IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the Personal Restraint Petition No. 55064-4-II

of:

KRISTOPHER JOHN RAMPELBERG, UNPUBLISHED OPINION

Petitioner.

WORSWICK, J. — This case was transferred to us to be considered as a personal restraint 

petition (PRP) under RAP 7.8(c)(2) after Rampelberg filed a motion in the trial court to 

withdraw his guilty plea to second degree assault and felony hit and run. Mot. to Withdraw Plea 

(Kitsap County Super. Ct., Wash. Nov. 22, 2019) (MWP). Rampelberg moved to withdraw his 

plea, arguing (1) the State breached the plea agreement because it later filed charges it had 

agreed to forgo, (2) his plea was not knowing, intelligent, and voluntary, (3) he received 

ineffective assistance of counsel for advising him that his plea deal included the State’s 

forbearance on filing additional charges, and (4) newly discovered evidence. We deny 

Rampelberg’s petition.

FACTS

In March, 2018, Kristopher Rampelberg and his then-girlfriend Justice Rieger were 

breaking up. The two had a dispute, and Rampelberg became upset. He got into his large diesel

pickup truck and drove by Rieger’s friend’s house. Rieger, and her friend, Elizabeth Anthony, 

were outside when Rampelberg’s truck approached. Rampelberg accelerated his truck toward 

Anthony, who was standing in the street several hundred feet away from Rampelberg’s truck. 

A neighbor stated he heard the noise from the acceleration from his yard. Despite Anthony’s

Filed

Washington State

Court of Appeals

Division Two

November 2, 2021
No. 55064-4-II

2

efforts to run and jump out of the way, Rampelberg struck her in the knee with the front 

passenger side grill of the truck. She sustained injuries to her knee and wrist and was transported 

to a hospital. Rampelberg’s truck sustained damages consistent with the collision with Anthony. 

Rampelberg immediately fled the scene and did not answer his phone following the incident.

A police officer later spoke with Rampelberg on the phone about the event, and although 

he claimed the incident was an accident, he admitted to striking Anthony with his truck. 

Rampelberg stated he fled the scene because he “freaked out,” but provided no additional 

explanation as to why he did not stop to help Anthony or get her the medical help she needed. 

The State charged Rampelberg with one count of second degree assault1and one count of 

felony hit and run.2 Rampelberg initially entered a plea of not guilty. During his pretrial release, 

Rampelberg entered into plea negotiations with the State. Rampelberg asserts that his attorney 

advised him the State offered to drop the hit and run charge if he would plead guilty to “a 

felony.” Rampelberg refused this offer. 

In September, 2018, while this case was pending, Rampelberg was involved in another 

incident that resulted in a referral to the prosecutor for a misdemeanor reckless driving charge. 

Rampelberg asserts that following this incident, his attorney told him he had reached a deal with 

the State not to charge Rampelberg with reckless driving stemming from the September incident 

if he agreed to plead guilty to the two pending felony counts from the March incident. Jennifer 

Wilson, who claims to have been present during conversations between Rampelberg and his 

 

1 RCW 9A.36.021(1)(c).

2 RCW 46.52.020(4)(b).
No. 55064-4-II

3

attorney, states that Rampelberg’s attorney said that he believed the prosecutor “would probably 

either drop the reckless driving charge or include it in the plea” if Rampelberg considered 

pleading guilty. MWP (Decl. of Jennifer Wilson, ¶ 6). Rampelberg claims that up to this point, 

he was opposed to pleading guilty because he was innocent of the felony charges. Rampelberg 

asserts he would not have pleaded guilty to felony charges without a promise from the prosecutor 

that he would not be charged with misdemeanor reckless driving.3 

Rampelberg’s attorney and the State prepared a plea agreement in October 2018, which 

was signed by Rampelberg, defense counsel, and prosecutor Kelly Montgomery. In the 

agreement, Rampelberg agreed to plead guilty to second degree assault and felony hit and run in 

exchange for a jointly-recommended exceptional downward sentence of nine months to be 

served via jail alternatives such as electronic home monitoring. The agreement stated “[a]ll prior 

offers, whether oral or written, are hereby withdrawn,” and that the State agreed to file no further 

charges “for this incident.” Br. of Resp’t at App. D. The plea agreement contained no reference 

to any charges stemming from the September 2018 incident.

