reference hearing in Washington

2017Restraint of Fleming, 142 Wn.2d 853, 865 , 16 P.3d 610 (2001). 14 State v. Hicks, 163 Wn.2d 477, 486 , 181 P.3d 831 (2008). -6- No. 75296-1-1 /7 To succeed on an ineffective assistance claim, the defendant must show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him.15 This court has three options when reviewing a PRP: (1) dismiss the petition, (2) remand the petition for a full hearing on the merits or a reference hearing pursuant to RAP 16.11(a) and RAP 16.12, or (3) grant the petition without remanding for fur

2017Restraint of Fleming, 142 Wn.2d 853, 865 , 16 P.3d 610 (2001). 14 State v. Hicks, 163 Wn.2d 477, 486 , 181 P.3d 831 (2008). -6- No. 75296-1-1 /7 To succeed on an ineffective assistance claim, the defendant must show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him.15 This court has three options when reviewing a PRP: (1) dismiss the petition, (2) remand the petition for a full hearing on the merits or a reference hearing pursuant to RAP 16.11(a) and RAP 16.12, or (3) grant the petition without remanding for fur

2016Accordingly, we deny his request for a reference hearing and relief from restraint. 1 Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L.

2016Accordingly, we deny his request for a reference hearing and relief from restraint. 1 Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L.

2015In Stenson, 174 Wn.2d at 488—a personal restraint petition— this court explained that Brady materiality is a mixed question of fact and law, which “[w]e review . . . de novo by applying the reference hearing facts to the law and drawing our own legal conclusions.” ¶45 This precedent applies a typical mixed standard of review for Brady claims: the trial court’s legal conclusions about materiality are reviewed de novo, but its underlying factual findings are reviewed for substantial evidence in the record. 5 This is consistent with federal appellate court precedent on Brady materiality. 6 Thus,

2015In Stenson, 174 Wn.2d at 488 -a personal restraint petition-this court explained that Brady materiality is a mixed question of fact and law, which "[w]e review ... de novo by applying the reference hearing facts to the law and drawing our own legal conclusions." This precedent applies a typical mixed standard of review for Brady claims: the trial court's legal conclusions about materiality are reviewed de novo, but its underlying factual findings are reviewed for substantial evidence in the record. 5 This 5 "Generally, [factual] findings are viewed as verities, provided there is substantial ev

2013In an order dated June 18, 2013, this court dismissed Elmi's claims that: (1) his right to a public trial was violated when the trial court sealed juror questionnaires without conducting the analysis required by State v. Bone-Club1: (2) appellate counsel was ineffective for failing to raise the public trial issue on direct appeal; and (3) post-trial concerns about the credibility of an expert witness merited a reference hearing. 128 Wn.2d 254, 258-59 , 906 P.2d 325 (1995).

2012However, in examining the trial court’s order entered during the trial to measure it against the required Bone-Club inquiry, the court disregarded the findings in the reference hearing, saying: [C]onsistent with our observation in Bone-Club that “determination of a compelling interest [is] the affirmative duty of the trial court, not the court of appeals,” 128 Wn.2d at 261 , we emphasize that it was the trial court’s affirmative duty, not the duty of the superior court in a reference hearing more than eight years later, to identify the compelling interest justifying the encroachment on Orange’

2023The requirement “‘enabl[es] courts to avoid the time and expense of a reference hearing when the petition, though facially adequate, has no apparent basis in provable fact.’” Id. at 605 (quoting In re Pers.

2019Ruiz-Sanabria did not change the evidentiary standards for obtaining a reference hearing.” 197 Wn.

2015Id. at 200-01 .

2015Id. at 200-01 .

2013In an order dated June 18, 2013, this court dismissed Elmi's claims that: (1) his right to a public trial was violated when the trial court sealed juror questionnaires without conducting the analysis required by State v. Bone-Club1: (2) appellate counsel was ineffective for failing to raise the public trial issue on direct appeal; and (3) post-trial concerns about the credibility of an expert witness merited a reference hearing. 128 Wn.2d 254, 258-59 , 906 P.2d 325 (1995).

2005However, consistent with our observation in Bone-Club that "determination of a compelling interest [is] the affirmative duty of the trial court, not the court of appeals," 128 Wash.2d at 261 , 906 P.2d 325 , we emphasize that it was the trial court's affirmative duty, not the duty of the superior court in a reference hearing more than eight years later, to identify the compelling interest justifying the encroachment on Orange's constitutional right to a public trial.

