Filed
Washington State
Court of Appeals
Division Two
July 5, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint Petition of: No. 46987-1-II
JAKE JOSEPH MUSGA,
UNPUBLISHED OPINION
Petitioner.
MAXA, A.C.J. – In this personal restraint petition (PRP), Jake Musga seeks freedom from
restraint imposed following his guilty pleas for first degree felony murder and first degree child
rape. Musga argues that his two defense attorneys provided ineffective assistance by failing to
(1) review various discovery documents with him, (2) conduct an adequate investigation of his
case and the State’s evidence against him, (3) adequately advise him regarding pleading guilty to
first degree murder, and (4) inform him that when he pled guilty he also stipulated to aggravating
factors that could be used to impose an exceptional sentence and that the trial court had authority
to impose an exceptional sentence. In addition, Musga argues that we should reinstate his right
to a direct appeal because the trial court failed to inform him of his right to appeal his
exceptional sentence.
After an initial review of Musga’s PRP, we entered an order remanding the petition to
superior court for a reference hearing on the second, third, and fourth ineffective assistance of
No. 46987-1-II
counsel claims identified above.1 We directed the superior court to enter all findings of fact
necessary to address whether defense counsel’s representation was deficient in one of the ways
Musga asserted and, if the representation was deficient, whether Musga was prejudiced with
regard to his decision to plead guilty and/or his sentencing.
The superior court conducted a reference hearing. Following the hearing, the superior
court entered extensive findings of fact stating that Musga did not prove by a preponderance of
the evidence that defense counsel was deficient in any of the three ways claimed or that any of
the claimed deficiencies caused prejudice. Musga now argues that substantial evidence does not
support the trial court’s findings.
We hold that (1) Musga did not establish a prima facie case that he was prejudiced by his
defense counsel’s failure to provide him with discovery documents; (2) Musga did not establish
that he received ineffective assistance of counsel because substantial evidence supports the
superior court’s findings that Musga failed to prove that defense counsel (a) inadequately
investigated Musga’s case, (b) did not adequately advise him regarding pleading guilty to first
degree murder and (c) did not explain to him the consequences of pleading guilty with regard to
an exceptional sentence; and (3) Musga did not demonstrate that his right to direct appeal should
be reinstated.
Accordingly, we dismiss Musga’s PRP.
1
In our reference hearing order, we stated that Musga failed to demonstrate a prima facie case of
prejudice regarding the first ineffective assistance of counsel claim and therefore that the
superior court did not need to address it.
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FACTS
Musga’s Arrest and Charging
In March 2013, police responded to a 911 call related to the death of CC, a 2-year-old
boy. Musga had been dating CC’s mother, Laura Colley, and was alone watching CC that
evening. An investigation produced evidence indicating that Musga anally raped CC with a
foreign object and beat him, causing CC’s death. Musga was arrested and charged with first
degree felony murder and first degree child rape.
The charging information also included several aggravating circumstances. Relating to
the felony murder charge, the information stated that Musga knew or should have known that CC
was particularly vulnerable or incapable of resisting under RCW 9.94A.535(3)(b), that Musga’s
conduct manifested deliberate cruelty under RCW 9.94A.535(3)(a), and that CC’s injuries
substantially exceeded the level of harm necessary to satisfy the offense’s elements under RCW
9.94A.535(3)(y). Relating to the rape charge, the information included aggravators for deliberate
cruelty and CC’s vulnerability.
Musga’s parents retained attorneys Keith Hall and Richard Warner to represent Musga
and to provide all services reasonably necessary to his defense, including “pre-charge
investigation and representation from arraignment through trial or other resolution upon payment
for those services.” PRP App. D ¶ 1.
Musga’s Guilty Plea and Sentencing
On August 13, 2013, the State communicated a plea offer to Musga’s attorneys that
would allow Musga to plead guilty as charged. The State indicated that if Musga declined the
offer, it would amend his charge to first degree murder with aggravating circumstances, for
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which the sentence would be either be death or life imprisonment without the possibility of
release or parole. The offer expired on August 30. The State informed Musga’s attorneys that it
would not accept an Alford2 plea and would instead require Musga to submit a factual statement
of guilt. Musga told his attorneys on August 29 that he wanted to accept the offer.
Musga’s guilty plea was expressed in two documents titled Statement of Defendant on
Plea of Guilty, one for each count. Musga reviewed these statements with Warner and Hall, with
Warner reading the applicable paragraphs out loud to Musga.
The guilty plea statements provided that Musga would plead guilty to murder and child
rape. The statements did not expressly state that any aggravating factors applied, but Musga did
plead guilty to the counts as charged in the information. And paragraph 6(g) of both statements,
concerning the State’s sentencing recommendation, stated “Open recommendation – State
seeking exceptional.” PRP App. B at 4, App. C at 5. Paragraph 6(h) of each document also
stated that the trial court had the authority to impose an exceptional sentence under certain listed
circumstances.
