                                                                           FILED
                                                                        JULY 10, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 34326-0-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
MICHAEL JOHN LEVASSEUR,                       )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Michael Levasseur, Jr., appeals from his conviction for second

degree assault and the trial court’s rejection of his motion for a new trial. We affirm.

                                          FACTS

       Mr. Levasseur’s conviction arose from an altercation in Republic with his friend,

Johnny Hawkins. Hawkins and his wife, Sally Wilson, allowed Levasseur to park his

camper at their residence in Republic. Levasseur, otherwise homeless, would move his

camper from location to location over time.
No. 34326-0-III
State v. Levasseur


       In May 2015, Mr. Levasseur’s camper was parked at the Hawkins-Wilson

residence. His sometime romantic partner, Isabelle Sailor, had been staying in the

camper until Hawkins kicked her off the Hawkins-Wilson property. On May 20,

Levasseur, Hawkins, Wilson, and several of their friends, including Torrie Wright,

another sometime romantic interest of Mr. Levasseur, were drinking at the Hawkins-

Wilson residence. Levasseur left the drinking group to join Ms. Sailor in the trailer for a

romantic encounter.

       When Levasseur returned, an intoxicated Hawkins was alone. Telling Levasseur

that he was “tired of all this drama” and unhappy with Levasseur’s treatment of women,

Hawkins told his guest to remove the trailer from the property and find another place to

live. A fight ensued that left Hawkins with six or seven fractures to his facial bones and

with the loss of several teeth. The details of that fight were the subject of conflicting

testimony, but only Mr. Levasseur’s version has any relevance to the issues in this

appeal.

       Despite being the one who suggested the fight, Mr. Levasseur kept telling

Hawkins, a smaller man who had one foot in a walking boot cast, that it would be a bad

decision to fight him. According to Levasseur, who was trained in military combat and

claimed to be very skilled, he initially declined to strike a blow against Hawkins and

successfully evaded several swings. However, he got backed into a corner and had his

hair set on fire when Hawkins threw a lit cigarette on him. At that point, with the hair

                                              2
No. 34326-0-III
State v. Levasseur


being singed, Hawkins allegedly tried to “sucker punch” him, so Levasseur defended

himself by striking a “heavy overhand” blow. When Hawkins later pulled him to the

ground, Levasseur used his forearm to strike Hawkins across the face as he landed on

him, ending the encounter by knocking Hawkins out.1 At the request of Wright,

Levasseur turned Hawkins on his side because he was making choking noises. He also

spoke to the 911 operator at Wright’s request.

       The officer who interviewed Levasseur did not observe any injuries or see any

burn marks. Levasseur was not agitated or in a frenzy, but did appear a little anxious.

       The court had set bond at first appearance because of lack of ties to the

community. The following week, on May 29, 2015, Mr. Levasseur was arraigned on a

charge of second degree assault. He was represented by appointed counsel Dennis

Morgan. Morgan told the court that the case was going to be defended on the basis of

self-defense. The prosecutor requested bail continue because of the defendant’s criminal

history and the injuries inflicted on Mr. Hawkins. Defense counsel argued for release to

an area homeless shelter or to a Veterans Administration facility. The judge indicated

that he did not recall the facts of the case and stated that he would reconsider bond if a

veterans group was willing to host Mr. Levasseur and take responsibility for him. Report

of Proceedings (RP) at 14-15. The court concluded:


       1
       Wilson and Wright both testified that Mr. Levasseur continued to strike the
unconscious Hawkins in the face.

                                              3
No. 34326-0-III
State v. Levasseur


      I have no desire really to hold Mr. Levasseur in custody; I’m concerned
      about what I understand from last time to be potentially some untreated,
      some untreated mental health issues, whether that’s PTSD or some other
      thing, so if you can get to the bottom of that with the Veteran’s
      organization, indicate that they’re prepared to, you know, monitor treatment
      or otherwise assure the stability of a residence and assure that he’s able to
      get treatment, if that’s what he needs, at least be evaluated, I’ll absolutely
      reconsider bond.

               My experience with Mr. Levasseur here in Court is he’s been polite
      and responsive and would probably do what the Court asked him to do, but
      I am concerned about the mobility of his residence, the potential and
      untreated mental health condition based on what he told me last time, and I
      think that does create a risk for the community, perhaps not the victim but, I
      don’t know, a serious charge, haven’t seen the affidavit of probable cause,
      maybe that’ll tell me more. So, I’m going to direct that Mr. Levasseur
      appear rather than not appear at arraignment [sic], and that way if defense
      Counsel has kind of run those things down, we can talk about it. It’d be
      Judge Nielson at that time. I don’t really have a spot I can write that in. I’ll
      try to . . . I’ll write in, “The Court will entertain argument about eliminating
      bond requirement if Defendant can demonstrate adequate housing.”

              So here’s what it said, “The Court, at omnibus, will entertain
      argument about eliminating bond requirement if Defendant can demonstrate
      adequate housing and mental health services through a VA related agency.”
      So if they’re out there and they’re prepared to provide those services, which
      could include transportation services, maybe even into Spokane if
      necessary.

