  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

In the Matter of the Personal             )       No. 75682-6-1
Restraint Petition of                     )                                      c;)
                                                                                         CP
                                          )
                                          )                                        ".        *11
HAILU DAGNEW MANDEFERO,                   )      UNPUBLISHED OPINION                      -11
                                                                                               ,
                                                                                               7 7.=
                                          )                                                      -t)0
                     Petitioner.          )      FILED: January 14, 2019                      0-n-ri
                                          )                                                   alon


       VERELLEN, J. — Hailu Mandefero filed a personal restraint petitionl
challenging the judgement and sentence imposed following his jury conviction for

first degree assault, second degree assault, and second degree unlawful

possession of a firearm. The State concedes that the trial court erred in failing to

consider Mandefero's youth as a mitigating factor supporting an exceptional

sentence downward, and that Mandefero is entitled to resentencing. We accept

the State's concession and remand to the superior court for resentencing

consistent with this opinion. We deny and dismiss Mandefero's other claims.2


       1 We treat Mandefero's petition filed February 13, 2017 as superseding his
original petition filed August 12, 2016.
       2 As a general rule, personal restraint petitions must be filed within one year
after the judgment and sentence becomes final, unless the petitioner can show that
his judgment and sentence is facially invalid or was not entered by a court of
competent jurisdiction, or an exception under RCW 10.73.100 applies.
RCW 10.73.090. Mandefero's attorney filed this petition after the expiration of the
one-year time limit but argues that the time limit should be equitably tolled due to
the fraud and bad faith of the prior attorney Mandefero retained to file the petition.
The State agrees that, under the circumstances, the time limit should be equitably
No. 75682-6-1/2



                                        FACTS

       This case arose from a shooting at Ezell's Chicken in Skyway on the night

of May 1, 2012.3 At approximately 9:08 p.m., JaeBrione Gary was sitting in his car

parked in front of the restaurant when a truck pulled in behind him and multiple

shots were fired. Gary was hit several times. Two of the shots went through the

windows of the restaurant where Sandra Torres was working. At the scene of the

shooting, officers found two different types of fired shell casings, indicating that

more than one firearm was used.

       Gary was initially reluctant to identify who shot him while being questioned

near a crowd of bystanders. However, in the ambulance on the way to the

hospital, Gary told Deputy Michael Glasgow that he was shot by "Hailu and some

niggers."4 Gary identified Hailu as a Blood associated with Money Gang.

Mandefero has "Money Gang" tattooed on the back of his hand.

       Approximately two hours after Gary was shot, Kevin Hubbard arrived at

Valley Medical Center in Renton with two gunshot wounds. When officers arrived

at the hospital to investigate, they found Mandefero with Hubbard. Mandefero

gave inconsistent explanations about his whereabouts that evening, and officers

arrested him in connection with the shooting.


tolled. We accept the State's concession and treat Mandefero's petition as timely
filed.
      3 Unless otherwise noted, facts are taken from this court's opinion in
Mandefero's direct appeal, State v. Mandefero, No. 69925-3-1 (Wash. Ct. App.
June 1, 2015 (unpublished), http://www.courts.wa.gov/opinions/pdf/699253.pdf.
      4   Report of Proceedings(RP)(Oct. 24, 2012) at 146.



                                          2
No. 75682-6-1/3


The day after the shooting, Gary told his mother that he believed Mandefero was

the shooter because he had a "beef' with Mandefero.5 Gary testified that

approximately two weeks prior to the shooting, he had ripped a gold chain

necklace off of Mandefero's neck in front of a group of people and bragged about it

to friends. Gary told his family that they should retaliate against either Mandefero

or Hubbard if they saw them.

       Gary subsequently refused to talk to detectives, and the State sought a

material witness warrant. At trial, Gary recanted his earlier identification of

Mandefero. He testified that he initially told Detective Glasgow that "some Bloods

from the Central District" were responsible for the shooting and the shooter was

named "Little Rue."6 He testified that he subsequently told Detective Glasgow that

Mandefero was the shooter but only "[Necause I thought Key shot me, and I was

trying to keep Key out of trouble."7 Gary testified that he only saw Hubbard in the

passenger seat of the truck and did not see the driver.

