In re Crace

• Citation: 280 P.3d 1102,174 Wash.2d 835
• Decision Date: 19 July 2012
• Docket Number: No. 85131–0.,85131–0.
• Parties: In the Matter of the Personal Restraint Petition of Hoyt W. CRACE, Respondent.
• Court: Washington Supreme Court

174 Wash.2d 835

280 P.3d 1102

In the Matter of the Personal Restraint Petition of Hoyt W. CRACE, Respondent.

No. 85131–0.

Supreme Court of Washington, En Banc.

Argued Jan. 24, 2012.

Decided July 19, 2012.

Kathleen Proctor, Pierce County Prosecutor's Office, Tacoma, WA, for Petitioner.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Respondent.

Lila Jane Silverstein, Washington Appellate Project, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, amicus counsel for WACDL.

STEPHENS, J.

[174 Wash.2d 836]¶ 1 This case concerns the standard for assessing prejudice in a personal restraint petition alleging ineffective assistance of counsel. Hoyt Crace was convicted of attempted second degree assault with a deadly weapon. This was his third strike offense, resulting in a life sentence without the possibility of early release. Crace brought a timely personal restraint petition asserting he received ineffective assistance of counsel when his trial counsel did not request an instruction on the lesser-included offense of unlawful display of a deadly weapon, a nonstrikeoffense. A divided Court of Appeals applied the analysis for an ineffective assistance of counsel claim set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), concluding that a showing of prejudice under this analysis satisfies the “actual and substantial prejudice” showing required on collateral attack. Without the benefit of our decisions in State v. Grier, 171 Wash.2d 17, 246 P.3d 1260 (2011) and State v. Breitung, 173 Wash.2d 393, 267 P.3d 1012 (2011), the court then granted Crace's petition, holding that trial counsel's performance was deficient and that counsel's error prejudiced Crace.

¶ 2 We reverse the Court of Appeals. While the court correctly analyzed prejudice under the Strickland standard, Crace cannot show prejudice arising from the omitted instruction.

FACTS AND PROCEDURAL HISTORY

¶ 3 According to Crace, on August 16, 2003, he was at home watching television and consuming alcohol, cocaine, heroin, and the prescription pain medication Dilaudid. At around 2:00 p.m., he fell asleep, or partially overdosed, while watching a movie. When he awoke, it was dark outside and Crace began hearing and seeing things that led him to believe he was being stalked by murderous demons. Panicked and screaming, he ran from his trailer home and entered nearby trailers, frightening neighbors as he shouted, “ ‘They're after me, they're after me, they're after me.’ ” Report of Proceedings (RP) at 119–21. Believing he was about to be killed, he returned to his trailer and took a “sword thing” off the wall. Id. at 123. He then ran into the street with the sword, screaming, “ ‘Help, help, they're after me.’ ” Id.

¶ 4 While this scene was unfolding, Pierce County Deputy Sheriff Hardesty arrived. As he was talking to a neighbor, Hardesty's attention was drawn to Crace, who was about two blocks down the street screaming and carrying on. Deputy Hardesty testified that as soon as he made eye contact with Crace, Crace began sprinting toward Hardesty, sword in hand, screaming. As Crace got closer, Hardesty pulled his duty weapon and instructed Crace to drop his sword. After Hardesty repeated this directive several times, Crace did drop the sword about 50 feet from Hardesty but kept running toward him. Still pointing his weapon, Hardesty told Crace to get to the ground. Crace finally complied when he was about five to seven feet away from the deputy. According to Crace, he recognized Hardesty was a police officer but continued running toward Hardesty with the sword because he feared that if he stopped or threw down his weapon, the demons would attack. Hardesty testified that when Crace rushed him with the sword, he feared for his life, and that if Crace had come much closer—just steps—with the sword, Hardesty would have shot him.

¶ 5 Crace was charged with second degree assault with a deadly weapon. At trial, each side presented expert testimony from psychologists on the subject of Crace's state of mind that night and his ability to form a criminal intent. The State's witness opined that Crace could have formed intent that night, while Crace's witness testified that the defendant was in a delusional state and could not have formed the requisite intent. At the trial's conclusion, the jury was instructed on the lesser-included offense of attempted second degree assault. Instruction 16 (App. F Court's Instructions to Jury). The jury deadlocked on the second degree assault with a deadly weapon charge but returned a verdict of guilty on the attempted second degree assault with a deadly weapon charge.

