State Of Washington, V. Thomas N. Tobey, 55058-0

Tobey and Doering had lived together; a no-contact order prohibited Tobey from contacting Doering after they stopped living together.
On Nov. 10, 2019, Doering returned to the shared residence to collect belongings; Tobey was present and subsequently arrested after officers responded to a dispatch about a no-contact order violation.
The no-contact order was admitted into evidence at trial; Tobey argued he did not knowingly violate it because Doering initiated the contact by coming to his residence uninvited.
The jury convicted Tobey of felony violation of a court order; sentencing range was 41–54 months.
Defense requested a DOSA and asked for the low end of the range; the court denied DOSA and imposed 41 months.
Tobey appealed, claiming ineffective assistance of counsel for (1) failing to stipulate to the order’s existence and (2) failing to request an exceptional downward sentence based on the victim’s initiation.

Issue	Plaintiff's Argument (Tobey)	Defendant's Argument (State)	Held
Whether counsel was ineffective for not stipulating to the existence/knowledge of the no-contact order	Failure to stipulate allowed inflammatory boilerplate in the order to influence the jury; stipulation would likely have been accepted	Admission of the order was proper; boilerplate language was not unfairly prejudicial and did not describe acts by Tobey	Counsel not ineffective; even assuming deficiency, Tobey cannot show prejudice because the order’s boilerplate was not unfairly prejudicial
Whether counsel was ineffective for not requesting an exceptional downward sentence based on victim initiation	Counsel should have sought a mitigating departure because Doering initiated the encounter	Trial court considered alternatives, expressed no confusion about its discretion, and was unlikely to impose a downward departure	Counsel not ineffective; Tobey fails to show a reasonable probability the court would have granted a downward departure

State v. Grier, 171 Wn.2d 17 (recognition of the two-prong ineffective assistance test and strong presumption of competence)
State v. Reichenbach, 153 Wn.2d 126 (articulation of deficient performance and prejudice standards)
State v. McFarland, 127 Wn.2d 322 (objective reasonableness standard for counsel performance)
State v. Kyllo, 166 Wn.2d 856 (standard for prejudice under ineffective assistance)
State v. Foster, 140 Wn. App. 266 (no need to address both Strickland prongs if one fails)
State v. Taylor, 193 Wn.2d 691 (no-contact order may supply elements but boilerplate restraint language is not inherently inflammatory)
State v. Bunker, 144 Wn. App. 407 (remand when trial court erroneously believed it lacked discretion to impose a downward departure)
State v. McGill, 112 Wn. App. 95 (ineffective assistance where court was not apprised of law permitting downward departure)
State v. Sanchez, 69 Wn. App. 255 (ground for downward departure based on victim law enforcement control; cited as favorable precedent in sentencing contexts)
State v. Hernandez-Hernandez, 104 Wn. App. 263 (no prejudice where defendant failed to show trial court would have imposed a downward departure even if argument had been made)