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Washington Good Time Ban Unconstitutional

In a ruling with far reaching implications, a Washington state court of appeals held that a "three strikes" ballot initiative that eliminated good time and early release credits for first time offenders convicted of first degree murder, first degree rape and assault and assault of a child, violates the single subject clause of the Washington constitution.

Darrell Cloud was convicted of first degree murder. On his direct appeal he challenged his criminal conviction as well as the constitutionality of RCW 9.94A.120(4), which mandates that he receive no good time reduction of his sentence.

RCW 9.94A.120(4) was enacted as part of Initiative 593, the "three strikes" ballot initiative which prescribes sentences of life without parole for defendants convicted a third time of committing one of 42 "serious" offenses. [PLN, June, 1994].

As previously reported in PLN,   I-593 also eliminated the possibility of earning good time or early release credits for prisoners convicted of first degree murder, rape and assault and assault of a child. Defendants convicted of these offenses are required, under I-593, to serve the full length of their sentence in prison. The same statute also states these defendants cannot serve any portion of their sentence on work release, home confinement, community custody, or any other form of non prison custody.

Cloud claimed that I-593 violated Article II, section 19 of the Washington constitution which states "No bill shall embrace more than one subject, and that shall be expressed in the title," by purporting to punish "persistent offenders" and then eliminating good time credits for first time offenders such as himself. The court of appeals agreed.

The court relied on State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (Wash. 1996) which did not decide whether the early release provisions of I-593 were beyond the scope of the ballot title because the defendant in Thorne was clearly a "persistent offender" within the initiative's parameters. I-593's ballot title was "Shall criminals who are convicted of most serious offenses' on three occasions be sentenced to life in prison without parole?"

"The court [in Thorne] did, however, suggest that any parts of the initiative which do not relate to persistent offenders were not legitimately included: The ballot title to Initiative 593 contains only one subject, persistent offenders; hence, any provisions in the law which relate to that subject are valid under Article II, section 19.' Implicit in this statement is that Initiative 593 provisions which are unrelated to persistent offenders are invalid, and accordingly, should be stricken. We hold that RCW 9.94.120(4) violates Article II, section 19 of the Washington constitution and cannot be enforced. Because Cloud was sentenced under this unconstitutional provision, we remand for imposition of a sentence which permits Cloud early release, and direct the trial court to credit Cloud with good time credit he has already earned."

It is likely that the Washington supreme court will grant review in this case. The Seattle Times estimates that some 750 prisoners are affected by this ruling and will now be allowed to earn good time credits towards early release. The court was, however, silent on the means these prisoners should use to modify their sentences, i.e., if it would be done administratively by the Department of Corrections or if each prisoner would have to be re-sentenced as the court ordered in this case. See: State v. Cloud, 95 Wn.App. 606, 976 P.2d 649 (Wash App. Div. 1, 1999).

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Related legal case

State v. Cloud

State v. Cloud, 95 Wash.App. 606, 976 P.2d 649 (Wash.App.Div.1 05/10/1999)

[1] Washington Court of Appeals

[2] No. 38530-5-I

[3] 95 Wash.App. 606, 976 P.2d 649

[4] May 10, 1999


[6] Source of Appeal: Appeal from Superior Court of King County Docket No: 94-1-00929-6 Judgment or order under review Date filed: 04/17/1996 Judge signing: Hon. George T. Mattson

[7] Counsel: Counsel for Appellant(s) Eric Broman Nielsen Broman & Assoc. Pllc 810 3rd Ave Ste 320 Seattle, WA 98104 Nielsen Broman & Associates Pllc 810 Third Avenue 320 Central Building Seattle, WA 98104 Counsel for Respondent(s) Brian M. McDonald Deputy Pros Appellate Unit 700 5th Av 1850 Key Tower Seattle, WA 98104 Prosecuting Atty King County King County Prosecutor/Appellate Unit 1850 Key Tower 700 Fifth Avenue Seattle, WA 98104 Counsel for Respondent Intervenor(s) John H. Browne Browne & Ressler Penthouse Suite 821 2nd Ave Seattle, WA 98104-1519 Allen M. Ressler Browne & Ressler Penthouse Ste 821 2nd Ave Seattle, WA 98104-1519 Rita J. Griffith Griffith & Cole Pllc 1305 NE 45th #205 Seattle, WA 98105

[8] Judges: Authored by Susan R. Agid Concurring: Ronald E. Cox C. Kenneth Grosse

[9] The opinion of the court was delivered by: Agid, A.c.j.


