STATE v. THOMAS, 27388-8-II (Wash.App. 3-4-2003)

No. 27388-8-IIThe Court of Appeals of Washington, Division Two.
Filed: March 4, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 96-1-01663-4 Judgment or order under review Date filed: 05/18/2001

Counsel for Appellant(s), John Christopher Hillman, Pierce County Prosecuting Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.

Counsel for Respondent(s), Robert Mason Quillian, Attorney at Law, 2633 Parkmont Ln S.W. Ste a, Olympia, WA 98502-5793.

SEINFELD, J.

At the direction of the Washington State Supreme Court, the Pierce County Superior Court reviewed Gregory Thomas’ personal restraint petition (PRP) and determined that Thomas had not received effective assistance of trial counsel during his earlier trial on the charge of unlawful delivery of a controlled substance. Consequently, the superior court reversed Thomas’ conviction and vacated his sentence. The State appeals. We affirm, holding that (1) the superior court had authority to review the entire record from the earlier trial in examining this issue; (2) there is substantial evidence to support the trial court’s findings; and (3) the findings support the conclusions of law.

FACTS
Following a trial in 1996, a jury found Thomas guilty of the unlawful delivery of a controlled substance to a confidential informant, Nadine Salizar. Thomas was represented at trial by appointed counsel, Kenneth Rossback.

Thomas appealed his conviction, raising ineffective assistance of counsel claims in his pro se supplemental brief.[1] This court affirmed Thomas’ conviction, holding that the trial record did not establish that Rossback’s representation fell below an objective standard of reasonableness.[2]

Thomas then filed a PRP, which included a claim of ineffective assistance of counsel. In an unauthorized supplemental reply to the State’s response, he included the deposition of Donna Fein, a witness who claimed that Thomas did not sell drugs to Salizar. Ruling that the deposition was not timely submitted, this court declined to consider it and dismissed the PRP.

The Washington Supreme Court then granted Thomas’ motion for discretionary review of the dismissal and later remanded the PRP to this court for our reconsideration of it along with Fein’s deposition. After reviewing the deposition, this court again dismissed the PRP. Although a Supreme Court commissioner denied Thomas’ request for discretionary review of the second dismissal, the court granted his motion to modify the commissioner’s ruling and then transferred the PRP `to Pierce County Superior Court for consideration on the merits.’ Clerk’s Papers (CP) at 51.

The superior court conducted a three-day evidentiary hearing on the petition, during which it heard testimony from Rossback; Thomas; Thomas’ mother; two of Thomas’ friends; and Adrianna Kennedy, a friend who allegedly had been available to testify at the trial that Salizar used drugs while working as an informant. The superior court also heard the videotaped testimony of Donna Fein, now deceased, who allegedly was available to testify at trial that Thomas did not sell drugs to Salizar on the day in question.

After considering the entire trial record and the evidentiary hearing record, the superior court entered the following findings of fact:

1. [Trial counsel] did no independent investigation using the investigator available through DAC [Department of Assigned Counsel] to locate witnesses to the events at the house while the CI [confidential informant Salizar] was present;
2. [Trial counsel] did not issue a subpoena to Sharon Joy Anderson to secure her defense testimony favorable to Petitioner;
3. [Trial counsel] did not issue a subpoena to the CI or ask for additional time to recall the CI to confront her with Moira Bordman’s impeachment evidence of drug use;
4. [Trial counsel] did not have any reason for failing to impeach the CI using the Bordman information;
5. [Trial counsel] did not make any motion to limit reference to Petitioner’s prior involvement with drugs, and had no reason for not doing so, while admitting that such a motion would probably have been granted;
6. [Trial counsel] did not advise his client that information relating to his involvement with drugs could be suppressed and not go before the jury if he testified;
7. [Trial counsel] did not call or attempt to call Donna Fein, who offered impeachment testimony against the CI;
8. [Trial counsel] did not prepare his client for questions relating to inadmissible information;
9. [Trial counsel] did not raise any objections about improper questions by the prosecutor posing a hypothetical solicitation to buy drugs by the CI to Petitioner in cross examination;
10. [Trial counsel] emphasized his client’s answer to an improper question when he did raise an objection after his client objected to its incriminating nature;
11. [Trial counsel] did not share the State’s discovery with his client and discuss what was needed in the way of evidence to refute the statements of the CI and her summary of the transaction to officers; and
12. [Trial counsel] did not call or talk to Adrianna Kennedy who could have offered impeachment testimony against the CI.

