IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

PETER LANUM TREVIGNE,

Appellant.

No. 84222-6-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, A.C.J. — Peter Trevigne appeals from his conviction for one 

count of assault of a child in the first degree—domestic violence against his threemonth-old child, X, as well as the special verdicts that X was a particularly 

vulnerable victim and Trevigne abused his position of trust in the commission of 

the crime. He seeks reversal on the grounds that he was “surprised” at trial by 

evidence of his text messages, his constitutional right to an impartial jury was 

violated, and he received ineffective assistance of counsel. We disagree and 

affirm. However, remand is required for the trial court to strike certain legal 

financial obligations from Trevigne’s judgment and sentence, and to consider 

whether to impose interest on restitution pursuant to RCW 10.82.090(2).

FACTS1

On August 14, 2018, the State charged Peter Trevigne with one count of 

assault of a child in the first degree, alleged as a crime of domestic violence, based 

 1 Additional facts will be set out in each section as necessary for analysis of the various 

assignments of error.
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on an incident involving his then three-month-old son, X. Thereafter, the State 

filed an amended information and added special allegations that X was a 

particularly vulnerable victim and Trevigne abused a position of trust. The charges 

stemmed from serious brain injuries that X suffered while in the sole care of 

Trevigne on August 9, 2018. When X arrived at the hospital, initial CT2 scans 

showed brain swelling and subdural hematomas on both sides of X’s brain.

The case proceeded to trial and the State offered testimony from numerous 

physicians and medical experts who treated and observed X, all of whom 

concluded that the injuries were consistent with nonaccidental trauma and abusive 

head trauma. Trevigne took the stand in his own defense and testified that he was 

walking around the apartment rocking X, when all of a sudden “[X] just jolt[ed] and 

g[ot] real stiff.” According to Trevigne, X remained stiff and turned bright red for 

five to ten seconds before “snap[ping] out of it.” Then, Trevigne stated, X had a 

“wet dry heave” and “his eyes close[d] and he [went] limp.” Angela Setlak, X’s 

mother and Trevigne’s former partner, also testified.

The jury found Trevigne guilty as charged and further found the State had 

proved each special allegation beyond a reasonable doubt. After the verdict, 

Trevigne moved for a new trial, but the judge denied the motion and imposed an 

exceptional sentence above the standard range of 150 months confinement. The 

court also imposed the $500 victim penalty assessment (VPA) and $100 DNA 

collection fee as legal financial obligations, as well as $5,000 in restitution, with an 

 2 Computed tomography.
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order that the restitution award would accrue interest in accordance with a statute 

in effect at the time of sentencing.

Trevigne timely appealed.

ANALYSIS

I. Claim of Juror Bias

Trevigne first assigns error to the trial court’s denial of his challenge for 

cause against juror 122 who, according to Trevigne, exhibited actual bias. 

As the trial court weighs the credibility of a challenged juror and is in the 

best position to observe them, we give “substantial deference to the trial court’s 

decision of whether the juror is actually biased such that dismissal is appropriate.” 

State v. Sassen Van Elsloo, 191 Wn.2d 798, 806-07, 425 P.3d 807 (2018). “A trial 

court abuses its discretion if its decision is ‘manifestly unreasonable or based on 

untenable grounds.’” Id. at 807 (quoting Wash. State Physicians Ins. Exch. & Ass’n 

v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)). The denial of a 

challenge for cause “will not constitute reversible error absent a manifest abuse of 

that discretion.” State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). 

The right to a fair and impartial jury is guaranteed to all criminal defendants 

by our state and federal constitutions. WASH. CONST. art. I, § 22; U.S. CONST.

amend. VI. To protect this constitutional right, a party may seek to excuse a juror 

by challenging them for cause. State v. Guevara Diaz, 11 Wn. App. 2d 843, 855, 

456 P.3d 869 (2020); CrR 6.4(c)(1). One of the particular grounds for such a 

challenge is “actual bias,” which is defined as “the existence of a state of mind on 

the part of the juror in reference to the action, or to either party, which satisfies the 
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court that the challenged person cannot try the issue impartially and without 

prejudice to the substantial rights of the party challenging.” RCW 4.44.170(2). To 

sustain a challenge based on actual bias, “the court must be satisfied, from all the 

circumstances, that the juror cannot disregard such opinion and try the issue 

impartially.” RCW 4.44.190.