Paragraph 11 of each statement required Musga to complete a written factual account of
the charged crimes. Warner wrote in the language before reviewing the statements with Musga.
The account in both statements admitted to the factual basis for each charge. The accounts also
included language to support the charged aggravating factors, stating that Musga’s actions were
deliberately cruel, that CC could not resist because of his age, and for the murder charge that
CC’s injuries substantially exceeded the bodily harm necessary to satisfy the elements of the
2
N. Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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No. 46987-1-II
offense. After reviewing them, Musga initialed both accounts and signed both statements. He
then entered his guilty plea in a hearing before the superior court.
At sentencing, the superior court noted that Musga had stipulated that there were
aggravating circumstances justifying a departure from the standard sentence ranges of 261 to 347
months for felony murder and 111 months to life for first degree child rape. Musga requested a
300 month sentence; the State recommended a sentence of 720 months. The court sentenced
Musga to concurrent exceptional sentences of 608 months for first degree felony murder and 258
months to life for first degree child rape.
Reference Hearing and Findings of Fact
Musga did not directly appeal his sentence, but later filed this PRP. After an initial
review, we determined that Musga had established a prima facie showing that his attorneys
provided inadequate assistance of counsel on several issues. We then remanded for the superior
court to conduct a reference hearing.
The superior court conducted a lengthy reference hearing during the period between
October 12 and December 7, 2016. Following the hearing, the superior court entered extensive
findings of fact. The court found:
1. “[Musga] failed to prove by a preponderance of the evidence that trial counsel
inadequately investigated his case and the State’s evidence against him under the
specific circumstances of his case.” Clerk’s Papers (CP) at 35.
2. “[Musga] failed to prove trial counsel failed to adequately advise him regarding
pleading to first degree murder.” CP at 42.
3. “Credible evidence adduced through Mr. Warner, Mr. Hall, the plea documents,
and plea hearing establish Petitioner was adequately informed of the consequences
of his pleas and that the facts admitted in his pleas empowered the trial court to
impose an exceptional sentence.” CP at 47.
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The court also found that Musga failed to prove prejudice from any of the three ineffective
assistance of counsel claims.
We now review Musga’s PRP, as supplemented by the superior court’s findings of fact.
ANALYSIS
A. LEGAL PRINCIPLES
1. PRPs and Ineffective Assistance of Counsel
To be entitled to collateral relief, a petitioner must establish either that (1) he was actually
and substantially prejudiced by a constitutional error or (2) there was a fundamental defect of a
nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re Pers.
Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). In the typical case, the
petitioner must make either showing by a preponderance of the evidence. In re Pers. Restraint of
Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).
PRPs involving ineffective assistance of counsel involve a slightly different standard.
Ineffective assistance of counsel is a constitutional error, arising from the Sixth Amendment to
the United States Constitution and article I, section 22 of the Washington Constitution. State v.
Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective assistance of
counsel claim, the defendant must show both that (1) defense counsel’s representation was
deficient and (2) the deficient representation prejudiced the defendant. Id. at 32-33.
Representation is deficient if, after considering all the circumstances, it falls below an objective
standard of reasonableness. Id. at 33. A petitioner alleging ineffective assistance of counsel
must overcome a strong presumption that counsel’s performance was reasonable. Id. Prejudice
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No. 46987-1-II
occurs when there is a reasonable probability that, but for counsel’s errors, the outcome of the
proceedings would have been different. Id. at 34.
The reasonable probability standard for prejudice in an ineffective assistance of counsel
claim is not precisely the same as the actual and substantial prejudice standard in a PRP. In re
Pers. Restraint of Crace, 174 Wn.2d 835, 842, 280 P.3d 1102 (2012). However, the Supreme
Court has held that a petitioner who presents a successful ineffective assistance of counsel claim
necessarily establishes actual and substantial prejudice for purposes of collateral relief. Id. at
846-47.
2. PRP Mechanics
We have three options when reviewing a PRP: (1) dismiss the petition, (2) grant the
petition, or (3) transfer the petition to the trial court for either a full determination on the merits
or a reference hearing. Yates, 177 Wn.2d at 17. The threshold question for an alleged
constitutional violation is whether the petitioner has made a prima facie case that a violation
occurred and that it resulted in actual prejudice. Id. at 17-18. If a petitioner fails to make a
prima facie showing of actual prejudice, we will dismiss the claim. Id. at 17. If the petitioner
establishes that a constitutional violation and actual prejudice occurred, we will grant the
petition. Id. at 18. If a petitioner makes a prima facie showing but we cannot determine the
petition’s merits on the record, we will remand for a reference hearing. Id.
