FILED
000% OF APPEALS
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DWISIM i l
2013 SEP 17 AIM 8 88
STAT
5 r'
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
In re the Personal Restraint Petition of No. 42377 4 II
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LARRY A.MOOREHEAD,
Petitioner. I UNPUBLISHED OPINION
FORBES, J. . this personal restraint petition, Larry A.Moorehead argues that
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his counsel was ineffective for failing to conduct an adequate investigation and for failing to call
a rebuttal expert when his special sex offender sentencing alternative ( SSOSA)was revoked.
Because Moorehead fails to prove both deficient performance and prejudice, we deny the
petition.
FACTS
Moorehead pleaded guilty to the crime of first degree child molestation in 2005. The pre-
sentence investigation report and a psychologist, Dr. Kevin McGovern, recommended that
Moorehead be allowed to complete a special sex offender sentencing alternative ( SSOSA)
outpatient treatment program. In July 2005,the court imposed a 68 month sentence, with 180
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days to serve in confinement and the remainder suspended under a SSOSA. The SSOSA
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Judge Jennifer A.Forbes is serving as a judge pro temp ore of the Court of Appeals, Division II,
under CAR 21( ).
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No. 42377 4 II
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required that Moorehead undergo and successfully complete an outpatient sex offender treatment
program. After his confinement, Moorehead began a treatment program with Sunset
Psychological & Counseling Services.
Moorehead violated the conditions of his SSOSA,resulting in one out ofcourt agreement
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and two violation hearings. On four occasions between October 2005 and February 2007,
Moorehead violated his travel restrictions. For the last of these violations, Moorehead was
confined for 30 days. In March 2006, Moorehead possessed pornography in violation of the
SSOSA and his treatment program. Moorehead was also found to have provided false
information to corrections officers after he incorrectly stated there was not pornography on his
computer. He received 60 days' confinement for these two violations.
In May 2010, Sunset Psychological.terminated Moorehead from its treatment program.
Kelly Chimenti, a licensed clinical social worker and co owner of Sunset Psychological, stated
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that despite over four and one half years' treatment, Moorehead continued " o engage in
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resistant and negative behavior."App. D at 48. In addition, Moorehead, who was unemployed,
had repeated problems timely paying for his treatment.
Before terminating Moorehead, Chimenti and his community corrections officer,
Timothy Larsen, tried to work with Moorehead. On February 24,2010, Moorehead signed a
treatment contract addendum."
App. D at 49. Moorehead was explicitly advised that failure to
comply would result in termination of his treatment. Among other things, the addendum
required that Moorehead pay the balance he owed for his treatment, make regular payments,
2"
App."
refers to the appendices in petitioner's brief.
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3
begin arousal
an " conditioning" program, attend an employment program, and participate in
group meetings. App. D. at 45. Thereafter, Chimenti noted that Moorehead made little effort to
comply. On April 6,2010, Moorehead, Chimenti, and Larsen met, and Moorehead was given
another opportunity to comply with treatment conditions.
Despite the opportunity, Moorehead continued to exhibit " esistant and negative
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behavior."App. D at 48. For example, in late April 2010, Moorehead refused to take a copy of
a list of offender friendly employers and then yelled, Fuck you"at a group member who had
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told Moorehead he was not helping himself. App. D at 50. Moorehead also did not follow
through on providing " pdates"concerning his "[ rousal conditioning."App. D. at 50.
u a]
Chimenti concluded that " oorehead cannot or will not appropriately engage and is currently
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unable to gain any benefit from our program."App. D at 50. She further concluded that despite
treatment, Moorehead had not mitigated any factors concerning his reoffense risk.
Shortly after Sunset Psychological terminated Moorehead from treatment, the State
moved to revoke the SSOSA. The State alleged that Moorehead failed to comply with treatment
conditions, resulting in his termination from treatment. At the revocation hearing, Chimenti
testified that the primary reason for terminating treatment was that Moorehead had not mitigated
any of his " isk factors."App. E at 116. She said that based on a risk assessment, Moorehead
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scores out at a high risk level."
- App. E at 116. This was based on an evaluation using the
3 The arousal conditioning was to address a "deviant.arousal"that Moorehead had exhibited
while undergoing a plethysmograph. App. E at 150.
No. 42377 4 II
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Stable"risk assessment tool,on which Moorehead had most recently scored 12 out of 26.
Sunset Psychological started using the Stable tool around 2009 and, according to Chimenti,
Moorehead scored an 11 then. Because Sunset Psychological did not use the Stable tool when
Moorehead first started, she could not say what his score would have been at that time. Chimenti
acknowledged there were periods when Moorehead progressed, but that he would then regress.
