FILED
AUGUST 12,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31641-6-111
) Consolidated with
Respondent, ) No. 32136-3-111
)
v. )
)
THOMAS R. LEVITON, ) UNPUBLISHED OPINION
)
Appellant. )
)
In re Personal Restraint of: )
)
THOMAS R. LEVITON, )
)
)
Petitioner. )
BROWN, J. - Thomas Ralph Leviton pleaded guilty to second degree trafficking in
stolen property and the sentencing court sentenced him based on an offender score of
5. In appeal briefs filed by his appellate counsel, Mr. Leviton requests resentencing,
contending his trial counsel gave ineffective assistance by failing to investigate the
comparability of his prior Montana convictions before he pleaded guilty. In a pro se
statement of additional grounds for review (SAG), Mr. Leviton seeks withdrawal of his
guilty plea or resentencing, contending his trial counsel gave ineffective assistance by
misinforming him of the evidence against him and failing to challenge various problems
No. 31641-6-111, consol. with No. 32136-3-111
State V. Leviton
with his offender score. In a pro se personal restraint petition (PRP), Mr. Leviton
reiterates matters addressed by his appellate counsel's brief and his SAG, while raising
additional concerns about his offender score. We disagree with all of Mr. Leviton's
contentions, and reason we can give no relief because he has completed serving his
sentence. Accordingly, we affirm and dismiss Mr. Leviton's PRP.
FACTS
On May 30, 2012, Mr. Leviton pleaded guilty to second degree trafficking in
stolen property. He signed an understanding of his criminal history, including eight
Montana convictions: two forgery convictions from 2005 and 1995, two burglary
convictions from 1993 and 1991, three convictions from 2005 and 1998 for criminal
possession of dangerous drugs, and one conviction from 1989 for fraudulently obtaining
dangerous drugs. He agreed "any out-of-state ... conviction [listed above] is the
equivalent of a Washington felony offense." Clerk's Papers (CP) at 49. Based on this
document and his discussions with his attorney, Mr. Leviton told the court he agreed he
had an offender score of 5. Mr. Leviton had no questions for the court regarding his
offender score.
Under a plea agreement, the State recommended a residential treatment-based
DOSA.1 The court ordered presentence chemical dependency evaluations that
determined Mr. Leviton met DOSA eligibility criteria. Mr. Leviton retained a new
attorney in August 2012. The court continued the sentencing hearing. Mr. Leviton
1 The drug offender sentencing alternative is an either prison-based or
residential treatment-based alternative sentence available for drug offenders in some
cases. See RCW 9.94A.660, .662, .664.
2
No. 31641-6-111, conso!. with No. 32136-3-111
State v. Le viton
moved to withdraw his guilty plea in September 2012, arguing it was not knowing,
intelligent, or voluntary, and his prior attorney rendered ineffective assistance "because
his [prior] attorney did not properly investigate his criminal history." CP at 43. The court
denied the motion, reasoning that while Mr. Leviton questioned certain irrelevant
discrepancies between listed crime dates and conviction dates, he did not challenge the
existence of his Montana convictions, and had presented no evidence that his prior
attorney misinformed him on comparability, offender score, sentencing range, or any
direct consequence of his guilty plea.
At the sentencing hearing on November 20, 2012, the State presented certified
copies of Mr. Leviton's Montana convictions and argued he had an offender score of 5.
Mr. Leviton challenged this number, partly disputing whether his Montana convictions
were "felony convictions for Washington sentencing purposes." I Report of Proceedings
(RP) at 26. The court concluded he had an offender score of 5 and sentenced him to a
residential treatment-based DOSA
When Mr. Leviton violated his sentence conditions, the State petitioned to revoke
his residential treatment-based DOSA At the revocation hearing on April 12, 2013, the
court allowed him to raise or revisit an offender score issue, the comparability of his
Montana convictions to Washington analogues. Mr. Leviton argued "the Montana
statutes are broader than the Washington statutes." RP (Apr. 12,2013) at 17. The
court granted the DOSA revocation and continued the sentencing hearing, giving the
State additional time to respond to Mr. Leviton's comparability argument.
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No. 31641-6-111, consol. with No. 32136-3-111
State v. Leviton
At the sentencing hearing on April 18, 2012, the State argued Mr. Leviton waived
his comparability argument. The court declined to reanalyze comparability, instead
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adhering to the offender score contained in Mr. Leviton's judgment and sentence.
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I Based on an offender score of 5, the court ordered Mr. Leviton to serve 17 months of
1 confinement with 118 days of credit for time served. He sought review from this court.
I ANALYSIS
The issue is whether Mr. Leviton's trial counsel gave ineffective assistance. As
reasoned below, Mr. Leviton is not entitled to the relief he seeks.
1
In his PRP, Mr. Leviton makes declarations that he expects to b~ released on
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j May 7,2014, if not sooner. This evidence comports with other documents in our record.
