                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          May 12, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 In the Matter of the                                               No. 51741-8-II
 Personal Restraint of

 LIA YERA TRICOMO,

                               Petitioner.
                                                                PUBLISHED OPINION



       CRUSER, J. — Lia Yera Tricomo seeks relief from her convictions and sentence for second

degree murder, three counts of second degree assault, and second degree taking a motor vehicle

without the owner’s permission. Tricomo filed a timely pro se personal restraint petition (PRP) in

which she claims that her convictions violate double jeopardy, that the trial court erred in failing

to consider the effects of the drug Paxil at sentencing, that she received ineffective assistance of

counsel at the plea stage, and that there was prosecutorial misconduct.

       After the State responded to her pro se PRP, Tricomo obtained counsel who filed a

supplemental PRP arguing, for the first time, that Tricomo’s trial counsel performed deficiently

when he failed to produce an appropriate expert at sentencing to offer an opinion on the effects of

Paxil and that Tricomo was prejudiced by this deficient performance.
No. 51741-8-II


       With respect to her original petition, we decline to address Tricomo’s double jeopardy

claim because it was previously raised and resolved on direct appeal, and she has not shown that

the interests of justice require relitigation of this claim. We address the merits of Tricomo’s claim

that the trial court erred in declining to consider the effects of Paxil at sentencing and hold that

Tricomo has not demonstrated that the trial court’s decision constituted a fundamental defect that

resulted in a complete miscarriage of justice. We also consider the merits of Tricomo’s ineffective

assistance of counsel and prosecutorial misconduct claims and conclude that Tricomo was not

deprived of effective assistance of counsel and that the prosecutor did not commit misconduct.

Accordingly, we deny her petition.

       With respect to her supplemental petition, we hold that Tricomo’s ineffective assistance of

counsel claim regarding her counsel’s failure to retain an appropriate expert on the effects of Paxil

is untimely under RCW 10.73.090(1). We are not persuaded that this new ineffective assistance

of counsel claim is “part and parcel,” and therefore timely, to Tricomo’s pro se claim that the trial

court erred when it declined to consider one expert’s opinion on the effects of Paxil or to her other

timely raised claim of ineffective assistance of counsel at plea bargaining. Nor do we otherwise

possess the inherent authority to extend the statutory time-bar. Therefore, we decline to address

this new claim, raised for the first time in the supplemental petition.

                                              FACTS

                                          I. BACKGROUND

       In late March 2013, Tricomo attempted suicide and was admitted to a hospital. As part of

her treatment, her doctor prescribed her Paxil, an antidepressant.        At a follow-up medical




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No. 51741-8-II


appointment on April 3, her Paxil prescription was renewed. She saw her therapist the next day,

who encouraged her to stay on her antidepressants.

       On April 25, Tricomo saw her therapist again who noted,

       Discussed and processed her ambivalence about the medication she is on. Looked
       at what she identifies as the root cause of her anger; She is angry that she is alive.
       She does not plan to harm herself, and in fact, talked about ways she used to inflict
       pain on herself. She does not want to do that anymore and does not want to take
       her life. However, she still in [sic] not happy about being alive.
       ....
       [Tricomo] does not like the way the medication makes her feel even though she
       knows she feels calmer and happier. She expressed confusion about the experience
       of being happier. It is uncomfortable and unfamiliar. It seems to also take away
       her energy for acting out in anger.

Suppl. Pet., Ex. 11 at 15.

       On April 29, Tricomo brought some of her belongings to the home of her former counselor,

John Alkins, to move in with him. Tricomo and Alkins drank vodka together. They had a sexual

encounter in his home. During this sexual encounter, Tricomo attempted to tie him up with a rope,

but he stated he did not like it, so she untied him. After untying Alkins, Tricomo grabbed a razor

blade knife she had hidden in the bedroom, and she slit his throat approximately six times. Alkins

walked around his house for several hours trying to stop the bleeding. Tricomo followed him

throughout the house to ensure he would not leave. There was a struggle for the razor blade knife

at the front door, and Alkins’s wrist was cut during this struggle. Alkins then went back upstairs.

Tricomo strangled Alkins with an extension cord, killing him.

       The next day, Tricomo was arrested, and she confessed to the police. During her interview

with the police, Tricomo mentioned the negative effect of her medication. Later, when Tricomo

was in jail prior to trial, a psychiatric note said, “Paxil, made her want to kill people, had horrible

withdrawal,” and the Paxil was discontinued. Suppl. Pet., Ex. 14 at 146.

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No. 51741-8-II


                                         II. GUILTY PLEA

       The State charged Tricomo by amended information with second degree murder, three

counts of second degree assault, and second degree taking a motor vehicle without the owner’s

permission.1 The three counts of second degree assault were based on Tricomo’s use of a razor

blade knife to inflict neck wounds, use of a razor blade knife to inflict facial wounds, and use of a

razor blade knife to inflict hand wounds. Tricomo pleaded guilty to the amended information.

       For the second degree murder count, the parties agreed on a standard range sentence of 257

to 357 months. The plea agreement stated that while the State was going to recommend 357

months on the second degree murder count, the “[d]efense is free to argue for a lesser sentence,”

and the agreement recognized that the trial court could impose an exceptional sentence below the

standard range. Clerk’s Papers (CP) at 30. The State’s sentencing memorandum provided,

“Pursuant to plea agreement, Defendant may argue for no less than 257 months prison which is

the low end of the standard range.” Id. at 128.

       During the plea colloquy, when discussing that the State would recommend 357 months,

the court addressed Tricomo and said, “And you understand that you are not agreeing that that is

what the court should order and that, in fact, [defense counsel] will be able to argue that the court

should impose a lesser sentence on your behalf.” Verbatim Report of Proceedings (VRP) (Nov.

