IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter ofthe Personal Restraint of

MICHAEL MOCKOVAK,
Petitioner. No. 69390-5-1

PUBLISHED OPINION FILED: June 6, 2016 3E I crv

vo 5-or J- -Cf'T com,..,

'CD CO O en ~z Verellen, C.J.

— To establish ineffective assistance ofcounsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that the deficiency prejudiced him. In 2011, a jury convicted Michael Mockovak ofattempted first degree murder, solicitation to commitfirst degree murder, first degree theft, and conspiracy to commit first degree theft. We affirmed the convictions on direct appeal. Mockovak subsequently filed this personal restraint petition contending that his trial counsel was ineffective for failing to support his entrapment defense with expert testimony that he suffers from "learned helplessness." Because Mockovak does not establish a viable ineffective assistance claim, we deny his petition. FACTS Mockovak's charges arose from his attempt to hire Russian hitmen to murder Dr. Joseph King, his business partner in a chain of Clearly Lasik refractive eye surgeryNo. 69390-5-1/2

centers. Mockovak plotted with Clearly Lasik's information technologies director, Daniel Kultin, to have King and the company's former chiefexecutive officer, Brad Klock, murdered. Mockovak did not know Kultinwas also working as an informantfor the Federal Bureau ofInvestigation (FBI) and wore a concealed recording device during several oftheir conversations. In late 2008, Mockovak approached Kultin about having Klockmurdered. Klock 

### had sued Clearly Lasik for wrongful termination, and Mockovak intimated that a person 

### like "Klockwould not go far inRussia."1 Kultin remembers a conversation during this time inwhich Mockovak referenced Klock's civilcase and suggested Kultinmay have 

### "friends or somebody,
. . . some Russian that can just put an end to it. . . rather than 

### the legalway."2 Kultin indicatedMockovak made these comments "maybein a joke 

### way," but not as a "funnyjoke."3 Mockovak hadpreviouslyjokedwith Kultin on several occasions about Kultin being in the Russian mafia due to Kultin's Russian accent and daily attire ofsuits and ties. 

### In early 2009, Mockovak told Kultin that Klock would be traveling to Europe and 

### thiswould be a goodopportunityfor something to "happen" to Klock.4 This conversation distressed Kultin, who believed Mockovak wanted Klock killed. Kultinthen 

### contacted his father, who eventually put him incontactwithFBI agent Lawrence Carr.

1 Report ofProceedings (RP) (Jan. 24, 2011) at 118.
3ld 4 Id. at 121.No. 69390-5-1/3 

### Agent Carr instructed Kultin that he should "neverever bring the subject [of 

### murder] up with [Mockovak] again."5 Instead, Kultin should only tell Mockovak he was visiting friends in LosAngeles, including a friend Mockovak believed to be a member of the Russian mafia. This would give them a "better idea ofwhat Dr. Mockovak was 

### thinking."6 Agent Carr further instructed Kultin that ifthe discussion of his trip to Los 

### Angeles"should sparkconversation aboutmurder, that he was not to have any part of thatdiscussion. He was onlyto listen and to notcontribute whatsoever to it."7 Overthe next two months, Mockovak and Kultin did not discuss the matter. 

### On August 3, 2009, Mockovak calledKultin and cryptically asked iftheycould meet to discuss "thatthing that we talked about before."8 They met in a parking lottwo 

### days later. Mockovak expressed his frustration aboutKlock's lawsuit and that he 

### wanted something to be "done tohim."9 Mockovak also mentioned his partnerKing had 

### a $4million life insurance policy if"something were tohappen tohim" as well.10 Kultin toldMockovak he would "make some calls" to get more information.11 

### Mockovak and Kultin met again on August 11, 2009. In a conversation recorded 

### by theFBI, Mockovak answered "yeah" when Kultin told him hehad "made somecalls"

5RP(Jan. 20, 2011) at 69-70. 6jd at 73. 7\± 8RP(Jan. 24, 2011) at 131. 9id, at 136. 10 Id at 134. 11 Id. at 136.No. 69390-5-1/4


