In re Dimas
| Docket Number | 37731-8-III |
| Decision Date | 13 June 2023 |
| Parties | In the Matter of the Personal Restraint of RICARDO OCHOA DIMAS, Petitioner. |
| Court | Washington Court of Appeals |
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In the Matter of the Personal Restraint of RICARDO OCHOA DIMAS, Petitioner.
No. 37731-8-III
Court of Appeals of Washington, Division 3
June 13, 2023
UNPUBLISHED OPINION
Siddoway, J.
Ricardo Ochoa Dimas seeks relief from personal restraint in the form of a sentence to 576 months of total confinement for his 2017 convictions of second degree murder, first degree assault, and first degree unlawful possession of a firearm. Woven through his pro se petition are over three dozen ostensible grounds for relief, few of which are supported by specific facts, the evidence available to support the facts, or citation to the court documents in which the evidence can be found. We requested a response from the State, which has provided evidence refuting his discernible claims.
Appointed counsel provided facts and evidence in support of one of Mr. Dimas's[1]claims of ineffective assistance of trial counsel, but deficient representation is not shown. The petition is dismissed.
FACTS AND PROCEDURAL BACKGROUND
On the night of January 22, 2016, April Jackson and her girlfriend Leticia Diaz were at the apartment of Jackson's aunt, Anna Hargett, when Ms. Diaz left to meet Tabatha Bevins, and then returned with Bevins and two of Bevins's friends. Ms. Bevins and her friends wished to acquire some heroin, and Ms. Hargett arranged to acquire some on their behalf, fronting the $100 cost that she then collected from one of Ms. Bevin's friends. Disappointed with the quality of the heroin the young women wanted their money back, but, after contacting the seller, Ms. Hargett said that was not possible. Although Ms. Diaz offered to reimburse their $100 out of an upcoming paycheck, Ms. Bevins and her friends left the Hargett apartment unhappy, with Ms. Bevins stating "it's not over," and that they would be back. Rep. of Proc. (RP)[2] at 78.
Ms. Bevins and her friends went to see Ricardo Dimas, who was nearby, to enlist his help. On being told what had happened, Mr. Dimas shared their indignation and, according to Ms. Bevins, suggested going back to the apartment to "try to make it right." RP at 131. Ms. Bevins later recalled him saying, "[I]t's not right, . . . that's his hood and it's not going to go down like that." RP at 135. Mr. Dimas and his acquaintance, "Flex,"
traveled to the Hargett apartment, as did the three women, where Ms. Bevins knocked on the door.
What transpired thereafter was captured on a surveillance camera trained on the porch and front door of the apartment, albeit without sound. As summarized in this court's opinion in Mr. Dimas's direct appeal, Ms. Diaz answered the door, stepped outside, and began arguing with Mr. Dimas and the others. After several minutes, Ms. Hargett and Ms. Jackson displaced Ms. Diaz at the front door and the verbal confrontation continued and grew more heated. State v. Dimas, No. 35549-7-III, slip op. at 2 (Wash.Ct.App. Apr. 23, 2019) (unpublished).[3]
Mr. Dimas had been fidgeting with something near his right-hand front pocket earlier, and when Ms. Hargett and Ms. Jackson came outside, Mr. Dimas can be seen in the video removing a firearm from the area of his right pants pocket and holding it by his side, pointing it toward the ground. Id. Ms. Jackson and Ms. Diaz later testified at trial that Ms. Hargett told Mr. Dimas and his companions to leave. Ms. Jackson claimed that she was shouting, and her aunt, who was "angry" and increasingly "frustrated," told Ms. Bevins, Mr. Dimas and the others to leave "several times." RP at 212. Ms. Diaz recalls Ms. Hargett and Ms. Jackson telling them to "get the fuck out of here." RP at 86.
This court's opinion recounts what is seen next on the surveillance video:
The video then depicts the following events over the course of less than five seconds: Ms. Hargett moved around her niece as Mr. Ochoa Dimas stepped away from the wall and turned his body to face the front door. Mr. Ochoa Dimas was still holding the gun in his right hand, pointing it toward the ground. Mr. Ochoa Dimas and Ms. Hargett then exchanged words. At that point, the video shows Mr. Ochoa Dimas's gun in full view, within the possible eyesight of Ms. Hargett. Ms. Hargett then pulled an ax from behind her body and lunged at Mr. Ochoa Dimas. Mr. Ochoa Dimas put up his left arm in an apparent attempt to shield himself and took several steps backward. Ms. Hargett then started to lower the ax. As she did so, Mr. Ochoa Dimas fired a shot at Ms. Hargett.