In November, Rampelberg entered an Alford plea of guilty to second degree assault and 

felony hit and run.

4

 The prosecutor present in court was Ben Turner, a different prosecutor from 

the one who had negotiated the plea. 

 

3

In fact, a charging document for reckless driving, dated October 4, 2018 had already been 

drafted. 

4 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L. Ed. 2d 162 (1970); by entering an 

Alford plea, Rampelberg allowed the trial court to examine the probable cause materials in 

considering the factual basis for the plea.
No. 55064-4-II

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On his statement of plea, Rampelberg attested that “[n]o person has made promises of 

any kind to cause [him] to enter this plea except as set forth in this statement.” MWP (Decl. of 

Teresa Groves (Groves Decl.), Ex. B, at 10, ¶ 10). The statement of plea also contained 

language that Rampelberg understood the consequences of his plea. It contained no reference to 

the September reckless driving allegation or any promises by the State not to charge him with 

offenses from other incidents. The statement of plea also stated “[t]he judge does not have to 

follow anyone’s recommendation as to sentence.” MWP (Groves Decl., Ex. B, at 4, ¶ 6(k)). The 

trial court signed Rampelberg’s statement of plea declaring “I find the defendant’s plea of guilty 

to be knowingly, intelligently and voluntarily made. Defendant understands the charges and the 

consequences of the plea.”

5

 MWP (Groves Decl., Ex. B, at 11). 

After Rampelberg’s plea was entered but before he was sentenced, the following 

exchange occurred:

PROSECUTOR: The–part of this resolution was–and what Mr. Pimentel made 

sure to cover his client, as the court can see from the paperwork, is that he won’t be 

able to have a license which will be really good. There is District Court case 

pending right now which is for reckless driving that occurred –

DEFENSE COUNSEL: It is not pending. [The other prosecutor] said they weren’t 

going to file it. 

PROSECUTOR: It is pending. It is filed. 

DEFENSE COUNSEL: I was under the impression it wasn’t being filed. We’ll 

talk. 

PROSECUTOR: It is not part of this. But when I look in DAMION, I believe that 

it’s been filed. I can’t be a hundred percent on that. But it was referred to us. So 

there was probable cause in an affidavit at a minimum for a pretty bad reckless 

 

5 The record on appeal does not include any plea colloquy. Rampelberg does not argue that the 

trial court’s colloquy was insufficient.
No. 55064-4-II

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driving incident. And [s]o it’s important to the State that this individual get his life 

on track, not be a danger to the community, and stay out of his car for a while. And 

so with the court’s finding that there was a vehicle obviously used in Counts 1 and 

2, would be a license suspension. And so that was an important part of the 

negotiated agreement and why I think it’s appropriate that it be EHM instead of 

jail. So all these things going into this, we’re asking the court to follow this joint 

recommendation.

THE COURT: Okay. Mr. [Defense Counsel]?

DEFENSE COUNSEL: Good morning, Your Honor. I want to state for the record 

that I was under the impression that they agreed not to file this because of this plea. 

But I will discuss that with [Montgomery] because that discussion took place with 

her.

THE COURT: And I’ve already processed the guilty plea, so I think you would be 

looking at some collateral relief if you are going to go down that road. But we’ll 

continue on this path today.

MWP (Groves Decl., Ex. C, Report of Proceedings (Nov. 28, 2018) at 1-3).

The trial court accepted the recommendation and sentenced Rampelberg to nine months 

of jail alternatives to include electronic home detention. According to Wilson, when 

Rampelberg learned that this plea agreement did not contain any promise from the State not to 

charge him for reckless driving related to the second incident, his attorney assured him that he 

would talk to the prosecutor to ensure they would “take care of it.” MWP (Decl. of Jennifer 

Wilson, ¶ 9).

