Personal Restraint Petition Of: Brett Charles Everette, 49883-9

Background

Brett C. Everette was convicted by a jury of attempted first-degree kidnapping, first-degree unlawful possession of a firearm, and felony harassment; special verdicts asked whether he or an accomplice was armed with a firearm during the offenses.
Jury answered “no” as to Everette being armed but “yes” as to an accomplice being armed for attempted kidnapping and felony harassment.
Everette appealed; convictions were affirmed on direct appeal, and he subsequently filed a personal restraint petition raising multiple challenges.
He argued: flawed to-convict instruction for attempted first-degree kidnapping, improper deadly-weapon special verdicts allowing accomplice liability, insufficient evidence for firearm verdicts, inconsistent verdicts, double jeopardy between kidnapping and harassment, ineffective assistance of trial counsel (conflict, investigation, objections), and ineffective appellate counsel for not raising these issues.
The Court of Appeals reviewed legal and procedural arguments, requiring petitioner to show actual and substantial prejudice for constitutional errors or a complete miscarriage of justice for nonconstitutional errors.

Issues

Issue	Everette's Argument	State's Argument	Held
To-convict instruction for attempted 1st-degree kidnapping	Instruction omitted victim identity and elements of completed kidnapping, relieving State of burden	Attempt requires only intent and a substantial step; instruction included those elements	Denied — instruction sufficient (intent + substantial step required)
Deadly-weapon special verdicts and accomplice liability	Special verdicts improperly allowed finding Everette armed based on accomplice being armed; statute shouldn’t apply when only accomplice was armed; alternatively, State charged him only as principal so accomplice theory invalid	RCW 9.94A.825 expressly asks whether defendant or an accomplice was armed; accomplice liability conviction permitted if jury properly instructed	Denied — statute covers accomplice context; accomplice liability allowed with proper instructions
Sufficiency of evidence for firearm special verdicts	Evidence insufficient to support firearm findings	Accomplice theory permitted; sufficiency challenge rests on rejected premise	Denied — claim fails because accomplice finding is valid
Inconsistent verdicts and double jeopardy	Inconsistencies between firearm possession acquittal and guilty verdicts; kidnapping + harassment convictions violate double jeopardy	Inconsistent jury outcomes do not mandate reversal; kidnapping and harassment have distinct elements (abduction vs. reasonable fear)	Denied — inconsistent verdicts not reversible; no double jeopardy (different elements)
Ineffective assistance of trial counsel (conflict, failure to investigate phone records, failure to object)	Counsel had an actual conflict, failed to obtain phone records that would exonerate, and failed to object to instructions/verdicts	No record showing an actual conflict; no proof phone records existed or would change outcome; challenged instructions were legally proper	Denied — petitioner failed to show deficient performance or prejudice
Ineffective assistance of appellate counsel	Appellate counsel erred by not raising above claims on direct appeal	Claims lack merit, so failure to raise them was not prejudicial	Denied — no merit to underlying claims

Key Cases Cited

Pirtle v. State, 127 Wn.2d 628 (instructional review standard)
Richie v. State, 191 Wn. App. 916 (to-convict instruction must state essential elements)
Aumick v. State, 126 Wn.2d 422 (attempt requires intent and substantial step)
Davenport v. State, 100 Wn.2d 757 (no requirement to charge as accomplice if jury instructed on accomplice liability)
Ng v. State, 110 Wn.2d 32 (inconsistent verdicts do not require reversal)
Calle v. State, 125 Wn.2d 769 (double jeopardy—compare elements of offenses)
Grier v. State, 171 Wn.2d 17 (ineffective assistance standard)
Dhaliwal v. State, 150 Wn.2d 559 (actual conflict of interest standard)
Mickens v. Taylor, 535 U.S. 162 (definition of actual conflict affecting performance)
Cook v. State, 114 Wn.2d 802 (PRP standards)
Williams v. State, 111 Wn.2d 353 (PRP factual showing requirement)