IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Personal Restraint of

DON ARTHUR MOORE,

Petitioner.

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No. 36095-4-III

UNPUBLISHED OPINION

PENNELL, A.C.J. — A jury convicted Don Arthur Moore of premeditated 

first degree murder. The victim was Mr. Moore’s rural neighbor, Bruce Molony. The trial 

evidence was detailed in our prior decision in Mr. Moore’s direct appeal. See State v. 

Moore, No. 32925-9-III (Wash. Ct. App. Feb. 9, 2017) (unpublished), 

https://www.courts.wa.gov/opinions/pdf/329259_ord.pdf. In this review of Mr. Moore’s 

personal restraint petition (PRP), we focus on the theories presented at Mr. Moore’s trial 

and sentencing in order to discern whether Mr. Moore’s trial counsel was ineffective for 

failing to investigate the possibility of a mental health defense. We hold that, given the 

clear signs of mental impairment, counsel’s failure to secure a mental health evaluation 

constituted deficient performance. However, Mr. Moore has shown that this deficiency 

prejudiced him only with respect to his sentence, not the conviction. We therefore grant 

Mr. Moore’s PRP in part, vacate his sentence, and remand for resentencing.

FILED

OCTOBER 1, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36095-4-III

In re Pers. Restraint of Moore

2

BACKGROUND

State’s theory of the case

The State claimed Don Moore murdered Bruce Molony in retaliation for 

Mr. Molony’s theft of over $10,000 in property from Mr. Moore’s residence. Mr. Moore 

first notified the police of the alleged thefts on April 9, 2013. When no arrest was made, 

Mr. Moore became frustrated. On April 19, Mr. Moore told two associates that he was 

going to kill Mr. Molony. The associates did not take Mr. Moore seriously. On April 20, 

Mr. Moore armed himself with a holstered pistol, three knives, and a pellet gun and drove 

out to Mr. Molony’s property. Mr. Moore confronted Mr. Molony while Mr. Molony was 

seated outside his home. Mr. Moore made some demands of Mr. Molony and then shot 

Mr. Molony with the pistol while Mr. Molony remained seated.1

 After a brief pause, Mr. 

Moore fired several more shots, emptying his gun in the process. At that point, Mr. 

Molony was mortally wounded. Even so, Mr. Moore proceeded to stab Mr. Molony 

several times with one of his knives.

After killing Mr. Molony, Mr. Moore attempted to drive away from the scene. 

However, his vehicle got stuck and was unable to move. At this point, Mr. Moore

 1 The State theorized that Mr. Molony was seated at the time of the shooting based 

on the trajectory of bullet wounds discovered during an autopsy.
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3

inflicted superficial wounds on his abdomen and head. He also made some cuts to his 

shirt. Mr. Moore took his knife and placed it next to Mr. Molony’s body. He also stuck 

a knife sheath into Mr. Molony’s back pocket, next to his wallet. He then deposited his 

gun a short distance from the knife and called 911. Mr. Moore reported that he had been 

stabbed and hit in the head with a rock. Mr. Moore requested an ambulance and also told 

the 911 operator that he had killed Mr. Molony.

Defense theory of the case

The defense claimed Mr. Moore acted in self-defense. At trial, Mr. Moore testified 

that he had gone out to Mr. Molony’s property in order to perform a citizen’s arrest. Mr. 

Moore believed Mr. Molony was dangerous and he therefore armed himself with a loaded 

firearm, holstered inside his shirt. Mr. Moore also claimed he had only two knives in his 

car, not three. Mr. Moore explained that when he arrived at Mr. Molony’s property, he 

encountered Mr. Molony seated next to his home. He confronted Mr. Molony about the 

alleged thefts and told Mr. Moony he was going to perform a citizen’s arrest. According 

to Mr. Moore, Mr. Molony then came at him, flailing his arms around. Mr. Moore saw a 

flash of silver, which he thought was a gun, but turned out to be a knife. Mr. Molony’s 

actions prompted Mr. Moore to shoot his gun at Mr. Molony at close range. Mr. Moore 

then continued to shoot because Mr. Molony did not stop moving.
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At trial, Mr. Moore could not recall the rest of his encounter with Mr. Molony. 

