IN RE PERSONAL RESTRAINT OF HEPPARD, 25154-0-II (Wash.App. 2-9-2001)

No. 25154-0-II.The Court of Appeals of Washington, Division Two.
Filed: February 9, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Date first document (petition, etc) was filed in Court of Appeals: 10/13/1999 Docket No: Judgment or order under review Date filed: 09/21/1994.

Counsel for Petitioner(s), Michael P. Iaria, Cohen Iaria, 1425 Western Ave. Apt. 108, Seattle, WA 98101-2037.

Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., County City Bldg., 930 Tacoma Ave. S., Tacoma, WA 98402-2177.

FOSCUE, J.P.T.[1]

David J. Heppard seeks relief from personal restraint imposed following his 1994 convictions for first degree rape, first degree robbery, first degree burglary, and intimidating a witness. Heppard argues: (1) he received ineffective assistance of counsel during a decline hearing, during plea bargaining, at trial and sentencing, and on appeal; and (2) the jury instruction on burglary was constitutionally defective.

FACTS[2]
On February 18, 1994, at 7:00 p.m., 16-year-old Heppard, Cecil Morton III, Eldridge Miles, Eugene Jones, Larry Taylor, and Shannon Stewart were driving around. They spotted 17-year-old J.H., who was five months pregnant, walking to a store. None of the men knew J.H.

Morton asked the others in the car if they wanted to rape J.H. After Heppard indicated his willingness, Morton stopped the car and he, Heppard, and one of the car’s passengers forced J.H. into the back seat.

J.H. asked them not to hurt her, but Morton threatened her with a machete and told her if she did not shut up, he would use it on her. Someone also threatened to kill her baby.

Morton drove the group to an area where he and the others took J.H. into the woods. They ordered her to undress and then five or six of them raped her orally and vaginally.

When they finished raping J.H. in the woods, they ordered J.H., who remained naked, back into the car. `They told her unless she took them back to the apartment where she lived, they would kill her or cut her up into little pieces.’ They drove J.H. back to her apartment; on the way, Heppard orally raped her again. Once inside the apartment, Stewart and Jones raped J.H. again, while the others stole items of property belonging to J.H. and her boyfriend. When the men left, J.H. called a friend who, in turn, called 911.

At 8:00 p.m., before dispatch had broadcast notice of the rapes, Pierce County deputies stopped Morton and the others because of `defective equipment’ on the car. During his contact with the vehicle’s occupants, a deputy observed a machete; the occupants were removed and the vehicle searched. During the search, deputies found the items taken from J.H., including her identification card. Unaware of the rapes, the deputies released the six men, but during the traffic stop, Morton had overheard the broadcast of J.H.’s rapes on a police radio. After leaving the deputies, Morton suggested they kill J.H. for contacting police. Heppard agreed. But within several hours, police had arrested all six men.

The State charged Morton and Heppard with (1) conspiracy to commit first degree murder; (2) first degree kidnapping; (3) three counts of first degree rape; (4) first degree robbery; (5) first degree burglary; and (6) intimidating a witness. The juvenile court declined jurisdiction over Heppard.

At Heppard and Morton’s joint trial, attorney Dennis Brouner represented Heppard. Morton testified in his own defense, but Heppard did not. Taylor and Miles testified for the State, as did numerous medical and law enforcement personnel who had either interviewed J.H., Morton or Heppard, or who had overheard Heppard make incriminating remarks while in custody.

The trial court dismissed the conspiracy and kidnapping counts at the end of the State’s case. Later, the jury found Morton and Heppard guilty of the remaining offenses. On the day of sentencing, Brouner moved for a new trial, arguing a prejudicial communication between a juror and Morton’s stepfather. The trial court denied the motion as untimely and sentenced Heppard and Morton each to an exceptional sentence of 720 months.

This court subsequently affirmed their convictions on direct appeal. Heppard now petitions for relief from personal restraint.

ANALYSIS I. Standards of Collateral Review
Heppard `must show, as to each claimed constitutional error which he did not raise on direct appeal, that he was actually prejudiced by the error.’ In re Personal Restraint of Rice, 118 Wn.2d 876, 884, 828 P.2d 1086
(1992). Three options are available regarding constitutional issues presented in a personal restraint petition. First, if the petitioner fails to meet the threshold burden of demonstrating actual prejudice arising from error, the petition will be dismissed. In re the Personal Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983). Second, if the petitioner demonstrates actual prejudice, the petition will be granted. Hews, 99 Wn.2d at 88. Third, if the petitioner makes a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely from the record, the petition will be remanded for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12. Hews, 99 Wn.2d at 88.

