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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. BRYCE NATHAN HUBER, Appellant,
and BRANDON DOUGLAS CHANEY, Defendant. In the Matter ofthe Personal Restraint Petition of Bryce Nathan Huber. STATE OF WASHINGTON, Respondent,

v. BRYCE NATHAN HUBER, Petitioner. No. 67776-4-1 (consolidated with 69299-2-1) DIVISION ONE

UNPUBLISHED OPINION FILED: December 23, 2013

Becker, J. — A jury found Bryce Huber guilty of first degree murder. Huber claims his attorney, the late Anthony Savage, provided ineffectiveNo. 67776-4-1/2 assistance by foregoing lesser included offense instructions against Huber's wishes. But the record shows Savage made a strategic decision that was reasonable under the circumstances. Huber also contends that Savage was incapable of providing effective assistance because he was suffering from advanced cancer during trial. Butthe record shows that Savage, despite his illness, capably represented Huber. There are no factual issues about his representation that require an evidentiary hearing. On the night ofFebruary 1, 2009, John Sylve and Danny O'Neal shot and killed Steve Bushaw outside a West Seattle restaurant and bar. The State 

### charged Bryce Huber along withcodefendants Sylve, Brandon Chaney, and O'Neal with premeditated first degree murder and conspiracy. The State's theory

was that Huber and the other three men believed Bushaw had attacked a friend oftheirs, and they planned and carried out Bushaw's murderto retaliate. 

### Sylve and O'Neal pleaded guilty to murder in the second degree with a firearm enhancement. The State tried Huber and Chaney togetherfor first 

### degree murder, with a firearm allegation. The cornerstone of the State's case was Sylve's testimony. The jurylearned thatthe State agreed to recommend a sentence of 230 months for Sylve and that Sylve could receive time offfor good
behavior. 

### Chaney testified at the trial. Huber, represented by longtime defense 

### attorney AnthonySavage, did not testify. The jury found Huberguilty as charged 

### on August 29, 2011. The jurywas unable to reach a verdictas to Chaney, andNo. 67776-4-1/3

the trial court declared a mistrial in his case. The trial court sentenced Huber to 380 months, the top end ofthe standard range. At sentencing, the trial court noted Huber's "careful planning" in "setting up the execution of Mr. Bushaw." The court also remarked on Huber's "very callous disregard for the life of Mr. Bushaw." Hubertimely appealed his conviction and sentence. His direct appeal was stayed pending a CrR 7.8 motion for relief fromjudgment, filed on his behalfby the appellate attorney whom Savage entrusted withthe case before he died. Huberfiled the CrR 7.8 motion on August 17, 2012. His motion asked the trial court to vacate his conviction and grant him a new trial due to newly discovered evidence and the alleged denial ofcounsel and ineffective assistance ofcounsel. See CrR 7.8(b)(2) ("Newlydiscovered evidence") and CrR 7.8(b)(5) 

### ("Any other reasonjustifying relief). A month later, the trial court transferred the motion here to be treated as a personal restraint petition, citing CrR 7.8(c)(2) and Toliverv.Olsen, 109 Wn.2d 607, 612-13, 746 P.2d 809 (1987). 

### Huber objected to the transfer. Ourcommissioner referred Huber's 

### objection to a panel ofjudges for considerationwithoutoral argument. Huber's attorney, who apparently understood that the objection to the transfer had been denied, moved to consolidate the personal restraint petition withthe direct 

### appeal. Thatmotion was granted, and the stay on the direct appeal was lifted. Transfer ofMotion for a New Trial As a threshold matter, Huber maintains his objection to the trial court'sNo. 67776-4-1/4
decision to transfer his motion for a new trial to this court, to be treated as a personal restraint petition. He contends the trial court should have decided the motion because there are factual matters that need to be resolved in an evidentiary hearing. The rules provide for transfer. Under CrR 7.8(c)(2), the trial court "shall transfer" the motion to the Court ofAppeals for consideration as a personal restraint petition unless the court determines thatthe motion is not barred by RCW 10.73.090 and eitherthe defendant has made a substantial showing he is entitled to relief or resolution ofthe motion will require a factual hearing. The court's decision was appropriate here because, contrary to Huber's argument discussed below, the record does not disclose material factual issues that require resolution through an evidentiary hearing. Ineffective Assistance ofCounsel The facts material to Huber's claim of ineffective assistance are found in 

