In Re The Personal Restraint Petition Of David Paul Gasvoda

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 54855-1-II
DAVID PAUL GASVODA,
Petitioner.
UNPUBLISHED OPINION
VELJACIC, J. — David Gasvoda seeks relief from personal restraint imposed as a result of
his 2019 plea of guilty to attempted second degree rape of a child. Gasvoda argues that he received
ineffective assistance of counsel, that he was coerced by the judge into pleading guilty, and that
the prosecution violated the plea agreement. He also argues that the trial court erred in ruling that
a proposed witness did not qualify as an expert, that excessive bail was imposed before trial, that
his punishment is unconstitutional, and that he was subjected to a warrantless search of his car.
We conclude that Gasvoda does not show any grounds for relief from personal restraint, and deny
his petition.
A. Ineffective Assistance of Counsel
Gasvoda argues that he received ineffective assistance of trial counsel because counsel (1)
failed to file a witness list on time; (2) misinformed him that he would earn 15 percent good time
credit, when he will only earn 10 percent good time credit, and that he would not have pleaded
Filed
Washington State
Court of Appeals
Division Two
March 2, 2021

No. 54855-1-II
2
guilty if he was correctly informed; (3) did not fully and accurately explain the plea agreement;
and (4) did not obtain corrections to errors in the pre-sentence investigation report.
To establish ineffective assistance of counsel, he must demonstrate that his counsel’s
performance fell below an objective standard of reasonableness and that as a result of that deficient
performance, the result of his case probably would have been different. State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume strongly that trial counsel’s performance was
reasonable, and legitimate strategic decisions do not constitute deficient performance. State v.
Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011).
Gasvoda presents no competent evidence of deficient performance or of resulting
prejudice. His plea of guilty waived his right to challenge any result of a late filing of the witness
list. See In re Pers. Restraint of Teems, 28 Wn. App. 631, 637, 626 P.2d 13 (1981).
As to the advice regarding good time credit, Gasvoda must show that there is a
reasonable probability that, but for the incorrect advice, he would not have pleaded guilty
and would have insisted on going to trial.
In re Pers. Restraint of Tricomo, 13 Wn. App. 2d
223, 237, 463 P.3d 760 (2020). Gasvoda does not meet this burden. He signed the statement
on plea of guilty, attesting that it had been explained to him. And he does not demonstrate what
errors were in the pre-sentence investigation or how they prejudiced him at sentencing. Gasvoda
does not demonstrate he received ineffective assistance of counsel.
B. Alleged Error at Sentencing
Gasvoda claims he was coerced into pleading guilty by the judge taking the plea. Gasvoda
argues that the judge told him he was not bound to follow the sentencing recommendations of the
parties. Gasvoda contrasts this with the same judge denying Gasvoda’s wife’s request for a

No. 54855-1-II
3
downward exceptional sentence because he was bound by the standard sentencing range. Gasvoda
conflates principles of sentencing.
While a court is not bound to follow the recommendations of parties in ordering a sentence,
a court is simultaneously required to order a sentence within the standard range, unless a party
demonstrates mitigating circumstances justifying an exceptional sentence. RCW 9.94A.431(2),
.505(2)(a)(i), .535. Consistent with the plea agreement, Gasvoda did not argue for or demonstrate
mitigating circumstances justifying an exceptional sentence downward. The judge, therefore, was
bound to sentence him within the standard range. Gasvoda does not show that the judge committed
any error leading him to plead guilty.
C. Plea Agreement
Gasvoda argues that the deputy prosecutor violated the plea agreement by interfering with
Gasvoda undergoing a neurological evaluation prior to sentencing in support of a possible
downward sentence. He claims the deputy prosecutor imposed an impossible condition requiring
that Gasvoda have an armed transport or escort take him to the evaluation. But he does not present
any competent evidence that the deputy prosecutor imposed such a condition.
D. Expert Witness.
Gasvoda argues that the trial court erred in ruling that Steve Tutty, Ph.D., would not qualify
as an expert. But he does not present any competent evidence that the trial court made such a
ruling.
E. Excessive Bail.
Gasvoda argues that excessive bail was imposed before trial. But he does not show how
this would be a ground for reversal of his convictions. State v. Ingram, 9 Wn. App. 2d 482, 496-
97, 447 P.3d 192 (2019), review denied, 194 Wn.2d 1024 (2020).

No. 54855-1-II
4
F. Constitutional Punishment
Gasvoda contends his punishment violates the Eighth Amendment to the United States
Constitution and article 1, section 14 of the Washington State Constitution because (1) he was not
eligible for a special sex offender sentencing alternative (SSOSA) sentence because there was no
actual victim of his crime and (2) his indeterminate sentence is longer than determinate sentences
imposed to other defendants for similar crimes. He does not show that he had a constitutional right
to a SSOSA sentence; it is solely a creature of statute. And he does not show that his sentence is
so disproportionate as to constitute cruel and unusual punishment. He received a low-end standard
range sentence of a minimum term of 58.5 months of confinement and a maximum term of life
confinement.
G. Warrantless Search
Gasvoda argues that he was subjected to a warrantless search of his car. But he presents
no evidence that any evidence was obtained during that search. And by pleading guilty, he waived
his opportunity to object to the search. Teems, 28 Wn. App. at 637. He also appears to assert a
Brady1 violation in not producing dash camera video, body camera video or electronic surveillance
of his arrest and the search of his car. But he does not show that such evidence existed or how
they were exculpatory evidence.
Gasvoda does not show any grounds for relief from personal restraint. We therefore deny
his petition and his request for appointment of counsel.
1 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

No. 54855-1-II
5
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur:
Worswick, P.J.
Cruser, J.