[11] In January 1994, Darrell Cloud fatally shot Neal Summers, the teacher who had sexually abused him for over 10 years. Despite expert testimony that Cloud suffered from insane delusions at the time of the shooting, Cloud's jury convicted him of murder in the first degree. He moved to set aside the verdict, alleging ineffective assistance of counsel.

[12] After a post-trial hearing at which Cloud's counsel was allowed to intervene as a party, the trial court found that Cloud had suffered no prejudice as a result of his counsel's advice and denied his motion. On appeal, Cloud alleges that various procedural, evidentiary, and constitutional errors at trial and the post-trial proceeding require setting aside the verdict and granting a new trial. We agree with Cloud that permitting his former counsel to intervene as a party in the post-trial proceeding was error and reverse and remand for a new hearing on Cloud's motion for a new trial. In addition, because the provisions of the "three strikes rule" which apply to first-time offenders unconstitutionally exceed the scope of the initiative's ballot title, we remand for the imposition of a new sentence which permits Cloud to earn early release time.

[13] FACTS

[14] In 1982 when Darrell Cloud was in eighth grade, he applied for a position as a teacher's aide with Neal Summers, a popular teacher at Whitman Middle School. The following summer, when Cloud was 13, Summers initiated sexual contact with him, which Cloud resisted. Summers persisted and eventually coerced Cloud into "hundreds of incidents of sexual abuse," primarily by bribing Cloud and plying him with alcohol.*fn1

[15] On the morning of January 31, 1994, Cloud waited in his car for Summers to arrive at Whitman school. As Summers entered the school building, Cloud fatally shot him from a distance of approximately 150 feet. Cloud eventually confessed to the murder, and accompanied police to his girlfriend's house to recover the gun. After returning to the precinct, Cloud gave a tape-recorded statement detailing the shooting and outlining its precipitating events.

[16] The State charged Cloud with one count of first degree murder. Before trial, the State offered Cloud an opportunity to plead to second degree murder, which Cloud declined on the advice of his counsel, John Henry Browne. Jury voir dire began on March 1, 1995. The next day, during voir dire of 16 potential trial jurors, three women were shot and killed on another floor of the courthouse. Cloud moved for a continuance based on the disruption the shooting caused, but the court ruled that the trial should proceed as scheduled.

[17] At trial, both Cloud and the State introduced several psychiatric specialists who offered opinions about Cloud's sanity at the time of the shooting. Could moved for acquittal on insanity grounds at the Conclusion of the evidence, but the court denied his motion, acknowledging that this was "a close case." The court then instructed the jury that it had a "duty" to convict Cloud if the State proved every element of the charged crime. On March 30, 1995, the jury found him guilty of murder in the first degree. Cloud filed a motion for a new trial based on the court's failure to continue the trial after the courthouse shooting, but the court denied the motion.

[18] Shortly thereafter, Cloud fired Browne and hired James Lobsenz to bring an ineffective assistance of counsel claim against Browne for his allegedly incompetent advice during the plea bargaining process. Cloud said that Browne told him that he had a 95 percent chance of being acquitted on insanity grounds and that, even if he were convicted of first degree murder, he would not have to serve the full 20-year sentence. Following a lengthy hearing in which Browne intervened as a party, the trial court denied Cloud's motion to set aside the verdict, finding insufficient evidence of prejudice. In its written decision, the court stated that because "{b}oth the defendant and his father were of the opinion that the defendant should be freed and the defendant rewarded," Cloud would have resisted a plea bargain even without Browne's advice. The court partially based this Conclusion on its observation that "{n}ot long before trial, while the defendant was still at {Western State Hospital}, he predicted for Detective Gebo that the likely outcome of {the} trial was that he would be set free with a pile of money." The court sentenced Cloud to a mandatory minimum of 20 years in prison, stating that although the "psychological torture-sex abuse" he suffered would normally "justify consideration of the exercise of exceptional discretion downward," the trial court did not have the authority to apply those mitigating factors to a first degree murder sentence. Under the version of RCW 9.94A.120(4) in effect at the time of the offense, Cloud is not authorized to earn early release time.

