall, with

Warner reading the applicable paragraphs out loud to Musga.

          The guilty plea statements provided that Musga would plead guilty to murder and child

rape. The statements did not expressly state that any aggravating factors applied, but Musga did

plead guilty to the counts as charged in the information. And paragraph 6(g) of both statements,

concerning the State’s sentencing recommendation, stated “Open recommendation – State

seeking exceptional.” PRP App. B at 4, App. C at 5. Paragraph 6(h) of each document also

stated that the trial court had the authority to impose an exceptional sentence under certain listed

circumstances.

          Paragraph 11 of each statement required Musga to complete a written factual account of

the charged crimes. Warner wrote in the language before reviewing the statements with Musga.

The account in both statements admitted to the factual basis for each charge. The accounts also

included language to support the charged aggravating factors, stating that Musga’s actions were

deliberately cruel, that CC could not resist because of his age, and for the murder charge that

CC’s injuries substantially exceeded the bodily harm necessary to satisfy the elements of the




2
    N. Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


                                                  4
No. 46987-1-II


offense. After reviewing them, Musga initialed both accounts and signed both statements. He

then entered his guilty plea in a hearing before the superior court.

       At sentencing, the superior court noted that Musga had stipulated that there were

aggravating circumstances justifying a departure from the standard sentence ranges of 261 to 347

months for felony murder and 111 months to life for first degree child rape. Musga requested a

300 month sentence; the State recommended a sentence of 720 months. The court sentenced

Musga to concurrent exceptional sentences of 608 months for first degree felony murder and 258

months to life for first degree child rape.

Reference Hearing and Findings of Fact

       Musga did not directly appeal his sentence, but later filed this PRP. After an initial

review, we determined that Musga had established a prima facie showing that his attorneys

provided inadequate assistance of counsel on several issues. We then remanded for the superior

court to conduct a reference hearing.

       The superior court conducted a lengthy reference hearing during the period between

October 12 and December 7, 2016. Following the hearing, the superior court entered extensive

findings of fact. The court found:

       1. “[Musga] failed to prove by a preponderance of the evidence that trial counsel
       inadequately investigated his case and the State’s evidence against him under the
       specific circumstances of his case.” Clerk’s Papers (CP) at 35.

       2. “[Musga] failed to prove trial counsel failed to adequately advise him regarding
       pleading to first degree murder.” CP at 42.

       3. “Credible evidence adduced through Mr. Warner, Mr. Hall, the plea documents,
       and plea hearing establish Petitioner was adequately informed of the consequences
       of his pleas and that the facts admitted in his pleas empowered the trial court to
       impose an exceptional sentence.” CP at 47.



                                                  5
No. 46987-1-II


The court also found that Musga failed to prove prejudice from any of the three ineffective

assistance of counsel claims.

       We now review Musga’s PRP, as supplemented by the superior court’s findings of fact.

                                            ANALYSIS

A.     LEGAL PRINCIPLES

       1.    PRPs and Ineffective Assistance of Counsel

       To be entitled to collateral relief, a petitioner must establish either that (1) he was actually

and substantially prejudiced by a constitutional error or (2) there was a fundamental defect of a

nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re Pers.

Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). In the typical case, the

petitioner must make either showing by a preponderance of the evidence. In re Pers. Restraint of

Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).

       PRPs involving ineffective assistance of counsel involve a slightly different standard.

Ineffective assistance of counsel is a constitutional error, arising from the Sixth Amendment to

the United States Constitution and article I, section 22 of the Washington Constitution. State v.

Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective assistance of

counsel claim, the defendant must show both that (1) defense counsel’s representation was

deficient and (2) the deficient representation prejudiced the defendant. Id. at 32-33.

Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. Id. at 33. A petitioner alleging ineffective assistance of counsel

must overcome a strong presumption that counsel’s performance was reasonable. Id. Prejudice




                                                  6
No. 46987-1-II


occurs when there is a reasonable probability that, but for counsel’s errors, the outcome of the

proceedings would have been different. Id. at 34.