But in pretrial statements, Mr. Moore admitted to stabbing Mr. Molony with the knife 

Mr. Molony had used against him. Mr. Moore acknowledged that he was the owner of the 

knife in question. Nevertheless, he maintained the knife was one of the many pieces of 

property that Mr. Molony had stolen from Mr. Moore’s residence. Mr. Moore asserted he 

called 911 immediately after the incident. He claimed his car became stuck when he 

attempted to drive himself to the hospital.

Conviction and sentencing

The trial court instructed the jury on both first degree premeditated murder 

and second degree murder. It also provided jurors with a self-defense instruction. As 

previously noted, the jury’s verdict was consistent with the State’s theory of premediated 

first degree murder.

Sentencing took place the morning after the jury’s verdict. The State requested a 

high-end sentence of 404 months’ imprisonment. The defense did not make a specific 

sentencing request, reasoning that any term of incarceration would amount to a life 

sentence given Mr. Moore’s age (he was 67 at the time of sentencing). Defense counsel 

advised the court that Mr. Moore had been diagnosed with post-traumatic stress disorder 
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5

(PTSD) as a result of his service in Vietnam.2 Mr. Moore also mentioned his military 

service during allocution. He stated that he was a 100 percent disabled veteran and that he 

had acted pursuant to his training when he killed Mr. Molony. Mr. Moore adamantly 

denied experiencing a blackout at the time of his confrontation with Mr. Molony. He 

continued to maintain that he had killed Mr. Molony in self-defense.

In imposing the sentence, the trial court noted that Mr. Moore’s military service 

was a mitigating factor. However, the court indicated that it was not aware of “what 

medical diagnosis the government has provided.” Report of Proceedings (Sept. 25, 2014) 

at 62. In selecting a term of incarceration, the court did not follow the State’s 

recommendation of a high-end sentence. Instead, the court imposed a sentence within 

the upper region of the standard range, plus firearm and deadly weapon enhancements.3

Postconviction developments

Mr. Moore’s judgment and sentence was affirmed on appeal. Mr. Moore then filed 

this PRP, alleging ineffective assistance of counsel based on trial counsel’s failure to 

investigate his mental health history, and the possibility of a diminished capacity defense

and an exceptional sentence downward at sentencing. Although one of Mr. Moore’s early 

 2 The defense did not submit any documents to support this information.

3 The standard range plus enhancements was 324-404 months. The court imposed a 

total sentence of 384 months. 
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attorneys filed a motion for a medical examination to explore issues of competency and 

diminished capacity, only a competency evaluation took place.4 No evaluation regarding 

Mr. Moore’s mental state at the time of the offense ever occurred. According to Mr. 

Moore, his trial counsel refused to investigate the possibility of a diminished capacity 

defense.

In support of his ineffective assistance of counsel allegations, Mr. Moore has filed 

numerous documents that were not part of the original record. They are recounted below.

Medical records submitted by Mr. Moore state Mr. Moore has a long-standing 

PTSD diagnosis, stemming from his service in Vietnam. Through the years, Mr. Moore 

has participated in numerous services through the United States Department of Veterans 

Affairs (VA). According to VA records, after Mr. Moore was injured in Vietnam, he 

“began utilizing anger/rage to combat his pain.” PRP Ex. G at 2. Since that time, Mr. 

Moore has struggled with his anger. He has experienced rage against the government 

and a tendency to respond to external injustices with anger. Mr. Moore found that 

medications helped him address his anger problems.

 4 The competency evaluation was based on a clinical profile, routine laboratory 

testing, a treatment planning session and forensic interview. Although the evaluation 

referred to police reports and criminal history, it did not include a review of medical or 

mental health records. The evaluation report does not indicate that there was any 

assessment of Mr. Moore’s mental state at the time of the offense conduct.
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The documents submitted with Mr. Moore’s PRP indicate that during the months 

and days leading up to Mr. Molony’s April 2013 death, Mr. Moore’s mental health was 

deteriorating. In 2011, Mr. Moore began experiencing blackouts, periods of confusion, 

and often lost his sense of time. An MRI in December 2012 revealed that Mr. Moore had 

white spots on his brain. By this same time, Mr. Moore had also lost close to 60 pounds 

and was physically unstable. In January 2013, a VA medical provider suspected Mr. 

Moore was suffering from delirium secondary to drug withdrawal. Mr. Moore was 

provided a medication reduction plan. The plan appeared to be working, but on April 9, 

2013, Mr. Moore was hospitalized after he collapsed at the sheriff’s office while 

reporting Mr. Molony for theft. Medical records from April 14, 2013, report that Mr. 