      The State presented evidence showing that Hubbard called Mandefero

twice approximately 30 to 45 minutes prior to the shooting. Cellphone tower

records after this time placed Mandefero and Hubbard together at or near

Mandefero's residence, north of Ezell's, and showed that they were moving

towards Ezell's immediately prior to the shooting and moving away from it



      5   Id. at 80.
      6   Id. at 50.
      7 Id. at 52.



                                          3
No. 75682-6-1/4



afterwards. The State also presented a recording of a jail phone call Mandefero

made after he was arrested. The other speaker referenced the incident with the

chain necklace, stating, "Ain't nobody gonna snatch your chain ever again,

promise you that,"8 and Mandefero laughed.

       A jury convicted Mandefero as charged. This court affirmed Mandefero's

convictions on direct appeal.

                                      DISCUSSION

       To successfully challenge a judgment and sentence by means of a personal

restraint petition, a petitioner must establish actual and substantial prejudice arising

from constitutional error or nonconstitutional error that inherently results in a

"complete miscarriage of justice."9

1. Evidence of Gang Affiliation

       Mandefero argues that the admission of evidence of his gang affiliation was

unfairly prejudicial and deprived him of his right to a fair trial. This court reviews

evidentiary rulings for abuse of discretion.19 A trial court abuses its discretion

when its order is manifestly unreasonable or based on untenable grounds.11




       8   Mandefero, No. 69925-3-1, slip op. at 6.
         9 In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).
         10 State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009). Generally, a
trial court's admission of evidence does not implicate constitutional issues. See
State v. Gresham, 173 Wn.2d 405, 433, 269 P.3d 207(2012)(evidentiary errors
under ER 404(b) are not constitutional errors).
       11 State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217(2009)(quoting State
v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342(2008)).



                                            4
No. 75682-6-1/5


       Prior to trial, the State moved to admit evidence of Mandefero's affiliation with

Money Gang. The State acknowledged that gang affiliation was not a motive for the

crime, stating,"We don't believe this was necessarily a gang-gang feud. This is

personal issues that these individuals have between each other."12 However, the

State claimed that Mandefero's gang affiliation was highly relevant to prove the

identity of the shooter.

       And that is because the way the victim identified his assailant as
       being a Money Gang Member, and all of the evidence that we have
       from the defendant's own cellphone, and his own Facebook page
       about Money Gang, Money Gang Mob, MGM all over his Facebook
       page.


               And it's basically, the probative purpose would be to explain
       that Mr. Gary and the defendant aren't in necessarily gangs that are
       at war with each other or at feud with each other, and the fact that
       this was a personal issue between these two, but they were certainly
       aware of whom the other one was, knew them by gang monikers, or
       at least the defendant knew Mr. Gary by gang moniker. So their
       familiarity sort of goes again to identification.[13]

       Mandefero objected and moved to exclude any evidence of gang affiliation.

The trial court ruled:

       The word gang doesn't belong in this case, except where the
       defendant himself allegedly has used it to talk about Money Gang
       Mob or where Mr. Gary used it to talk about who it is that shot him
       and his identification.

               There really shouldn't be any explanation of the meaning of
       the term gang or what a gang detective's job is or how gang
       members are validated or any of that. None of that should be coming
       to the jury, even though I think it was very relevant for discovery
       here.

       12   RP (Oct. 10, 2012) at 157.
       13 RP (Oct. 11,2012) at 28, 30-31.




                                            5
No. 75682-6-1/6




               What is relevant here is the associations. When you come
       right down to it, what is important in this case is whether Mr.
       Mandefero was friends with, shall we say, good friends with some of
       the other players in this case, and not good friends with the alleged
       victim here, Mr. Gary, for whatever reason. And I think the reason
       that is critical is because it goes so much to motive here. And it also
       goes to context for the parts of the phone calls that I have admitted.




              1 also think it is fair to the extent that the defendant himself
       used the term Money Gang Mob, or Mr. Gary did, for Detective
       Gagliardi to make reference to those two facts. But not to other
       people's reference to themselves as Money Gang Mob members or
       what a clique is either. 1 really don't think that is pertinent in this
       case [14]

       Three witnesses made reference to Mandefero's association with Money

Gang: Gary, Deputy Glasgow, and Deputy Joseph Gagliardi. Gary testified that he

told officers that Mandefero was with Money Gang "to throw the police off' and that

he "didn't know if he was with that shit or not."15 Gary testified that "it was a

coincidence that his name was actually Hailu and that he had had the shit tattooed

on him."16

       Deputy Glasgow testified that Gary told him Mandefero was associated with

Money Gang. During Deputy Glasgow's testimony, the trial court instructed the jury:

       Let me explain something, ladies and gentlemen. This is not
       evidence that anybody was involved with a gang in the sense of a

       14 RP (Oct. 19, 2012) at 30-33.

       15 RP (Oct. 24, 2012) at 54.

       16   Id.



                                            6
No. 75682-6-1/7



       criminal gang. It's only evidence about what words, okay, were used
       to explain what the association was, again, between the person that
       was talked about and the group.(171

       Detective Gagliardi testified regarding Mandefero's Money Gang tattoo and

the fact that Mandefero frequently referred to himself as a member of Money Gang

or Money Gang Mob on his Facebook page. On cross-examination, Detective

Gagliardi acknowledged that there was no evidence that Money Gang was a criminal

street gang as defined by RCW 9.94A.030(12). And the parties entered a stipulation

that was read to the jury: "Hailu Mandefero is not affiliated with any street gang

called the "Bloods" or any similar name. He is not considered to be a "Blood."18

       Evidence is relevant if it has "any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence."18 But relevant evidence shall

be excluded "if its probative value is substantially outweighed by the danger of

unfair prejudice."2° Because of the danger that a defendant will be unfairly

prejudiced, evidence of gang affiliation is admissible only if there is "a nexus

between the crime and gang membership."21




      17 Id. at 148-49. The trial court later clarified for the record that it "put finger
quotes around the word gang" and used a "skeptical intonation" when stating the
word "gang." Id. at 150.
       18 RP (Nov. 1,2012) at 72.

       19   ER 401.
       29   ER 403.
       21   State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009).



                                            7
No. 75682-6-1/8



       Here, the evidence was relevant. Gary identified the shooter as "Hailu" and

a member of Money Gang. The fact that Mandefero was indisputably associated

with a group called Money Gang both corroborated Gary's original identification

and cast doubt on the credibility of Gary's recantation at trial.

       Citing State v. Asaeli,22 Mandefero argues that the trial court erred in

permitting testimony about the Money Gang affiliation because there was no

evidence that Money Gang was actually a gang. In Asaeli, the court held gang

evidence to be prejudicial because the State argued a murder was gang-related

but presented insufficient evidence that the gang existed or that the defendants

were members of the gang. Here, the State did not argue that the crimes were

gang-related, and it is immaterial whether Money Gang was actually a gang.

Instead, Mandefero's self-identification as a member of a group he called Money

Gang was relevant to Gary's initial identification of the shooter. The trial court's

well-reasoned rulings on the admission of evidence regarding Money Gang were

not an abuse of discretion.23




       22   150 Wn. App. 543, 208 P.3d 1136 (2009).
       23 To support his claim of error, Mandefero attaches a news article from the
Seattle Times dated November 15, 2012 regarding the verdict in Mandefero's trial.
The article includes a quote from the presiding juror, who stated "the case was 'a
sad commentary' on the gang life." Mandefero alleges that the article proves that
he was prejudiced by the admission of gang-related evidence. But a juror's post-
verdict statement regarding matters which inhere in the verdict cannot be used to
attack the jury's verdict. State v. Nq, 110 Wn.2d 32, 44, 750 P.2d 632(1988).



                                          8
No. 75682-6-1/9



2. Admission of Mandefero's Statements

       Mandefero next argues that the trial court erred in admitting statements he

made to Deputy Jeff Barden and Deputy Chris Johnson the night of the incident

before he was given Miranda24 warnings.

       At the CrR 3.5 hearing, Deputy Barden testified that he was dispatched to

Valley Medical Center to investigate the identity of a shooting victim. When he

arrived at approximately 12:20 a.m., Deputy Barden saw Mandefero leave Hubbard's

treatment room and walk towards the hospital exit. He approached Mandefero and

asked if he could speak with him. Mandefero said that "he had no problem speaking

with" Deputy Barden.25 Deputy Barden asked "in generalistic terms" why Mandefero

was at the hospita1.26 Mandefero told Deputy Barden that Hubbard called him and

told him he was going to the hospital. Deputy Barden noted that Mandefero

appeared nervous and changed his account of the evening several times. For

example, Mandefero first stated that he did not know why Hubbard was at the

hospital but subsequently stated Hubbard told him he had been shot. Mandefero

said that Hubbard asked him to pick him up at a gas station on Renton Avenue

South but later stated that he picked Hubbard up at a restaurant in Kent. Mandefero

also told Deputy Barden that his sister drove to pick up Hubbard but later said that

Hubbard's girlfriend drove.