        The reasonable probability standard for prejudice in an ineffective assistance of counsel

claim is not precisely the same as the actual and substantial prejudice standard in a PRP. In re

Pers. Restraint of Crace, 174 Wn.2d 835, 842, 280 P.3d 1102 (2012). However, the Supreme

Court has held that a petitioner who presents a successful ineffective assistance of counsel claim

necessarily establishes actual and substantial prejudice for purposes of collateral relief. Id. at

846-47.

        2.   PRP Mechanics

        We have three options when reviewing a PRP: (1) dismiss the petition, (2) grant the

petition, or (3) transfer the petition to the trial court for either a full determination on the merits

or a reference hearing. Yates, 177 Wn.2d at 17. The threshold question for an alleged

constitutional violation is whether the petitioner has made a prima facie case that a violation

occurred and that it resulted in actual prejudice. Id. at 17-18. If a petitioner fails to make a

prima facie showing of actual prejudice, we will dismiss the claim. Id. at 17. If the petitioner

establishes that a constitutional violation and actual prejudice occurred, we will grant the

petition. Id. at 18. If a petitioner makes a prima facie showing but we cannot determine the

petition’s merits on the record, we will remand for a reference hearing. Id.

        To make a prima facie showing, the petitioner must present the evidence that is available

to support the factual allegations underlying the claim of unlawful constraint. Id. A petition

must state with particularity facts that, if proven, would entitle the petitioner to relief – bald

assertions and conclusory allegations are not enough. In re Pers. Restraint of Caldellis, 187



                                                    7
No. 46987-1-II


Wn.2d 127, 146, 385 P.3d 135 (2016). If the petitioner’s allegations are based on matters

outside the existing record, he must demonstrate that he has competent, admissible evidence

supporting the allegations. Yates, 177 Wn.2d at 18. If the evidence is based on knowledge in the

possession of others, the petitioner must present their affidavits, with admissible statements, or

other corroborative evidence. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488, 251

P.3d 884 (2010). Factual allegations must be based on more than speculation, conjecture, or

inadmissible hearsay. Id. at 489.

        3.    Review of Reference Hearing Findings

        In a reference hearing, the petitioner has the burden to prove a constitutional error and

actual prejudice by a preponderance of the evidence. In re Pers. Restraint of Davis, 152 Wn.2d

647, 679, 101 P.3d 1 (2004). A superior court’s factual findings made after conducting a

reference hearing will stand if they are supported by substantial evidence. In re Pers. Restraint

of Stenson, 174 Wn.2d 474, 488, 276 P.3d 286 (2012). Substantial evidence exists when the

record contains a sufficient quantity of evidence to persuade a fair-minded, rational person that

the finding is true. Davis, 152 Wn.2d at 679-80. Unchallenged findings are verities on appeal.

Id. at 679.

        A trial court’s conclusions regarding witness credibility cannot be reviewed on appeal,

even if the evidence is subject to other reasonable interpretations. Id. at 680.

B.      INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

        Musga argues that his defense counsel provided ineffective assistance of counsel because

his two defense attorneys failed to (1) review various discovery documents with him, (2) conduct

an adequate investigation of his case and the State’s evidence against him, (3) adequately advise



                                                  8
No. 46987-1-II


him regarding pleading guilty to first degree murder, and (4) inform him that when he pleaded

guilty he also stipulated to aggravating factors that could be used to impose an exceptional

upward sentence on both charges and that the trial court therefore had authority to impose an

exceptional upward sentence. Musga argues that because of these alleged deficiencies, we must

allow him to withdraw his guilty plea or remand his case for resentencing. We hold that Musga

has failed to demonstrate that his defense counsel provided ineffective assistance in any of these

areas.

         1.   Failure to Discuss Discovery Documents

         Musga argues that his defense counsel provided ineffective assistance of counsel by

failing to review certain discovery documents with him. We hold that Musga has not made a

prima facie showing on this issue.

         Musga submitted only his own declaration as evidence that his defense counsel failed to

show him relevant case discovery. Musga’s declaration states that his attorneys showed him

CC’s autopsy photographs, the 911 call transcript, and Laura Colley’s Facebook friends. The

declaration states that Musga’s attorneys failed to provide him with the police reports, witness

statements, or autopsy reports on the child victim. Musga states that had he been able to review

the discovery, he could have provided ideas to his attorney for investigations to assist with his

case.

