IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of Personal Restraint of

JONATHAN BROOK HAWKINS.

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No. 37732-6-III

UNPUBLISHED OPINION

FEARING, J. — Jonathan Hawkins seeks relief from personal restraint resulting 

from his convictions for two counts of first degree child rape and one count of first 

degree child molestation. This court previously denied his appeal from his convictions. 

In his personal restraint petition (PRP), Hawkins contends that his trial counsel 

performed ineffectively, the State engaged in misconduct, and the superior court denied 

him his constitutional right to a grand jury indictment. We deny Hawkins relief. 

FACTS

This prosecution arises from sexual contact between Jonathan Hawkins and two of 

his three young daughters. Hawkins obtained a college degree in agricultural business 

and science. 

In early February 2015, Hawkins and his wife, Caitlyn, resided in a Moses Lake 

hotel room with their three children: four-year-old Leah, one-and-a-half-year-old Carol, 

FILED

FEBRUARY 8, 2022

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 37732-6-III

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and six-month-old Linda. All children’s names are pseudonyms. Caitlyn is the 

biological mother to all three girls. Jonathan is the biological father to Carol and Linda

and the stepfather to Leah. All minors’ names are pseudonyms. 

On February 10, 2015, in a Facebook conversation with a family friend, Jonathan 

Hawkins described his family’s “‘open’” lifestyle and promulgated his belief that 

“females existed to provide sexual service to males and that his one-and-a-half- and fouryear-old daughters assisted their mother in sexual activities with him.” State v. Hawkins, 

No. 34898-9-III, slip op. at 1-2 (Wash. Ct. App. Apr. 23, 2019). Following this 

conversation, the family friend reported Hawkins to Child Protective Services (CPS) 

regarding potential sexual assaults of Leah. State v. Hawkins, No. 34898-9-III, slip op. at 

2. 

On February 11, 2015, Sergeant Brian Jones of the Moses Lake Police Department 

began investigating the allegation CPS received. In an affidavit for a search warrant of 

the hotel room in which the Hawkins family resided, Sergeant Jones referenced the 

Facebook conversation between Jonathan Hawkins and the family friend. Hawkins had 

written in the electronic conversation:

[Leah] was “learning by example” from watching her mother and 

father engage in sexual activities, including “how to pleasure the sack and 

prostate.” The affidavit also included admissions by both the mother and 

the father that the four-year-old had been in contact sexually with the father 

and had assisted in “milking” him. [Clerk’s Papers (CP)] at 263. The 

“milking” process was described in a Facebook message included in the 

affidavit as the regular “release” of “sperm and what we call milk.” CP at 
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265. Mr. Hawkins described the released material as “very healthy for the 

female to eat” and “should be the majority of the females [sic] diet.” CP at 

265.

State v. Hawkins, No. 34898-9-III, slip op. at 21. The trial court granted Sergeant Jones a 

search warrant for the hotel room. 

On the evening of February 11, 2015, law enforcement contacted Jonathan 

Hawkins outside of his hotel room by duping him into believing someone vandalized his 

vehicle. Officers then entered the hotel room with Caitlyn Hawkins’ consent and 

executed the search warrant. 

During the search of the hotel room, Moses Lake Detective Kao Vang interviewed 

Caitlyn. Caitlyn explained to Detective Vang that her family was “open” in regard to 

general communication and their bodies. The Hawkins family spent a majority of their 

time at home nude. According to Caitlyn, Jonathan’s ideology about and practices 

toward females came from his research of the first bible written in Greek or Hebrew. In 

Jonathan’s view, God created females in his image only to give pleasure to men and not 

to enjoy sex themselves. 

Detective Kao Vang asked Caitlyn Hawkins whether Leah had touched her or 

Jonathan Hawkins in a sexual manner. Caitlyn responded that Leah had touched

Caitlyn’s vagina and Jonathan’s penis. Leah also had Jonathan’s penis in her mouth. 

Caitlyn described a time when Leah manually masturbated Jonathan and another time in 

which Leah drank Jonathan’s sperm, referred to by Caitlyn as “‘milk,’” which had been 
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stored in the refrigerator. Clerk’s Papers (CP) at 14. (The record from State v. Hawkins, 

No. 34898-9-III was transferred into No. 37732-6-III.) At the conclusion of the 

interview, officers arrested Caitlyn. 

Detective Kao Vang then interviewed Jonathan Hawkins at the Moses Lake Police 

Department. Hawkins admitted to Detective Vang that, on one occasion, Leah’s mouth

touched his penis. He explained that, while Caitlyn fellated him, Leah awoke. He 

claimed to not recall how Leah’s mouth came to touch his penis. According to Jonathan, 

Leah evoked curiosity about how “milk” tasted. So, the couple let Leah drink sperm. 

She did not like it. Jonathan emphasized that drinking sperm carried health benefits, 

including preventing prostate cancer. Jonathan denied having vaginal intercourse with 

Leah. 

PROCEDURE

On February 13, 2015, the State of Washington charged Jonathan Hawkins with 

one count each of rape of a child in the first degree and child molestation in the first 

degree. The State alleged four-year-old Leah as the victim on both counts. 

The State of Washington filed charges separately against Caitlyn Hawkins. State 

v. Hawkins, No. 34898-9-III, slip op. at 2. CPS initiated dependency proceedings for the 

couple’s children. State v. Hawkins, No. 34898-9-III, slip op. at 2. 