      24   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
      25   RP (Oct. 10, 2012) at 29.
      26   Id. at 30.



                                          9
No. 75682-6-1/10



       After the conversation, Mandefero asked if he was free to leave. Deputy

Barden told Mandefero he could not leave because detectives wanted to speak with

him and directed Mandefero to wait in a nearby lounge. Deputy Barden did not read

Miranda warnings to Mandefero at any time during their contact.

       Detective James Belford arrived at the hospital at around 1:15 a.m.

Mandefero told Detective Belford that "his father and an attorney told [him]to never

talk to the police."27 Mandefero told Detective Belford "that he did not know what

happened and that he came to the hospital to visit his friend."28 Mandefero refused

to answer any questions. Detective Belford told Mandefero "to remain there and wait

there[, llet me go talk to his friend, and !would come back and talk to him again."28

       Detective Chris Johnson arrived at the hospital around 2:05 a.m. Detective

Johnson turned on a recorder and told Mandefero he "wanted to talk to him about

what happened and that [he] would like to record it."3° Mandefero refused to give a

recorded statement. Detective Johnson read Mandefero his Miranda rights and

turned the recorder off.

       The trial court issued written findings of fact and conclusions of law. The trial

court concluded that Mandefero's "first contact with law enforcement on the night of

May 1, 2012 with Deputy Barden was not a custodial situation" because the




       27   1d. at 70.
       28   Id.
       29   Id. at 71-72.
       3° Id. at 85.



                                           10
No. 75682-6-1/11



conversation "could be considered a consensual conversation or a Terry31 stop."32

The trial court concluded that "[a]ll of the statements made by [Mandefero] during the

initial contact with Deputy Barden are admissible in the State's case in chief, as they

were not the result of custodial interrogation."33 However, the trial court determined

that once the conversation with Deputy Barden ended and Mandefero was directed

to the lounge, Mandefero was in custody for the purposes of Miranda. The trial court

concluded that any statements Mandefero made to Detective Belford and Detective

Johnson were inadmissible.

       We review findings of fact entered after a CrR 3.5 hearing for substantial

evidence.34 We review de novo whether the trial court's conclusions of law are

supported by its findings of fact.35 "Unchallenged findings of fact entered following

a suppression hearing are verities on appeal."36

       Compliance with Miranda is required when a defendant's statement is the

product of custodial interrogation. A suspect is in custody once his or her freedom

of action is curtailed to a degree associated with formal arrest.37 Custody is

determined by looking at whether a reasonable person in the suspect's position



       31   Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).
       32   Clerk's Papers(CP)at 155(Court of Appeals No. 699253-1).
       33
            Id.
       34   State v. Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250 (2008).
       35   State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993(2005).
       36
            Id.
      37 Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984).



                                          11
No. 75682-6-1/12



would have felt his or her freedom was curtailed to a degree associated with

formal arrest.38 But an officer may briefly detain an individual "'if necessary to

maintain the status quo while obtaining more information."38 Such a "temporary

and relatively nonthreatening detention" does not constitute custody for the

purposes of Miranda."

       Mandefero does not specifically challenge any of the trial court's findings of

fact or conclusions of law. To the extent that Mandefero challenges the trial court's

findings that he was not in custody while speaking to Deputy Barden, Mandefero fails

to show that those findings were not supported by substantial evidence. Mandefero

spoke with Deputy Barden voluntarily and stated he had no problem doing so. The

conversation took place near the exit doors to the hospital. Deputy Barden spoke in

a conversational manner and did not isolate or restrain Mandefero. And Mandefero

testified at the CrR 3.5 hearing that he believed if he answered Deputy Barden's

questions he would be free to leave. The general conversation Mandefero had with

Deputy Barden about his whereabouts could not have led a reasonable person to

believe that he was in custody.




      38 State v. Daniels, 160 Wn.2d 256, 266, 156 P.3d 905 (2007)(quoting
Miranda, 384 U.S. at 440).
        39 State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513(2002)(quoting State
v. Miller, 91 Wn. App. 181, 184, 955 P.2d 810, 961 P.2d 973(1998))
      49 Howes v. Fields, 565 U.S. 499, 510, 1328. Ct. 1181, 182 L. Ed. 2d 17
(2012)(quoting Maryland v. Shatzer, 559 U.S. 98, 113, 130 S. Ct. 1213, 175 L.
Ed. 2d 2045 (2010)).