6, 2014) at 8. Tricomo confirmed that she understood the parameters of her plea agreement as

explained by the trial court.




1
 The State originally charged Tricomo with first degree attempted murder and first degree murder,
but the State amended the information on November 6, 2014 as part of the plea agreement.


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No. 51741-8-II


                                         III. SENTENCING

         Before the sentencing hearing, both Tricomo and the State filed sentencing briefs. In her

brief, Tricomo asked the court to consider expert Dhyana Fernandez’s mitigation report and the

reports of Dr. David Dixon and Dr. Delton Young. All three experts discussed the effects that the

use and withdrawal from Paxil may have had on Tricomo’s ability to form intent at the time of the

crime.

         Dixon, the defense expert, and Young, the State’s expert, reached contradictory

conclusions regarding Paxil’s effects on Tricomo’s mental state. Prior to pleading guilty, Tricomo

was evaluated for diminished capacity by Dixon, a psychologist. Dixon discussed Paxil in his

report and concluded, “Use of and withdrawal from Paxil at the time of the alleged crime may

have diminished her ability to form intent, a requisite mental state. Paxil withdrawal exacerbated

her mood disorder into a manic state with psychosis.” CP at 78.

         The State’s expert, Young, also conducted a forensic psychological evaluation.         He

disagreed with Dixon about Paxil stating, “[T]here was no withdrawal: she was taking the

medication every day (including on April 29th) as prescribed. It is possible that the medication

generated aversive side effects (e.g., feeling ‘nothing’); but it is more likely that the psychotic

symptoms stemmed from alcohol abuse in a psychologically vulnerable individual.” Id. at 94.

         Fernandez wrote a mitigation report for sentencing that included a section on Paxil.

Fernandez cited to several peer reviewed journal articles and articles from web-based sources, but

the report contained no analysis. The State objected to Fernandez’s report because it did not

believe Fernandez was qualified to opine about the effects of Paxil.




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No. 51741-8-II


       At sentencing, the court said it would not consider the section on Paxil in Fernandez’s

report. The court reasoned that it did not “find that [Fernandez] has any expertise in that particular

area and she basically only sets forth a number of articles suggesting that they may have some

relevance.” VRP (Jan. 28, 2015) at 39. However, the trial court did consider the expert reports

from Young and Dixon, and it noted that “the doctors reference Paxil, both doctors, and the adverse

side effects of this medication.” Id. at 77.

       The State asked the court to sentence Tricomo to 357 months and defense counsel asked

the court to sentence Tricomo to 257 months. The court imposed the top of the standard range—

357 months—for the murder conviction, with the other counts to run concurrently.

                                    IV. APPEAL AND MANDATE

       Tricomo appealed her convictions and sentence, arguing that her convictions violated

double jeopardy, that her guilty plea was not voluntary, and that the trial court erred in refusing to

consider the portion of Fernandez’s report regarding Paxil. State v. Tricomo, No. 47238-4-II, slip

op. at 1 (Wash. Ct. App. Apr. 26, 2016) (unpublished) http://www.courts.wa.gov/opinions/

pdf/47238-4.16.cor.pdf. We affirmed her convictions and sentence. Tricomo, slip op. at 1. The

mandate issued on January 5, 2017.

                                 V. PERSONAL RESTRAINT PETITION

       On January 2, 2018, Tricomo filed a timely pro se PRP arguing double jeopardy, ineffective

assistance of counsel and prosecutorial misconduct at the plea stage, and trial court error for failure

to consider the effects of Paxil on her mental state in rendering its sentencing decision. The State

responded to Tricomo’s petition.




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No. 51741-8-II


       Tricomo subsequently obtained counsel who filed a supplemental PRP and reply on

December 31, 2018. In the supplemental PRP, Tricomo raised the new claim that she was deprived

of effective assistance of counsel because trial counsel failed to obtain an appropriate expert on

the effects of Paxil. She argued that due to her counsel’s failure to obtain a qualified expert, the

trial court never received accurate information about Paxil’s effects on her mental state, causing

the court to sentence her to the high end of the standard range. The supplemental PRP also

contained Tricomo’s reply in support of her timely raised argument that the trial court erred in

declining to consider the effects of Paxil at sentencing.

       A commissioner of this court accepted the supplemental petition for filing and ruled that

we would decide whether to review the untimely claim when we address the merits of the timely

filed pro se PRP. Ruling on Mot. To File Am. Pet., In re Personal Restraint Petition of Tricomo,

No. 51741-8 (Wash. Ct. App. Jan. 4, 2019).

                                           DISCUSSION

                                       I. LEGAL PRINCIPLES

       A petitioner may seek relief through a PRP when she believes she is under unlawful

restraint. RAP 16.4(a)-(c). To obtain collateral relief through a PRP, the petitioner must

demonstrate both error and prejudice. In re Pers. Restraint of Sandoval, 189 Wn.2d 811, 821, 408

P.3d 675 (2018). If the error was of constitutional magnitude, the petitioner must show actual and

substantial prejudice, and if the error was not of constitutional magnitude, the petitioner must

demonstrate that the error “represents a ‘fundamental defect . . . that inherently resulted in a

complete miscarriage of justice.’” Id. (alteration in original) (quoting In re Pers. Restraint of

Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013)). “Relief by way of a collateral challenge to a


                                                  7
No. 51741-8-II


conviction is extraordinary, and the petitioner must meet a high standard before this court will

disturb an otherwise settled judgment.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267

P.3d 324 (2011).