Before jury selection began on August 19, 2022, the potential jurors filled 

out written questionnaires and answered questions on their ability to serve. The 

State notes in briefing that the instructions of the court for jurors completing the 

questionnaire do not appear in the record from the trial court, but instructions on a 

questionnaire proposed by Trevigne expressly directed participants to “please 

answer ‘yes’ to any question where you believe your response would be ‘yes’ or 

‘maybe.’”3 (Emphasis added.) Juror 122 answered “Yes” to the question, “Is there 

any reason that you would be unable to be fair and impartial to both sides in a case 

involving an accusation of assault of an infant?” In explanation of her response to 

that question, juror 122 wrote, “Maybe. I’m a mother and would have [a] hard time 

understanding why someone would do that.” Juror 122 later answered “No” to the 

question, “Do you have any concerns for any reason about your ability to be a fair 

and impartial juror in this case?”

During questioning of the prospective jurors, juror 122 and eight others 

raised their hands when defense counsel asked the panel if they thought “you 

 3 On the proposed questionnaire from the defense, there is a preprinted line immediately 

following question seven about reasons a juror might be unable to try the case fairly or impartially. 

The line reads, “If yes or maybe, please explain briefly,” followed by four blank lines for the juror’s 

response.
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know, this is not for me. I really can’t just set aside everything and sort of be this 

idealized version of impartiality.” When asked to explain, juror 122 stated:

I mean, similar to what a couple of the other jurors have said. I mean, 

we’ve all been there with small children, but there’s a million options 

besides shaking them and hurting them and it just has long-term 

impacts and I think I’d like to think I could be unbiased, but I’m not 

sure I could when it comes to abuse of a small child.

(Emphasis added.) Trevigne challenged juror 122 for cause and the trial court 

denied the challenge. Trevigne exhausted his peremptory challenges on other 

jurors and juror 122 was seated and deliberated.

On appeal, Trevigne points to juror 122 stating, “I think I’d like to think I 

could be unbiased, but I’m not sure I could when it comes to abuse of a small 

child,” as establishing actual bias. However, “equivocal answers alone do not 

require a juror to be removed when challenged for cause, rather, the question is 

whether a juror with preconceived ideas can set them aside.” Noltie, 116 Wn.2d 

at 839. Actual bias must be “established by proof” and “the record must 

demonstrate ‘that there was a probability of actual bias.’” Sassen Van Elsloo, 191 

Wn.2d at 808-09 (quoting Noltie, 116 Wn.2d at 838-39). The single statement 

identified by Trevigne is equivocal and insufficient by itself to constitute actual bias.

Trevigne relies on Guevara Diaz as support for his argument on this issue. 

In that case, the juror answered “No” in a questionnaire asking whether she could 

be fair to both sides in a sexual assault trial, the trial court did not allow defense 

counsel to question her outside the presence of the jury, and neither the court nor 

the defense asked her any questions during voir dire. 11 Wn. App. 2d at 846-47. 

The only question the juror was asked individually was whether “she could follow 
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the judge’s instruction in reviewing the evidence even if she did not want someone 

to be punished.” Id. at 857. She responded, “I would be able to. No 

compromising.” Id. This court held that “she exhibited actual bias” as “[a]ll that the 

record clearly shows is that juror 23 said she could not be fair.” Id. at 858.

Here, unlike the limited exchanges in Guevara Diaz, the record shows 

multiple responses from juror 122, both written and verbal, that do not indicate an 

inability to be fair and impartial. Although juror 122 answered “Yes” to whether 

there was “any reason that [she] would be unable to be fair and impartial to both 

sides,” she clarified her answer with: “Maybe. I’m a mother and would have [a] 

hard time understanding why someone would do that.” Moreover, juror 122 later 

answered “No” when specifically asked if she had “any concerns for any reason 

about [her] ability to be a fair and impartial juror in this case.” While her answer 

during voir dire showed some equivocation, that is not enough to show actual bias. 

