In re Tricomo

• Decision Date: 12 May 2020
• Docket Number: No. 51741-8-II,51741-8-II
• Citation: 463 P.3d 760,13 Wash.App.2d 223
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the Personal Restraint of Lia Yera TRICOMO, Petitioner.

13 Wash.App.2d 223

463 P.3d 760

In the MATTER OF the Personal Restraint of Lia Yera TRICOMO, Petitioner.

No. 51741-8-II

Court of Appeals of Washington, Division 2.

Filed May 12, 2020

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave.Ste. 330, Seattle, WA, 98121-3573, for Petitioner.

Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. SwBldg. 2, Olympia, WA, 98502-6045, for Respondent.

PUBLISHED OPINION

Cruser, J. ¶1Lia Yera Tricomo seeks relief from her convictions and sentence for second degree murder, three counts of second degree assault, and second degree taking a motor vehicle without the owner's permission.Tricomo filed a timely pro se personal restraint petition (PRP) in which she claims that her convictions violate double jeopardy, that the trial court erred in failing to consider the effects of the drug Paxil at sentencing, that she received ineffective assistance of counsel at the plea stage, and that there was prosecutorial misconduct.

¶2 After the State responded to her pro se PRP, Tricomo obtained counsel who filed a supplemental PRP arguing, for the first time, that Tricomo's trial counsel performed deficiently when he failed to produce an appropriate expert at sentencing to offer an opinion on the effects of Paxil and that Tricomo was prejudiced by this deficient performance.

¶3 With respect to her original petition, we decline to address Tricomo's double jeopardy claim because it was previously raised and resolved on direct appeal, and she has not shown that the interests of justice require relitigation of this claim.We address the merits of Tricomo's claim that the trial court erred in declining to consider the effects of Paxil at sentencing and hold that Tricomo has not demonstrated that the trial court's decision constituted a fundamental defect that resulted in a complete miscarriage of justice.We also consider the merits of Tricomo's ineffective assistance of counsel and prosecutorial misconduct claims and conclude that Tricomo was not deprived of effective assistance of counsel and that the prosecutor did not commit misconduct.Accordingly, we deny her petition.

¶4 With respect to her supplemental petition, we hold that Tricomo's ineffective assistance of counsel claim regarding her counsel's failure to retain an appropriate expert on the effects of Paxil is untimely under RCW 10.73.090(1).We are not persuaded that this new ineffective assistance of counsel claim is "part and parcel," and therefore timely, to Tricomo's pro se claim that the trial court erred when it declined to consider one expert's opinion on the effects of Paxil or to her other timely raised claim of ineffective assistance of counsel at plea bargaining.Nor do we otherwise possess the inherent authority to extend the statutory time-bar.Therefore, we decline to address this new claim, raised for the first time in the supplemental petition.

FACTS

I.BACKGROUND

¶5 In late March 2013, Tricomo attempted suicide and was admitted to a hospital.As part of her treatment, her doctor prescribed her Paxil, an antidepressant.At a follow-up medical appointment on April 3, her Paxil prescription was renewed.She saw her therapist the next day, who encouraged her to stay on her antidepressants.

¶6 On April 25, Tricomo saw her therapist again who noted,

Discussed and processed her ambivalence about the medication she is on.Looked at what she identifies as the root cause of her anger; She is angry that she is alive.She does not plan to harm herself, and in fact, talked about ways she used to inflict pain on herself.She does not want to do that anymore and does not want to take her life.However, she still in [sic] not happy about being alive.

....

[Tricomo] does not like the way the medication makes her feel even though she knows she feels calmer and happier.She expressed confusion about the experience of being happier.It is uncomfortable and unfamiliar.It seems to also take away her energy for acting out in anger.

Suppl.Pet., Ex. 11at 15.

¶7 On April 29, Tricomo brought some of her belongings to the home of her former counselor, John Alkins, to move in with him.Tricomo and Alkins drank vodka together.They had a sexual encounter in his home.During this sexual encounter, Tricomo attempted to tie him up with a rope, but he stated he did not like it, so she untied him.After untying Alkins, Tricomo grabbed a razor blade knife she had hidden in the bedroom, and she slit his throat approximately six times.Alkins walked around his house for several hours trying to stop the bleeding.Tricomo followed him throughout the house to ensure he would not leave.There was a struggle for the razor blade knife at the front door, and Alkins's wrist was cut during this struggle.Alkins then went back upstairs.Tricomo strangled Alkins with an extension cord, killing him.

