In the Matter of the Pers. Restraint of Ethan Noble Burlingame

Citation: 416 P.3d 1269Docket: 35177-7

Court: Court of Appeals of Washington; May 17, 2018; Washington; State Appellate Court

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Ethan Burlingame seeks relief from a personal restraint petition concerning his 78-month-to-life sentence for second degree rape, arguing ineffective assistance of counsel. He claims his lawyer failed to inform him of his right to plead guilty to the initial charge of third degree rape and the consequences of pleading not guilty, including losing the ability to plead guilty later without prosecutor approval. Burlingame contends he was misled regarding the severity of the charges and that the facts supported a lesser conviction. The court found substantial evidence of prejudice from this ineffective assistance, based on declarations from Burlingame, his family, and his lawyer, along with police records. The court granted his petition, allowing Burlingame the chance to plead guilty to third degree rape and directing the trial court to vacate his second degree rape conviction if he does so. The case background includes Burlingame's actions on December 30, 2015, when he reported his actions to police after a night of drinking with the victim, who initially denied being raped but later claimed she had not consented. The State charged him with third degree rape, and there was a belief that charges could be further reduced to a lesser offense, which influenced his decision against pleading guilty.

Mr. Burlingame's arraignment was brief, with his defense counsel requesting a not guilty plea on his behalf and waiving the reading of the information. Burlingame himself expressed discomfort in entering a plea, leading the judge to constructively enter a not guilty plea to the original charge of third-degree rape. Subsequently, the State amended the charge to second-degree rape, defined under RCW 9A.44.050(1)(b) for offenses involving physically incapacitated victims. This charge is classified as a class A felony, punishable by an indeterminate sentence, potentially resulting in life imprisonment unless released by the indeterminate sentence review board.

Defense counsel did not oppose the amendment, and Burlingame ultimately pleaded guilty to second-degree rape during the arraignment. The trial court sentenced him to an indeterminate term of 78 months to life, based on an offender score of zero. Had he pleaded guilty to third-degree rape, the standard range sentence would have been significantly shorter, between 6 to 12 months.

In April 2017, Burlingame filed a personal restraint petition alleging ineffective assistance of counsel. The State responded, asserting that counsel's duty does not necessarily include advising clients to plead guilty at arraignment without sufficient information. However, Burlingame's claim centers on his counsel's failure to inform him of key rights, including the right to plead guilty at arraignment and the consequence of losing that right by entering a not guilty plea. Expert testimony highlighted that trial counsel did not adequately explain the implications of the charges or the likelihood of conviction based on Burlingame's admissions.

Trial counsel failed to inform Mr. Burlingame about the significant increase in penalties for a conviction of Rape in the Second Degree and did not clarify that the decision to plead guilty or not guilty was ultimately Mr. Burlingame’s, not the counsel’s. Mr. Burlingame, in his personal restraint petition (PRP), asserted that had he been made aware of the risks of not pleading guilty at arraignment, he would have chosen to plead guilty as he initially intended, despite counsel's advice. Supporting declarations from defense counsel and Mr. Burlingame's father corroborate his claim that he would have opted for a guilty plea based on their understanding of the situation during the arraignment.

To succeed in a PRP, a petitioner must demonstrate actual and substantial prejudice from alleged constitutional errors or show a fundamental defect resulting in a miscarriage of justice. The petition must be factual and not merely conclusory, with competent evidence presented to support claims. Effective assistance of counsel is a constitutional right, and to establish ineffective assistance, a petitioner must show both that counsel's performance was deficient and that such deficiency prejudiced the outcome of the case.

A strong presumption exists that counsel’s representation was effective, which can be rebutted by proving that the attorney's conduct was unreasonable under professional norms and lacked sound strategic basis. The evaluation of counsel's performance is based on the circumstances at the time of the alleged error. While there is no constitutional right to plead guilty, Washington's CrR 4.2(a) allows for the acceptance of guilty pleas at arraignment, and a defendant forfeits this right once a not guilty plea is entered.

The State argued during oral arguments that advising a defendant of all constitutional and statutory rights before arraignment would be excessively burdensome for defense attorneys, potentially lengthening preparation time significantly. However, the case centered on Mr. Burlingame's immediate right to plead guilty to a charge before the possibility of a more serious charge being filed against him, following his confessions related to second degree rape. The potential consequences of such an amendment were severe, transforming the sentence from a maximum of five years to a life sentence, and imposing more stringent community custody requirements. Washington’s Rules of Professional Conduct mandate that lawyers must adequately inform clients to facilitate informed decisions regarding their representation, particularly concerning guilty pleas. Competent defendants have the right to plead guilty if the plea is made knowingly and voluntarily, and the decision to plead rests solely with the defendant. Given the imminent risk of a higher charge, the strength of the evidence, and Mr. Burlingame’s interest in pleading guilty, it was concluded that competent counsel should have informed him of his right to plead guilty without needing the prosecutor's consent. Additionally, a defense lawyer’s reliance on an informal comment from the prosecutor regarding a potential charge reduction was deemed questionable. Mr. Burlingame demonstrated actual and substantial prejudice, meeting the Strickland standard by showing that, had he been properly informed, the outcome of the proceeding could have been different, despite not having to accept his retrospective claims at face value.

A defendant's claim that he would have pleaded differently is insufficient proof of prejudice without demonstrating that the alternative plea decision was rational. In Buckman, the Supreme Court established that credible evidence of a defendant’s thought process is significant, and contemporaneous evidence must support expressed preferences. Mr. Burlingame provided strong corroboration for his post hoc claim, including declarations and public records indicating he was eager to plead guilty, even before the victim accused him. He demonstrated a reasonable probability that a rational person in his position would have pleaded guilty to third degree rape, particularly given the risks of facing more serious charges. When a defendant shows ineffective assistance of counsel, actual and substantial prejudice must be proven, indicating that plea proceedings would have likely resulted in a different outcome. The standard remains a "reasonable probability" when claiming ineffective assistance. The remedy for such a claim is to place the defendant where he would have been had effective counsel been present. Accordingly, Mr. Burlingame is granted the opportunity to plead guilty to third degree rape, with directions for the trial court to vacate his conviction for second degree rape if he does so.