Moore was having memory problems, causing him to forget what was going on around 

him.

One of Mr. Moore’s longtime friends states that Mr. Moore was acting in a “very, 

very weird” manner in the weeks prior to his arrest. PRP Ex. N at 2. “He was wearing a 

cowboy hat with a sheriff’s badge and kept calling himself the ‘sheriff.’ . . . He was 

acting totally paranoid and he constantly forgot what he was talking about. He would say, 

frequently, that he could not remember what he had just said.” Id. A photograph of a hat 
No. 36095-4-III

In re Pers. Restraint of Moore

8

with a replica sheriff’s badge that had been found in Mr. Moore’s vehicle was admitted 

into evidence at trial.

Also in support of the PRP, Mr. Moore has submitted a declaration from April 

Gerlock Ph.D., ARNP, a board certified, adult psychiatric/mental health nurse 

practitioner. Dr. Gerlock explains that she has been unable to conduct a complete inperson evaluation of Mr. Moore due to lack of funds. However, based on a review of 

Mr. Moore’s record and the case file, Dr. Gerlock believes that Mr. Moore’s PTSD 

could have caused him to experience heightened arousal and aggression at the time of 

Mr. Molony’s death. According to Dr. Gerlock, an evaluation of how Mr. Moore’s PTSD 

affected his state of mind in the weeks leading up to Mr. Molony’s death was warranted.

In response, the State has filed a declaration from Mr. Moore’s trial counsel. Trial 

counsel states that he did not investigate a mental health defense because Mr. Moore felt 

there was no need for a mental health evaluation and was adamant that he knew exactly 

what he had done. According to trial counsel, “Mr. Moore’s version of the events that led 

up to the incident as well as the facts of the incident itself was consistent during the 

entirety of my representation.” State’s Response to PRP, App. J at 2. “Mr. Moore clearly 

knew what he was doing and what was happening at [the point he shot Mr. Molony]. 

There was no reason to raise a mental health defense and Mr. Moore agreed.” Id. at 4.
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In re Pers. Restraint of Moore

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This court’s initial screening of Mr. Moore’s PRP determined his claims for relief 

were not frivolous. Thus, the case was referred to a panel of judges for review on the 

merits.

ANALYSIS

The right to effective assistance of counsel is guaranteed both by the federal and 

state constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. To prevail on an 

ineffective assistance of counsel claim, a litigant must show that counsel performed 

deficiently and that this deficient performance was prejudicial. State v. Grier, 171 Wn.2d 

17, 32-33, 246 P.3d 1260 (2011). Proof of both prongs of this analysis are necessary to 

warrant relief. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984). We therefore review each in turn.

Deficient performance

We assess the sufficiency of trial counsel’s conduct according to the facts and 

circumstances known at the time of representation and invoke “a strong presumption 

that counsel’s conduct” was reasonable. Id. at 689. This is an extremely deferential 

standard of review. But it has limits. If counsel’s decisions about how to proceed 

with representation are based on inadequate preparation or investigation, they cannot 

be deemed reasonable. See Wiggins v. Smith, 539 U.S. 510, 524-26, 123 S. Ct. 2527, 
No. 36095-4-III

In re Pers. Restraint of Moore

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156 L. Ed. 2d 471 (2003). Reasonable investigation “includes expert assistance necessary 

to an adequate defense.” State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006) 

(citing Ake v. Oklahoma, 470 U.S. 68, 72, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985)).

Mr. Moore’s trial counsel has disclosed that he did not investigate the possibility 

of a mental health defense because Mr. Moore felt there was no need for a mental 

health evaluation, Mr. Moore appeared to know exactly what he had done, and because 

Mr. Moore had a viable self-defense claim. Trial counsel also explains that he could not 

discern how Mr. Moore’s PTSD could have provided a defense to the State’s charge 

of premeditated murder.

Trial counsel’s explanation of his representation strategy falls short because it

“puts the cart before the horse.” Bemore v. Chappell, 788 F.3d 1151, 1166-67 (9th Cir. 

