                                                          FILED
                                                  COURT OF APPEALS.OIVI
                                                  'STATE OF WASHINGTON'

                                                  2011 SEP 1 I AM 10: 37


      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



IN RE PERSONAL RESTRAINT                          No. 74670-7-1
PETITION OF
                                                  DIVISION ONE

       JEFFREY KINZLE,                            UNPUBLISHED OPINION

                     Petitioner.
                                                  FILED: September 11,2017


       SPEARMAN, J.     When a claim has been raised and rejected on direct

appeal, a petitioner may not renew the claim in a personal restraint petition.

Jeffrey Kinzle contends he received ineffective assistance of counsel. He asserts

that, despite an irreconcilable breakdown in the attorney-client relationship, his

attorney failed to assist his efforts to obtain substitute counsel. But because we

already rejected the claim that the attorney-client relationship was irreconcilably

broken, Kinzie may not renew the claim here.

       Kinzie also contends that his attorney deficiently failed to investigate his

mental health and this deficiency caused him to reject a plea offer. To prevail on

this claim, Kinzle must show a reasonable probability that, but for the alleged

deficiency, he would have accepted the plea. Kinzle fails to make this showing.

The personal restraint petition is denied.
No. 74670-7-1/2

                                              FACTS

        Kinzie has a history of mental illness. When he was booked into the

Snohomish County Jail(SCJ) in March 2011, he informed jail staff that he was

mentally ill and took a number of medications. The jail did not immediately obtain

these medications or begin treating Kinzie.

        Kinzie was charged with failure to register as a sex offender, indecent

liberties, and one count of child molestation. In early April, the Office of Public

Defense appointed Cassie Trueblood to represent Kinzie. It appears that

Trueblood did not meet with Kinzie for at least two weeks. During this period

before their first meeting, Kinzie twice sent kites, or written requests, to the public

defender's office asking for a new attorney. App. 37-38. He asserted that

Trueblood "refused to do her job." Appendix (App.) 37.

        On April 7, the State proposed a plea bargain that encompassed all of the

charges. The record contains no evidence concerning Kinzle's response or his

discussions with Trueblood about the offer. Kinzie later indicated, however, that

he refused the plea offer against Trueblood's advice.

        Near the end of April, Kinzie told jail staff he was experiencing mood

swings and asked to resume Lithium treatment.1 A mental health evaluation was

conducted. The mental health professional documented Kinzle's report of rapid

cycling between mania and depression. She evaluated Kinzie as having

organized thought processes, reality based thought content, no sensory



        1 Kinzie also asked the jail staff to obtain his previous mental health records. The jail
obtained records from September 2009-January 2010. During that time period, Kinzle's only
medication was Dexedrine which reportedly improved his ability to focus.

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No. 74670-7-1/3

disturbance, and normal intellectual functioning. Kinzle resumed Lithium

treatment on May 1.2

       In June, the State amended the information to add a second count of child

molestation. A short time later, Kinzle pleaded guilty to failure to register. At the

end of June, the State proposed a second plea offer. Kinzle rejected the offer

against Trueblood's advice.

       On June 29 and 30, Kinzle addressed five kites to Trueblood. He asked

for copies of discovery as well as laws and legal definitions related to his

charges. Kinzle also sent a kite to the director of public defense requesting a new

attorney. He asserted that Trueblood was doing more to accommodate the

prosecutor than to defend him and alleged that she would not fight for him at trial.

Id. Kinzle also alleged that Trueblood refused to pursue all of the investigations

he requested.

       In July, after negotiation with Trueblood, the State renewed its plea offer.

Kinzie indicated that he would accept the offer and a hearing was set. Prior to the

hearing, Kinzle addressed seven kites to Trueblood asking her to investigate

various defense theories.

       At the hearing, Kinzie rejected the plea offer and also moved to substitute

counsel. He asserted that Trueblood had been trying to "strong arm" him into

accepting a plea deal. App. 56. Kinzle explained that, as he was facing a life

sentence, he wanted to fight the charges, not plead to them. He also alleged that

Trueblood refused his requests to investigate additional evidence, she had not


        2 Records indicate, however, that Kinzie did not always receive the medication as
prescribed over the next few months.

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No. 74670-7-1/4

given him copies of the laws and legal definitions he requested, and he did not

believe he would get a fair trial with her as his attorney.

       Trueblood acknowledged there had been a breakdown in Communication,

especially in the past week. But she stated that she had done substantial

investigation and believed she,was competent to handle the case. Trueblood left

the decision of whether to replace her to the court. The court continued the

motion one week to allow Kinzie and Trueblood an opportunity to reestablish

communication.

       When the hearing resumed, Kinzie stated that he had spoken with

Trueblood but he was still opposed to her approach concerning plea offers. The

court found that the parties were communicating and Trueblood was investigating

all of Kinzle's witnesses. The court denied Kinzle's motion to substitute counsel.

       In August, inmates reported to SCJ corrections officers that Kinzie made

threatening statements concerning Trueblood and other targets. When informed

of these statements, the prosecutor was concerned that Kinzle's threats could

provide Trueblood with a motive to want Kinzie to receive a lengthy sentence and

could thus be a conflict of interest. The prosecutor raised his concerns in a

motion to clarify the potential conflict of interest. At the hearing on the motion,

Trueblood stated that she was prepared for trial, she was not afraid of Kinzie,

and she felt confident representing him. The court did not issue a ruling but

stated that "Ms. Trueblood believes she can adequately represent [Kinzie], and

I've heard nothing to the contrary, and off you go." App. 68.




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No. 74670-7-1/5

       The court addressed Kinzle's representation again on October 31, the first

day of the indecent liberties trial. During motions in limine, the court inquired

about the prior motion concerning a conflict of interest and asked Trueblood to

address the issue of representation. Trueblood stated that she was prepared for

trial and did not see the need for new counsel. The court then addressed Kinzie:

               The Court: Let me just ask you, given that your attorney has
       represented that she is prepared to represent you today, she's not
       concerned about whatever you might have communicated at the jail
       to other people or whatever threats or whatever may have gone on.
       . . . So we're ready to go. If that meets with your approval.
               Kinzle: Yes, sir.
               The Court: O.K. ... I don't see that there's anything
       carrying over today that would impact Ms. Trueblood's ability to
       represent Mr. Kinzie. He's indicated today that he's comfortable
       having Ms. Trueblood continue to represent him, so I don't perceive
       a conflict that would require. . . any change of attorney to be
       addressed at this time. . . .

App. 70.

       Kinzie was convicted of indecent liberties. In a separate trial, he was also

convicted of two counts of child molestation. We affirmed his indecent liberties

conviction in State v. Kinzie, 174 Wn. App. 1073, 2013 WL 1960159(2013)

(Kinzie I). In State v. Kinzie, 181 Wn. App. 774, 326 P.3d 870(2014)(Kinzie II),

we affirmed one count of child molestation, reversed one count, and remanded

for correction of improper community custody conditions.

                                    DISCUSSION

       In this personal restraint petition, Kinzie asks us to vacate his convictions

and order the Snohomish County Prosecutor to reinstate the April 2011 plea

offer. Kinzie contends that he received ineffective assistance of counsel in

violation of the Sixth Amendment. To prevail in a claim of ineffective assistance

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No. 74670-7-1/6

of counsel, a petitioner must show that(1) his attorney's representation was

deficient and (2)the deficiency resulted in prejudice. State v. McFarland, 127

Wn.2d 322, 334, 899 P.2d 1251 (1995)(applying Strickland v. Washington, 466

U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

       Kinzie asserts that Trueblood was deficient because, despite a complete

breakdown in the attorney-client relationship, she failed to assist Kinzle in his

efforts to obtain new counsel. Kinzle also contends that Trueblood was deficient

in failing to investigate his mental health. He asserts that Trueblood was aware of

his history of mental illness. In addition, he argues that his behavior and

interaction with Trueblood should have alerted her that he was currently mentally

ill. Kinzie contends he was prejudiced by these alleged deficiencies because as a

result he rejected a favorable plea offer that he otherwise would have accepted.

       As a threshold matter, the State asserts that Kinzle's claims were rejected

on the merits in Kinzle I and may not be reconsidered here. A personal restraint

petitioner may generally not renew an issue that was raised and rejected on

direct appeal. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1

(2001)(Stenson II). A petitioner may not sidestep this rule by recasting an issue

under a different name or legal theory. Id. An exception to the general rule exists

where relitigation is necessary in the interest of justice, as when there has been

an intervening material change in law. Id.

       In Stenson II, the Supreme Court considered whether a petitioner's claim

was barred because it had been considered on direct appeal. Id. at 723. In the

direct appeal, Stenson asserted that the trial court erred in denying his motion to



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No. 74670-7-1/7

substitute counsel. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239(1997)

(Stenson I). The essential question before the court was whether "counsel and

defendant[were] so at odds as to prevent presentation of an adequate defense."

Id. at 734. The court held that Stenson failed to show the necessity for new

counsel and rejected his claim. Id. at 737.

       In the later personal restraint petition, Stenson asserted that he received

ineffective assistance of counsel due to an irreconcilable conflict. Stenson II, 142

Wn.2d at 722-24. The Stenson II court held that this issue had been addressed

on direct appeal. Id. at 723-24. But because an intervening change in law

required a different legal analysis, the court considered the issue in the interest of

justice. Id. at 724.

       In this case, Kinzie asserted on direct appeal that the trial court erred in

denying his motion to substitute counsel. Kinzie I, 174 Wn. App. at *2. Kinzie

contended that he and Trueblood had "an ongoing, intractable conflict' that

'amounted to a total breakdown in communications." Id. We rejected the claim

because Kinzie failed to show that the attorney-client relationship had collapsed

to such a degree that it violated Kinzle's right to an adequate defense. Id. at *2-3.

       In this petition, Kinzie asserts that his relationship with Trueblood "became

irreconcilably broken." Personal Restraint Petition (PRP) at 6. He claims that he

received ineffective assistance of counsel because, despite this complete

breakdown in the relationship, Trueblood failed to withdraw, join his motion to

substitute counsel, or fully inform the court of the state of the attorney-client

relationship. But we considered and rejected the claim that the attorney-client



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No. 74670-7-1/8

relationship was irreconcilably broken in Kinzle I. Kinzie may not raise the issue

again here.

        Kinzle attempts to escape this result by arguing that his claim in this

petition has a different focus than his claim on direct appeal. He relies on In re

Pers. Restraint Petition of Khan, 184 Wn.2d 679, 363 P.3d 577(2015). In that

case, the petitioner asserted on direct appeal that he received ineffective

assistance of counsel because his attorney failed to object to alleged trial errors.

Id. at 688. In a later personal restraint petition, he asserted that he received

ineffective assistance of counsel because his attorney failed to provide him with

an interpreter. Id. The Khan court held that the interpreter issue was a new claim

that had not been considered on direct appeal. Id. at 689.

        Khan is of no help to Kinzle. In that case, the petitioner raised an

independent claim of ineffective assistance of counsel, unrelated to the claim

considered on direct appeal. But in this case, Kinzle's claim requires

consideration of the same issue addressed on direct appea1.3

        Kinzle also argued, in Kinzie 1, that the trial court erred in failing to order a

competency hearing. Kinzie I, 174 Wn. App. at *2. He asserted that the record

gave substantial evidence that his competency was "questionable." j.çj. at *4. We

disagreed. Id. We held that there was no evidence that Kinzie was unable to




          3 Kinzie also asserts that this petition relies on evidence that was not presented to the
trial court. This evidence consists of Kinzle's kites, his medical records, his 2015 declaration
stating that he had difficulty working with his attorney, and the declarations of his experts. But
because the nature of Kinzle's relationship with Trueblood was litigated on direct appeal, the new
evidence is only relevant if it goes to whether the interests of justice require relitigation of the
issue. Stenson II, 142 Wn.2d at 719. Kinzie fails to show that it does.

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No. 74670-7-1/9

understand the proceedings or assist in his own defense. Id. "In fact," we noted,

"when Kinzie addressed the court, the opposite appeared true." Id.

       In this personal restraint petition, Kinzie asserts that Trueblood was

deficient in failing to investigate his mental health despite numerous facts that

should have alerted her that he was mentally ill. The State contends that this

claim simply recasts the issue of whether Kinzie was competent to assist in his

own defense. Kinzie disputes that his competency is at issue here. He contends

that, regardless of whether he was incompetent, his mental illness was at the

root of his problems with counsel and his refusal of the plea offer.

       Kinzle's claim here is closely related to the competency issue considered

in Kinzie I. In the direct appeal, however, we examined whether the evidence

before the trial court indicated that Kinzie was incompetent. Here, the question is

whether the facts available to Trueblood created an obligation that she

investigate Kinzle's mental health. Because that issue was not addressed on

direct appeal, we consider it here.

       We first consider whether Kinzie has established prejudice. To obtain

relief in a personal restraint petition, a petitioner must show that he was actually

prejudiced by each claimed constitutional error. In re Pers. Restraint Petition of

Rice, 118 Wn.2d 876, 884, 828 P.2d 1086 (1992). A petitioner shows that he was

prejudiced by ineffective assistance of counsel by establishing that, but for

counsel's deficient performance, there is a reasonable probability that the result

of the trial would have been different. Strickland, 466 U.S. at 687. Where

ineffective assistance allegedly causes a defendant to reject a plea offer, a



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No. 74670-7-1/10

defendant must show a reasonable probability that, but for the ineffective advice

of counsel, he would have accepted the plea. Lafler v. Cooper, 566 U.S. 156,

_132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398 (2012).

        Kinzle asserts that he "would have accepted the original plea offer, had

he--with proper medication—been in a mental state to appreciate his legal

situation and had communications between his counsel and him not completely

broken down." PRP at 34. He relies on his own 2015 declaration, in which he

states that his mental illness impeded his ability to understand Trueblood and

that if he had "been mentally stable and been able to trust Ms. Trueblood's

advice," he would have accepted the offer.4 App. 14. Kinzie also relies on the

declaration of his expert, psychologist Alan Breen, who opined that the initial

dose of Lithium prescribed was unlikely to have been optimal and that Kinzie

likely continued to have symptoms of mania even after he began treatment. And

Kinzie argues that, given the strength of the State's case, any rational defendant

would have accepted the plea offer.

        The link that Kinzie posits between Trueblood's alleged deficiency and his

refusal of the plea offer is speculative and tenuous. His argument assumes that,

had Trueblood investigated his mental health, she would have ordered a mental

health evaluation. It further assumes that the results of the new evaluation would


         4 Kinzie asserts that a petitioner's own statement suffices to establish that he would have
accepted the plea offer but for his attorney's deficient performance. He relies on the Sixth Circuit
decision underlying Lafler. The case is distinguishable. In Lafler, defense counsel provided
erroneous legal information and, based on that information, advised the defendant to reject a plea
offer. Cooper v. Lafler, 376 Fed. App'x. 563, 570 (6th Cir. 2010). In a habeas corpus petition
following his conviction, the defendant argued that he would have accepted the plea offer but for
his attorney's erroneous advice. Id. at 571. His trial attorney confirmed the statement and the
circumstances lent credence to the claim. Id. at 572.


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No. 74670-7-1/11

have been different from those of the mental health evaluation administered on

April 26. Kinzle's argument further assumes that, in response to this hypothetical

evaluation, the SCJ would have modified Kinzle's treatment. Meanwhile,

Trueblood would have continued the cases and, at some point, the treatment

would have altered Kinzle's mental state to such a degree that he would have

accepted Trueblood's advice to accept the plea offer despite his professed desire

to make the State prove the case against him. Kinzle points to no case in which a

defendant established prejudice through a similarly tenuous connection. He fails

to establish a reasonable probability that, but for the allegedly deficient

representation, he would have accepted the plea. Kinzle fails to establish that he

was prejudiced by Trueblood's performance.5

        The petition is denied.



                                                             S f
                                                               '''''''   .
                                                                    4r.e.""'"•.     j




WE CONCUR:




        5 In light of our disposition, we do not consider Kinzle's claim that Trueblood's
performance was deficient. In re Crace, 174 Wn.2d 835, 847, 280 P.3d 1102(2012).("We need
not consider both prongs of Strickland (deficient performance and prejudice) if a petitioner fails on
one.")(quoting Strickland, 466 U.S. at 697).


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