[19] On appeal, Cloud alleges that the trial court erred in 1) permitting Browne to intervene in the post-trial proceeding, 2) relying on the statement he made to detectives at Western State Hospital, 3) finding that Browne's advice during the plea bargaining process did not result in prejudice, 4) denying his motion to continue, 5) instructing the jury that it had "a duty" to return a guilty verdict if the State proved all elements of the crime, and 6) sentencing him under a statutory scheme which unconstitutionally forecloses his right to earn early release.


[21] I. Browne's Intervention

[22] Browne sought to intervene in the post-trial ineffective assistance of counsel proceeding to protect his "personal, reputation, and business interests."*fn2 Although no rule authorizes third-party intervention in a criminal case, the trial court permitted his intervention, explaining:

[23] "This is an unusual case, unusual circumstances . . . because of the fact that we have gone through the whole process and there has been no assertion of ineffective assistance, except as to this short factual pocket, I think that the court is interested in getting as full disclosure and argument as possible so as to make the best possible ruling with regard to what the facts are and what the legal meaning of those facts are as of this application. . . ."

[24] "In summary, I think that this is really the forum where Mr. Browne has an interest. I don't see it being effectively dealt with in some other forum."

[25] The trial court recognized that its decision might have far-reaching implications, but it decided to "take {its} chances with the slippery slope." Cloud contends that the trial court committed prejudicial error in allowing Browne to intervene,*fn3 and that the slope may be "higher, wider and more slippery than the trial court envisioned." We agree. Neither Browne nor the State has explained why Browne's interest in protecting his reputation provides a tenable rationale for his intervention in the post-trial proceeding.

[26] Civil Rule 24(a)(2)*fn4 allows intervention of right to applicants who are "so situated that the Disposition of the action may as a practical matter impair or impede {their} ability to protect that interest . . . ."*fn5 The court did not specifically base its ruling on CR 24(a)(2), but it did state that this rule influenced its decision to allow Browne to intervene: "in the absence of criminal rules . . . in situations which are covered in similar civil rules, the court is usually at least guided by the civil rules."*fn6 Although the trial court was correct that civil rules "can be instructive'"*fn7 when criminal rules are silent on procedural matters, labeling Browne's full intervention rights in this post-trial proceeding "procedural" is an inaccurate characterization. As Cloud notes, Browne and his two attorneys "led the {S}tate's efforts, calling more witnesses, engaging in more cross-examination, and eliciting far more damaging information and expert opinion" than the State.*fn8 This active participation was not necessary. The prosecutor's interest in preserving the conviction, together with Browne's testimony as a witness, would have provided the trial court with an adequate basis for its decision.

[27] Cloud consistently stated that his decision to fire Browne, his "closest friend in the world" at the time, was a difficult one, and that he did not want to hurt him, embarrass him, or "make him mad." After Cloud informed Browne of his decision to proceed with the ineffective assistance claim, both Cloud and Lobsenz testified that Browne threatened to reveal hurtful things about Cloud and his family. Although Browne correctly points out that an ineffective assistance claim waives the attorney- client privilege to the extent necessary to "respond to allegations in any proceeding concerning the lawyer's representation of the client,"*fn9 allowing a former attorney to intervene as a party in an ineffective assistance proceeding exceeds this limited waiver. Here, intervention pitted an attorney against his former client and created the opportunity to use against the client information garnered during the course of representation. This decision, if allowed to stand, would inevitably undercut the most fundamental value of the attorney-client relationship for future criminal defendants.