To make a prima facie showing, the petitioner must present the evidence that is available
to support the factual allegations underlying the claim of unlawful constraint. Id. A petition
must state with particularity facts that, if proven, would entitle the petitioner to relief – bald
assertions and conclusory allegations are not enough. In re Pers. Restraint of Caldellis, 187
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No. 46987-1-II
Wn.2d 127, 146, 385 P.3d 135 (2016). If the petitioner’s allegations are based on matters
outside the existing record, he must demonstrate that he has competent, admissible evidence
supporting the allegations. Yates, 177 Wn.2d at 18. If the evidence is based on knowledge in the
possession of others, the petitioner must present their affidavits, with admissible statements, or
other corroborative evidence. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488, 251
P.3d 884 (2010). Factual allegations must be based on more than speculation, conjecture, or
inadmissible hearsay. Id. at 489.
3. Review of Reference Hearing Findings
In a reference hearing, the petitioner has the burden to prove a constitutional error and
actual prejudice by a preponderance of the evidence. In re Pers. Restraint of Davis, 152 Wn.2d
647, 679, 101 P.3d 1 (2004). A superior court’s factual findings made after conducting a
reference hearing will stand if they are supported by substantial evidence. In re Pers. Restraint
of Stenson, 174 Wn.2d 474, 488, 276 P.3d 286 (2012). Substantial evidence exists when the
record contains a sufficient quantity of evidence to persuade a fair-minded, rational person that
the finding is true. Davis, 152 Wn.2d at 679-80. Unchallenged findings are verities on appeal.
Id. at 679.
A trial court’s conclusions regarding witness credibility cannot be reviewed on appeal,
even if the evidence is subject to other reasonable interpretations. Id. at 680.
B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Musga argues that his defense counsel provided ineffective assistance of counsel because
his two defense attorneys failed to (1) review various discovery documents with him, (2) conduct
an adequate investigation of his case and the State’s evidence against him, (3) adequately advise
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No. 46987-1-II
him regarding pleading guilty to first degree murder, and (4) inform him that when he pleaded
guilty he also stipulated to aggravating factors that could be used to impose an exceptional
upward sentence on both charges and that the trial court therefore had authority to impose an
exceptional upward sentence. Musga argues that because of these alleged deficiencies, we must
allow him to withdraw his guilty plea or remand his case for resentencing. We hold that Musga
has failed to demonstrate that his defense counsel provided ineffective assistance in any of these
areas.
1. Failure to Discuss Discovery Documents
Musga argues that his defense counsel provided ineffective assistance of counsel by
failing to review certain discovery documents with him. We hold that Musga has not made a
prima facie showing on this issue.
Musga submitted only his own declaration as evidence that his defense counsel failed to
show him relevant case discovery. Musga’s declaration states that his attorneys showed him
CC’s autopsy photographs, the 911 call transcript, and Laura Colley’s Facebook friends. The
declaration states that Musga’s attorneys failed to provide him with the police reports, witness
statements, or autopsy reports on the child victim. Musga states that had he been able to review
the discovery, he could have provided ideas to his attorney for investigations to assist with his
case.
Even if we assume without deciding that the conduct of Musga’s attorneys was deficient,
we hold that Musga has failed to demonstrate prejudice on this ground. Although Musga argues
that he could have assisted his attorneys’ investigation, he does not demonstrate or even argue
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No. 46987-1-II
that the outcome of his case would have been different. See Grier, 171 Wn.2d at 34.
Accordingly, we hold that Musga is not entitled to relief on this basis.
2. Failure to Conduct an Adequate Investigation
Musga argues that his defense counsel provided ineffective assistance by failing to
conduct an adequate investigation into his case and the State’s evidence against him.
Specifically, Musga alleges three deficiencies, arguing that his attorneys should have (1)
consulted with a medical expert to evaluate CC’s medical reports and autopsy reports to
determine whether CC suffered injuries before March 29; (2) interviewed CC’s mother and
grandmother, as well as other members of the victim’s extended family, to investigate when
CC’s bruising occurred; and (3) interviewed other key witnesses, including first responders, the
medical examiner, key police officers, on-scene forensic personnel, interviewing officers, scene
residents, a resident who was present in Musga’s lobby, and other medical personnel, to further
test the State’s evidence. Musga argues that this deficient investigation prevented defense
counsel from advising him regarding his decision to plead guilty, such that he entered a guilty
plea that was not knowing, intelligent, and voluntary. We disagree.