### to the hitmen saying Mockovak was interested inkilling Klock.12 When Kultin told Mockovak "they" could do it, Mockovak replied "Oh good. Good. Good."13 Mockovak also answered "yeah" repeatedly when discussing killing methods, butfinally laughed, 

### saying "I don't care" when asked how he wanted Klock killed.14 Mockovakthen initiated

a discussion about laundering the money to pay the hitmen and Kultin. Kultin asked Mockovak ifhe wanted Klock murdered before his deposition in the lawsuit was completed. Mockovak responded, "No, no, no, no, Iwant to go ahead and 

### have the deposition happen first."15 Mockovak explained that "[i]fitappeared that Klock would drop his suit, then the murder, which Mockovak described as a purely 'financial 

### thing,' would be unnecessary."16 Mockovak told Kultin that he must make this clearto
the hitmen. The remaining facts of this case were succinctly set forth in Mockovak's direct appeal as follows: Kultin next met with Mockovak on October 20, 2009. Kultin again wore a wire. Mockovak first reported that the depositions in Klock's lawsuit had been "outstanding." Mockovak told Kultinthat there was nothing urgent about Klock, whom he described as nothing more than a "fly on the wall," but that the situation with King was different. Mockovak speculated that King was attempting to force him out ofthe business completely. Mockovak told Kultin that King would be traveling to Australia in November and showed Kultinthe flight information he had discovered during his investigation the previous week. Kultin told Mockovak that the
12 Ex. 54 (Aug. 11, 2009) at 34. 13 id 14 id at 40-41. 15 id at 43. 16 State v. Mockovak, noted at 174 Wn. App. 1076, 2013 WL 2181435 at *2.No. 69390-5-1/5

cost of a murder might be less expensive inAustralia, which Kultin described as "a wildplace." Mockovak replied, "Oh that's good" and "That's what I'm thinking." Kultin said that he would ask his friend whether the murder could be accomplished inAustralia. Mockovak told Kultinthat he had secreted enough cash to pay for the hit. On October 21, 2009, Mockovak called his insurance company and 

### requested a copy of the policy on King's life. The policy . . . named Mockovak as the beneficiary. Kultin and Mockovak met again on October 22, 2009. In this conversation, which was also recorded by the FBI, Kultin told Mockovak 

### that he had spoken to his friend and that "Australia is actually very easy." He told Mockovak that King could be killed "as a robbery" or "as an accident." Mockovak remarked that Australia was far away and that any 

### investigation ofKing's death would never "come back here ever." Kultin asked whether King's wife, Holly, was also to be killed, and Mockovak told him "no." Mockovak told Kultin that he had been gathering cash and had 

### by that timeset aside $11,000. Thetwo men then discussed when the post-murder paymentwould be required.

Mockovak and Kultin next met to discuss the details of the plan on November 6, 2009. Mockovak described his attempts to discover 

### additional details of King's travel plans. Mockovaktold Kultin that he was 

### trying to sell one of the Canadiansurgical centers in anticipation ofKing's death. He said that he was excited about running the business without interference from King. Kultin asked Mockovak how he would like the murder to be 

### accomplished. Mockovak proposed that King could be killed while he ran on the beach. When Kultin inquiredwhether Mockovak would like King's 

### body to be found, Mockovak replied that having the body discovered would be betterforpurposes of collecting the proceeds of the insurance 

### policy. Mockovaktold Kultin that he did not care whether the killers delivered any message to King beforemurdering him. Instead, Mockovak explained, "Ijust want him the fuck out of my way." Kultin then asked Mockovak whether he had "thought this through," 

### and Mockovak replied that he was a "little uneasy." Kultin asked him 

### whether he was going to "freakout" ifthe murder occurred, and Mockovak told himthat he would not. Mockovak explained that although part of him 

### was uneasy, he did not want to puthimselfat the mercy of an arbitratororNo. 69390-5-1/6

a judge. He told Kultinthat King really "ha[d] this coming." Killing King, Mockovak explained to Kultin, was "the only sure way." Mockovak and Kultin then discussed how to launder the postmurder payment. Mockovak was concerned that his bank account activity would look suspicious if he were to withdraw a large sum ofmoney shortly before King's death. The two men determined that Mockovak would purchase an expensive (but fake) watch from a jeweler associated with the same criminal organization for which the hit-men were working. Kultin emphasized that the second payment must be made or that both Mockovak and he would be indanger. Mockovak told Kultin that he understood and that he had no desire to get "serious people like this upset."

