Personal Restraint Petition Of: Angelino Lucino Pena

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 50873-7-II
Personal Restraint of
ANGELINO L. PENA
UNPUBLISHED OPINION
SUTTON, J. — Angelino Pena seeks relief from personal restraint imposed following his
2014 conviction for first degree assault. He argues that the evidence against him was insufficient
for the jury to find him guilty beyond a reasonable doubt and that he received ineffective assistance
of counsel when his trial counsel did not request a lesser included instruction for third degree
assault.
RCW 10.73.090(1) requires that a petition be filed within one year of the date that the
petitioner’s judgment and sentence becomes final. Pena’s judgment and sentence became final on
July 15, 2016, when we issued the mandate following his direct appeal. RCW 10.73.090(3)(b).
He did not file his petition until September 11, 2017, more than one year later. Unless he shows
Filed
Washington State
Court of Appeals
Division Two
February 6, 2018

No. 50873-7-II
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that one of the exceptions contained in RCW 10.73.100 applies or that his judgment and sentence
is facially invalid, his petition is time-barred. In re Pers. Restraint of Hemenway, 147 Wn.2d 529,
532-33, 55 P.3d 615 (2002).
Pena argues that RCW 10.73.100(1), (2), and (4) exempt his petition from the time bar. He
does not present newly discovered evidence or show that the assault statute is unconstitutional, so
RCW 10.73.100(1) and (2) are inapplicable. But RCW 10.73.100(4) does exempt petitions
asserting insufficient evidence. “The test for determining the sufficiency of the evidence is
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). The State presented evidence that Pena and the victim had an argument
about Pena’s brother, that Pena shot the victim in the face, and that Pena put the gun in his
waistband. State v. Pena, noted at 192 Wn. App. 1037, 2016 WL 555382, at *1, review denied,
185 Wn.2d 1037 (2016). This evidence is sufficient for a rational trier of fact that Pena shot the
victim with the intent to kill or cause great bodily harm, thereby committing first degree assault.
See State v. Woo Won Choi, 55 Wn. App. 895, 906-07, 781 P.2d 505 (1989).
As to Pena’s claim of ineffective assistance of counsel, this court rejected his argument in
his direct appeal. Unless he shows that the interests of justice require it, he cannot raise this
argument again in this petition. In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835,
870 P.2d 964 (1994). He makes no such showing.

No. 50873-7-II
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Pena fails to show grounds for relief from restraint. Accordingly, we deny Pena’s petition.
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.
SUTTON, J.
We concur:
WORSWICK, P.J.
JOHANSON, J.