In her opinion, Moorehead had not, overall,progressed since beginning treatment.
On cross -examination, Moorehead's defense counsel asked questions related to
Chimenti's risk assessment of Moorehead. Defense counsel also inquired about Moorehead's
problems paying for treatment. Defense called two witnesses: Moorehead's community
corrections officer, Larsen, and Moorehead. Larsen testified that Moorehead was considered a
4
According to Dr.David Morgan, a psychologist retained by Moorehead to assist with this
appeal, Chimenti was referring to the " table-
S 2007," dynamic risk assessment tool. App. H at
a
4 5. Dynamic assessments ... evaluate current behaviors and attitudes in the offender that may
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be predictive of future relapse potential."App. H at 5. The advantage to dynamic assessments
is that change can be documented over time. The disadvantage is that there can be " onsiderable
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subjectivity in the assessment process."App. H at 5. For example, one rater could report that
the subject showed hostility towards women, while another could conclude the opposite.
Dynamic assessments can be contrasted with static assessments, which do not involve
subjectivity because they " se unchangeable, historical factors to predict risk."
u App. H. at 5.
5
According to the " table 2007 Tally Sheet"in the record, Moorehead's score of 12 out 26 was
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based on assessments of 13 categories.
6
The treatment file provided by Moorehead does not contain a record of another Stable
assessment. Moorehead asserts this means no other Stable assessment was actually done and
Chimenti was wrong. But Moorehead does not establish that the treatment file is complete. A
declaration cited by Moorehead in support of his assertion does not constitute competent
evidence. In the declaration, a paralegal for the firm representing Moorehead says that she called
Chimenti and was told by her that Sunset Psychological had sent all the records pertaining to
Moorehead. Chimenti's alleged statement is inadmissible hearsay and this declaration does not
adequately support his factual allegation that the treatment file is complete. See In re Pers.
Restraint ofRice, 118 Wn. d 876, 886, 828 P. 0 1086 (1992).Thus, Moorehead lacks evidence
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establishing that Chimenti was wrong.
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No. 42377 4 II
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level one sex offender, which meant that he was the least likely to reoffend. Defense counsel
asked Moorehead questions mostly related to his finances, unemployment, and difficulty paying
for treatment. This testimony supported defense counsel's argument that Moorehead was
terminated primarily for his inability to make payments.
During closing arguments, the prosecutor argued that the issue was " ot about money."
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App. E at 194. The prosecutor argued that Moorehead's SSOSA should be terminated because
Moorehead had not changed his behavior, was not amenable to treatment, and had been unable to
lower his risk factors.
Defense counsel responded in closing argument that it would be arbitrary to rely on risk
factors because Chimenti had been unable to quantify what Moorehead's level of risk was when
he began treatment. He also argued that Moorehead was terminated for his inability to pay for
treatment.
The court revoked the SSOSA. The court stated that its decision had nothing to do with
Moorehead's ability to pay for treatment, but rather with the determination that Moorehead was
not making progress. The court further noted that it typically had a " ero -
z tolerance"attitude
when it came to SSOSA violations. App. E at 203. Recognizing the two prior violations, the
court noted that it had already given Moorehead the opportunity to maintain his SSOSA.
Moorehead filed this personal restraint petition, alleging ineffective assistance of counsel.
ANALYSIS
Moorehead's ineffective assistance of counsel claim rests on two related contentions. He
contends that counsel failed to conduct a basic investigation before the revocation hearing and
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No. 42377 4 II
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that counsel should have consulted and retained an expert to testify at the hearing. His argument
fails.
The right to counsel is guaranteed at all critical stages of a criminal proceeding, including
sentencing. State v. Robinson, 153 Wn. d 689, 694, 107 P. d 90 (2005).The right to counsel
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includes the right to effective assistance of counsel. Strickland v. Washington, 466 U. . 668,
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686, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (
1984).
To obtain relief on collateral review based on a constitutional error,the petitioner must
demonstrate by a preponderance of the evidence that he was actually and substantially prejudiced
by the error. In re Pers. Restraint ofDavis, 152 Wn. d 647, 671 72, 101 P. d 1 ( 2004).A
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petitioner must present evidence showing that his factual allegations are based on more than
speculation, conjecture, or inadmissible hearsay."In re Pers. Restraint ofRice, 118 Wn. d 876,
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886, 828 P. d 1086 (1992).In a personal restraint petition, if the petitioner successfully shows
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ineffective assistance of counsel, actual and substantial prejudice has been shown. In re Pers.
