Filed
Washington State
Court of Appeals
Division Two
July 20, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint Petition of: No. 54923-9-II
UNPUBLISHED OPINION
DONALD LEE HOGAN,
Petitioner.
MAXA, J. – Donald Hogan seeks relief from personal restraint imposed as a result of his
2018 plea of guilty to five counts of communicating with a minor for immoral purposes. We
deny Hogan’s personal restraint petition (PRP) and deny his request for appointment of counsel.
FACTS
The State charged Hogan with one count of attempted second degree child rape and eight
counts of communication with a minor for immoral purposes. Hogan ultimately pleaded guilty
to five counts of communication with a minor for immoral purposes.
Hogan later made a motion to withdraw his guilty plea. The trial court denied the
motion, stating that there was no basis to withdraw the guilty plea.
This court affirmed Hogan’s convictions on direct appeal. State v. Hogan, No. 52616-6,
slip op. at 16 (Wash. Ct. App. June 9, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2052616-6-II%20Unpublished%20Opinion.pdf.
The court addressed a number of community custody conditions, id. at 5-12, but also rejected a
No. 54923-9-II
number of arguments that Hogan raised in a statement of additional grounds (SAG). Id. at 12-
15. Hogan then filed this PRP.
ANALYSIS
A. LEGAL PRINCIPLES
We may grant relief to a petitioner who is under restraint and who can demonstrate his
restraint is unlawful. RAP 16.4; In re Pers. Restraint of Domingo-Cornelio, 196 Wn.2d 255,
262, 474 P.3d 524 (2020), cert. denied, 141 S. Ct. 1753 (2021). Under RAP 16.4(c)(2), a
restraint is unlawful when a conviction is obtained in violation of the United States Constitution
or the Washington Constitution and laws. To prevail in a PRP, a petitioner must establish (1) “a
constitutional error that resulted in actual and substantial prejudice,” or (2) “a nonconstitutional
error involving a fundamental defect that inherently results in a complete miscarriage of justice.”
In re Pers. Restraint of Dove, 196 Wn. App. 148, 154, 381 P.3d 1280 (2016).
However, “[a] PRP is not a substitute for a direct appeal, and the availability of collateral
relief is limited.” Id. at 153. “ ‘Relief by way of a collateral challenge to a conviction is
extraordinary, and the petitioner must meet a high standard before this court will disturb an
otherwise settled judgment.’ ” Id. (quoting In re Pers. Restraint of Coats, 173 Wn.2d 123, 132,
267 P.3d 324 (2011)).
A PRP may not raise an issue that already has been raised and rejected on direct appeal
unless the interests of justice require reexamining the issue. In re Pers. Restraint of Yates, 177
Wn.2d 1, 17, 296 P.3d 872 (2013). A PRP “should not simply be reiteration of issues finally
resolved at trial and direct review, but rather should raise new points of fact and law that were
not or could not have been raised in the principal action, to the prejudice of the defendant.” In re
Pers. Restraint of Gentry, 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999).
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B. ANALYSIS OF CLAIMS
First, Hogan argues he received ineffective assistance of defense counsel because counsel
lacked the necessary experience, knowledge, and motivation to represent him. But this court
considered and rejected a similar ineffective assistance of counsel claim in his direct appeal.
Hogan, No. 52616-6- II, slip op at 14-15. Unless Hogan shows that the interests of justice
require it, he cannot raise this argument again in this petition. Yates, 177 Wn.2d at 17. He
makes no such showing.
Second, Hogan argues that he was not advised that 36 months of community custody
would be imposed in his judgment and sentence. But according to the plea agreement, he agreed
to the 36-month term of community custody.
Third, Hogan argues that he was not advised when he plead guilty that he would be
required to register as a sex offender. But his guilty plea statement and his plea colloquy
informed him that his convictions would require him to register as a sex offender.
Fourth, Hogan argues that the trial court erred in denying his motion to withdraw his
guilty plea because his defense counsel was ineffective, he felt coerced, the trial court did not
establish his mental capacity to enter a guilty plea, and his plea was not knowing, intelligent, and
voluntary. As noted above, this court considered and rejected Hogan’s similar ineffective
assistance of counsel claim in his direct appeal. Hogan, No. 52616-6- II, slip op. at 14-15. He
makes no showing that the interests of justice require reconsideration of this issue. Yates, 177
Wn.2d at 17.
Regarding his other claims, there is no indication in the record that Hogan was coerced
into pleading guilty or that he lacked the mental capacity to enter a guilty plea. Hogan does not
explain why his guilty plea was not knowing, intelligent, and voluntary. And there is nothing in
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the record showing that Hogan’s plea was anything other than knowing, intelligent, and
voluntary.
Fifth, Hogan argues that the trial court did not read a six-page letter that he submitted at
sentencing, proclaiming his innocence. But the transcript shows that the court took a recess to
read the letter. The fact that the judge did not comment on the letter after the recess does not
show that the court did not read it.
Sixth, Hogan appears to argue that he received ineffective assistance of defense counsel
when she did not obtain a psychological evaluation of his seizure disorder before sentencing and
did not bring a variety of motions before sentencing. To establish ineffective assistance of
counsel, he must demonstrate that (1) defense counsel’s performance was deficient performance,
and (2) the deficient representation caused prejudice. State v. Estes, 188 Wn.2d 450, 457-58,
395 P.3d 1045 (2017). We strongly presume that defense counsel’s performance was reasonable.
Id. at 458. Hogan fails to show that defense counsel’s decisions not to accede to Hogan’s
demands constitute deficient performance or prejudiced him.
Seventh, Hogan argues that his offender score was miscalculated because two prior
convictions should have washed out. But he does not show that those convictions should have
washed out. Nor does he show any prejudice. His offender score of 14 still would have been
greater than 9, based on his four other current convictions counting three points each. And the
trial court imposed an exceptional sentence below the standard range by agreement of the parties.
Eighth, Hogan argues that the trial court abused its discretion when it did not make a
finding that he intentionally went on the internet to deliberately search for a minor with whom to
communicate for immoral purposes. But the trial judge was not required to make such a finding
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before finding him guilty of communicating with a minor for immoral purposes. Hogan’s
admissions in his plea of guilty were sufficient.
Finally, Hogan argues that he was not advised of his constitutional rights before being
interrogated and did not waive any such rights. Again, this court considered and rejected these
arguments in his direct appeal. Hogan, No. 52616-6- II, slip op. at 13. He makes no showing
that the interests of justice require reconsideration of this issue. Yates, 177 Wn.2d at 17.
CONCLUSION
Hogan does not show any grounds for relief from personal restraint. Therefore, we deny
his PRP and deny his request for appointment of counsel.
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
2.06.040, it is so ordered.
MAXA, J.
We concur:
GLASGOW, A.C.J.
VELJACIC, J.
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