IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

 Respondent,

v.

DERRICK DWAYNE BRANCH,

 Appellant.

No. 82550-0-I

 Consolidated with

 No. 82580-1-I

DIVISION ONE

UNPUBLISHED OPINION

In the Matter of the Personal Restraint 

Petition of: 

DERRICK DWAYNE BRANCH,

 Petitioner.

CHUNG, J. — Derrick Branch was convicted of rape in the second degree

and felony violation of a domestic violence no-contact order, both alleged as 

crimes of domestic violence and carrying additional domestic violence 

aggravators. After his first appeal, this court remanded for resentencing. The trial 

court imposed a determinate sentence and then, on the State’s motion, modified 

it to an indeterminate sentence. Branch now appeals the modified sentence, 

arguing that even though the court properly imposed an indeterminate term, he is 

entitled to a full resentencing hearing. In his personal restraint petition (PRP),

consolidated here with the direct appeal, Branch claims the State committed 

prosecutorial misconduct by eliciting excluded prior act testimony from its 
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complaining witness and his counsel provided ineffective assistance by failing to 

raise the claim of prosecutorial misconduct in his prior appeal. He also asserts 

the State violated his constitutional rights by failing to meet its Brady1 obligation

to disclose exculpatory evidence on his phone and by refusing to return his 

phone unless he agreed to give the State access to its contents. We affirm the 

trial court’s order granting the State’s CrR 7.8 motion and amending his 

sentence, and we deny his petition.

FACTS

The relevant background and procedural facts are set out in our opinion 

on Branch’s first direct appeal:

Branch and S.M. met in February 2015 and began a 

romantic relationship. After S.M. moved in with Branch, she 

returned home with physical injuries. On July 1, 2015, Valley 

Medical Center emergency department treated S.M., where she 

reported that her boyfriend attacked and raped her. 

On June 1, 2016, S.M. reported domestic violence at the 

Des Moines Police Department. The next day, the Des Moines 

Police Department responded to a 911 call, where S.M. reported 

that her boyfriend choked her. She was transported to the 

emergency room at Highline Medical Center where she reported 

that her boyfriend physically and sexually abused her during their 

relationship. S.M. went to [the] Des Moines Police Department 

again on June 3, 2016, and reported more details about the prior 

rape and abuse from her boyfriend. 

S.M. then obtained a protection order against Branch. On 

numerous occasions, Branch was seen with S.M. after the court 

entered a no-contact order. 

The State charged Branch with four counts of assault, three 

counts of violation of a no-contact order, and one count of rape. 

At trial, S.M. testified that Branch never assaulted or raped 

her. She explained that her injuries were either caused by someone 

other than Branch or by herself when she would attack Branch and 

he would defend himself.

 1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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State v. Branch, No. 78379-3-I, slip op. at 2-3 (Wash. Ct. App. Feb. 18, 2020) 

(unpublished), http://www.courts.wa.gov/opinions/pdf/783793.pdf.

On remand, after considering mitigating factors, the trial court sentenced 

Branch to an exceptionally low determinate sentence of 90 months. Soon 

thereafter, however, the State filed a CrR 7.8 motion arguing it had been 

incorrect in recommending a determinate sentence for his second degree rape 

conviction and that the court should sentence Branch to an indeterminate

sentence. The sentencing court agreed and modified the judgment and sentence

by adding the maximum term of life, thus converting Branch’s sentence to an 

indeterminate one. Branch appealed the order granting the CrR 7.8 motion and 

modifying his judgment and sentence.

Separately, Branch filed his own CrR 7.8 motion alleging prosecutorial 

misconduct. The trial court transferred that motion to this court as a PRP, which

we consolidated with Branch’s direct appeal of his modified sentence after 

resentencing. 

DISCUSSION

I. Appeal of Indeterminate Sentence

Branch appeals the trial court’s decision to grant the State’s CrR 7.8 

motion and amend his exceptional downward determinate sentence of 90 months

to an indeterminate sentence of a minimum of 90 months to a maximum term of 

life in prison. 
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We review a ruling on a CrR 7.8 motion for abuse of discretion. State v. 

Crawford, 164 Wn. App. 617, 621, 267 P.3d 365 (2011). A trial court abuses its 

discretion if its decision rests on untenable factual grounds or was made for 

untenable legal reasons. State v. Frohs, 22 Wn. App. 2d 88, 92, 511 P.3d 1288 

(2022). Interpretation of the Sentencing Reform Act is a question of law that we 

review de novo. Crawford, 164 Wn. App. at 622.