Near the end ofthe conversation Mockovak told Kultin that he had 

### often considered going to the garage of Clearly Lasik and killing King himself. Kultin replied, "don't do that." He told Mockovak that itwas a 

### "good thing you came to me because otherwise youwould have done it the wrong way." 

### Mockovak and Kultin agreed to meet the following day near SeaTac International Airport inorderfor Mockovak to deliver the first payment. The conversation concluded with Mockovak reiterating that the choice of Australia for the murder was "almost too good to be true." On November 7, 2009, Mockovak and Kultin spoke by telephone. Mockovak told Kultin that he had successfully stolen a portrait ofKing and 

### hisfamily from the Clearly Lasik office in Vancouver, Washington. Hetold Kultin that he was pleased thatthey had met on the previous night 

### because it had given him 24 hours to contemplate the murder plan. Mockovak said, "It's absolutely the right thing to do." 

### That night, Mockovak and Kultin met at a soccer park nearthe airport. The meeting was recorded by the FBI. The men went into a restroom where, as they had planned, Mockovakgave Kultin $10,000 in cash. Mockovak "wanted to make sure" that he would get his money back inthe event that the hitwas unsuccessful. Kultinreplied that Mockovak would not lose his money. 

### Mockovakthen gave Kultin the photograph ofKing and his family. He explained that King now had three children and that the children were 

### slightly older than they appeared in the picture. Kultin assured Mockovak that the picture of King'swife would be sufficientfor the killers to identifyNo. 69390-5-1/7 King. Mockovak also gave Kultin a piece of paper on which he had handwritten King's flight information. He told Kultin, "we're ready." On November 11, 2009, at the direction ofthe FBI, Kultin called Mockovak and told him that everything was in place for the murder. He explained that the killers had located King inAustralia and that they were now watching him. Kultin told Mockovak that he was expecting to hear news ofthe murder within several days. Mockovak responded, "That 

### sounds good."[17] Mockovak was arrested the next day. The State charged him with solicitation to commitfirst degree murder of King, attempted first degree murder of King, solicitation to commit first degree murder of Klock, conspiracy to commitfirst degree theft, and attempted first degree theft. Mockovak retained attorneys Jeffrey Robinson, Colette Tvedt, and Joseph 

### Campagna to defend himagainstthese charges. Robinson was lead counsel and has practiced criminaldefense for over 30 years inWashington. The defense team presented an entrapment defense at trial. 

### A jury acquitted Mockovak ofsolicitation to murder Klock, but found him guilty of the remaining charges. Mockovakappealed. Inan unpublished opinion. State v. Mockovak, this court affirmed his convictions.18 Mockovak now files this timely personal restraint petition.
ANALYSIS To obtain reliefthrough a personal restraint petition, a petitioner must establish either constitutional error resulting in actual prejudice or nonconstitutional errorthat

17 id at *3-5. 18 Noted at 174 Wn. App. 1076, 2013 WL 2181435.No. 69390-5-1/8 

### "'inherently results in a complete miscarriage ofjustice.'"19 Ifa petitioner makes a prima facie showing of actual prejudice butthe reviewing court cannot determine the merits of the claims solely on the record, the court should remand for a full hearing on the merits 

### or for a reference hearing.20 But "[t]his does not mean that every set ofallegations which is not meritless on its face entitles a petitioner to a reference hearing. Bald 

### assertions and conclusory allegations will notsupportthe holding of a hearing."21 A petitioner "must state with particularity facts which, ifproven, would entitle him to relief 

### and must show that he has "competent, admissible evidence" to establish those facts.22 In his petition, Mockovak claims he suffered prejudicial constitutional error due to ineffective assistance of his trial counsel. Washington applies the Strickland v. 