         Even if we assume without deciding that the conduct of Musga’s attorneys was deficient,

we hold that Musga has failed to demonstrate prejudice on this ground. Although Musga argues

that he could have assisted his attorneys’ investigation, he does not demonstrate or even argue




                                                 9
No. 46987-1-II


that the outcome of his case would have been different. See Grier, 171 Wn.2d at 34.

Accordingly, we hold that Musga is not entitled to relief on this basis.

       2.   Failure to Conduct an Adequate Investigation

       Musga argues that his defense counsel provided ineffective assistance by failing to

conduct an adequate investigation into his case and the State’s evidence against him.

Specifically, Musga alleges three deficiencies, arguing that his attorneys should have (1)

consulted with a medical expert to evaluate CC’s medical reports and autopsy reports to

determine whether CC suffered injuries before March 29; (2) interviewed CC’s mother and

grandmother, as well as other members of the victim’s extended family, to investigate when

CC’s bruising occurred; and (3) interviewed other key witnesses, including first responders, the

medical examiner, key police officers, on-scene forensic personnel, interviewing officers, scene

residents, a resident who was present in Musga’s lobby, and other medical personnel, to further

test the State’s evidence. Musga argues that this deficient investigation prevented defense

counsel from advising him regarding his decision to plead guilty, such that he entered a guilty

plea that was not knowing, intelligent, and voluntary. We disagree.

            a.   Legal Principles

       A defense attorney’s failure to investigate, when combined with other deficiencies, can

amount to ineffective assistance of counsel. State v. A.N.J., 168 Wn.2d 91, 110, 225 P.3d 956

(2010). Counsel has a duty to conduct a reasonable investigation under prevailing professional

norms. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 252, 172 P.3d 335 (2007). This duty

includes making reasonable investigations or to making a reasonable decision rendering

particular investigations unnecessary. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 355, 325



                                                10
No. 46987-1-II


P.3d 142 (2014). An investigation must allow counsel to make informed decisions about

representing the defendant, for example by investigating reasonable lines of defense. Elmore,

162 Wn.2d at 253. However, “[t]he degree and extent of investigation required will vary

depending upon the issues and facts of each case.” A.N.J., 168 Wn.2d at 111. “In any

ineffectiveness claim, a particular decision not to investigate must be directly assessed for

reasonableness, giving great deference to counsel’s judgments.” Elmore, 162 Wn.2d at 252.

       The obligation to conduct a reasonable investigation relates to trial counsel’s obligation

to inform his or her client. Counsel has a duty to assist a defendant in evaluating a plea offer.

A.N.J., 168 Wn.2d at 111. This duty includes assisting the defendant in making an informed

decision about whether to plead guilty or to proceed to trial. Id. “[A]t the very least, counsel

must reasonably evaluate the evidence against the accused and the likelihood of a conviction if

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

not to plead guilty.” Id. at 111-12.

       Whether counsel’s failure to investigate prejudiced the petitioner depends on the

likelihood that the evidence would have led counsel to change his plea recommendation. In re

Pers. Restraint of Clements, 125 Wn. App. 634, 646, 106 P.3d 244 (2005). That assessment

depends on whether the evidence likely would have changed the outcome of a trial. Id. A bare

assertion that the petitioner would not have pleaded guilty but for the alleged deficiency is

insufficient. Elmore, 162 Wn.2d at 254.

            b.    Superior Court Finding of Adequate Investigation

       Here, the superior court entered a finding of fact that Musga “failed to prove by a

preponderance of the evidence that trial counsel inadequately investigated his case and the



                                                 11
No. 46987-1-II


State’s evidence against him under the specific circumstances of his case.” CP at 35. The

superior court specifically noted that the relevant circumstances included the timing of the

State’s offer early in the investigation period and the State’s notice that it planned to amend

Musga’s charges if he declined the offer. If substantial evidence supports the court’s finding,

Musga’s ineffective assistance of counsel claim based on an inadequate investigation necessarily

fails.

         The superior court based its finding on a lengthy list of investigatory activities that it

found Musga’s attorneys took before Musga entered his guilty plea. We review whether these

activities occurred for substantial evidence. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873,

16 P.3d 601 (2001). But the ultimate question of whether those activities constitute ineffective

assistance is a mixed question of law and fact that we decide de novo. Id. at 873-74.