After the parties’ opening briefs were filed, the Washington Supreme Court 

decided In re Pers. Restraint of Forcha-Williams, 200 Wn.2d 581, 520 P.3d 939 

(2022). Forcha-Williams concludes that sentencing courts lack the discretion to 

replace an indeterminate sentence with a determinate one. 200 Wn.2d at 606. 

The Court reasoned that setting and altering criminal penalties is the sole 

prerogative of the legislature, and RCW 9.94A.507 requires both a minimum and 

maximum term for sentencing of sex offenders. 200 Wn.2d at 591-93. 

Branch was convicted of second degree rape, and he concedes that under 

Forcha-Williams, the court was required to impose an indeterminate term. We 

accept the concession. Branch argues that nevertheless, this court should 

remand for a full sentencing hearing because if the trial court had known it was 

required to impose a maximum term of life, it may have sentenced Branch to a 

lower minimum term. 

As we noted in Branch’s direct appeal, “[w]here a defendant has 

requested an exceptional sentence below the standard range, ‘review is limited 

to circumstances where the court has refused to exercise discretion at all or has 

relied on an impermissible basis for refusing to impose an exceptional sentence 
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below the standard range.’ ” Branch, No. 78379-3-I, slip op. at 10 (quoting State 

v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). We held in 

Branch’s first appeal that the trial court initially “did not exercise its discretion” 

and ordered “remand so that it can,” Branch, No. 78379-3-I, slip op. at 12, and it 

is clear that the sentencing court on remand did so. The trial court held a hearing 

and considered evidence, presentence reports and exhibits, and the arguments 

of counsel. It then exercised its discretion by sentencing Branch to an 

exceptional downward sentence, and supported the exceptional sentence with 

written findings of fact and conclusions of law. Thus, the sentencing court had 

already exercised its discretion by imposing an exceptional downward minimum 

term; subsequently modifying that sentence by granting the State’s CrR7.8 

motion and adding the statutory maximum term—a term over which it had no 

discretion—did not change that exercise of discretion. Remand for resentencing 

is unnecessary. 

II. Personal Restraint Petition

In his PRP, Branch claims a violation of his right to a fair trial based on 

prosecutorial misconduct and ineffective assistance from appellate counsel

because they failed to raise the prosecutorial misconduct issue in his first direct 

appeal. He also challenges the State’s failure to disclose exculpatory evidence 

on his cell phone under Brady, claiming it violated his rights to present a defense 

and a fair trial. Finally, Branch claims conditioning the return of his phone on his 

providing the State with his password violated his rights to privacy, association, 

and against self-incrimination.
No. 82550-0-I /6

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A person is entitled to relief via a PRP when that person is restrained 

unlawfully. RAP 16.4; In re Pers. Restraint of Dodge, 198 Wn.2d 826, 836, 502 

P.3d 349 (2022). The petition will be granted “if (1) [the defendant] was actually 

and substantially prejudiced by a violation of his constitutional rights; or (2) that 

the claimed error constitutes a fundamental defect which inherently results in a 

complete miscarriage of justice.” In re Pers. Restraint of Mulholland, 161 Wn.2d 

322, 331-32, 166 P.3d 677 (2007) (internal quotations omitted). The petitioner 

has the burden of proof by a preponderance of the evidence. In re Pers. 

Restraint of Cook, 114 Wn.2d 802, 814, 792 P.2d 506 (1990). 

A. Prosecutorial Misconduct and Ineffective Assistance of Counsel 

Branch’s prosecutorial misconduct and ineffective assistance claims both 

arise from the same allegedly “improper questions” asked by the prosecutor

during S.M.’s testimony. The State argues that this court rejected the same 

grounds in Branch’s first direct appeal.

A personal restraint petition is not meant to be a forum for relitigation of 

issues already considered on direct appeal. In re Pers. Restraint of Lord, 123 

Wn.2d 296, 329, 868 P.2d 835 (1994). A petitioner is prohibited from renewing 

an issue that was raised and rejected on direct appeal unless the interests of 

justice require relitigating that issue. In re Pers. Restraint of Yates, 177 Wn.2d 1, 

17, 296 P.3d 872 (2013). The interests of justice are served only if there has 

been an intervening change in the law or some other justification for the 

petitioner’s failure to raise a crucial point or argument in the prior application. Id.