Noltie, 116 Wn.2d at 839. Here, the record does not establish that juror 122 had 

a probability of actual bias and, thus, the trial court did not abuse its discretion in 

denying the defense challenge for cause. See Sassen Van Elsloo, 191 Wn.2d at 

808-09.

II. Defense Motion for New Trial

Trevigne avers the trial court erred in denying his motion for a new trial 

“based on surprise and irregularity.”4 We disagree.

 4 On appeal, Trevigne points to two distinct provisions in support of his contention that the 

trial court erred denying his motion for a new trial: CrR 7.5(a)(4), “Accident or surprise,” and CrR 

7.5(a)(5), “Irregularity in the proceedings of the court, jury or prosecution, or any order of court, or 

abuse of discretion, by which the defendant was prevented from having a fair trial.” However,

Trevigne did not raise CrR 7.5(a)(5) in his motion for a new trial. Moreover, he makes no attempt 
No. 84222-6-I/7

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A. Facts from Trial

Trial commenced on April 25, 2022, and the parties delivered opening 

statements. The State’s second witness, Detective Jayme Beecroft of the Seattle 

Police Department (SPD), was set to testify the following day. In preparing for 

Beecroft’s testimony, both defense counsel and the deputy prosecutor realized that 

they had not received Beecroft’s report on certain evidence of text messages

extracted from Trevigne’s laptop, which she had referenced during her defense 

interview in October 2020. The following morning, defense counsel raised the 

issue to the trial judge and asserted that it was a violation of the State’s obligations 

under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In 

response, the prosecutor said that he reached out to Beecroft that morning and 

requested her report. He further advised that Beecroft e-mailed him the data 

extracted from the laptop, which the prosecutor forwarded to the defense “within 

minutes.” The judge noted that the failure to timely disclose the data from the 

laptop “was at least a violation of [CrR] 4.7” and explained that Beecroft may need 

to be brought back to testify on cross-examination depending on what evidence 

had been discovered in the search of the laptop. At the conclusion of testimony 

 to meet RAP 2.5(a)’s requirement of demonstrating a “manifest error affecting a constitutional right” 

in order to raise this argument for the first time on appeal. 

“A party may not generally raise a new argument on appeal that the party did not present 

to the trial court.” State v. Lazcano, 188 Wn. App. 338, 355, 354 P.3d 233 (2015). Rather, the 

party “must inform the [trial] court of the rules of law it wishes the court to apply and afford the trial 

court an opportunity to correct any error.” Id. Because Trevigne did not raise any argument under 

CrR 7.5(a)(5) in the trial court and does not address RAP 2.5, we do not consider this argument. 

Moreover, even if Trevigne could raise this new basis for the first time on appeal, this court “will not 

review issues for which inadequate argument is briefed or only passing treatment is given.” State 

v. C.B., 195 Wn. App. 528, 535, 380 P.3d 626 (2016). As Trevigne neither provides separate 

analysis under CrR 7.5(a)(5) nor expressly identifies any specific “irregularity” that allegedly 

deprived him of a fair trial, this issue is inadequately briefed and does not warrant consideration.
No. 84222-6-I/8

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that day, the State turned over a drive that contained a detective’s analysis of the 

laptop data.

The next day, April 27, Trevigne moved for a mistrial based on the late 

disclosure of the data from his laptop. The data purportedly contained a total of 

137,624 text messages exchanged between Trevigne and other contacts, 

including Setlak, and defense counsel voiced concerns about having time to review 

those messages while also preparing for cross-examination of Setlak and other of 

the State’s witnesses. The prosecutor explained that he was not going to seek 

admission of any evidence from the laptop but rather intended to move to admit 

and publish the text messages between Setlak and Trevigne that were exchanged 

on August 9 and 10, 2018, which came from the extraction of Setlak’s cell phone. 

