In re Personal Restraint Petition of Diaz, 42064-3-II

• Decision Date: 18 September 2012
• Docket Number: 42064-3-II
• Court: Washington Court of Appeals
• Parties: In re the Personal Restraint Petition of GUADALUPE SOLIS DIAZ, JR., Petitioner.

In re the Personal Restraint Petition of GUADALUPE SOLIS DIAZ, JR., Petitioner.

No. 42064-3-II

Court of Appeals of Washington, Division 2

September 18, 2012

UNPUBLISHED OPINION

QUINN-BRINTNALL, P.J.

On December 7, 2007, a jury found Guadalupe Solis Diaz, Jr. guilty of six counts of first degree assault, one count of drive-by shooting, and one count of second degree unlawful possession of a firearm for his role in a drive-by shooting. RCW 9A.36.011(1)(a), .045(1); RCW 9.41.040(2)(a)(iii). The trial court sentenced Solis Diaz, who was 16 years old at the time he committed the crime, to 1, 111 months total confinement, a standard range sentence under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW. Solis Diaz unsuccessfully challenged only his convictions in a direct appeal to this court. State v. Solis-Diaz, noted at 152 Wn.App. 1038 (2009), review denied, 168 Wn.2d 1020 (2010). Having never challenged his sentence, and in light of the United States Supreme Court's recent decision in Graham v. Florida, ___U.S. ___, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Solis Diaz now brings this personal restraint petition (PRP), arguing that his sentence violates the Eighth Amendment's ban on cruel and unusual punishment and the ban against cruel punishment in article I, section 14 of the Washington Constitution. RAP 16.4(c)(2), (4). Solis Diaz also contends for the first time that he received ineffective assistance of counsel at sentencing. We agree with Solis Diaz that his counsel's representation during sentencing was constitutionally deficient and we remand for resentencing.

FACTS

At approximately midnight on August 10, 2007, 16-year-old Solis Diaz, a passenger in a car driven by 21-year-old Juan "Pollo" Velasquez, fired seven shots into a crowd of people outside of the Tower Tavern in Centralia Washington. All, including the intended target of the drive-by shooting, escaped injury. Solis-Diaz, 2009 WL 3261249, at *1. Several days later, police arrested Solis Diaz who was subsequently charged with six counts of first degree assault, ^[1]one count of drive-by shooting, and one count of second degree unlawful possession of a firearm. Solis-Diaz, 2009 WL 3261249, at *2.

Before trial, the State offered Solis Diaz a plea agreement: 180 months confinement plus 24 to 48 months community supervision.^[2] Solis Diaz did not accept the offer. At the end of a five-day trial, the jury found Solis Diaz guilty of all eight counts as charged and, by special verdict, found that he committed the six assaults while armed with a firearm.

The sentencing hearing occurred on December 17, 2007. Neither party prepared a presentencing report and Solis Diaz's counsel mistakenly told the trial court that Solis Diaz was "declined as a juvenile and tried [in superior court]" when Solis Diaz was actually "auto-declined" by operation of statute, RCW 13.04.030(1)(e)(v)(E)(I). Br. of Resp't, App. F at 6. As such, no judicial officer ever held a declination hearing pursuant to Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), to consider Solis Diaz's maturity and mental development and determine whether he had the mental and emotional sophistication necessary to warrant prosecution as an adult.

The State requested that the court sentence Solis Diaz to the high end of the standard range, 1, 111 months. On its own motion, the sentencing court determined that the drive-by shooting conviction encompassed the same criminal conduct as the assault convictions for purposes of sentencing. No one spoke on Solis Diaz's behalf and apart from agreeing with the sentencing court's same criminal conduct analysis and briefly arguing against the restitution recommendation, Solis Diaz's attorney's entire argument at sentencing consisted of the following:

Certainly it is a tragic event. You heard all the evidence. My client still maintains his innocence, your Honor, but the jury did find him guilty. We would ask the court, your Honor to give him the low end of the range. He is 17 years old declined as a juvenile and tried here. He's still looking at, your Honor, almost a life sentence, quite frankly, unless something happens in the intervening years that he is serving his time. We think the low end of the range [927 months] would be more appropriate.

