                                                                         FILED 

                                                                      AUGUST 12,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31641-6-111
                                              )         Consolidated with
                     Respondent,              )         No. 32136-3-111
                                              )
              v.                              )
                                              )
THOMAS R. LEVITON,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )
                                              )
In re Personal Restraint of:                  )
                                              )
THOMAS R. LEVITON,                            )
                                              )
                                              )
                     Petitioner.              )

       BROWN, J. - Thomas Ralph Leviton pleaded guilty to second degree trafficking in

stolen property and the sentencing court sentenced him based on an offender score of

5. In appeal briefs filed by his appellate counsel, Mr. Leviton requests resentencing,

contending his trial counsel gave ineffective assistance by failing to investigate the

comparability of his prior Montana convictions before he pleaded guilty. In a pro se

statement of additional grounds for review (SAG), Mr. Leviton seeks withdrawal of his

guilty plea or resentencing, contending his trial counsel gave ineffective assistance by

misinforming him of the evidence against him and failing to challenge various problems
No. 31641-6-111, consol. with No. 32136-3-111
State V. Leviton

with his offender score. In a pro se personal restraint petition (PRP), Mr. Leviton

reiterates matters addressed by his appellate counsel's brief and his SAG, while raising

additional concerns about his offender score. We disagree with all of Mr. Leviton's

contentions, and reason we can give no relief because he has completed serving his

sentence. Accordingly, we affirm and dismiss Mr. Leviton's PRP.

                                         FACTS

      On May 30, 2012, Mr. Leviton pleaded guilty to second degree trafficking in

stolen property. He signed an understanding of his criminal history, including eight

Montana convictions: two forgery convictions from 2005 and 1995, two burglary

convictions from 1993 and 1991, three convictions from 2005 and 1998 for criminal

possession of dangerous drugs, and one conviction from 1989 for fraudulently obtaining

dangerous drugs. He agreed "any out-of-state ... conviction [listed above] is the

equivalent of a Washington felony offense." Clerk's Papers (CP) at 49. Based on this

document and his discussions with his attorney, Mr. Leviton told the court he agreed he

had an offender score of 5. Mr. Leviton had no questions for the court regarding his

offender score.

      Under a plea agreement, the State recommended a residential treatment-based

DOSA.1 The court ordered presentence chemical dependency evaluations that

determined Mr. Leviton met DOSA eligibility criteria. Mr. Leviton retained a new

attorney in August 2012. The court continued the sentencing hearing. Mr. Leviton


       1 The drug offender sentencing alternative is an either prison-based or
residential treatment-based alternative sentence available for drug offenders in some
cases. See RCW 9.94A.660, .662, .664.

                                            2

No. 31641-6-111, conso!. with No. 32136-3-111
State v. Le viton

moved to withdraw his guilty plea in September 2012, arguing it was not knowing,

intelligent, or voluntary, and his prior attorney rendered ineffective assistance "because

his [prior] attorney did not properly investigate his criminal history." CP at 43. The court

denied the motion, reasoning that while Mr. Leviton questioned certain irrelevant

discrepancies between listed crime dates and conviction dates, he did not challenge the

existence of his Montana convictions, and had presented no evidence that his prior

attorney misinformed him on comparability, offender score, sentencing range, or any

direct consequence of his guilty plea.

       At the sentencing hearing on November 20, 2012, the State presented certified

copies of Mr. Leviton's Montana convictions and argued he had an offender score of 5.

Mr. Leviton challenged this number, partly disputing whether his Montana convictions

were "felony convictions for Washington sentencing purposes." I Report of Proceedings

(RP) at 26. The court concluded he had an offender score of 5 and sentenced him to a

residential treatment-based DOSA

       When Mr. Leviton violated his sentence conditions, the State petitioned to revoke

his residential treatment-based DOSA At the revocation hearing on April 12, 2013, the

court allowed him to raise or revisit an offender score issue, the comparability of his

Montana convictions to Washington analogues. Mr. Leviton argued "the Montana

statutes are broader than the Washington statutes." RP (Apr. 12,2013) at 17. The

court granted the DOSA revocation and continued the sentencing hearing, giving the

State additional time to respond to Mr. Leviton's comparability argument.




                                             3

     No. 31641-6-111, consol. with No. 32136-3-111
     State v. Leviton

            At the sentencing hearing on April 18, 2012, the State argued Mr. Leviton waived

     his comparability argument. The court declined to reanalyze comparability, instead
I
J
     adhering to the offender score contained in Mr. Leviton's judgment and sentence.
J
I	   Based on an offender score of 5, the court ordered Mr. Leviton to serve 17 months of

1    confinement with 118 days of credit for time served. He sought review from this court.


I                                             ANALYSIS

            The issue is whether Mr. Leviton's trial counsel gave ineffective assistance. As

     reasoned below, Mr. Leviton is not entitled to the relief he seeks.
1
            In his PRP, Mr. Leviton makes declarations that he expects to b~ released on
J
j    May 7,2014, if not sooner. This evidence comports with other documents in our record.