Restraint of Crace, 174 Wn. d 835, 846 47,280 P. d 1102 (2012).
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To prevail on the claim of ineffective assistance of counsel, the petitioner must prove
both deficient performance and resulting prejudice. Strickland, 466 U. .at 687; Crace, 174
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Wn. d at 840. Deficient performance is performance falling below " n objective standard of
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reasonableness."Strickland, 466 U. .at 688. Judicial scrutiny of counsel's performance is
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deferential and counsel's conduct is presumed to be reasonable. Strickland, 466 U. . at 689.
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Thus, reviewing courts will make "every effort to eliminate the distorting effects of hindsight."
Rice, 118 Wn. d at 888. Prejudice is defined as "a reasonable'probability that,but for counsel's
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unprofessional errors,the result of the proceeding would have been different."Strickland, 466
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No. 42377 4 II
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U. .at 694. " reasonable probability is a probability sufficient to undermine confidence in the
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outcome."Strickland, 466 U. .at 694.
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The trial court may " evoke the suspended sentence at any time during the period of
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community custody and order execution of the sentence if.a) offender violates the
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conditions of the suspended sentence, or ( ) court finds that the offender is failing to make
b the
satisfactory progress in treatment."Former RCW 9.0) ( The State successfully
670( 4A.2004).
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moved to revoke Moore's suspended sentence on the latter ground.
In support of his contentions, Moorehead submitted a declaration from Amy Muth, an
attorney experienced in defending sexual misconduct cases. In Muth's opinion, when a client
faces potential revocation of a SSOSA based on treatment issues, it is "the practice of a
reasonably competent attorney to retain an
expert." App. I at 6 7. An attorney should also
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request a client's treatment file and review it. Additionally, an attorney should interview the
client's current treatment provider to determine why the provider is terminating treatment.
According to Muth's declaration, a reasonably competent attorney would have requested . ,
"
Moorehead's treatment file,reviewed it,and consulted with a different sex offender treatment
provider to evaluate whether ... Moorehead was high risk to reoffend, amenable to treatment,
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According to Muth's declaration, an expert should review the client's treatment file and, if
possible, interview the client to determine the following issues: 1)whether the expert agrees with
the current treatment provider's assessment of the client's progress in treatment; 2)whether the
expert believes the client is amendable to treatment; 3)whether the violation at issue merits
revocation of the SSOSA or could be addressed through treatment; 4)what is the expert's
opinion of the client's progress in treatment; 5)which outstanding treatment issues does the
client need to address; 6)whether the client's risk of reoffense is low,moderate, or high; and 7)
whether the expert would be willing to take the client into treatment in place of the current
treatment provider. We decline to establish a mandatory procedure for defending against a
SSOSA violation.
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No. 42377 4 II
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and whether the provider would be willing to accept ... Moorehead into treatment."App. I at
10 11.
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COUNSEL'S INVESTIGATION
The " resumption of counsel's competence can be overcome by a showing, among other
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things, that counsel failed to conduct appropriate investigations."State v. Thomas, 109 Wn. d
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222, 230, 743 P. d 816 (1987).
2 Moorehead asserts that his attorney failed to conduct an
adequate investigation because he did not review Moorehead's initial SSOSA evaluation and
treatment file;did not interview his treatment provider, Chimenti; and did not consult an expert.
As to substantiating what Moorehead's attorney did or did not do, Moorehead relies largely on
his own declaration. In this declaration, Moorehead states that defense counsel visited him three
times. Moorehead alleges that his counsel did not speak to him about obtaining an expert to
evaluate his case and that counsel told him that he could not interview Moorehead's treatment
provider and staff
Moorehead has not submitted a declaration from his defense counsel or Chimenti to
substantiate his contentions. Consequently, defense counsel's actions are unknown.
Moorehead's allegations concerning his counsel's investigation are speculative and his
representations as to what his attorney said are hearsay. Thus, Moorehead does not establish that
his counsel did not consult an expert. While counsel did not call an expert witness at the
revocation hearing, this does not mean that counsel did not consult one. Moorehead simply has
not provided adequate factual support to substantiate his allegation that his attorney conducted an
inadequate investigation. See Rice, 118 Wn. d at 886.
2 Consequently, we reject his argument on
this point.
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No. 42377 4 II
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DECISION NOT TO CALL AN EXPERT WITNESS
The record does establish that Moorehead's counsel did not call an expert witness,
specifically a sex offender treatment provider, in his defense at the hearing. Moorehead argues
this constituted ineffective assistance of counsel. In general, the decision whether to call a
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witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance
of counsel."State v. Maurice, 79 Wn. App. 544, 552, 903 P. d 514 (1995).However,
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depending on the nature of the charge and the issues presented, effective assistance of counsel
may require the assistance of expert witnesses to test and evaluate the evidence against the
defendant."State v. A. .168 Wn. d 91, 112, 225 P. d 956 (2010).