Trial was initially scheduled for April 15, 2015. While citing a trip out of town 

from April 2-10 and the need to interview eleven State witnesses, defense counsel 
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obtained, over the objection of the prosecution, a continuance of the trial until June 3, 

2015. Defense counsel also requested that the State schedule a Ryan hearing in advance 

of trial. A Ryan hearing addresses the admissibility of a child’s statements. State v. 

Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). Defense counsel sought a delay in the 

hearing in order to obtain a defense expert prior to the hearing. 

The prosecution tendered a plea offer to Jonathan Hawkins that would expire on 

a Ryan hearing. Thereafter, the trial court continued the Ryan hearing and the trial on 

many occasions at the request of both sides. The dependency proceeding resulted in 

Leah and her sisters being placed out of state, a circumstance that impeded access to 

Leah. 

The prosecution reached an agreement with Caitlyn Hawkins to testify against her

husband. As part of a “free talk” with the detectives, she showed them a lengthy 

Facebook conversation with her husband that stretched over a year. The messages 

included photographs and videos of sexual activities involving the family. Caitlyn 

allowed access to her Facebook pages in order to permit the officers to view the entire 

conversation. Law enforcement could not download the conversation due to its size. As 

a result, police served a search warrant on Facebook to obtain the entire conversation. 

The agreement with Caitlyn Hawkins faltered when the prosecution concluded that 

she prevaricated. The State withdrew from the agreement and sealed the evidence 

obtained from her. When Facebook later complied with the search warrant by providing 
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nearly 2,000 printed pages, the prosecution also sealed the pages and declined to 

immediately submit copies to Jonathan Hawkins. 

On January 15, 2016, one of the dates scheduled for the Ryan hearing, Jonathan 

Hawkins moved to dismiss under CrR 8.3(b) due to alleged government mismanagement 

involving the late disclosure of the video recording of a second forensic interview of 

Leah in November 2015. The superior court denied the motion on the ground that 

Hawkins suffered no substantial prejudice. The superior court continued

the Ryan hearing for one month. Shortly before the Ryan hearing, the prosecution 

entered into a plea agreement with Caitlyn Hawkins and forwarded copies of the 2,000 

Facebook pages to Jonathan Hawkins. 

The Ryan hearing began February 25, 2016, six days before the scheduled trial 

date. The superior court heard testimony from the children’s foster mother, the original 

child interviewer, Karen Winston, and a defense witness who had conducted an interview 

with Leah in November 2015. The court also viewed the videotaped interview conducted 

by Winston, but did not hear testimony from Leah. The court ruled that Winston and the 

foster mother could testify to statements uttered by Leah. The superior court reserved a 

ruling on Leah’s competency to testify until trial. 

Because of the late delivery of the Facebook pages, the superior court continued 

the trial into the summer of 2016. Jonathan Hawkins filed motions to exclude testimony 

from Caitlyn, to suppress the Facebook electronic conversations, and to change venue. 
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The superior court granted the State permission to amend the information to add a count 

of first degree child rape of the one-and-a-half-year-old girl, Carol. 

The superior court denied the motion to exclude testimony from Caitlyn Hawkins 

and to suppress the Facebook pages. Jonathan Hawkins filed a waiver of jury trial on 

August 22, 2016. He avers that his trial counsel then explained that a judge decides a 

case based on the law, whereas a jury decides cases on an emotional basis, unbound by 

law. 

The prosecution proceeded to a bench trial on September 14, 2016. The State 

presented testimony from two law enforcement officers, Karen Winston, the foster 

mother, Caitlyn Hawkins, and Leah. The superior court found Leah competent to testify 

and admitted the forensic interview tape by stipulation of the parties. 

During her testimony, Caitlyn Hawkins described the family’s “open” lifestyle and 

testified to instances of sexual contact she observed between Leah and her husband. The 

State offered fifty pages of excerpts from the Facebook conversation as exhibits. The 

superior court conducted an ER 404(b) analysis on the record and admitted the excerpts 

as exhibits because of their high probative value. 

Caitlyn Hawkins testified to seeing Jonathan’s penis inside Leah’s mouth on three 

occasions, one of which occurred on January 29 or 30, 2015. Caitlyn knew the sexual 

contact occurred around 7:30 p.m., because Austin & Alley, a television show, aired at the 
No. 37732-6-III

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time. Caitlyn also stated that Leah often watched and assisted in “milking” Jonathan by 

massaging his testicles. 

During his cross-examination of Caitlyn Hawkins, Jonathan Hawkins’ counsel 

questioned her about a competency evaluation she had undergone. The State objected to 

the line of questioning on relevance grounds. Defense counsel explained that, in 

Caitlyn’s evaluation report, “the doctor made several diagnoses, including that she was 

malingering.” Report of Proceedings (RP) at 751. The superior court sustained the 

objection. 

During trial, the State admitted as exhibits Facebook messages between Caitlyn 

and Jonathan Hawkins. In one message, Jonathan discussed the need “‘to break [Leah’s] 

hymen and start working her vaginally and things’ and using a butt plug.” CP at 451. In 

another message, Jonathan remarked that Leah “‘did good massaging the balls it [sic] 

helped me go.’” CP at 451. Jonathan described Leah’s ability to “milk” him as 

improving. 