As to issues that are not of constitutional magnitude, Heppard `must show that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice.’ Rice, 118 Wn.2d at 884 (citation omitted).

II. Ineffective Assistance of Counsel
In a criminal prosecution, the federal and State constitutions guarantee the right of an accused to the assistance of counsel. U.S. Const. amend VI; Wash. Const. art. I, § 22. Ineffective assistance violates the right to counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). To establish ineffective assistance of counsel, Heppard must show that counsel’s performance was deficient and that the deficiency resulted in prejudice. Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). But there is a strong presumption that counsel has rendered adequate assistance and has made all significant decisions by exercising reasonable professional judgment. Thus, if defense counsel’s conduct can be characterized as legitimate trial strategy or tactics, then it cannot constitute ineffective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Under the prejudice prong, Heppard “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Lord, 117 Wn.2d at 883-84 (quoting Strickland, 466 U.S. at 694). But `when the defendant can establish that counsel was not merely incompetent but inert, prejudice will be presumed.’ Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997). Such a `constructive denial of counsel’ may arise from absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and failure of counsel to subject the State’s case to meaningful adversarial testing. Childress, 103 F.3d at 1228.

A. The Decline Hearing
Heppard contends he was constructively denied the right to counsel because Brouner had a junior associate, who knew nothing about the case, handle the decline hearing. According to the associate, Brouner gave him the assignment the day before the decline hearing; thus, he (the associate) was unable to: subpoena witnesses; obtain an expert; or interview Heppard, his family or adverse witnesses.

Even assuming the associate’s performance at the decline hearing was deficient,[3] Heppard has not demonstrated prejudice. At a decline hearing, the State must show merely by a preponderance of the evidence that the declination of juvenile jurisdiction would be in the best interest of the juvenile or the public. State v. Massey, 60 Wn. App. 131, 137, 803 P.2d 340 (1990); RCW 13.40.110(2). The juvenile court, in turn, considers the evidence in light of the following eight nonexclusive factors:

(1) the seriousness of the alleged offense and whether the protection of the community requires declination; (2) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against persons or only property; (4) the prosecutive merit of the complaint; (5) the desirability of trial and disposition of the entire case in one court, where the defendant’s alleged accomplices are adults; (6) the sophistication and maturity of the juvenile; (7) the juvenile’s criminal history; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile through services available in the juvenile system. State v. Furman, 122 Wn.2d 440, 447, 858 P.2d 1092
(1993) (footnote omitted). Also relevant is whether the juvenile is capable of serving the juvenile standard range penalty for the offenses before turning 21.

See Furman, 122 Wn.2d at 448; RCW 13.40.300(1). We review the juvenile court’s decision for an abuse of discretion. Furman, 122 Wn.2d at 447.

Guided by the factors listed above, the juvenile court concluded that declination was required because, among other things: (1) `serious bodily injury could have resulted to the victim’; (2) `the respondents discussed and set out with a plan to kidnap, rape and take money from a victim’ and they `threatened to kill the victim’; (3) the `alleged crimes were against the victim and her property in her apartment’; (4) `[t]here is substantial evidence that [Heppard] committed all of these acts as charged’; (5) Heppard had been consciously ignoring parental authority since 1991; (6) Heppard’s `contacts with police for criminal conduct are not slight’; and (7) `the rehabilitation of [Heppard] is beyond the services of the juvenile court.’ Moreover, 16-year-old Heppard could not have remained in the juvenile system long enough to satisfy even the minimum juvenile standard sentence of 6.5 years.[4]

Heppard does not challenge these findings and has not identified any evidence that might have persuaded the juvenile court to retain jurisdiction. Rather, he argues that prejudice should be presumed because Brouner and the junior associate worked for a firm that `emphasi[zed] . . . high-volume and marketing’ and charged only $2,000 for his defense.