         The superior court made several findings that Musga does not challenge. These include

findings that Musga’s attorneys (1) filed a discovery demand and persistently followed up on that

demand; (2) obtained records of CC’s pre-incident medical treatment; (3) gathered information

about Musga from Musga himself and from his mother and followed up on that information by

locating records from his prior drug treatment for the purpose of evaluating a mental health

defense; (4) independently contacted the state medical examiner’s office to obtain an autopsy

report for CC, intending to provide their own examiner with additional information that might

inform potential defenses; (5) investigated the initial 911 caller and determined that he knew

CC’s mother based on social media connections; and (6) retained a private investigator, who

prepared a timeline of events material to the State’s case.




                                                   12
No. 46987-1-II


        For a number of the court’s other findings, it is not entirely clear what Musga contests

and what he accepts. It appears that Musga does not contest that his attorneys (1) discussed with

a medical expert the expert’s conclusion about when CC’s injuries occurred; (2) identified that

Musga, while detained, had talked with another inmate and divulged information relevant to his

case that could be potentially damaging and discussed this with Musga; (3) reviewed Musga’s

case and relevant evidence with him for approximately 30 hours; and (4) delayed interviewing

any witnesses in order to collect as much evidence as possible before beginning the interview

process, resulting in no witness interviews occurring before Musga’s plea. We therefore treat

these findings as verities.

        Musga expressly contests three of the superior court’s findings. First, the superior court

found that Musga’s attorneys reviewed and discussed with him the State’s charging documents

before entering a plea. Musga argues that his trial counsel did not have the charging documents

available at his plea and did not explain that he was pleading guilty to aggravating factors or the

effect they would have on his sentence. However, Warner testified that he reviewed the State’s

charging information with Musga on at least two occasions – one occurred when Warner first

met Musga, the other when they discussed the plea bargain. Warner specifically testified that he

distinguished the base charge and aggravating factors, and noted how the alleged aggravating

factors would allow the court to impose an exceptional sentence. We hold that substantial

evidence supports the superior court’s finding.

        Second, the superior court found that Musga’s attorneys had informed him of the State’s

evidence against him and that they went over the substance of that evidence together. Musga

argues, without citation to the record, that his attorneys did not review “all or even most of the



                                                  13
No. 46987-1-II


discovery” with him. Suppl. Br. of Pet’r at 73. But Warner testified that he reviewed with

Musga the State’s evidence, which included the crime scene photographs and the nature of CC’s

injuries. Warner testified that he and Hall shared with Musga as much discovery as Musga was

comfortable with, omitting some photographs that Musga indicated he did not want to see. We

hold that substantial evidence supports the superior court’s finding.

          Third, the superior court found that the evidence placed Musga alone with CC when the

child’s injuries occurred. The court found that this evidence directed the investigation conducted

by Musga’s attorneys away from interviewing witnesses and towards reviewing medical

evidence. Musga disagrees with this finding, but he makes only an unsupported statement that it

is “simply incorrect.” Suppl. Br. of Pet’r at 72. This statement is insufficient. See In re Estates

of Palmer, 145 Wn. App. 249, 265, 187 P.3d 758 (2008) (requiring record support for factual

statements). In any event, in multiple conversations – both to police who arrived after CC’s

injuries occurred and in an interview at the police station – Musga provided a timeline of his

activities with CC from when CC’s mother left until when the police arrived. Musga stated at

that time that no one else had been with him and CC when CC’s injuries occurred. We hold that

substantial evidence supports the superior court’s finding.

               c.   Ineffective Assistance Analysis

          To demonstrate that his attorneys’ investigation was constitutionally ineffective, Musga

must show that the investigation was unreasonable under the circumstances. Elmore, 162 Wn.2d

at 252.

          The superior court found that Musga’s attorneys completed a significant number of

investigatory tasks in the period leading up to the State’s offer. His attorneys collected a



                                                  14
No. 46987-1-II


substantial amount of discovery and persistently followed up throughout the discovery process,

they retained a medical examiner and private investigator, they identified potential defenses, and

they spent significant time reviewing Musga’s case with him. The court further found that

Musga’s attorneys focused on certain aspects of the case that they thought would yield the best

results, specifically by targeting medical evidence instead of conducting interviews.