### the trial record. Huber's friend, Sage Mitchell, was the victim of a home invasion 

### robberyin January 2009. According to testimony attrial, Mitchell sold quarter

### pounds ofmarijuanafrom hishome. Two masked and armed men entered his home demanding money. As they searched, the men receivedinstructions via telephone from athird person, whotold them where to lookformoney. They beat Mitchell severely enough to send him to the hospital. Huber's former roommate, Stephanie Cossalter, testified that Huber told 

### her hethought "Steve" (Bushaw), Huber's coworkeron thedocks, had set up theNo. 67776-4-1/5 robbery. Huber had introduced Bushaw to Mitchell, reportedly for a drug deal, and Huber believed the men who robbed and beat Mitchell knew Mitchell had drugs and drug money. Cossaltertestified that Huber said he could not let Bushaw get away withthe attack and that Bushaw had to die as a result. The night ofthe murderwas February 1, 2009, Super Bowl Sunday. John 

### Sylve met up with Mitchell, Chaney, and O'Neal, three acquaintances from his high school years in Yakima, and Lonshay Hampton, a man Sylve did not know. Sylve testified thatthe five men were at O'Neal's apartmentwhen the conversation turned to the break-in at Mitchell's home. Hampton reportedly said he couldn't believe "they" would be allowed to get away with it. While no names
were mentioned, Mitchellsaid he knew a guy (Huber) who thought he knew the 

### person who was responsible fororchestrating the robbery and beating. Sylve testified that allthe men agreed they should retaliate. 

### According to Sylve, Chaney made some phone calls to confirm they could 

### get the man they were after (Bushaw) to the location where they intended to shoot him. Chaney reported that Mitchell'scontactwould call them to let them know when he could get Bushaw there. The group, minus Mitchell, left the 

### apartment and drove to where they planned to shoot Bushaw. Sylve convinced Mitchell that he should not take part inthe retaliation because police would immediately suspect him. 

### Cell phone records for that night showed conversations between Chaney and Huber, and between Huber and Bushaw. Huberwas using a cell phoneNo. 67776-4-1/6 belonging to a friend (Cara Anderson) to make calls. Huber and two female friends, Anderson and Jennifer Razmus, drove to West Seattle in Razmus' car. InWest Seattle, they met up with Mitchell's acquaintances outside a convenience store. Sylve gave the following account ofwhat happened next. Chaney and Huber discussed their plan. Huber asked whetherthey were really going to go 

### through withit, and when Chaney said they were, Huber nixed Chaney's plan for a drive-by shooting. Huber explained that he was going to bring Bushaw outside Talarico's—the West Seattle restaurant and bar where he and Bushaw were 

### meeting—and he did not want to be shot himself. Chaney assured Huber he would take care of things ifHuber brought Bushaw outside. Huber and Chaney then got intheir respective cars and drove to the restaurant. 

### Huber, along withCara Anderson and Jennifer Razmus, met Bushaw at Talarico's. Anderson testified that after about 5 or 10 minutes, Huber and Bushaw went outside to smoke a cigarette. 

### Sylve said Huber and Bushaw remained inBushaw's car for 15 minutes. 

### When Bushaw got out of the car and began to cross the street, Sylve asked him for a light. As Bushaw hesitated, Sylve and O'Neal shot him at close range. Bushaw ran toward the restaurant and collapsed by the doorway. Bushaw later died at Harborview Medical Center. 