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On April 18, 2013, the court ordered Mr. Leviton to serve 17 months of confinement with
118 days of credit for time served. Even if he received no credit for good time, he would
I have been released on May 23, 2014.2 Mr. Leviton recognized this as a procedural
hurdle, stating: "Please be aware of the time constraints as I will not benefit from relief
I granted. Sentence expires 4/14 . ... The sentence will expire April or May 2014 and I
will receive benefit from relief no other way." PRP at 2-3. He reiterated: 'Time is of the
essence as petitioner will enjoy no relief, if granted, if the case review lingers for too
long. Petitioners sentence on which relief is sought will expire May 7,2014."
2 April 18, 2013 plus 17 months equals an end date of September 18, 2014.
TIMEANDDATE.COM, http://www.timeanddate.com/date/dateadded.html?m1=4&d1=18&y1
=2013&type=add&ay=&am=17&aw=&ad= (last visited July 29,2014). September 18,
2014 minus 118 days equals an end date of May 23,2014. TIMEANDDATE.COM, http://
www.timeanddate.com/date/dateadded.html?m1=09&d1=18&y1=2014&type=sub&ay=&
am=&aw=&ad=118 (last visited July 29,2014).
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No. 31641-6-111, consol. with No. 32136-3-111
State v. Leviton
PRP Statement of Facts & Additional Grounds at 2.
Thus, to the extent Mr. Leviton's appeal briefs, SAG, and PRP seek
resentencing, this court "can no longer provide effective relief." Orwick v. City of
Seattle, 103 Wn.2d 249,253,692 P.2d 793 (1984); In re Det. of Cross, 99 Wn.2d 373,
376-77,662 P.2d 828 (1983). This court should decline to review the moot issues
underlying those requests for relief because they do not involve "matters of continuing
and substantial public interest." Sorenson V. City of Bellingham, 80 Wn.2d 547,558,
496 P.2d 512 (1972); Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70,
73,442 P.2d 967 (1968). Because Mr. Leviton's appeal briefs seek no relief other than
resentencing, this court should dismiss them entirely.
To the extent Mr. Leviton's PRP seeks withdrawal of his guilty plea, this court
cannot provide him such relief because he no longer meets the requirements to petition
for it. This court may grant relief solely "if the petitioner is under a 'restraint. '" RAP
16.4(a). "A petitioner is under a 'restraint' if the petitioner has limited freedom because
of a court decision in a civil or criminal proceeding, the petitioner is confined, the
petitioner is subject to imminent confinement, or the petitioner is under some other
disability resulting from a judgment or sentence in a criminal case." RAP 16.4(b).
Because Mr. Leviton's PRP fails to show these restraints apply to him, this court should
dismiss it entirely.
Finally, to the extent Mr. Leviton's SAG seeks withdrawal of his guilty plea, he
fails to meet his burden of proof. This court reviews an ineffective assistance of counsel
claim de novo. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865,16 P.3d 610
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No. 31641-6-111, consol. with No. 32136-3-111
State v. Leviton
(2001). The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. McMann V. Richardson, 397 U.S. 759, 771 & n.14, 90 S. ct.
1441,25 L. Ed. 2d 763 (1970); Yarborough V. Gentry, 540 U.S. 1,5,124 S. Ct. 1, 157 L.
Ed. 2d 1 (2003). To prove counsel gave ineffective assistance, the defendant must
show "counsel's performance was deficient" and "the deficient performance prejudiced
the defense." Strickland v. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Failure to show either element defeats the claim. Id. at 697.
Deficient performance occurs if "counsel's representation fell below an objective
standard of reasonableness." Id. at 688. This standard requires "reasonableness under
prevailing professional norms" and "in light of all the circumstances." Id. at 688,690.
The defendant must overcome a "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Id. at 689. To do so, the
defendant must show counsel's performance cannot be explained as a legitimate
strategic or tactical decision. Id.
Prejudice occurs if "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at
,694. A reasonable probability of a different result exists where counsel's deficient
performance "undermine[s] confidence in the outcome." Id. The defendant "need not
show that counsel's deficient conduct more likely than not altered the outcome in the
case." Id. at 693. Instead, the defendant "has ... the burden of showing that the
decision reached would reasonably likely have been different absent the errors." Id. at
696. This standard requires evaluating the totality of the record. Id. at 695.
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1
No. 31641-6-111, consol. with No. 32136-3-111
I State v. Leviton
Mr. Leviton contends his trial counsel gave ineffective assistance by misinforming
him of the evidence against him and failing to challenge various problems with his
offender score. Mr. Leviton's concerns depend fully on matters this court may not
consider because they are outside our record. See State v. McFarland, 127 Wn.2d 322,
335,899 P.2d 1251 (1995) (stating an appellate court may not consider matters outside
its record when reviewing an ineffective assistance of counsel claim on direct appeal).
Regardless, the absence of a meaningful relationship between Mr. Leviton and his trial
counsel does not prove counsel performed deficiently or prejudiced the defense. See
Morris V. Siappy, 461 U.S. 1, 13-14,103 S. Ct. 1610,75 L. Ed. 2d 610 (1983);
Strickland, 466 U.S. at 687. Considering all, this court should conclude Mr. Leviton's
trial counsel gave effective assistance.
Affirmed and PRP is dismissed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
~(~2r
Siddoway, C.J. orsmo, J. (J
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