[28] Browne also suggests that if he had not been allowed to intervene, there is a "substantial risk" that he would have been collaterally estopped from relitigating the adequacy of his representation. This argument is based on Washington's "virtual representation doctrine," which allows "collateral estoppel to be used against a nonparty when the former adjudication involved a party with substantial identity of interests with the nonparty."*fn10 In Hackler v. Hackler,*fn11 this court held that a witness in a trial who is "fully acquainted with its character and object,"*fn12 and "interested in {its} results"*fn13 may be collaterally estopped from bringing a later claim on the same issue. But Washington courts clearly hold that this doctrine may be used only when there is "some sense that the separation of the suits was the product of some manipulation or tactical maneuvering, such as when the nonparty knowingly declined the opportunity to intervene but presents no valid reason for doing so."*fn14 Because no authority exists which allows Browne to intervene in a criminal proceeding, and because the State's interests were not identical to Browne's,*fn15 Browne cannot use this doctrine as a justification for his intervention.

[29] The trial court observed that this was an "unusual" case because it concerned only a "short factual pocket."*fn16 Browne similarly argues that Cloud's claim differs from the usual negligence-based ineffective assistance claim because Cloud alleged that Browne's desire for publicity interfered with his duty to advise Cloud competently. We do not find this allegation sufficiently unique to justify the extraordinary action of making Browne a party. There is no principled basis on which to distinguish this motion from the many post-trial and post-plea motions brought every year in which some third party has an interest. The trial court erred in allowing Browne to intervene. We must next decide whether Browne's intervention prejudiced Cloud. The State contends that even if Browne's intervention were improper, any error which occurred was harmless.

[30] We cannot agree. At the hearing, the witnesses and expert testimony focused on what, exactly, Browne had advised the Clouds and others about the possible outcomes of the trial, and whether or not this advice breached the standard of a reasonably competent attorney.*fn17 The trial court recognized that because "a thorough examination of the factual evidence and expert opinion interconnects with the prejudice prong," this was not a case which could be resolved by conducting a prejudice analysis and avoiding the question of whether the attorney's advice was competent. The State indicated that Browne and Cloud would be responsible for presenting the facts and it did not "know how much {it would} participate" in this fact-finding process. After Browne and Cloud established the factual basis, the State anticipated it would "have a position."

[31] After thorough consideration of the evidence, the trial court concluded that even if Browne had competently advised Cloud, he would have nevertheless declined the State's offer. Because this Conclusion was based on information and credibility determinations derived from Browne's presentation, Browne's participation undoubtedly affected the outcome of the proceeding. We must therefore remand for another hearing on Cloud's motion for a new trial. And because it would be extremely difficult, if not impossible, for the trial Judge who worked so hard on this case to discount everything that transpired in the first hearing, a different Judge should preside over the next hearing.

[32] Cloud urges this court to direct the trial court to suppress on remand any evidence which resulted from Browne's participation. But we are not in a position to determine what evidence the State would have presented in Browne's absence. The trial court, which functions as a fact-finder, is in a much better position to take whatever measures it deems necessary to ensure that the prejudice inherent in the original hearing is not carried over on remand.

[33] II. Constitutionality of Initiative 593

[34] Initiative 593, the "Persistent Offender Accountability Act," was in effect when the trial court sentenced Cloud. This initiative, known as the "three strikes" law, makes Cloud, who is a first-time offender, ineligible for early release from prison.*fn18 Cloud argues that the initiative violates article II of the Washington Constitution because although the initiative ostensibly applies only to persistent offenders, it contains provisions which restrict the rights of first-time offenders as well.

[35] The State did not address the substance of Cloud's challenge, electing instead to argue that because Cloud's entitlement to good time credit is "entirely speculative," this issue is not ripe for review.*fn19 Although we have held that certain sentencing conditions are not ripe until imposed, this issue warrants immediate review because Cloud could suffer significant prejudice if he had to wait until his sentence was substantially complete to bring this challenge. For example, believing Cloud is not entitled to good time credit, the Department of Corrections may not keep accurate records. The inability to accrue good time may also adversely affect Cloud's status in prison and his access to privileges. In addition, the issues raised are primarily legal, do not require further factual development, and the challenged action is final.*fn20