V CP at 761.

Based on these findings, the superior court concluded that (1) Rossback’s failure to perform the combination of actions established that his representation was not reasonable under the circumstances; and (2) Thomas had shown by a preponderance of the evidence that but for Rossback’s accumulated errors, the results of the trial `would have been different.’ V CP at 762. Consequently, the superior court reversed Thomas’ conviction without prejudice to the State retrying the matter.

At the 1996 trial, the State’s case in chief consisted of the testimony of two West Sound Narcotic Enforcement Team (WSNET) detectives and Salizar. Salizar had been working as a confidential informant for WSNET since her November 1995 arrest for delivering methamphetamine to an undercover officer. WSNET rules prohibited her use of drugs while acting as an informant.

After receiving information that Thomas was selling heroin at a residence on State Route 302, WSNET arranged for an undercover operation on March 13, 1996. Thomas lived in a camper behind the main house and, according to Thomas, at least three other drug addicts lived on the property.

Before sending Salizar to the residence, WSNET officers searched her person and her vehicle for contraband, and provided her with $40 in noted funds. The officers watched Salizar exit her vehicle at the property but they then lost sight of her because bushes obstructed their view. Salizar was out of the officers’ view for about ten minutes. Afterwards, Salizar met the officers at a prearranged location and handed them two pieces of a brown tar-like substance wrapped in plastic. According to Salizar’s trial testimony, she met with Thomas in a camper on the property, told him that she wanted `two $20 [heroin] pieces,’ and handed him $40 after he handed her two pieces. Exhibit 1 at 80. Salizar testified that she and Thomas previously had had a `couple little arguments or things over the phone,’ but did not have any conflicts or confrontations. Exhibit 1 at 92. She also testified that she did not use drugs after her 1995 arrest. On the first day of trial, defense attorney Rossback advised the court that he intended to call Sharon Joy Anderson. But the next day, he said that he was unable to locate or bring in witnesses who would have been available to impeach Salizar’s credibility. Thomas testified that he did not like Salizar and would not have anything to do with her because on a previous occasion she had sold him `crystal’[3] that turned out to be rock salt. Exhibit 2 at 114. He said that Salizar had approached the camper and talked to him for about a minute on March 13, 1996, but that she did not ask him for drugs and he did not sell her drugs. He testified that Gary Wise, Jr. and Sharon Joy Anderson were in the camper when Salizar approached it. Defense counsel Rossback offered the testimony of Moira Bordman regarding Salizar’s reputation, but the trial court sustained the State’s objection to this testimony. Thus, Thomas was the only defense witness. On appeal, the State contends that the superior court lacked jurisdiction to consider any claims not specifically identified in Thomas’ PRP and that the record does not support the conclusion that Thomas received ineffective assistance at the 1996 trial.

DISCUSSION I. Superior Court’s Consideration of Issues Not Raised in the PRP
In his PRP, Thomas based his ineffective assistance claim on Rossback’s failure to properly investigate, interview witnesses, subpoena and produce witnesses to impeach Salizar, and present evidence of his innocence. Nonetheless, he argues that when the Supreme Court transferred his PRP to the superior court for a determination on the merits (as compared to a reference hearing), it vested the superior court with broad latitude and discretion in determining the scope of the inquiry. He also asserts that his ineffective assistance claims encompassed allegations that Rossback failed to consult with him, present defenses, and keep him informed of developments and procedures during trial.

If the appellate court is unable to determine a PRP solely on the record, it has the authority to remand the PRP to superior court either for a determination on the merits or for a reference hearing. RAP 16.11(b). On remand, the rules of evidence apply and the parties have the right to reasonable discovery and to subpoena and cross-examine witnesses. RAP 16.12. When an appellate court transfers a PRP to superior court for a determination on the merits, the `superior court shall enter findings of fact and conclusions of law and an order deciding the petition’ upon conclusion of the hearing. RAP 16.12.

Appellate courts have original jurisdiction in personal restraint proceedings. RAP 16.3(c). Superior courts do not have jurisdiction `to consider issues that are properly the subject of PRPs unless those issues have first been presented in a PRP filed with the appropriate appellate court[.]’ State v. Mott, 49 Wn. App. 115, 119, 742 P.2d 158 (1987).

In Mott, the petitioner did not move to add additional bases for attacking his conviction until after the transfer of his PRP to the superior court for a decision on the merits. 49 Wn. App. at 116-17. The superior court denied the motion to add these grounds based upon jurisdictional concerns; the reviewing court affirmed, reasoning that if petitioners could add additional bases at the superior court level, they could improperly bypass the appellate court. Mott, 49 Wn. App. at 117-19.