In February 2019, Rampelberg began serving his sentence. In April 2019, Rampelberg 

was notified by Kitsap District Court that he was being charged with reckless driving, based on 

the September 2018 incident. Rampelberg’s parents contacted his attorney by email, stating they 

believed the State had agreed not to prosecute this charge. Rampelberg’s attorney replied that he 

was working with prosecutors on the new charge, and that Rampelberg would need to appear if it 

could not be dismissed. 
No. 55064-4-II

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On May 17, 2019 defense counsel sent an email to the prosecutors on the case that stated:

Justin and Kelly, 

I request you talk to Kelly because she promised me this would not be pursued if 

he plead to A2 and Hit and Run Injury. Kelly, will you please recall and discuss 

our agreement. The fact that Ben was right doesn’t change my position. Kelly 

made the final decision on whether this case would be reduced. We discussed it at 

length. She indicated that if he plead the State would not follow through on this 

case. Kelly, did we or did we not have that conversation?

MWP (Decl. of John Rampelberg, Ex. B at 1).

On May 31, defense counsel sent the prosecutors another email stating:

Attached is the transcript of the felony plea and sentencing to A2 and Hit and Run 

Injury and a Notice for Case Setting for Reckless Driving scheduled for May 29, 

2019. Please review these documents. I believe they solidify my position on this 

issue. 

At sentencing, I was clearly of the belief that Kelly had informed me that your 

office had not filed a new referral for reckless driving (which turned out to be true) 

and if Mr. Rampelberg plead to A2 and Hit and Run, it would not be filed. Ben 

was adamant that it had already been filed (that turned out to be not true). In any 

event, I have a specific recollection of my conversation with Kelly. Kelly, do you 

remember it? Ben, you can attest that I’ve been telling you this all along and made 

these statements as an officer of the Court in open court at sentencing? I honestly 

believed that the case had not been filed and would not be filed because of the plea 

on that day. 

I’m now realizing that the reason I didn’t put the non-charge on the Reckless 

Driving in the plea agreement is because 1. Ben objected to [i]t but still insisted that 

we plead that day or lose the offer (Ben does this all the time) and 2. It was a 

representation that Kelly made to me and Ben wasn’t aware of it. I specifically 

stated in the hearing that I would clear it up with Kelly. So, when you read the 

excerpt from the sentencing hearing you will see a couple things ... First, everything 

you guys wanted (specifically a lengthy loss of license) was accomplished by the 

plea. Second, I truly believed then and still do that we had an agreement to not 

charge the reckless that happened a couple months before this plea if he plead as 

agreed. That was specifically one of the reasons he plead–Final resolution to 

everything. 

Please review this material and if you agree with me please dismiss.
No. 55064-4-II

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MWP (Decl. of John Rampelberg, Ex. B at 2).

Although neither Turner nor Montgomery replied to the emails, a different prosecutor 

claimed they never agreed to dismiss the September 2018 reckless driving charge as part of the 

plea agreement. 

Because an offender is not permitted to be on electronic home monitoring if he has 

pending charges, Rampelberg was removed from electronic home monitoring and taken into 

custody on May 24, 2019. On May 29, Rampelberg pleaded guilty to reckless driving. 

After Rampelberg pleaded guilty to the two felonies, Anthony sued him for personal 

injury. According to an attorney in Rampelberg’s civil case, Anthony had reported to medical 

staff following the incident that Rampelberg’s truck “did not make contact with her body.” 

MWP (Decl. of Kristopher Rampelberg, Ex. A at 2). This statement contradicted the statement 

she had made to police.

Rampelberg moved to withdraw his plea to second degree assault and felony hit and run. 

The trial court transferred Rampelberg’s motion to us to be considered as a personal restraint 

petition under CrR 7.8(c)(2).6 

ANALYSIS

Rampelberg argues that he is entitled to withdraw his plea because (1) the State breached 

the plea agreement when it charged him with reckless driving from the September 2018 incident, 

(2) his plea was not knowing, intelligent, and voluntary, (3) he received ineffective assistance of 

 

6 The trial court ruled that Rampelberg “had not ‘made a substantial showing that he . . . is 

entitled to relief,’ nor does ‘resolution of the motion . . . require a factual hearing.’” Order 

Transferring Defendant’s Mot. to Withdraw Guilty Plea as Pers. Restraint Petition Pursuant to 

CrR 7.8(c)(2), (Kitsap County Super. Ct., Wash. July 21, 2020) (quoting CrR 7.8(c)(2)).
No. 55064-4-II

8

counsel, and (3) newly discovered evidence. We hold that Rampelberg has failed to show the 

alleged errors caused him actual or substantial prejudice and that his claim of newly discovered 

evidence fails. Consequently, we deny Rampelberg’s personal restraint petition.