J., 2
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Counsel's failure to call a witness cannot constitute deficient performance if the decision
was a legitimate trial tactic. Maurice, 79 Wn. App. at 552. The State argues that Moorehead's
attorney made a legitimate tactical decision to argue that Moorehead's termination was for his
problems paying for treatment. We agree.
Having seen the written reports and knowing there had been prior violations,
Moorehead's defense counsel could have reasonably determined that the best strategy here was
to argue that his treatment termination was because he could not pay. It was reasonable for
defense counsel to conclude that this was Moorehead's strongest argument. Moorehead, who
had been unemployed since being laid off in November 2008, had difficulty paying for his
treatment. The termination report authored by Chimenti is peppered with references about
8
One of the difficulties in evaluating ineffective assistance claims is that in the absence of
testimony of trial counsel, the court has no way of knowing whether a particular strategy was
adopted after consultation with the defendant and a reasoned assessment made as to whether an
alternative strategy is more detrimental to the defendant's position — particularly if such a
strategy opens the client up to further evaluation or would require testimony by the defendant to
establish the defense.
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No. 42377 4 II
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repeated problems paying for his treatment on time. For example, an entry from March 2010
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tates that " r.Moorehead was confronted about his failure to comply with the treatment
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agreement regarding his payment. App.D at 49. Another entry from April 2010 says
Moorehead was given " wo weeks to come up with the money to pay off his balance"and was
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put on written notice that his failure to adequately address his account balance would be a basis
for terminating treatment. App. D at 49. Consistent with these entries, Chimenti admitted on
cross -examination that Moorehead could be terminated from treatment for nonpayment.
Chimenti also stated that Moorehead's inability to pay for treatment was " n issue."App. E at
a
148. Chimenti further admitted that when Moorehead was terminated he had owed a balance of
120. While counsel did not convince the court that Moorehead's difficulty in making payments
for his treatment was the true reason. or his termination, this does not mean his performance was
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deficient. Had counsel's strategy been successful, Moorehead's SOSSA could not have been
properly terminated. See former RCW 9.
670.
94A.
Even were we to decide that counsel's strategy was unreasonable and that he should have
called an expert witness at the revocation hearing, Moorehead would still have to show
prejudice. Moorehead establishes that an expert could have testified in his favor and called into
question Chimenti's assessment. Moorehead relies on a letter from Dr.David T.Morgan, a
licensed psychologist and certified sex offender treatment provider. Morgan opines that
Chimenti's conclusions on Moorehead's risk of reoffending and amenability to treatment were
flawed. However, Morgan also acknowledged that it appeared that Moorehead failed to comply
in the months before termination. And while stating that Moorehead was amendable to
treatment, Morgan acknowledged Moorehead's recent problems, stating that Moorehead would
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No. 42377-
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likely be successful "with an improved attitude and stronger commitment."App H. at 7. He
reiterated that " ith
w an improved attitude and motivation, ... Moorehead should be permitted to
resume such treatment."App. H at 7 (emphasis added).
Moorehead had also violated conditions of his SSOSA in the past. Given Moorehead's
previous violations and the apparent agreement that Moorehead had a poor attitude, was not
compliant, and lacked motivation, we are unconvinced that there is a reasonable probability that
expert testimony would have changed the result of the revocation hearing. We hold that
Moorehead fails to show that counsel was ineffective in conducting his investigation or for not
calling an expert witness and,thus, he has failed to show that he was actually and substantially
prejudiced by the alleged error. Davis, 152 Wn. d at 671 72.
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Moorehead additionally argues counsel was ineffective for failing to argue that he was
entitled to credit for the time he served on community custody before revocation of his
suspended sentence. After Moorehead filed his brief, our Supreme Court resolved this issue in
the State's favor. State v. Pannell, 173 Wn. d 222, 224, 267 P. d 349 (2011)holding that
2 3 (
defendant was not entitled to credit against his sentence for time spent in the community under a
SSOSA before his suspended sentence was revoked).Pannell is controlling. We reject
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No. 42377 4 II
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Moorehead's argument on this point. We deny the petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
0
f,r /
F rbes, J. .
T.
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We concur:
j
42
uinn-
Brintnall, J.
J hanson, J.
9 Because there are not disputed issues of fact, we do not order a reference hearing. See Rice,
118 Wn. d at 886 887.
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