The evidence from Setlak’s cell phone had been provided to Trevigne during 

discovery in a Cellebrite5 report, but the court acknowledged the potential that 

there could be impeachment evidence from Trevigne’s laptop and thus required 

that Setlak be made available for possible recall on cross-examination. The judge

denied the motion for a mistrial.6

On April 28, after having reviewed the messages from Trevigne’s laptop that 

included communication with Setlak, the prosecutor stated that the defense “had 

every message from [] Setlak’s phone dating back to July of 2017, which includes 

every message from [] Setlak and [] Trevigne.” Thus, the prosecutor asserted, 

“there was nothing new” between Setlak and Trevigne that came from the laptop. 

 5 “Cellebrite” is a digital forensics tool used by law enforcement to extract data from cell 

phones.

6 Trevigne does not challenge this ruling on appeal.
No. 84222-6-I/9

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In response, defense counsel contended, incorrectly, that the Cellebrite report she 

had received in discovery only included text messages between Setlak and 

Trevigne “from August 3rd to August 10th or 13th[, 2018].” 

On May 2, Trevigne filed a motion to dismiss pursuant to CrR 8.3(b) for 

alleged violations of Brady and CrR 4.7 based on the late disclosure of the data 

extracted from Trevigne’s laptop. In the motion, defense counsel described the 

contents of the text messages from the laptop and referenced photos and text 

messages exchanged between Trevigne and his friend, Kristen Austen, as well as 

others. Defense counsel also described the text messages between Trevigne and 

Setlak as follows:

[T]he laptop analysis contains thousands of text messages between 

[] Trevigne and [] Setlak over the course of 10 months leading up to 

the incident. Many of these text messages are further evidence that 

[] Trevigne lacked the intent to harm [X]. The text messages also 

show that [] Setlak used similar derogatory language as [] Trevigne 

when referring to [X], such as calling him “little fucker,” a nickname 

she created for [X] when he was still in utero.

Trevigne argued that the laptop analysis contained Brady evidence that was 

favorable to the defense, including impeachment evidence against Setlak,

7 and 

therefore, the State’s “failure to disclose” the evidence deprived him of his right to 

a fair trial. 

The State filed a response and pointed out again that all of the messages 

between Setlak and Trevigne that were obtained from his laptop were also 

included in the Cellebrite report from Setlak’s cell phone, which was turned over to 

 7 Trevigne did not recall Setlak for additional cross-examination.
No. 84222-6-I/10

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the defense in discovery on January 28, 2020. After hearing argument from the 

parties, the trial court denied the motion to dismiss.8

On May 10, after both defense experts testified, Trevigne’s counsel sought 

a half-day recess for the following day in order to discuss the laptop materials with 

Trevigne and determine whether he would testify. The judge denied the half-day 

recess but agreed to resume trial later than usual, at 10:30 a.m. After this 

consultation with counsel, Trevigne advised the court that he would testify and 

seek to admit two exhibits derived from his laptop, text messages from Setlak 

referring to X as “little fucker” and text messages exchanged with Austen. 

On May 11, two weeks after receiving all of his own text messages that were 

derived from the analysis of his laptop, Trevigne took the stand to testify. He 

explained that he had not slept the night before the August 9, 2018 incident and 

was unable to sleep the next day due to X’s behavior. Trevigne denied being 

frustrated with X for keeping him awake and testified that it was “nothing [he] 

couldn’t handle.” When defense counsel asked him about the numerous text 

messages he had sent to Setlak on August 9, including a message that read, “This 

isn’t a good idea; can I murder [X], please?”, Trevigne asserted that he had only 

“mimicked the text messages” that Setlak had sent him when she took X to the ER 

on July 26, 2018. According to Trevigne, when Setlak was at the ER with X on 

that date, she messaged him saying, “I am going to kill him” or “Can I kill him?” On

cross-examination, however, Trevigne admitted that there was no text message 

from Setlak between July 24 and 26 where she said any such thing. Trevigne was 

 8 Trevigne does not appeal this ruling.
No. 84222-6-I/11

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also impeached with text messages that contradicted his testimony about the 

reasons behind his breakup with Setlak and his complaints to friends about Setlak 

and X.