2021Restraint of Rice, 118 Wn.2d 876, 885-86 , 828 P.2d 1086 (1992)). 15 Jones, 183 Wn.2d at 340. 16 Yates, 177 Wn.2d at 18 (citing Rice, 118 Wn.2d at 885-86 ). 17 Davis, 152 Wn.2d at 739 (citing Bragg, 242 F.3d at 1088 ). 5 No. 81689-6-I/6 likely testimony.

2016Citing Davis, 152 Wn.2d at 677-78 , Hassan argues that he is entitled to a reference hearing "to determine what jurors saw and how Hassan was prejudiced." Br. of Reply of Pet'r at 11.

2019Restraint of Crace, 174 Wn.2d 835, 846-47 , 280 P.3d 1102 (2012). 32 Grier, 171 Wn.2d at 32 . -14- No. 76716-0-I / 15 CONCLUSION We remand this case to the trial court for a reference hearing to resolve the limited issue of whether Mellis would have sought a search warrant regardless of his alleged unlawful search of the sticky note and bracelet.

2019Restraint of Crace, 174 Wn.2d 835, 846-47 , 280 P.3d 1102 (2012). 32 Grier, 171 Wn.2d at 32 . -14- No. 76716-0-I / 15 CONCLUSION We remand this case to the trial court for a reference hearing to resolve the limited issue of whether Mellis would have sought a search warrant regardless of his alleged unlawful search of the sticky note and bracelet.

2018Id. (quoting Hill, 474 U.S. at 60 ); see Rice, 118 Wn.2d at 885 ("Tf a petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12."'(quoting Hews I, 99 Wn.2d at 88 )); Machibroda, 368 U.S. at 494 (holding that it was error for the district court to make factual findings on controverted facts without first conducting a reference hearing).

2018Id. (quoting Hill, 474 U.S. at 60 ); see Rice, 118 Wn.2d at 885 ("Tf a petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12."'(quoting Hews I, 99 Wn.2d at 88 )); Machibroda, 368 U.S. at 494 (holding that it was error for the district court to make factual findings on controverted facts without first conducting a reference hearing).

2018Chettv, 167 Wn.

2015But our disposition is also *699 informed by whether there was ineffective assistance of counsel.” Id. at 438 .

2017Further, the prosecutor's reference to the defense argument as "cagey" 59 Id at 450 (alteration in original). 60 Id, 61 ]d at 451-52. 62 id at 452. 63 Id 64 Id. 23 No. 73699-0-1/24 did not disparage defense counsel because the definition of "cagey" does not imply wrongful deception or dishonesty.65 Finally, we simply disagree with the argument that the use of the word implies something bad about defense counsel.

2017The court held that the prosecutor’s reference to the defense’s case “as ‘bogus’ and involving ‘sleight of hand’” was improper because it impugned defense counsel’s integrity and “implie[d] wrongful deception or even dishonesty in the context of a court proceeding.” Id. at 451-52 .

2017Deficient Performance This court approaches an ineffective assistance of counsel argument with a strong presumption that counsel provided effective representation.22 A petitioner can "'rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'"23 This court evaluates the 20Monschke, 160 Wn.

2016Monschke, 160 Wn.

2004In addition to the five jurors, the following witnesses also testified at the reference hearing: (1) Lloyde Alton, Davis's lead trial counsel; (2) Christina Baldwin, Davis's brother's fiancee; (3) Penny Cole, a private investigator hired by Davis's appellate counsel; (4) Christopher Cooley, a corrections officer for the Pierce County Sheriff's Office who occasionally helped escort Davis to and from the courtroom during his trial; (5) Gerald Costello, one of the deputy district attorneys who prosecuted Davis's case; (6) Davis; (7) Julia Lindstrom, Alton's cocounsel representing Davis during his

2004In addition to the five jurors, the following witnesses also testified at the reference hearing: (1) Lloyde Alton, Davis's lead trial counsel; (2) Christina Baldwin, Davis's brother's fiancee; (3) Penny Cole, a private investigator hired by Davis's appellate counsel; (4) Christopher Cooley, a corrections officer for the Pierce County Sheriff's Office who occasionally helped escort Davis to and from the courtroom during his trial; (5) Gerald Costello, one of the deputy district attorneys who prosecuted Davis's case; (6) Davis; (7) Julia Lindstrom, Alton's cocounsel representing Davis during his

2015The Chief Judge of this court directed that a reference hearing be held to determine the credibility of the recantation and, if credible, whether the recantation constituted newly discovered evidence justifying a new trial under State v. Macon, 128 Wn.2d 784 , 911 P.2d 1004 (1996).