       A PRP must be timely filed within one year after the judgment becomes final “if the

judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.”

RCW 10.73.090(1). A PRP filed more than one year after a judgment and sentence has become

final “must assert solely grounds for relief exempt from the one-year limit under RCW 10.73.100.”

In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 333, 422 P.3d 444 (2018).

       In addition, “[a]s a general rule, ‘collateral attack by [PRP] on a criminal conviction and

sentence should not simply be a reiteration of issues finally resolved at trial and direct review, but

rather should raise new points of fact and law that were not or could not have been raised in the

principal action, to the prejudice of the defendant.’” In re Pers. Restraint of Davis, 152 Wn.2d

647, 670-71, 101 P.3d 1 (2004) (footnote omitted) (quoting In re Pers. Restraint of Gentry, 137

Wn.2d 378, 388-89, 972 P.2d 1250 (1999)). A petitioner is prohibited from relitigating an issue

that was raised and rejected on direct appeal unless required in the interests of justice. Id. at 671.

                                            II. ANALYSIS

A. ORIGINAL PERSONAL RESTRAINT PETITION

       1.      DOUBLE JEOPARDY

       Tricomo argues that her multiple assault convictions violate double jeopardy because the

State failed to show separate courses of conduct for sentencing purposes. Tricomo raised this same

issue in her direct appeal. Tricomo, slip op. at 1. Tricomo does not provide any additional facts




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No. 51741-8-II


or analysis to demonstrate that the interests of justice require relitigation of this issue. See Gentry,

137 Wn.2d at 388. Therefore, we decline to consider it.

       2.      EVIDENCE AT SENTENCING

       Tricomo asserts that the trial court erred because it should have considered mitigating

evidence regarding Paxil’s effect on her mental state. Specifically, Tricomo argues that the

sentencing court erred in not considering the portion of Fernandez’s report that discussed the

effects of Paxil. We disagree.

       Tricomo raised this same claim in her direct appeal—“that the trial court erred by not

considering the experts’ opinions about the effects of Tricomo’s medications.” Tricomo, slip op.

at 11. We did not consider this argument because we concluded that Tricomo failed “to provide

any argument as to how the trial court erred.” Id. “An issue is considered raised and rejected on

direct appeal if the same ground presented in the petition was determined adversely to the

petitioner on appeal and the prior determination was on the merits.” Davis, 152 Wn.2d at 671

n.14; In re Pers. Restraint of Taylor, 105 Wn.2d 683, 687, 717 P.2d 755 (1986). Because we did

not previously address this argument on the merits, we reach the merits now.

       As a general matter, a standard range sentence is not reviewable unless the trial court

“failed to comply with procedural requirements of the [Sentencing Reform Act of 1981, ch. 9.94A

RCW,] or constitutional requirements.” State v. Osman, 157 Wn.2d 474, 482, 139 P.3d 334

(2006); RCW 9.94A.585(1). Therefore, we will reverse a standard range sentence only if the

process by which the trial court arrived at that sentence was defective, as evidenced by “‘a clear

abuse of discretion or misapplication of the law.’” State v. Blair, 191 Wn.2d 155, 159, 421 P.3d

937 (2018) (quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)). This includes a


                                                   9
No. 51741-8-II


sentence that was imposed following a negotiated plea agreement. In re Pers. Restraint of West,

154 Wn.2d 204, 214, 110 P.3d 1122 (2005). Tricomo does not assert that this claim encompasses

constitutional error. Thus, she must demonstrate that this alleged error is a fundamental defect

resulting in a complete miscarriage of justice. See Sandoval, 189 Wn.2d at 821.

        Tricomo fails to show that this claim of error represents a fundamental defect that resulted

in a complete miscarriage of justice.2 Sentencing courts have broad discretion in the “‘sources and

types of evidence’” they consider in determining a standard range sentence. State v. Herzog, 112

Wn.2d 419, 424, 771 P.2d 739 (1989) (quoting Williams v. New York, 337 U.S. 241, 246, 69 S. Ct.

1079, 93 L. Ed. 1337 (1949)). Here, the section in Fernandez’s report regarding Paxil contained a

list of peer-reviewed scientific journals related to Paxil as well as a list of articles published on

various websites. Fernandez identified herself as a “mitigation specialist,” but she did not list any

medical training in her background and experience. CP at 50. The trial court properly exercised

its discretion in not considering the section in Fernandez’s report regarding the effects of Paxil

because Fernandez did not possess the requisite expertise to offer such an opinion.

        The trial court did, however, consider opinions about the effects of Paxil on Tricomo’s

mental state provided by the two clinical experts who conducted her psychological evaluations.



2
  Tricomo relies on Estates of Tobin by Tobin v. Smithkline Beecham Pharmaceuticals, 164 F.
Supp. 2d 1278 (D. Wyo. 2001). In Tobin, a civil products liability case, plaintiffs brought action
against a pharmaceutical manufacturer alleging that a patient committed homicides and suicide as
a result of ingesting the drug, Paxil. Id. at 1280. The jury entered a verdict in favor of the plaintiffs,
and the manufacturer moved for judgment as a matter of law or for a new trial. Id. The court held
that in “construing the evidence in the light most favorable to the non-moving party . . . a
reasonable jury could find that Paxil caused the damages suffered by the plaintiff.” Id. at 1283.
Tobin does not support Tricomo’s proposition that the sentencing court erred when it declined to
consider Fernandez’s report.