a. Legal Principles
A defense attorney’s failure to investigate, when combined with other deficiencies, can
amount to ineffective assistance of counsel. State v. A.N.J., 168 Wn.2d 91, 110, 225 P.3d 956
(2010). Counsel has a duty to conduct a reasonable investigation under prevailing professional
norms. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 252, 172 P.3d 335 (2007). This duty
includes making reasonable investigations or to making a reasonable decision rendering
particular investigations unnecessary. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 355, 325
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No. 46987-1-II
P.3d 142 (2014). An investigation must allow counsel to make informed decisions about
representing the defendant, for example by investigating reasonable lines of defense. Elmore,
162 Wn.2d at 253. However, “[t]he degree and extent of investigation required will vary
depending upon the issues and facts of each case.” A.N.J., 168 Wn.2d at 111. “In any
ineffectiveness claim, a particular decision not to investigate must be directly assessed for
reasonableness, giving great deference to counsel’s judgments.” Elmore, 162 Wn.2d at 252.
The obligation to conduct a reasonable investigation relates to trial counsel’s obligation
to inform his or her client. Counsel has a duty to assist a defendant in evaluating a plea offer.
A.N.J., 168 Wn.2d at 111. This duty includes assisting the defendant in making an informed
decision about whether to plead guilty or to proceed to trial. Id. “[A]t the very least, counsel
must reasonably evaluate the evidence against the accused and the likelihood of a conviction if
the case proceeds to trial so that the defendant can make a meaningful decision as to whether or
not to plead guilty.” Id. at 111-12.
Whether counsel’s failure to investigate prejudiced the petitioner depends on the
likelihood that the evidence would have led counsel to change his plea recommendation. In re
Pers. Restraint of Clements, 125 Wn. App. 634, 646, 106 P.3d 244 (2005). That assessment
depends on whether the evidence likely would have changed the outcome of a trial. Id. A bare
assertion that the petitioner would not have pleaded guilty but for the alleged deficiency is
insufficient. Elmore, 162 Wn.2d at 254.
b. Superior Court Finding of Adequate Investigation
Here, the superior court entered a finding of fact that Musga “failed to prove by a
preponderance of the evidence that trial counsel inadequately investigated his case and the
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No. 46987-1-II
State’s evidence against him under the specific circumstances of his case.” CP at 35. The
superior court specifically noted that the relevant circumstances included the timing of the
State’s offer early in the investigation period and the State’s notice that it planned to amend
Musga’s charges if he declined the offer. If substantial evidence supports the court’s finding,
Musga’s ineffective assistance of counsel claim based on an inadequate investigation necessarily
fails.
The superior court based its finding on a lengthy list of investigatory activities that it
found Musga’s attorneys took before Musga entered his guilty plea. We review whether these
activities occurred for substantial evidence. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873,
16 P.3d 601 (2001). But the ultimate question of whether those activities constitute ineffective
assistance is a mixed question of law and fact that we decide de novo. Id. at 873-74.
The superior court made several findings that Musga does not challenge. These include
findings that Musga’s attorneys (1) filed a discovery demand and persistently followed up on that
demand; (2) obtained records of CC’s pre-incident medical treatment; (3) gathered information
about Musga from Musga himself and from his mother and followed up on that information by
locating records from his prior drug treatment for the purpose of evaluating a mental health
defense; (4) independently contacted the state medical examiner’s office to obtain an autopsy
report for CC, intending to provide their own examiner with additional information that might
inform potential defenses; (5) investigated the initial 911 caller and determined that he knew
CC’s mother based on social media connections; and (6) retained a private investigator, who
prepared a timeline of events material to the State’s case.
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No. 46987-1-II
For a number of the court’s other findings, it is not entirely clear what Musga contests
and what he accepts. It appears that Musga does not contest that his attorneys (1) discussed with
a medical expert the expert’s conclusion about when CC’s injuries occurred; (2) identified that
Musga, while detained, had talked with another inmate and divulged information relevant to his
case that could be potentially damaging and discussed this with Musga; (3) reviewed Musga’s
case and relevant evidence with him for approximately 30 hours; and (4) delayed interviewing
any witnesses in order to collect as much evidence as possible before beginning the interview
process, resulting in no witness interviews occurring before Musga’s plea. We therefore treat
these findings as verities.
Musga expressly contests three of the superior court’s findings. First, the superior court
found that Musga’s attorneys reviewed and discussed with him the State’s charging documents
before entering a plea. Musga argues that his trial counsel did not have the charging documents
available at his plea and did not explain that he was pleading guilty to aggravating factors or the
effect they would have on his sentence. However, Warner testified that he reviewed the State’s
charging information with Musga on at least two occasions – one occurred when Warner first
met Musga, the other when they discussed the plea bargain. Warner specifically testified that he
distinguished the base charge and aggravating factors, and noted how the alleged aggravating
factors would allow the court to impose an exceptional sentence. We hold that substantial
evidence supports the superior court’s finding.