RP at 15-17.

      Five days later, attorney James Irwin was appointed to replace Mr. Morgan. Trial

was conducted seven months later, with the defense trying the case under a theory of self-

defense. A dozen witnesses, including Mr. Levasseur, testified. The jury rejected the

claim of self-defense and convicted as charged. At the subsequent sentencing hearing,


                                             4
No. 34326-0-III
State v. Levasseur


the parties argued for a sentence at opposite ends of the standard range of 6-12 months.

The trial court imposed a 9 month sentence.

       Mr. Levasseur promptly appealed to this court. While the appeal was pending,

retained counsel appeared for Mr. Levasseur in the trial court and filed a motion for a

new trial on the basis of ineffective assistance of trial counsel. In particular, he argued

that Mr. Irwin had not obtained his mental health records from Veterans Administration

hospitals across the county. They showed that Mr. Levasseur had been removed from

combat due to mental health concerns and later was discharged from the military in 2007

due to a personality disorder. Another doctor also diagnosed him with posttraumatic

stress disorder (PTSD).

       The trial court ultimately rejected the motion. The court expressly found that (1)

no evidence was presented from either Mr. Irwin or Mr. Levasseur concerning their

communication with each other, (2) self-defense was asserted in the omnibus response

and the case was tried on that theory, (3) Mr. Levasseur testified in detail about the

altercation, and (4) defendant consciously and willfully acted during the assault and never

lost consciousness at any time. The court concluded that self-defense was a sound tactic

and there was insufficient evidence to rebut the presumption of effectiveness.

       A panel considered this case without hearing oral argument.




                                              5
No. 34326-0-III
State v. Levasseur


                                        ANALYSIS

       Consistent with the new trial motion, this appeal argues that trial counsel

performed ineffectively for failing to investigate and develop a diminished capacity

defense for trial and for failing to argue Mr. Levasseur’s mental health issues at

sentencing. He also faults the trial court for not ordering a competency evaluation.

These claims fail for lack of factual support and are considered together because all relate

to the same underlying concern.2

       Very well settled principles apply to this argument. An attorney must perform to

the standards of the profession; failure to live up to those standards will require a new

trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127

Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts

must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a

basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate counsel’s performance

using a two-prong test that requires courts to determine whether or not (1) counsel’s

performance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel’s failures. Id. at 690-692. When a claim can be disposed of on one ground,


       2
         Appellant also contends that the trial court erred in failing to grant a new trial
due to these arguments. Since the arguments do not establish an entitlement to relief, the
derivative argument that the trial court failed to grant relief is redundant and we need not
discuss the new trial motion.

                                              6
No. 34326-0-III
State v. Levasseur


a reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster,

140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       At issue in this case is whether trial counsel, Mr. Irwin, rendered ineffective

assistance for failing to investigate Mr. Levasseur’s mental health records. Unlike many

cases that present ineffective assistance arguments on direct appeal, this case has some

evidence bearing on the topic due to the motion for a new trial. However, that motion

failed, and this appeal fails, because Mr. Levasseur did not prove the relevance of his

mental illnesses to this case. In particular, Mr. Levasseur has not connected his mental

health problems to his behavior at the time of the crime with which he was charged.

There is no evidence that those problems affected his ability to intentionally assault Mr.

Hawkins.

       A trial court must instruct on diminished capacity “whenever there is substantial

evidence of such a condition and such evidence logically and reasonably connects the

defendant’s alleged mental condition with the inability to possess the required level of

culpability to commit the crime charged.” State v. Griffin, 100 Wn.2d 417, 418-419, 670

P.2d 265 (1983). A defendant is entitled to a diminished capacity instruction if (1) the

crime charged includes a particular mental state as an element, (2) the defendant presents

evidence of a mental disorder, and (3) expert testimony logically and reasonably connects

the defendant’s alleged mental condition with the asserted inability to form the mental

state required for the crime charged. State v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d

                                             7
No. 34326-0-III
State v. Levasseur


626 (2001). The testimony of an expert witness is necessary to present a diminished

capacity defense. State v. Stumpf, 64 Wn. App. 522, 526, 827 P.2d 294 (1992).

       Against this backdrop, appellant’s challenges fail. As the trial court pointed out,

there is no evidence in the record concerning what Mr. Irwin investigated, if anything,

other than the self-defense claim. No affidavit was sought from him, nor was he called to

testify in support of the new trial motion. Mr. Levasseur likewise has failed to indicate

anything concerning his strategy discussions with Mr. Irwin. There also was no

information put forth that would suggest that diminished capacity was at issue during the

assault incident.3 Having conducted something of an inquiry in support of the new trial

motion, retained counsel never put forth any evidence that suggested diminished capacity

was a potential issue in the case. No effort was made to obtain an evaluation that

attempted to establish whether Mr. Levasseur’s mental health problems impacted his

ability to act intentionally at the time of the assault. There simply was no basis for going

forward on a mental health defense.




