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20.13 APR -2 AM 8: 46

STATE OF ViAS1- I4GTON

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In re Personal Restraint Petition of No. 41556 -9 -II

DANIEL MARSHALL AGUIRRE,

Petitioner,

UNPUBLISHED OPINION

QUINN- BRINTNALL J. — A jury convicted Daniel Marshall Aguirre of second degree

rape and second degree assault, with a deadly weapon enhancement. We affirmed the

conviction Aguirre- subsequently -filed a - personal-- restraint. petition-( RP)-alleging that (1)_ his

trial counsel failed to adequately inform him of the State's pretrial plea offer, (2) the victim's

testimony at Aguirre's military separation hearing was newly discovered evidence, and (3)

Aguirre's trial counsel was ineffective for failing to present mitigating evidence at Aguirre's

sentencing hearing. We remanded for a reference hearing. The trial court determined that the

plea offer was adequately communicated to Aguirre. Based on the evidence presented at the

reference hearing, the trial court found that Aguirre failed to meet his burden to prove prejudice.

Accordingly, Aguirre's claim that he received ineffective assistance of counsel because of

1 The military separation hearing was a hearing held by the United States Army to determine

whether Aguirre would be discharged.
No. 41556 -9 -II

defense counsel's failure to convey the plea agreement fails. Additionally, we hold that the

victim'stestimony was impeachment evidence and Aguirre did not receive ineffective assistance

of counsel at sentencing. We deny Aguirre'sPRP.

FACTS

BACKGROUND

A detailed version of the substantive facts, including trial testimony, is set out in this

court's prior unpublished opinion affirming Aguirre'sconviction. State v. Aguirre, noted at 146

Wn. App. 1048, 2008 WL 4062820, at *14, aff'd, 168 Wn.2d 350, 229 P.3d 669 (2010).

Aguirre began dating Emily Laughman in June 2006, when they were both stationed at the

United States Army Noncommissioned Officer Academy. On August 26, , Laughman went to

Aguirre's apartment and they got into an argument. Aguirre assaulted and raped Laugbman.

The State charged Aguirre with two counts of second degree assault with a deadly

weapon enhancement on one count and one count of second degree rape. A jury found Aguirre

guilty of one count of second degree assault and the second degree rape. The trial court

sentenced Aguirre to a standard - range sentence of137months confinement. Aguirre,- 2008- WL - - -

4062820, at *4. Pursuant to the indeterminate sentencing requirements for the second degree

rape charge, Aguirre received a maximum sentence of life, subject to the parole determination of

the indeterminate sentencing review board. Aguirre appealed his conviction and we affirmed.

After we affirmed Aguirre's convictions, he filed this PRP, alleging that (1) his trial

counsel failed to convey the ' State's pretrial plea offer, (2) Laughman'stestimony at Aguirre's

2 In the transcripts of the military separation hearing, Laughman's name is transcribed as

McLaughlin." McCloud Decl. App. H.. The court reporter transcribed her name phonetically

and Laughman did not spell her name, therefore we refer to her as Laughman, the name used in

all the briefing and our prior opinion.

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No. 41556 -9 -II

military separation hearing is newly discovered evidence entitling Aguirre to a new trial, and (3)

Aguirre'strial counsel was ineffective for failing to present mitigating evidence at Aguirre's

sentencing hearing. We remanded for the trial court to determine whether Aguirre's defense

counsel conveyed the plea offer and whether the plea offer was adequately explained.

PLEA OFFER AND REFERENCE HEARING

On November 17, 2006, per defense counsel'srequest, the State transmitted a written

plea offer to defense counsel. The plea offer was a plea of guilty to second degree assault -

domestic violence and, third degree rape - domestic violence with a determinate sentence of 14

months incarceration. The plea agreement also required that Aguirre be evaluated for "domestic

violence, mental health, and sexual deviancy issues and comply, with any recommended

treatment." McCloud Decl. App. B. The standard sentencing range for the current charges was

printed at the top of the plea offer in bold, italicized, and underlined print stating, "Standard

range for these offenses is 123 -159 months to LIFE under RCW 9. 71294A. with lifetime

supervision also per RCW 9. 712." 94A McCloud Decl. App. B. The same standard sentence

range was alsoincludedinthe States cover accompanying theplea - offer: - -- - -- - -- - -- -