I
j
     On April 18, 2013, the court ordered Mr. Leviton to serve 17 months of confinement with

     118 days of credit for time served. Even if he received no credit for good time, he would


I    have been released on May 23, 2014.2 Mr. Leviton recognized this as a procedural

     hurdle, stating: "Please be aware of the time constraints as I will not benefit from relief

I	   granted. Sentence expires 4/14 . ... The sentence will expire April or May 2014 and I

     will receive benefit from relief no other way." PRP at 2-3. He reiterated: 'Time is of the

     essence as petitioner will enjoy no relief, if granted, if the case review lingers for too

     long. Petitioners sentence on which relief is sought will expire May 7,2014."



           2 April 18, 2013 plus 17 months equals an end date of September 18, 2014.
     TIMEANDDATE.COM, http://www.timeanddate.com/date/dateadded.html?m1=4&d1=18&y1
     =2013&type=add&ay=&am=17&aw=&ad= (last visited July 29,2014). September 18,
     2014 minus 118 days equals an end date of May 23,2014. TIMEANDDATE.COM, http://
     www.timeanddate.com/date/dateadded.html?m1=09&d1=18&y1=2014&type=sub&ay=&
     am=&aw=&ad=118 (last visited July 29,2014).

                                                   4
No. 31641-6-111, consol. with No. 32136-3-111
State v. Leviton

PRP Statement of Facts & Additional Grounds at 2.

        Thus, to the extent Mr. Leviton's appeal briefs, SAG, and PRP seek

resentencing, this court "can no longer provide effective relief." Orwick v. City of

Seattle, 103 Wn.2d 249,253,692 P.2d 793 (1984); In re Det. of Cross, 99 Wn.2d 373,

376-77,662 P.2d 828 (1983). This court should decline to review the moot issues

underlying those requests for relief because they do not involve "matters of continuing

and substantial public interest." Sorenson     V.   City of Bellingham, 80 Wn.2d 547,558,

496 P.2d 512 (1972); Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70,

73,442 P.2d 967 (1968). Because Mr. Leviton's appeal briefs seek no relief other than

resentencing, this court should dismiss them entirely.

       To the extent Mr. Leviton's PRP seeks withdrawal of his guilty plea, this court

cannot provide him such relief because he no longer meets the requirements to petition

for it. This court may grant relief solely "if the petitioner is under a 'restraint. '" RAP

16.4(a). "A petitioner is under a 'restraint' if the petitioner has limited freedom because

of a court decision in a civil or criminal proceeding, the petitioner is confined, the

petitioner is subject to imminent confinement, or the petitioner is under some other

disability resulting from a judgment or sentence in a criminal case." RAP 16.4(b).

Because Mr. Leviton's PRP fails to show these restraints apply to him, this court should

dismiss it entirely.

       Finally, to the extent Mr. Leviton's SAG seeks withdrawal of his guilty plea, he

fails to meet his burden of proof. This court reviews an ineffective assistance of counsel

claim de novo. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865,16 P.3d 610


                                               5

No. 31641-6-111, consol. with No. 32136-3-111
State v. Leviton

(2001). The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. McMann         V.   Richardson, 397 U.S. 759, 771 & n.14, 90 S. ct.

1441,25 L. Ed. 2d 763 (1970); Yarborough           V.   Gentry, 540 U.S. 1,5,124 S. Ct. 1, 157 L.

Ed. 2d 1 (2003). To prove counsel gave ineffective assistance, the defendant must

show "counsel's performance was deficient" and "the deficient performance prejudiced

the defense." Strickland v. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). Failure to show either element defeats the claim. Id. at 697.

       Deficient performance occurs if "counsel's representation fell below an objective

standard of reasonableness." Id. at 688. This standard requires "reasonableness under

prevailing professional norms" and "in light of all the circumstances." Id. at 688,690.

The defendant must overcome a "strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." Id. at 689. To do so, the

defendant must show counsel's performance cannot be explained as a legitimate

strategic or tactical decision. Id.

       Prejudice occurs if "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. at

,694. A reasonable probability of a different result exists where counsel's deficient

performance "undermine[s] confidence in the outcome." Id. The defendant "need not

show that counsel's deficient conduct more likely than not altered the outcome in the

case." Id. at 693. Instead, the defendant "has ... the burden of showing that the

decision reached would reasonably likely have been different absent the errors." Id. at

696. This standard requires evaluating the totality of the record. Id. at 695.


                                                  6

I
I
1
    No. 31641-6-111, consol. with No. 32136-3-111 



I   State v. Leviton 


             Mr. Leviton contends his trial counsel gave ineffective assistance by misinforming

    him of the evidence against him and failing to challenge various problems with his

    offender score. Mr. Leviton's concerns depend fully on matters this court may not

    consider because they are outside our record. See State v. McFarland, 127 Wn.2d 322,

    335,899 P.2d 1251 (1995) (stating an appellate court may not consider matters outside

    its record when reviewing an ineffective assistance of counsel claim on direct appeal).

    Regardless, the absence of a meaningful relationship between Mr. Leviton and his trial

    counsel does not prove counsel performed deficiently or prejudiced the defense. See

    Morris   V.   Siappy, 461 U.S. 1, 13-14,103 S. Ct. 1610,75 L. Ed. 2d 610 (1983);

    Strickland, 466 U.S. at 687. Considering all, this court should conclude Mr. Leviton's

    trial counsel gave effective assistance.

             Affirmed and PRP is dismissed. 


             A majority of the panel has determined this opinion will not be printed in the 


    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.



                                                        Brown, J. 

    WE CONCUR: 




      ~(~2r
    Siddoway, C.J.                                       orsmo, J.    (J


                                                   7