Second, the superior court found that Musga’s attorneys had informed him of the State’s
evidence against him and that they went over the substance of that evidence together. Musga
argues, without citation to the record, that his attorneys did not review “all or even most of the
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No. 46987-1-II
discovery” with him. Suppl. Br. of Pet’r at 73. But Warner testified that he reviewed with
Musga the State’s evidence, which included the crime scene photographs and the nature of CC’s
injuries. Warner testified that he and Hall shared with Musga as much discovery as Musga was
comfortable with, omitting some photographs that Musga indicated he did not want to see. We
hold that substantial evidence supports the superior court’s finding.
Third, the superior court found that the evidence placed Musga alone with CC when the
child’s injuries occurred. The court found that this evidence directed the investigation conducted
by Musga’s attorneys away from interviewing witnesses and towards reviewing medical
evidence. Musga disagrees with this finding, but he makes only an unsupported statement that it
is “simply incorrect.” Suppl. Br. of Pet’r at 72. This statement is insufficient. See In re Estates
of Palmer, 145 Wn. App. 249, 265, 187 P.3d 758 (2008) (requiring record support for factual
statements). In any event, in multiple conversations – both to police who arrived after CC’s
injuries occurred and in an interview at the police station – Musga provided a timeline of his
activities with CC from when CC’s mother left until when the police arrived. Musga stated at
that time that no one else had been with him and CC when CC’s injuries occurred. We hold that
substantial evidence supports the superior court’s finding.
c. Ineffective Assistance Analysis
To demonstrate that his attorneys’ investigation was constitutionally ineffective, Musga
must show that the investigation was unreasonable under the circumstances. Elmore, 162 Wn.2d
at 252.
The superior court found that Musga’s attorneys completed a significant number of
investigatory tasks in the period leading up to the State’s offer. His attorneys collected a
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substantial amount of discovery and persistently followed up throughout the discovery process,
they retained a medical examiner and private investigator, they identified potential defenses, and
they spent significant time reviewing Musga’s case with him. The court further found that
Musga’s attorneys focused on certain aspects of the case that they thought would yield the best
results, specifically by targeting medical evidence instead of conducting interviews.
Musga argues that his attorneys’ failure to conduct interviews prevented them from
understanding his case and providing adequate assistance. But he does not explain how, under
the circumstances, their decision to prioritize certain elements over others was deficient.
Warner testified that they did not want to begin interviewing witnesses until they
compiled evidence and understood the case as fully as possible. Warner testified that this was a
strategic decision that would allow them to ask interview questions with more contextual
understanding as well as provide them with background that they could use to impeach or
corroborate answers. Having an adequate background understanding was especially important
because Warner believed he would have only one opportunity to interview each witness.
The superior court found that “[c]ounsel credibly stated they were waiting to conduct
interviews until they had as much of the available information as possible to inform the
interviews in case they were not permitted multiple interviews before trial. That approach was
not proved deficient.” CP at 39. The trial court also found that Musga had not proved that the
failure to conduct witness interviews was deficient under the circumstances.
In addition, it is uncontroverted that the State’s plea offer, coupled with a quick deadline
and a threat to amend Musga’s charges, cut short any further investigation. Based on their
shortened timeframe, Musga’s attorneys made a strategic decision about where to focus their
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time. The superior court found that “[t]he strategy to postpone interviews was not made
deficient by the timing and deadline of the plea offer.” CP at 39.
Warner articulated clear reasons for delaying interviews and focusing instead on other
aspects of the investigation. Defense counsel’s strategic, judgment-based decisions in that regard
are entitled to a strong presumption of validity. Elmore, 162 Wn.2d at 252. Further, the superior
court’s findings show that Warner and Hall had already begun compiling a case – gathering
information, identifying potential defenses, and retaining experts – before learning of the State’s
plea offer. That they did not have the opportunity to conduct any interviews does not mean their
investigation was inadequate. We therefore hold that substantial evidence supports the superior
court’s finding that defense counsel did not deficiently investigate Musga’s case.
Because the superior court’s reference hearing findings are supported by substantial
evidence, we hold that Musga’s attorneys did not provide ineffective assistance regarding their
investigation of Musga’s case.
3. Failure to Adequately Advise Regarding Guilty Plea
Musga argues that his defense counsel provided ineffective assistance by not
substantially assisting him in his decision to plead guilty. Musga specifically argues that his
attorneys did not review discovery with him, spent insufficient time reviewing the case with him,
placed undue pressure on him by informing him that if he did not plead guilty the State would
amend his charge to aggravated murder and possibly seek the death penalty, and failed to advise
him that the State’s ability to prove Musga committed aggravated murder was weak at best. We
disagree.