2015). Mr. Moore has not alleged that his attorney settled on the wrong trial strategy. The 

argument is that counsel failed to investigate prior to choosing a strategy. The 

constitutional guarantee of effective assistance of counsel dictates that counsel’s 

investigation “determine[s] trial strategy, not the other way around.” Weeden v. Johnson, 

854 F.3d 1063, 1070 (9th Cir. 2017). “Counsel cannot justify a failure to investigate 

simply by invoking strategy.” Id.
No. 36095-4-III

In re Pers. Restraint of Moore

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The record amply supports the assertion that trial counsel was on notice of 

Mr. Moore’s impaired mental state. Trial counsel was aware that Mr. Moore had 

suffered from combat-related PTSD, regularly suffered from blackouts, and experienced

a series of unusual medical incidents in the weeks prior to his arrest.

In addition, there were facts suggesting a mental impairment may have had 

relevance to Mr. Moore’s offense conduct. At the time of his arrest, Mr. Moore was in his 

late 60s and had no history of felonious conduct. Mr. Moore appears to have been fixated 

on his belief that he was entitled to act as a sheriff and had even carried a hat with a false 

sheriff’s badge in his car. Although only 10 days had passed since his theft report to law 

enforcement, Mr. Moore had grown despondent and believed that he needed to take 

matters into his own hands. These circumstances raise the possibility that Mr. Moore 

might have been suffering from some sort of delusional disorder, in addition to PTSD, 

that impacted Mr. Moore’s actions against Mr. Molony.

Given Mr. Moore’s obvious struggles with mental health, defense counsel had 

a duty to obtain a psychological evaluation before rejecting the possibility of a mental 

health defense. See In re Pers. Restraint of Davis, 188 Wn.2d 356, 376, 395 P.3d 998

(2017). Without an expert evaluation, defense counsel was not in a position to reject 

the viability of a mental health defense based on his own assumptions about PTSD. 
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In re Pers. Restraint of Moore

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Although Mr. Moore may have seemed adverse to such a defense (a fact that Mr. Moore 

disputes), this was not a valid reason for failing to investigate.5 It is hardly unusual for an 

individual who is suffering from mental illness to struggle with accepting the existence 

of a disorder. Regardless of Mr. Moore’s resistance, defense counsel had a duty to 

investigate Mr. Moore’s condition and then, once armed with an evaluation, counsel

Mr. Moore on whether to raise a mental health defense. The failure to do so constituted 

deficient performance.6

Prejudice

The fact that trial counsel performed deficiently does not automatically entitle 

Mr. Moore to relief. Mr. Moore must also establish prejudice. This involves demonstrating

 5 The State claims Mr. Moore was adamantly opposed to asserting a mental health 

defense. The record does not support this claim. The declaration from Mr. Moore’s trial 

attorney states that the attorney was told by Mr. Moore’s original counsel that Mr. Moore 

was “unhappy with [the] decision to file a motion for competency evaluation and that Mr. 

Moore felt that there was no need for any mental health evaluations.” State’s Response to 

PRP, App. J at 1-2. While trial counsel’s declaration states that Mr. Moore “was adamant 

that he did nothing wrong” and that “[h]e was firm in his commitment to a self-defense 

strategy,” id. at 4, the declaration does not state that Mr. Moore was adamantly opposed 

to a mental health evaluation (which is not the same thing as a competency evaluation) or 

that he would have refused to participate in an evaluation.

6 This is not a case where exploration of Mr. Moore’s mental state would have 

undermined Mr. Moore’s proffered defense theory. Cf. Bean v. Calderon, 163 F.3d 1073, 

1082 (9th Cir. 1998). Evidence regarding Mr. Moore’s mental health could have been 

relevant to explaining the perceived problems with Mr. Moore’s testimony and memory.
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a “‘reasonable probability that, but for counsel’s deficient performance, the outcome of 

the proceedings would have been different.’” Grier, 171 Wn.2d at 34 (quoting State v. 

Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)); see also In re Pers. Restraint of Lui, 

188 Wn.2d 525, 538, 397 P.3d 90 (2017); In re Pers. Restraint of Crace, 174 Wn.2d 835,

846-47, 280 P.3d 1102 (2012). This reasonable probability “is a probability sufficient to 

undermine confidence in the outcome,” and is thus lower than the preponderance 

standard. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (citing Strickland, 

466 U.S. at 694).

Mr. Moore’s primary claim is that defense counsel’s failure to investigate a mental

health defense caused him to be wrongly convicted. Had defense counsel conducted an 

adequate investigation, Mr. Moore proffers that he would have been able to raise the 

defense of diminished capacity and obtain either acquittal or a lesser conviction for 

manslaughter.