We consider Rampelberg’s motion to withdraw his plea as a PRP. CrR 7.8(c)(2). To 

prevail in a PRP, “petitioner must prove either a (1) constitutional error that results in actual and 

substantial prejudice or (2) a nonconstitutional error that ‘constitutes a fundamental defect which 

inherently results in a complete miscarriage of justice.’” In re Pers. Restraint of Monschke, 160 

Wn. App. 479, 488, 251 P.3d 884 (2010) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 

672, 101 P.3d 1 (2004)). A petitioner may not rely on bald assertions and conclusory allegations. 

In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). To prevail on a 

constitutional error, a petitioner must show by a preponderance of the evidence that the alleged 

error caused him actual and substantial prejudice. Lord, 152 Wn.2d at 188.

In evaluating personal restraint petitions, we can: (1) dismiss the petition if the 

petitioner fails to make a prima facie showing of constitutional or nonconstitutional 

error; (2) remand for a full hearing if the petitioner makes a prima facie showing 

but the merits of the contentions cannot be determined solely from the record; or 

(3) grant the PRP without further hearing if the petitioner has proved actual 

prejudice or a miscarriage of justice.

In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 176-77, 248 P.3d 576 (2011).

A. Breach

Rampelberg argues that the State breached the plea agreement by charging him with 

reckless driving despite promising it would not do so. The State argues that the final plea 

agreement contained no such promise. We hold that Rampelberg has failed to prove that the 

State breached the plea agreement.
No. 55064-4-II

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A petitioner can obtain relief from the State’s breach of a plea agreement through a PRP. 

Lord, 152 Wn.2d at 189. If the petitioner can prove that the State breached the plea agreement, 

then the petitioner has successfully established he or she was actually and substantially 

prejudiced by a constitutional error, and thus he or she is entitled to relief. Lord, 152 Wn.2d at 

189.

A plea agreement is a contract between a defendant and a prosecutor. Lord, 152 Wn.2d 

at 188. When carrying out the terms of a plea agreement, the State is required to act in good 

faith. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). When the State breaches a 

plea agreement, the defendant is entitled to either specific performance or to rescind the 

agreement by withdrawing his or her plea. State v. Tourtellotte, 88 Wn.2d 579, 581-85, 564 P.2d 

799 (1977). We review constitutional issues de novo. State v. MacDonald, 183 Wn.2d 1, 8, 346 

P.3d 748 (2015). 

Because a plea agreement is a contract, we conduct our analysis according to contract 

principles. Sledge, 133 Wn.2d at 838-39; State v. Thomas, 79 Wn. App. 32, 39, 899 P.2d 1312 

(1995). We analyze plea agreements using principles of contract law. See, e.g., State v. 

Armstrong, 109 Wn. App. 458, 461, 35 P.3d 397 (2001). But because plea agreements are “more 

than simple common law contracts,” additional constitutional issues are considered, including 

due process and fairness. Sledge, 133 Wn.2d at 839. 

Here, because the written plea agreement is unambiguous, no extrinsic evidence is 

necessary to ascertain its meaning. See State v. E.A.J., 116 Wn. App. 777, 785, 67 P.3d 518

(2003) (introducing extrinsic evidence to interpret an ambiguous plea agreement). The agreement

states that Rampelberg pleaded guilty to two felony counts and waived his constitutional rights
No. 55064-4-II

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as consideration for the State’s promise to recommend an exceptional sentence downward. The 

agreement makes no mention of any promise by the State not to prosecute Rampelberg for the 

September reckless driving charge. 

Rampelberg contends that the State made such a promise before it executed the written 

agreement, and that this promise was intended to be part of the final agreement. The State 

disputes this. But even if the State did, at some point, agree to forgo filing the reckless driving 

charge, the existence of such a promise is immaterial where the agreement contains an 

integration clause disclaiming any such promise. The plea specifically stated that “[n]o person 

has made promises of any kind to cause [him] to enter this plea except as set forth in this 

statement.” MWP (Groves Decl., Ex. B ¶ 10). Thus, because the contract is unambiguous, we

need no extrinsic evidence to understand the agreement, and we interpret the plea agreement as a 

question of law.