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No. 46987-1-II
a. Legal Principles
Due process requires that a guilty plea be knowing, voluntary, and intelligent. In re Pers.
Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A guilty plea is involuntary and
invalid if the record shows that the defendant was coerced into accepting it. State v. Williams,
117 Wn. App. 390, 398, 71 P.3d 686 (2003).
The right to effective assistance of counsel applies in the plea bargaining context. State
v. Estes, No. 93143-7, slip op. at 15 (Wash. June 8, 2017), http://www.courts.wa.gov/opinions/
pdf/931437.pdf. Effective assistance includes assisting the defendant in making an informed
decision to accept or reject a plea offer. Id. Counsel therefore must communicate plea offers,
discuss plea negotiations, and review the strengths and weaknesses of the defendant’s case. State
v. Edwards, 171 Wn. App. 379, 394, 294 P.3d 708 (2012). This process is intended to inform the
defendant of what to expect and allow him to make an informed decision on whether to plead
guilty. Id.
To demonstrate ineffective assistance, the defendant must therefore show that counsel
failed to substantially assist him in deciding whether to plead guilty. In re Pers. Restraint of
Cross, 180 Wn.2d 664, 705-06, 327 P.3d 660 (2014). He must also show that, but for counsel’s
failure to properly advise him, he would not have pleaded guilty. Id.
b. Superior Court Finding of Adequate Advice
The superior court entered a finding of fact that Musga “failed to prove trial counsel
failed to adequately advise him regarding pleading guilty to first degree murder.” CP at 42. If
substantial evidence supports the court’s finding, Musga’s ineffective assistance of counsel claim
based on inadequate advice regarding pleading guilty necessarily fails.
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No. 46987-1-II
The superior court based its finding both on the testimony of Musga’s attorneys and on
Musga’s own representations at his plea hearing. The court found that defense counsel provided
substantial assistance and the information Musga needed to make an informed plea decision in
three ways.
First, the court found that defense counsel explained the charges, aggravating factors, and
the elements the State had to prove to convict Musga. Warner testified that he reviewed the
State’s charging information with Musga on at least two occasions. When Warner first met
Musga, their review included going over the State’s charging document. Warner distinguished
the base charge and aggravating factors, noting how the aggravators would allow the court to
impose an exceptional sentence. The second occasion came when they reviewed the plea offer,
at which point Warner again explained to Musga the difference between the base offense and
aggravating factors. Warner specifically stated that even though the charges were associated
with a standard range, an exceptional sentence could allow the court to impose a sentence above
that range. We hold that substantial evidence supports the superior court’s finding.
Second, the court found that defense counsel explained the evidence against Musga and
the strength of his case. We discussed above what Musga’s attorneys shared with him about the
strength of his case. Warner testified that he reviewed with Musga as much discovery as Musga
was comfortable with. This review included the State’s evidence, which included the crime
scene photographs and the nature of CC’s injuries. Further, they discussed statements that
Musga had made to another inmate about his previous interactions with CC. We hold that
substantial evidence supports the superior court’s finding.
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No. 46987-1-II
Third, the court found that defense counsel explained the plea documents and the impact
of his plea. Warner testified that he reviewed with Musga the details of Musga’s plea documents
and the effect a plea would have. At their initial meeting, Warner told Musga what the State had
to prove and explained that the State’s burden was to prove each element beyond a reasonable
doubt. They also discussed that the case could be resolved through a trial or by a plea. When
Musga decided to plead guilty, Warner testified that he went through with Musga each
applicable paragraph of the plea statements, including Musga’s rights and the consequences of
Musga’s plea. Part of those statements was a factual account, which Warner explained included
language that would allow the court to impose an exceptional sentence. Warner also told Musga
that the plea could result in an exceptional upward sentence. We hold that substantial evidence
supports the superior court’s finding.
Warner’s testimony provides substantial evidence to support a finding that he and Hall
adequately advised Musga about pleading guilty. Further supporting the superior court’s
conclusion, Musga confirmed at his plea hearing that he reviewed the plea with his attorneys and
that he understood the effect it would have. The court concluded that Warner’s testimony,
combined with Musga’s acknowledgement of his understanding, credibly established that Musga
understood the impact of his guilty plea.
The superior court also found that Musga’s reference hearing testimony and arguments
were not credible. Musga testified that he lacked sufficient time to consider the State’s plea
offer, that he did not understand his plea statements, that his attorneys failed to negotiate to
obtain a better plea deal, and that he felt coerced into pleading guilty. In several instances,
Musga’s testimony directly conflicted with Warner’s. For example, Musga testified that he did
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No. 46987-1-II
not receive any indication of a plea offer until August 29, one day before the offer expired. The
superior court expressly discounted as not credible this testimony and Musga’s testimony that he
did not understand his plea statement. We cannot review and must accept the superior court’s
conclusion on Musga’s credibility. Davis, 152 Wn.2d at 680.