### Sylvetestified that he and O'Neal ran back to the car where Chaney and 

### Hampton werewaiting. Theyimmediately droveoff. Hubereventually arrivedNo. 67776-4-1/7 back at his Northgate condominium with Joy Vanderpool, anotherfriend, in her

car. The two women he left at Talarico's took a cab back to Razmus' condominium, where they spentthe night. Huber dropped offRazmus' carthere laterthat night. Vanderpool testified that Hubertold herthat nightthat he and some others had "taken care of a friend—shot him—but the person didn't die. The next day Huber left Seattle for the Tri-Cities to see Cossalter, his former roommate. Cossaltertestified that Huber, upon arrival, told her "We took care ofit." Huber 

### told her he had met up with "Steve" for a beer and that as soon as he saw the car 

### pull up, he told Steve they should go. The two left the restaurant, and "they popped him." 

### Brandon Chaney, Huber's codefendantfor whom the jury could not reach 

### a verdict, provided a different story from Sylve's as to what happened on the 

### night of the murder. Chaney said there was no discussion about shooting or assaulting anyone. Chaney testified that he called Huberbecause he did not knowwhere to go out in Seattle on a Sunday night and that Hubersuggested the restaurant inWest Seattle, where Huberwanted to question "Steve" aboutthe 

### home invasionrobbery. Chaney insisted that he didn't know of any plan to shoot
Bushaw. DirectAppeal 

### In his direct appeal, Huberasserts he wanted the jury to be instructed on the lesser offenses ofsecond degree murder (intentional murderwithoutNo. 67776-4-1/8 

### premeditation) and firstdegree manslaughter. He contends Savage was ineffective (1) for acting against Huber's wishes and (2) for acting upon a misunderstanding ofthe facts and the law. To prevail on a claim of ineffective assistance, Huber must show that (1) 

### his attorney's representation was deficient and (2) Huberwas prejudiced, meaning there is a reasonable probability that the result ofthe trial would have been different absent the challenged conduct. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An ineffective assistance claim is reviewed de novo because itpresents mixed questions of law and fact. State v. A.N.J., 168 Wn.2d 91, 109, 225 P.3d 956 (2010). Our Supreme Court examined the nature ofthe decision to forgo lesser included offense instructions in State v. Grier. 171 Wn.2d 17, 246 P.3d 1260 (2011), abrogating State v. Ward. 125 Wn. App. 243, 104 P.3d 670 (2004). "Part tactic, part objective, the decision to request or forgo lesser included offense instructions does notfall squarely within the defendant's sphere." Grier, 171 Wn.2d at 30. The court observed that the second edition ofthe ABA Standards for CriminalJustice stated, "The defendant should be the one to decide whether to seek submission to thejury of lesser included offenses,'" but that language
was not included inthe third edition. Grier, 171 Wn.2d at 30. Under a "Strategy and Tactics" subheading of the commentary, the third edition notes, "'[i]t is also important in a jury trial for defense counsel to consultfully with the accused about any lesser included offenses the trial court may be willing to submitto thejury.'"No. 67776-4-1/9 Grier, 171 Wn.2d at 31 (alteration in original), quoting ABA, Standards for CriminalJustice: Prosecution Function and Defense Function std. 4-5.2 cmt. (3d ed. 1993). The court concluded, "Washington's RPCs, as well as standards promulgated by the ABA, indicate that the decision to exclude or include lesser included offense instructions is a decision that requires inputfrom both the defendant and her counsel but ultimately rests with defense counsel." Grier. 171 Wn.2d at 32. Huber claims that ifthe defendant disagrees with defense counsel's decision and insists on a lesser included instruction, as Huber claims he did in his discussions with Savage, defense counsel is obliged to deferto his client's wishes. This is not the law. As stated in Grier. the decision ultimately rests with
defense counsel. Grier also defeats Huber's claim that Savage misunderstood the facts and the law. The decision to forgo an otherwise permissible instruction on a lesser included offense is not ineffective assistance if itcan be characterized as part of 

### a legitimate trial strategy to obtain an acquittal. Grier. 171 Wn.2d at 43; State v. Hassan. 151 Wn. App. 209, 218, 211 P.3d 441 (2009). In Grier. the court held defense counsel was not ineffective for failing to 

