trial court found that Oscar Lopez's lawyer was
"fairly obvious[ly]" "severely
handicapped" by depression during the pretrial and trial
phases of Lopez's case. That finding was supported by the
trial court's own observations of defense counsel's
performance-and sometimes failure to show up-at trial. That
finding was also supported by declarations and testimony
presented at the hearing on Lopez's motion for a new
trial. That evidence revealed that defense counsel could not
perform basic tasks, such as showing up to meetings with his
investigator to prepare Lopez's defense, submitting
routine paperwork to obtain public funding so his
investigator could complete her pretrial investigation, and
calling his investigator back to learn about her
"important" findings. Based on that evidence, the trial
court concluded that Lopez was denied his constitutional
right to effective assistance of counsel and granted
Lopez's motion for a new trial. See U.S. Const, amend.
VI; Wash. Const, art. I, § 22. We agree with the trial
court. We therefore reverse the Court of Appeals'
decision to reverse the trial court.
and Procedural Background
was employed as a bus driver by an after-hours day care
center. He drove children from the day care center to school
in the morning, and then back again in the afternoon after
school. 9 VRP (Mar. 11, 2015) at 1076, 1085. One of those
children was six-and-a-half-year-old L.M. Def. Ex. 18 (Tr. of
Interview of L.M.) at 2. Sometimes, due to the children's
schedules and the location of their schools, Lopez would be
alone with L.M. on the bus. 6 VRP (Mar. 4, 2015) at 498-509.
6, 2014, L.M. reported to her mother that Lopez had
'"touched [her] butt yesterday'" morning
before school when she was alone with him on the bus. 7 VRP
(Mar. 5, 2015) at 663. When questioned further about that
touching, L.M. explained that Lopez had "itch[ed]"
and "tickl[ed]" her vagina in a way that felt as
though he was "trying to pinch [her]." Def. Ex. 18,
at 13. L.M.'s mother contacted the police, and the State
charged Lopez with first degree child molestation. CP at 77.
denied L.M.'s allegation of child molestation. Attorney
Steven Witchley represented him, and the case proceeded to a
jury trial. Lopez's defense theory was that L.M.'s
claim was not believable. 10 VRP (Mar. 12, 2015) at 1198. To
credit L.M.'s version, Witchley explained, the jury would
have to believe four unbelievable things: (1) that Lopez, a
family man, molested L.M.; (2) that the molestation occurred
sometime between January and June 2014, but not
"yesterday" morning before school as L.M. reported
because the bus logs proved that Lopez was never alone with
L.M. that morning; (3) that L.M. waited weeks or months
before reporting the incident to her mother even though L.M.
testified that she reported the incident immediately; and
finally (4) that Lopez would be brazen enough to touch L.M.
like that in public in the day care center's busy parking
lot. Id. at 1185-97.
jury apparently believed L.M. and convicted Lopez of first
degree child molestation. CP at 81.
the verdict but before sentencing, Lopez fired Witchley and
hired a new attorney. The new attorney filed a motion for a
new trial based on ineffective assistance of counsel.
Id. at 292-97. To prevail on a claim of ineffective
assistance of counsel, a defendant must generally show that
counsel performed deficiently and that the deficient
performance caused prejudice. Lopez argued that he did not have
to prove deficient performance or prejudice because severe
mental depression coupled with contemporaneous or nearly
contemporaneous disbarment constitutes ineffective assistance of
counsel per se. Id. at 294 (quoting In re Pers.
Restraint of Brett, 142 Wn.2d 868, 883-85, 16 P.3d 601
(2001) (Talmadge, J., concurring)). Alternatively, Lopez
identified Witchley's performance, including his failure
to adequately investigate, id. at 121-24, and
failure to call certain witnesses that Lopez had identified,
id. at 295-96, as grounds for ineffective
undisputed that while Witchley was representing Lopez,
Witchley was suffering from severe depression, had suicidal
thoughts, 11 VRP (Oct. 8, 2015) at 1298, and struggled with
just getting out of bed each day, CP at 291. Karen Sanderson,
Witchley's longtime investigator, acknowledged that as
Lopez's case neared trial, she observed Witchley's
depression worsening under the weight of significant
financial troubles, health problems, and a pending disbarment
proceeding. 11 VRP (Oct. 8, 2015) at 1298; CP at 289-90.
record supports this assessment and shows that these problems
impacted his performance. Witchley failed to appear at court
one day without explanation. 11 VRP (Oct. 8, 2015) at 1252.