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No. 51741-8-II


But the trial court was not persuaded by this evidence, and it focused instead on objective facts

regarding the gruesomeness of the event itself rather than on Tricomo’s underlying motivations in

determining her sentence. In particular, the trial court stated,

        It’s clear that there was some disagreement among the experts and that was taken
        into account at the time that this plea agreement was made. The issue before me
        today is not whether or not Ms. Tricomo had the ability to form a specific intent to
        kill. That’s been established by her pleading guilty to this charge. Much of the
        information involves expert opinion about how to account for why Ms. Tricomo
        acted out.
                 . . . Even if all of the details given by Ms. Tricomo are correct -- and I’ll just
        parenthetically insert that we can’t hear [Alkins’s] side of the story -- even if all
        those details were correct, there is no basis for Ms. Tricomo having murdered Mr.
        Alkins. He did not deserve death.

VRP (Jan. 28, 2015) at 91-92. This passage illustrates that any question regarding Tricomo’s state

of mind, which would include whether Paxil impacted her mental condition, was an issue at the

plea negotiation, but it was not decisive at sentencing. And in discussing the “perplexing issue”

of “why” the murder occurred, the trial court stated that even if it took Tricomo at her word, this

still did not reduce the egregiousness of the act itself. Id. at 92.

        Given the trial court’s broad discretion to impose a sentence anywhere within the standard

range, the trial court’s decision to impose a high-end sentence based on evidence other than

Tricomo’s mental state does not constitute a “‘clear abuse of discretion or misapplication of the

law.’” Blair, 191 Wn.2d at 159 (quoting Porter, 133 Wn.2d at 181). Consequently, Tricomo has

failed to demonstrate a fundamental defect resulting in a complete miscarriage of justice arising

from the trial court’s decision to not consider evidence from Fernandez’s mitigation report on the

effects of Paxil.




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No. 51741-8-II


       3.      INEFFECTIVE ASSISTANCE OF COUNSEL AND PROSECUTORIAL MISCONDUCT AT PLEA

       Tricomo argues that her counsel was ineffective and that the prosecutor engaged in

misconduct because “the prosecutor & counsel acted in conspiracy to obtain a guilty plea in

creating a plea agreement for the top of the range, knowing there was no legal basis for the trial

court to consider mitigating circumstances to go below the recommended sentence.” Pet. at 7.

She further contends that her counsel was ineffective and the prosecutor engaged in misconduct

by including count III, second degree assault for facial wounds. We disagree.

               a.      LEGAL PRINCIPLES

                       i.      INEFFECTIVE ASSISTANCE OF COUNSEL

       A defendant is entitled to effective counsel in the plea process. State v. Estes, 188 Wn.2d

450, 463, 395 P.3d 1045 (2017). A defendant claiming ineffective assistance of counsel bears the

burden of establishing that counsel’s performance was deficient and that the deficient performance

resulted in prejudice. Id. at 457-58. As applied to the plea process, a defendant must show that

there is a reasonable probability that, but for the deficiency, she would not have pleaded guilty and

would have insisted on going to trial. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 254, 172

P.3d 335 (2007).

                       ii.     PROSECUTORIAL MISCONDUCT

       To prevail on a prosecutorial misconduct claim on collateral review, a petitioner must

prove that “the alleged misconduct was either a constitutional error that resulted in actual and

substantial prejudice or a fundamental defect that resulted in a complete miscarriage of justice.”

In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). If a petitioner did not object




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No. 51741-8-II


to misconduct at trial, the claim is waived unless the conduct was so flagrant and ill intentioned

that it resulted in prejudice that could not have been cured by an instruction. Id.

               b.      PLEA AGREEMENT

                       i.      DEFENSE COUNSEL’S PERFORMANCE

       Tricomo has not shown either that counsel’s performance was deficient or that she was

prejudiced by the claimed deficiency in entering her plea agreement. The record demonstrates the

contrary.

       Here, Tricomo was originally charged with attempted first degree murder and first degree

murder. Both of these charges included a deadly weapon enhancement. The first degree murder

charge also contained an aggravator that “the defendant knew or should have known that the victim

of the current offense was particularly vulnerable or incapable of resistance.” CP at 7.

       Tricomo initially faced a higher sentence range than the 257 to 357 months she ultimately

faced as a result of her plea. See RCW 9.94A.589(1)(b), .533(4)(a), .535(3)(b). The State amended

the information the same day the “Statement of Defendant on Plea of Guilty” was filed. The

amended information charged Tricomo with second degree murder, three counts of second degree

assault, and second degree taking a motor vehicle without owner’s permission. Tricomo pleaded

guilty to the charges in the amended information.

       According to the plea agreement, the prosecutor was permitted to argue for a sentence of

357 months, the high end of the standard range for the murder count with the other offenses to run

concurrently. Tricomo, for her part, was “free to argue for a lesser sentence.” CP at 30. The

agreement also stated, “The judge may impose an exceptional sentence below the standard range




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No. 51741-8-II


if the judge finds mitigating circumstances supporting an exceptional sentence.” Id. Defense

counsel later filed a sentencing memorandum and presented mitigation evidence.

       At the sentencing hearing, defense counsel explained that

       this case was originally charged . . . murder in the first degree and attempted murder
       in the first degree. The State and I through a series of negotiations based on
       evidence, theories of defense, and, of course, all of the considerations in negotiating
       have come to this resolution.

VRP (Jan. 28, 2015) at 82.

       Tricomo appears to argue that counsel was ineffective because although the plea agreement

said that she could argue for a sentence below 357 months, the agreement between her counsel and

the State divested the trial court of its discretion to consider possible mitigating factors that would

have resulted in a sentence lower than 357 months.3 This argument ignores that defense counsel

was, in fact, free to argue for a sentence lower than 357 months because the standard range was

257 to 357 months. Indeed, defense counsel argued for the lower end of the standard range. And

the plea agreement provision on which Tricomo bases her argument afforded the sentencing court

discretion to impose an exceptional sentence below the standard range where the court “finds

substantial and compelling reasons” to do so. CP at 30.