On May 26, 2022, Trevigne filed a motion for a new trial and argued that his 

“right to a fair trial was materially affected by surprise at trial.” Trevigne claimed 

that the State “withheld evidence” of his own text messages with Setlak and that 

he “became aware of the existence of these text messages just two days prior to 

his testimony.” According to Trevigne, he was “prejudiced when he was confronted 

for the first time on the stand with text messages he had not seen for over three 

years.” At the hearing on the motion for a new trial, defense counsel stated,

“[T]here is no case, one way or the other, that describes what in fact is a surprise 

when it comes up at trial, but I do think that this squarely falls into that situation.”

In response, the State emphasized that “the evidence the defense is 

claiming to be surprised by are the defendant’s own statements.” The State 

reasoned that there was no “surprise” because it was “[Trevigne’s] own prior 

inconsistent statements” that “were used as impeachment evidence in crossexamination.” The State noted that the text messages were not presented in its 

case in chief and it was Trevigne who “took the stand and chose to testify about 

prior text message conversations,” which were “brief conversations from three 

select dates in the month of July [2018].” The State explained that Trevigne 

“opened himself up to cross-examination of those text conversations because he 

testified wildly inconsistently with what those text conversations actually were” and 

other “messages that he claimed that were exchanged just didn’t exist.” Notably, 
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the State also highlighted that the “defense did have access to these messages in 

discovery” but “chose not to inspect every file contained within discovery.”

After hearing from the parties, the trial court denied the motion for a new 

trial:

I understand the defense’s point that had the defense had this 

information—clearly had this information—it could have—two points; 

one, [] Trevigne arguably could have made a decision not to testify, 

or alternatively his testimony could have addressed these issues 

without ameliorating any sense of impeachment or surprise. 

That said I think the evidence would have come out anyway. 

The defense—and I also understand the defense position with 

respect to access to the information, but the—and the technical 

issues regarding—which I don’t fully understand, but I do accept the 

fact that technically it was not easily readable to a layperson, but the 

defense could have retained someone to get into this information and 

the defense does do that in other kinds of cases—experts, computertype experts—programmers, coders—and that is something the 

defense didn’t do, so the amount of surprise I think is less than the 

defense is presenting here, or at least less than the court should take 

into consideration. 

While the issue of the use of the word murder and the use of 

the F-word was certainly not entirely a surprise, and I think it was 

clear—the court—the parties made it clear to the jury that these were 

not aggressive terms, they were not intended aggressively, they 

were odd—odd terms of what I would call potentially terms of 

endearment and not anything vicious or ugly. 

I am satisfied that the defendant got a fair trial; it was mostly 

a credibility issue. I am going to deny the motion for a new trial.

B. Analysis Under CrR 7.5

CrR 7.5(a) provides that the trial court may grant a defendant’s motion for 

a new trial when “it affirmatively appears that a substantial right of the defendant 

was materially affected” by any one of eight enumerated causes. At issue here is 

CrR 7.5(a)(4), “Accident or surprise.”9 

 9 Although Trevigne’s motion for a new trial also sought relief under CrR 7.5(a)(6), “Error 

of law occurring at the trial and objected to at the time by the defendant,” and CrR 7.5(a)(8), “That 
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A new trial is required “only when the defendant ‘has been so prejudiced 

that nothing short of a new trial can insure that the defendant will be treated fairly.’” 

State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997) (quoting State v. 

Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). Whether to grant or deny a 

motion for a new trial is “within the discretion of the trial court, and the decision will 

not be disturbed unless there is a clear abuse of discretion.” State v. Hager, 171 

Wn.2d 151, 156, 248 P.3d 512 (2011). Such an abuse of discretion exists “‘only 

when no reasonable judge would have reached the same conclusion.’” State v. 

McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (internal quotation marks 

omitted) (quoting Bourgeois, 133 Wn.2d at 406). 

