FILED MAY 17, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter of the Personal Restraint of ) No. 35177-7-III ) ETHAN NOBLE BURLINGAME, ) PUBLISHED OPINION ) Petitioner. ) SIDDOWAY, J. — Ethan Burlingame seeks relief from personal restraint in the form of an indeterminate sentence of 78 months to life for his April 2016 conviction of second degree rape. He contends his lawyer provided ineffective assistance of counsel when he failed to advise him that (1) Mr. Burlingame had the right to plead guilty when arraigned on the State’s initial charge of third degree rape, (2) if he pleaded not guilty, he would lose the right to plead guilty as charged without the approval of the prosecutor, (3) the facts, including the facts as recounted to police by Mr. Burlingame himself, supported conviction for second degree rape, and (4) the punishment for conviction of second degree rape was dramatically more harsh than the punishment for third degree rape. On the very unusual facts of this case—facts that are well-supported not only by declarations of Mr. Burlingame and his trial lawyer, but also by the record of the police investigation and arraignment—Mr. Burlingame shows actual and substantial prejudice resulting from the violation of his constitutional right to the effective assistance of No. 35177-7-III In re Pers. Restraint of Burlingame counsel. We grant his petition, remand with directions that he have the opportunity to plead guilty to third degree rape, and if he does plead guilty to third degree rape, empower and direct the trial court to vacate his conviction for second degree rape. See RAP 16.11(b), 16.12. FACTS AND PROCEDURAL BACKGROUND On December 30, 2015, 18-year-old Ethan Burlingame called 911 to report that he needed to be arrested because several hours earlier he had “violated a girl.” Pers. Restraint Pet. App. (PRP App.), Incident Report at 3. When interviewed by police, Mr. Burlingame told them he had been drinking with the victim and others at his brother’s house and after everyone quit drinking, he went to sleep on the couch and the victim went to sleep on the floor. He described the victim as being “passed out due to being very intoxicated.” PRP App., Deputy Suppl. Report at 2. As she slept, Mr. Burlingame said he touched the victim’s breast, put his mouth on her bare breast, pulled her underpants down to her ankles, inserted his fingers into her vagina, penetrated her vagina with his tongue, and then attempted to insert his penis into her vagina. Mr. Burlingame told officers he might have inserted his penis into the victim’s vagina about an inch, but he was not sure. When initially contacted by police on the morning of the report, the victim stated she had not been raped by Mr. Burlingame. But the next day, she told Officer Stan Berkshire that Mr. Burlingame had raped her and she ...
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