He also called in sick at the last minute on the morning of
trial another day and asked to postpone trial to the
afternoon. CP at 59. On the days when he did manage to show
up, he was usually late. E.g., 2 VRP (Feb. 12, 2015)
at 48 (10 minutes late), 3 VRP (Feb. 23, 2015) at 238 (15 to
20 minutes late). Once, he was over an hour late. 6 VRP (Mar.
4, 2015) at 521 (one hour and 20 minutes late).
Witchley's inability to show up for trial alarmed the
trial judge so much that he asked Lopez-either close to or in
the middle of trial-if he wanted a new attorney. 11 VRP (Oct.
8, 2015) at 1252-53. At that point, Lopez declined the offer.
But when Witchley continued to arrive late for trial, the
trial court warned him: "[F]rankly, I'm a little
baffled. We've spoken about this a number of times.
You're obviously a very able trial attorney, but this
continues to be an issue. So Mr. Witchley, sir, if you could
~ I really want to make sure we're communicating here.
... I expect you to be on time." 3 VRP (Feb. 23, 2015)
at 238-39. That warning proved inadequate, however; Witchley
continued to show up late for trial. 6 VRP (Mar. 4, 2015) at
522-24. He also failed to submit briefing specifically
requested by the court. Id.
testimony also supported this assessment of Witchley's
mental health and its impact on Lopez's trial. Sanderson
testified that she met with Witchley in October, several
months before Lopez's trial, to create a checklist of
matters that Witchley needed her to prepare for Lopez's
defense. The checklist included interviewing certain
employees at the day care center, locating witnesses from the
children's schools to verify Lopez's whereabouts on
the morning of the alleged incident, performing another site
visit to the day care parking lot, and developing evidence
regarding both L.M.'s penchant for lying or exaggerating
stories and Lopez's sexual morality and decency. 11 VRP
(Oct. 8, 2015) at 1289-90.
that October meeting, however, Sanderson explained that
Witchley "checked out." CP at 289. Witchley was
routinely late and often failed to show up at case
development meetings scheduled with her. Id. at 288.
According to Sanderson, she and Witchley "tr[ied] to set
up some times to meet to go to the scene together but he
almost always cancelled at the last minute, with a different
excuse every time." Id. "Every time he
cancelled at the last minute he offered a new excuse"
that "was always something like 'I over slept and
can't make it' or T didn't sleep last night'
or 'I'm sick.'" Id. at 288-89.
Witchley stopped communicating with Sanderson altogether. 11
VRP (Oct. 8, 2015) at 1286. As a result, Sanderson was unable
to give him important case information she discovered during
her investigation. Sanderson said she left Witchley a
voicemail, an e-mail, and text messages asking him to call
her back so they could talk about the new information she
learned during her last interview, which she believed was
"important" to Lopez's case. CP at 289. But
Witchley never called her back, so she never told him what
that "important" information was. Id. She
also did not document that "important" new
information in a memo because Witchley stopped paying her to
do so and refused to take the simple steps necessary to
procure additional payments. Id.
by December 2014, Sanderson had been working on Lopez's
case for two months without payment based on Witchley's
promise of eventual payment. Because Lopez was indigent,
Sanderson's investigative work was paid through the
Office of Public Defense (OPD). Id. at 89-90. The
OPD had preauthorized $1, 500 for Sanderson to develop
Lopez's defense, id. at 89, but Sanderson had
exceeded that amount by October 2014, id. at 289. To
receive additional funding for Sanderson's investigation,
Witchley had to submit a request to OPD. Id. This is
a fairly routine process. Because Witchley repeatedly implied
to Sanderson that he had submitted a request for additional
funding, Sanderson continued to work on Lopez's case for
an additional two months, from October to December, without
payment. Id. After two months without payment and
after Witchley stopped returning her calls, Sanderson had to
stop work on Lopez's case. Id. "This meant
that some things [they] had planned to do on the case prior
to trial never took place. [Sanderson] had several reports
that should have been written that were not typed up. There
were interviews that never took place, as far as [Sanderson]
kn[e]w. Demonstrative exhibits, prep for [Sanderson's]
testimony and other tasks never happened." Id.