       Musga argues that his attorneys’ failure to conduct interviews prevented them from

understanding his case and providing adequate assistance. But he does not explain how, under

the circumstances, their decision to prioritize certain elements over others was deficient.

       Warner testified that they did not want to begin interviewing witnesses until they

compiled evidence and understood the case as fully as possible. Warner testified that this was a

strategic decision that would allow them to ask interview questions with more contextual

understanding as well as provide them with background that they could use to impeach or

corroborate answers. Having an adequate background understanding was especially important

because Warner believed he would have only one opportunity to interview each witness.

       The superior court found that “[c]ounsel credibly stated they were waiting to conduct

interviews until they had as much of the available information as possible to inform the

interviews in case they were not permitted multiple interviews before trial. That approach was

not proved deficient.” CP at 39. The trial court also found that Musga had not proved that the

failure to conduct witness interviews was deficient under the circumstances.

       In addition, it is uncontroverted that the State’s plea offer, coupled with a quick deadline

and a threat to amend Musga’s charges, cut short any further investigation. Based on their

shortened timeframe, Musga’s attorneys made a strategic decision about where to focus their



                                                 15
No. 46987-1-II


time. The superior court found that “[t]he strategy to postpone interviews was not made

deficient by the timing and deadline of the plea offer.” CP at 39.

       Warner articulated clear reasons for delaying interviews and focusing instead on other

aspects of the investigation. Defense counsel’s strategic, judgment-based decisions in that regard

are entitled to a strong presumption of validity. Elmore, 162 Wn.2d at 252. Further, the superior

court’s findings show that Warner and Hall had already begun compiling a case – gathering

information, identifying potential defenses, and retaining experts – before learning of the State’s

plea offer. That they did not have the opportunity to conduct any interviews does not mean their

investigation was inadequate. We therefore hold that substantial evidence supports the superior

court’s finding that defense counsel did not deficiently investigate Musga’s case.

       Because the superior court’s reference hearing findings are supported by substantial

evidence, we hold that Musga’s attorneys did not provide ineffective assistance regarding their

investigation of Musga’s case.

       3.   Failure to Adequately Advise Regarding Guilty Plea

       Musga argues that his defense counsel provided ineffective assistance by not

substantially assisting him in his decision to plead guilty. Musga specifically argues that his

attorneys did not review discovery with him, spent insufficient time reviewing the case with him,

placed undue pressure on him by informing him that if he did not plead guilty the State would

amend his charge to aggravated murder and possibly seek the death penalty, and failed to advise

him that the State’s ability to prove Musga committed aggravated murder was weak at best. We

disagree.




                                                16
No. 46987-1-II


              a.   Legal Principles

       Due process requires that a guilty plea be knowing, voluntary, and intelligent. In re Pers.

Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A guilty plea is involuntary and

invalid if the record shows that the defendant was coerced into accepting it. State v. Williams,

117 Wn. App. 390, 398, 71 P.3d 686 (2003).

       The right to effective assistance of counsel applies in the plea bargaining context. State

v. Estes, No. 93143-7, slip op. at 15 (Wash. June 8, 2017), http://www.courts.wa.gov/opinions/

pdf/931437.pdf. Effective assistance includes assisting the defendant in making an informed

decision to accept or reject a plea offer. Id. Counsel therefore must communicate plea offers,

discuss plea negotiations, and review the strengths and weaknesses of the defendant’s case. State

v. Edwards, 171 Wn. App. 379, 394, 294 P.3d 708 (2012). This process is intended to inform the

defendant of what to expect and allow him to make an informed decision on whether to plead

guilty. Id.

       To demonstrate ineffective assistance, the defendant must therefore show that counsel

failed to substantially assist him in deciding whether to plead guilty. In re Pers. Restraint of

Cross, 180 Wn.2d 664, 705-06, 327 P.3d 660 (2014). He must also show that, but for counsel’s

failure to properly advise him, he would not have pleaded guilty. Id.

              b.   Superior Court Finding of Adequate Advice

       The superior court entered a finding of fact that Musga “failed to prove trial counsel

failed to adequately advise him regarding pleading guilty to first degree murder.” CP at 42. If

substantial evidence supports the court’s finding, Musga’s ineffective assistance of counsel claim

based on inadequate advice regarding pleading guilty necessarily fails.