The situation here differs from that in Mott. Thomas raised the issue of ineffective assistance in his PRP, but he did not identify every alleged specific instance of ineffective assistance that the superior court later considered. Further, the Supreme Court’s order granting review and transferring the PRP to the superior court contained no limitation of the issues.[4] See e.g., In re Brett, 142 Wn.2d 868, 872, 16 P.3d 601 (2001) (Supreme Court transferred PRP to superior court for a reference hearing to investigate whether counsel had rendered ineffective assistance); In re Gentry, 137 Wn.2d 378, 386 n. 2, 972 P.2d 1250 (1999) (Supreme Court transferred PRP to superior court for a reference hearing solely on claim that jurors spoke to the victim’s family and a deputy sheriff during trial); In re Benn, 134 Wn.2d 868, 882, 952 P.2d 116
(1998) (Supreme Court transferred PRP to superior court for an evidentiary hearing and entry of findings of fact limited to three questions).

When considering ineffective assistance of counsel claims, ‘[c]ompetency of counsel is determined based upon the entire record below.’ State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The court must first determine if counsel’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances. McFarland, 127 Wn.2d at 334-35 (emphasis added). Thus, to review Thomas’ PRP, the superior court needed to consider the entire trial record and the evidence submitted at the PRP evidentiary hearing. Given this constitutional standard, the superior court properly made findings regarding specific instances of defective performance that contributed to the overall conclusion of ineffective assistance of counsel.

II. Superior Court’s Consideration of Issues Previously Reviewed on Direct Appeal
Citing In re Metcalf, 92 Wn. App. 165, 963 P.2d 911 (1998), the State asserts that the doctrine of collateral estoppel barred the superior court from considering Rossback’s trial conduct. It argues that Thomas had relied, in part, on Rossback’s trial conduct to support the claim of ineffective assistance on direct review. After reviewing the record, we held that Rossback’s representation did not fall below an objective standard of reasonableness.

Appellate courts generally do not review issues that petitioners raise in PRPs if they were previously raised on direct review because PRPs are `not meant to be a forum for relitigation of issues already considered on direct appeal[.]’ In re Lord, 123 Wn.2d 296, 329, 868 P.2d 835 (1994). PRPs are meant to allow for consideration of fundamental errors that actually prejudiced the petitioner. Lord, 123 Wn.2d at 329. But petitioners may obtain a second review upon showing that a reexamination would serve the ends of justice. Gentry, 137 Wn.2d at 388.

Further, a petitioner may raise new issues in a PRP, `including both errors of constitutional magnitude and nonconstitutional errors [that] constitute a fundamental defect and inherently result in a complete miscarriage of justice.’ Lord, 123 Wn.2d at 303. Thus, the `mere fact that an issue was raised on [direct] appeal does not automatically bar review in a PRP.’ In re Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986).

The petitioner in Metcalf challenged state statutes that mandated deductions from prisoners’ funds and wages. 92 Wn. App. at 172. A federal district court had dismissed an earlier federal class action challenging the same funds statute on similar federal constitutional grounds. Metcalf, 92 Wn. App. at 172.

Although the Metcalf court stated that collateral estoppel barred Metcalf’s federal constitutional claims unless application of the doctrine would work an injustice, it decided to consider the merits of the claims due to the importance of the issues raised. 92 Wn. App. at 175-76. The court stated that `Washington follows the rule that `an important issue of law should not be foreclosed by collateral estoppel.” Metcalf, 92 Wn. App. at 176 (quoting Southcenter Joint Venture v. Nat’l Democratic Policy Comm., 113 Wn.2d 413, 418-19, 780 P.2d 1282 (1989)). .

We do not find Metcalf to be persuasive authority in the situation before us. First, Metcalf did not involve a prior direct appeal by a personal restraint petitioner or a claim of ineffective assistance of counsel and the Metcalf court chose not to apply collateral estoppel. 92 Wn. App. at 176. But even more significantly, Thomas’ PRP raises issues that were outside the trial record and thus could not have been the subject of an appeal. One purpose of a PRP is to present material facts not previously considered. RAP 16.4(c)(3). As we discussed above, to review these new ineffective assistance allegations, the superior court needed to consider defense counsel’s conduct in the context of the entire record. Thus, the doctrine of collateral estoppel did not bar the superior court’s consideration of the entire record when determining the merits of the PRP.