“Simply ‘revising’ a previously rejected legal argument, however, neither creates 
No. 82550-0-I /7

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a ‘new’ claim nor constitutes good cause to reconsider the original claim.” In re 

Pers. Restraint of Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990). Nor may a 

petitioner recast an issue previously resolved on direct appeal by claiming 

ineffective assistance of counsel. In re Pers. Restraint of Benn, 134 Wn.2d 868, 

906, 952 P.2d 116 (1998).

In his Statement of Additional Grounds (SAG) in his first direct appeal, 

Branch argued the State asked S.M. “objectionable questions knowing that 

[S.M.]’s answers would introduce inadmissible evidence.” On this point, this 

court’s opinion states, “Branch does not identify any inadmissible evidence 

introduced by the State.” Branch, No. 78379-3-I, slip op. at 14. Branch further 

argued the questions were “a rape shield violation” and also violated “the motions 

in limine.” We noted Branch could not seek relief for violations of the rape shield 

statute because it protects victims, not defendants. Further, we stated, “Branch 

does not point to any motions in limine that the prosecutor violated.” Id.

While we determine that Branch did previously raise the same issue about 

the prosecutor’s questions, with the benefit of briefing in this PRP by appointed 

counsel, the basis for Branch’s arguments is more apparent. Thus, while we 

determine Branch cannot relitigate that claim via collateral attack, we 

nonetheless examine it to explain that conclusion.

Before trial, the State sought to admit ER 404(b) evidence of prior acts of 

violence by Branch toward S.M., including statements made to a sexual assault 

nurse examiner, to the police, and in support of a petition for a domestic violence 

protection order (DVPO) regarding an alleged sexual assault in February 2015.
No. 82550-0-I /8

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Because S.M. was a recanting victim, the State sought to offer this evidence to 

bolster S.M.’s credibility and, thus, to prove the charged acts occurred, as well as 

to show her fear of Branch. The court denied the State’s motion to admit this 

404(b) evidence because it could not find by a preponderance that the 

uncharged acts occurred. It reserved whether the same evidence could be used 

later to impeach S.M. 

In its direct examination of S.M., the State laid a foundation that S.M. was 

living with Branch in the summer of 2015. The following exchange then occurred:

[State] Okay. And were you still going to college at this time?

[S.M.] I think no.

[State] Why?

[S.M.] Uhm, because some things had happened prior, uhm, 

that had stopped me from going to college.

[State] What was that?

[S.M.] Uhm, I was attacked and sexually assaulted, not by --

not by [Branch], but by someone else, and so I 

stopped going to college.

During a recess from testimony, Branch argued that the “State can’t open their 

own door” for the 404(b) evidence previously excluded, to which the State 

responded it “did not have any idea that would be her reply.” After further 

discussion, the court reiterated its prior ruling not to allow the State to impeach 

S.M. with prior inconsistent statements using evidence of prior uncharged acts—

specifically the February 2015 sexual assault that was the subject of the petition 

for a DVPO, in which S.M. had identified Branch. 

The next morning, after additional colloquy about the issue, the court 

noted that although S.M. mentioned the February 2015 sexual assault on direct, 
No. 82550-0-I /9

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“it didn’t sound like [the State] was specifically trying to elicit” prior act evidence

and characterized S.M.’s testimony as “spontaneous.” Branch asked the court to 

strike S.M.’s testimony from the prior day about the February 2015 assault and to 

issue a limiting instruction. The State opposed the request and asked instead to 

question S.M. about the February 2015 incident in order to distinguish it from the 

charged act. The court declined Branch’s request to strike the testimony, stating

the jurors would likely not be able to obey that instruction and it was not 

necessary to prevent unfair prejudice to Branch. 

When S.M.’s testimony resumed, the State established that S.M. and 

Branch’s relationship began in February 2015, that they were living together, that 

Branch was her boyfriend in October and November 2015, and that Branch was 

the only boyfriend S.M. ever had. Then the State asked S.M. to go back to the 

prior day’s testimony “that [S.M.] had been attacked and sexually assaulted by 

someone else and that it happened near the college in Auburn.” Branch 

objected, the court overruled the objection, and the court asked the parties to 

move on. 