According to Sanderson, Witchley claimed to have strategic
reasons for not calling Sanderson as a witness at trial.
Id. at 291. But he never claimed to have strategic
reasons for failing to follow through on the work that he
himself had deemed necessary in October before he became
severely handicapped by illness- interviews, meet ups,
exhibits, "other tasks" for trial preparation, and
simple communication about the defense. Id. at 289.
records show that Witchley did not submit the request for
additional funding until after Lopez's trial
ended. Id. at 89. In that request for additional,
retroactive, funding, Witchley acknowledged that Sanderson
had reminded him continuously throughout Lopez's case
that he needed to secure extra OPD funding for her continued
investigation and that he "simply failed to
appropriately prioritize submission of [the request]"
"[f]or a variety of not-very-good reasons."
Id. at 92-93.
considering all this evidence, the trial court granted
Lopez's motion for a new trial due to ineffective
assistance of counsel and denial of due process clause
protections. 11 VRP (Oct. 30, 2015) at 1309-10, 1315-17. The
trial court found, based largely on Sanderson's testimony
and declaration, that it was "fairly clear that had
[Witchley] not been handicapped by his depression, he would
have been more effective, " id. at 1316, in
"[his] handling of the entire case, including pretrial
investigation and communications with his client, "
id. at 1311. Witchley's depression, the trial
court found, "fairly obvious[ly]" "severely
handicapped" his representation of Lopez. Id.
the failures that the trial court cited was Witchley's
failure to investigate reputation evidence or call reputation
witnesses. Regarding this failure, Witchley specifically
acknowledged that "[he] did not have any tactical
reasons for not calling reputation witnesses." CP at
347. That acknowledgement corresponded with Sanderson's
testimony. Sanderson testified that she developed reputation
evidence in other cases for Witchley before, 11 VRP (Oct. 8,
2015) at 1297, and that it was her understanding, based on
her 15 plus years of experience working with Witchley, CP at
285, that it was his intent to pursue credibility evidence
regarding L.M. and sexual morality reputation evidence
regarding Lopez in this case, 11 VRP (Oct. 8, 2015) at
1293. But Sanderson never performed this
investigation because Witchley stopped paying her and stopped
communicating with her. CP at 289.
trial court found this failure particularly troubling since
Witchley did not have to even search for the reputation
witnesses because Lopez told him who they were, though Lopez
described these witnesses' anticipated testimony in terms
of character rather than reputation evidence. 11 VRP (Oct.
30, 2015) at 1309. According to the trial court, Witchley
"simply failed to spot the issue." Id.
Witchley, in dismissing Lopez's request that he call
"certain character witnesses, "
"never took the additional step [in] asking whether the
proposed testimony might be recast as admissible
reputation testimony." Id. (emphasis
added). Based on this evidence, on the trial court's own
observations of Witchley's performance before and during
trial, and on the new evidence heard and reviewed at the
hearing on the motion for a new trial-including the evidence
showing Witchley's failure to communicate, failure to
prepare, and sometimes failure to perform at all-the trial
court granted Lopez's motion for a new trial.
Court of Appeals reversed. State v. Lopez, No.
74333-3-1, slip op. at 2 (Wash.Ct.App. Mach 20, 2017)
review granted, 189 Wn.2d 1001, 400 P.3d 1263
(2017). It interpreted the trial court's finding of
ineffective assistance of counsel as being based solely on
Witchley's failure to call reputation witnesses to
testify about Lopez's sexual morality and decency.
Id. at 4. Because the fact that Witchley failed to
call reputation witnesses was not in dispute, the issue that
the Court of Appeals identified was solely a question of law,
which it reviewed de novo. See id. at 4-6. On that
purely legal question, the Court of Appeals held that
Witchley's failure to investigate and present sexual
morality and decency evidence could not be classified as
deficient performance because such evidence is not admissible
under a published decision from that division: State v.
Jackson, 46 Wn.App. 360, 365, 730 P.2d 1361 (1986).