                                                 17
No. 46987-1-II


       The superior court based its finding both on the testimony of Musga’s attorneys and on

Musga’s own representations at his plea hearing. The court found that defense counsel provided

substantial assistance and the information Musga needed to make an informed plea decision in

three ways.

       First, the court found that defense counsel explained the charges, aggravating factors, and

the elements the State had to prove to convict Musga. Warner testified that he reviewed the

State’s charging information with Musga on at least two occasions. When Warner first met

Musga, their review included going over the State’s charging document. Warner distinguished

the base charge and aggravating factors, noting how the aggravators would allow the court to

impose an exceptional sentence. The second occasion came when they reviewed the plea offer,

at which point Warner again explained to Musga the difference between the base offense and

aggravating factors. Warner specifically stated that even though the charges were associated

with a standard range, an exceptional sentence could allow the court to impose a sentence above

that range. We hold that substantial evidence supports the superior court’s finding.

       Second, the court found that defense counsel explained the evidence against Musga and

the strength of his case. We discussed above what Musga’s attorneys shared with him about the

strength of his case. Warner testified that he reviewed with Musga as much discovery as Musga

was comfortable with. This review included the State’s evidence, which included the crime

scene photographs and the nature of CC’s injuries. Further, they discussed statements that

Musga had made to another inmate about his previous interactions with CC. We hold that

substantial evidence supports the superior court’s finding.




                                                18
No. 46987-1-II


       Third, the court found that defense counsel explained the plea documents and the impact

of his plea. Warner testified that he reviewed with Musga the details of Musga’s plea documents

and the effect a plea would have. At their initial meeting, Warner told Musga what the State had

to prove and explained that the State’s burden was to prove each element beyond a reasonable

doubt. They also discussed that the case could be resolved through a trial or by a plea. When

Musga decided to plead guilty, Warner testified that he went through with Musga each

applicable paragraph of the plea statements, including Musga’s rights and the consequences of

Musga’s plea. Part of those statements was a factual account, which Warner explained included

language that would allow the court to impose an exceptional sentence. Warner also told Musga

that the plea could result in an exceptional upward sentence. We hold that substantial evidence

supports the superior court’s finding.

       Warner’s testimony provides substantial evidence to support a finding that he and Hall

adequately advised Musga about pleading guilty. Further supporting the superior court’s

conclusion, Musga confirmed at his plea hearing that he reviewed the plea with his attorneys and

that he understood the effect it would have. The court concluded that Warner’s testimony,

combined with Musga’s acknowledgement of his understanding, credibly established that Musga

understood the impact of his guilty plea.

       The superior court also found that Musga’s reference hearing testimony and arguments

were not credible. Musga testified that he lacked sufficient time to consider the State’s plea

offer, that he did not understand his plea statements, that his attorneys failed to negotiate to

obtain a better plea deal, and that he felt coerced into pleading guilty. In several instances,

Musga’s testimony directly conflicted with Warner’s. For example, Musga testified that he did



                                                  19
No. 46987-1-II


not receive any indication of a plea offer until August 29, one day before the offer expired. The

superior court expressly discounted as not credible this testimony and Musga’s testimony that he

did not understand his plea statement. We cannot review and must accept the superior court’s

conclusion on Musga’s credibility. Davis, 152 Wn.2d at 680.

       The superior court similarly found that Musga’s argument that he was coerced into

pleading guilty was not credible. This finding is supported by substantial evidence, primarily

through testimony by Musga’s attorneys and corroborated by Musga’s mother. Warner stated

that it was possible the State could successfully amend Musga’s charges, but he testified that he

did not see any evidence of premeditation, an element of aggravated murder. Further, Hall

testified that he did not believe the State would pursue the death penalty, which he would have

relayed to Musga. Testimony at the reference hearing showed that Warner and Hall told Musga

that if the State amended Musga’s charges a death sentence was a possible but unlikely outcome.

            c.   Ineffective Assistance Analysis

       To demonstrate that he received ineffective assistance, Musga must show that his

attorneys failed to actually and substantially assist him when deciding whether to plead guilty.