¶ 6 The assault conviction was Crace's third strike, and he was sentenced to life without the possibility of early release. App. A (J. and Sentence). His conviction was affirmed on direct appeal, State v. Crace, noted at 128 Wash.App. 1021, 2005 WL 1540894, at *7, and this court denied his motion for discretionary review, State v. Crace, 160 Wash.2d 1010, 161 P.3d 1026 (2007).

¶ 7 Crace filed a personal restraint petition with Division Two of the Court of Appeals. In re Pers. Restraint of Crace, 157 Wash.App. 81, 236 P.3d 914 (2010). He argued that his trial lawyer's failure to request the lesser-included offense of unlawful display of a deadly weapon constituted ineffective assistanceof counsel. The Court of Appeals agreed, holding that counsel's performance was deficient and that the error prejudiced Crace. The Court of Appeals rejected the State's argument that Crace was required to prove a measure of prejudice greater than that required under Strickland in order to satisfy the “actual and substantial prejudice” requirement for a collateral attack. In so doing, the court retreated from its prior decision in In re Personal Restraint of Davis, 151 Wash.App. 331, 211 P.3d 1055 (2009), review denied,168 Wash.2d 1043, 234 P.3d 1172 (2010), which applied a heightened standard. Judge Quinn–Brintnall, the author of Davis, dissented on both the measure of prejudice and whether Crace received ineffective assistance of counsel.

¶ 8 The State filed a motion for discretionary review. We requested additional briefing on the impact of Grier, 171 Wash.2d 17, 246 P.3d 1260, involving a similar issue of ineffective assistance of counsel and a lesser-included offense instruction. We then granted review.

Analysis

¶ 9 This case requires us to consider the intersection between the prejudice requirement on collateral attack of a judgment and the prejudice requirement on direct appeal. Specifically, we must decide whether a personal restraint petitioner alleging ineffective assistance of counsel must undermine our confidence in the trial more than an appellant must. We must then decide whether Crace has established prejudice sufficient to support his claim.

Does a showing of prejudice under Strickland meet the personal restraint petitioner's requirement to show actual and substantial prejudice?

¶ 10 A successful ineffective assistance of counsel claim requires the defendant to show that counsel's performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland, 466 U.S. 668, 104 S.Ct. 2052;State v. Thomas, 109 Wash.2d 222, 743 P.2d 816 (1987). The Court in Strickland defined prejudice as the “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. 2052.

¶ 11 The State complains that this showing of prejudice is insufficient when a claim of ineffective assistance of counsel is raised in a collateral attack. The State insists that the “actual and substantial prejudice” showing generally required to prevail in a personal restraint petition must be superimposed on the Strickland showing, to require proof that the outcome of the trial “ more likely than not ” would have been different. Suppl. Br. of Pet'r at 10 (citing In re Pers. Restraint of Hagler, 97 Wash.2d 818, 826, 650 P.2d 1103 (1982)). The State's argument is built on a simple logical construct:

• On direct appeal, when the defendant proves a constitutional violation, the burden falls on the state to show the violation is harmless beyond a reasonable doubt.

• On collateral attack, the burden of showing prejudice shifts to the petitioner, who must prove actual and substantial prejudice by a preponderance of the evidence (i.e., that he was more likely than not harmed by the error).

• Therefore, in the context of an ineffective assistance of counsel claim raised in a personal restraint petition,the Strickland test establishes the constitutional violation, and the petitioner must additionally show actual and substantial prejudice.

See Suppl. Br. of Pet'r at 9–10. Accepting that this argument has some logical appeal, at least insofar as it adds one and one to equal two, it nevertheless overlooks the foundation of Strickland.

¶ 12 Strickland itself involved a collateral attack, a federal habeas corpus claim. The Court thoroughly examined the appropriate standard for determining prejudice on both direct and collateral review. In discussing the prejudice prong of its test, Strickland articulated the different levels of proof a defendant might make to show prejudice resulting from counsel's errors. On the one hand, Strickland rejected the notion that a defendant could show an error “had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Such a burden would be too easy to carry and would not account for the fact that “not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” Id.

¶ 13 On the other hand, the Strickland court rejected any requirement that the defendant show counsel's deficient conduct “more likely than...