The plea agreement contained no promise not to prosecute Rampelberg for reckless 

driving related to the September incident. In fact, both the agreement and the plea statement 

expressly disavowed any promises made outside the written agreement. Therefore, Rampelberg 

failed to meet his burden to show that the State breached the plea agreement, and this argument 

fails.

B. Knowing, Intelligent, and Voluntary

Rampelberg argues that his plea was not knowing, intelligent, or voluntary because he 

believed his attorney had obtained a non-prosecution promise from the State as part of his plea 

agreement. Rampelberg claims that he had no knowledge that his ability to serve his jail 
No. 55064-4-II

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sentence on electronic home monitoring would be put into jeopardy by the State’s prosecution of 

the additional charge. We hold that Rampelberg’s plea was knowing, intelligent, and voluntary.

Due process requires that the accused understands the nature of the charge and enters the 

plea intelligently and voluntarily. State v. Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018). A 

person makes a plea knowingly and voluntarily when they understand the plea’s consequences. 

Buckman, 190 Wn.2d at 59. A defendant need not understand all consequences of a plea but 

rather only the direct consequences. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). 

Consequences are “direct” when they have a “definite, immediate and largely automatic effect on 

the range of the defendant’s punishment.” State v. Kissee, 88 Wn. App. 817, 821-22, 947 P.2d 

262 (1997) (quoting Ross, 129 Wn.2d at 284). Consequences are “indirect” or “collateral” when 

they “flow[] not from the guilty plea itself but from additional proceedings.” Kissee, 88 Wn. 

App. at 822 (quoting Ross, 129 Wn.2d at 285).

“When a defendant completes a plea statement and admits to reading, understanding, and 

signing it, this creates a strong presumption that the plea is voluntary.” State v. Smith, 134 

Wn.2d 849, 852, 953 P.2d 810 (1998). If the trial court “inquire[s] orally of the defendant and 

satisfies [itself] on the record of the existence of the various criteria of voluntariness, the 

presumption of voluntariness is well nigh irrefutable.” State v. Knotek, 136 Wn. App. 412, 428-

29, 149 P.3d 676 (2006) (quoting State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982))

(internal quotations omitted). 

Petitioners can establish actual and substantial prejudice in the context of a 

constitutionally defective guilty plea when they show that they would more likely than not have 

refused to plead guilty and would have insisted on going to trial. Buckman, 190 Wn.2d at 65. 
No. 55064-4-II

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But “bare allegation[s] that [he] would not have pleaded guilty if he had known all of the 

consequences of the plea is not sufficient to establish prejudice.” Buckman, 190 Wn.2d at 64. 

We apply an objective standard to determine whether a rational person in the position of the 

defendant would have not pleaded guilty and instead would have chosen to go to trial. Buckman, 

190 Wn.2d at 70.

Here, given the unambiguous nature of the plea agreement and the plea statement, which 

were both signed by Rampelberg, there is a strong presumption that the plea was voluntary. 

Moreover, Rampelberg only claims he lacked knowledge of indirect, collateral consequences, 

not direct consequences. He claims he did not know that his ability to serve his jail sentence on 

electronic home monitoring would be placed in jeopardy by an additional prosecution. This 

argument fails for two reasons. First, as stated in his statement on plea of guilty, the judge does 

not have to follow anyone’s recommendation as to sentence, and could have sentenced 

Rampelberg to jail without alternatives. Second, the consequence of being ineligible for 

electronic home monitoring would only arise from further proceedings. Rampelberg does not 

contend that he lacked any knowledge of the “definite, immediate and largely automatic 

effect[s]” that his guilty plea would have on his punishment. Ross, 129 Wn.2d at 284. 

Rampelberg also fails to establish actual and substantial prejudice. To prevail, he must 

establish that a rational person in his situation would more likely than not have rejected the plea 

and proceeded to trial. Rampelberg contends through his own declarations and those of his 

family members and supporters that he would not have pleaded guilty but for the promise from 

the State not to prosecute him for the reckless driving offense. However, we do not conduct a 

subjective analysis. Buckman, 190 Wn.2d at 66. Rampelberg only offers bare assertions of 
No. 55064-4-II

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prejudice based on his own personal contentions about the weight of the evidence. He provides 

no objective, rational person analysis. 

