Opinion
No. 52439-9-I, Consol. with No. 53977-9-I)
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-01630-2. Judgment or order under review. Date filed: 05/21/2003. Judge signing: Hon. Larry E. McKeeman.
Counsel for Appellant/Cross-Respondent, Wayne Donald Gilbert (Appearing Pro Se) 7222 142nd Dr SE, Snohomish, WA 98290.
Damian Klauss, Snohomish County PDA, 1721 Hewitt Ave Ste 200, Everett, WA 98201-3582.
Douglas Franklin Ricks, Attorney at Law, Pacific Oakes Bldg, 3101 Oakes Ave, Everett, WA 98201-4405.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Wayne Gilbert was convicted by jury verdict of two counts of first degree child molestation. In this consolidated proceeding, Gilbert alleges he was denied a fair trial based on ineffectiveness of counsel. But because Gilbert's claims of ineffective assistance are not adequately supported by the record, we affirm Gilbert's conviction and deny the personal restraint petition.
In a notation ruling dated April 21, 2004, this court consolidated Gilbert's personal restraint petition with his pending direct appeal.
FACTS
A discussion of good and bad touching during a class of elementary school students prompted six-year-old O.P. to tell her teacher that she had been molested. O.P. then told her mother and others about the abuse. Thereafter, the State charged Gilbert, the boyfriend of O.P.'s grandmother, with two counts of first degree child molestation and one count of first degree rape of a child.
At Gilbert's jury trial, O.P. identified Gilbert as the person who molested her on more than one occasion while she was visiting her grandmother. O.P. described two incidents of abuse in some detail. Other witnesses, including O.P.'s teacher, her mother, and a child interview specialist, testified regarding what O.P. told them about the sexual abuse. Gilbert denied ever touching O.P. inappropriately. The jury found Gilbert not guilty of the rape charge and guilty of two counts of child molestation in the first degree.
DECISION
There is a strong presumption that counsel's performance was effective. State v. Wilson, 117 Wn. App. 1, 16, 75 P.3d 573, review denied, 150 Wn.2d 1016 (2003). While this presumption may be overcome, Gilbert bears the burden of showing both that his trial counsel performed deficiently and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (two-prong test for establishing claim of ineffective assistance of counsel). To satisfy the prejudice prong of the test, Gilbert must show that the results of the proceedings would have been different but for counsel's deficient representation. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995).
Gilbert contends his trial counsel was ineffective because he failed to adequately investigate the relevant facts surrounding the case. Gilbert argues that counsel should have conducted an investigation into whether O.P. was influenced or otherwise affected by another person's disclosure of sexual abuse. Claiming that O.P. had spent the weekend prior to making her disclosure of sexual molestation with a young cousin and that the cousin had made similar allegations of abuse against the boyfriend of the cousin's grandmother, Gilbert argues his trial counsel should have contacted O.P., her cousin, and the cousin's mother and grandmother, to question them about the similarities between the two girl's sexual abuse allegations. Because counsel failed to do so, Gilbert argues, his child molestation convictions should be vacated and the case remanded for a new trial. We disagree.
Gilbert concedes that his claims of ineffectiveness are based on matters outside the trial record. Ordinarily, this court must confine itself to the trial record to decide issues raised on appeal. See State v. Bugai, 30 Wn. App. 156, 158, 632 P.2d 917 (1981) (court reviewing claim of ineffective assistance on appeal may not consider matters outside the trial record). However, there is an exception:
If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition, which may be filed concurrently with the direct appeal.
McFarland, 127 Wn.2d at 335.
Here, Gilbert has filed both an appeal and a personal restraint petition. Therefore we shall consider Gilbert's claim of deficient representation under McFarland, even though it requires consideration of evidence not in the existing trial record. Nevertheless, Gilbert cannot base this issue on idle speculation or conjecture alone, but must instead present provable facts supporting his claim for relief. A personal restraint petition must set out the facts underlying the challenge and the evidence available to support the factual assertions. In re Rice, 118 Wn. 2d 876, 885-86, 828 P.2d 1086 (1992). Unsupported assertions or vague allegations are not sufficient. Rice, 118 Wn. 2d at 886. `If the petitioner's allegations are based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitled him to relief.' Rice, 118 Wn.2d at 886.
Gilbert's conclusory assertions do not establish ineffectiveness of counsel. Gilbert's trial counsel has supplied a declaration describing in detail the significant efforts he undertook to locate and contact all possible witnesses, including O.P.'s cousin. Gilbert's trial counsel also indicates that O.P. denied ever having a conversation with her cousin about being molested. Given this description of what took place, we cannot say that defense counsel's conduct was unreasonable. Nor has Gilbert presented any competent, admissible evidence to suggest otherwise.
Gilbert has submitted his own declaration and one filed by Douglas Ricks, the attorney currently representing Gilbert, in support of his request for a new trial based on ineffective assistance of counsel. The factual assertions contained in those declarations are, however, based on nothing more than speculation and inadmissible hearsay. Given our ultimate disposition in this case, we elect not to act on the State's motion to strike the Declaration of Douglas Ricks.
Moreover, where the alleged deficiency is the failure of counsel to investigate exculpatory evidence, a defendant must show what beneficial evidence the potential witnesses would have provided had they testified. State v. Stovall, 115 Wn. App. 650, 660, 63 P.2d 192 (2003). Gilbert fails to provide affidavits or other evidence from the uncalled witnesses describing what their testimony would have been had they been called to testify. `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.' Rice, 118 Wn.2d at 886. Accordingly, Gilbert has not presented sufficient facts or evidence to establish his claim of ineffective assistance of counsel.
We affirm the judgment and sentence and deny the personal restraint petition.