### Washington23 test to determine whether counsel was ineffective.24 To prevail, 

### Mockovak must show both deficientperformance and resulting prejudice.25 Toestablish deficient performance, he bears the burden of showing that trial counsel's performance 

### fell "'below an objectivestandard of reasonableness.'"26 In assessing counsel's performance, this court "must make every effort to eliminate the distorting effects of

19 In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990) 

### (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)). 20 In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992). 21 id at 886. 22 ]d 23 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 24 In Re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013). 25 State v. Humphries, 181 Wn.2d 708, 719-20, 336 P.3d 1121 (2014) (citing Strickland, 466 U.S. at 687-88). 26 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting Strickland, 466 U.S. at 688).

8No. 69390-5-1/9 hindsight and must stronglypresume that counsel's conduct constituted sound trial 

### strategy."27 It is Mockovak's burden to "show in the record the absence of legitimate 

### strategic or tactical reasons" forcounsel's alleged omission.28 "'When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient.'"29 Mockovak contends his trial counsel's failure to buttress his entrapment defense with expert testimony regarding his "learned helplessness" was deficient performance. He alleges a psychologist told his counsel prior to trial that he had been sexually 

### abused foryears and had a "history of being easily manipulated and exploited."30 The psychologist explained that "people who are repeatedly sexually abused as a child tend to develop the attitude that resistance to, or escape from the abuser, is futile, and this 

### becomes part of their general response to people who seekto manipulatethem."31 In the psychologist's opinion, Mockovak's "history as a victim of childhood sexual abuse made him more vulnerable to pressure exerted by others to get him to do something he 

### did not want to do, and thus made him more vulnerable to entrapment."32 Dr. Natalie Novak Brown, a psychologist who evaluated Mockovak for this petition in November 2014, concluded that Mockovak's extensive childhood sexual abuse caused both

27 Rice, 118 Wn.2d at 888-89 (emphasis added) (citing Strickland, 466 U.S. at 689). 28 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). 29 Grier, 171 Wn.2d at 33 (quoting State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177(2009)). 30 Gonsiorek Decl. at 2, U5. 31 id at 2, If6. 32 id at 3, H9.No. 69390-5-1/10 

### posttraumatic stress disorder (PTSD) and learned helplessness syndrome. Mockovak argues itwas deficient performance not to present such expert opinions on learned helplessness in support of his entrapment defense. Butthere are legitimate tactical reasons why defense counsel would elect not to introduce such evidence. For instance, such testimony would open the door to evidence that, ratherthan being suggestible and easily manipulated, Mockovak was 

### considered manipulative and narcissistic by many of his longtime colleagues. Many sent letters to the sentencingjudge describing Mockovak as an amoral, remorseless, 

### and calculating sociopath, who referred to himself as Dr. Machiavelli and Dr. Evil. Thus,
a defense portraying Mockovak as helpless and susceptible to the influence of others could have triggered the introduction of this damaging evidence and undermined Mockovak's entrapment defense. 

### Mockovak argues, however, that because Dr. Novak Brown believes he is a victim of PTSD and victims of PTSD are often aggressive, counsel could have 

### countered any suggestion that incidents of aggressive behavior undercut his learned helplessness and entrapment defense. Buteven accepting that PTSD explainswhy Mockovak is not passive, it does not explain his past amoral, remorseless, and 

### sociopathicmanipulation of others. Such behavior is inconsistentwith the proposition that Mockovak is suggestible and easily manipulated. Mockovak also contends that his counsel's misunderstanding ofthe law, not trial 

### strategy, is the reason counseldid notemploy a learned helplessness theory. Hepoints to several portions of the recordin support of this claim. First, he points to the declaration of his attorney friend, Ronald Marmer. According to Marmer, during a

10No. 69390-5-1/11 

### pretrial discussion about whetherthere was "a way to put the State to its burden of proof
on the mens rea elements ofthe charges," trial counsel Tvedt stated that Mockovak had to choose between the defenses ofdiminished capacity and entrapment because he 

### could not present both.33 Second, Mockovaknotes trialcounsel Robinson's statement inopen court that underWashington law, Mockovak had to admit to the charged offense before he could plead a defense ofentrapment. Mockovak claims that because "the law does notrequire defendants to admit the offense inorderto plead entrapment, and 

### does notrequire an either/or choice between entrapment and diminished capacity," his 

### counsel mistakenly believed that theycould not presentboth defenses.34 And he contends these mistakes resulted incounsel deciding not to introduce the learned helplessness testimony. 