Later, out of the presence of the jury, the State asked the court to allow it 

to “ask clarifying questions to distinguish [S.M.’s testimony] as to the time period, 

where it occurred, whether she reported, and if she had injury.” Branch objected, 

but the court allowed the State to ask these questions. The court reasoned that 

while it had excluded ER 404(b) evidence, at this point, S.M. had testified to a 

sexual assault by someone other than Branch, and the State was not asking the 

court to revisit the 404(b) analysis. When direct examination resumed, the State 
No. 82550-0-I /10

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asked its questions. Branch objected to the State’s question about whether the 

assault by the stranger occurred at the beginning or end of 2015. The court 

overruled the objection and S.M. responded it “probably happened [at] the 

beginning.” 

The crux of Branch’s claim both on direct appeal and in this PRP is that 

pre-trial, the court had excluded ER 404(b) evidence relating to uncharged prior 

acts of violence by Branch against S.M., and that it was misconduct for the State 

to have then elicited S.M.’s testimony about the February 2015 assault. 

Generally, to prevail on a prosecutorial misconduct claim, a defendant 

who timely objects must prove that the prosecutor’s conduct was both improper 

and prejudicial in the context of the entire trial. State v. Zamora, 199 Wn.2d 698, 

708-09, 512 P.3d 512 (2022) (citing State v. Loughbom, 196 Wn.2d 64, 70, 470 

P.3d 499 (2020)) (internal quotations omitted). On collateral review, a petitioner 

must prove that “the alleged misconduct was either a constitutional error that 

resulted in actual and substantial prejudice or a fundamental defect that resulted 

in a complete miscarriage of justice.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 

539, 397 P.3d 90 (2017).

The prosecutor’s questions to S.M. about the February 2015 incident were 

not improper. The State did not elicit S.M.’s testimony about it; rather, S.M. 

raised the incident herself in response to a question about why she left college. 

Further questioning by the State about the incident did not elicit any of the 

previously excluded ER 404(b) evidence. ER 404(b) prohibits “[e]vidence of other 

crimes, wrongs, or acts . . . to prove the character of a person in order to show 
No. 82550-0-I /11

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action in conformity therewith.” But S.M. did not testify that Branch attacked and 

sexually assaulted her. Rather, she testified that the perpetrator was someone 

else. Nor did the court permit the State to impeach S.M. with her prior statement 

in support of her petition for a DVPO that accused Branch of the February 2015 

assault. Because the prosecutor’s questions were not improper, Branch also 

cannot establish that they were prejudicial. 

Having raised the claim of prosecutorial misconduct on direct appeal, 

Branch cannot raise the same claim again in this PRP. He also cannot recast this 

claim as ineffective assistance of appellate counsel. See In re Pers. Restraint 

Petition of Khan, 184 Wn.2d 679, 688-89, 693, 363 P.3d 577 (2015) (allowing 

ineffective assistance claim on new ground not previously raised on direct 

review, but refusing to review a separate ineffective assistance claim that was “a 

repackaging of” grounds resolved on direct review). Thus, we deny Branch’s 

PRP claim based on prosecutorial misconduct.

B. Claims Based on Cell Phone Information

Branch claims his rights to present a defense and to a fair trial were 

denied because the State withheld exculpatory evidence on his phone. He further 

claims the court violated his rights to privacy, association, and against selfincrimination by conditioning Branch’s access to his phone.

2

 2 Branch at points claims the State, rather than the court, was responsible for these 

violations, alleging it “tried to leverage its possession of exculpatory information to force Mr. 

Branch to give up his rights to privacy, association, and against self-incrimination.” 
No. 82550-0-I /12

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The State seized Branch’s phone incident to his arrest. The State had 

warrants to search the phone for evidence that Branch violated a no-contact 

order, but it could not unlock the phone, and Branch refused to provide the code. 

Pre-trial, S.M. told her victim advocate that “she was concerned that she could 

get into trouble for something on the phone, she didn’t specify what.” The State 

subsequently informed Branch that “the phone may contain potentially 

exculpatory information (based on what the victim represented to the advocate). 

Please consult with the defendant as to whether he wants to consent to the 

search of his cell phone by providing the password.” 

Branch moved for the return of his phone. The court decided Branch 

should have access to his phone, but if he decided to use anything from it, then 

the State should have access to the unlocked phone. The court offered to let 

Branch’s investigator unlock the phone and make a copy of its contents for 

Branch’s inspection. If Branch decided to use the copy, a copy would also be 

turned over to the State. Branch agreed he would notify the court if he wanted 

such an order, but the record does not show he ever did so. The State never 

succeeded in unlocking Branch’s phone. 

