In re Personal Restraint of Amos

• Decision Date: 23 March 2021
• Docket Number: 52872-0-II
• Parties: In the Matter of the Personal Restraint of FORREST EUGENE AMOS, Petitioner.
• Court: Washington Court of Appeals

In the Matter of the Personal Restraint of FORREST EUGENE AMOS, Petitioner.

No. 52872-0-II

Court of Appeals of Washington, Division 2

March 23, 2021

UNPUBLISHED OPINION

LEE C.J.

Forrest E. Amos appeals the trial court's order on remand from this court denying his personal restraint petition (PRP) arguing that the trial court erred by concluding that he did not receive ineffective assistance of counsel prior to entering his guilty plea.Amos also raises additional arguments related to his ineffective assistance of counsel claim in his statement of additional grounds (SAG).^[1] Because Amos did not meet his burden to show that he received ineffective assistance of counsel prior to entering his guilty plea, the trial court properly denied his PRP.Accordingly, we affirm.

FACTS

On July 31, 2014, Amos pled guilty to several criminal charges.^[2]In re Pers. Restraint of Amos, 1 Wn.App. 2d 578, 585, 406 P.3d 707(2017).Amos' guilty plea included a waiver of any appeal or collateral attack.Id.However, on January 5, 2016, Amos filed a PRP with this court.Id. at 588.

This court held that, while Amos waived his right to collateral attack, the validity of the waiver was called into question by his allegations of ineffective assistance of counsel.Id. at 593.Specifically, Amos was arguing that he received ineffective assistance because of his counsel's failure to file a CrR 8.3 motion to dismiss the charges based on an alleged violation of the attorney-client relationship.^[3]Id. at 594.

This court held,

If the actions of the State violated Amos' attorney-client relationship, then the charges should have been dismissed, unless the State proved beyond a reasonable doubt that the violation did not result in any prejudice to the defendant.

Id. at 597-98.However, this court could not determine whether Amos received ineffective assistance of counsel based on the record before it.Id. at 600.Instead, this court remanded to the trial court for an evidentiary hearing to resolve six factual questions and to determine the merits of

Amos' PRP:

The trial court will conduct a factual hearing to determine (1) the nature of the cell search, (2) whether officers or other state officials seized or reviewed the documents, (3) what were the nature and contents of those documents, (4) if a violation of the attorney-client relationship did occur whether the State can show beyond a reasonable doubt that Amos was not prejudiced, (5) whether Amos would not have pled guilty but for his attorney's deficient actions or advice, and (6) any other factual questions the trial court deems necessary to make a determination.

Id. at 600-01.

A.Evidentiary Hearing

The trial court held an evidentiary hearing on Amos' PRP on September 5, 2018.Several witnesses testified at the hearing, including the officer who performed the cell search multiple prosecuting attorneys, the superior court judge who conducted an in camera review of the seized documents, Amos' trial attorney, and Amos himself.^[4]

1.Detective Haggerty's Testimony

Detective Adam Haggerty of the Centralia Police Department testified that he served a search warrant on Amos' jail cell on June 18, 2014.Amos was unhappy that Detective Haggerty was serving the search warrant and expressed concern about his pending lawsuit against the Department of Corrections(DOC), which was irrelevant to Detective Haggerty's investigation.Detective Haggerty did not read the contents of the documents during the search, but he looked for anything that had a heading or header for "the prosecutor's office, DOC, his attorney," or "DOC legal stamp," pushed them to the side, and left them behind.I Verbatim Report of Proceedings (VRP)(Sept. 5, 2018)at 121.He estimated that the entire search took about 10 minutes.Detective Haggerty secured the seized documents in his police vehicle and returned to his office.

On the way to his office, Detective Haggerty called Amos' defense attorney, Don Blair, and advised him of the search.After speaking with Blair, Detective Haggerty decided to secure the seized documents pending an in camera review by a judge.Detective Haggerty did not review any of the documents prior to the in camera review.

After the in camera review by Judge Nelson Hunt of the Lewis County Superior Court, the seized documents were split into three groups: (1) documents that were relevant to Detective Haggerty's investigation, (2) documents that were irrelevant to the investigation, and (3) documents that were not released to Detective Haggerty.^[5]Judge Hunt kept the documents that were not released to Detective Haggerty.Detective Haggerty sorted the released documents into relevant and irrelevant documents.The relevant documents were maintained as evidence.The irrelevant documents were secured pending release to Blair.

