State Of Washington v. Oscar Raul Lopez, 74333-3

Background

Oscar Lopez, a daycare bus driver, was convicted by a jury of first-degree child molestation based on testimony from a six-year-old passenger, L.M.\
After conviction, Lopez retained new counsel and moved for a new trial alleging trial counsel Steven Witchley provided ineffective assistance for (1) failing to call witnesses to testify to Lopez's reputation for sexual morality, (2) inadequate investigation and plea communication, and (3) being impaired by severe depression during the trial.\
Trial court denied claims about investigation and plea communication but granted a new trial based on Witchley’s failure to call reputation witnesses and, separately, on Witchley’s claimed depression—ruling that due process entitles a defendant to counsel free of mental illness.\
The State appealed, arguing (a) following controlling Division One precedent, reputation-for-sexual-morality evidence in child-sex cases is inadmissible so counsel was not ineffective for not pursuing it, and (b) there is no independent Fourteenth Amendment right to counsel free of mental illness; Strickland governs.\
The Court of Appeals reversed: (1) Witchley’s performance was not constitutionally deficient under Strickland for not seeking reputation-for-sexual-morality testimony because binding Division One precedent (State v. Jackson) made admission unlikely; (2) Lopez failed to show prejudice; and (3) there is no independent due process right to counsel free of mental illness—claims are evaluated under Strickland.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel ineffective for not calling witnesses to testify to Lopez's community reputation for sexual morality	Lopez: Such witnesses would have bolstered defense and their absence was deficient performance	State: Binding Division One precedent precludes such evidence in child-sex cases; counsel reasonably followed the law	Counsel was not constitutionally ineffective; following controlling precedent (Jackson) was reasonable
Whether omission prejudiced the outcome (Strickland prejudice prong)	Lopez: Lack of reputation testimony likely changed jury's verdict	State: Other witnesses already conveyed trust/respect; additional reputation testimony would not substantially change result	No substantial likelihood of a different result; prejudice not shown
Whether a defendant has a Fourteenth Amendment due process right to counsel free from mental illness	Lopez/trial court: Severe depression rendered counsel ineffective; due process entitles defendant to mentally fit counsel	State: No per se due process right; Strickland Sixth Amendment framework governs; mental illness is assessed under performance standards	No independent Fourteenth Amendment right; claims evaluated under Strickland (no per se rule)
Whether following existing appellate precedent can constitute reasonable counsel performance	Lopez: Counsel should have attempted to admit reputation evidence despite precedent	State: Counsel may rely on controlling precedent and need not pursue unlikely or novel theories	Following controlling law is reasonable; not ineffective to litigate consistent with precedent

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (attorney performance and prejudice standard for ineffective assistance of counsel)
Powell v. Alabama, 287 U.S. 45 (due process limits on counsel appointment in extreme circumstances)
Gideon v. Wainwright, 372 U.S. 335 (Sixth Amendment right to appointed counsel for indigent defendants)
Harrington v. Richter, 562 U.S. 86 (prejudice requires substantial—not merely conceivable—likelihood of different result)
Lockhart v. Fretwell, 506 U.S. 364 (courts must avoid speculating about alternate strategies)
State v. Jackson, 46 Wn. App. 360 (Division One rule: evidence of reputation for sexual morality is inadmissible in child-sex prosecutions)
State v. Thomas, 110 Wn.2d 859 (treatment of reputation evidence in rape context limited to jury instruction issues)
Smith v. Ylst, 826 F.2d 872 (mental illness of counsel is not per se ineffective; use performance-based review)