[36] Article II, section 19 of the Washington Constitution provides that "{n}o bill shall embrace more than one subject, and that shall be expressed in the title." The purposes of article II, section 19 are to "(1) prevent 'logrolling,' or pushing legislation through by attaching it to other necessary or desirable legislation, and (2) assure that the members of the legislature and the public are generally aware of what is contained in proposed new laws."*fn21

[37] The ballot title of Initiative 593 states, "Shall criminals who are convicted of 'most serious offenses' on three occasions be sentenced to life in prison without parole?" In State v. Thorne, the Washington Supreme Court concluded that because this title "refers only to criminals who have committed serious offenses on three occasions,"*fn22 the initiative is "restrictive," meaning that "the provisions which are not fairly within it will not be given force."*fn23 The Court conducted this analysis in response to a challenge identical to Cloud's, but because the defendant in Thorne was a persistent offender and clearly covered by the initiative, the Thorne court stated that it "need not decide whether the part of the Initiative which concerns early release is beyond the scope of the ballot title . . . ."*fn24 The court did, however, suggest that any parts of the initiative which do not relate to persistent offenders were not legitimately included: "The ballot title to Initiative 593 contains only one subject, persistent offenders; hence, any provisions in the law which relate to that subject are valid under article II, section 19." Implicit in this statement is that Initiative 593 provisions which are unrelated to persistent offenders are invalid, and accordingly, should be stricken.*fn25 We hold that RCW 9.94A.120(4) violates article II, section 19 of the Washington Constitution and cannot be enforced. Because Cloud was sentenced under this unconstitutional provision, we remand for imposition of a sentence which permits Cloud early release, and direct the trial court to credit Cloud with good time credit he has already earned.

[38] The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

[39] III. Cloud's Statement to Detectives

[40] Cloud next contends that the trial court improperly considered a statement he made to detectives at Western State Hospital. Before trial, the two lead homicide detectives, Robert Gebo and Walter Manning, met Browne at Western State Hospital (WSH) to watch Cloud fill out a handwriting exemplar. After instructing Gebo and Manning not to talk to Cloud about "anything of substance,"*fn26 Browne left the room for approximately half an hour. Gebo inquired about Cloud's "{general} . . . health and welfare," but when Cloud broached the subject of his impending trial, either Gebo or Manning asked either "what do you think should happen" or "what to you think is going to happen." According to Gebo's testimony at the 3.5 hearing, Cloud responded that "he was going to walk outside the courthouse door a free man with a big pile of money."

[41] Browne "strenuously object{ed} to any of the admissions supposedly made at Western State Hospital." The court found the statement was neither coerced nor relevant. After an extended Discussion of what the State intended to use the statement for, Browne stipulated to its "voluntariness and knowingness." The court granted his motion in limine, stating that it would reserve ruling until the State decided to use this statement at trial. Because the State never sought to introduce the statement, the court never issued a final ruling.

[42] At the post-trial ineffective assistance of counsel hearing, Cloud's new attorney, Lobsenz, questioned him about his thoughts about the outcome of his trial while he was at WSH. Cloud testified that when he first arrived at WSH, he did not believe he had killed Neal Summers, and "was still pretty crazy and twisted and . . . still believed {he} should be set free." When he started taking medication, he testified that his "whole scenario of {his} delusional beliefs kicked out and all the pieces that {he} was working with in this delusion . . . didn't fit as readily as they did when {he} was crazy." A month after beginning his medication, he "still felt the best case scenario would be {he} would be let out; but realistically, that wasn't going to happen, {he} was going to have to do some amount of time." During cross-examination, the State continued this line of inquiry, asking Cloud what he had told Gebo at WSH. Cloud answered that he had said that the "{b}est case scenario was I would get cut loose and get a big pocket full of money."*fn27 Lobsenz did not object at this time. When the State asked if this was actually what Cloud thought would happen, he again replied "{b}est case scenario, yes, but realistically, that wasn't going to happen." Based on this testimony, the trial court said in its memorandum opinion:

[43] Both the defendant and his father were of the opinion that the defendant should be freed and the defendant rewarded. This was a position taken as late as February 23, 1995. Not long before trial, while the defendant was still at WSH, he predicted for Detective Gebo that the likely outcome of the trial was that he would be set free with a pile of money. . . .*fn28