Detective Haggerty reviewed the seized documents.Detective Haggerty did not recall seeing any letters from either of Amos' defense attorneys or reviewing any documents pertaining to legal strategies.

2.Judge Hunt's Testimony

Judge Hunt performed the in camera review of the documents seized from Amos' jail cell.Judge Hunt testified that he identified some documents "[c]ould be privileged":

There were several hundred pages, and I went through the documents with the bias, if you will, to find privileged material so that this kind of a hearing would not happen at some later date.

So the answer to your question of did I find anything, the answer is I think there were about six pages that may have had something to do with privilege, but it was not real clear one way or the other, and with the way that I was approaching the case, I set them aside.But, you know, I really don't remember anything like, "I talked to my attorney, and this is what he said."There was nothing like that.

I VRP(Sept. 5, 2018)at 182.Judge Hunt exercised caution to protect Amos' right to counsel.Judge Hunt determined that something was privileged "if it referenced any contact with his lawyer, regardless of whether it contained any communications."I VRP(Sept. 5, 2018)at 187.Judge Hunt testified "it was very clear what were personal notes."I VRP(Sept. 5, 2018)at 189.

After his review, Judge Hunt kept the six documents that could be privileged to return to Blair.The remaining documents were returned to Detective Haggerty.Judge Hunt did not notify Blair that he was conducting the in camera review.And Judge Hunt would not have permitted Blair to be present during the in camera review.

3.Prosecuting Attorneys' Testimony

William Halstead was the deputy prosecuting attorney assigned to Amos' 2013 case.Halstead and Blair negotiated a plea agreement to resolve that case.At the evidentiary hearing, Halstead testified he had no involvement with Detective Haggerty regarding the search of Amos' cell prior to the actual search.After the search, Halstead confirmed that Detective Haggerty should request an in camera review of the documents.

The prosecuting attorney's office received the seized documents in their discovery system on July 23.The seized documents were provided to Blair as a discovery package on July 24.Although the prosecuting attorney's office received the documents and provided the discovery package to Blair, Halstead testified that he did not remember ever going through any of the documents and that they had no impact on his plea negotiations with Blair.

Halstead also testified that on July 30, 2014, the trial court signed an order releasing the seized documents.The next day, Amos entered his guilty plea.Halstead explained that he and Blair had been working on the plea agreement for "quite some time."I VRP(Sept. 5, 2018)at 218.Neither the seized documents nor the order had any impact on the plea deal, and Halstead did not know what was in the documents that were seized.

Eric Eisenberg was a deputy prosecuting attorney with Lewis County Prosecuting Attorney's office at the time of the cell search.Eisenberg spoke with Detective Haggerty briefly after the search was conducted.Detective Haggerty wanted to confirm that an in camera review was appropriate before reviewing the seized documents.Eisenberg told Detective Haggerty not to look at any documents until he obtained an in camera review.

4.Blair's Testimony

Blair represented Amos in the 2013 case.Blair filed numerous motions in the case.There was also a significant amount of ongoing discovery in the case, including several supplemental discovery requests.Blair met with Amos many times to prepare for the case.He also received notes on the case from Amos.Blair explained,

[M]y practice, especially in a case like this, was to make a copy of the discovery, because he couldn't come to my office to review it, and I know I couldn't give him a copy, but until, I think, yesterday I believed the procedure was-and I believed it from communicating with the jail-I would deliver a copy of the discovery to the jail, and they would bring the client/inmate up to booking in the evening, and they would allow them as much time as they wanted in the evening, for as many evenings as they needed, to go through the discovery.And my instruction is always go ahead and make notes on the discovery that I leave.

II VRP(Sept 6, 2018)at 268-69.Blair received about six pages of notes from Amos on the discovery.Blair testified that Amos was also a "prolific researcher" and would often give case citations for Blair to review.II VRP(Sept. 6, 2018)at 270.Blair also explained that he did not believe Detective Haggerty could have actually taken any documents related to discovery:

I don't know what they took.And here's the thing.Whatever they took wasn't necessarily-it wasn't anything that I had sent [Amos], because I never have sent

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