Opinion
No. 65686-4-I.
Filed: July 18, 2011. UNPUBLISHED OPINION.
Petition for relief from personal restraint.
Granted in part and denied in part by unpublished per curiam opinion.
Michael Tooley files this personal restraint petition claiming that he entered a guilty plea involuntarily in King County Superior Court No. 05-1-09744-9 SEA. Tooley also claims that the combined term of confinement and community custody could exceed the statutory maximum, and that trial counsel provided ineffective assistance by failing to obtain a mental health evaluation to support a diminished capacity defense.
In order to obtain collateral relief by means of a personal restraint petition, Tooley must demonstrate either an error of constitutional magnitude that gives rise to actual prejudice or a nonconstitutional error that inherently results in a "complete miscarriage of justice." In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). Tooley may challenge the voluntariness of his plea if he was misinformed of the sentencing consequences. State v. Mendoza, 157 Wn.2d 582, 587-91, 141 P.3d 49 (2006). To establish ineffective assistance, Tooley must show that counsel's performance was deficient and that prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). In the context of a guilty plea, defense counsel must "actually and substantially" assist the defendant in determining whether to plead guilty. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)).
In his first and third grounds, Tooley challenges the voluntariness of his guilty plea, contending that he was not informed in the plea agreement that the court would impose a 24 to 48 month term of community custody or include mental health evaluation and treatment as a condition. But Tooley signed a Statement of Defendant on Plea of Guilty acknowledging, "the judge will sentence me to the community custody range which is from 24 to 48 months . . . under the supervision of the Department of Corrections, and I will have restrictions and requirements placed upon me." Statement of Defendant on Plea of Guilty at 4. The Statement also refers to the attached State's Sentencing Recommendation indicating the State's recommendation that the court impose a community custody condition requiring Tooley to "obtain mental health evaluation and follow all treatment recommendations." Because the record demonstrates that Tooley was informed of the community custody term and the State's recommendation regarding conditions, his challenge to the voluntariness of his plea is frivolous.
However, Tooley also contends that the trial court lacked authority to order him to obtain a mental health evaluation and participate in treatment because it did not make findings as required under RCW 9.94A.505(9). Former RCW 9.94A.505(9), (2004), recodified as RCW 9.94B.080 (Laws of 2008, ch. 231, § 53) authorizes the imposition of such a condition only where the trial court follows certain procedures. State v. Brooks, 142 Wn. App. 842, 851, 176 P.3d 549 (2008). In particular, the trial court, after considering a presentence report prepared by the Department of Corrections and any mental status evaluations, must find reasonable grounds exist to believe that the offender suffers from a mental illness, as defined in RCW 71.24.025, which influenced the crime. State v. Jones, 118 Wn. App. 199, 202, 76 P.3d 258 (2003); Former RCW 9.94A.500(1) (2004); Former RCW 9.94A.505(9) (2004). Because the record reveals that the trial court did not order or consider a presentence report or make findings regarding the existence of reasonable grounds to believe Tooley suffered from a mental illness as defined in RCW 71.24.025 which influenced the crime, the community custody condition directing a mental health evaluation and treatment must be stricken.
In his second ground, Tooley claims that his combined term of confinement and community custody could exceed the statutory maximum in violation of RCW 9.94A.505(5). A court may not impose a sentence for which the combined total of confinement and community custody exceeds the "statutory maximum for the crime as provided in chapter 9A.20 RCW." RCW 9.94A.505(5); In re Pers. Restraint of Brooks, 166 Wn.2d 664, 668, 211 P.3d 1023 (2009); State v. Toney, 149 Wn. App. 787, 795-96, 205 P.3d 944 (2009), review denied, 169 Wn.2d 1027 (2010). For Tooley's class A felony, that statutory maximum is life imprisonment. See RCW 9A.32.050(2); 9A.20.021(1)(a). Because Tooley's combined term of confinement and community custody will not exceed that period of time, his claim is frivolous.
In his fourth ground, Tooley claims that his attorney provided ineffective assistance by advising Tooley that he could not obtain a mental health evaluation to support a diminished capacity defense because the public defender's office would not pay for it. However, Tooley offers nothing but his own self-serving claim to establish that his attorney made such a statement. Such bare assertions do not warrant relief in a personal restraint proceeding. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).
[T]he petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner's evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits, in turn, must contain matters to which the affiants may competently testify. In short, the petitioner must present evidence showing that his factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.
In re Pers. Restraint of Rice, 118 Wn.2d at 886.
Similarly, Tooley fails to demonstrate that defense counsel did not sufficiently investigate his mental health status or consult an expert. Tooley has attached defense counsel's presentence report which includes certain statements regarding Tooley's history of mental health issues and medication prescriptions. But nothing in that document establishes grounds for a diminished capacity defense. "To maintain a diminished capacity defense, a defendant must produce expert testimony demonstrating that a mental disorder, not amounting to insanity, impaired the defendant's ability to form the culpable mental state to commit the crime charged." State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). Tooley fails to provide affidavits or other evidence from any expert describing what his or her testimony would have been regarding the potential basis for a diminished capacity defense in this case, if he or she had been consulted. Tooley offers nothing more than his conclusory allegations to support his claim that defense counsel should have more thoroughly investigated a diminished capacity defense. Under these circumstances, Tooley's ineffective assistance claim fails.
In conclusion, we grant Tooley's petition in part, reversing the condition of community custody regarding mental health evaluation and treatment. We deny his remaining claims.
Granted in part.