       Moreover, during the plea hearing, Tricomo acknowledged that she understood that her

standard range sentence was 257 to 357 months and that the prosecutor would recommend 357

months. She also said she understood that her attorney would be able to argue for a lesser sentence.

Finally, Tricomo benefitted from the plea agreement. Thus, Tricomo fails to show that her counsel


3
  Tricomo appears to confuse her attorney’s ability to argue for a sentence below 357 months
generally with her attorney’s ability, within the plea agreement, to argue for an exceptional
sentence below the standard range.


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No. 51741-8-II


performed deficiently in negotiating her plea agreement or that she was prejudiced by counsel’s

performance.

        Tricomo also argues that her counsel was ineffective for allowing a charge of second degree

assault to be included in the crimes to which she pleaded guilty as part of the negotiated plea

settlement. But Tricomo likewise fails to demonstrate either deficient performance or resulting

prejudice. This argument appears to be the same double jeopardy claim that was resolved in

Tricomo’s direct appeal recast as an ineffective assistance of counsel claim. A petitioner cannot

revise a previously rejected legal argument to create a new claim. Davis, 152 Wn.2d at 670-71.

“‘[A] defendant may not recast the same issue as an ineffective assistance claim; simply recasting

an argument in that manner does not create a new ground for relief or constitute good cause for

reconsidering the previous rejected claim.’” Id. at 671 (quoting In re Pers. Restraint of Stenson,

142 Wn.2d 710, 720, 16 P.3d 1 (2001)).

        Tricomo has not met her burden of showing either deficient performance or that she was

prejudiced. We hold that her ineffective assistance of counsel claims regarding her plea agreement

fail.

                       ii.     PROSECUTORIAL MISCONDUCT

        Tricomo also fails to show that the prosecutor committed error during the plea process.

She does not point to any specific instance of prosecutorial error in the record. Rather, she includes

this claim in her argument about ineffective assistance of counsel without providing separate

treatment to it. Tricomo has the burden to show either constitutional error that resulted in actual

and substantial prejudice or nonconstitutional error that resulted in a complete miscarriage of

justice. Lui, 188 Wn.2d at 539. A petitioner “must state with particularity facts which, if proven,


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No. 51741-8-II


would entitle [her] to relief.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086

(1992). Relying solely on bald assertions and conclusory allegations is insufficient. RAP

16.7(a)(2)(i); Rice, 118 Wn.2d at 886. Tricomo fails to identify any specific evidence to support

her allegation of prosecutorial misconduct. Accordingly, this argument fails.

B. SUPPLEMENTALPETITION

       In her supplemental petition, Tricomo makes an additional claim of ineffective assistance

of counsel. Specifically, she contends that trial counsel was ineffective because he failed to

produce a qualified expert at sentencing to offer an opinion on the effects of Paxil. Because her

supplemental petition was filed over one year after her judgment became final, Tricomo must

demonstrate that the claim is not time-barred.

       Tricomo provides three distinct arguments in support of her claim that the ineffective

assistance of counsel issue raised in the supplemental PRP is not time-barred. First, she asserts

that the newly raised ineffective assistance of counsel claim is “part and parcel” of her timely claim

from her original petition and that the trial court erred in not considering her proposed evidence

about the effects of Paxil. Mot. To Amend Pet. at 4. Second, she argues that her newly raised

ineffective assistance of counsel claim is “part and parcel” of the timely claim made in her original

petition that counsel was ineffective in negotiating her plea bargain. Id. Third, Tricomo relies on

In re Personal Restraint of Davis, 188 Wn.2d 356, 395 P.3d 998 (2017), to argue that we have the

“discretion to extend the time” to file a PRP in spite of the one-year time-bar set forth in RCW

10.73.090. Mot. To Amend Pet. at 2.

       We disagree with Tricomo and hold that Tricomo’s supplemental petition is time-barred.

Tricomo’s untimely ineffective assistance of counsel claim is not “part and parcel” to her timely


                                                 16
No. 51741-8-II


claim that the trial court should have considered evidence regarding the effects of Paxil when it

determined her sentence, nor is it “part and parcel” to her timely raised claim of ineffective

assistance of counsel during the plea stage. Finally, we do not have the inherent authority to extend

the statutory time-bar.

       1.      LEGAL PRINCIPLES

       A PRP is time-barred when it is filed more than one year after the judgment becomes final

unless a statutory exception applies. RCW 10.73.090, .100. RAP 16.8(e) provides, “The appellate

court may allow a petition to be amended. All amendments raising new grounds are subject to the

time limitation provided in RCW 10.73.090 and 10.73.100.” This rule does not permit an untimely

new claim in an amended petition to “relate back” to the timely filed petition, nor is there any Rule

of Appellate Procedure that permits a petitioner to use a timely petition as a placeholder for later

filed untimely claims. In re Pers. Restraint of Haghighi, 178 Wn.2d 435, 446, 309 P.3d 459

(2013); see also In re Pers. Restraint of Fowler, 9 Wn. App. 2d 158, 164, 442 P.3d 647 (2019)

(holding that a supplemental petition filed after the deadline was time-barred although the

petitioner filed a timely placeholder petition that raised no substantive claims but merely stated

that counsel needed time to review the case and prepare a petition), review granted, 195 Wn.2d

1007 (2020).




