In the Matter of the Personal Restraint of: Robert L. Ayerst

I
                                                                  FILED
                                                                 MAY 4, 2021
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Personal Restraint of:    )         No. 36965-0-III
                                               )
ROBERT L. AYERST,                              )         OPINION PUBLISHED IN PART
                                               )
                  Petitioner.                  )

       PENNELL, C.J. — The federal and state constitutions entitle the criminally accused

to representation by counsel before an impartial tribunal. These protections are

undermined when trial counsel or the judge is engaged in criminal activity. A defendant

seeking to overturn a conviction based on criminal activity by counsel or a judge bears the

burden of proving the activity occurred in a way that undermines confidence in the

fairness of the criminal proceedings. Generalized allegations of unproven misconduct do

not meet this standard.

       Robert Ayerst challenges the constitutionality of his felony convictions based on

alleged illegal activities by his trial counsel and judge. However, he fails to support the

allegations with sufficient proof. Based on this lack of proof, we deny his petition for

relief from personal restraint.
No. 36965-0-III
In re Pers. Restraint of Ayerst


                                           FACTS

       In 2016 and 2017, Robert Ayerst faced several felony charges in Asotin County,

Washington. He received appointed counsel by the name of Robert Van Idour. Mr. Van

Idour has been licensed to practice law in Idaho for approximately 30 years. He provided

public defense for Asotin County under contract and was working under the supervision

of a Washington attorney named Neil Cox. A jury issued guilty verdicts against Mr.

Ayerst after Mr. Van Idour represented him at trial. Mr. Ayerst’s judgment and sentence

was entered on December 18, 2017.

       Over a year later, in April 2019, several events occurred that are relevant to the

current case.

               On April 10, the State filed criminal charges against Mr. Ayerst’s trial

                judge, Scott Gallina. Judge Gallina was alleged to have committed second

                degree rape, indecent liberties (by forcible compulsion), and assault in the

                third degree with sexual motivation.

               On April 11, this court issued an unpublished opinion affirming Mr.

                Ayerst’s judgment and sentence.

               On April 19, the Washington State Bar Association (WSBA) filed a formal

                complaint regarding Mr. Van Idour with the disciplinary board of the


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              Washington Supreme Court, alleging he did not have authorization to

              practice law in Washington as an out-of-state attorney.

       The complaints against Judge Gallina and Mr. Van Idour have yet to be

adjudicated. At the time this case was submitted for argument, Mr. Van Idour remained

licensed to practice law in Idaho.

       On August 8, 2019, Mr. Ayerst filed a personal restraint petition (PRP) with this

court. He alleges several defects at his trial, including deprivation of his rights to counsel

and an impartial trial judge, based on the pending allegations against Mr. Van Idour and

Judge Gallina.

       Mr. Ayerst was appointed counsel to assist him with the PRP and the matter was

submitted to a panel of this court for disposition.

                                         ANALYSIS

Deprivation of counsel

       Mr. Ayerst contends that because Mr. Van Idour was not authorized to practice law

in Washington at the time of his trial, his judgment is void and he is automatically entitled

to relief from conviction based on a theory of structural error. The State disagrees that

structural error applies. According to the State, Mr. Ayerst must show he was prejudiced




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by Mr. Van Idour’s alleged wrongdoing and, because he has not done so, he is not entitled

to relief.

        A litigant challenging a criminal conviction through a PRP typically must show

prejudice; i.e, that the error impacted the outcome of the case. In re Pers. Restraint of

Finstad, 

177 Wash. 2d 501

, 506, 

301 P.3d 450

(2013). An exception can apply in the context

of structural error. A structural error is one impacting the framework of the trial process.

Weaver v. Massachusetts, __ U.S. __, 

137 S. Ct. 1899

, 1907, 

198 L. Ed. 2d 420

(2017).

Structural errors are generally considered per se prejudicial and will require reversal of a

conviction regardless of specific prejudice.1

        Denial of the right to counsel is an error that can be considered structural.

When counsel is denied completely—such as when a defendant is forced into self-

representation—the trial process is undermined and fundamental fairness requires

reversal of the conviction regardless of prejudice or the strength of the State’s case. See

id.; United States v. Cronic, 

466 U.S. 648

, 659, 

104 S. Ct. 2039

, 

80 L. Ed. 2d 657

(1984).