### But even assuming counsel sufferedfrom some misunderstanding of the law, it is the conduct of trial counsel, not counsel's understanding of legal principles, that is 

### critical to a claim of deficient performance; "Strickland . . . calls for an inquiry into the 

### objective reasonableness ofcounsel'sperformance, not counsel'ssubjective state of mind."35 A misunderstanding of the law only supports deficient performance where that 

### misunderstanding results in acts oromissions adverse to thedefendant.36

33 First Marmer Decl. at 3, ffil 12-14. 34 Br. of Pet'r at 24. 35 Harrington v. Richter, 562 U.S. 86, 110, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (citing Strickland, 466 U.S. at 688). 36 Mockovak cites decisions that discuss a misunderstanding ofthe law as a 

### basis fordeficient performance, butin each of those cases, counsel's misunderstanding ofthe law resulted in conduct detrimental to the client. See, e.g., Williams v. Taylor, 

### 529 U.S. 362, 395, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (counsel who failed to 

### search public records formitigation evidence aboutdefendant's childhood, "not because

11No. 69390-5-1/12 Here, Mockovak's counsel did not pursue a diminished capacity defense. 

### Evidence ofdiminished capacity seeks to show that the State has failed to prove the
mens rea of the charged crime. Butthere is no showing that Mockovak had a viable 

### diminished capacity defense or that learned helplessness in this setting negated Mockovak's intent. Therefore, Mockovak fails to establish that any misunderstanding 

### about the compatibility ofdiminished capacity and entrapment defenses resulted in an omission adverse to Mockovak's defense.37 

### Third, Mockovak points to Robinson's alleged post-verdictcomment that the law 

### ofentrapmentdoes notinclude a subjective component.38 Mockovak claims Robinson 

### must have rejected thelearned helplessness evidence because hemistakenly believed entrapmentwas awholly objective determination. This argumentfails because any 

### misunderstanding aboutthesubjective andobjective components ofentrapmentdid not result in anydeficient conductby Mockovak's counsel. Theentrapment instruction 

### ofany strategic calculation butbecausethey incorrectlythoughtthatstatelaw barred access to such records" heldineffective); Blackburn v. Foltz, 828 F.2d 1177, 1182 (6th 

### Cir. 1987) (counsel's failure tomovefor suppression ofdefendant's priorconvictions constituted deficient performance and was not reasonabletrial strategy since counsel's erroneous understanding and recitation of the law resultedin misinforming defendant 

### anddepriving defendantofameaningful opportunitytodecidewhethertotestify); Washington v. Hofbauer, 228 F.3d 689, 702-03 (6th Cir. 2000) (counsel's failure to 

### objectto prosecutorial misconductconstituted deficientperformancewhen thatfailure was due to clearinexperience orlack ofknowledge ofcontrolling law rather than reasonable trial strategy). 

### 37 We note that Robinson's open court statement occurred in the context of 

### discussing the differences between federal and state court. Buteven ignoring that context, there still is no showing of a viable diminished capacity theory. 