Turning to this analysis, we note that the evidence against Rampelberg was 

overwhelming, including multiple eyewitnesses to the incident, Rampelberg’s flight from the 

scene, damage to Rampelberg’s truck, and his own admissions to police. Rampelberg submits 

that Anthony’s contrary statement to medical responders that the car did not hit her body is 

exculpatory, but, as discussed below, this statement does not mitigate against an assault 

conviction. In addition, under the plea agreement, the State recommended an exceptional 

downward sentence of nine months that may be served with jail alternatives. If Rampelberg had 

not accepted the plea offer, he would be facing a possibility of 6 to 12 months in jail for each 

charge. Rampelberg does not provide any persuasive argument for why a rational person in his

position would have not pleaded guilty and instead would have chosen to go to trial. Not only is 

there ample evidence against him, but the plea agreement, in light of the evidence presented, was 

generous. A reasonable person in Rampelberg’s position would not have chosen to go to trial. 

Based on the record, there is a strong presumption that Rampelberg made his plea 

voluntarily. Moreover, because Rampelberg claims he lacked knowledge of only a collateral 

consequence of his plea, he cannot show that he has made a plea less than knowingly, 

voluntarily, and intelligently. Finally, Rampelberg offers no argument that a rational person in 

his situation would have insisted on going to trial, given the overwhelming evidence against him

and the leniency of the plea agreement. Rampelberg’s bare assertions and subjective analysis do 

not warrant relief. We hold that Rampelberg has failed to show actual and substantial prejudice 

in the context of the allegedly defective guilty plea.
No. 55064-4-II

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C. Ineffective Assistance of Counsel

Rampelberg argues that he received ineffective assistance of counsel. Specifically, he 

argues that his attorney assured him he would not be charged with reckless driving if he pleaded 

guilty, and that he would have insisted on going to trial but for his attorney’s error.7 We

disagree.

The right to effective assistance of counsel is enshrined in our state constitution and 

recognized by the Supreme Court. See WASH. CONST. art. I, § 22; Gideon v. Wainwright, 372 

U.S. 335, 337, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). To establish ineffective assistance of 

counsel, a defendant must show that counsel’s performance was (1) deficient, and (2) resulted in 

prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Performance is deficient if it falls below an objective standard of reasonableness based 

on all the circumstances. Strickland, 466 U.S. at 687. Counsel’s error regarding a guilty plea is 

prejudicial when there is a “reasonable probability” that the defendant would have insisted on 

going to trial but for counsel’s error. In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863 

P.2d 554 (1993).

There is a strong presumption that counsel’s assistance was effective. State v. 

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant cannot show either 

prong of the ineffective assistance of counsel test, our inquiry need not go further. See 

McFarland, 127 Wn.2d at 334-35. 

 

7 Rampelberg submits the same argument for actual and substantial prejudice for both the 

constitutionally defective plea and ineffective assistance of counsel: he would not have pleaded 

guilty but for lack of knowledge.
No. 55064-4-II

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Counsel has a duty to assist a defendant in evaluating a plea offer through thorough and 

prepared consultation. State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010); RPC 1.1; 

RPC 1.2(a). Although the extent of counsel’s investigation and consultation is relative to the 

facts and circumstances of each case, at the very least counsel must reasonably evaluate the 

evidence against the accused and the likelihood of a conviction if the case proceeds to trial so 

that the defendant can make a meaningful decision whether or not to plead guilty. A.N.J., 168 

Wn.2d at 111-12. 

To be prejudicial, counsel’s error in assisting a client when pleading guilty requires a 

showing that but for the error there is a reasonable probability that the client would not have 

pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 

S. Ct. 366, 88 L. Ed. 2d 203 (1985). We make this determination objectively without regard for 

the idiosyncrasies of the particular decision maker. Hill, 474 U.S. at 59-60. This test closely 

resembles that of prejudice for a constitutionally defective guilty plea. See Buckman, 190 Wn.2d 

at 69.

Here, it appears from the record that Rampelberg’s attorney was misinformed about the 

State’s intentions to file charges based on the September 2018 reckless driving incident before he 

entered Rampelberg’s guilty plea. The record supports that Rampelberg’s attorney believed he 

had obtained a promise from the State not to prosecute that charge. It follows then that 

Rampelberg’s attorney informed Rampelberg that reckless driving charges would not be filed. 