But lesser right to counsel violations do not require such a strong remedy. The trial


        1
         In some contexts, structural error will apply differently on direct and collateral
review. See In re Pers. Restraint of Coggin, 

182 Wash. 2d 113

, 120, 123, 340 P.3d P.3d
810 (2010) (C. Johnson, J., lead opinion with Madsen, C.J., concurring) (public trial
violation). But our cases have not made this distinction in the right to counsel context.
In re Pers. Restraint of Crace, 

174 Wash. 2d 835

, 846-47, 

280 P.3d 1102

(2012).

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In re Pers. Restraint of Ayerst


process is not jeopardized when a defendant merely receives deficient legal

representation. To overturn a conviction when the right to counsel is impinged, but not

denied altogether, the defendant must show counsel’s deficiencies prejudiced the outcome

of the proceedings. Strickland v. Washington, 

466 U.S. 668

, 

104 S. Ct. 2052

, 

80 L. Ed. 2d

674

(1984); In re Pers. Restraint of Crace, 

174 Wash. 2d 835

, 

280 P.3d 1102

(2012).

       Mr. Ayerst’s case falls between the two well-established scenarios of how to treat

deprivation of counsel claims. Mr. Ayerst was not forced to represent himself at trial; he

had the benefit of an attorney with considerable legal experience. But at the same time,

because Mr. Ayerst’s attorney was not licensed in Washington, he did not have “counsel”

as that term is defined for constitutional purposes. See City of Seattle v. Ratliff, 

100

Wash. 2d 212

, 217, 

687 P.2d 630

(1983).

       The seminal case addressing how to treat a claim for relief based on representation

by an unlicensed person is Judge Henry Friendly’s opinion in Solina v. United States, 

709

F.2d 160

, 167 (2d Cir. 1983). Mr. Solina was convicted of federal bank robbery charges.

After trial, he discovered the individual who had been representing him was not a

licensed attorney. The individual was posing as an attorney after he graduated law school,

but failed the bar exam. Mr. Solina filed a petition for collateral relief from conviction,

alleging he had been denied the right to counsel.


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       The United States Court of Appeals for the Second Circuit granted Mr. Solina’s

request for relief even though he had not shown the lack of a licensed attorney prejudiced

the result in his case. The federal court reasoned the concept of prejudice was

inapplicable because Mr. Solina’s case involved an inherent conflict of interest. An

individual fraudulently posing as a lawyer is involved in criminal activity. As such, the

individual operates under “fear of what might happen if a vigorous defense should lead

the prosecutor or the trial judge” to make an inquiry into credentials.

Id. A conviction

cannot

be upheld in such circumstances; a defendant in a criminal trial “is entitled to be

represented by someone free from such constraints.”

Id.

In the decades

since Solina, courts have generally agreed structural error applies to

representation by an unlicensed attorney only if the attorney has never been licensed in

any jurisdiction. Bear v. United States, 

777 F.3d 1008

, 1011 (8th Cir. 2015); United

States v. Bergman, 

599 F.3d 1142

, 1147-48 (10th Cir. 2010); United States v. Mitchell,

216 F.3d 1126

, 1132 (D.C. Cir. 2000); United States v. Maria-Martinez, 

143 F.3d 914

,

916 (5th Cir. 1998); Vance v. Lehman, 

64 F.3d 119

, 121-22 (3d Cir. 1995); Bond v.

United States, 

1 F.3d 631

, 636-37 (7th Cir. 1993); State v. Edison, 

61 Wash. App. 530

, 537,

811 P.2d 958

(1991); United States v. Mouzin, 

785 F.2d 682

, 696 (9th Cir. 1986).




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       The limited allowance for structural error is based on two considerations. “First,

courts are concerned that a defendant have a counselor who has legal training and

demonstrated the specialized knowledge and ability of a lawyer.” 

Maria-Martinez,

143 F.3d at 916

. This concern was emphasized in the Washington Supreme Court’s

decision in Ratliff, where the defendant was represented by a law student who operated

outside the parameters of the admission to practice rules applicable to law 

students.

100 Wash. 2d at 217

. Second, there is concern “an undisclosed lack of credentials may

create a conflict of interest.” 