III. Ineffective Assistance of Counsel
The State contends that (1) the record does not support the superior court’s findings of fact; (2) the findings of fact do not support the conclusion that Rossback was ineffective; and (3) the record overall establishes that Rossback’s pretrial investigation and trial representation were constitutionally adequate.

A. Standard of Review
‘A decision of a superior court in a personal restraint proceeding transferred to that court for a determination on the merits is subject to review in the same manner and under the same procedure as any other trial court decision.’ RAP 16.14(b). We review findings of fact for substantial evidence and we then determine whether the findings support the conclusions of law and judgment. State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996). A personal restraint petitioner must demonstrate by a preponderance of the evidence actual and substantial prejudice either by a violation of his constitutional rights or by a fundamental error of law. Brett, 142 Wn.2d at 874; Benn, 134 Wn.2d at 884-85.

B. The Strickland Test
The Sixth Amendment to the United States Constitution and article I, sec. 22 (amendment 10) of the Washington State Constitution guarantee the right to effective assistance of counsel in criminal proceedings. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563
(1996).

A party alleging ineffective assistance must demonstrate (1) deficient representation, i.e. representation below an objective standard of reasonableness based on consideration of all the circumstances; and (2) resulting prejudice, i.e. the reasonable probability that except for counsel’s unprofessional errors, the result would have been different. McFarland, 127 Wn.2d at 334-35 (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying the two-prong test of Strickland, 466 U.S. at 687)). Courts engage in a strong presumption that counsel’s representation was effective. McFarland, 127 Wn.2d at 335.

C. Contested Findings of Fact
We first examine the State’s challenge to the superior court’s findings of fact 2, 3, 4, 8, 10, and 11 to determine if there is substantial evidence in the record to support them. In the next section, we consider whether all the findings, viewed collectively, support a conclusion that defense counsel was ineffective.

“Substantial evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded, rational person that the declared premise is true.” Gentry, 137 Wn.2d at 410 (quoting Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 112, 937 P.2d 154, 943 P.2d 1358
(1997)). Conflicting evidence may be substantial so long as some reasonable interpretation of it supports the findings. Gentry, 137 Wn.2d at 411. Appellate courts do not review the trial court’s credibility determinations because the trial court had the opportunity to evaluate the witnesses’ demeanor and judge their credibility. Gentry, 137 Wn.2d at 410-11. Finding 2 — Trial counsel did not issue a subpoena to Sharon Joy Anderson to secure her defense testimony favorable to Petitioner.

The State acknowledges that Rossback did not subpoena Anderson but argues that the record does not show that her testimony would have been favorable to Thomas.

At the superior court evidentiary hearing, Thomas testified that he told Rossback before trial that Anderson would testify that she had been present in the camper at the time of the alleged transaction and that no transaction had occurred. He also said that he told Anderson after the first day of trial that she would be arrested if she entered the courtroom because there was a warrant for her arrest; she `split’ after hearing that. 2 Report of Proceedings (4/2/01) (RP) at 172. Thomas testified that he received information about the possible arrest from Rossback.

Rossback denied that Thomas told him that Anderson would have testified that there was no drug transaction; he claimed that he did not know what Anderson’s testimony would have been. But Rossback later admitted that he must have expected Anderson to give favorable testimony if he indicated to the court that he was going to call her as a witness, explaining that he `would think it would have been that no transaction had took [sic] place.’ 4 RP (4/4/01, 5/18/01) at 341. Thus, substantial evidence supports Finding 2. Finding 3 — Trial counsel did not issue a subpoena to the CI or ask for additional time to recall the CI to confront her with Moira Bordman’s impeachment evidence of drug use.

The State contends that the record shows that Rossback subpoenaed Salizar. Although this is technically correct, it is a misleading argument.

Rossback testified that he subpoenaed Salizar for trial but did not consider recalling her after he was unsuccessful in introducing Bordman’s impeachment evidence.

The superior court stated in its decision:

Counsel at no time issued a subpoena for anyone to appear at trial, except to the CI herself before she testified for the State, but not after he learned of and tried to put on Bordman’s impeachment evidence relating to the CI.

V CP at 752. Thus, Finding 3 apparently is referring to Rossback’s failure to subpoena Salizar a second time.

When we read Finding 3 correctly as referring to Rossback’s failure to subpoena Salizar after his failed attempt to present Bordman’s testimony to the jury, we find that substantial evidence supports it. Finding 4 — Trial counsel did not have any reason for failing to impeach the CI using the Bordman information.