2009Restraint of Bonds, 165 Wash.2d 135, 143 , 196 P.3d 672 (2008). [8] "[B]efore considering a defendant's motion for a new trial based on a recantation, the trial court must determine whether the recantation is reliable." State v. Ieng, 87 Wash.App. 873, 880 , 942 P.2d 1091 (1997) (citing State v. Macon, 128 Wash.2d 784, 804 , 911 P.2d 1004 (1996)). [9] At the reference hearing, the State introduced a letter M.S. signed in 2003, requesting that Governor Locke not commute Spencer's sentence.

2015The Chief Judge of this court directed that a reference hearing be held to determine the credibility of the recantation and, if credible, whether the recantation constituted newly discovered evidence justifying a new trial under State v. Macon, 128 Wn.2d 784 , 911 P.2d 1004 (1996).

2009Restraint of Bonds, 165 Wash.2d 135, 143 , 196 P.3d 672 (2008). [8] "[B]efore considering a defendant's motion for a new trial based on a recantation, the trial court must determine whether the recantation is reliable." State v. Ieng, 87 Wash.App. 873, 880 , 942 P.2d 1091 (1997) (citing State v. Macon, 128 Wash.2d 784, 804 , 911 P.2d 1004 (1996)). [9] At the reference hearing, the State introduced a letter M.S. signed in 2003, requesting that Governor Locke not commute Spencer's sentence.

2014In contrast to Davis, Gentry specifically requests a reference hearing to determine "whether [racial] disparities are statistically significant." Mot. to Set Oral Arg. or to Remand for Supplementation of the R. or a Reference Hr'g in Light of State v. Davis, 175 Wn.2d 287 , 290 P.3d 43 (Sept. 20, 2012) at 6.

2014In contrast to Davis, Gentry specifically requests a reference hearing to determine "whether [racial] disparities are statistically significant." Mot. to Set Oral Arg. or to Remand for Supplementation of the R. or a Reference Hr'g in Light of State v. Davis, 175 Wn.2d 287 , 290 P.3d 43 (Sept. 20, 2012) at 6.

2010Restraint of Vega, 118 Wn.2d 449, 451 , 823 P.2d 1111 (1992). ¶11 After hearing oral argument, we remanded for a reference hearing on the notice issue.

2010Restraint of Vega, 118 Wn.2d 449, 451 , 823 P.2d 1111 (1992). ¶11 After hearing oral argument, we remanded for a reference hearing on the notice issue.

2009But as stated in Clements , "If [the victim] were to adhere to the facts in her recantation while under oath in open court and subject to cross examination, Rolax, Powell and York would require the court to permit D.T.M. to withdraw his guilty plea and proceed to trial." Clements, 125 Wash.App. at 642 , 106 P.3d 244 (quoting D.T.M., 78 Wash.App. at 221, 896 P.2d 108 ) (citing State v. Rolax, 84 Wash.2d 836 , 529 P.2d 1078 (1974); State v. Powell, 51 Wash. 372 , 98 P. 741 (1909); State v. York, 41 Wash.App. 538 , 704 P.2d 1252 (1985)).

2009But as stated in Clements , "If [the victim] were to adhere to the facts in her recantation while under oath in open court and subject to cross examination, Rolax, Powell and York would require the court to permit D.T.M. to withdraw his guilty plea and proceed to trial." Clements, 125 Wash.App. at 642 , 106 P.3d 244 (quoting D.T.M., 78 Wash.App. at 221, 896 P.2d 108 ) (citing State v. Rolax, 84 Wash.2d 836 , 529 P.2d 1078 (1974); State v. Powell, 51 Wash. 372 , 98 P. 741 (1909); State v. York, 41 Wash.App. 538 , 704 P.2d 1252 (1985)).

2009But as stated in Clements, “ Tf [the victim] were to adhere to the facts in her recantation while under oath in open court and subject to cross examination, Rolax, Powell and York would require the court to permit D.T.M. to withdraw his guilty plea and proceed to trial.’ ” Clements, 125 Wn.

2009But as stated in Clements , "If [the victim] were to adhere to the facts in her recantation while under oath in open court and subject to cross examination, Rolax, Powell and York would require the court to permit D.T.M. to withdraw his guilty plea and proceed to trial." Clements, 125 Wash.App. at 642 , 106 P.3d 244 (quoting D.T.M., 78 Wash.App. at 221, 896 P.2d 108 ) (citing State v. Rolax, 84 Wash.2d 836 , 529 P.2d 1078 (1974); State v. Powell, 51 Wash. 372 , 98 P. 741 (1909); State v. York, 41 Wash.App. 538 , 704 P.2d 1252 (1985)).

2008In re Delmarter, 124 Wash.App. at 166-67 , 101 P.3d 111 . [10] Reise's primary argument regarding Gillaspie's testimony is that it is newly discovered and could not have been discovered before he pleaded guilty.

2008In re Delmarter, 124 Wn.