In his PRP, Aguirre alleged that his trial counsel never communicated the above plea

offer to him and trial counsel did not explain to him that by not taking the plea offer he risked a

life sentence. Aguirre also stated that if he had been informed about the plea offer, he would

have accepted it. On May 27, 2011, we remanded to the trial court for a reference hearing. The

trial court was directed to "make findings of fact and conclusions of law as to whether Aguirre's

trial counsel conveyed the State's November 2006 plea offer to Aguirre and if so, whether

Aguirre's trial counsel explained the consequences of that plea offer." Order Remanding to

Superior Ct. for Reference Hr'g (May 27, 2011).

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No. 41556 -9 -II

The trial court held the reference hearing on July 18, 2011. Seven witnesses testified at

the reference hearing: Karen Sanderson, the defense investigator; Rose Aguirre,, Aguirre's

mother; Olene Steele, trial counsel'slegal assistant; Aguirre; Lt. Stephanie Klein, supervisor at

the Thurston County Jail; George Steele, Aguirre'strial counsel; and John Skinder, the original

prosecuting attorney.

Aguirre testified that when he originally met with Steele, Aguirre told Steele that he

would not take any deal that would get him dismissed from the military (felony, domestic

violence, or sex offenses). Aguirre also stated that Steele told him the maximum sentence for his

crimes was somewhere in the range of 70 months. At some point Aguirre began to change his

mind and decided that ifthe State made a good offer he would take it, even if it would mean his

discharge from the military. He supported this statement with a letter he wrote to defense

counsel containing the following statement:

So just know if you get a deal some time between now and trial and you feel it is

in my best interests, take it, I will.

1 Report of Proceedings (RP) at 150. But even after Aguirre decided that he would take a deal

even if it would get him discharged from the military, he was still unwilling to admit to

committing the crime.

Aguirre testified that he never saw the plea offer the State made and Steele did not tell

him about it. Aguirre testified that after Christmas, Steele discussed an offer of possibly 48 to 58

months.

Steele testified that he recalled having "extensive discussions about the case, the plan of

defense, and discussed offers and that type of thing" but he could not recall specific dates and

times of the conversations. 1 RP at 116. Based on Steele's recollection, Aguirre was very

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No. 41556 -9 -II

adamant about his innocence and his desire to go to trial. Steele admitted that while he informed

Aguirre of the plea offer the State made and explained the offer to Aguirre, he did not push him

to take the offer because it would not keep him in the military and he believed that Aguirre had a

good case to take to trial. Specifically Steele testified,

Aguirre was ... kind of a "damn the torpedoes, full speed ahead" kind of guy. He

was very adamant he did not commit a crime; he did not commit the crimes he

was accuse [sic] of; and he was not about to plead to anything where he would

have to admit that he did do, did commit these crimes.

1 RP at 119. Steele explained that, in context, Aguirre'sletter meant a deal that would keep him

in the military because, at the time, Aguirre believed staying in the military was in his best

interest.

Steele reviewed the standard sentencing ranges for offenses prior to meeting with his

client or discussing plea offers. Steele also explained that if a crime carries an indeterminate

sentence, the defendant is subject to the maximum sentence and can be released by the

Indeterminate Sentence Review Board after serving the minimum term. But Steele could not

specifically remember the substance of conversations he had with Aguirre or whether he

specifically explained indeterminate sentencing.

Skinder, the original prosecuting attorney on Aguirre's case, testified that, at Steele's

request, he made one plea offer. Furthermore, there would not have been a plausible plea offer

of 40 to 50 months in prison and, based on the charges, it would have been extraordinarily

difficult to calculate Aguirre's standard sentencing range around 70 months. Skinder also

testified that when he made the offer to Steele, he "made it clear to [Steele] that that was the

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No. 41556 -9 -II

offer and, if it was not accepted in all regards, it was rejected." 2 RP at 216 -17. The plea offer

was not anAlford plea.