Trevigne relies on State v. Townsend, 7 Wash. 462, 35 P. 367 (1893), for 

the contention that “surprise” warrants a new trial here. Townsend was convicted 

of assault with a deadly weapon and the judge denied his motion for a new trial. 

Townsend, 7 Wash. at 466. In support of that motion, defense counsel submitted 

an affidavit, which was undisputed and provided that “the prosecuting attorney, in 

open session of the court, and in the presence of divers and sundry persons, stated 

to the court that he did not intend to further prosecute the defendant, John Port 

Townsend, and that said cause would be dismissed.” Id. The prosecutor’s 

statement was communicated to Townsend who, in reliance on the statement, 

failed to raise money or correspond with defense counsel as to the “necessity of 

procuring witnesses to testify” on his behalf. Id. On review, the court stated that 

the prosecutor’s statement “would be almost certain to mislead the defendant and 

 substantial justice has not been done,” he does not present argument on appeal on those alternate 

bases.
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his attorneys, and cause them to cease their preparations for defense.” Id. at 467. 

As to prejudice, the court explained that the materiality of the testimony of one of 

the witnesses identified in the affidavit “cannot be disputed” and if that witness 

“would testify to the state of things which the affidavit states he will, that the result 

of the trial would probably be different.” Id. at 467-68. Thus, the court reversed 

and remanded for a new trial. Id. at 468.

Ignoring the fact that Townsend is over 130 years old and includes 

problematic reasoning based on colonial and discriminatory perspectives of Native 

Americans, the holding is easily distinguished. Trevigne points to the defense 

interview of SPD Sergeant Darin Sugai on August 5, 2020, which addressed the 

Cellebrite report of Setlak’s phone, and alleges that Sugai incorrectly assured the 

defense that the evidence extracted “did not contain any messages outside the 

eight-day window between August 3 and August 10, 2018.” Even if this 

characterization captured the entirety of the information conveyed by Sugai, it 

would hardly be comparable to the prosecutor in Townsend stating in open court 

that the charges are going to be dismissed. When asked about a particular folder

in the Cellebrite data, Sugai told defense counsel that he was “assuming that [the 

folder labeled] logical 01 is a raw data file” but explained that he had not looked at 

it. More critically though, the court in Townsend determined a new trial was 

appropriate as the presence of a key witness with material testimony had not been 

procured for trial in reliance on the prosecutor’s statement that he was dismissing 

the case, whereas the evidence here was Trevigne’s own text messages with 

Setlak that were not exculpatory and had been turned over to the defense in 
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discovery, albeit from a difference source. Even if the messages were not 

recognized at the time of their initial disclosure in the Cellebrite data from Setlak’s 

phone, the record clearly establishes that they were reviewed prior to Trevigne’s 

testimony as defense counsel described their contents in the motion to dismiss

filed nine days before Trevigne took the stand. The procedural history and record 

of this case establishes that the content of the messages was not a surprise under 

CrR 7.5(a)(4). Trevigne’s impeachment with his own text messages, which had 

been turned over in discovery nearly two years before trial and examined by 

defense counsel closely enough to have been cited and discussed in an earlier 

motion, did not result in such prejudice that would require a new trial. The trial 

court did not abuse its discretion in denying Trevigne’s CrR 7.5 motion. See

Bourgeois, 133 Wn.2d at 406.

III. Ineffective Assistance of Counsel

Trevigne argues in the alternative that if the State’s discovery violations do 

not warrant a new trial, then defense counsel was ineffective for failing to 

adequately investigate the laptop and cell phone data. 

The Sixth Amendment to the United States Constitution and article I, section 

22 of our state constitution guarantee the right to effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To succeed on a 

claim of ineffective assistance of counsel, the defendant must satisfy the two-part 

Strickland test, which requires a showing of deficient performance and resulting 

prejudice. 466 U.S. at 687. Specifically, the defendant must show that
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(1) defense counsel’s representation was deficient, i.e., it fell below 

an objective standard of reasonableness based on consideration of 

all the circumstances; and (2) defense counsel’s deficient 

representation prejudiced the defendant, i.e., there is a reasonable 

probability that, except for counsel’s unprofessional errors, the result 

of the proceeding would have been different.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “If either 

element of the test is not satisfied, the inquiry ends.” State v. Kyllo, 166 Wn.2d 

856, 862, 215 P.3d 177 (2009).