Nonetheless, Rampelberg’s attorney allowed Rampelberg to sign a plea agreement that did not 

include this term, and then allowed his client to enter a plea of guilty under the written terms of 

the agreement on the assumption he could adjust the agreement later. This behavior raises 
No. 55064-4-II

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questions about whether counsel’s performance was in accordance with an objective standard of 

reasonableness in service of his client’s best interests. 

But because Rampelberg cannot show he was prejudiced, even assuming his attorney’s 

performance was deficient, his claim fails. McFarland, 127 Wn.2d at 334-35. As explained 

above, Rampelberg cannot show that a rational person would have insisted on going to trial but 

for counsel’s failure to inform him of the collateral consequence that the State may charge him 

with reckless driving. Rampelberg makes no attempt to show that a rational person would have 

insisted on going to trial instead of accepting an agreement where the State recommended an 

exceptional downward sentence.

We hold that Rampelberg’s ineffective assistance of counsel claim fails.

D. Newly Discovered Evidence

Rampelberg argues that newly discovered evidence that Anthony made a contradictory 

statement would change the outcome of his case, and that he is now entitled to withdraw his plea. 

We disagree.

There are three common law definitions of “assault”: “(1) an unlawful touching (actual 

battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending but 

failing to accomplish it (attempted battery); and (3) putting another in apprehension of harm.” 

State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Newly discovered evidence claims 

raised in a PRP are subject to the same standards as a motion for a new trial. In re Pers. 

Restraint Pet. of Copland, 176 Wn. App. 432, 450, 309 P.3d 626 (2013). Petitioners must 

demonstrate five elements to succeed on a claim of newly discovered evidence when seeking 

relief:
No. 55064-4-II

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(1) The evidence must be such that the results will probably change if a new trial 

were granted;

(2) The evidence must have been discovered since the trial;

(3) The evidence could not have been discovered before the trial by exercising due 

diligence;

(4) The evidence must be material and admissible; and

(5) The evidence cannot be merely cumulative or impeaching.

State v. Harper, 64 Wn. App. 283, 291, 823 P.2d 1137 (1992).

Here, Rampelberg’s claim fails on at least three of the above elements. First, 

Rampelberg offers no explanation for why he could not have obtained this evidence before trial 

in the exercise of due diligence. Second, Anthony’s statement to medical staff also appears to be 

merely impeachment evidence, and Rampelberg offers no explanation otherwise. Finally, this 

statement is not material, because even if Rampelberg’s truck did not strike Anthony, the 

uncontroverted statements show that she would have been placed in apprehension of harm, 

which constitutes assault.

We hold that Rampelberg’s claim for relief based on newly discovered evidence fails.

CONCLUSION

We hold that Rampelberg’s petition for relief based on the allegation that the State 

breached the plea agreement fails because Rampelberg fails to show actual or substantial 

prejudice. We also hold that Rampelberg’s claim that his guilty plea was not knowing, 

intelligent, or voluntary fails because Rampelberg cannot overcome the strong presumption that 

his plea was voluntary. He cannot show that he was unaware of the direct consequences of his 

plea, nor can he show that there was actual or substantial prejudice resulting from the alleged 

error because he fails to objectively show that a rational person would have insisted on going to 

trial. We hold that Rampelberg’s claim of ineffective assistance of counsel also fails because he 
No. 55064-4-II

18

cannot demonstrate resulting prejudice. Finally, we hold that Rampelberg’s claim of newly 

discovered evidence fails because Rampelberg fails to demonstrate why the evidence could not 

have been discovered before trial in the exercise of reasonable diligence, why the evidence is not 

merely impeachment evidence, or why it is material. Accordingly, we deny Rampelberg’s 

petition for relief. 8

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 in accordance with RCW 

2.06.040, it is so ordered.

Worswick, J.

We concur:

Glasgow, A.C.J.

Veljacic, J.

 

8 We note that even if Rampbelberg’s arguments were successful, a withdrawal of his guilty plea 

would have no effect on the separate reckless driving charge that Rampelberg later pleaded 

guilty to. Even if we allowed Rampelberg to withdraw his plea, he did not appeal the reckless 

driving conviction, and this PRP would not affect that conviction. Rampelberg would once again 

face trial for second degree assault and felony hit and run and assault, while the reckless driving 

charge would remain on his record.