       3
        This fact distinguishes the case Mr. Levasseur relies on, State v. Fedoruk, 184
Wn. App. 866, 339 P.3d 233 (2014). There the court reversed a murder conviction due to
counsel’s belated request (a day before trial) to delay in order to investigate a diminished
capacity or insanity defense that the State conceded was suggested by the defendant’s
behavior at the time of the crime. Id. at 885.

                                             8
No. 34326-0-III
State v. Levasseur


       The same problem confounds the claim that defense counsel erred by not

submitting mental health history at sentencing. Here, Mr. Levasseur relies on a specific

statutory mitigating factor:

       The defendant’s capacity to appreciate the wrongfulness of his or her
       conduct, or to conform his or her conduct to the requirements of the law,
       was significantly impaired. Voluntary use of drugs or alcohol is excluded.

RCW 9.94A.535(1)(e).4 In order to apply this mitigating factor, it must have application

to the charge before the court. Id. Again, that evidence is lacking here. There is no

reason in the record to believe that Mr. Levasseur was incapable of conforming to the

requirements of the law when he engaged in the fight with Mr. Hawkins.

       In addition to the lack of expert support for his claim, the defendant’s own

testimony undercuts any speculation that his mental health was at issue to the extent that

it impacted his ability to appreciate what he was doing. He explained how he attempted

to avoid the fight, despite first suggesting the activity, and then intentionally took

defensive action when he could no longer evade Hawkins. He testified to purposeful



       4
         To justify an exceptional sentence under this provision, a defendant must prove
impairment in his or her capacity to think and act in conformity with the law. State v.
Rogers, 112 Wn.2d 180, 185, 770 P.2d 180 (1989). Impaired judgment and irrational
thinking, alone, are insufficient to establish the mitigating circumstance. Id. Mr. Rogers
was a 50-year-old, highly-educated former schoolteacher and school principal, whom the
trial judge determined was acting under severe stress. Id. at 182, 184. On review, the
court found no proof that the stress Rogers experienced significantly impaired his
capacity to appreciate the wrongfulness of his conduct. Id. at 185. The court reversed on
that basis and made clear that the test is “stringent.” Id.

                                              9
No. 34326-0-III
State v. Levasseur


conduct that was the result of reasoned thought. His testimony was the opposite of that

needed to support a diminished capacity theory.

       For all of these reasons, appellant has not established that Mr. Irwin erred. There

simply was no factual basis for asserting mental health concerns as a potential theory of

defense or even for sentencing mitigation.

       Having turned up no evidence on this point, Mr. Levasseur nonetheless faults Mr.

Irwin for not investigating the possibility himself. As the trial court noted, we have no

evidence to support the theory that Irwin failed to investigate. Still, even the failure to

conduct an investigation, if that was what occurred, is not per se error by an attorney. See

Strickland, 466 U.S. at 695-696; State v. Fedoruk, 184 Wn. App. 866, 883, 339 P.3d 233

(2014) (citing In re PRP of Brett, 142 Wn.2d 868, 882-883, 16 P.3d 601 (2001)). The

effort to fault counsel on this basis also fails.

       In its seminal case on ineffective assistance of counsel, the United States Supreme

Court noted:

       There are countless ways to provide effective assistance in any given case.
       Even the best criminal defense attorneys would not defend a particular
       client in the same way.

Strickland, 466 U.S. at 689. That, at most, is what the new trial evidence suggested here.

Mr. Levasseur had mental health issues and maybe there could be a basis for asserting a

defense, but no evidence in the record suggests that was anything more than a speculative

possibility. Without any indication that his mental health was in play during this

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No. 34326-0-III
State v. Levasseur


encounter, his mental health argument does not even rise to the level of presenting an

alternative way to have defended the case. Under Strickland, he needed to show much

more than that. He did not.

       Lastly, Mr. Levasseur faults the trial court for ordering a mental health evaluation

at arraignment and then not following through with the order. This contention is contrary

to the record, which is set out at some length earlier in this opinion. No evaluation was

ordered. As he noted, the trial judge did not recall the facts of the case, but recalled an

assertion from the first appearance that Mr. Levasseur had an untreated mental health

condition. Because of that, the court required bond due to his potential danger to the

community, but was willing to reconsider bond if someone was willing to take

responsibility for Mr. Levasseur or if needed to facilitate an evaluation or treatment. RP

at 15-16. The ensuing commentary confirmed that there were no judicial concerns about

Mr. Levasseur’s competency. He was noted as being polite and willing to follow the

court’s directions. Neither the judge nor either of the attorneys suggested that Mr.

Levasseur undergo a competency evaluation. The issue simply was not in the minds of

anyone.

       No evaluation was considered or ordered. The trial court could not have erred in

failing to follow-up something it never directed to happen. There was no error.




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No. 34326-0-III
State v. Levasseur


      The conviction is affirmed.

      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.




WE CONCUR:




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      Pennell, A.CJ.
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