### request a manslaughter instruction for the murder defendanteven though her
case met the two-pronged test established inState v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). UnderWorkman, a defendant is entitled to a lesser included instruction if (1) each ofthe elements ofthe lesser crime is aNo. 67776-4-1/10
necessary element ofthe greater crime (the "legal prong") and (2) the evidence supports an inference that the defendant committed the lesser crime ("the factual prong"). Workman, 90 Wn.2d at 447-48. "The salient question" was not whether Grier was entitled to such instructions, but rather whether defense counsel was ineffective for pursuing "an all or nothing approach" to secure an acquittal. Grier, 171 Wn.2d at 42. The court concluded, "Grier and her defense counsel reasonably could have believed that an all or nothing strategy was the best 

### approach to achieve an outright acquittal.
.. Thatthis strategy ultimately proved unsuccessful is immaterial to an assessment ofdefense counsel's initial calculus; 

### hindsight has no place in an effective assistance analysis." Grier, 171 Wn.2d at 43 (citation omitted). Nor could Grierestablish prejudice underthe second prong of Strickland. "Assuming, as this court must, thatthejury would not have convicted Grier ofsecond degree murder unless the State had met its burden of 

### proof, the availability of a compromise verdictwould not have changed the
outcome ofGrier's trial." Grier, 171 Wn.2d at 43-44. 

### Huber contends Savage had a mistaken belief that a lesser included instruction could not have been given because the State had presented evidence 

### ofpremeditation. Therecord contradicts thisclaim. During a discussion ofthe 

### jury instructions, the prosecutorpointed out that"neitherdefendant has submitted any lesser included instructions." The prosecutor asked, "I wonderifgiven recent
case law itmakes sense to have, inopen court, ... the defendants or their 

### attorneys acknowledge that this is a strategicdecision." Savage was aware that

10No. 67776-4-1/11

a lesser included instruction could have been given despite the evidence of premeditation, but he believed the all-or-nothing approach was the better strategy: PROSECUTOR: I'm sorry, your Honor, but Ithink that

- I 

### anticipated that someone later might claim that somehow they'd been deprived ofthe opportunity to seek a lesser included instruction. THE COURT: With these two counsel I don't

- never mind. 

### My experience has been thatthese counsel are completely diligent, and they have made their decision as to how they would like to proceed. But ifthat's going to happen, please submit it to me. CHANEY'S ATTORNEY: Iwill, if itdoes happen. On the record, I've talked to my client about the issue that Mr. Baird's brought up, and ithas been a - MR. SAVAGE: If I could. CHANEY'S ATTORNEY: No, Idon't want to - Idon't want 

### to say anything that screws up yourcase, but I'm not -- we're not 

### submitting any, and that's a decision made after attorney and client referring. Is that correct? DEFENDANT CHANEY: Yes. MR. SAVAGE: Your Honor, Iwas probably being a little facetious. Ifthe State's evidence is correct, Ican't think of anything 

### being more premeditated than planning to shoot thisfellow in Renton and driving to West Seattle to do it. Now, Idon't think that defense counsel should burden the court with facetious and unmeritorious arguments. THE COURT: That's sufficientfor me, Mr. Savage, itreally 

### is. And it's just that all of us are struggling with what our appellate courts are deciding that are now a responsibility ofjudges sua 

### sponte, as well as counsel, and Ithinkthat's where we're all trying to figure out where the case law would go. And Iwas not facetious when Isaid, with the two defense 

### counsel in front of me, Iknow thatthey thoroughly go through what 

### the instructions are and what they propose, and Iwas not going to 

### makeyou undergo such a confirmation in front of me. Ifeel very awkward. There comes a point at which Icannot push beyond your consultation and representations of your client. MR. SAVAGE: For Mr. Huber's sake, I'm sure that he would like me to submit a lesser included. 

## THE COURT: Butyou'rethinking oftheWorkman case.m

State v. Workman, 90 Wn.2d 443. 11No. 67776-4-1/12 MR. SAVAGE: I'm thinking that it is unmeritorious and I'm 

### obligated not to do that, and ifsome sharp shooteron appeal, ifwe 

### getthere, wants to take me to task, whythat's been done before too. So Ijust

-- there's not a lesser included, in my opinion, in this

case. 

