State Of Washington v. Michael John Paulson

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

STATE OF WASHINGTON,                           )        No. 79627-5-I
                                               )
                             Respondent,       )
                                               )
                 v.                            )        UNPUBLISHED OPINION
                                               )
MICHAEL JOHN PAULSON,                          )
                                               )
                             Appellant.        )

       PER CURIAM — Michael Paulson was convicted by a jury of one count of

second degree assault following an incident in which he strangled his wife in front

of his two minor children. As part of his judgment and sentence, the trial court

imposed a ten-year no-contact order prohibiting Paulson from having contact with

his children. Paulson appealed, contending that the no-contact order violated his

fundamental right to parent and that counsel was ineffective for failing to argue

that the no-contact order was excessive in scope and duration. The State

concedes that the trial court did not explain on the record how the scope and

duration of the no-contact order was reasonably necessary to prevent harm to

the children or whether it considered less restrictive alternatives. See, e.g. State

v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008) (crime-related prohibitions

affecting fundamental rights must be “narrowly drawn” and there must be “no

reasonable alternative way to achieve the State's interest.”).




     Citations and pin cites are based on the Westlaw online version of the cited material.
79627-5-I/2


       We accept the State’s concession. We remand to the trial court for further

analysis and factual findings as to the scope and duration of the no-contact

order. On remand, the trial court shall also strike the community custody

supervision fee from the judgment and sentence.

       In a pro se statement of additional grounds, Paulson asserts he was

denied due process because his incarceration prevented him from accessing

important evidence such as bank records that he wished to present at trial, and

that a statement he wished to offer was excluded at his criminal trial but admitted

during his dissolution trial. But these claims rely on evidence outside the record,

which we do not consider in a direct appeal. State v. McFarland, 127 Wn.2d 322,

338, 899 P.2d 1251 (1995). Paulson next argues that his wife’s testimony at trial

was inconsistent and therefore not credible. But we do not review a jury's

credibility determinations. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102

(1997). Finally, Paulson contends that his attorney was ineffective for failing to

retain experts in the areas of strangulation and firearms. But to prevail on an

ineffective assistance claim, a defendant must show that (1) counsel's

performance fell below an objective standard of reasonableness based on

consideration of all the circumstances and (2) the deficient performance

prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). Paulson’s conclusory assertions do not establish either

deficient performance or prejudice. See RAP 10.10(c) (while citations to the

record are not required for review, “the appellate court is not obligated to search




                                        -2-
79627-5-I/3


the record in support of claims made in a defendant's statement of additional

grounds for review.”).

         Reversed and remanded for proceedings consistent with this opinion.




WE CONCUR:




                                      -3-
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