Per se violations of the right to counsel include representation by an attorney either implicated in the defendant’s crime or who `was not licensed to practice law because he failed to satisfy the substantive requirements of admission to the bar.’ United States v. O’Neil, 118 F.3d 65, 71 (2nd Cir. 1997). But `conflicts of interest between attorney and client that do not rise to the level of per se violations . . . may [also] jeopardize the adequacy of representation.’ O’Neil, 118 F.3d at 71. `In order to prevail on a conflict of interest claim, the defendant must establish an actual conflict of interest that resulted in a lapse of representation.’ O’Neil, 118 F.3d at 71 (citation omitted). `[C]ourts generally presume that counsel will subordinate his or her pecuniary interests and honor his or her professional responsibility to a client.’ United States v. Taylor, 139 F.3d 924, 932 (D.C. Cir. 1998).

Heppard has not established that an actual conflict required either of his `defense attorney[s] to make a choice advancing [their] own financial interests to the detriment of’ Heppard’s defense. United States v. Marrera, 768 F.2d 201, 207 (7th Cir. 1985). The State persuasively argues that Heppard `asks this court to make unreasonable and unsupported inferences’ to reach a presumption of prejudice simply from the low cost of Heppard’s defense and the high-volume, marketing-intensive nature of defense counsels’ firm.[5]

Heppard was not denied the right to counsel at the decline hearing.[6]

B. Plea Bargaining
`In a plea bargaining context, `effective assistance of counsel’ merely requires that counsel `actually and substantially [assist] his client in deciding 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)).

Heppard argues that Brouner was ineffective during plea negotiations for not informing him: (1) about the standard sentence range or the amount of early-release time; (2) that the State might seek an exceptional sentence; or (3) that multiple rape convictions would produce consecutive sentences. Heppard asserts, `If he [Brouner] had informed me of these potential consequences of going to trial, I would have entered an Alford plea to avoid the type of sentence I in fact received.’[7]
But Heppard concedes in his affidavit that he was informed `the State was offering a 20-year sentence in exchange for [his] guilty plea.’[8]
According to the State, Brouner told the prosecutor that `[Heppard] refused to plead guilty to anything.’ (Emphasis added.)[9]

Substantially all the information about Brouner’s discussion with Heppard comes from Heppard. No declaration from Brouner was submitted. No testimony with cross-examination was taken from Heppard. No contemporaneous documents were submitted. Heppard’s declarations establish prima facie proof that his lawyer’s performance was deficient in advising him of the consequences of rejecting the plea offer and going to trial.

The lawyer’s obligation extends beyond merely relaying the plea offer to the client; the lawyer must provide the client `with sufficient information to make an informed decision on whether or not to plead guilty.’ Personal Restraint of McCready, 100 Wn. App. 259, 263, 996 P.2d 658 (2000).

But Heppard fails to establish the prejudice prong. Heppard must establish, not only that his lawyer’s performance was deficient, but also that there is a reasonable probability he would have accepted the offered plea bargain if he received constitutionally adequate advice from counsel. State v. James, 48 Wn. App. 353, 363, 739 P.2d 1161
(1987).[10]
Courts presented with the issue of whether a defendant was prejudiced by the deficient performance of counsel in the context of a rejected plea bargain have the difficult task of protecting the defendant’s constitutional rights while not being overwhelmed by the ease with which such post-convictions assertions may be made. The California Supreme Court has commented on this issue:

We note the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain. . . . `It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence. . . .’ (Strickland v. Washington, supra, 466 U.S. at p. 689, 104 S.Ct. at p. 2065). Furthermore, such a claim may be difficult or impossible to refute directly. The attorney-client privilege may protect against disclosure of the precise information given a defendant by counsel during the plea negotiation process until the defendant decides to waive that privilege, possibly years later, when claiming he or she was incompetently counseled. At that time, defense counsel’s recollection of the communications and advice given the client and the client’s response to that advice, if unrecorded, may well have faded or disappeared entirely. Thus, in reviewing such a claim, a court should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain.

In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include:

whether counsel actually and accurately communicated the offer to the defendant; the advise, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.

In this context, a defendant’s self-serving statement — after trial, conviction and sentence — that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.

In re John P. Alvernaz on Habeas Corpus, 2 Cal.4th 924, 938, 830 P.2d 747, 756, 8 Cal.Rptr.2d 713, 722 (1992).[11] Here Heppard fails to establish the prejudice factor.