### As in Grier. Savage's decision to forego lesser included instructions was a 

### legitimatetrial strategy that cannotbe second guessed based on hindsight. "'Where a lesser included offense instruction would weaken the defendant's claim ofinnocence, the failure to request a lesser included offense instruction is a 

### reasonable strategy.'" State v. Breitunq, 173 Wn.2d 393, 399-400, 267 P.3d 1012 (2011), quoting Hassan, 151 Wn. App. at 220. 

### Savage's strategy for Huber's defense was to focus on destroying Sylve's 

### credibility. Savage grilled Sylve on the deal he made with the State, the inconsistencies between his previous statements (including his plea) and his 

### testimony attrial, and whether he still thought he had the deal after his admission that he lied to police. Hepressed Sylve: "Which is true, what youtold the detectives or what youtold thejury?" Sylvereplied, "What Itold thejury." 

### Savage kepton: "You meanyou lied to thedetective in putting this deal together?" Sylvie responded, "Notlied, butwas mistaken." Savage said, "Mistaken. Isee." In closing argument, Savage told thejury, "thefundamental bedrock issue in this case, as far as Mr. Huber is concerned, is do you believe Mr. Sylve beyond a reasonable doubt?" 

### The evidence ofpremeditation against Huberwas verystrong, making his
case similar to State v. Mullins, 158 Wn. App. 360, 372, 241 P.3d 456 (2010),

12No. 67776-4-1/13 review denied, 171 Wn.2d 1006 (2011). In Mullins, the defendant was convicted of first degree murder, and we held that counsel was not ineffective for not requesting a jury instruction ofsecond degree murder. Ifthe defendant "had tried to argue that he was guilty at most ofsecond degree murder, it would have weakened his claim of innocence." Mullins, 158 Wn. App. at 372. The same is true in Huber's case. Savage did not want to argue on the one hand that Sylve


### was lying about Huber's involvement inthe planning and execution of the murder, and on the other hand that ifHuber was involved, he committed some lesser crime because he acted without premeditation. Underthe circumstances, Savage's strategy was reasonable. 

### We conclude Savage's refusal to request a lesser included instruction did
not constitute ineffective assistance ofcounsel. Personal Restraint Petition 

### In his personal restraintpetition, Huber alleges Savage was ineffective in three additional ways: (1) forsleeping through portions of the trial, (2) for 

### refusing to prepare and call Huber as a witness, and (3) forfailing to prepare and investigate the case properly. Huber claimsthese alleged errors occurred because Savage was ill with cancerduring the trial. He requests that his petition be sent backto the trial court for an evidentiary hearing on these allegations, 

### which he contends are supported by his own declaration, two letters from 

### Savage's oncologist, and a declarationfrom James Roe, the attorney who represented codefendant Chaney in the joint trial.

13No. 67776-4-1/14 It is undisputed that Savage was suffering from esophageal cancer, the condition that led to his death more than four months after the trial ended. But the record is insufficient to create a factual issue about how Savage's illness affected his performance. When a defendant's postconviction motion includes a claim of ineffective counsel, and the counsel in question cannot appear to explain or rebut the claim, "then the defendant should not, by uncorroborated allegations, be allowed to make a case for ineffectiveness." State v. Lukasik, 115 Wis.2d 134, 340 N.W.2d 62, 65 (1983). Huber's self-serving declaration claims that Savage was dozing off during trial. Nowhere in Roe's declaration does he accuse Savage of 

### sleeping in court. The prosecutor noticed no such behavior. The oncologist's letters do not address Savage's condition duringthe trial. 

### The trialjudge was in an excellent position to observe counsel during this lengthy trial. Before trialbegan in July 2011, the trial court had ordered a continuance to accommodate Savage's treatment, so the court was apprised of his illness. Yet there is no indication inthe record ofany question inthejudge's 

### mind aboutwhether Savage was falling asleep during the proceedings orwas too weak or distracted to be effective. Thejudge was well aware ofthe rule that 

### permitted an evidentiary hearing to be held on Huber's motion forrelieffor judgment ifthere was any factual basis forit. Under CrR 7.8 (c)(2), the trial court "shall" transfer such a motion to the Court ofAppeals for consideration as a 

