In re Wilks

1

In the Matter of the Personal Restraint of JASON CRAIG WILKS, Petitioner.

No. 55357-1-II

Court of Appeals of Washington, Division 2

October 18, 2022

UNPUBLISHED OPINION

Cruser, A.C.J.

Jason Wilks seeks relief from his convictions for third degree child rape, second degree child molestation, third degree child molestation, delivery of a controlled substance to a minor, and furnishing liquor to a minor. Wilks filed a timely personal restraint petition (PRP) in which he claims that he was denied effective assistance of counsel on several bases including when his trial counsel failed to properly communicate regarding plea negotiations, when counsel failed to interview his family members and adequately prepare for trial, when counsel failed to investigate possible impeachment evidence, and when counsel failed to seek funds to cover expenses for an expert witness. Wilks also claims that there was insufficient evidence to support his convictions for unlawful delivery of a controlled substance to a minor.

Regarding Wilks' claim that defense counsel failed to advise him of the sentencing consequences during plea negotiations including the possibility of consecutive sentences sentencing enhancements, and exceptional sentences, we cannot fully determine on this record whether Wilks in fact was not so advised. Therefore, we remand that claim to the superior court for an evidentiary hearing to determine the facts necessary to decide the issue of whether defense counsel failed to advise Wilks of the sentencing consequences during plea negotiations, as well as to make a determination on the merits of this portion of Wilks' PRP.^[1] We hold that Wilks' remaining arguments fail. Accordingly, we deny Wilks' PRP in part and remand in part.

FACTS

I. Background

In 2016, Wilks was charged with two counts of third degree child rape, one count of second degree child molestation, five counts of third degree child molestation, three counts of unlawful delivery of a controlled substance to a minor, and five counts of furnishing liquor to a minor. These crimes were committed against the teenaged friends of his daughter, SW.

II. August 2016 Rearraignment Hearing

In the months leading up to trial, the State sent Wilks' trial counsel an email with a plea offer, which defense counsel apparently did not respond to. The State set a rearraignment hearing^[2]and informed defense counsel via email that the plea offer would expire at the hearing, at which point the State would add more charges. In addition, the court ordered defense counsel to indicate at the hearing whether the plea offer had been conveyed to Wilks.

The rearraignment hearing was held on August 26, 2016, and Wilks was present with his counsel. The parties began by discussing the amended information, with the State explaining:

It adds two additional victims. These victims have been known to Defense. And the Defense was made aware of the potential for this amendment early on. . . . And once we have done the rearraignment, I did have -- or perhaps before -- we did need to address the issue of whether or not Defense has conveyed offers to the Defendant.

. . .

MR. HEALY: Good afternoon, Your Honor. With respect to the latter issue, obviously I can't comment on any communications with respect to Mr. Wilks vis-à-vis myself. But I can indicate that Mr. Wilks had knowledge of the Amended Information prior to coming into court this afternoon, has reviewed it, and Mr. Wilks has elected to proceed to trial.

. . .

[THE COURT:] Now, as to the issue of communication of the offer, all I can say is that if there was a concern that the offer was made and transmitted to Mr. Wilks, Mr. Healy appropriately declined to discuss any communications he's had with his client. But it is now on the record that the State has transmitted an offer and this offer was transmitted to Mr. Healy.

MR. HEALY: I can convey that in my opinion I have done nothing but due diligence with respect to this matter.

THE COURT: And if you acknowledge receipt of the offer from the State -- what was the date?

MR. HEALY: I acknowledge receipt of the offer.

THE COURT: Then that's it. I'm good with that.

[THE STATE:] And I just wanted to make a record. And I don't think any response is required or ruling is required. But I just want to note that the Defendant -- I just want to maybe put Defense on notice that upon conviction, the Defendant could go to prison for life.

The offer was for a determinate sentence. And I only mention that so that our record is clear for the Court of Appeals should this particular issue come before them.

MR. HEALY: And I am cognizant of the maximum penalty. I am cognizant of the standard range that is potentially involved with respect to Mr. Wilks. And I'm cognizant of what the offer is and the fact that the offer did involve a determinate sentence.