                                                 17
No. 51741-8-II


               a.  NEW INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AS “PART AND PARCEL”
OF TIMELY RAISED CLAIM OF TRIAL COURT ERROR AT SENTENCING4

       Tricomo argues that her ineffective assistance of counsel claim raised in the supplemental

petition is “not truly [a] ‘new claim[]’” but rather it is “another approach to the same argument”

that she raised in her pro se petition about the trial court allegedly erring in not considering her

proposed evidence at sentencing regarding the effects of Paxil. Mot. To Amend Pet. at 4; Suppl.

Reply Br. at 7. We disagree. An ineffective assistance of counsel claim premised on trial counsel’s

failure to retain an appropriate expert involves distinct facts and legal theory from Tricomo’s

timely claim that the trial court erred in not considering Fernandez’s opinion regarding the effects

of Paxil at sentencing.

       “[A]n ‘amended’ PRP does not relate back to the original filing and any ‘amendment’ or

new claim must be timely raised.” Haghighi, 178 Wn.2d at 446. However, Division One of this

court has held that an ineffective assistance of counsel claim was not time-barred when it was “part

and parcel” of a claim raised in the timely PRP. In re Pers. Restraint of Wilson, 169 Wn. App.

379, 387-88, 279 P.3d 990 (2012).

       In Wilson, the petitioner filed a timely petition arguing instructional error and then later, in

a supplemental brief filed after the time-bar, his attorney reframed the issue as ineffective

assistance of counsel for proposing a defective instruction. Id. at 387. The State argued that this

was a new claim that could not be brought after the expiration of the time-bar. Id. at 387.




4
 PRP counsel conflates “part and parcel” with “relating back.” Mot. To Amend Pet. at 4-5.
However, these are different concepts. Haghighi, 178 Wn.2d at 446-47.


                                                 18
No. 51741-8-II


       The court held that the ineffective assistance of counsel argument was not a new claim. Id.

at 387-88. Rather, it was part and parcel of the instructional error claim made in the timely petition.

Id. at 387. This was so because under the facts of Wilson, there was no avenue for the petitioner

to seek relief from a clearly erroneous instruction except through an ineffective assistance of

counsel claim. Id. Wilson’s trial counsel had proposed the erroneous instruction, preventing

Wilson from raising the claim directly because the invited error doctrine barred relief. Id.

       Wilson is both limited and distinguishable. It dealt specifically with an instructional error

that could not be raised in any manner other than a claim of ineffective assistance of counsel. Id.

at 387-88. Our Supreme Court later agreed that the decision in Wilson turned on the fact that “in

order for the petitioner to prevail on his timely claim, he would have had to prove ineffective

assistance of counsel, which made the claim “‘part and parcel’” of the original claim and not a new

claim.” Haghighi, 178 Wn.2d at 447) (quoting Wilson, 169 Wn. App. at 387).

       Here, as noted above, Tricomo originally framed this issue as whether the trial court erred

in not considering the portion of Fernandez’s report that discussed the effects of Paxil when it

made its sentencing decision. In the supplemental petition, she claims she received ineffective

assistance of counsel because her attorney failed to provide the court with an appropriate expert to

render an opinion on Paxil’s effects on her mental state.

       Tricomo’s ineffective assistance of counsel claim in her supplemental petition is a new and

separate claim. Unlike Wilson, the determination of Tricomo’s timely raised claim regarding the

trial court’s decision not to consider the portion of Fernandez’s report regarding the effects of Paxil

is not precluded if we decline to address the untimely ineffective assistance of counsel claim. See

169 Wn. App. at 387. Moreover, the arguments in support of these claims are inconsistent. On


                                                  19
No. 51741-8-II


the one hand, Tricomo argues that the trial court’s decision not to consider the portion of

Fernandez’s report on Paxil was reversible error—which assumes that Fernandez was qualified to

offer such an opinion. On the other hand, Tricomo asserts that Fernandez was an entirely

unqualified expert and she was deprived of effective assistance of counsel when her attorney failed

to produce a different expert.

       Accordingly, like Haghighi, resolution of Tricomo’s ineffective assistance of counsel

claim “rests on facts and legal theory entirely distinct from” whether the trial court abused its

ample discretion in declining to consider evidence regarding the effects of Paxil. 178 Wn.2d at

447. We hold that Tricomo’s ineffective assistance of counsel claim is not part and parcel to her

timely raised claim regarding the trial court’s decision not to consider evidence on the effects of

Paxil at sentencing.

               b.   NEW INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AS PART AND PARCEL
OF TIMELY RAISED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

       The ineffective assistance of counsel claim that Tricomo raised in her original petition,

which we discuss in subsection a, supra, rests on a separate and distinct act of counsel than the

one on which the newly raised ineffective assistance of counsel claim rests. The ineffective

assistance claim brought in the original PRP asserts that counsel should have struck a better plea

bargain during the plea negotiation stage. The ineffective assistance of counsel claim raised in the

supplemental PRP asserts that counsel should have hired a different expert in support of her

arguments at sentencing.

       Tricomo acknowledges that the ineffective assistance of counsel claim raised in her

supplemental petition is both factually and legally distinct from the claim she brought in her initial

petition, but she argues that a claim of ineffective assistance of counsel requires the court to look

                                                 20
No. 51741-8-II


at counsel’s “conduct as a whole” to determine whether it was constitutionally adequate and that

her “focus on the plea portion of the case is not mutually exclusive to [her counsel’s]

ineffectiveness in a later phase of the case.” Suppl. Br. of Pet’r at 4-5. Stated another way,

Tricomo argues that raising one claim of ineffective assistance of counsel in a timely petition

effectively preserves any additional claim of ineffective assistance of counsel, no matter how

tangential, brought after the expiration of the statutory time-bar.