### personal restraintpetition unlessthe court determines the defendant has made a

14No. 67776-4-1/15 

### substantial showing that he is entitled to relief, or resolution ofthe motionwill 

### require a factual hearing. The fact that the trial court chose to transfer Huber's motion to this court ratherthan hold a hearing suggests thatthe court, having observed the trial, was not concerned that Savage's illness impaired his performance. A review ofthe trial record shows that Savage was not only alert and 

### prepared, butoften masterful. Heably argued motions in limine (tothe benefitof 

### not justHuber, but Roe's client, Chaney); he was "real goodin front of ajury" 

### (Huber's own assessmentofvoirdire, as relayed in one ofhis phone callsfrom jail); oncross-examination, Savageshowed Sylve up as a liar (to Huber's delight,
as shown in the recorded calls); and in closing argument, Savage showed how 

### Sylve's untrustworthiness created reasonable doubt. In a motion to strike, Huber asks this court to strike appendices 2 and 3 to 

### the State's response to his personalrestraintpetition. Appendix 2 is a Seattle 

### Times obituary detailing Savage's respected career. The Stateclaims it submitted the newspaperarticle simply as the mostefficientmeans of 

### establishing Savage's date ofdeathin January 2012. We accept thesubmission for that purpose and disregard the remainder. 

### Appendix 3 is asworn declaration Savageprovided in March 2011 in a completely separate case in which herepresented thedefendant, Sione Lui. In thedeclaration, Savage explains hislongtime practice ofclosing his eyes to

concentrate: 

### Inever"fell asleep" during thetrial ofthis case. Giventhelayoutof

15No. 67776-4-1/16 the courtroom, ifIwere asleep itwould have been in fullview ofthe judge, lower bench, and prosecutors, none ofwhom raised a concern, which would have been apparent inthe transcript ofthe trial. Forthe entirety of my career, Ihave attimes closed my eyes during legal arguments. This blocks out visual distractions and allows me to listen and focus on the argument being made. The State wants us to consider the declaration as a general response to Huber's claims because Savage is not alive to provide his own declaration. Evidence rules do not apply to habeas corpus proceedings pursuantto ER 1101(c) (3). Inre Pers. Restraint of Dyer, 143 Wn.2d 384, 394, 20 P.3d 907 

### (2001). Therefore, the hearsay rule does not necessarily bar us from considering Savage's declaration fromthe other case. Nevertheless, we grant Huber's motion to strike the declaration because it is related to a case tried years before 

### Huber's trialbegan. Even withoutit, however, there is no need for an evidentiary hearing to determine the merits of the claim that Savage fell asleep. As to Huber's contention that Savage advised him againsttestifying 

### because Savage was "not prepared" to present his testimony, Huber offers no evidence that Savage improperlycoerced him into remaining silent. Without such evidence, Huber is not entitled to an evidentiary hearing on this claim. See State v. Thomas, 128 Wn.2d 553, 561, 910 P.2d 475 (1996) (noting that a 

### defendant must produce more than a bare, unsubstantiated, self-serving 

### statementthat his lawyer, in violation of professional standards, forbade him to take the stand). 

### Huber supports hisclaim that Savage was falling down on the jobwith an affidavit from James Roe, the attorney who represented Chaney, the

16No. 67776-4-1/17 codefendantwho did testify. But Chaney's decision to testify and thejury's inability to reach a verdict in Chaney's case do not weigh one way or the other with respect to Savage's performance because the evidence against Huberwas strongerthan the evidence against Chaney. Unlike Chaney, Huberwas implicated not only by Sylve's testimony but by the testimony ofthe four women to whom Huber made incriminating statements before and afterthe murder. Given those numerous incriminating statements and Huber's recorded phone calls from jail, Savage likelykept Huber offthe stand to avoid exposing him to a 

### damaging cross-examination. This decision was consistentwithSavage's overarching, and reasonable, strategy ofcreating reasonable doubt by calling Sylve's credibility into question. 

### Insummary, the trial court properly concluded that Huber was not entitled to an evidentiary hearing. The existing record suffices to demonstrate that defense counsel effectively assisted his client. We affirm the conviction and deny the personal restraint petition. 

# ^^u<g e.
WE CONCUR: 

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