At trial, Leah’s foster mother testified to a disclosure Leah made to her relating to 

a rape perpetrated by Jonathan Hawkins and her maternal grandfather on the 

grandfather’s Oregon property. According to Hill, Leah remarked: 

Sometimes we went to visit nanny and poppy and we used to go to 

the barn and poppy and dad put them [sic] penis in there too. There was 

[sic] no animals in the barn, only a cute cat and a chair and just a bed.
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RP at 821. According to Hill, Leah disclosed that “‘white stuff came out of’” Hawkins 

and was placed in her food. CP at 451. 

Detective Kao Vang testified that he determined that Caitlyn Hawkins’ parents’ 

property did not feature a barn, only a shed. When Caitlyn testified, she confirmed that 

her parents did not own a barn, but rather a shed and a garage with a lean-to. 

Karen Winston testified that Leah told her that Jonathan Hawkins’ penis had been 

in her mouth and that Leah explained the concept of producing “milk.” Leah also 

informed Winston that she saw Hawkins’ penis in Carol’s mouth while they stayed in a 

hotel. Leah uttered this latter comment without prompting from Winston and described 

how Carol spat Hawkins’ penis out of her mouth. 

The superior court found Jonathan Hawkins guilty on all three counts relating to 

Leah and Carol. State v. Hawkins, No. 34898-9-III, slip op. at 6. The court also found 

two alleged aggravating factors, vulnerability of the victims and a pattern of sexual 

abuse, as to all counts. State v. Hawkins, No. 34898-9-III, slip op. at 6.

In its written verdict, the superior court outlined its reasoning for finding Jonathan 

Hawkins guilty. The court deemed Caitlyn Hawkins’ testimony reliable because she

identified specific details relating to Jonathan’s sexual conduct with Leah. The superior 

court found probative Leah’s statements to Karen Winston and the foster mother. 

According to the court, the Facebook conversation between Jonathan and Caitlyn 

Hawkins provided insight into Jonathan’s philosophy about females. In finding Jonathan 
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Hawkins guilty of raping Carol, the superior court relied on Leah’s statements to Karen 

Winston that she saw Hawkins’ penis in Carol’s mouth while they stayed in a hotel. 

The superior court conducted a sentencing hearing on November 22, 2016. The 

court imposed high end minimum term sentences consisting of 216 months on the two 

rape convictions and 130 months on the molestation conviction. Although the court 

ordered the two rape sentences to run concurrently with each other, the court imposed an 

exceptional sentence by directing that the molestation sentence be served consecutively

to the rape convictions. Thus, the superior court effectively sentenced Jonathan 

Hawkins’ to a total of 346 months’ confinement. 

Jonathan Hawkins appealed to this court. He argued, among other contentions, 

that the State committed governmental mismanagement by violating his right to a speedy 

trial. State v. Hawkins, No. 34898-9-III, slip op. at 6-7. This court analyzed the alleged 

speedy trial violation as follows:

Mr. Hawkins . . . argues that his constitutional speedy trial right was 

violated by the numerous continuances beginning in July 2015, some of 

which resulted due to discovery provided during the on-going investigation. 

He summarily argues that all of the Barker v. Wingo[, 407 U.S. 514, 92 S. 

Ct. 2182, 33 L. Ed. 2d 101 (1972)] factors favor Mr. Hawkins and compel 

dismissal of the charges. However, those factors do not support his 

position. 

The time between charging and trial was nearly 19 months, a length 

of time sufficient to raise constitutional speedy trial concerns. [State v. 

]Iniguez, 167 Wn.2d [273,] 283-284[,217 P.3d 768 (2009)]. This factor 

does favor Mr. Hawkins. The second factor is the reason for the delay; the 

analysis depends on whether the delay was purposeful or negligent and who 

was responsible for it. Id. at 284. Except for a three week continuance 
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granted over Mr. Hawkins’ objection on July 6, 2015, the remaining 

continuances were granted at the request of Mr. Hawkins or with his 

agreement. In light of this, Mr. Hawkins presents his argument here as part 

of his mismanagement claim—that the failure to set the Ryan hearing and 

the subsequent plea deal with the co-defendant (and resulting discovery) 

compelled him to choose delay. These arguments are, at best, a mixed bag. 

There was no reason to have an early Ryan hearing except for Mr. 

Hawkins’ request; the hearing could easily have been held at the beginning 

of trial as is customary in most jurisdictions. The fact that the State erred in 

not obtaining an earlier hearing impacted Mr. Hawkins’ strategic decision 

to have an early Ryan hearing, but it did not itself delay the trial. Similarly, 

the fact that Mrs. Hawkins became a witness against Mr. Hawkins—and 

thereby a source for voluminous new discovery—was not a product of 

government mismanagement. In the same vein, subsequent questions about 

her truthfulness and competency to stand trial led to changes in the State’s 

approach to Mr. Hawkins’ case, but did not impact the timeliness of his 

trial since the two cases were not joined. We conclude that the second 

Barker factor does not weigh against the State. Id. at 294. 

The third factor is whether Mr. Hawkins asserted his speedy trial 

right. Id. at 284. Although Mr. Hawkins objected on one occasion, leading 

to a three week continuance, he promptly obtained a continuance of the new 

date and was either responsible for, or in agreement with, more than 12 

months of subsequent trial continuances. His sole motion to dismiss was 

predicated on the timeliness of the disclosure of the second child interview, 

not on the timeliness of his trial date. This factor, too, does not weigh 

against the State.