Edwards, 171 Wn. App. at 394. An attorney substantially assists his client by empowering the

client to make an informed decision. Id.

       The superior court found that Musga’s attorneys provided sufficient advice to Musga.

This advice included informing Musga of the charged offenses and aggravating factors,

reviewing with Musga the strength of his case, and walking Musga through the effect of a guilty

plea. These findings are supported by substantial evidence and show that Musga’s attorneys

provided effective assistance.



                                                20
No. 46987-1-II


       Because the superior court’s reference hearing findings are supported by substantial

evidence, we hold that Musga’s attorneys substantially assisted him in his decision to plead

guilty and therefore did not provide ineffective assistance.

       4.   Failure to Explain Stipulation to Aggravating Factors

       Musga argues that his guilty plea was involuntary because his defense counsel failed to

explain to him the plea’s direct consequences. Specifically, he argues that he was not informed

that his guilty plea included stipulated facts that would allow the superior court to impose an

exceptional sentence above the standard range.3 We disagree.

            a.   Legal Principles

       As we addressed above, a defendant receives ineffective assistance when his counsel fails

to assist him in deciding whether to plead guilty. Estes, No. 93143-7, slip op. at 15. The

attorney’s obligation to substantially assist includes a requirement that, before the defendant

accepts a plea, the attorney inform him of the plea’s direct consequences. A.N.J., 168 Wn.2d at

113. One direct consequence is the maximum sentence to which a defendant will be exposed.

State v. Knotek, 136 Wn. App. 412, 423, 149 P.3d 676 (2006). A plea based on misinformation

of sentencing consequences is not entered knowingly and is invalid. Id. The petitioner must

show that, but for counsel’s failure, he would not have pleaded guilty. Cross, 180 Wn.2d at 705-

06.




3
  Musga’s PRP vaguely suggests that he did not stipulate to facts supporting the aggravating
factors. However, because Musga presents no argument on this issue, we do not consider it.


                                                 21
No. 46987-1-II


            b.      Superior Court Finding Regarding Plea Consequences

       The superior court entered a finding of fact that Musga was “adequately informed of the

consequences of his pleas and that the facts admitted in his pleas empowered the trial court to

impose an exceptional sentence.” CP at 47. If substantial evidence supports the court’s finding,

Musga’s ineffective assistance of counsel claim based on an inadequate information regarding

plea consequences necessarily fails.

       Musga’s supplemental brief does not have a section heading for this question and he does

not expressly challenge this finding, which would typically result in it becoming a verity on

appeal. Davis, 152 Wn.2d at 679. However, the last few pages of the brief seem to address this

issue. Because he makes a vague argument that he lacked an adequate understanding of his

plea’s consequences, and because he challenges the superior court’s findings on whether he was

adequately advised about his plea, we will consider whether the record supports the superior

court’s findings.

       The superior court made two findings relevant to whether Musga received sufficient

information from his defense attorneys. First, the court found that Musga’s attorneys informed

him of the aggravating factors filed by the State. Warner testified that he reviewed the State’s

charging information with Musga at their first meeting. The information itself distinguished the

charged crimes from the alleged aggravating factors. As discussed above, Warner testified that

on multiple occasions he reviewed with Musga the difference between the charged base offenses

and the aggravating factors and how those factors would allow the court to impose an

exceptional sentence above the standard range. We hold that substantial evidence supports the

superior court’s finding.



                                                22
No. 46987-1-II


       Second, the court found that Musga’s attorneys informed him that by acknowledging the

facts of the crimes as listed in paragraph 11 of the plea statements, he would be admitting to facts

sufficient for the court to impose an exceptional sentence. At the reference hearing, Warner

testified that he explained to Musga that the factual account included language that would allow

the court to impose an exceptional sentence:

       I believe I said here are the facts that the judge could rely upon if the court were
       inclined to impose an exceptional sentence. The State is going to ask for an
       exceptional sentence. We are going to ask for a standard range sentence, but the
       decision will ultimately be the court’s.

Report of Proceedings (RP) at 292. Warner’s testimony matches an interrogatory answer he sent

to the State before the reference hearing, which stated that Warner told Musga that his admission

of what happened, in itself, would be sufficient for the State to seek an exceptional sentence.