The State’s offer was result-oriented — if Heppard pleaded guilty to unspecified counts the State would recommend a sentence of 20 years. There is no suggestion this plea possibility was not communicated to the defendant. There is no objective evidence at the time that the defendant was willing to resolve the case by a plea. He did not, for example, make a counter-offer or assert an interest in continuing to discuss a plea; rather, he flatly refused to plead guilty to anything.[12]

What the defendant was told about the consequences of going to trial is uncertain; the only evidence in this regard is the self-serving assertions of Heppard. But it is evident that his jeopardy was great since he was charged with conspiracy to commit murder; kidnapping in the first degree; three counts of rape in the first degree with a deadly weapon; robbery in the first degree with a deadly weapon; and burglary in the first degree. Heppard cannot and does not argue that he was unaware that his potential sentence, should he go to trial, would be significantly greater than the 20 years the State offered. He does not assert that he was unaware the judge could give an exceptional sentence, merely that he was not told `that the State would likely seek an exceptional sentence if I were convicted.’ The actual standard ranges lose relevance when the defendant received an exceptional sentence beyond the standard range.

Heppard maintained his innocence at trial and in his post-trial statements for his presentence report. He maintains his innocence in this personal restraint petition. Theses factors weigh against the reasonable probability that he would have pleaded guilty had his attorney’s advice been competent. See Engelen v. United States, 68 F.3d 238 (1995). Furthermore, he did not raise this issue at sentencing or on appeal. He is first giving voice to this perceived substantial injustice six years after it was inflicted upon him. Finally, as noted in footnote 5, if Brouner’s economic self interest played any role in this case it would have been in favor of advising Heppard to plead guilty this would reduce the time involved and increase his hourly rate. These circumstances support what Brouner reported Heppard would not plead guilty to anything.

Even assuming Heppard met the performance prong of the Strickland test regarding plea bargaining, he has not met the requirements of the prejudice prong. He has not established that there is a reasonable probability that he would have pleaded guilty had his counsel’s advice been adequate.[13]

C. Trial 1. Brouner’s Overall Representation
Heppard first argues that he was constructively denied the right to counsel because `Brouner fail[ed] to subject the State’s case to adversarial testing.’ Heppard states that, on the first day of trial, Brouner arrived in court without his case file. But on the first day of trial, the court merely continued the case because the jail was unable to bring Heppard to court. Brouner’s failure to bring the case file to court hardly justifies a prima facie finding of prejudice to Heppard’s defense. Bare assertions and conclusory allegations are insufficient to command judicial consideration in a personal restraint proceeding. Rice, 118 Wn.2d at 886.

Heppard also states that Brouner `asked virtually no questions on cross examination.’ This is simply inaccurate. Brouner cross-examined each of the State’s three witnesses at the CrR 3.5 hearing, and 12 of the State’s 24 trial witnesses. Heppard has not identified a single deficiency in Brouner’s cross-examinations, and `even a lame cross-examination will seldom, if ever, amount to a Sixth Amendment violation.’ Pirtle, 136 Wn.2d at 489.

Moreover, Brouner informed the trial court, while Larry Taylor was on the witness stand, `We [Brouner and Morton’s defense counsel] are trying to split [cross-examination] up.’ Brouner also indicated that he would be coordinating with Morton’s defense counsel the cross-examination of Eldridge Miles in order to avoid `duplicity.’ Morton’s defense counsel generally questioned witnesses first and, throughout the trial, Morton’s defense counsel cross-examined the State’s witnesses on issues pertaining directly — and often only — to Heppard. Heppard has not established that any limitation in Brouner’s cross-examination occurred for a reason other than avoidance of duplicative cross-examination.[14]

Finally, Heppard argues that the law firm for which Brouner worked `accept[ed] far too many clients to allow the associates, including Brouner, to perform competently.’ But, as discussed above in Part II. A., Heppard has not provided any evidence connecting the firm’s business practices to Brouner’s performance. Again, bare assertions and conclusory allegations are insufficient to command judicial consideration in a personal restraint proceeding. Rice, 118 Wn.2d at 886.