The final factor is the prejudice to the defendant resulting from the 

delay. Id. at 284-285, 295. This factor is designed to address the concerns 

resulting from a delayed trial—incarceration, anxiety to the defendant, and 

possible impairment of the defense. Id. Mr. Hawkins does not cite any of 

these factors in his argument; his sole argument is that the delay helped the 

State improve its case to his detriment. This does not establish the relevant 

prejudice. This factor, too, does not weigh against the State. 

The constitutional speedy trial claim fails. Although the lengthy 

delay was sufficient to trigger an inquiry, none of the Barker factors 

suggest that Mr. Hawkins was deprived of a fair trial. Delay is a common 

defense tactic in complex litigation. This was a complex case and the 

defense needed time to prepare in order to either accept the plea offer 

(which expired once a Ryan hearing was held), reach some other deal, 
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obtain a dismissal of charges, or defend at trial. As in most cases with child 

victims of tender years, delaying trial runs the risk that a child will become 

a more competent witness or disclose more abuse, but has the benefit that 

the child (as here) may forget what happened or provide inconsistent 

information. The presence of a co-defendant makes the calculation even 

harder. On one hand, each defendant may have an incentive to turn against 

the other, but a united front can also bolster a joint defense where neither 

side helps the State. When an issue arises that is unique to one defendant, 

such as a competency concern, those problems and opportunities redouble. 

Throughout this litigation, the defense filed numerous motions, many of 

which could have changed the course of the case.

This case had all of those features and more. The calculus facing the 

defense was complex and necessarily needed time to weigh. The delay in 

reaching trial in this case resulted from the complex issues presented and 

the tactical choices made by the defense, including the numerous motions 

that needed litigating. It was not an oppressive delay that prejudiced Mr. 

Hawkins. 

The delay between charging and trial was not the result of 

governmental mismanagement and did not constitute a violation of his 

speedy trial right under the constitution.

State v. Hawkins, No. 34898-9-III, slip op. at 10-14. This court affirmed Jonathan 

Hawkins’ convictions and sentence. State v. Hawkins, No. 34898-9-III, slip op. at 33. 

LAW AND ANALYSIS

In his personal restraint petition, Jonathan Hawkins contends his trial counsel 

performed deficiently when providing information and advice regarding waiver of a jury 

trial and when failing to object to shackling, 

Personal Restraint Petition Prerequisites and Standards for Review
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Jonathan Hawkins meets the conditions for reviewing his personal restraint 

petition on the merits. Hawkins currently serves a 346-month sentence and is thus 

“restrained” pursuant to RAP 16.4(b). The State does not dispute that Hawkins’ petition 

satisfies the prerequisites for review. 

To obtain relief in a personal restrain petition, a petitioner must show actual and 

substantial prejudice resulting from alleged constitutional errors or, for alleged 

nonconstitutional errors, a fundamental defect that inherently results in a complete 

miscarriage of justice. In re Personal Restraint of Harvey, 3 Wn. App. 2d 204, 215, 415 

P.3d 253 (2018). Ineffective assistance of counsel constitutes constitutional error. In re 

Personal Restraint of Harvey, 3 Wn. App. 2d 204, 215 (2018). When a petitioner 

demonstrates ineffective assistance of counsel, the demonstration of the prejudice 

required for that claim satisfies the actual and substantial prejudice required for collateral 

relief. In re Personal Restraint of Harvey, 3 Wn. App. 2d at 215. 

To avoid dismissal, a personal restraint petition must be supported by competent 

evidence. In re Personal Restraint of Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577 

(2015). The petitioner must present evidence showing his factual allegations to be based 

on more than speculation, conjecture, or inadmissible hearsay. In re Personal Restraint 

of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). If the facts alleged would 

potentially entitle the petitioner to relief, a superior court reference hearing may be 

ordered to resolve factual issues. In re Personal Restraint of Rice, 188 Wn.2d at 886-87.
No. 37732-6-III

In re Personal Restraint of Hawkins

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Failure to Assign Error

Jonathan Hawkins fails to assign error to any trial court decision, act of his trial 

counsel, or act of the prosecutor. RAP 16.10 governs briefs in PRP proceedings. It 

reads, in relevant part:

(d) Content, Format, and Length, and Style of Briefs. The content, 

format, and length of briefs is governed by rules 10.3, 10.4, and 18.17.

(Boldface omitted.) RAP 10.3 governs what content briefs submitted to this court must 

contain. It provides, in relevant part:

(a) Brief of Appellant or Petitioner. The brief of the appellant or 

petitioner should contain under appropriate headings and in the order here 

indicated:

. . . .

(4) Assignments of Error. A separate concise statement of each error 

a party contends was made by the trial court, together with the issues 

pertaining to the assignments of error.

(Boldface omitted.)

Despite the failure to assign error, this court should review the merits of Jonathan 

Hawkins’ PRP because his briefs disclose the nature and specificity of his challenges. 

State v. Clark, 53 Wn. App. 120, 123, 765 P.2d 916 (1988). Hawkins’ failure to assign 

error does not hinder our review. State v. Clark, 53 Wn. App. at 123.