       Tricomo relies on Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017), cert. denied, 138

S. Ct. 2608 (2018), and Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), for her argument that we are compelled to review every possible act or omission

of counsel when a claim of ineffective assistance of counsel as to one act or omission is brought.

But Tricomo misconstrues Browning and Strickland.

       In Browning, the court was asked to consider whether the district court erred in limiting

the certificate of appealability to distinct instances of alleged unprofessional conduct by counsel

or whether it should have granted the certificate of appealability to broadly allow the defendant to

challenge any unprofessional act or omission of counsel. 875 F.3d at 471. Browning concerned

the ability of the defendant to put his claims before the appellate court in the first instance. Id.

Browning does not stand for the proposition that a reviewing court, once a particular act or

omission of counsel is identified, must do a searching examination of the conduct of counsel

throughout the entire proceeding. Moreover, Browning is of little assistance insofar as it concerned

statutory federal appellate procedure.

       Strickland likewise does not support Tricomo’s position. In the portion of Strickland on

which Tricomo relies, the United States Supreme Court was addressing the possibility that the


                                                 21
No. 51741-8-II


scope of its ruling would open the door to “intrusive post-trial inquiry into attorney performance”

and encourage the “proliferation of ineffectiveness challenges.” 466 U.S. at 690. Thus, a

defendant is required to identify the specific acts or omissions of counsel that were not the result

of reasonable professional judgment. Once that has occurred, the appellate court will judge the

reasonableness of counsel’s conduct as to those identified acts or omissions and determine whether

counsel’s conduct was reasonable in light of all the circumstances. Id. Tricomo’s reliance on

Strickland is misplaced because she is not now asking us to consider her original argument in light

of all the circumstances but to address a wholly new ineffective assistance of counsel claim.

          Wilson is instructive here. In Wilson, the State argued that the petitioner was procedurally

barred from raising an ineffective assistance of counsel claim because the petitioner had brought

a claim of ineffective assistance of counsel in his direct appeal that was based on a different act or

omission of defense counsel and that rested on different legal arguments. 169 Wn. App. at 388.

The State, in other words, made essentially the same argument that Tricomo makes here—that one

claim of ineffective assistance of counsel is the same as every other claim of ineffective assistance

of counsel, even when the claim rests on distinct conduct and legal theories. Id.

          But the Wilson court disagreed, holding that because the ineffective assistance of counsel

claim raised on direct appeal was based on conduct that was distinct from the conduct on which

the PRP ineffective assistance of counsel argument was based, consideration of the claim was not

procedurally barred. Id. We agree with Wilson that ineffective assistance of counsel claims that

raise distinct complaints about the conduct of counsel and rely on distinct legal theories should not

be treated as a single claim simply because they fall under the ineffective assistance of counsel

rubric.


                                                  22
No. 51741-8-II


       Here, Tricomo’s ineffective assistance of counsel claim regarding the plea negotiation is

not part and parcel of the ineffective assistance of counsel claim she raises in her supplemental

petition regarding sentencing. Resolution of the two claims rests on distinct facts and legal

theories. Thus, the ineffective assistance claim relating to counsel’s conduct at sentencing, raised

for the first time in Tricomo’s supplemental petition, is time-barred.

               c.      INHERENT AUTHORITY TO WAIVE THE STATUTORY TIME-BAR

       In the alternative, Tricomo relies on Davis to argue that we should grant her motion to

“extend” the one-year time limit and address the ineffective assistance of counsel claim raised in

her supplemental petition on its merits. Mot. To Amend Pet. at 2-3 (citing 188 Wn.2d at 362 &

n.2). We disagree.

       In Davis, a death penalty case, the petitioner moved for an extension of time to file his PRP

prior to the expiration of the one-year deadline. 188 Wn.2d at 362. Our Supreme Court granted

the motion. Id. In a footnote, the court addressed the State’s argument that the statute of

limitations in RCW 10.73.090(1) is a mandatory rule that bars appellate consideration of PRPs

after the deadline has passed. Id. at 362 n.2. The State cited to In re Personal Restraint of Bonds,

165 Wn.2d 135, 196 P.3d 672 (2008), and In re Personal Restraint of Benn, 134 Wn.2d 868, 952

P.2d 116 (1998). In rejecting this argument, the court stated,

       We do not find that holding in either opinion. The superior court and the Supreme
       Court in Washington have original jurisdiction to consider habeas challenges.
       WASH. CONST. art. IV, §§ 4, 6. The time limits in RCW 10.73.090-.100 are
       designed to protect the finality of judgments while permitting consideration of
       many potentially meritorious collateral challenges.

Davis, 188 Wn.2d at 362 n.2. The court concluded that “exercising our inherent power to grant a

timely filed motion for extension of time is consistent with this design.” Id.


                                                23
No. 51741-8-II


         We recently addressed a similar time-bar issue in Fowler, 9 Wn. App. 2d at 167, where the

petitioner argued that the time for filing his PRP should be extended under RAP 18.8(a) and (b).

In Fowler, the petitioner hired an attorney to file a PRP; however, the attorney resigned from the

Washington State Bar Association in lieu of discipline prior to filing Fowler’s petition. Id. at 161.

The petitioner hired a new attorney who filed a placeholder petition that did not raise any issues

but instead stated that in light of the issues with prior counsel and the fact that grounds for relief

were unclear, more time was needed to prepare and file the petition. Id. Later, after the one-year

time limit, counsel filed a supplemental petition that for the first time raised substantive issues. Id.

at 162. We concluded that RCW 10.73.090 is a statutory limitation period and we do not have the

authority, under RAP 18.8, to waive RCW 10.73.090. Id. at 167 (citing Benn, 134 Wn.2d at 939;

State v. Robinson, 104 Wn. App. 657, 665, 17 P.3d 653 (2001)).