In addition to the cross-examination conducted for Heppard’s defense, Brouner: (1) argued CrR 3.5 and jury selection issues; (2) actively and substantially participated in opposing the State’s in limine motions; (3) made opening and closing statements; (4) interposed at least 26 successful evidentiary objections throughout trial, and (5) successfully argued for dismissal of the kidnapping and conspiracy counts. Contrary to Heppard’s assertion, Brouner’s failure to call witnesses on Heppard’s behalf does not impugn the extent of Brouner’s overall participation in the trial; Heppard does not identify a single witness who could have provided exculpatory testimony.

In short, Brouner’s overall trial performance did not constructively deny Heppard his right to counsel.

2. Adequacy of the Robbery Count
Heppard contends he received ineffective assistance because Brouner failed to move for dismissal of the first degree robbery count after the State had rested its case and before the jury returned a verdict. The State concedes the robbery charge failed to contain the necessary allegation that someone other than the defendant had an ownership or possessory interest in the property taken. See State v. Bacani, 79 Wn. App. 701, 704, 902 P.2d 184 (1995). The State argues that Heppard was not prejudiced because had Brouner moved to dismiss the robbery count the State could have amended the information even after the State rested. An amendment, the State argues, would not violate the bright line rule that `any amendment from one crime to a different crime after the State has rested its case is per se prejudicial error (unless the change is to a lesser included or lesser degree crime) protects the constitutional right of the accused to be informed of the nature of the offense charged.’ State v. Vangerpen, 125 Wn.2d 782, 791, 888 P.2d 1177
(1995). An amendment to correct the deficiency, the State argues, would not change the charge from one crime to another, but would merely add an omitted essential element. Furthermore, Heppard would not be prejudiced by the amendment.

This court recently resolved a similar issue. In State v. Phillips, 98 Wn. App. 936, 991 P.2d 1195 (2000), as in the present case, the information charging robbery failed to allege that the stolen property belonged to someone other than the defendant. The information was not challenged until after the State had rested and, thus, could not amend the information. We held that the information should be construed liberally for policy reasons. When liberally construed the phrase `did unlawfully and feloniously take personal property with intent to steal’ `fairly informs the defendant that the State is alleging that he stole property belonging to someone other than himself’ because `[t]o `steal’ means to feloniously take the property of another.’ St. v. Phillips, 98 Wn. App at 944. The information here used words `with the intent to commit theft,’ words which are equivalent to `with intent to steal.’ Thus construed, the information was sufficient.

3. Incomplete Knapstad Motion
Heppard contends that Brouner provided ineffective assistance at the start of trial by moving for dismissal of the conspiracy to commit murder count without supportive affidavits. The trial court treated the motion as one under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986), and denied it as incomplete because it was unsupported by affidavit. The State persuasively responds that Heppard has not demonstrated prejudice, given that the trial court dismissed the conspiracy count at the close of the State’s case-in-chief.

Furthermore, counsel properly raised essentially the same issue before trial in another manner. The State added the conspiracy to commit murder charge by amended information. At the arraignment on the amended information, counsel challenged the sufficiency of the affidavit of probable cause to support the conspiracy charge, which failed to allege evidence of a substantial step taken in furtherance of the conspiracy. The arraignment judge, who was different from the trial judge, reserved ruling.

When the matter was renewed before trial, the trial judge treated the motion as a Knapstad motion that was unsupported by affidavits. In essence, an `incomplete’ Knapstad motion provides no basis for error where the issue was properly raised in another manner before trial[15]
and the motion was granted at the close of the State’s case.

4. Failure to Move for Severance of Defendants
Heppard argues that Brouner should have moved to sever Morton’s trial from Heppard’s `because Morton’s extrajudicial statements to the police clearly implicated Mr. Heppard in the crimes charged, and Mr. Heppard’s and Morton’s statements and defenses were mutually antagonistic.’ To prevail on an ineffectiveness claim based on counsel’s failure to seek severance, Heppard must show that the trial court would have granted severance and that there is a reasonable possibility the result of the trial would have been different. State v. Warren, 55 Wn. App. 645, 653-54, 779 P.2d 1159 (1989). Heppard fails to meet the prejudice prong of this test. Morton’s out-of-court statements closely mirrored the testimony of co-conspirators Taylor and Miles. For instance, both Morton and Taylor said that Heppard forced J.H. into the car. Morton, Taylor, and Miles each said that Heppard orally raped J.H. while en route to J.H.’s apartment. Detention Specialist Ronald Foreman testified that he heard Heppard tell another juvenile detainee, `I stuck my d[***] in her mouth, nigger, I just started beating that shit.’ Although only Morton said he saw Heppard take J.H.’s jewelry and telephone, Detective Adamson testified that, when interviewed, Heppard admitted taking J.H.’s telephone. Deputy Sheriff Osborne testified that she heard Heppard admit to taking J.H.’s telephone, and that, the day after the crimes Heppard also said:

This conspiracy shit won’t fly with all the other charges there are. . . . That f[******] whore, she practically invited us over to her place. . . . She probable [sic] deserved it anyway.

Moreover, much of Morton’s trial testimony benefited Heppard’s defense. Morton testified that (1) his statement to Detective Adamson, that Heppard had told J.H. I’ll `break your back,’ was merely a sexual boast to persuade J.H. to have sex; and (2) J.H. willingly engaged in sex and invited everyone back to her apartment. Thus, even had the court severed Morton’s trial from Heppard’s, the result would have been the same. Furthermore, apparently there was an omnibus order in the file regarding Morton, which provided:

It is ordered regarding custodial statements by the defendant, that no custodial statements will be offered in the State’s case in chief or in rebuttal.

Although, following a mid-trial hearing, the trial judge ruled that there was `no meeting of the minds’ between the prosecutor and Morton’s counsel regarding the order, it may well have been a factor Heppard’s counsel considered in evaluating the likely success of a motion to sever.

5. Failure to File a Motion to Suppress
Heppard contends that Brouner was ineffective because he failed to seek suppression of the items found during the traffic stop of Morton’s vehicle. But defense counsel’s failure to challenge a search does not constitute ineffective assistance unless a suppression motion would have been granted and the outcome of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). Here, a suppression motion would have failed.

According to Deputy Sheriff Kyle Hiller, he made a traffic stop of Morton’s vehicle because of `defective equipment.’ Hiller testified that Deputy Sheriff Jeffery Alwine contacted the passengers in the vehicle, and saw his seat belt wasn’t on, so he asked for his I.D. He was asking through the window and to roll the window down. The window wouldn’t roll down. So the passenger in the passenger seat opened the door, and that’s when Deputy Allwein [sic] located a machete in the vehicle.

Alwine testified that, because he was having difficulty explaining to the passengers the reason for the stop through the partially closed passenger-side window, he asked one of the passengers to roll it down. Upon being informed that neither the window nor door could be opened from the inside of the car, Alwine opened the door and saw, in plain view, a machete. The passengers were then removed and the car searched; during the search, Alwine found J.H.’s identification card and items stolen from her apartment.

Citing State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999), Heppard maintains that the search was unconstitutional. In Mendez, the Supreme Court held that, during a routine traffic stop, police must have an articulable rationale predicated upon safety considerations before ordering passengers out of the car or to remain in the car. 137 Wn.2d at 211. The State argues that Mendez cannot be given retroactive application. Neither party cites the earlier case of State v. Larson, 93 Wn.2d 638, 642, 611 P.2d 771 (1980), where the Supreme Court held that a traffic violation `committed by the driver does not reasonably provide an officer with grounds to require identification of individuals in the car other than the driver, unless other circumstances give the police independent cause to question passengers.’

Here, if Hiller’s testimony is accurate, Alwine had a legitimate reason to request identification: violation of the seat belt law, RCW 46.61.688(5) (`A person violating this section shall be issued a notice of traffic infraction. . . .’). And when the passenger opened the door to provide identification, Alwine was in a lawful place from which to view the machete. If Alwine’s version is accurate, he was essentially invited to open the door to facilitate communications with the passengers, and he saw the machete in plain view.

Consequently, the ensuing patdown search of the vehicle was constitutional, and any motion to suppress would have been unsuccessful. Brouner did not provide ineffective assistance when he failed to move for suppression.

