an altercation where he cut someone's foot and pinky
finger, Kevin Estes was convicted of felony harassment and
third degree assault. The jury returned deadly weapon
verdicts for both convictions, elevating both offenses to
third "strikes" under Washington's three
strikes law, the Persistent Offender Accountability Act
(POAA). RCW 9.94A.030. The State then reminded the court that
"this is a third strike case, " to which
Estes's attorney responded, "He wasn't convicted
of a strike offense." 4 Verbatim Tr. of Proceedings
(VTP) (Sept. 12, 2014) at 504. The prosecutor explained that
Estes's convictions counted as strikes because of the
deadly weapon enhancements. Estes was then sentenced to the
mandatory minimum of life in prison.
appealed, alleging ineffective assistance of counsel.
See U.S. CONST, amend. VI; CONST, art. I, § 22.
He claimed his trial counsel did not know that he would be
sentenced as a persistent offender if the jury convicted him
of any felony with a deadly weapon enhancement. The Court of
Appeals ordered a new trial, holding that counsel was
ineffective because he did not understand the strike offense
consequences and thus could not fully inform Estes of his
options during the plea bargaining process. We agree and
affirm the Court of Appeals.
February 19, 2014, Kevin Estes went over to his friend James
Randle's apartment in Puyallup. Randle's roommate,
Anthony Prusek, was also in the apartment that evening, along
with Prusek's girlfriend, Ashley Stoltenberg.
drank alcohol and played video games with Randle and Prusek
while Stoltenberg watched television in another room. Estes
soon began making comments about Stoltenberg's breasts,
asking Prusek for a nude photo. Having overheard this
exchange, an angry Stoltenberg came out of the bedroom and
told Estes, '"If you do not stop talking about me
like that, I am going to slap you.'" 2 VTP (Sept. 8,
2014) at 84.
to Stoltenberg, Estes then stood up aggressively and said,
'"Time to die, bitch'" while taking a knife
out of his pocket. Id. at 86. Prusek grabbed Estes,
and the two men struggled. Estes began "flailing
around" with the knife, and Prusek's foot and pinky
finger were cut while the men wrestled. Id. at 133.
left the room and called 911. Meanwhile, Randle took the
knife from Estes and put it on top of the refrigerator.
Randle told Estes to leave because the police were coming,
and Estes complied.
responding officer, Officer Greg Massey, found Estes sitting
in his car in the driveway. After an "angry and
agitated" Estes opened the car door and told the officer
that there had been a fight, the officer searched Estes and
found a knife in his pocket. Id. at 209. Estes told
the officer that this was not the knife from the incident.
Nevertheless, Massey confiscated the knife and took it into
officer, Officer Steve Pigman, responded later in the evening
and entered the apartment. He noticed a different knife on
top of the refrigerator, and Stoltenberg told him that it was
the knife used in the incident. That knife was not taken into
State charged Estes with second degree assault against
Prusek, second degree assault against Stoltenberg, and felony
harassment against Stoltenberg, with deadly weapon
enhancements added to each count. Because Estes had
previously been convicted of two strike offenses under RCW
9.94A.030, the State filed a persistent offender notice
warning that if the jury found Estes guilty of second degree
assault, felony harassment, or any other most serious
offense, he would be sentenced to life without the
possibility of parole. The persistent offender notice did not
provide any information about the impact of the deadly weapon
a discussion of jury instructions, defense counsel objected
to an instruction on the lesser included offense of third
degree assault and proposed instructions on fourth degree
assault and self-defense. He did not object to the
court's instructions on the deadly weapon enhancements or
to the deadly weapon special verdict form for the felony
closing arguments, the State argued that both the knife found
on Estes's person and the one on top of the refrigerator
were "deadly weapon[s]" because of their blade
length or capacity to cause death. 4 VTP (Sept. 10, 2014) at
444-46, 453-54. Defense counsel argued that due to
inconsistent accounts from witnesses, the State could not
meet its burden of proving an assault occurred. He argued
that the knife that was introduced into evidence was not the
knife used in the incident, noting that witnesses remembered
that the knife was "long and big and whatever, "
but that they knew nothing more about it. Id. at
jury acquitted Estes of both second degree assault charges,
but found Estes guilty of one count of third degree assault
(a lesser included offense) and felony harassment. They
returned deadly weapon verdicts for both crimes, elevating
them to strike offenses.
the jury returned its verdicts and was excused, the following
exchange took place:
[PROSECUTOR]: ... As the Court is aware, this is a third
strike case. There's no issue as to - as to -
[DEFENSE COUNSEL]: He wasn't convicted of a strike
[PROSECUTOR]: Apparently, the Defendant is a third strike
case because of the deadly weapon enhancements, so
there's no issue as to the sentencing.
Id. (Sept. 12, 2014) at 504.
counsel then moved to dismiss the deadly weapon verdicts,
arguing that they were inconsistent with the acquittals on
second degree assault. He noted that "[t]he jury was not
asked to make a determination of the weapon's length nor
were they asked to determine whether the knife was per
se a deadly weapon, " and also argued that the
sentences were disproportionate. Clerk's Papers (CP) at
340. The trial court denied the motion.
by the POAA, the trial court sentenced Estes to total
confinement for life without the possibility of release. The
trial judge stated at the close of sentencing, "I will
just say that. . . this is not the kind of strike that we
typically would be looking for as a community to be a third
strike." 4 VTP (Nov. 7, 2014) at 534.
appealed, alleging ineffective assistance of counsel. The
Court of Appeals reversed Estes's convictions, holding
that defense counsel was ineffective because he did not
understand the strike offense consequences and thus could not
fully inform Estes of his options during the plea bargaining
process. State v. Estes, 193 Wn.App. 479, 494, 372
P.3d 163 (2016). Judge Maxa dissented, stating that the
record was inconclusive as to what Estes's attorney did
or did not know. Id. at 495.
State petitioned for review, which was granted. State v.
Estes, 186 Wn.2d 1016, 380 P.3d 522 (2016).
Estes's trial counsel prejudicially ineffective?
the Court of Appeals rely on facts outside the record when it