Following the reference hearing, the trial court issued written findings of fact and

conclusions of law. The trial court found that (1) Steele's testimony was more credible than

Aguirre's; ( 2) Steele conveyed the plea to Aguirre; and (3) Steele explained the consequences of

the plea offer, including the potential sentence if Aguirre was convicted at trial. Based on the

findings of fact, the trial court determined that Aguirre did not meet his burden of proving by a

preponderance of the evidence that the State's plea was not adequately conveyed to him.

The trial court also made oral findings. In its oral findings, the trial court determined that

Aguirre had been clear, even at sentencing, that he believed staying in the military was in his

best interest. Furthermore, the trial court stated,

And while the difference between a potential maximum sentence versus a

14 month determinate sentence may seem in hindsight to be such an obvious

difference that Mr. Aguirre should have taken that, for the reasons I've already

stated, that is only speculation, and it's really something that has to be resolved by

every defendant in their particular case.

2 RP- at-265. - -- - — -- -- - -- -- -- - -- - - - - -- - - - -- - -

LAUGHMAN'SSUBSEQUENT TESTIMONY

In 2007, the military held Aguirre'sseparation hearing, a hearing to determine whether

Aguirre would be discharged from . the military. Laughman also testified at this hearing.

Laughman testified that toward the end of the relationship, Aguirre would not let her "hang out"

with her friends and would become aggressive with her if she wanted to go out. McCloud Decl.

3 See North Carolina v. Alford, 400 U.S. 25 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v.

Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).

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No. 41556 -9 -II

App. H, at 22. During cross - examination, Laughman testified that both she and Aguirre wanted

to break offthe relationship at the time the rape occurred.

She also testified that she told Deputy Carter of the Thurston County Sheriff's Office that

the bruises on . her body were from Aguirre. However, she also told Carter that they were

practicing self - defense and she did not want to file a report. Laughman never reported the rape

to Carter.

ANALYSIS

PLEA OFFER

In his supplemental briefing, Aguirre assigns three errors to the trial court's findings of

fact and conclusions of law: ( 1) the trial court erroneously interpreted the meaning of

determinate- plus" sentencing and, based on that interpretation, erroneously determined that the

State's plea offer was adequately conveyed; (2) the trial court erred by refusing to admit expert

testimony regarding standard practice for conveying a plea offer; and (3) the evidence was

insufficient to support the trial court's conclusion that Steele adequately conveyed the plea offer

to - Aguirre - . -- AlthoughAguirre - challenges - the sufficiency of the evidence - establishing- that-the - - -

plea offer was adequately conveyed to him, he is also required to show prejudice. Aguirre has

failed to demonstrate that there was a reasonable probability that he would have accepted the

State's offer. Accordingly, Aguirre has failed to demonstrate prejudice and his ineffective

assistance of counsel claim fails.

After a reference hearing on an ineffective assistance of counsel claim, we review

findings of fact for substantial evidence and the trial court's conclusions of law are reviewed de

novo. In re Pers. Restraint ofBrett, 142 Wn.2d 868, 873 -74, 16 P.3d 601 (2001).

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No. 41556 -9 -II

To prevail on an ineffective assistance of counsel claim, the defendant must show that

counsel's performance was deficient and that the defendant was prejudiced by counsel's

deficient performance. In re Pers. Restraint of Chace, 174 Wn.2d 835, 840, 280 P.3d 1102

2012) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674

1984)). "In a plea bargaining context, `effective assistance of counsel' merely requires that

counsel `actually and substantially [assist] his client in deciding whether to plead guilty. "' State

v. Osbourne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (alteration in original) (quoting State v.

Cameron, 30 Wn. App. 229, 232, 633 P.2d 901, review denied, 96 Wa.2d 1023 (1981)). Defense

counsel must inform the defendant of all the direct consequences of the guilty plea. State v.

A. J., N168 Wn.2d 91, 113 -14, 225 P.3d 956 (2010). In the context of a claim that counsel's

ineffective assistance caused the defendant to reject a plea offer, a defendant demonstrates

prejudice by showing that there is a reasonable probability he or she would have accepted the

offer absent counsel'sineffective assistance. Lafler v. Cooper, _ U.S. , 132 S. Ct. 1376,

1385, 182 L. Ed. 2d 398 (2012); Missouri v. Frye, _ U.S. , 132 S. Ct. 1399, 1409, 182 L.