Waiver of Jury Trial

Jonathan Hawkins argues that defense counsel assisted ineffectively by providing 

insufficient or misleading information regarding Hawkins’ choice of whether to waive his 
No. 37732-6-III

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right to a jury trial. In a declaration filed with his petition, Hawkins states that defense 

counsel did not advise him that: (1) the jury would be provided and bound by jury 

instructions, (2) jury unanimity is required for a conviction, (3) a lack of jury unanimity 

would result in a mistrial, (4) the jury would decide on aggravating circumstances alleged 

by the State, and (5) more appealable issues would arise if a jury, rather than a judge, 

found him guilty. Hawkins elaborates that, before this prosecution, he lived in Oregon 

where the law did not require jury unanimity before 2020. Hawkins claims that counsel 

explained that a judge decides a case based on the law, whereas a jury decides cases on 

an emotional basis, unbound by law. He contends that he would not have waived a jury 

trial if defense counsel had provided him competent advice. Hawkins does not challenge 

the jury waiver colloquy with the trial court. 

The State responds that defense counsel’s performance was not deficient because 

an attorney could reasonably conclude that a judge is less likely to be swayed by emotion 

than a jury. The State further argues that Hawkins does not demonstrate prejudice 

resulting from defense counsel’s advice. 

This court may consider a new ground for ineffective assistance of counsel for the 

first time in on collateral review. In re Personal Restraint of Khan, 184 Wn.2d 679, 689 

(2015). To prevail on an ineffective assistance of counsel claim, the petitioner must 

demonstrate that defense counsel’s representation was deficient and the deficient 

representation prejudiced him. State v. Estes, 193 Wn. App. 479, 488, 372 P.3d 163 
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(2016), aff’d 188 Wn.2d 450, 395 P.3d 1045 (2019). Representation is deficient if after 

considering all the circumstances, the performance falls below an objective standard of 

reasonableness. State v. Estes, 193 Wn. App. 479, 488 (2016). Criminal defendants may 

“rebut the presumption of reasonable performance by demonstrating that ‘there is no 

conceivable legitimate tactic explaining counsel’s performance.’” State v. Grier, 171 

Wn.2d 17, 33, 246 P.3d 1260 (2011). Prejudice exists when a reasonable probability 

exists that, except for counsel’s errors, the result of the proceeding would have differed. 

State v. Estes, 193 Wn. App. at 488. 

While defense counsel possesses wide latitude over matters of trial strategy, 

certain decisions are of such moment that ultimate decision-making authority must reside 

with the defendant. State v. Humphries, 181 Wn.2d 708, 725, 336 P.3d 1121 (2014). 

These decisions include choices crucial to the accused’s fate. State v. Humphries, 181 

Wn.2d 708, 725 (2014). Such decisions extend to whether to waive the right to a jury 

trial. State v. Humphries, 181 Wn.2d at 725. A defendant’s waiver of a jury trial is valid 

if he or she waives it knowingly, intelligently, voluntarily, and free from improper 

influences. State v. Pierce, 134 Wn. App. 763, 771, 142 P.3d 610 (2006). Defense 

counsel may compromise a waiver of constitutional rights by dispensing inaccurate or 

misleading information or by failing to provide needed information. In re Personal 

Restraint of Amos, 1 Wn. App. 2d 578, 593, 406 P.3d 707 (2017). 
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In re Personal Restraint of Hawkins

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Jonathan Hawkins relies on In re Personal Restraint of Yung-Cheng Tsai, 183 

Wn.2d 91, 351 P.3d 138 (2015), in which one of the petitioners, Muhammadou Jagana,

argued that defense counsel failed to ascertain his immigration status and provided him 

with no guidance as to the immigration consequences that could arise from entering a 

guilty plea. Jagana maintained that defense counsel’s failures rendered his plea 

involuntary. The Washington Supreme Court held that the allegations, if true, established

that Jagana did not receive effective assistance of counsel in deciding whether to plead 

guilty. In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d at 107. 

Jonathan Hawkins also cites to State v. Stowe, 71 Wn. App. 182, 858 P.2d 267 

(1993), in which Daniel Stowe told defense counsel that he did not want to accept the 

State’s plea bargain, because he wished to continue his military career. For this reason, 

Stowe was willing to risk going to trial. Only when counsel led him to believe that an 

Alford plea would allow him to maintain his Army career did Stowe seriously consider 

the prosecutor’s plea bargain. Thereafter, Stowe pled guilty. Defense counsel’s advice 

regarding an Alford plea was incorrect. This court held that counsel’s failure to research 

the issue before issuing this advice was unreasonable and prejudicial to Stowe. 

Jonathan Hawkins analogizes defense counsel’s conduct to that of defense 

counsel’s actions in Yung-Cheng Tsai and Stowe. Hawkins asserts that he was not fully 

informed of his rights and given inaccurate advice. 
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Jonathan Hawkins’ argument fails. We distinguish In re Personal Restraint of 

Yung-Cheng Tsai because defense counsel has a statutory duty to advise a defendant 

regarding immigration consequences. RCW 10.40.200. Hawkins cites to no duty derived 

from statute or case law requiring defense counsel to inform a defendant of any 

consequences resulting from a waiver of the right to a jury other than the fact that a judge 

will try the case. We also distinguish State v. Stowe because Hawkins has not 

demonstrated that defense counsel provided him incorrect advice. We question whether 

trial counsel would inform a client that a jury is not bound by the law, although jury 

nullification likely happens in Washington State. As the State highlights, Hawkins is 

college-educated and any belief that the jury would not consider the law would be 

unreasonable. 