Mr. Moore recognizes that, as the record currently stands, he is unable to 

substantiate his claim of prejudice at trial. In order to have raised a diminished capacity 

defense, Mr. Moore would need expert testimony, explaining how his “mental condition 

specifically related to his ability to achieve a culpable mental state.” State v. Gough, 

53 Wn. App. 619, 622-23, 768 P.3d 1028 (1989). The current record is insufficient to 
No. 36095-4-III

In re Pers. Restraint of Moore

14

suggest that Mr. Moore might have been able to obtain such testimony. Though the record 

establishes that Mr. Moore suffers from PTSD and that he was having emotional 

problems at the time of his arrest, there is nothing in the record indicating Mr. Moore 

would be able to present a jury with admissible expert testimony linking his mental 

condition to the crime of first degree premeditated murder.

Given the state of the record, Mr. Moore requests the court approve expert funds 

so that he may obtain a full psychological evaluation and make an adequate showing of 

trial prejudice. This is an unusual request, and one that lacks a clear legal basis. There 

is no constitutional right to investigative assistance in postconviction proceedings. In re 

Pers. Restraint of Gentry, 137 Wn.2d 378, 390, 972 P.2d 1250 (1999). Whereas the rules 

of appellate procedure contemplate the possibility of postconviction expert appointments 

in the death penalty context, see RAP 16.27, there is no similar provision that applies to 

standard PRPs. In addition, even in the death penalty context, our court rules only allow 

for expert funds when there has been legislative authorization and approved funding. 

We are unaware of any authorization or approval of expert funds in the nondeath penalty 

PRP context.

The only rule that allows expenditure of funds outside the death penalty context is 

RAP 16.15(h). Under that rule, the court of appeals
No. 36095-4-III

In re Pers. Restraint of Moore

15

may provide for the appointment of counsel at public expense for services 

in the appellate court, order waiver of charges for reproducing briefs and 

motions, provide for the preparation of the record of prior proceedings and 

provide for the payment of such other expenses as may be necessary to 

consider the petition in the appellate court.” 

(Emphasis added.) This rule does not obviously apply to expert services. Expert services 

are necessary to develop a PRP, not for consideration thereof.

At best, RAP 16.15(h) might allow for appointment of expert services “in rare 

circumstances where the petitioner can demonstrate a substantial likelihood” of 

discovering “evidence that would compel relief under RAP 16.4(c).” Gentry, 137 Wn.2d 

at 392. Such evidence “must be specific to petitioner’s own case.” Id. There is no legal 

authority for “appointment of investigators or experts to identify or develop grounds for 

challenging convictions or sentences.” Id.

Mr. Moore has not satisfied this difficult standard for appointment of expert 

services on appeal. Dr. Gerlock’s preliminary report fails to suggest how Mr. Moore’s 

mental condition might have undermined his conviction for premediated murder. The 

State’s theory was that Mr. Moore developed an intent and plan to kill Mr. Molony prior 

to the date of the homicide. Dr. Gerlock’s report does not explain how PTSD could have 

undermined Mr. Moore’s capacity to form intent over such a prolonged period of time. As 

the record currently stands, Mr. Moore has not made an adequate showing that 
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appointment of Dr. Gerlock to complete her analysis would compel relief from his 

judgment of conviction. See State v. Bottrell, 103 Wn. App. 706, 719-20, 14 P.3d 164 

(2000) (evidence of PTSD not relevant to rebut premeditated intent). While it could 

be that Mr. Moore was suffering from a disorder beyond typical PTSD that might have 

impaired his thinking over a substantial period of time, Dr. Gerlock’s report does not raise

this possibility. Judicial speculation, alone, does not warrant expert appointment under 

RAP 16.15(h).

Mr. Moore argues that if this court does not grant his request for expert services, 

the matter should be remanded to the superior court so that Mr. Moore can make a request 

to the superior court judge. This argument lacks legal support. A PRP may be transferred 

from the court of appeals to the superior court under RAP 16.11(b) “only if the petitioner 

demonstrates he or she has competent, admissible evidence establishing facts which 

would require relief.” In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593 

(1998). Transfer is not appropriate to allow for the development of competent evidence 

through appointment of expert services.