A Brady violation occurs when a prosecutor suppresses “evidence 

favorable to an accused . . . where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,

373 U.S. at 87, cited in In re Pers. Restraint of Mulamba, 199 Wn.2d 488, 497, 

508 P.3d 645 (2022). Brady claims are reviewed de novo. Mulamba, 199 Wn.2d 

at 498.
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A Brady violation consists of three elements. First, the withheld evidence 

must be favorable to the accused, either because it is exculpatory or because it 

is impeaching; second, the evidence must have been suppressed by the State, 

either willfully or inadvertently; and third, prejudice must have ensued. Mulamba, 

199 Wn.2d at 498 (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 

1936, 144 L. Ed. 2d 286 (1999) (internal quotations omitted); In re Pers. Restraint 

of Stenson, 174 Wn.2d 474, 486-87, 276 P.3d 286 (2012)). 

Here, as to whether the withheld evidence was favorable to Branch, 

Branch argues the phone’s contents must have been favorable to him because 

the State used the word “exculpatory.” But beyond this speculation, Branch has 

not pointed to any evidence that there was exculpatory information. While the 

State did not further investigate what S.M. meant by her statement to her victim 

advocate,3 its failure to do so is not evidence that the State knew of any 

information on the phone that was exculpatory. 

Regarding the second element of suppression of evidence, the 

“prosecution is under no obligation to turn over materials not under its control.”

State v. Mullen, 171 Wn.2d 881, 901, 259 P.3d 158 (2011) (quoting United 

States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)). Moreover, when a 

defendant has enough information to be able to ascertain the supposed Brady

material on the defendant’s own, there is no suppression by the government. 

 3 A prosecutor has a duty to learn of and disclose any favorable evidence known to 

others acting on the government’s behalf. Mulamba, 199 Wn.2d at 499 (citing Kyles v. Whitley, 

514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). There is no record evidence that 

the State followed up with S.M. about what she meant. 
No. 82550-0-I /14

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Aichele, 941 F.2d at 764 (citing United States v. Dupuy, 760 F.2d 1492, 1501 n.5 

(9th Cir. 1985) (collecting cases)). Here, Branch knew more about the contents of 

his phone than the State. The State agreed it would gain access to the unlocked 

phone only if Branch chose to use its contents, and Branch did not so choose. 

The State had access to the physical phone, but not the contents, so it did not 

suppress information.

Finally, Branch cannot establish the third element for a Brady violation, 

prejudice. Prejudice means material to the result. Mulamba, 199 Wn.2d at 498. 

Evidence is material for Brady purposes when there is a “reasonable probability 

that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different.” Mulamba, 199 Wn.2d at 498 (quoting 

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 

(1985) (plurality)). Branch does not explain how the suppressed evidence was 

material, but rather argues that he cannot make an offer of proof when the State 

is in possession of his phone. But the information remained inaccessible to the 

State, and Branch had more knowledge about the phone’s information content

than did the State. See Mullen, 171 Wn.2d at 899 (“[A]ny allegation of 

suppression boils down to an assessment of what the State knows at trial in 

comparison to the knowledge held by the defense.”). Branch also chose to 

interview S.M. without creating a record about what she said was on the phone. 

Branch fails to establish prejudice from the State’s failure to disclose information 

on Branch’s own cell phone.
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In addition to the alleged Brady violation, Branch also argues that by

conditioning the return of the phone on his providing his password, the court

violated his rights to privacy, association, and against self-incrimination. But he 

does not challenge the propriety of the State’s warrants to search his phone.4 A 

valid warrant provides the “authority of law” required to “disturb” a person’s 

“private affairs.” CONST. art. I, § 7. While Branch cites cases stating that 

cellphones reveal private information, he fails to provide any argument applying 

that authority to the facts here. “This court will not consider claims insufficiently 

argued by the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).

We affirm the trial court’s order granting the State’s CrR 7.8 motion and 

amending his sentence, and we deny Branch’s PRP.

 4 Instead, Branch claims the court’s “limitless ruling permitting the government complete 

access to all information on the phone far exceeded the information authorized by the . . . 

narrowly tailored search warrant.” 

WE CONCUR: