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In re Personal Restraint of Burlingame

Court of Appeals of Washington, Division 3

May 17, 2018

In the Matter of the Personal Restraint of ETHAN NOBLE BURLINGAME, Petitioner.

          Siddoway, J.

         Ethan Burlingame seeks relief from personal restraint in the form of an indeterminate sentence of 78 months to life for his April 2016 conviction of second degree rape. He contends his lawyer provided ineffective assistance of counsel when he failed to advise him that (1) Mr. Burlingame had the right to plead guilty when arraigned on the State's initial charge of third degree rape, (2) if he pleaded not guilty, he would lose the right to plead guilty as charged without the approval of the prosecutor, (3) the facts, including the facts as recounted to police by Mr. Burlingame himself, supported conviction for second degree rape, and (4) the punishment for conviction of second degree rape was dramatically more harsh than the punishment for third degree rape.

         On the very unusual facts of this case-facts that are well-supported not only by declarations of Mr. Burlingame and his trial lawyer, but also by the record of the police investigation and arraignment-Mr. Burlingame shows actual and substantial prejudice resulting from the violation of his constitutional right to the effective assistance of counsel. We grant his petition, remand with directions that he have the opportunity to plead guilty to third degree rape, and if he does plead guilty to third degree rape, empower and direct the trial court to vacate his conviction for second degree rape. See RAP 16.11(b), 16.12.


         On December 30, 2015, 18-year-old Ethan Burlingame called 911 to report that he needed to be arrested because several hours earlier he had "violated a girl." Pers. Restraint Pet. App. (PRP App.), Incident Report at 3. When interviewed by police, Mr. Burlingame told them he had been drinking with the victim and others at his brother's house and after everyone quit drinking, he went to sleep on the couch and the victim went to sleep on the floor. He described the victim as being "passed out due to being very intoxicated." PRP App., Deputy Suppl. Report at 2. As she slept, Mr. Burlingame said he touched the victim's breast, put his mouth on her bare breast, pulled her underpants down to her ankles, inserted his fingers into her vagina, penetrated her vagina with his tongue, and then attempted to insert his penis into her vagina. Mr. Burlingame told officers he might have inserted his penis into the victim's vagina about an inch, but he was not sure.

         When initially contacted by police on the morning of the report, the victim stated she had not been raped by Mr. Burlingame. But the next day, she told Officer Stan Berkshire that Mr. Burlingame had raped her and she had been too embarrassed to say so when interviewed the day before. She said she woke up to find Mr. Burlingame on top of her with her pants around her ankles. She provided a written statement to that effect and stated that she did not give consent and would not have consented even if she had been awake and coherent.

         The State charged Mr. Burlingame with third degree rape on January 6, 2016. Defense counsel was appointed to represent him. Mr. Burlingame was not arraigned until January 19, 2016, by which time defense counsel had received discovery and was aware of the State's evidence against his client.

         Declarations of Mr. Burlingame, his father, and defense counsel consistently report that when Mr. Burlingame appeared for arraignment on the third degree rape charge, he wanted to plead guilty. He had never recanted his original, unrecorded, volunteered confession and even agreed to record his confession after the charge was filed. Defense counsel nonetheless advised Mr. Burlingame against pleading guilty as charged because the deputy prosecuting attorney had told him and Mr. Burlingame's family that he might amend the charge to assault in the fourth degree, a gross misdemeanor.

         Mr. Burlingame's arraignment lasted only a few minutes, consisting of the following dialogue:

[DEFENSE COUNSEL]: . . . Mr. Burlingame is present and we ask the Court on his behalf to enter a plea of not guilty. We would waive the reading of the information at this point in time.
JUDGE: Mr. Burlingame, are you prepared to plead not guilty to this charge at this time?
BURLINGAME: I am entering no plea.
JUDGE: Pardon me?
BURLINGAME: I'm not entering a plea.
JUDGE: You're not entering a plea?
[DEFENSE COUNSEL]: We have had a discussion about this, Your Honor, and Mr. Burlingame is uncomfortable in ...

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