Whereas Mr. Moore has not shown adequate prejudice either to justify relief 

from conviction or for appointment of an expert to examine the possibility of relief from 

conviction, the same is not true of his claim with respect to sentencing. Even where 
No. 36095-4-III

In re Pers. Restraint of Moore

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insufficient to justify a diminished capacity defense, evidence of the defendant’s 

diminished capacity may justify an exceptional sentence downward, RCW 9.94A.535(1)(e), 

or at least a sentence at the low end of the standard range. Here, the evidence submitted 

along with Mr. Moore’s PRP suggests not only general impairment from PTSD, but 

extreme anxiety and aggression caused by combat-induced trauma. Mr. Moore’s experience

with trauma has, historically, diminished his ability to handle perceived injustices. While

medications had helped Mr. Moore deal with this problem in the past, his medications were 

being tapered off at the time of his offense conduct. Mr. Moore’s behavior prior to the 

offense, especially his practice of representing himself to others as a sheriff, may have

indicated the presence of some delusions. Although there is no evidence to indicate Mr. 

Moore’s impairment was sufficient to justify a defense to the crime charged, there is reason 

to believe that an investigation of Mr. Moore’s mental health and military service would 

have led to a plausible case for either an exceptional sentence downward or, at least, a 

sentence at the low end of the standard range.7

 7 Mr. Moore’s sentence of 384 months was 5 years longer than the low end of the 

standard range.
No. 36095-4-III

In re Pers. Restraint of Moore

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Mr. Moore has demonstrated that he was prejudiced at sentencing due to defense 

counsel’s failure to conduct a reasonable investigation of his mental state. As such, 

Mr. Moore’s sentence must be vacated and the matter remanded for resentencing.8

CONCLUSION

Mr. Moore’s PRP is granted in part. Mr. Moore’s petition for relief from 

conviction is denied. However, we grant the request for relief from his sentence. 

Mr. Moore’s sentence is vacated and this matter is remanded to the superior court for 

resentencing and any additional proceedings as may be deemed appropriate. Mr. Moore’s 

motion for expert services under RAP 16.15(h) is denied. The motion for current counsel 

to be appointed as counsel at public expense is denied as current counsel is not presently

under contract with the Office of Public Defense for cases in Division Three of the Court 

of Appeals. All other pending motions are denied as moot.

 8 Mr. Moore makes two additional claims of ineffective assistance, neither of 

which warrant significant analysis. First, Mr. Moore claims defense counsel performed 

deficiently in failing to seek to exclude Mr. Moore’s pretrial statements to police as 

involuntary. This claim fails for lack of factual support. A statement to police cannot be 

excluded as involuntary unless it was elicited by coercive police activity. State v. Unga, 

165 Wn.2d 95, 100-01, 196 P.3d 645 (2008). The record here lacks evidence of coercion. 

Second, Mr. Moore argues counsel was ineffective in failing to object to the prosecutor’s 

statement during voir dire that Mr. Moore was not facing a capital case. This argument 

was raised on direct appeal and Mr. Moore has not established a basis for revising our 

prior decision. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 670-72, 101 P.3d 1 

(2004).
No. 36095-4-III 

In re Pers. Restraint of Moore 

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. 

£0./k:s 

Pennell, A.C.J. 

I CONCUR: 

71? ddo U)~,ff-~ Siddoway, J. 

19 
No. 36095-4-III

KORSMO, J. (concurring) — I concur in the result because there was mental health 

history information that should have been called to the attention of the trial court at 

sentencing. However, I disagree with the majority’s pronouncement that trial counsel 

was deficient by not conducting a deeper investigation into Mr. Moore’s mental health 

background. The majority correctly concludes that in the absence of evidence that there 

was a viable diminished capacity defense, Mr. Moore cannot establish prejudice and this 

personal restraint petition (PRP) necessarily fails. That should have been the end of its 

analysis.

Courts must evaluate counsel’s performance using a two-prong test that requires 

determination whether or not (1) counsel’s performance failed to meet a standard of 

reasonableness and (2) actual prejudice resulted from counsel’s failures. Strickland v. 

Washington, 466 U.S. 668, 690-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Review is 

highly deferential and we engage in the presumption that counsel was competent; 

moreover, counsel’s strategic or tactical choices are not a basis for finding error. Id. at 

689-691. Thus, an attorney’s failure to perform up to the standards of the profession will 

require a new trial when the client has been prejudiced by counsel’s failure. State v. 
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In re Pers. Restraint of Moore—concurrence

2

McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). When a case can be 

resolved on one prong, there is no need to analyze the other. Strickland, 466 U.S. at 697.