[44] Cloud contends that the court's use of the statement violated his right to counsel, and that the trial court committed prejudicial error by failing to enter written findings and not holding a full and fair CrR 3.5 hearing. At the end of the 3.5 hearing, Browne and the State agreed with the trial court's decision that the statement's admissibility was "a battle . . . put off to another day." When a ruling on a motion in limine is tentative, any error in admitting or excluding evidence is waived unless the trial court is given an opportunity to reconsider its ruling.*fn29 Cloud's counsel was therefore obligated to renew the objection to this statement at the post-trial hearing to preserve it for review. Cloud points out that Lobsenz did not have access to the pretrial transcripts and could not have known that an objection was necessary, or even that the parties had contested the statement's admission. He argues that "to the extent that this Court finds that Lobsenz knew or should have objected, then his failure to object violated Darrell's right to effective assistance of counsel."

[45] For this argument to succeed, Cloud would have to show that Lobsenz' failure to object prejudiced him and had a substantial effect on the outcome of the hearing.*fn30 As the prejudice analysis in its opinion demonstrates, the trial court was thoroughly convinced that Cloud and his father viewed a second degree murder plea as unsatisfactory. That the trial court included this statement in its rationale does not demonstrate that the statement was a deciding factor in the court's decision. Lobsenz' failure to object cannot constitute ineffective assistance of counsel.*fn31

[46] IV. Motion to Continue

[47] On the first day of jury selection, Timothy Blackwell shot and killed three people inside the King County Courthouse. The trial court released the prospective Cloud jurors, but did not direct them to avoid publicity about the shooting. When the jury reconvened the following week, Cloud moved for a continuance, contending the jury had undoubtedly been affected by shock and extensive publicity,*fn32 and that a juror could have been "'improperly influenced'" by the violent shootings. The court denied the motion, but did allow voir dire on the issue so that the actual effect of the shooting on the jurors could be determined. Not only did Cloud decline the opportunity, he also moved to prevent the State from discussing the issue with the jurors. The court granted the motion, subject to exception if a juror raised the issue. After the jury returned its verdict, Cloud unsuccessfully moved for a new trial on the grounds that the court erred in failing to grant the continuance. He contends that "{h}ad the motion to continue been granted, a different jury would have been impaneled, they would not have been exposed to the obvious variance in security measures, the frenetic atmosphere, nor feel the need to personally vindicate society for the courthouse murders."

[48] Granting or denying a motion for a continuance is a matter within the trial court's discretion,*fn33 and abuse of that discretion occurs only when no reasonable person would take the view it adopted.*fn34 The court explained:

[49] "{T}he jurors in this case were not in close physical proximity to the shooting, and only found out about it when the court made an announcement. We know additionally I guess from the research of Mr. Bradshaw that the particular 14 who happened to be in the court on that day were never eventually elected to serve. . . . It didn't have anything to do with Mr. Cloud or this case particularly but the whole issue of the courthouse and the area in which this courthouse is located. . . ."

[50] "The defense chose not to participate in a reasonable procedure and cannot complain because the court did not elect to proceed directly to a decision based upon speculation. . . ."

[51] The court also noted that Browne had requested a continuance of "a month or two" and that it had no reason to think that the effect of the shooting or the resulting increased security would have abated in that time. Given that none of the eventual members of the Cloud jury were in the courthouse when the shooting occurred, the trial court properly rejected Cloud's continuance motion.

[52] V. Challenge to the Jury Instructions

[53] The State and Cloud both proposed "to convict" instructions that directed the jury "to return a verdict of guilty" if it found all the elements of the offense:

[54] "If you find from the evidence that each one of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty."

[55] "On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty."