The superior court similarly found that Musga’s argument that he was coerced into
pleading guilty was not credible. This finding is supported by substantial evidence, primarily
through testimony by Musga’s attorneys and corroborated by Musga’s mother. Warner stated
that it was possible the State could successfully amend Musga’s charges, but he testified that he
did not see any evidence of premeditation, an element of aggravated murder. Further, Hall
testified that he did not believe the State would pursue the death penalty, which he would have
relayed to Musga. Testimony at the reference hearing showed that Warner and Hall told Musga
that if the State amended Musga’s charges a death sentence was a possible but unlikely outcome.
c. Ineffective Assistance Analysis
To demonstrate that he received ineffective assistance, Musga must show that his
attorneys failed to actually and substantially assist him when deciding whether to plead guilty.
Edwards, 171 Wn. App. at 394. An attorney substantially assists his client by empowering the
client to make an informed decision. Id.
The superior court found that Musga’s attorneys provided sufficient advice to Musga.
This advice included informing Musga of the charged offenses and aggravating factors,
reviewing with Musga the strength of his case, and walking Musga through the effect of a guilty
plea. These findings are supported by substantial evidence and show that Musga’s attorneys
provided effective assistance.
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No. 46987-1-II
Because the superior court’s reference hearing findings are supported by substantial
evidence, we hold that Musga’s attorneys substantially assisted him in his decision to plead
guilty and therefore did not provide ineffective assistance.
4. Failure to Explain Stipulation to Aggravating Factors
Musga argues that his guilty plea was involuntary because his defense counsel failed to
explain to him the plea’s direct consequences. Specifically, he argues that he was not informed
that his guilty plea included stipulated facts that would allow the superior court to impose an
exceptional sentence above the standard range.3 We disagree.
a. Legal Principles
As we addressed above, a defendant receives ineffective assistance when his counsel fails
to assist him in deciding whether to plead guilty. Estes, No. 93143-7, slip op. at 15. The
attorney’s obligation to substantially assist includes a requirement that, before the defendant
accepts a plea, the attorney inform him of the plea’s direct consequences. A.N.J., 168 Wn.2d at
113. One direct consequence is the maximum sentence to which a defendant will be exposed.
State v. Knotek, 136 Wn. App. 412, 423, 149 P.3d 676 (2006). A plea based on misinformation
of sentencing consequences is not entered knowingly and is invalid. Id. The petitioner must
show that, but for counsel’s failure, he would not have pleaded guilty. Cross, 180 Wn.2d at 705-
06.
3
Musga’s PRP vaguely suggests that he did not stipulate to facts supporting the aggravating
factors. However, because Musga presents no argument on this issue, we do not consider it.
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No. 46987-1-II
b. Superior Court Finding Regarding Plea Consequences
The superior court entered a finding of fact that Musga was “adequately informed of the
consequences of his pleas and that the facts admitted in his pleas empowered the trial court to
impose an exceptional sentence.” CP at 47. If substantial evidence supports the court’s finding,
Musga’s ineffective assistance of counsel claim based on an inadequate information regarding
plea consequences necessarily fails.
Musga’s supplemental brief does not have a section heading for this question and he does
not expressly challenge this finding, which would typically result in it becoming a verity on
appeal. Davis, 152 Wn.2d at 679. However, the last few pages of the brief seem to address this
issue. Because he makes a vague argument that he lacked an adequate understanding of his
plea’s consequences, and because he challenges the superior court’s findings on whether he was
adequately advised about his plea, we will consider whether the record supports the superior
court’s findings.
The superior court made two findings relevant to whether Musga received sufficient
information from his defense attorneys. First, the court found that Musga’s attorneys informed
him of the aggravating factors filed by the State. Warner testified that he reviewed the State’s
charging information with Musga at their first meeting. The information itself distinguished the
charged crimes from the alleged aggravating factors. As discussed above, Warner testified that
on multiple occasions he reviewed with Musga the difference between the charged base offenses
and the aggravating factors and how those factors would allow the court to impose an
exceptional sentence above the standard range. We hold that substantial evidence supports the
superior court’s finding.