Since this case fails due to lack of prejudice, the majority’s discussion about 

counsel’s alleged obligation to dig further into possible mental health defenses is only 

dicta. It is also erroneous. The majority cites In re Personal Restraint of Davis, 188 

Wn.2d 356, 376, 395 P.3d 998 (2017), in support of its conclusion that counsel had a 

duty to obtain a psychological evaluation before rejecting a mental health defense. That 

cite does not support the proposition. In Davis, the argument before the court was a 

claim that trial counsel erred in not having the right type of expert testify in support of its 

defense. The cited page of the opinion contains a recitation of earlier death penalty cases 

where the court determined that trial counsel either had or had not called the proper 

expert to support its defense. Id. It does not support the conclusion that one must always 

obtain an expert evaluation before rejecting a mental health defense. Indeed, Davis itself 

concluded that the PRP failed to establish that counsel was deficient. Id. at 378. 

The majority’s argument is also a curious one because an evaluation had been 

performed by Eastern State Hospital that determined Mr. Moore was competent to stand 

trial. That evaluation noted Mr. Moore’s prior history of PTSD, but concluded that his 

memory was excellent. Mr. Moore also conveyed his self-defense theory to the 

evaluator. The evaluator suggested that Moore’s behavioral history might justify an 
No. 36095-4-III

In re Pers. Restraint of Moore—concurrence

3

evaluation for possible involuntary commitment per ch. 71.05 RCW since he appeared to

be a danger to himself and others. 

Nothing in the evaluation suggests that there was a reason to pursue a diminished 

capacity defense.1

 Moreover, Moore’s own statements to the police and the Eastern State 

Hospital evaluator show that he purposefully acted in self-defense. While self-defense 

and diminished capacity are not necessarily exclusive defenses, they are exclusive under 

the facts of this case. Raising diminished capacity would undercut self-defense by calling 

Mr. Moore’s veracity into question. (“My client did not have the capacity to know what 

he was doing when he said he acted in self-defense.”) And given that he displayed 

purposeful behavior in planning and shooting his victim, any diminished capacity defense 

would also be a very hard sell indeed, especially in light of his statements to law 

enforcement.

Strickland recognizes that the conversations between client and attorney guide, 

and might even eliminate, the attorney’s duty to investigate. 466 U.S. at 691. “And 

when a defendant has given counsel reason to believe that pursuing certain investigations 

would be fruitless or even harmful, counsel’s failure to pursue those investigations may 

not later be challenged as unreasonable.” Id. Here, there was no obvious reason to 

 1 The majority’s speculation that Mr. Moore might have been suffering delusions 

would suggest a possible psychoses. However, a psychotic break would indicate possible 

insanity, not diminished capacity. No one has suggested insanity is a concern in this 

case. 
No. 36095-4-III

In re Pers. Restraint of Moore—concurrence

4

pursue a diminished capacity defense and a very strong reason to pursue self-defense—

the defendant was telling everyone in the world, as he would later tell the jury, that he 

acted in self-defense. Defense counsel did not have to investigate the possibility of 

diminished capacity further in light of the competency evaluation and his client’s own 

statements that he acted in self-defense.

While that explains my disagreement with the majority’s analysis, I will briefly 

add a few comments about the PRP itself. Washington does not have a state-funded 

postconviction relief process and the majority correctly rejects Mr. Moore’s argument to 

obtain state funding for efforts here. His tortured argument from the Rules of Appellate 

Procedure is absolutely unavailing. Washington court rules cannot create substantive 

rights. E.g., State v. Templeton, 148 Wn.2d 193, 213, 59 P.3d 632 (2002). The right to 

attorney and experts found in RAP 16.25 and RAP 16.27 for death penalty cases are 

based on statutory authorization. RCW 10.73.150(3). Those rules also require advance 

court authorization before appointment of counsel or retention of experts.

Similarly, our right to appoint counsel for non-frivolous PRPs in RAP 16.15(h) is 

authorized by RCW 10.73.150(4). Appointment is authorized only after a PRP of 

sufficient merit has been filed that counsel would be of assistance to the appellate court. 

The rule and statute simply do not allow for courts to go backwards and pay for expenses 

already incurred in preparing a PRP. Mr. Moore’s effort to use the court rules to create 
No. 36095-4-111 

In re Pers. Restraint of Moore-concurrence 

an expansive right to postconviction assistance of counsel and experts is totally without 

legislative authorization. He needs to go to that body if he wants to change the law. 

With those observations, I concur in the result. 

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