Br. of Resp't, App. F at 6. After noting that the sentence was legally correct, the trial court sentenced Solis Diaz to the high end of the standard range, approximately 92.5 years in prison.

Solis Diaz unsuccessfully appealed his convictions to this court arguing that the trial court erred by "(1) excluding expert testimony on heuristic reasoning, (2) limiting cross-examination of a witness on an unrelated plea agreement, (3) permitting the State to question a witness about who was present in the courtroom during trial, and (4) denying his motion in limine to exclude all evidence of gang affiliation." Solis-Diaz, 2009 WL 3261249, at *1. Solis Diaz also argued that his attorney was ineffective for failing to "object to numerous statements containing rumor and hearsay about [Solis Diaz's] gang involvement, speculation about motive for the shootings, and [for failing] to pin down [Solis Diaz's] alibi." Solis-Diaz, 2009 WL 3261249, at *7 (2d alteration in original). We affirmed Solis Diaz's convictions and the Washington Supreme Court denied review. Solis-Diaz, 2009 WL 3261249, at *8, review denied, 168 Wn.2d 1020. We issued a mandate on Solis Diaz's case on May 10, 2010.

On May 17, 2010, the United States Supreme Court decided Graham. The Court held in that decision that "for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole" and if a court "imposes a sentence of life it must provide [the juvenile offender] with some realistic opportunity to obtain release before the end of that term." Graham, 130 S.Ct. at 2030, 2034. In light of the Graham decision and the assistance he received at sentencing, Solis Diaz submits this PRP pursuant to RAP 16.4(c)(2) and (4) challenging his sentence.

DISCUSSION

Ineffective Assistance

Solis Diaz contends that he received ineffective assistance at sentencing because his counsel's performance fell below objective standards of reasonableness and prevailing professional norms.^[3] We agree. Because Solis Diaz's counsel failed to make reasonable efforts at researching controlling authority concerning exceptional downward sentences or advocate for such a sentence on Solis Diaz's behalf, and because counsel misrepresented to the sentencing court that Solis Diaz was declined by the juvenile court when, in fact, no Kent hearing ever occurred, we hold that Solis Diaz received ineffective assistance at sentencing. Standard of Review

A petitioner may request relief through a PRP when he is under unlawful restraint. RAP 16.4(a)-(c). Under both the Washington and United States Constitutions, a criminal defendant is entitled to the effective assistance of counsel at critical stages in the litigation. State v. Page 147 Wn.App. 849, 855, 199 P.3d 437 (2008), review denied, 166 Wn.2d 1008 (2009). To establish ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient and (2) the deficient performance prejudiced him. Strickland v Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either prong (deficient performance and prejudice), we need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).^[4]

Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). We strongly presume effective assistance and the defendant bears the burden of demonstrating the absence of a strategic reason for the challenged conduct. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). However, a defendant may rebut this presumption by proving that her attorney's representation "'was unreasonable under prevailing professional norms.'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004) (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)).

An attorney is not ineffective merely because he or she failed to argue novel theories of law. See, e.g., Anderson v. United States, 393 F.3d 749, 754 (8th Cir.) ("Counsel's failure to raise [a] novel argument does not render his performance constitutionally ineffective."), cert. denied, 546 U.S. 882 (2005). But as the Strickland court wrote,

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

466 U.S. at 690-91 (emphasis added).

Here, Solis Diaz's trial counsel made a number of choices at sentencing that no reasonable attorney would have—choices that, viewed in the aggregate, amounted to representation that fell well below objective standards of defense advocacy dictated by professional norms. Failing to Apprise the Trial Court of Important Factual and Procedural Considerations

At sentencing, Solis Diaz's counsel...