Ed: - 2d - 37% - cent denied, 132 - S. - - Ct. 1789 (2012) If adefendantcannot - demonstrate- either -

deficient performance or prejudice, the ineffective assistance of counsel claim fails. Strickland,

466 U.S. at 697.

The trial court determined that Aguirre'sclaim that he would have accepted the deal was

based on hindsight. Steele's testimony at the reference hearing supports this. Steele testified

that Aguirre was adamant that he was innocent of the charges, he wanted to go to trial, and he

would not accept a deal.that would result in his removal from the military. The trial court found

that Steele's testimony was more credible than Aguirre's. "[ A] trial court's determination of a

witness'scredibility cannot be disturbed on appeal." In re Pers. Restraint ofDavis, 152 Wn.2d
No. 41556 -9 -II

647, 682 -83, 101 P.3d 1 ( 2004) (citing In re Pers. Restraint of Gentry, 137 Wn.2d 378, 410 -11,

972 P.2d 1250 (1999)). Accordingly, Steele'stestimony is substantial evidence supporting the

trial .court'sfinding that Aguirre would not have accepted the deal at the time it was made.

Furthermore, Aguirre's own testimony belies his assertion that he would have accepted

the State's offer. Aguirre testified that even after he decided he would be willing to accept a plea

bargain that would result in his separation from the military, he would not have accepted an offer

that required him to admit to committing the crimes. In fact, Aguirre maintained his innocence

throughout trial and sentencing. The State's offer was not an Alford plea, therefore to accept the

offer, Aguirre would have .had to admit he committed the crime. The State's offer was a onetime, nonnegotiable offer. Aguirre's insistence on maintaining his innocence equated to a

rejection of the State's offer, even assuming he would have accepted terms that would result in

his separation from the military.

Based on the above facts, we conclude that Aguirre has not demonstrated there.was a

reasonable probability that he would have accepted the State's offer. Aguirre has failed to meet

j — — - -- - - - --- - - hisburden show _ prejudice. - Accordingly, - his -- ineffective - assistance - of-counsel- claim fails,- - -- - - -

regardless of whether defense counsel was deficient.

Aguirre also argues that the trial court erred by refusing to allow Aguirre's expert to

testify at the reference hearing. We review a trial court's decision to admit expert testimony for

an abuse of discretion. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). The trial court

abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.

State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Under ER 702,

i]f scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

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No. 41556 -9 -II

qualified as an expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.

To be admissible under ER 702, expert testimony must be helpful to the trier.of fact. State v.

McPherson, 111 Wn. App. 747, 761, 46 P.3d 284 (2002).

Here, Aguirre sought to admit the testimony of another defense attorney to testify about

what would have constituted effective assistance of counsel when conveying the plea offer in this

case. According to Aguirre, the expert could have explained "the standard of care required of

competent counsel when the charges carry a determinate -plus sentence of life and the offer is a

plea to a crime with a guaranteed maximum 14 -month determinate sentence," and the expert

could have "clarified the impact of [post traumatic stress disorder (PTSD)] on Steele's duty to

transmit the plea offer." Suppl. Br. of Pet'r at 14 -15. The trial court excluded Aguirre's expert

for two reasons: (1) with 30 years of criminal law experience, the trial court did not need an

expert to determine what should be told to a defendant to adequately explain a plea offer; and (2)

the opinion went to whether counsel was ineffective not whether the plea offer was conveyed or

explained —which was what we asked the trial court to determine. As the trier of fact in a

reference hearing, the trial court is in the best position to determine whether an expert's

testimony would be helpful to it. The trial court determined that, based on its knowledge and

experience, Aguirre's expert would not be helpful. The trial court did not abuse its discretion by

excluding Aguirre's expert'stestimony.

NEWLY DISCOVERED EVIDENCE

Aguirre argues that Laughman'stestimony at the military separation hearing. is newly

discovered evidence warranting a new trial. But the State correctly notes that Laughman's

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testimony at the military separation hearing is, at best, impeachment evidence. We agree with

the State.

To obtain a new trial based upon newly discovered evidence, a defendant must

prove that the evidence: (1) will probably change the result of the trial; (2) was

discovered after the trial; (3) could not have been discovered before. trial by the

exercise of due diligence; (4) is material; and (5) is not merely cumulative or

impeaching.