VRP (Aug. 26, 2016) at 3-6. Wilks left the hearing during discussion of discovery issues, but he was present during the discussions described here. The case proceeded to trial the following month.

III. Motions in Limine

During motions in limine, defense counsel inquired to what extent Wilks could introduce evidence of the victims' "promiscuous conduct." VRP (Sept. 20, 2016) at 39. Wilks' position was that three of the victims "were engaged in promiscuous activity" with SW, and this conduct caused him and his wife, Katie,^[3] to exclude the victims from their home and keep SW from spending time with them. Id. This activity included the exchange of photos and messages that were sexual in nature. Wilks also sought to introduce evidence that some of the victims had previously been sexually abused and that one of them started having consensual sex in seventh grade.

The trial court clarified that the parties were not to use the word "promiscuous." Id. at 41. The court allowed defense counsel to argue that the victims fabricated their allegations after Wilks had excluded the victims from his home due to their behavior, but that the details of the testimony would need to be addressed as the issues came up. The court ruled that evidence of nude photographs would not be admissible, but that this would not preclude Wilks from arguing that the conduct and communications between the teenagers became increasingly sexualized, and certain conduct may properly be used as impeachment evidence, depending on the victims' testimony. In addition, the court reserved ruling as to some of the prior sexual abuse of the victims, allowing Wilks "broad leave" to cross examine the witnesses if the State brought up one of the specific instances, and did not allow evidence of prior consensual sexual relations. Id. at 38.

IV. Trial

At trial, the State argued that Wilks would provide alcohol and/or marijuana to the victims, who would then fall asleep in his bed. Wilks would then touch them inappropriately, while the victims were vulnerable and would likely "have a fuzzy memory later." VRP (Nov. 3, 2016) at 43. Wilks argued that he never provided alcohol or marijuana to any of the victims and that he never touched any of them inappropriately. The defense theory was that the victims made up their allegations against Wilks after he had excluded them from his home.

Each victim testified about Wilks' abuse. Relevant here, each of them testified that Wilks gave them marijuana while they were at his home to spend time with SW.

During LM's testimony, defense counsel sought to inquire about LM's sexuality and whether she had been in a romantic relationship with SW at the time of the abuse, but the trial court did not allow this inquiry. On direct examination for the State, Detective Sergeant Byron Brockway testified that LM had turned over a pair of her underwear that was booked into evidence. He later admitted that the underwear had never been sent to be analyzed for DNA evidence.

During cross examination of BS, defense counsel intended to ask whether she had been messaging boys on social media to discuss sex, prompting her exclusion from the Wilks residence. The trial court ruled that Wilks could inquire about behavior on social media that resulted in her exclusion from the house, but that counsel could only specifically ask about discussing sex if BS denied that she was not allowed to be at the house.

In addition, defense counsel informed the court that it intended to inquire about BS stealing items, including shoes, from the Wilks residence. The trial court prohibited inquiry about the alleged theft, but allowed defense counsel to ask generally about a falling out between BS and SW and whether there were issues resulting in BS being excluded from the Wilks residence. A similar issue was raised when Wilks' daughter, SW, testified. Before the jury, SW stated that BS, MR, and RR were not allowed in her parents' bedroom. Outside of the presence of the jury, she explained that "[BS] was not allowed in my parents' room because she stole from me and my mom." VRP (Oct. 27, 2016) at 136. The trial court prohibited this testimony.

In the middle of trial, defense counsel informed the court that Wilks had received messages and Facebook posts from "Triz ThaKid," who had previously been in a relationship with LM. VRP (Oct. 10, 2016) at 10. The messages and posts included statements by LM that she and the other victims were lying about their allegations regarding Wilks but an investigation by the State suggested that they were forged.^[4] Defense counsel attempted to authenticate the messages and posts and filed a declaration from a computer forensic expert who had reviewed the documents at issue. The declaration stated that the expert needed more information to determine whether a message at issue was sent from LM's Facebook account, and that he could either obtain this information by...