Jonathan Hawkins further argues that two ABA standards for defense attorneys 

demonstrate that defense counsel’s performance was deficient. Pursuant to the ABA 

standards, counsel needed to provide a full consultation with “sufficiently detailed” 

advice for Hawkins to make an informed decision as to “whether to waive a jury trial.” 

ABA, CRIMINAL JUSTICE STANDARDS FOR DEFENSE FUNCTION stds. 4-3.9, 4-5.2 (2017). 

ABA standards act as “guides to determining what is reasonable, but they are only 

guides.” Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). The proper measure of attorney performance remains simply reasonableness 

under prevailing professional norms. Strickland v. Washington, 466 U.S. at 688. 
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ABA CRIMINAL JUSTICE STANDARD 4-5.2(b)(v) reads that “a competent client, 

after full consultation with defense counsel,” ultimately decides “whether to waive jury 

trial.” ABA CRIMINAL JUSTICE STANDARD 4-3.9 generally advises defense counsel to 

keep his or her client informed about the progress of the defendant’s case. It provides, in 

relevant part:

(a) Defense counsel should keep the client reasonably and currently 

informed about developments in and the progress of the lawyer’s services, 

including developments in pretrial investigation, discovery, disposition 

negotiations, and preparing a defense. Information should be sufficiently 

detailed so that the client can meaningfully participate in the 

representation.

(Emphasis added.) 

Neither ABA standard, on which Jonathan Hawkins relies, enumerate the details 

defense counsel must provide a client when advising him or her about the decision to 

waive a jury trial. ABA CRIMINAL JUSTICE STANDARD 15.1.2(b) provides some guidance 

for this personal restraint petition. The standard declares that a defendant’s jury trial 

waiver should not be accepted unless the defendant personally waived the right “after 

being advised . . . of his or her right to trial by jury and the consequences of waiver of 

jury trial.” The consequences of waiving a jury trial include that the case will be decided 

by a judge. 

Jonathan Hawkins agrees that defense counsel advised him of his right to a trial by 

jury and the consequences of waiving that right: the case would proceed to a bench trial. 
No. 37732-6-III

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Because Hawkins has not established that counsel’s advice was deficient, we reject this 

ineffective of assistance counsel claim. 

Shackling

Jonathan Hawkins maintains that defense counsel provided ineffective assistance 

by failing to object to, or otherwise mention on the record, his unlawful shackling during 

some pretrial hearings and during sentencing. Hawkins relies on State v. Jackson, 195 

Wn.2d 841, 852, 467 P.3d 97 (2020), in which our high court held that shackling a 

defendant during pretrial hearings, without an individualized determination of the need 

for shackles, violates the defendant’s right to a fair trial. Hawkins does not challenge the 

trial court’s failure to make a record of his shackling.

The State responds that Jonathan Hawkins was unshackled during trial and during 

many of the hearings before trial. The State argues that the Washington Supreme Court’s 

decision in State v. Jackson constituted a radical change in the law that defense counsel 

could not have anticipated. For this reason, defense counsel did not err by not objecting 

to Hawkins’ pretrial shackling. 

The law is well settled that a defendant in a criminal case is entitled to appear at 

trial free from all bonds or shackles except in extraordinary circumstances. State v.

Finch, 137 Wn.2d 792, 842, 975 P.2d 967 (1999) (plurality opinion). A defendant’s 

constitutional right to a fair trial is also implicated by shackling and restraints at nonjury 

pretrial hearings. State v. Jackson, 195 Wn.2d 841, 852 (2020). When a defendant is 
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shackled at a pretrial hearing without the trial court’s individualized inquiry into the need 

for the shackles, the court fails to exercise its discretion and commits constitutional error. 

State v. Jackson, 195 Wn.2d at 854.

In his declaration, Jonathan Hawkins avers that the State shackled him during all 

pretrial hearings from his arraignment on February 24, 2015 through October 6, 2015, at 

which time he posted bail. He also testifies the State shackled him during sentencing. 

The State does not dispute Hawkins’ testimony. The State does not contend that the trial 

court engaged in an individualized inquiry as to the need for the shackles. 

We disagree with the State’s argument that State v. Jackson radically changed the 

law regarding shackling. In 2015, this court held that, “regardless of the nature of the 

court proceeding or whether a jury is present, it is particularly within the province of the 

trial court to determine whether and in what manner, shackles or other restraints should 

be used.” State v. Walker, 185 Wn. App. 790, 797, 344 P.3d 227 (2015). Pursuant to 

Walker, trial courts were required to weigh the need for shackles on the record at each 

hearing, irrespective of the nature of the proceeding or whether a jury was present. State

v. Walker, 185 Wn. App. at 797. 

In State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999), the Supreme Court 

also declared that trial courts must weigh on the record the reasons for restraining an 

accused in the courtroom. The court added that its admonition to trial courts did not 

relieve defense counsel of the obligation to object or request a curative instruction 
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regarding shackling. State v. Elmore, 139 Wn.2d at 273. The Elmore decision suggests 

that defense counsel’s failure to object to shackling amounts to deficient performance. 