6. Failure to Bring Motions in Limine
Heppard asserts that Brouner provided ineffective assistance by not moving to exclude evidence of Heppard’s gang affiliation. Although gang affiliation evidence may be suggestive of violent activity, and thus prejudicial, the evidence here went no further than necessary to place the relationship of the perpetrators in context and reveal any potential bias. Thus, had Brouner moved to exclude such evidence, the trial court would not have abused its discretion in admitting the evidence. See United States v. Thomas, 86 F.3d 647, 653 (1996) (evidence of gang affiliation is not unfairly prejudicial so long as the evidence does not substitute for direct evidence of guilt of the crimes charged); ER 403. Furthermore, both Brouner and Morton’s counsel tried to elicit testimony on how women are initiated into gangs, apparently as an aspect of the defense.[16]

Brouner did not provide ineffective assistance of counsel by failing to move to exclude evidence that police knew him from prior contacts. The only evidence Heppard identified to show such knowledge is that Deputy Sheriff Scott Wheeler `was familiar with a couple of the suspects from prior contacts.’ (Emphasis added.) Heppard has not met his burden of identifying evidence to support the claimed error. See Rice, 118 Wn.2d at 886.

Likewise, Heppard has not identified with specificity which of J.H.’s statements Brouner should have challenged as inadmissible under ER 803(2), the excited utterance exception to the hearsay rule. Heppard merely states that J.H.’s `narrative accounts to the officers who arrived in response to the [911] call did not’ qualify as excited utterances. Thus we do not consider this aspect of Heppard’s challenge to Brouner’s performance. Rice, 118 Wn.2d at 886 (stating that `[b]ald assertions and conclusory allegations will not support’ the granting of relief); In re Personal Restraint of Williams, 111 Wn.2d 353, 364-65, 759 P.2d 436
(1988).

Finally, Brouner was not ineffective for failing to move before trial to exclude cumulative evidence of J.H.’s account of her ordeal.[17]
Morton’s counsel had moved to exclude such evidence early in the trial and the trial court ultimately granted the motion.

7. Failure to Request a Petrich Instruction
When the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct, the State must either elect the act upon which it will rely for conviction, or the trial court must instruct the jury that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).

The State concedes that the `to convict’ instruction for count IV, first degree rape,[18] fails under Petrich. But the State argues that `the deputy prosecutor very well may have told the jury in closing arguments what act to rely on,’ and Heppard has not shown otherwise. (Emphasis added.)

Heppard’s appellate counsel did not order the transcripts of the closing statements. Nevertheless, Heppard failed to show prejudice. Heppard asserts that a Petrich instruction was required because `reasonable jurors could have had a reasonable doubt that Mr. Heppard or a particular codefendant engaged in penile-vaginal intercourse with the victim in the woods.’ But the evidence was overwhelming that J.H. was raped in the woods: J.H. so testified, as did Taylor and Miles. The absence of a Petrich instruction did not prejudice Heppard.

D. Sentencing
Heppard first seeks a presumption of prejudice from Brouner’s performance at sentencing because of Brouner’s `law firm’s financial conflict.’ As discussed above in Parts II.A. and II.C.1, Heppard has not established any connection between the practices of the firm and Brouner’s performance.

Heppard also attacks Brouner’s performance under Strickland, arguing that the sentencing court’s reliance on deliberate cruelty and lack of remorse to impose an exceptional sentence was unjustified, and Brouner could have challenged it.

As the State argues, any challenge by Brouner would have failed. The finding of deliberate cruelty was sufficient:

[J.H.] was abducted off the street, driven to an isolated wooded area and gang raped by five persons. Throughout the ordeal [Heppard] and his accomplices threatened to kill [J.H.] with a machete. . . . [Heppard’s] accomplice . . . threaten[ed] to cut the baby out of [J.H.’s] stomach. [Heppard’s] accomplice also . . . stat[ed] that he had `heard pregnant women make great p[****]. Throughout the ordeal the naked and blindfolded victim was further humiliated when she was forced to ride around in [Morton’s] vehicle. See State v. Smith, 82 Wn. App. 153, 162, 916 P.2d 960
(1996) (finding deliberate cruelty from two-hour rape in which victim was threatened with death, forced to disrobe and perform oral sex); State v. Dennis, 45 Wn. App. 893, 897, 728 P.2d 1075 (1986) (finding deliberate cruelty from gang rape).