### 38 Marmer offered his declaration that during a discussion in which he "referred 

### to the 'subjective test' for entrapment," Robinson interjected, stating that hedid not know where Marmer "gotthe idea that the test was subjective," and that "use ofthe word 'reasonable' in the standardjury instruction on entrapment plainly reflected an 

### objective standard." First Marmer Decl. at 3-4,U16.

12No. 69390-5-1/13 proposed by the defense and given to thejury contained both objective and subjective 

### elements and correctly states the law.39 Moreover, Robinson acknowledged the 

### relevance of Mockovak's state of mind early in the case,40 and clearly focused upon 

### Mockovak's subjective state ofmind in closingargument.41 Mockovakfails to demonstrate any adverse effects from counsel's alleged misunderstanding of the law. He has not overcome the strongpresumption that his counsel acted reasonably in 

### declining to present evidence of learned helplessness. Accordingly, hisclaim of deficient performance fails. Mockovak's ineffective assistance claim also fails because he does not 

### demonstrate a reasonable probability that the outcome would have been different had evidence of his learned helplessness been presented.42 Mockovak claims the evidence could have affected the verdictbecause the jury acquitted him ofsoliciting Klock's 

### murder and somejurors mentioned in post-verdict interviews that"theirdecision to

39 Mockovak's claim that trial counsel was ineffective for proposing thisjury instruction was dismissed in this court's Order Referring in Part and Dismissing in Part dated May 8, 2015. 

### 40 RP (Jan. 12,2011)at 23 ("I will indicate thatgiven the nature ofthe charges and the nature of the defense, Dr. Mockovak's state of mind is clearly relevant."). 

### 41 RP (Feb. 1,2011)at 6 ("Kultin understood who he was dealing with, and he understood howto getMichael Mockovak at his mostvulnerable points; his ego and his insecurity."); RP (Feb. 1,2011)at 12-13("Fear isdefinitely an elementin what 

### happened here, but in the soup, ifyou will, ofentrapment, fear is just oneelement. It's one ingredient. The otheringredients are pouring fuel on thefire at everyopportunity at Mockovak's most vulnerable positions in terms of the way he looks at the world."). 42 See Yates, 177 Wn.2d at 36 (citing Strickland, 466 U.S. at 694). The "'likelihood of a different result must be substantial, notjust conceivable.'" Inre Crace, 

### 174 Wn.2d 835, 843-44, 280 P.3d 1102 (2012) (quoting Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2014)).

13No. 69390-5-1/14 

### convict on the attempted murder ofKing charge was a very close call."43 Mockovak's argument is not compelling. First, since 1909, Washington has followed the rule thatjury deliberations may be 

### inquired intoonly to evaluate a claim of serious misconduct.44 "Neither parties nor judges may inquire into the internalprocesses through which the juryreaches its verdict."45 Mockovak relies on the declaration of David Snyder, a private investigator 

### who interviewed thejurors afterthe verdict was returned. ButSnyder's declaration 

### reveals the jurors' internal thought processes and deliberations. Here, there is no 

### allegation of juror misconduct, and Mockovak offers no authority that analyzing 

### prejudice includes reflections by jurors on what may have been important or persuasive

to them. 

### Second, unlikethe plan for Klock, Mockovak finalized the plan to kill King. He 

### gave Kultin $10,000in cash for King's murder, alongwith a photograph ofKing and his family and King's flight information. Mockovak responded, "Thatsounds good" when Kultin told himthatthe hitmen had located King in Australia and that everything was in 

### place for his murder.46 And, as setforth above, there was extensive evidence that Mockovak initiateddiscussions with Kultin about hiring Russian hitmen. Because 

### Mockovak took concrete steps to perfectthe plotagainst King, the acquittal as to vague discussions about Klock is not remarkable. There is no reasonable probability

43 Br. of Pet'r at 45. 44 Ralton v. Sherwood Logging Co., 54 Wash. 254, 256, 103 P. 28 (1909). 45 State v. Linton, 156 Wn.2d 777, 787, 132 P.3d 127 (2006): see also Long v. Brusco Tug & Barge, Inc., 185 Wn.2d 127, 134-38, 368 P.3d 478 (2016). 46 Ex. 54 (Nov. 11, 2009) at 4.

14No. 69390-5-1/15
that the learned helplessness evidence would have changed the outcome ofthe trial. Because Mockovak has not met the threshold requirement of presenting prima facie evidence to support his ineffective assistance claim, we deny his requestfor a reference hearing and deny his petition.

WE CONCUR: 

# Ji~~/t rf.

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