In light of the controlling case law, even before State v. Jackson, 195 Wn.2d 841

(2020), defense counsel’s failure to object to Jonathan Hawkins’ pretrial shackling 

constituted deficient performance. We must then ask if the shackling prejudiced 

Hawkins. 

Jonathan Hawkins argues that, in response to his personal restraint petition, the 

State must prove harmlessness beyond a reasonable doubt. We disagree since the 

procedural posture of this challenge comes in a collateral attack. After a conviction and 

exhaustion of appeal rights, the accused does not receive a presumption of prejudice 

which the state must overcome by evidence beyond a reasonable doubt. In re Personal 

Restraint of Davis, 152 Wn.2d 647, 698, 101 P.3d 1 (2004). In a personal restraint 

petition, we inquire whether the petitioner is able to show that, more likely than not, he 

was actually and substantially prejudiced. In re Personal Restraint of Davis, 152 Wn.2d 

647, 699 (2004); In re Personal Restraint of Mercer, 108 Wn.2d 714, 720, 741 P.2d 559 

(1987). 

Jonathan Hawkins does not explain how defense counsel’s failure to object to his 

pretrial and posttrial shackling influenced the outcome of his prosecution or sentencing. 

Overwhelming evidence supported Hawkins’ guilt, including Leah’s testimony of 

Hawkins’ sexual conduct toward her and Hawkins’ own words in the Facebook 
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conversation with his wife. The sentence fell within the standard range. Thus, we reject 

Hawkins’ challenge of his shackling. 

Jonathan Hawkins also asserts that appellate counsel provided ineffective 

assistance by failing to assign error to his unlawful shackling on appeal. He argues that 

appellate counsel could have discovered the facts of the shackling by asking trial counsel,

any attorney who regularly practiced in Grant County, Hawkins, or Hawkins’ family. He 

further argues that appellate counsel could have supplemented the record, under RAP 9.2, 

9.10, and 9.11, to establish his shackling. The State responds that appellate counsel did 

not perform ineffectively because the record contains no mention of shackling and 

Hawkins fails to establish the predicate conditions for any supplemental evidence under 

RAP 9.11. 

When a petitioner asserts an ineffective assistance of appellate counsel claim in a 

personal restraint petition, he must demonstrate that the legal issue counsel did not raise 

on direct appeal had merit and that he suffered substantial prejudice by counsel’s failure 

to raise the issue. In re Personal Restraint of Dalluge, 152 Wn.2d 772, 777-78, 100 P.3d 

279 (2004). If appellate counsel had raised the issue of Jonathan Hawkins’ shackling on 

appeal, we would have asked whether the error subjected Hawkins to harmless error 

beyond a reasonable doubt standard. State v. Clark, 143 Wn.2d 731, 775, 24 P.3d 1006

(2001). Based on the overwhelming evidence against Jonathan, the State would have 

been able to overcome this burden. This evidence included: (1) Caitlyn Hawkins’ 
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description of Jonathan’s sex acts with Leah, (2) Leah’s statements to Karen Winston and 

the foster mother about Jonathan’s penis being inside her mouth and the “milk” that came 

from his penis, and Leah’s comment that Jonathan’s penis went inside Carol’s mouth, (3) 

the extensive Facebook conversation between Jonathan and Caitlyn, in which 

conversation Jonathan explained his philosophy about females, the need to break Leah’s 

hymen, and Leah’s skill at massaging his testicles and “milking” him, and (4) Hawkins’ 

message to his friend. Because of the overwhelming evidence supporting guilt, we hold 

that Hawkins fails to establish prejudice as a result of the shackling.

We observe that Jonathan Hawkins relies on a declaration in support of his 

personal restraint petition contention that his appellate counsel should have raised the 

shackling in his appeal. Nevertheless, on direct review, Hawkins lacked the entitlement 

to file declarations. As a result of a lack of trial record to show the shackling, appellate 

counsel did not perform deficiently by failing to raise the issue. 

Prosecutorial Mismanagement and Delay

Jonathan Hawkins asserts that prosecutorial mismanagement resulted in his speedy 

trial right being violated. He argues that, had trial defense counsel provided effective 

assistance by consistently objecting to the State’s mismanagement, his right to a speedy 

trial would have been preserved. The State responds that Hawkins may not 

recharacterize his speedy trial argument, which argument this court rejected on direct 
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appeal, as an issue of ineffective assistance of counsel on collateral attack. We agree 

with the State. 

In a personal restraint petition, a petitioner may raise new points of fact and law 

involving errors of constitutional magnitude if he or she can demonstrate prejudice. In re 

Personal Restraint of Davis, 152 Wn.2d 647, 670-71 (2004). A petitioner is prohibited, 

however, from renewing an issue raised and rejected on direct appeal, unless the interests 

of justice require the issue be relitigated. In re Personal Restraint of Davis, 152 Wn.2d at 

671. A defendant may not recast the same issue as an ineffective assistance claim. In re 

Personal Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001). Recasting an 

argument in that manner does not create a new ground for relief or constitute good cause 

for reconsidering the previously rejected claim. In re Personal Restraint of Stenson, 142 

Wn.2d 710, 720 (2001). 

