Personal Restraint Petition Of David Toan Mai, 81229-7

Mai, DiagnosTechs' longtime CFO, embezzled over $1,000,000 over many years and was arrested in May 2015 while attempting to leave for Vietnam with cash and storage devices.
In April 2017 Mai pleaded guilty to first-degree theft, stipulated a major economic-offense aggravator, and agreed to pay $2,655,355.79 restitution.
The State sought a 100-month sentence based on allegations Mai secreted roughly $1.2 million overseas and could not be made whole; the victim/owner urged a lengthy sentence and described extensive losses.
Defense counsel submitted a presentence report, 16 character letters, and argued Mai had zero criminal history and family hardship; counsel did not object at sentencing to the prosecutor’s or victim’s remarks.
The court imposed a 100-month exceptional sentence, entered written findings identifying multiple independent aggravating factors (major economic offense, long duration, abuse of trust), and the sentence was affirmed on direct appeal.
Mai filed a personal restraint petition claiming ineffective assistance at sentencing for (1) failing to object to improper remarks and (2) failing to present adequate mitigating evidence; the court denied the PRP, finding no actual prejudice and that the written findings alone justified the exceptional sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to object to prosecutor/victim remarks	Mai: counsel should have objected because remarks were improper and prejudicial	Court/State: even if objected, sentencing judge relied on independent, written aggravating findings unrelated to those remarks	Denied — Mai failed to show prejudice; judge’s findings independently support the exceptional sentence
Whether counsel was ineffective for failing to present mitigating evidence	Mai: counsel "essentially" presented no mitigation; should have emphasized zero offender score and standard-range sentence	Court/State: counsel filed PSR, submitted character letters, argued zero history and family hardship; court considered but declined to mitigate	Denied — Mai did not submit sufficient facts to show counsel’s performance caused prejudice

In re Pers. Restraint of Meippen, 193 Wn.2d 310 (discussing petitioner’s burden to show actual prejudice)
In re Pers. Restraint Petition of Davis, 152 Wn.2d 647 (standard for proving ineffective assistance based on failure to object at sentencing)
In re Pers. Restraint of Rice, 118 Wn.2d 876 (no need to reach deficiency if no prejudice shown; requirement to submit sufficient facts)
State v. Alvarado, 89 Wn. App. 543 (deference to legitimate tactical decisions by counsel)