                                          12
No. 75682-6-1/13



       Moreover, Mandefero fails to demonstrate actual and substantial prejudice

resulting from the admission of his statements to Deputy Barden. "'[I]n order to

prevail in a collateral attack, a petitioner must show that more likely than not he

was prejudiced by the error."'" As this court concluded in Mandefero's direct

appeal, there was significant evidence, both direct and circumstantial, implicating

Mandefero. Mandefero had motive to shoot Gary, cell tower evidence showed that

he and Hubbard were together near the scene of the crime at the time of the

shooting, and Gary identified Mandefero as the shooter. Mandefero does not

demonstrate that he would more likely than not have been acquitted absent

Deputy Barden's testimony regarding his inconsistent statements.

3. Ineffective Assistance of Counsel

       Mandefero contends that he received ineffective assistance of counsel.

To establish ineffective assistance of counsel, a petitioner must demonstrate both

(1) that his attorney's representation was deficient, i.e., that it fell below an

objective standard of reasonableness, and (2) resulting prejudice, i.e., a

reasonable probability that, but for counsel's deficient performance, the result of

the proceeding would have been different.42 "If either part of the test is not




       41In re Pers. Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498
(2013)(quoting In re Pers. Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103
(1982)).
       42 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995);
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).



                                           13
No. 75682-6-1/14



satisfied, the inquiry need go no further."43 There is a strong presumption that a

defendant received effective representation."

       Mandefero asserts, in conclusory fashion, that trial counsel was ineffective for

failing to call Hubbard to testify, retain an "eyewitness expert," and call Gary's mother

to cross-examine her as to Gary's identification of Mandefero as the shooter. But a

personal restraint petition must set out both the facts underlying the claim and the

evidence available to support the factual assertions.45 Unsupported assertions or

vague allegations are not sufficient.46 Mandefero does not identify what any of

these witnesses would have testified, nor does he provide any information

regarding efforts that trial counsel made or did not make to investigate or procure

these witnesses. Mandefero does not meet his burden to demonstrate that trial

counsel was ineffective.

4. Sufficiency of the Evidence

       Mandefero challenges the sufficiency of the evidence supporting all three

convictions.47 He contends that the evidence identifying him as the shooter was


       43   State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
       44   McFarland, 127 Wn.2d at 335.
       45   In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086
(1992).
       46 id. (competent, admissible evidence, such as affidavits, required to
establish facts entitling petitioner to relief).
       47 As part of this challenge, Mandefero argues that the trial court erred in
allowing both Gary and Deputy Glasgow to testify that Gary identified Mandefero as
the shooter to his mother while in the hospital. He argues that the testimony was
inadmissible hearsay. But under ER 801(d)(1)(iii), out-of-court statements
identifying a person are not hearsay if the declarant testifies at trial and is subject
to cross-examination.



                                           14
No. 75682-6-1/15



speculative at best. But this same claim was raised and rejected in Mandefero's

direct appea1.48 A personal restraint petition may not relitigate an issue that was

raised and rejected on direct appeal unless relitigation is required in the interests

of justice." "[R]eexamination of an issue decided in a prior appeal is limited to

cases where an intervening change in the law or some other circumstance justified

the failure to raise a crucial argument on appeal."5°

       Mandefero asserts that newly discovered evidence entitles him to relitigate

this claim. He attaches to his petition a copy of Hubbard's January 17, 2014 guilty

plea to second degree assault for his role in the shooting of Gary. But the State's

theory at trial was that Mandefero and Hubbard acted together in shooting Gary.

Hubbard's guilty plea was consistent with the evidence presented at trial and does

not serve as a basis for relitigating Mandefero's sufficiency claim.

5. Sentencing

       Mandefero argues that the trial court erred in failing to consider his request

for an exceptional sentence downward based on his youth, concluding that it

lacked the authority to do so. The State concedes that Mandefero was entitled to

have his request considered, and that he is entitled to resentencing. Accordingly,

we remand for resentencing, directing the trial court to consider Mandefero's

request for an exceptional sentence downward based on his youth.


      48   Mandefero, No. 69925-3-1, slip. op. at 3.
      49  In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872(2013)
(quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1(2004)).
       50 In re Pers. Restraint of Mines, 190 Wn. App. 554, 570, 364 P.3d 121
(2015)(citing id.).



                                          15
 No. 75682-6-1/16


 We vacate Mandefero's sentence and remand for resentencing consistent with this

opinion, but dismiss his other claims.




 WE CONCUR:




-----<) /




                                         16