[56] Cloud asserts that there can be no constitutional duty to convict, and that the instruction misstates the law. He claims that the correct standard is that the jury "must return a verdict of not guilty if there is a reasonable doubt; however, it may return a verdict of guilty if, and only if, it finds every element proven beyond a reasonable doubt." He points out that his primary defense strategy was to seek a hung jury or nullification and, because he conceded all the elements of the charged crime, the instruction precluded this result. Cloud cites several historical sources which support his argument that at the time the Constitution was adopted, courts instructed juries using the permissive "may" for a finding of guilt rather than language which made the duty mandatory. Although Cloud concedes that he had no right to an instruction telling the jury that it may disregard the law in reaching its verdict, he points out that juries do have a recognized right to acquit against the weight of the evidence.*fn35

[57] The State counters that the invited error doctrine precludes this challenge because Cloud himself proposed this instruction.*fn36 It argues that although the doctrine of invited error does not bar a claim for ineffective assistance of counsel, no legal or factual support exists for Cloud's argument that his counsel's performance fell below that of a reasonably competent attorney when he proposed an instruction that Washington courts have been using for the past 70 years.*fn37 In State v. Meggyesy,*fn38 we upheld this instruction against a challenge identical to Cloud's. The State is correct that, even if the Washington Supreme Court were to reverse Meggyesy and decide that the duty instruction is unconstitutional, Cloud's counsel was not responsible for anticipating this development.*fn39 Affirmed in part, reversed in part and remanded.


Opinion Footnotes


[58] *fn1 The record is replete with handwritten notes from Summers to Cloud which support Cloud's allegations. As the trial prosecutor testified at the post-trial hearing, the evidence "was about as graphic as . . . evidence could get in terms of documenting the types of . . . abuse that Darrell suffered . . . the writings, the games that were a part of this pattern of abuse, they were graphic, they were disgusting, and they were significant."

[59] *fn2 Washington courts have not addressed this issue, but at least one federal court has barred a former attorney from intervening in an ineffective assistance proceeding to protect his reputation. See Harrelson v. United States, 967 F. Supp. 909 (W.D. Tex. 1997).

[60] *fn3 Cloud contends that this ruling ignores the Washington Supreme Court's decision in State v. Bianchi, in which the court denied a newspaper's request for intervention in a first-degree murder prosecution, observing that "{t}here is no rule, statute, or precedent in this state that would allow a third party to intervene in a criminal proceeding." 92 Wn.2d 91, 92-93, 593 P.2d 1330 (1979). Bianchi is not controlling, however, because it concerns pretrial intervention requests in criminal trials and addresses rights of the press.

[61] *fn4 Browne's motion was also brought under CR 24(b), which allows discretionary intervention.

[62] *fn5 CR 24(a)(2).

[63] *fn6 Because the trial court did not rely on the civil rule, the cases Cloud cites holding that civil rules do not apply to criminal cases do not establish that the trial court erred in using the civil rule for guidance.

[64] *fn7 State v. Cronin, 130 Wn.2d 392, 397, 923 P.2d 694 (1996) (quoting State v. Gonzalez, 110 Wn.2d 738, 744, 757 P.2d 925 (1988)) (court relied on CR 5 to determine requirements for service of notice of special sentencing hearings); State v. Scott, 92 Wn.2d 209, 595 P.2d 549 (1979) (holding that CR 60(b) applies to criminal as well as civil judgments).

[65] *fn8 Lobsenz stated that he felt as if he were opposed by "two prosecutors" and that the proceeding seemed "grossly unfair." Browne admitted that he had passed notes to the State's attorney during the post-trial hearing and had suggested questions for him to ask.

[66] *fn9 See RPC 1.6(b)(2).

[67] *fn10 Garcia v. Wilson, 63 Wn. App. 516, 520, 820 P.2d 964 (1991).

[68] *fn11 37 Wn. App. 791, 795, 683 P.2d 241, review denied, 102 Wn.2d 1021 (1984).

[69] *fn12 Id.

[70] *fn13 Id.

[71] *fn14 Garcia, 63 Wn. App at 521 (citing Bacon v. Gardner, 38 Wn.2d 299, 313, 229 P.2d 523 (1951), Hackler, 37 Wn. App. at 795, and 18 C. Wright, A. Miller & E. Cooper, Federal Practice sec. 4457, at 494-502 (1981)).

[72] *fn15 The State confirmed that "it's not . . . the State's duty to defend Mr. Browne personally or professionally, and we don't intend to do so."