The burden is on the defendant to establish deficient performance. Grier, 

171 Wn.2d at 33. To meet this burden, the defendant must overcome “a strong 

presumption that counsel’s performance was reasonable.” Kyllo, 166 Wn.2d at 

862; see also In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017) 

(“[O]ur scrutiny of counsel’s performance is highly deferential and we strongly 

presume reasonableness.”). “Because the presumption runs in favor of effective

representation, the defendant must show in the record the absence of legitimate 

strategic or tactical reasons supporting the challenged conduct by counsel.” 

McFarland, 127 Wn.2d at 336.

The presumption of reasonable performance can be overcome by showing 

that counsel failed to conduct appropriate investigation. State v. Thomas, 109 

Wn.2d 222, 230, 743 P.2d 816 (1987); State v. Maurice, 79 Wn. App. 544, 552, 

903 P.2d 514 (1995). To be effective, “‘counsel must, at a minimum, conduct a 

reasonable investigation enabling counsel to make informed decisions about how 

best to represent the client.’” In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 

16 P.3d 601 (2001) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th 

Cir.1994)).
No. 84222-6-I/17

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Trevigne cites to Thomas, Maurice, and Brett in briefing, but offers no 

analysis of those cases and fails to even apply the first prong of the Strickland test 

to the alleged deficient conduct at issue. Rather, Trevigne expressly “maintains 

the State, not defense counsel, is to blame,” and then summarily asserts that “if 

this court concludes otherwise, then defense counsel was deficient for failing to 

obtain and review the contents of the laptop and cell phone extraction.” This 

conclusory statement is plainly insufficient to overcome the strong presumption 

that defense counsel’s performance was reasonable considering all of the 

circumstances.

10

The three cases Trevigne relies on involved defense counsel who 

completely failed to investigate pivotal issues of their cases. See Thomas, 109 

Wn.2d at 229-31 (finding defense counsel made “no investigation” into 

qualifications of only witness called as expert and witness was clearly unqualified 

to offer expert testimony); Maurice, 79 Wn. App. at 550-52 (noting defendant 

charged with vehicular homicide insisted mechanical malfunction made him lose 

control of vehicle but defense counsel did not investigate claim and failed to even 

have vehicle inspected by mechanic before trial); Brett, 142 Wn.2d at 880-81 

(finding defense counsel in capital case had reason to know of defendant’s mental 

and physical disabilities but failed to conduct investigation into those issues and 

only expert sought by counsel to evaluate defendant was “wholly unqualified to 

render a medical diagnosis”). Trevigne fails to provide any analysis in briefing to 

 10 “‘Passing treatment of an issue or lack of reasoned argument is insufficient to merit 

judicial consideration.’” State v. Collins, 152 Wn. App. 429, 440 n.27, 216 P.3d 463 (2009) (quoting 

Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996)).
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demonstrate factual similarity between these cases and his own. Because 

Trevigne has not carried his burden to establish deficient performance under 

Strickland, we need not reach prejudice. Kyllo, 166 Wn.2d at 862.

IV. Victim Penalty Assessment and DNA Collection Fee

Trevigne next argues the trial court erred in imposing the $500 VPA and 

$100 DNA collection fee and requests this court to remand for the trial court to 

strike both from his judgment and sentence. The State does not oppose remand 

to strike the VPA and DNA fee.

After Trevigne’s sentencing in June 2022, the legislature amended RCW 

7.68.035 to restrict trial courts from imposing the VPA “if the court finds that the 

defendant, at the time of sentencing, is indigent.” RCW 7.68.035(4); LAWS OF

2023, ch. 449, § 1. Trevigne is indigent and the State does not contest this. While 

no express finding of indigency was made at the time of sentencing, it is clear from 

the court’s order authorizing Trevigne’s appeal to proceed in forma pauperis and 

the fact that it only imposed the VPA and DNA fee, both of which were mandatory 

regardless of indigency at the time, that the court considered him indigent. 