At trial, Rossback offered Moira Bordman’s testimony regarding Salizar’s reputation. In an offer of proof, Rossback tried to show that Salizar violated her agreement with WSNET by using drugs. Bordman testified that she had seen Salizar with a pipe at Gary Wise’s property and that Salizar was asking people to use their lighters. But Bordman admitted that she had not seen Salizar put the pipe in her mouth. Bordman also testified that Salizar was known as a crack smoker. Suggesting that Salizar was dishonest, Bordman said she would not leave her in her house alone.

The State objected to this testimony on the basis that Bordman could not testify as to Salizar’s reputation for truthfulness and that it would be improper to attack Salizar’s credibility through extrinsic evidence.

The trial court sustained the objection.

At the evidentiary hearing, Rossback testified that he did not consider recalling Salizar to confront her with Bordman’s statements and, if Salizar denied them, to then use Bordman as an impeachment witness. Rossback further testified that he `guess[ed] [he] didn’t know’ that one cannot impeach a witness by extrinsic evidence or that it was likely that the court would not permit his witness to testify. 4 RP at 349. Thus, as the trial court found, Rossback did not present a reason for failing to impeach Salizar with Bordman’s testimony. Therefore, substantial evidence supports Finding 4. Finding 8 — Trial counsel did not prepare his client for questions relating to inadmissible information.

Thomas testified at the evidentiary hearing that Rossback did not discuss with him the type of evidence that would be admissible, the type of questions Rossback would ask Thomas on direct, or whether it was possible to exclude evidence of Thomas’ prior drug activities. Thomas also claimed that Rossback did not mention the rules regarding admissibility of prior convictions, that Rossback recommended that he testify, and that Rossback told him that his prior drug convictions would have to come before the jury.

Rossback disputed Thomas’ testimony, contending that he advised Thomas not to testify at trial because the prosecution would ask him about his criminal history, that Thomas made the decision to testify, and that he advised Thomas to keep his answers short and to the point. According to Rossback, his practice is to tell clients that to avoid the appearance of hiding something, the defense should bring out any negative information that the State would otherwise be able to introduce. Rossback did not recall whether he told this to Thomas, but he stated that the trial strategy was to attack Salizar’s credibility and have Thomas tell the truth and indicate that the alleged drug sale did not occur.

Rossback also testified that he did not have a reason for failing to move under ER 609 to exclude evidence of Thomas’ prior drug convictions or to move under ER 404(b) to exclude evidence of Thomas’ prior drug activities. Rossback further acknowledged that he did not inform Thomas that it may have been possible to exclude this information. Thus, substantial evidence supports Finding 8. Finding 10 — Trial counsel emphasized his client’s answer to an improper question when he did raise an objection after his client objected to its incriminating nature.

At trial, the State cross-examined Thomas, as follows:

[State:] But in March of ’96, when you thought you were an addict, you weren’t selling to support your habit; is that right? [Thomas:] I did not say this. I said I did not sell any drugs to Nadine. [State:] You were, however, selling at that time? [Thomas:] Isn’t that a self-incrimination statement? [Rossback:] I’m going to object. He’s already answered the question. [Court:] I’ll sustain the objection. That can be argued in final argument. The jurors will disregard the last question and last answer.

Exhibit 2 at 125.

Thus, substantial evidence supports Finding 10. Finding 11 — Trial counsel did not share the State’s discovery with his client and discuss what was needed in the way of evidence to refute the statements of the CI and her summary of the transaction to officers.

Thomas testified at the evidentiary hearing that Rossback did not show him the police report or discuss the State’s evidence with him. Thomas also testified that Rossback did not tell him that he needed specific information to impeach Salizar before she testified. Rossback testified that he asked Thomas to provide names of witnesses who could attack Salizar’s credibility.

As there was conflicting evidence on this issue and as we do not review credibility determinations, Gentry, 137 Wn.2d at 410-11, there is substantial evidence to support Finding 11.

D. Contested Conclusions of Law
The State next contends that the superior court’s findings do not support the conclusion that Thomas received ineffective assistance of counsel.

1. Deficient Performance
The superior court concluded that Rossback’s failure to perform a combination of actions (Findings 1-12) established that his representation was not reasonable under the circumstances. The court’s decision relied on the nature of the case where:

there was no eyewitness testimony to substantiate the CI’s buy, as she was out of view of the officers from the driveway until her return, there was unrefuted evidence that many people at the house sold drugs over this period of time, and the only evidence of the sale was from the CI, who had had a run-in with the Petitioner before this event occurred and was not on good terms with him, and where the sole issue was whether Petitioner sold drugs to the CI on this occasion.

V CP at 761-62.

The superior court’s conclusions centered around Rossback’s investigation and preparation of the case, including his failure to use available resources for investigation and the failure to secure or attempt to secure the presence of witnesses necessary to Thomas’ case. The conclusions also rested on Rossback’s failure to share discovery with Thomas and his failure to move to exclude evidence of Thomas’ prior convictions and prior bad acts.

‘Counsel has a duty to make reasonable investigations or to make a reasonable decision that particular investigations are unnecessary.’ In re Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992) (citing Strickland, 466 U.S. at 691). In an ineffective assistance case, the court assesses a decision not to investigate for reasonableness under all the circumstances. Rice, 118 Wn.2d at 889 (citing Strickland, 466 U.S. at 691).

The superior court found that Rossback did not use the DAC investigator to locate witnesses and did not contact Adrianna Kennedy, who allegedly could have offered testimony to impeach Salizar. Given that the only evidence of the sale was Salizar’s testimony, Rossback’s failure to locate witnesses either to impeach her or to dispute the evidence of a sale supports the conclusion of ineffective assistance. Specifically, Rossback’s failure to subpoena Anderson or to attempt to call Fein, who allegedly could have provided favorable defense testimony, supports the superior court’s conclusion that Rossback’s representation was not reasonable under the circumstances.

Further, a defense attorney’s failure to object to the admission of testimony of a defendant’s prior drug convictions has been found to be deficient performance. See State v. Hendrickson, 129 Wn.2d at 79. In Hendrickson, the State elicited a sheriff’s testimony that Hendrickson, who was on trial for delivery and possession of a controlled substance, had prior drug-related convictions. 129 Wn.2d at 68. The court noted that the testimony would have generally been inadmissible under ER 609(a), and that it was unable to discern a reason why Hendrickson’s counsel `would not have objected to such damaging and prejudicial evidence’; consequently, it concluded that trial counsel’s conduct was deficient. Hendrickson, 129 Wn.2d at 78-79.

Similarly, in State v. Saunders, 91 Wn. App. 575, 958 P.2d 364 (1998), this court determined that a defense attorney’s conduct fell below an objective standard of reasonableness when he asked his client on direct examination about his prior drug convictions. This court found that there was no strategic reason for offering the evidence and no reason to believe that such evidence would come in if the State offered it. Saunders, 91 Wn. App. at 578.

Here, the superior court found that Rossback did not move to limit reference to Thomas’ prior drug involvement; did not advise Thomas that this information could be excluded; did not prepare Thomas for answering questions related to inadmissible information; and did not raise objections to the State’s improper questions about a hypothetical drug sale. As the evidence of Thomas’ prior convictions and bad acts could have been kept from the jury under ER 609 and 404(b), as in Saunders, there was no tactical reason for not moving to exclude it.

The above evidence, along with evidence that Rossback did not attempt to impeach Salizar with Bordman’s testimony and failed to share the State’s discovery with Thomas, supports the superior court’s conclusion that Rossback’s performance fell below an objective standard of reasonableness.

2. Prejudice
To demonstrate prejudice, Thomas had to show a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. Rice, 118 Wn.2d at 889 (citing Strickland, 466 U.S. at 694). Thus, there must have been a reasonable probability that the jury would have found Thomas not guilty had Rossback not committed the above noted errors.

In Hendrickson, the court looked at the prejudicial effect of the jury’s knowledge of Hendrickson’s prior drug convictions against the backdrop of the evidence in the record. 129 Wn.2d at 80. The court concluded that Hendrickson was not prejudiced because the evidence powerfully supported Hendrickson’s guilt. Hendrickson, 129 Wn.2d at 80. Unlike Hendrickson, here the evidence of Thomas’ guilt was not strong. The State had only Salizar’s testimony; it had no witnesses or other evidence to corroborate Salizar’s testimony.

The superior court concluded that Thomas had shown by a preponderance of the evidence that a court could not have confidence in the outcome of the trial and that, but for Rossback’s accumulated errors, the result of the trial `would have been different.’ V CP at 762. Given the circumstances of this case, the evidence supports the superior court’s conclusion that defense counsel’s deficiencies prejudiced Thomas.

Accordingly, we affirm.

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 2.06.040, it is so ordered.

HUNT, C.J. and MORGAN, J., concur.