¶8 The next day, Tricomo was arrested, and she confessed to the police.During her interview with the police, Tricomo mentioned the negative effect of her medication.Later, when Tricomo was in jail prior to trial, a psychiatric note said, "Paxil, made her want to kill people, had horrible withdrawal," and the Paxil was discontinued.Suppl.Pet., Ex. 14at 146.

II.GUILTY PLEA

¶9The State charged Tricomo by amended information with second degree murder, three counts of second degree assault, and second degree taking a motor vehicle without the owner's permission.¹The three counts of second degree assault were based on Tricomo's use of a razor blade knife to inflict neck wounds, use of a razor blade knife to inflict facial wounds, and use of a razor blade knife to inflict hand wounds.Tricomo pleaded guilty to the amended information.

¶10 For the second degree murder count, the parties agreed on a standard range sentence of 257 to 357 months.The plea agreement stated that while the State was going to recommend 357 months on the second degree murder count, the "[d]efense is free to argue for a lesser sentence," and the agreement recognized that the trial court could impose an exceptional sentence below the standard range.

Clerk's Papers(CP)at 30.The State's sentencing memorandum provided, "Pursuant to plea agreement, Defendant may argue for no less than 257 months prison which is the low end of the standard range."Id. at 128.

¶11 During the plea colloquy, when discussing that the State would recommend 357 months, the court addressed Tricomo and said, "And you understand that you are not agreeing that that is what the court should order and that, in fact, [defense counsel] will be able to argue that the court should impose a lesser sentence on your behalf."Verbatim Report of Proceedings (VRP)(Nov. 6, 2014)at 8.Tricomo confirmed that she understood the parameters of her plea agreement as explained by the trial court.

III.SENTENCING

¶12 Before the sentencing hearing, both Tricomo and the State filed sentencing briefs.In her brief, Tricomo asked the court to consider expert Dhyana Fernandez's mitigation report and the reports of Dr. David Dixon and Dr. Delton Young.All three experts discussed the effects that the use and withdrawal from Paxil may have had on Tricomo's ability to form intent at the time of the crime.

¶13 Dixon, the defense expert, and Young, the State's expert, reached contradictory conclusions regarding Paxil's effects on Tricomo's mental state.Prior to pleading guilty, Tricomo was evaluated for diminished capacity by Dixon, a psychologist.Dixon discussed Paxil in his report and concluded, "Use of and withdrawal from Paxil at the time of the alleged crime may have diminished her ability to form intent, a requisite mental state.Paxil withdrawal exacerbated her mood disorder into a manic state with psychosis."CPat 78.

¶14The State's expert, Young, also conducted a forensic psychological evaluation.He disagreed with Dixon about Paxil stating, "[T]here was no withdrawal: she was taking the medication every day (including on April 29th) as prescribed.

It is possible that the medication generated aversive side effects (e.g., feeling ‘nothing’); but it is more likely that the psychotic symptoms stemmed from alcohol abuse in a psychologically vulnerable individual."Id. at 94.

¶15 Fernandez wrote a mitigation report for sentencing that included a section on Paxil.Fernandez cited to several peer reviewed journal articles and articles from web-based sources, but the report contained no analysis.The State objected to Fernandez's report because it did not believe Fernandez was qualified to opine about the effects of Paxil.

¶16 At sentencing, the court said it would not consider the section on Paxil in Fernandez's report.The court reasoned that it did not "find that [Fernandez] has any expertise in that particular area and she basically only sets forth a number of articles suggesting that they may have some relevance."VRP(Jan. 28, 2015)at 39.However, the trial court did consider the expert reports from Young and Dixon, and it noted that "the doctors reference Paxil, both doctors, and the adverse side effects of this medication."Id. at 77.

¶17The State asked the court to sentence Tricomo to 357 months and defense counsel asked the court to sentence Tricomo to 257 months.The court imposed the top of the standard range—357 months—for the murder conviction, with the other counts to run concurrently.

IV.APPEAL AND MANDATE

¶18 Tricomo appealed her convictions and sentence, arguing that her convictions violated double jeopardy, that her guilty plea was not voluntary, and that the trial court erred in refusing to consider the portion of Fernandez's report regarding Paxil.State v. Tricomo , No. 47238-4-II, slip op. at 1, 2016 WL 2347041(Wash. Ct. App.Apr. 26, 2016)(unpublished) http://www.courts.wa.gov/opinions/pdf/47238-4.16.cor.pdf.We affirmed her convictions and sentence.Tricomo , slip op. at 1.The mandate issued on January 5, 2017.

V.PERSONAL RESTRAINT PETITION

¶19 On January 2, 2018, Tricomo filed a...