[73] *fn16 The hearing focused, however, on the entire period of Browne's representation of Cloud.

[74] *fn17 This is the first prong of the Strickland v. Washington test. There, the Supreme Court set forth the rule for proving ineffective assistance of counsel. The defendant must first prove by a preponderance of the evidence that his attorney's actions failed to meet the standard of a reasonably competent attorney. If the defendant sustains this burden, the court must determine, to a reasonable probability, whether without the erroneous advice, the outcome of the trial would have been different. 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

[75] *fn18 Under the previous law, Cloud could have earned early release ("good time") for up to 15 percent of his sentence.

[76] *fn19 The State suggests that Cloud file a personal restraint petition after he accumulates good time credit in prison. Although personal restraint petitions must normally be brought within a year of discovery of pertinent facts, there is an exception for constitutional challenges.

[77] *fn20 This is the ripeness test set forth in First Covenant Church v. Seattle, 114 Wn.2d 392, 400, 787 P.2d 1352 (1990), vacated on other grounds, 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d 208 (1991).

[78] *fn21 State v. Thorne, 129 Wn.2d 736, 757, 921 P.2d 514 (1996). Article II, section 19 applies to initiative measures. Thorne, 129 Wn.2d at 757.

[79] *fn22 Thorne, 129 Wn.2d at 758.

[80] *fn23 Id. In contrast, general ballot titles "will be given a liberal construction."

[81] *fn24 Id. at 758.

[82] *fn25 "{I}f only one subject is embraced in the title, then any subject not expressed in the title that is embraced in the body of the act, may be rejected, and the part that is expressed in the title be allowed to stand . . . ." Power, Inc. v. Huntley, 39 Wn.2d 191, 200, 235 P.2d 173 (1951) (quoting Jackson v. State ex rel. S. Bend Motor Bus Co., 194 Ind. 248, 258, 142 N.E. 423 (1924)).

[83] *fn26 These statements came from the February 27, 1995 CrR 3.5 hearing.

[84] *fn27 Civil claims against the school board and Neal Summers' estate were pending at this time. Browne had told Cloud of the possibility that he would receive a large settlement from these lawsuits.

[85] *fn28 There is no support in the record for the proposition that Cloud actually believed he should be freed and rewarded. Cloud's comments to Gebo reflect only his hope that he would be acquitted and prevail in his civil suit.

[86] *fn29 Sturgeon v. Celotex Corp., 52 Wn. App. 609, 621-23, 762 P.2d 1156 (1988).

[87] *fn30 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2051, 80 L. Ed. 2d 674 (1984).

[88] *fn31 In any event, as previously noted, Cloud volunteered this statement and never alleged that the detectives coerced or interrogated him.

[89] *fn32 Cloud is not overestimating the effect of the shootings the record contains a substantial number of newspaper reports attesting to their effect. King County Prosecutor Norm Maleng recognized that "{e}veryone who works {at the King County Courthouse} . . . has felt the anguish of that terrible crime. Every time we walk through the new security barriers around the building, it's a poignant reminder of the tragedy."

[90] *fn33 State v. Cadena, 74 Wn.2d 185, 188-89, 443 P.2d 826 (1968), overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975).

[91] *fn34 State v. Hartley, 51 Wn. App. 442, 445, 754 P.2d 131 (1988).

[92] *fn35 See State v. Primrose, 32 Wn. App. 1, 4, 645 P.2d 714 (1982); State v. Salazar, 59 Wn. App. 202, 211, 796 P.2d 773 (1990) (relying on jury's "constitutional prerogative to acquit" as basis for upholding admission of evidence).

[93] *fn36 The doctrine of invited error precludes appellate review even if the instructional error is of constitutional magnitude. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990).

[94] *fn37 See State v. Rader, 118 Wash. 198, 203, 203 P. 68 (1922).

[95] *fn38 90 Wn. App. 693, 958 P.2d 319, review denied, 136 Wn.2d 1028 (1998).

[96] *fn39 See In re Personal Restraint of Benn, 134 Wn.2d 868, 939, 952 P.2d 116 (1998).