Although the statutory amendment that added subsection RCW 7.68.035(4) 

took effect on July 1, 2023, after Trevigne was sentenced, it nonetheless applies 

to Trevigne because his case is on direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 

16, 530 P.3d 1048 (2023) (citing State v. Ramirez, 191 Wn.2d 732, 748-49, 426 

P.3d 714 (2018)). Similarly, the legislature amended RCW 43.43.7541 and that 

statute no longer requires defendants to pay a DNA collection fee. LAWS OF 2023, 

ch. 449, § 4. This amendment also applies to Trevigne. See Ellis, 27 Wn. App. 
No. 84222-6-I/19

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2d at 17. Accordingly, we remand for the trial court to strike both the VPA and 

DNA collection fee from the judgment and sentence.

V. Interest on Restitution

Based on another statutory amendment, Trevigne argues the trial court erred 

by failing to exercise its discretion when imposing interest on the restitution award. 

The statute in effect at the time of Trevigne’s sentencing provided that 

“restitution imposed in a judgment shall bear interest from the date of the judgment 

until payment, at the rate applicable to civil judgments.” Former RCW 10.82.090(1)

(2018). As the trial court ordered Trevigne to pay $5,000 in restitution to Setlak, the 

judgment and sentence provides that amount will bear interest pursuant to the former 

RCW 10.82.090.

After Trevigne was sentenced, the legislature amended RCW 10.82.090 and 

the new provision provides that the trial court “may elect not to impose interest on any 

restitution the court orders.” RCW 10.82.090(2); LAWS OF 2022, ch. 260, § 12. Before 

a trial court determines whether to impose interest on restitution, it must now consider 

the following factors:

(a) Whether the offender is indigent as defined in RCW 10.01.160(3) or 

general rule 34; (b) the offender’s available funds, as defined in 

RCW 10.101.010(2), and other liabilities including child support and 

other legal financial obligations; (c) whether the offender is 

homeless; and (d) whether the offender is mentally ill, as defined in 

RCW 71.24.025. The court shall also consider the victim’s input, if 

any, as it relates to any financial hardship caused to the victim if 

interest is not imposed. The court may also consider any other 

information that the court believes, in the interest of justice, relates 

to not imposing interest on restitution. After consideration of these 

factors, the court may waive the imposition of restitution interest.

RCW 10.82.090(2).
No. 84222-6-I/20

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Though this amendment did not come into effect until after Trevigne’s 

sentencing, it applies now because his case is on direct appeal. Ellis, 27 Wn. App. 

2d at 16 (citing Ramirez, 191 Wn.2d at 748-49).

Unpersuasively, the State avers that “Ellis was wrong to rely on Ramirez” and 

insists that this court “should not make the same mistake.” This division has already 

considered and rejected the State’s contention on this precise issue, that Ellis was 

wrongly decided. See State v. Reed, 28 Wn. App. 2d 779, 538 P.3d 946 (2023). In 

Reed, this court explained that “[l]ike the costs imposed in Ramirez, restitution interest 

is a financial obligation imposed on a criminal defendant as a result of a conviction.” 

Id. at 782. The court expressly “agree[d] with Ellis that restitution interest is analogous 

to costs for purposes of applying the rule that new statutory mandates apply in cases, 

like this one, that are on direct appeal.” Id. In line with Ellis, this court explained that 

“though the amendment to RCW 10.82.090 regarding the superior court’s authority to 

waive interest on restitution did not take effect until after Reed’s resentencing, it 

applies here because this case is on direct appeal.” Id. 

Following the sound reasoning of Ellis and Reed, on remand the trial court 

must also determine whether to impose interest on restitution pursuant to RCW 

10.82.090(2).

Affirmed in part, reversed in part, and remanded.

WE CONCUR: