State Of Washington, Respondent V. Joshua Cody Hegre, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53335-9-II
Respondent,
v.
JOSHUA CODY HEGRE, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Joshua Hegre appeals from the superior court’s order revoking his
Special Sentencing Sex Offender Sentencing Alternative (SSOSA) after he admitted to
assaulting his wife in violation of the conditions of his SSOSA. Hegre argues that he received
ineffective assistance of counsel because his defense counsel failed to conduct a reasonable
investigation into the allegation of assault and pursued an unreasonable strategy. We disagree
and affirm.
FACTS
In 2014, Hegre pleaded guilty to first degree child molestation, second degree rape of a
child, and residential burglary. The superior court imposed a SSOSA. Under the conditions of
his SSOSA, Hegre was not to have any contact with minors and was required to maintain law
abiding behavior.
In September 2015, the State moved to revoke Hegre’s SSOSA based on allegations that
Hegre had contact with a minor and committed fourth degree assault—domestic violence against
his female roommate in violation of the terms of his SSOSA. Hegre consulted with his attorney,
Filed
Washington State
Court of Appeals
Division Two
December 15, 2020

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2
Steven Rucker, and decided not to contest the violations. At the hearing, Rucker explained that
Hegre had been doing well with his treatment assignments and that these were Hegre’s first
violations. Rucker encouraged the superior court to impose a sanction of 120 total days, as
opposed to revoking the SSOSA.
The superior court found that Hegre had committed two violations of his SSOSA and
imposed a total of 120 days’ imprisonment as a sanction. The superior court warned Hegre that
any future violation would result in revocation of his SSOSA:
I hope you understand the significant break that I view that as being and I
hope you understand I’m providing that not because I condone in any way or
fashion the choices that you’ve made, but instead to give you one final alternative
to follow through on the commitments that you’ve made, on what your treating
provider indicates he thinks the progress can be made and to understand that
moving forward, no violation is appropriate. Now, that means you need to
understand that any of those conditions have to be met in full. If not, there’s not
going to be any other breaks, Mr. Hegre and that revocation will happen. Do you
understand that?
Transcript of Proceedings (TP) at 77.
In June 2017, Hegre was arrested and charged in district court with one count of fourth
degree assault—domestic violence following allegations that Hegre had assaulted his wife,
Nichelle Adams. Following the new criminal charge, the State again moved to revoke Hegre’s
SSOSA. Rucker represented Hegre in the second revocation matter.
Hegre’s defense attorney in the district court case advised Rucker that she planned to set
the district court case for trial because it was “a pretty defensible case.” Clerk’s Papers (CP) at
137. Leading up to the SSOSA revocation hearing, Rucker reviewed discovery from the State
regarding the alleged new violation including police reports, Adams’s signed statement (Smith

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affidavit1), 911 calls from Adams’s friend and Adams, photographs of Adams taken by the
police, a letter from Adams to the district court judge, Adams’s interview with the defense
investigator in Hegre’s district court case, and e-mails from the deputy prosecuting attorney
regarding his contact with Adams. Adams’s statement to the defense investigator said that she
had fabricated the assault allegation because she was mad at Hegre.
After reviewing the information provided by the State and discussing the allegation and
the evidence with Hegre, Rucker advised Hegre to admit the new violation rather than proceed
with a contested hearing. Counsel based his advice on the facts that (1) Hegre had admitted to
him that he had pulled Adams’s hair and pushed her and would therefore be unable to refute the
alleged assault without perjuring himself; (2) Adams had recanted her initial version of events
and denied that any assault occurred but had not yet testified under oath, and her Smith affidavit
stating Hegre had assaulted her would be admissible if she recanted her testimony under oath; (3)
Adams’s Smith affidavit referenced additional possible crimes during the charging window for
which Hegre could potentially be charged; and (4) the burden of proof for a SSOSA revocation
hearing was preponderance of the evidence. Hegre agreed with his counsel’s recommendation
that he should admit the allegation.
At the SSOSA revocation hearing, the State was prepared to present testimony from
Adams and a police officer who responded to Adams’s report of assault. The State was also
prepared to ask Adams about her claims of prior violence by Hegre as identified in her Smith
affidavit. Rucker explained Hegre’s position:
1 A Smith affidavit is a sworn statement given during a police station interrogation and may be
admissible as substantive evidence under ER 801(d)(1) as a prior inconsistent statement. State v.
Smith, 97 Wn.2d 856, 863, 651 P.2d 207 (1932).

No. 53335-9-II
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[A]fter reviewing all [the discovery] and meeting with [Hegre], who has wanted to
plead guilty to the charges from the very beginning, I advised him it was in his
interest to go ahead and admit to the violation, explain the circumstances to the
Court and ask the Court to review the possibilities of the different options,
revocation versus sanction. So, we wish to move to the penalty phase at this time
and we’ll provide some of the background of the events that brought us here from
the June 6th event.
TP at 97.
The superior court conducted a colloquy with Hegre to confirm that he understood the
ramifications of admitting the new allegation. Hegre chose to admit the new alleged violation
and forgo a contested revocation hearing. Rucker argued against revocation, emphasizing
Hegre’s immediate cooperation with law enforcement following the incident, Hegre’s immediate
engagement in a two-day counseling workshop, and Adams’s desire to reunite with Hegre.
The superior court noted that Rucker was a strong advocate on Hegre’s behalf, but
nonetheless revoked Hegre’s sentence, finding that he had violated the conditions of his SSOSA
by assaulting Adams. The superior court sentenced Hegre to a standard-range sentence based on
the original judgment and sentence.
Prior to trial in district court on Hegre’s fourth degree assault charge, Adams informed
the City that she would not travel from California for the trial, and the district court denied the
City’s motion to admit Hegre’s admission at the SSOSA revocation hearing. The City decided to
dismiss Hegre’s pending fourth degree assault charge without prejudice because it could not
prove the case beyond a reasonable doubt at the time.
Hegre filed a motion for relief from the order revoking his SSOSA under CrR 7.8(b)(5)
arguing that he received ineffective assistance of counsel. Rucker testified at an evidentiary
hearing on the motion. The superior court entered findings consistent with the facts above and

No. 53335-9-II
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concluded that Hegre failed to establish that Rucker’s performance was deficient or that any
alleged deficiency prejudiced Hegre.
Hegre appeals the superior court’s denial of his motion for relief from the order revoking
Hegre’s SSOSA.
ANALYSIS
Hegre argues that the trial court abused its discretion by denying his motion for relief
from judgment because he received ineffective assistance of counsel at his SSOSA revocation
hearing when counsel failed to adequately investigate the assault allegation and pursued an
unreasonable strategy. We disagree.
I. LEGAL PRINCIPLES
We review a superior court’s denial of a CrR 7.8 motion for relief from judgment for
abuse of discretion. State v. Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016). A trial
court abuses its discretion when its decision is manifestly unreasonable or based on untenable
grounds, or when no reasonable judge would have reached the same decision. State v.
McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006); State v Martinez, 161 Wn. App. 436, 441,
253 P.3d 445 (2011). Under CrR 7.8(b)(5), a court may grant relief from judgment for “[a]ny
other reason justifying relief from the operation of the judgment.” Ineffective assistance of
counsel can provide the basis for vacating a judgment under CrR 7.8(b)(5). Martinez, 161 Wn.
App. at 441.
We review ineffective assistance of counsel claims de novo. State v. Estes, 188 Wn.2d
450, 457, 395 P.3d 1045 (2017). Ineffective assistance of counsel is a two-prong inquiry. State
v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective assistance of

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counsel claim, a defendant must show that defense counsel’s performance was deficient, and the
deficient performance prejudiced the defendant. Grier, 171 Wn.2d at 32. A failure to prove
either prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
There is a strong presumption that defense counsel’s conduct was not deficient. State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Because of this presumption, “the
defendant must show in the record the absence of legitimate strategic or tactical reasons
supporting the challenged conduct by counsel.” McFarland, 127 Wn.2d at 336. There is no
ineffective assistance when counsel’s complained of actions are trial tactics. Grier, 171 Wn.2d
at 33.
To be effective, trial counsel must investigate the case. State v. Jones, 183 Wn.2d 327,
339, 352 P.3d 776 (2015). Counsel’s duty includes making reasonable investigations, or making
a reasonable decision that renders particular investigations unnecessary. In re Pers. Restraint of
Gomez, 180 Wn.2d 337, 355, 325 P.3d 142 (2014). This duty to investigate includes
interviewing witnesses. Jones, 183 Wn.2d at 339. “‘[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation,’” In re
Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017) (alteration in original) (quoting
Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed. 2d 471 (2003)).

No. 53335-9-II
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II. INVESTIGATION
Hegre argues that Rucker failed to conduct an adequate investigation into his case
because he did not hire an investigator, did not personally interview Adams, and did not obtain
an e-mail summarizing Adams’s statements to her victim advocate that she had fabricated the
allegations against Hegre. We disagree.
The record shows that Rucker adequately investigated the assault allegation and was well
aware of Adams’s position at the time of the SSOSA. Before the revocation hearing, Rucker
obtained and reviewed police reports from the incident, Adams’s Smith affidavit, 911 calls from
Adams and her friend, photographs of Adams, Adams’s letter to the district court judge,
Adams’s interview with the investigator for the district court case, and e-mails from the
prosecuting attorney regarding his contact with Adams. Adams’s statement to the defense
investigator stated that she had fabricated the assault because she was mad at Hegre.
The record shows that Rucker was aware that if Adams testified in support of Hegre, the
State could admit her Smith affidavit, and he made the tactical decision to advise Hegre to admit
the allegation and beg for leniency. This legitimate strategic decision was not based on
insufficient investigation into the assault allegation. Legitimate trial tactics do not constitute
deficient performance, thus, we hold that Hegre’s claim fails.
Moreover, Hegre cannot show that any alleged deficiency prejudiced him. Hegre does
not contend that he was unaware of Adams’s stance in support of him before he chose to admit
the violation. Rather, the record shows that Rucker discussed the potential evidence, which
included Adams’s claim that she fabricated the assault, with Hegre before the revocation hearing
and Hegre agreed with his counsel’s recommendation that he should admit the allegation. Thus,

No. 53335-9-II
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Hegre cannot successfully argue that had Rucker conducted additional investigation, he would
have changed his mind about admitting the allegation. Hegre’s claim of ineffective assistance on
this ground fails.
III. STRATEGY
Hegre also argues that Rucker’s strategy of admitting the violation was unreasonable
given the superior court’s warning at Hegre’s first revocation hearing that he would not be
entitled to any additional chances in the event of another violation. We disagree.
Hegre focuses on Adams’s statements that she fabricated the assault allegations and the
subsequent dismissal of the district court charge to suggest that Hegre could have successfully
challenged the State’s evidence on the violation. But it was not unreasonable for Rucker to
choose to avoid challenging the evidence of the violation where Hegre had admitted to pushing
Adams and pulling her hair and thus could not testify to deny the allegation without perjuring
himself. Additionally, had Hegre contested the allegation and called Adams to testify, the State
could have admitted her Smith affidavit as substantive evidence if she testified that the assault
never occurred. Proof of violations in a revocation hearing need not be established beyond a
reasonable doubt; the evidence must reasonably satisfy the court that the breach of condition
occurred. State v. McCormick, 141 Wn. App. 256, 262-63, 169 P.3d 508 (2007), aff’d 166
Wn.2d 689 (2009). Under these circumstances, especially in light of Hegre’s undisputed
commitment to treatment, agreeing to admit the violation and beg for the superior court’s mercy
was not an unreasonable strategic decision.

No. 53335-9-II
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We affirm the trial court’s denial of Hegre’s CrR 7.8 motion.
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.
___________________________
Worswick, J.
____________________________
Maxa, J.
____________________________
Sutton, A.C.J.