Mariz-Martinez, 143 F.3d at 916

. This consideration is based

on Judge Friendly’s analysis in Solina.

       Mr. Ayerst argues that even though Mr. Van Idour has an out-of-state license, his

circumstances are akin to the conflict of interest scenario discussed in Solina. According

to Mr. Ayerst, Mr. Van Idour’s unlicensed representation amounted to criminal behavior,

thus prohibiting him from providing unrestrained, vigorous representation. Just as Mr.

Solina was entitled to relief from conviction without showing prejudice, Mr. Ayerst

claims he too should have his convictions overturned.

       We disagree Mr. Ayerst’s circumstances are like those in Solina. Unlike the

charlatan in Solina, Mr. Van Idour was and is an attorney, subject to state licensing

regulations. Under at least some circumstances, Mr. Van Idour could have been qualified


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to provide indigent defense representation in Washington. See APR 8. The WSBA

allegations against Mr. Van Idour have not been proven. And even under the facts

alleged, it is not clear Mr. Van Idour was purposefully evading Washington’s licensing

requirements at the time he represented Mr. Ayerst. Mr. Van Idour could have been

confused. Had that been the case, he would not have been operating under the kind of

conflict of interest identified in Solina.

       Individuals filing for PRP relief bear the burden of proving facts justifying their

claims. In re Pers. Restraint of Hews, 

99 Wash. 2d 80

, 88, 

660 P.2d 263

(1983). “Bald

assertions and conclusory allegations” are insufficient. In re Pers. Restraint of Rice,

118 Wash. 2d 876

, 886, 

828 P.2d 1086

(1992). If the existing record is insufficient to justify

relief, a reference hearing may be ordered under RAP 16.11(a) and RAP 16.12. 

Hews,

99 Wash. 2d at 88

. But to obtain a reference hearing, the petitioner must demonstrate they

have “competent, admissible evidence to establish the facts that entitle [them] to relief.”

Rice, 118 Wash. 2d at 886

. This burden is similar to that required in the civil summary

judgment context. See

id.

Mr. Ayerst has

not alleged facts suggesting Mr. Van Idour’s licensing problems

were sufficiently severe to fall in line with Judge Friendly’s analysis in Solina. He has not




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In re Pers. Restraint of Ayerst


requested a reference hearing and we do not deem one applicable. Mr. Ayerst therefore

has not established a basis for PRP relief.

Partiality of trial judge

       Apart from his claims regarding Mr. Van Idour, Mr. Ayerst argues he was denied

his due process right to a fair trial based on the criminal allegations against Judge Gallina.

Although the State did not file charges against Judge Gallina until after Mr. Ayerst’s trial

and sentencing, Mr. Ayerst claims Judge Gallina’s participation in his case denied him the

right to an impartial tribunal under the appearance of fairness doctrine.

       We recently addressed claims similar to those raised by Mr. Ayerst. State v.

Williams, No. 37075-5-III, slip op. at 2 (Wash. Ct. App. Nov. 17, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/370755_unp.pdf. Two members of the current

panel were on the panel in Williams. The attorney representing Mr. Williams in this court

is the same as the one currently representing Mr. Ayerst. The briefing submitted in

Williams largely mirrors Mr. Ayerst’s briefing.

       In Williams, we held the mere existence of criminal charges against Judge Gallina

does not establish a basis for relief from conviction. Although the allegations against

Judge Gallina if proven would constitute violations of the Code of Judicial Conduct and

could raise issues under the appearance of fairness doctrine, the judge’s alleged


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misconduct would not provide grounds for relief from conviction unless tied to specific

circumstances of the defendant’s case.

       After Williams was issued, Mr. Ayerst filed a statement of additional authorities

identifying the following cases as support for his arguments regarding due process and

the appearance of fairness doctrine: Rippo v. Baker, __U.S.__, 

137 S. Ct. 905

, 

197 L. Ed.

2d

167 (2017); In re Dependency of A.N.G., 

12 Wash. App. 2d

789, 

459 P.3d 1099

(2020);

Williams v. Pennsylvania, __ U.S.__, 

136 S. Ct. 1899

, 1905, 

195 L. Ed. 2d 132

(2016);

Aetna Life Ins. Co. v. Levoie, 

475 U.S. 813

, 825, 

106 S. Ct. 1580

, 

89 L. Ed. 2d 823

(1986).

       The supplemental cases submitted by Mr. Ayerst stand for the rule that due process

can require a trial judge’s recusal even when the judge has not manifested any “actual

bias.” Aetna Life Ins. 

Co., 475 U.S. at 825

. The cases recognize actual bias can be

difficult to prove. The standard for recusal is therefore objective and asks whether, under

the circumstances of a particular case, there is “an unconstitutional potential for bias.”

Williams, 136 S. Ct. at 1905

.

       The test for an unconstitutional risk of bias by a judicial officer is similar to the

one identified in Solina regarding deprivation of the right to counsel; the issue boils down

to whether the judge is laboring under a conflict of interest. In Williams and A.N.G, the


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conflict was that the judge had previously been involved in bringing a case against the

accused. 

Williams, 136 S. Ct. at 1905

-06 (prior criminal prosecution); A.N.G., 12 Wn.

App. 2d at 794 (prior dependency petition). In Aetna Life Insurance Co. v. Lavoie, the

conflict was that an Alabama Supreme Court justice who was the deciding vote in a

decision favorable to the Lavoies was himself in the process of suing an insurance

company under a novel theory analogous to the Lavoies’ case. And in Rippo, the conflict

was that the trial judge was being targeted for criminal investigation by the same

authorities who were prosecuting the 

defendant. 137 S. Ct. at 906

.

       As was true in Williams, Mr. Ayerst does not point to any particular rulings or

statements of Judge Gallina suggesting actual bias. Instead, Mr. Ayerst claims his case is

similar to Rippo, because Judge Gallina was being investigated by the same authorities

bringing charges against Mr. Ayerst. According to Mr. Ayerst, this created an

unconstitutional risk of bias regardless of whether Judge Gallina was actually biased.

       Similar to his claims regarding Mr. Van Idour, Mr. Ayerst’s arguments regarding

Judge Gallina fail for want of factual support. Nothing in the record suggests Judge

Gallina was aware of the State’s investigation of him during the pendency of Mr. Ayerst’s

case. As a result, there is no reason to believe Judge Gallina was laboring under a conflict

between his duties as a jurist and a desire to avoid criminal prosecution. Mr. Ayerst


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argues Judge Gallina must have been conflicted because he knew he was engaged in

unlawful criminal activity and therefore would have wanted to issue rulings deflecting

attention away from himself. This argument assumes both that Judge Gallina is guilty of

the pending criminal charges and that he was concerned about getting caught. The current

record does not support these assumptions.2

       Mr. Ayerst has failed to meet his burden to establish facts warranting relief from

conviction based on the allegations against Judge Gallina.

       Mr. Ayerst has not established unlawful restraint. His petition for relief is

dismissed.

       The panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports, and that the remainder having no

precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so

ordered.




       2
         At oral argument, counsel for Mr. Ayerst claimed a nunc pro tunc order issued by
Judge Gallina indicated the court was colluding with Mr. Van Idour in his criminal effort
to practice law without a Washington license. This factual claim is nothing more than
speculation. Moreover, it has not been properly raised. The claims against Judge Gallina
contained in Mr. Ayerst’s petition and briefing are limited to the Asotin County criminal
charges.

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Remaining claims

       Mr. Ayerst makes four additional claims of error: (1) insufficiency of evidence,

(2) improper contact between the prosecutor and jurors, (3) failure to admit a recorded

video, and (4) violation of the speedy trial rule. The first claim fails because it was

addressed on direct review and Mr. Ayerst does not show why the interests of justice

require reassessment. See In re Pers. Restraint ofBrown, 143 Wn.2d 431,445, 

21 P.3d

687

(2001 ). The second and third claims fail for lack of factual support. See 

Cook, 114

Wash. 2d at 813-14

. The last claim fails because it involves a nonconstitutional error and

Mr. Ayerst does not demonstrate "a fundamental defect which inherently results in a

complete miscarriage of justice."

Id. at 812.

                                      CONCLUSION

       Mr. Ayerst has not established unlawful restraint. His petition for relief is

dismissed.


                                            Pennell, C.J.

WE CONCUR:




Siddoway, J.                                Lawrence-Berrey,   J . ,j
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