The finding of lack of remorse was also sufficient:

[Heppard] was overheard stating to his accomplices after the arrest, `No big deal anyway, she’s nothing but a f[******] whore, she probably deserved it anyway. . . .’ That prior to the arrest and upon learning that the victim had reported the incident to the police, [Heppard] agreed with his accomplices that they should return to [J.H.’s] residence to kill her so that she could not testify against them. See State v. Burkins, 94 Wn. App. 677, 698, 973 P.2d 15
(1999) (a defendant’s contempt for the victim is sufficient to show lack of remorse).

The lack of remorse was noted in the Presentence Investigation and was apparent in Heppard’s statements to the report’s author.

E. Motion for a New Trial
Arguing that Brouner was ineffective for not timely moving for a new trial, Heppard provides the affidavit statements of his father and Morton’s stepfather. According to the stepfather, a juror spontaneously told him `in the latrine during a break in . . . [the] trial,’ `not to worry[,] we’ll take care of them.’ Heppard’s father states that he `reported this to Mr. Brouner, who did nothing about it until’ sentencing, nearly two months later. Heppard’s father also states that Morton’s stepfather told him the juror had also `made a racist comment when speaking about [Heppard] and Mr. Morton, both of whom are black.’ No one suggests which juror is supposed to have made the statements.

On the date set for sentencing, during argument on the motion, Morton’s defense counsel told the court:

I spoke to Mr. Morton’s stepfather last night. And he admitted that any of the statements made to him by a juror that the other defense attorney was not near. It was my intention to file a motion. I was aware of the statement — alleged statement, but the inflammatory nature is not what I was told last night. I can say this in all candor to the court, I wish that the nature of the language was that bad. . . .

(Emphasis added.) The court denied Brouner’s motion for a new trial as untimely.

`Under Washington law, the right to a jury trial includes the right to an unbiased and unprejudiced jury.’ State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994). Heppard requests, at a minimum, remand for a reference hearing. The State argues that the affidavits contain inadmissible hearsay and that the `unidentified juror’s statement is fraught with ambiguity.’

This may be a proverbial `close call,’ but, as the State points out, a reference hearing will not be granted absent `evidence showing that [the petitioner’s] factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.’ Rice, 118 Wn.2d at 886.[19]
Consequently, Heppard’s claimed error fails.

F. Appeal
Heppard contends he received ineffective assistance on appeal because appellate counsel failed to `address many meritorious issues . . . raised in th[e] personal restraint petition’; or `order transcripts of closing arguments and the colloquy on jury instructions.’ Heppard also maintains he is entitled to a presumption of prejudice because `[a]ppellate counsel’s representation was so deficient that it was the functional equivalent or [sic] having no appellate representation or appeal at all.’[20]

The exercise of independent judgment in deciding which issues form the basis of a successful appeal is at the heart of the attorney’s role in our legal process. In re Personal Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). Accordingly, the failure to raise all possible nonfrivolous issues on appeal does not constitute ineffective assistance of counsel. Lord, 123 Wn.2d at 314.

In order to prevail on an appellate ineffective counsel claim, the petitioner `must show the merit of the underlying legal issues his appellate counsel failed to raise or raised improperly and then demonstrate actual prejudice.’ Lord, 123 Wn.2d at 314. This, Heppard has not done.

II. The Defective Burglary Instruction
The State concedes that the jury was improperly instructed that, once the State showed Heppard’s presence in J.H.’s apartment, a finding that he intended to commit a crime was compelled unless Heppard offered a satisfactory explanation as to why he was in the apartment.[21] See State v. Deal, 128 Wn.2d 693, 701, 911 P.2d 996 (1996). Nevertheless, that error is harmless if this court `is convinced beyond a reasonable doubt that the same result would have been reached in the absence of the error.’ Deal, 128 Wn.2d at 703. Thus, it is necessary to determine if the State established Heppard’s intent to enter or remain unlawfully in J.H.’s apartment with the intent to commit a crime. See RCW 9A.52.020(1).

Here, the overwhelming evidence showed that Heppard and his accomplices returned J.H. to her apartment `[t]o take her stuff’ and, once there, resumed raping her. The defective burglary instruction did not harm Heppard.[22]

CONCLUSION
The personal restraint petition is denied.

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 pursuant to RCW 2.02.040, it is so ordered.

WE CONCUR: SEINFELD, P.J., HOUGHTON, J.