State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). Failure to establish any of the

above factors precludes a new trial. Macon, 128 Wn.2d at 800 (citing State v. Williams, 96

Wn.2d 215, 223, 634 P.2d 868 (1981)). "Impeachment evidence" is "[e]vidence used to

undermine a witness'scredibility." BLACK's LAw DICTIONARY 637 (9th ed. 2009). A reliable

recantation may generally be considered newly discovered evidence warranting a new trial.

Macon, 128 Wn.2d at 799 -800.

Here, Laughman'stestimony at the military separation hearing was not a recantation.

Laughman never testified that Aguirre did not assault or rape her. Aguirre asserts that the

following inconsistencies in Laughman'stestimony prove the testimony is newly discovered

Laughman] changed the amount of beers she had that night from "4 to 5"

down to "2 to 3;" [ Laughman] changed from denying that their fight- training was

called anything like combatives, to admitting that. [ Laughman] changed from

saying she stayed on the couch to claiming she left immediately. [ Laughman]

changed whether she had a cigarette on the couch after sex, or not. [Laughman]

changed whether she affirmatively told Officer Carter after the incident that she

and [ Aguirre] were practicing play - fighting. [ Laughman] even changed her

testimony about what [Aguirre] did to her. First, at trial, she testified that she was

raped on the floor. Later, at the Separation Hearing, she claimed she was raped

on the bed.

Finally, at the trial, [Laughman] testified that Aguirre was jealous of her,

trying to limit her outside contacts, and keep her for his own.... But later, at the

Separation Hearing, she admitted that they . "both" wanted to end the relationship.

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Br. of Pet'r at 31 -32. But minor inconsistencies regarding specific details are not equivalent to a

recantation. Instead, they serve only to cast doubt on the credibility or accuracy of her

testimony. Therefore, Laughman'stestimony at the separation hearing is impeachment evidence.

Accordingly, Aguirre has failed to meet his burden of demonstrating that Laughman'stestimony

at the military separation hearing is newly discovered evidence warranting a new trial.

MITIGATING EVIDENCE AT SENTENCING

Finally, Aguirre alleges that he received ineffective assistance of counsel at sentencing

because his counsel failed to present mitigating evidence on his behalf. Specifically, Aguirre

contends that his counsel should have presented evidence regarding Aguirre'smilitary service or

Aguirre's mental or social history, including his PTSD.

Aguirre is required to demonstrate both deficient performance and prejudice. Strickland,

466 U.S. at 697. Here, Aguirre cannot demonstrate how counsel'sfailure to offer. his suggested

mitigating evidence prejudiced him at sentencing. Aguirre argues that the lack of mitigating

evidence prejudiced him because (1) the charges would have been reduced if mitigating evidence

had been -p - resented to -the - - - - - State prior trial, and - (2) the- trial court would have imposed -a -- -

standard range sentence ifthe mitigating evidence had been presented at sentencing.

Aguirre cannot offer anything other than speculation about how the failure to present

evidence of his military service or mental or social history would have affected the length of the

minimum sentence the trial court imposed. Aguirre has not cited any authority that supports the

proposition that military service or the mental or physical effects of military service are a basis

for imposing the low end of the sentencing range, or from departing from a standard range

sentence altogether. See RCW 9. 535(94A. 1). Even if Aguirre had a basis for arguing that

military service or the effects of military service justified a sentence at the low end of the

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No. 41556 -9 -II

sentence range, the trial court sentenced Aguirre to a standard range sentence. Because Aguirre

cannot demonstrate that the outcome of his sentencing would have been different if his proposed

evidence had been presented, he has failed to meet his burden to show prejudice. State v.

Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). A failure to demonstrate prejudice defeats a

claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697.

Aguirre has failed to meet his burden to show ineffective assistance of counsel for either

failing to adequately convey a plea offer or failing to present mitigating evidence at sentencing.

Furthermore, Laughman'stestimony at the military separation hearing is merely impeaching and

not newly discovered evidence. Accordingly, we deny Aguirre'sPR-P.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 040, 06.it is

so ordered.

ex, , X1 ', x6 , ,

QUINN- BRINTNALL, J.

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