Id. at 6. This Division One panel recognized that
Divisions Two and Three of the Court of Appeals have reached
an opposite conclusion regarding the admissibility of sexual
morality evidence but determined that that conflict was
immaterial because "counsel has ... no duty to pursue
strategies that appear unlikely to succeed, and no duty to
anticipate changes in the law." Id. (citing
State v. Brown, 159 Wn.App. 366, 371-72, 245 P.3d
the trial court's finding that Witchley's depression
had "fairly obvious[ly]" "severely
handicapped" his representation of Lopez, 11 VRP (Oct.
30, 2015) at 1315, the court interpreted that finding as
relating solely to Lopez's per se prejudice/quasi-due
process argument and held that defendants have no right to
counsel free from mental illness. Id. at 2.
petitioned this court for review, which we granted.
Lopez, 189 Wn.2d 1001.
Ineffective Assistance of Counsel Requires a Showing of
Deficient Performance and Prejudice; Whether Counsel's
Performance Was Deficient and Prejudicial Is a Mixed Question
of Fact and Law, Which We Review De Novo
The Test for Ineffective Assistance of Counsel
criminal defendant is entitled to effective assistance of
counsel. U.S. CONST, amend. VI; WASH. CONST, art. I, §
22; In re Pers. Restraint of Yung-Cheng
Tsai, 183 Wn.2d 91, 99, 351 P.3d 138 (2015).
Effective assistance includes many things. "It is thus
impossible to 'exhaustively define the obligations of
counsel [ ]or form a checklist for judicial evaluation of
attorney performance.'" Tsai, 183 Wn.2d at
99-100 (alternation in original) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)).
effective representation 'entails certain basic duties,
' such as
a duty of loyalty, a duty to avoid conflicts of interest[, ].
. . the overarching duty to advocate the defendant's
cause and the more particular duties to consult with the
defendant on important decisions and to keep the defendant
informed of important developments in the course of the
prosecution. Counsel also has a duty to bring to bear such
skill and knowledge as will render the trial a reliable
adversarial testing process.
Id. at 100 (alterations in original) (quoting
Strickland, 466 U.S. at 688). In addition, the
"right to effective assistance includes a
'reasonable investigation' by defense counsel."
State v. Boyd, 160 Wn.2d 424, 434, 158 P.3d 54
(2007) (citing Strickland, 466 U.S. at 684;
Brett, 142 Wn.2d at 873). Reasonable investigation
"includes expert assistance necessary to an adequate
defense." State v. Punsalan, 156 Wn.2d 875,
878, 133 P.3d 934 (2006) (citing Ake v. Oklahoma,
470 U.S. 68, 72, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)).
attorney's performance is deficient, the next question is
whether it caused prejudice. "Prejudice exists if there
is a reasonable probability that 'but for counsel's
deficient performance, the outcome of the proceedings would
have been different.'" State v. Estes, 188
Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v.
Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) and
citing Strickland, 466 U.S. at 694). "[A]
'reasonable probability' is lower than a
preponderance standard." Id. (citing
Strickland, 466 U.S. at 694; State v.
Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015)).
"Rather, it is a probability sufficient to undermine
confidence in the outcome." Id. (citing
Strickland, 466 U.S. at 694).
The Standard of Review for Trial Court Rulings on Ineffective
Assistance of Counsel
of ineffective assistance of counsel present mixed questions
of law and fact." Brett, 142 Wn.2d at 873
(citing State v. S.M.,100 Wn.App. 401, 409, 996
P.2d 1111 (2000)). We review a trial court's factual
findings made in the course of deciding an ineffective
assistance issue for substantial evidence.See id.
(citing In re Pers. Restraint of Gentry, 137 Wn.2d
378, 410, 972 P.2d 1250 (1999) (citing RAP 16.14(b))). But we
review "[t]he legal conclusions flowing from such
findings and testimony . . . de novo." Id. at
873-74 (citing State v. Davis,25 Wn.App. 134, 137
n.1, 605 P.2d 359 (1980)). Because the ultimate conclusion of
whether counsel's performance was ineffective constitutes
an application of law to established facts, it is "a
mixed question of fact and law reviewed de novo."
Statev. Sutherby,165 Wn.2d 870, 883, 204
P.3d 916 (2009) (citing In re Pers. Restraintof
Fleming,142 Wn.2d 853, 865, 16 P.3d 610 (2001));
accord Ornelas v. UnitedSta ...