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No. 46987-1-II
Second, the court found that Musga’s attorneys informed him that by acknowledging the
facts of the crimes as listed in paragraph 11 of the plea statements, he would be admitting to facts
sufficient for the court to impose an exceptional sentence. At the reference hearing, Warner
testified that he explained to Musga that the factual account included language that would allow
the court to impose an exceptional sentence:
I believe I said here are the facts that the judge could rely upon if the court were
inclined to impose an exceptional sentence. The State is going to ask for an
exceptional sentence. We are going to ask for a standard range sentence, but the
decision will ultimately be the court’s.
Report of Proceedings (RP) at 292. Warner’s testimony matches an interrogatory answer he sent
to the State before the reference hearing, which stated that Warner told Musga that his admission
of what happened, in itself, would be sufficient for the State to seek an exceptional sentence.
In addition, two independent sources confirmed Musga’s understanding. One was a
presentencing investigator, who testified about his interview with Musga. The investigator
testified that Musga had stated that “he [Musga] thought the sentence the prosecutor was
proposing was long and it was exceptional.” RP at 1507. Musga told him that the prosecutors
“were asking for between about 40 and 60 years.” RP at 1507. The second was Musga’s
psychiatric evaluation, which included a comment by Musga that “they’re trying to give me 60
years.” PRP Appendix dd. We hold that substantial evidence supports the superior court’s
finding.
c. Ineffective Assistance Analysis
To demonstrate that he received ineffective assistance on this issue, Musga must
demonstrate that his attorneys did not substantially assist him in that they did not inform him of
the direct consequences of his plea. A.N.J., 168 Wn.2d at 113.
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No. 46987-1-II
The superior court found that Musga’s attorneys informed him of the possibility of an
exceptional sentence. Warner testified that he reviewed with Musga the State’s charging
information, which distinguished the base offense from any aggravating factors, on multiple
occasions. Warner further testified that he explained how the aggravating factors could allow the
superior court to impose an exceptional upward sentence when reviewing both the charging
information and Musga’s plea statement. Finally, Warner testified that he told Musga that the
plea statement’s factual account admitted to facts that satisfied the aggravating factors. This
testimony establishes that Musga knew the contents of his plea and the direct consequences of
that plea.
Further, Musga confirmed that he understood the consequences of his plea to two third
parties. During his pre-sentencing interview and in a psychological evaluation, Musga stated
that he thought the State would ask for a sentence far above the standard range.
Because the superior court’s reference hearing findings are supported by substantial
evidence, we hold that Musga’s attorneys did not provide ineffective assistance by failing to
inform him of the direct consequences of his plea.
5. Remaining Ineffective Assistance Arguments
In one sentence in his PRP, Musga argues that his defense counsel’s performance was
deficient because they failed to prepare Musga for the mandatory presentence interview, required
Musga to undergo a psychological examination without notice or explanation, shared the
unfavorable results of the psychological examination with the sentencing court, and failed to
provide Musga with an opportunity to read the presentence report prior to sentencing. However,
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No. 46987-1-II
Musga presents no additional argument or citation to authority on these claims. Therefore, we
do not address these claims.
C. FAILURE TO INFORM OF RIGHT TO DIRECT APPEAL
Musga argues that we should reinstate his right to a direct appeal because the superior
court failed to advise him of his right to appeal his exceptional sentence. The State argues that
Musga was properly advised. We agree with the State.
Article I, section 22 of the Washington Constitution guarantees criminal defendants the
right to appeal. State v. Cater, 186 Wn. App. 384, 392, 345 P.3d 843 (2015). It is the State’s
burden to demonstrate that the defendant understood his right to appeal and chose not to exercise
it. Id. The State must make an affirmative showing that the defendant understood and chose not
to exercise his right to appeal. Id. Circumstances must reasonably allow for an inference that
the defendant knowingly relinquished his right to appeal. Id.
Defendants who plead guilty retain a limited right to appeal certain collateral questions.
Id. Defendants who plead guilty also retain the right to appeal the imposition of an exceptional
sentence. See RCW 9.94A.585(2).
Here, evidence produced by the State establishes that Musga knowingly relinquished his
right to a direct appeal. On November 21, 2013, Musga, his attorney, and the superior court
signed a document titled, “Advice of Right to Appeal.” Resp’t App. Z. This document informed
Musga that he had “a right to appeal any sentence that is outside the standard sentence range”
and “[u]nless a notice of appeal is filed with the clerk of the court within thirty (30) days from
the entry of judgment . . . you have irrevocably waived your right of appeal.” Resp’t App. Z.
Musga’s signature demonstrates his awareness of his limited right to appeal.
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No. 46987-1-II
By failing to file an appeal within 30 days after the superior court entered judgment,
Musga waived his right to directly appeal his exceptional sentence. Accordingly, we reject this
argument.
CONCLUSION
We dismiss Musga’s PRP.
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, A.C.J.
We concur:
MELNICK, J.
SUTTON, J.
26