On direct appeal, Jonathan Hawkins argued that governmental mismanagement 

violated his right to a speedy trial. He may not now reword his argument by asserting 

that his trial counsel performed deficiently by failing to object to the mismanagement and 

to trial continuances. 

False Evidence 

Jonathan Hawkins contends that the State knowingly presented false evidence at 

trial by (1) introducing Leah’s hearsay statement, through her foster parent, that Hawkins 

and his father-in-law sexually assaulted Leah in the grandfather’s Oregon barn, because 
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no barn existed on the property, and by (2) offering Caitlyn Hawkins’ testimony, despite

knowing that she had previously changed her story and been dishonest. We disagree with 

factual assumptions contained in this assignment of error. Leah’s story about an assault 

occurring in Oregon is not necessarily false because the grandfather’s property did not 

include a barn. Leah could have been telling the truth about the assault without telling 

the truth about the presence of a barn. Leah could have mistaken the shed and lean-to for 

a barn. Also, Caitlyn Hawkins’ changing of her story does not mean that the second 

story, to which she testified at trial, was false. 

Jonathan Hawkins emphasizes Caitlyn Hawkins’ competency evaluation report 

listed multiple diagnoses, including malingering. He asserts that the State knew that 

Caitlyn’s testimony contained false statements. The competency evaluation report was 

not introduced at trial and only Jonathan’s defense counsel claimed the report concluded 

Caitlyn malingered. We do not rely on facts not properly before this court. 

A conviction obtained by the knowing use of perjured testimony is fundamentally 

unfair and must be vacated if there is any reasonable likelihood that the false testimony 

could have affected the judgment of the trier of fact. In re Personal Restraint of Benn, 

134 Wn.2d 868, 936, 952 P.2d 116 (1998). Conflicting witness testimony does not 

demonstrate that the witness committed perjury or that the prosecutor knew of any 

alleged perjury. In re Personal Restraint of Monschke, 160 Wn. App. 479, 498, 251 P.3d 

884 (2010). We do not overturn credibility determinations made by the trier of fact. In 
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re Personal Restraint of Monschke, 160 Wn. App. 479, 498 (2010); State v. Camarillo, 

115 Wn.2d 60, 71, 794 P.2d 850 (1990). We conclude the State did not rely on known, 

false testimony. 

Grand Jury Indictment 

Jonathan Hawkins argues that the State violated his Fifth Amendment to the 

United States Constitution right to be indicted by a grand jury when the State initiated the 

prosecution by an information. He maintains that the Fifth Amendment’s indictment 

clause is applicable to the states either through the Fourteenth Amendment’s due process 

clause or its privileges and immunities clause. 

“No person shall be held to answer for a capital, or otherwise infamous crime, 

unless a presentment or indictment of a grand jury.” U.S. CONST., amend. V. The Fifth 

Amendment’s grand jury provision does not apply to state prosecutions. Hurtado v. 

California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884); State v. Ng, 104 Wn.2d 763, 

774, 713 P.2d 63 (1985). A grand jury indictment is not required to ensure due process 

of law. State v. Ng, 104 Wn.2d 763, 774-75 (1985). Thus, we reject Hawkins’ 

assignment of error. 

Allegations of Aggravating Factors

Finally, Jonathan Hawkins contends that the State breached his Sixth Amendment 

and Washington Constitution, article I, section 22 right to receive adequate notice of the 

essential elements of the charges against him because the State failed to list the alleged 
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aggravating circumstances in the charging document. The State responds the law does 

not require notice of any aggravating factors in the information. It further argues that 

Hawkins fails to establish, let alone assert, prejudice from the State’s alleged failure. 

The Sixth Amendment of the federal constitution and article I, section 22 of the 

Washington State Constitution require that a defendant receive adequate notice of the 

nature and cause of the accusation in order to allow him to prepare a defense in response 

to charges that he committed a crime. State v. Siers, 174 Wn.2d 269, 277, 274 P.3d 358 

(2012). The Washington Supreme Court, in State v. D.L., 197 Wn.2d 509, 484 P.3d 448

(2021) extended this rule of due process to aggravating factors. Adults have the right to 

notice of all aggravating factors before they begin trial or enter a plea. 

RCW 9.94A.537(1); State v. D.L., 197 Wn.2d 509, 515 (2021). Pretrial notice of 

aggravating factors is protected by due process in adult criminal proceedings. State v. 

Siers, 174 Wn.2d 269, 278 (2012); State v. M.S., 197 Wn.2d 453, 462-63, 484 P.3d 1231

(2021).

Aggravating factors are not the functional equivalent of essential elements. State 

v. Siers, 174 Wn.2d 269, 282 (2012). Thus, so long as a defendant receives 

constitutionally adequate notice of the essential elements of a charge before trial, the 

absence of an allegation of aggravating circumstances in the information does not violate 

the accused’s rights under either the federal or state constitutions. State v. Siers, 174 

Wn.2d at 276-77.
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We agree that the State did not plead aggravating factors in the information. 

Nevertheless, Jonathan Hawkins does not contend that the State failed to give him notice 

of the assertion of the factors by other means. Regardless, Hawkins does not argue or 

show any prejudice resulting from lack of advance notice of aggravating factors. 

CONCLUSION

We deny Jonathan Hawkins’ personal restraint petition. 

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Siddoway, A.C.J.

______________________________

Staab, J.