       In addition, two independent sources confirmed Musga’s understanding. One was a

presentencing investigator, who testified about his interview with Musga. The investigator

testified that Musga had stated that “he [Musga] thought the sentence the prosecutor was

proposing was long and it was exceptional.” RP at 1507. Musga told him that the prosecutors

“were asking for between about 40 and 60 years.” RP at 1507. The second was Musga’s

psychiatric evaluation, which included a comment by Musga that “they’re trying to give me 60

years.” PRP Appendix dd. We hold that substantial evidence supports the superior court’s

finding.

            c.   Ineffective Assistance Analysis

       To demonstrate that he received ineffective assistance on this issue, Musga must

demonstrate that his attorneys did not substantially assist him in that they did not inform him of

the direct consequences of his plea. A.N.J., 168 Wn.2d at 113.


                                                23
No. 46987-1-II


        The superior court found that Musga’s attorneys informed him of the possibility of an

exceptional sentence. Warner testified that he reviewed with Musga the State’s charging

information, which distinguished the base offense from any aggravating factors, on multiple

occasions. Warner further testified that he explained how the aggravating factors could allow the

superior court to impose an exceptional upward sentence when reviewing both the charging

information and Musga’s plea statement. Finally, Warner testified that he told Musga that the

plea statement’s factual account admitted to facts that satisfied the aggravating factors. This

testimony establishes that Musga knew the contents of his plea and the direct consequences of

that plea.

        Further, Musga confirmed that he understood the consequences of his plea to two third

parties. During his pre-sentencing interview and in a psychological evaluation, Musga stated

that he thought the State would ask for a sentence far above the standard range.

        Because the superior court’s reference hearing findings are supported by substantial

evidence, we hold that Musga’s attorneys did not provide ineffective assistance by failing to

inform him of the direct consequences of his plea.

        5.   Remaining Ineffective Assistance Arguments

        In one sentence in his PRP, Musga argues that his defense counsel’s performance was

deficient because they failed to prepare Musga for the mandatory presentence interview, required

Musga to undergo a psychological examination without notice or explanation, shared the

unfavorable results of the psychological examination with the sentencing court, and failed to

provide Musga with an opportunity to read the presentence report prior to sentencing. However,




                                                24
No. 46987-1-II


Musga presents no additional argument or citation to authority on these claims. Therefore, we

do not address these claims.

C.     FAILURE TO INFORM OF RIGHT TO DIRECT APPEAL

       Musga argues that we should reinstate his right to a direct appeal because the superior

court failed to advise him of his right to appeal his exceptional sentence. The State argues that

Musga was properly advised. We agree with the State.

       Article I, section 22 of the Washington Constitution guarantees criminal defendants the

right to appeal. State v. Cater, 186 Wn. App. 384, 392, 345 P.3d 843 (2015). It is the State’s

burden to demonstrate that the defendant understood his right to appeal and chose not to exercise

it. Id. The State must make an affirmative showing that the defendant understood and chose not

to exercise his right to appeal. Id. Circumstances must reasonably allow for an inference that

the defendant knowingly relinquished his right to appeal. Id.

       Defendants who plead guilty retain a limited right to appeal certain collateral questions.

Id. Defendants who plead guilty also retain the right to appeal the imposition of an exceptional

sentence. See RCW 9.94A.585(2).

       Here, evidence produced by the State establishes that Musga knowingly relinquished his

right to a direct appeal. On November 21, 2013, Musga, his attorney, and the superior court

signed a document titled, “Advice of Right to Appeal.” Resp’t App. Z. This document informed

Musga that he had “a right to appeal any sentence that is outside the standard sentence range”

and “[u]nless a notice of appeal is filed with the clerk of the court within thirty (30) days from

the entry of judgment . . . you have irrevocably waived your right of appeal.” Resp’t App. Z.

Musga’s signature demonstrates his awareness of his limited right to appeal.



                                                 25
No. 46987-1-II


        By failing to file an appeal within 30 days after the superior court entered judgment,

Musga waived his right to directly appeal his exceptional sentence. Accordingly, we reject this

argument.

                                          CONCLUSION

        We dismiss Musga’s PRP.

        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.



                                                      MAXA, A.C.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




                                                 26
