 /Fnn                                                          This opinion was filed for record
/       IN CLERKS OFFICE
gjjpissic COL!?.T. STATE OF VWSHWSTOtl

     PA" MAY 1 0 2018
                                                             at ^ CVAo-^ onfC\Cti^n^J/)i"Sl
                             I CO-
          c«<eFjusrict             j
                                                                   SUSAN L. CARLSON
                                                                    Pf
          IN THE SUPREME COURT OF THE STATE




       In the Matter of the Personal Restraint of                      NO. 9 4 8 6 9-1


       ROBERT EDWARD JAMES,
                                                                         EN BANC
                                       Petitioner.




                                                                         MAY 1 0 2018
                                                              Filed:


                     PER CURIAM—^Robert James timely filed a personal restraint petition with

     supporting documents. The acting chiefjudge of Division Two ofthe Court of Appeals
     dismissed the petition as frivolous, and this court's commissioner denied James's
     motion for discretionary review. Based on the evidence included in James's pleadings
     and the State's subsequent statements, we grant James's motion to modify the
     commissioner's ruling, grant discretionary review, and remand to the Court of Appeals
     for further consideration.

                                                     FACTS

                      A jury convicted James of second degree rape.' At trial, the State presented
     evidence that a swab fi-om S.C.'s neck contained a mixed DNA (deoxyribonucleic acid)


              'The Court of Appeals addressed the facts in detail on James's direct appeal. State
      V. James, No. 44906-4-II(Wash. Ct. App. Mar. 31, 2015)(unpublished).
No.94869-1                                                                          Page 2


profile consistent with James and S.C. All of the male DNA located on S.C, matched
James. The anal swab obtained from S.C. contained P30, a protein commonly found in
semen, but no DNA was recovered from the swab. James's defense was general denial

based on the theory that while he engaged in consensual nonintercourse sexual activity
with S.C,, she was raped by someone else after he left. In the defense trial brief, defense
counsel accurately stated that James's DNA was found on both sides of S.C.'s neck, but
in a possible reference to the P30 found in the anal swab, counsel erroneously added

that an "unidentified male's DNA" was found elsewhere on her body.

           The State's DNA expert testified on direct examination that the anal swabs

were tested for P30, a protein used to indicate the presence ofsemen. The expert further

explained that the P30 test cannot identify the donor ofthe semen. The P30 test results
were positive for the presence of semen, but the anal swabs contained no male DNA.

Yet, after this explanation, James's defense counsel asked if the expert was able to

retrieve DNA from the anal swab, and why she was unable to do so. When the expert
again explained that a presumptive test for semen does not always yield DNA,defense

counsel responded by incorrectly implying that the expert had concluded there was

more than one male DNA profile on the victim:


      [Defense Counsel:] Okay, now, you found another deduced male
      profile from the right neck sample?

      [Expert:] The mixture is consistent with [the victim] and Mr. James, with
      the assumption that [the victim] is present on her own neck swab. The
      types of the STRs [(short tandem repeats)] that are present do not belong
      to her and can be subtracted out into a deduced male profile.



http://www.courts.wa.gOv/opinions/pdf7D2%2044906-4-II%20%20Unpublished%200pini
on.pdf.
No.94869-1                                                                         Page 3

Verbatim Report of Proceedings (Mar. 27, 2013) at 83. Then, in response,

defense counsel again incorrectly indicated that there was more than one male

DNA profile on victim:

      [Defense Counsel:] Okay, and that would be something other than the
       profile of Mr. James?

      [Expert:] No,in fact, those types do match Mr. James....

Id. at 84.

             The jury found him guilty. As noted above, James, acting pro se, timely filed
a personal restraint petition in the Court of Appeals on October 20, 2015, asserting
several grounds for relief. James was permitted to file an overlength brief with several
documents attached, including his personal declaration, a Washington State Patrol
crime laboratory DNA report, and letters he wrote to defense counsel and the prosecutor
that included repeated requests for a copy of an allegedly favorable plea offer.
             The acting chiefjudge ultimately dismissed the personal restraint petition as
frivolous, explaining his ruling as to each claim. James timely moved for this court's
discretionary review. In denying review, the commissioner indicated that James failed
to provide adequate evidence to support the claim that counsel was ineffective for
failing to properly investigate and understand the DNA evidence. James moved to
modify the commissioner's ruling on various grounds, and the court directed the State
to respond to the motion. For reasons explained below, we grant the motion to modify,
grant the motion for discretionary review, and remand to the Court of Appeals for
further proceedings.
No.94869-1                                                                          Page 4


                                       ANALYSIS

           In considering a personal restraint petition, the chief or acting chiefjudge of
the Court of Appeals first considers the petition without oral argument. If the issues
presented are "frivolous," the chief judge will dismiss the petition. RAP 16.11(b).
"Frivolous" in this context means that the petition "fails to present an arguable basis

for ... relief... in law or in fact, given the constraints ofthe personal restraint petition

vehicle." In re Pers. Restraint ofKhan, 184 Wn.2d 679, 686-87, 363 P.3d 577(2015)
(plurality opinion); see also In re Pers. Restraint ofCaldellis, 187 Wn.2d 127,135,385
P.3d 135 (2016). "If the petition is not frivolous and can be determined solely on the
record, the Chief Judge will refer the petition to a panel ofjudges for determination on

the merits." RAP 16.11(b).

           The acting chiefjudge likely was correct in determining that the majority of

James's claims for relief are frivolous, but James's ineffective assistance of counsel

claim based on counsel's failure to understand the DNA evidence may not be frivolous,

and it is not clear that the evidence presented and the State's statements regarding a plea

offer were fully considered below. Principles of effective assistance of counsel require

counsel to "'assist[] the defendant in making an informed decision as to whether to

plead guilty or to proceed to trial.'" State v. Estes, 188 Wn.2d 450,464, 395 P.3d 1045

(2017) (quoting State v. A.N.J, 168 Wn.2d 91, 111, 225 P.3d 956 (2010)). At a

minimum,this includes '"reasonably evaluat[ing] the evidence against the accused and

the likelihood of a conviction if the case proceeds to trial.'" Id. (quoting A.N.J, 168

Wn.2d at 111-12).

           James contends that he has provided sufficient evidence that his counsel

misunderstood the State's DNA evidence and that this led him to reject a highly
No.94869-1                                                                          Pages


favorable plea offer. The State has filed a response and appears to acknowledge that
James rejected a plea offer. Suppl. Resp. to Pers. Restraint Pet. at 3(James"now regrets
his decision to take his case to trial."). James asserts that his attorney incorrectly told
him there was an unidentified male's DNA found on the victim—^DNA that did not

match James and could be matched to someone else; essentially, that the DNA evidence

would support a defense theory that someone else could have committed the crime.
Thus, James's documentary evidence, combined with the State's apparent
acknowledgement that there was a plea offer, provides sufficient factual basis for more
detailed consideration by the Court of Appeals as to James's claim that defense counsel
was ineffective in misinterpreting the DNA report, including consideration of whether
further factual development is justified by way of a reference hearing or whether to
request the State to admit or deny specific factual allegations. See RAP 16.9(b);
RAP 16.11(b).

           The commissioner's ruling is modified, discretionary review is granted, and

the matter is remanded to the Court of Appeals for further proceedings on James's
personal restraint petition.^




       ^ James's motion to sanction the State and his request for appointment ofcounsel are
denied, in light ofthis ruling, as moot.