The bullet fired by Mr. Ochoa Dimas went through Ms. Hargett's chest and then traveled to hit Ms. Diaz in the neck.
Dimas, slip op. at 3. Mr. Dimas and his companions fled the scene. Police arrived and Ms. Hargett and Ms. Diaz were taken to the hospital. Ms. Diaz recovered from her wounds; Ms. Hargett did not. She bled to death within a matter of minutes after being shot.
The State charged Mr. Dimas with five felony counts: second degree murder, second degree felony murder, first degree assault, first degree unlawful possession of a firearm, and second degree unlawful possession of a firearm. Mr. Dimas retained private counsel, John Crowley, to defend him.
Mr. Dimas exercised his right to a jury trial of the murder and assault counts, which proceeded to a 4-day trial that began on August 22, 2017. Mr. Dimas testified on his own behalf and claimed he shot Ms. Hargett in self-defense after she stepped toward him with the ax.
Based on the evidence admitted at trial, the trial court provided the jury with a full panoply of self-defense instructions, including instruction on the duty to retreat and a first aggressor instruction. The jury found him guilty as charged. In a bench trial on the firearm charges that followed, the trial court found him guilty of those charges.
Mr. Dimas appealed and obtained partial relief from this court in the form of directions to the trial court to strike his convictions on counts 2 and 5 on double jeopardy grounds, and to strike the $100 DNA[4] collection fee. Among his assignments of error that were rejected on appeal was his contention that the court erred by giving the first aggressor instruction. This court held that the giving of the instruction was proper, explaining:
[T]he video evidence shows Mr. Ochoa Dimas drew his gun and positioned himself squarely in front of Ms. Hargett's door prior to being threatened with an ax. Given the context-a heated confrontation over drug money and refusal to leave after repeated requests-the mere act of pulling out a firearm and holding it in a low-ready position was an act of provocation, likely to elicit a belligerent response. The initial aggressor instruction was appropriate.
Dimas, slip op. at 5.
Mr. Dimas also contended that the prosecutor committed misconduct in closing, by arguing he had a duty to retreat. That argument, too, was rejected by this court, which
reasoned that the State properly argued Mr. Dimas had a duty to retreat "for two distinct reasons":
First, the no duty to retreat standard applies only to individuals whose presence is lawful. At the time of the shooting, Mr. Ochoa Dimas had no right of continued presence because his limited license as a visitor to the front door area of Ms. Hargett's home had been revoked. Second, the right to stand one's ground does not apply to an initial aggressor.
Id. at 7 (citations omitted).
Mr. Dimas petitioned the Washington Supreme Court for review of the arguments rejected by this court. Review was denied. State v. Dimas, 193 Wn.2d 1035, 447 P.3d 150 (2019). The mandate issued on September 10, 2019.
Personal restraint petition
Mr. Dimas, acting pro se, filed his personal restraint petition on September 9, 2020, a day before the one-year anniversary of the mandate. The only supporting declaration filed was one from his wife, Christine Dimas. The next day, September 10, he filed a 56-page document with the heading "EXHIBIT" on each page, the first 31 pages of which are unauthenticated exhibits. Pages 32 through 56 contain further argument in support of his petition. The day after that, September 11, he filed what was self-described as an exhibit list explanation. It was an unsigned narrative that explained each exhibit filed the prior day.
Under RAP 16.8.1, this court conducts a preliminary review of a personal restraint petition and may dismiss it without calling for a response if it is clearly frivolous or statutorily barred. If not, and if it has not been improperly transferred to this court by the superior court, this court will request a response from the State. Id. This court requested a response to Mr. Dimas's petition from the State.
Rather than a response, the State initially filed a motion to strike most of Dimas's petition and its supporting documents. Discussing Mr. Dimas's petition by section, it addressed the dearth of citations to the record, the lack of supporting declarations or authentication of exhibits, and the irrelevance of some of Mr. Dimas's arguments and unauthenticated support.
The State's motion triggered a series of new evidentiary submissions from Mr. Dimas, which the State requested be struck in a second motion to strike.
Our commissioner granted the State's motions to strike in part. With respect to the first motion, the commissioner expressed concern that were she to grant the motion, she would be dismissing virtually the entire petition. Comm'r's Ruling, In re Pers. Restraint of Dimas, No. 37731-8-III, at 5 (Wash.Ct.App. Apr. 20, 2021) (on file with the court). She reasoned that whether to grant such draconian relief was best determined by the acting chief judge (ACJ) or a panel, who would consider the petition on the merits.
Id. She granted the second motion to strike, with leave to Mr. Dimas to file a motion to supplement his petition. Id. at 5-6. No motion to supplement was filed.
The State then filed a response that, with...
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