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