         Tricomo argues that Fowler directly conflicts with Davis.5 However, the motion to extend

in Davis was granted after the State failed to timely respond pursuant to RAP 17.4(e).6 188 Wn.2d

at 362. In both Benn and Bonds, the court discussed RAP 18.8(a). In Benn, the court held that

“RAP 18.8(a) does not allow the court to waive or alter statutes.” 134 Wn.2d at 939. And the


5
 Tricomo attempts to distinguish her case from Fowler by arguing that she at least filed a pro se
PRP before the one-year time limit, thus putting the State on notice that Tricomo was contesting
her attorney’s performance as well as the trial court’s failure to take into account the effects of
Paxil.
6
    RAP 17.4(e) provides,
        A person with a recognized interest in the subject matter of the motion may submit
        a written answer to the motion. Unless the court directs otherwise, any answer must
        be filed and served no later than ten (10) days after the motion is served on the
        answering party. The moving party may submit a written reply to the answer to the
        motion. Unless the court directs otherwise, any reply to an answer must be filed
        and served no later than three (3) days after the answer is served on the moving
        party, but at least one (1) day prior to the date set for oral argument.
                                                  24
No. 51741-8-II


Bonds court discussed Benn, noting that “RAP 18.8(a) (authorizing waiver or alteration of court

rules) does not apply to a statute of limitations like RCW 10.73.090.” 165 Wn.2d at 142. Fowler’s

holding that the time for filing a PRP could not be extended does not conflict with Davis because

the court in Fowler, like the court in Benn, was addressing RAP 18.8.

       We adhere to our decision in Fowler and hold that RAP 18.8 does not provide us with the

authority to either extend or waive the statutory time-bar for filing PRPs set forth in RCW

10.73.090.

       Tricomo also contends that we have the inherent authority to waive the statutory time-bar.

Tricomo again points us to Davis, where our Supreme Court held that it had the inherent power to

extend the time for filing a collateral attack petition under article IV, sections 4 and 6 of the

Washington Constitution. Tricomo posits that the Court of Appeals possesses this same “inherent”

power. Suppl. Br. of Pet’r at 10.7




7
  In support of her argument, Tricomo also cites to article IV, section 30 of the Washington
Constitution; RAP 16.3(c); RAP 16.5(a); RCW 2.06.030; RCW 2.28.010; RCW 2.28.150.
Although Tricomo cites to these provisions, she provides no argument or analysis as to why these
provisions should persuade us to hold that we have the authority to ignore the time-bar. Moreover,
article IV, section 30 does not provide the Court of Appeals original jurisdiction in habeas corpus
proceedings. This provision merely authorizes the legislature to create the Court of Appeals and
strictly limits the power of the Court of Appeals to that provided by statute.


                                                25
No. 51741-8-II


       We disagree with Tricomo that we have the inherent power to extend the statutory

limitation period set forth in RCW 10.73.090. In Davis, our Supreme Court held that its inherent

power to grant a timely filed motion to extend the statutory filing period was derived from its

original jurisdiction to consider habeas challenges under article IV, section 4 of the Washington

State Constitution. 188 Wn.2d at 362 n.2. Davis does not hold or even suggest that the Court of

Appeals has this same power. Nor is the Court of Appeals granted this express power by the plain

language of article IV. Original jurisdiction in habeas corpus proceedings is granted exclusively

to the superior court and the Supreme Court. See CONST., art. IV, §§ 4, 6. We are unpersuaded

that we have the authority to ignore the statutory time-bar for filing a PRP.8 Accordingly, we deny

Tricomo’s motion to extend the one-year time-bar set forth in RCW 10.73.090.9




8
  Tricomo suggests that we have the power to grant an extension based on State v. Chetty, 167 Wn.
App. 432, 272 P.3d 918 (2012). But Chetty is inapposite because Chetty involved the enlargement
of time to file a notice of direct appeal, not a PRP. Tricomo also relies on Martinez v. Ryan, 566
U.S. 1, 18, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), in which the United States Supreme Court
held that “[a] procedural default will not bar a federal habeas court from hearing a substantial claim
of ineffectiveness at trial if, in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Suppl. Br. of Pet’r at 15-17 (quoting 566 U.S. at 18).
Martinez, however, is unhelpful to Tricomo because we do not rely on federal habeas procedure
to determine our statutory authority with respect to PRPs. See In re. Pers. Restraint of Runyan,
121 Wn.2d 432, 441, 853 P.2d 424 (1993) (declining to apply federal law regarding the federal
suspension clause in a challenge to the constitutionality of RCW 10.73.090 because it is not
“determinative as to the boundaries of our suspension clause” due to “the differing functions of
state and federal habeas”).
9
  Even if we had the authority to ignore the time limit set forth in RCW 10.73.090, we would
decline to exercise it in this case. Tricomo has set forth no argument about when a court should
hold the interests of justice require extension of the time-bar, and she does not persuade us that her
case should be such a case.
                                                 26
No. 51741-8-II


                                         CONCLUSION

       The issue raised in Tricomo’s supplemental petition is time-barred. The issues raised in

the original petition are either denied on their merits or are denied because they were resolved on

direct appeal. Accordingly, we deny Tricomo’s petition.



                                                     CRUSER, J.
 We concur:



WORSWICK, J.




LEE, C.J.




                                                27
