Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Personal Restraint No. 86653-2-I of: DIVISION ONE CORNELIUS RITCHIE, UNPUBLISHED OPINION Petitioner. COBURN, J. — Cornelius Ritchie collaterally attacks his judgment and sentence, claiming he is unlawfully restrained due to ineffective assistance of trial and appellate counsel. Because Ritchie fails to establish actual prejudice arising from constitutional error as required for relief by way of a personal restraint petition, we deny his petition. FACTS After his first trial ended in a hung jury, Cornelius Ritchie was retried and convicted of three counts of assault in the second degree, one count of felony harassment, and one count of assault in the fourth degree. State v. Ritchie, 24 Wn. App. 2d 618, 625, 520 P.3d 1105 (2022). The convictions arose from an altercation that occurred on December 18, 2019, involving Deborah Garibay, who owned a trailer located in the parking lot behind the Lochsloy store in Snohomish County where Ritchie was living. Id. at 623. The opinion issued after Ritchie’s direct appeal describes the events: 86653-2-I/2 According to Garibay, while outside of the trailer, Ritchie hit her in the head once with a baseball bat, knocking her to the ground. Ritchie then tossed the baseball bat and struck Garibay several more times with his fists. Garibay attempted to run, but Ritchie pursued her, still attempting to hit her. Amanda Duran and Cody Chapin were sitting in their car in the Lochsloy store parking lot. Duran and Chapin saw Ritchie pursuing Garibay and decided to intervene. Chapin got out of the car and confronted Ritchie. In response, Ritchie threatened to kill both Chapin and Duran. Duran remained in the car but shouted at Ritchie that she had mace that she would use if Ritchie did not stop his pursuit of Garibay. Ritchie responded that he did not care and would “eat” the mace. Duran then told Ritchie that if he was a man, he would walk away. Ritchie stopped at that point and walked back to the trailer. Garibay got into the back seat of Chapin’s vehicle. According to Duran and Chapin, Garibay asked Chapin to drive her to her truck, which was parked in another part of the lot. Chapin attempted to oblige. However, Ritchie reached the truck first, took the keys that Garibay had left inside the vehicle, and started the vehicle. Chapin drove out of the parking lot and onto Highway 92, heading toward Granite Falls. Ritchie followed in Garibay’s truck. According to Chapin, Duran, and Garibay, the vehicles were traveling well in excess of the 55-mile-per-hour speed limit. Ritchie used the truck to ram the back of Chapin’s vehicle. Chapin asserted that this caused him to cross the center line and force a semitruck off the road. Id. at 623-24. Ritchie eventually stopped following Chapin’s vehicle and Garibay sought medical assistance at the nearby fire station. Id. at 624. After transport to the emergency room, a forensic nurse examiner found no bruises related to the incident, and “observed some slight bumps on Garibay’s head but did not make note of or photograph them as they were not visibly a sign of injury.” Id. at 625. The State charged Ritchie with three counts of assault in the second degree with a deadly weapon for ramming Chapin’s vehicle, one count of felony harassment for threatening to kill Chapin, and one count of assault in the fourth degree for his altercation with Garibay. Id. The State also alleged domestic violence for the counts of assault in the second degree and assault in the fourth degree related to Garibay. The 2 86653-2-I/3 jury convicted Ritchie on all counts but found that he and Garibay were not members of the same family or household. The trial court sentenced Ritchie to life without the possibility of parole under the Persistent Offender Accountability Act of the Sentencing Reform Act of 1981, ch. 9.94A RCW. Ritchie, 24 Wn. App. 2d at 626. Ritchie appealed. While the direct appeal was pending with this court, trial counsel filed a CrR 7.8 motion for relief from judgment in the superior court and the State requested transfer to this court for treatment as a personal restraint petition. See No. 84916-6-I. We affirmed Ritchie’s judgment and sentence on appeal in a published opinion. See Ritchie, 24 Wn. App. 2d at 623. The superior court transferred the CrR 7.8 motion to this court for consideration as a personal restraint petition and we dismissed the petition after Ritchie moved for voluntary withdrawal. No. 84916-6-I. Ritchie subsequently filed this personal restraint petition. The Acting Chief Judge of this court dismissed claims of prosecutorial misconduct that had been addressed on direct appeal. Ritchie’s claims of ineffective assistance of counsel are before us on collateral attack. DISCUSSION Relief by way of a personal restraint petition is extraordinary. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A personal restraint petition is not a substitute for an appeal, and such collateral relief is limited because it “undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders.” In re Pers. Restraint of Hagler, 97 Wn.2d 818, 824, 650 P.2d 1103 (1982). To obtain relief, a petitioner bears the burden of showing that he is under 3 86653-2-I/4 restraint and that the restraint is unlawful. RAP 16.4; In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994). The petitioner must establish either actual and substantial prejudice arising from constitutional error or nonconstitutional error that is a fundamental defect and inherently results in a “complete miscarriage of justice.” In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383 P.3d 454 (2016). The petitioner must prove the error by a preponderance of the evidence and support the petition with facts or evidence. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004); see also RAP 16.7(a)(2)(i). When alleging a constitutional error, “the petitioner must demonstrate by a preponderance of the evidence that petitioner was actually and substantially prejudiced by the error.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004). If a petitioner fails to meet the threshold burden of showing actual prejudice arising from constitutional error, the petition must be dismissed. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992). Ritchie asserts constitutional error, arguing he received ineffective assistance of both trial and appellate counsel. Ineffective Assistance of Trial Counsel A defendant is guaranteed the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); U.S. Const. amend. VI. To prevail on a claim of ineffective assistance of trial counsel, a defendant must prove both deficient performance and prejudice. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015). In the context of a personal restraint petition, a petitioner who demonstrates both deficient representation and prejudice 4 86653-2-I/5 meets the burden to show a constitutional error that caused actual prejudice as required for relief. In re Pers. Restraint of Crace, 174 Wn.2d 835, 848, 280 P.3d 1102 (2012). However, failure to prove either deficiency or prejudice ends the analysis. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018). Establishing deficient performance requires a showing that counsel’s representation fell below an objective standard of reasonableness based on consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). “[S]crutiny of counsel’s performance is highly deferential and courts will indulge in a strong presumption of reasonableness.” Id. at 226. Because the presumption runs in favor of effective representation, the defendant must demonstrate in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Moreover, we evaluate counsel’s performance in the context of the entire record. State v. Ciskie, 110 Wn.2d 263, 284, 751 P.2d 1165 (1988). Prejudice sufficient to support a claim of ineffective assistance of counsel occurs when counsel’s errors were so serious as to deprive the defendant of a fair trial. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). The defendant must show a “reasonable probability that, but for counsel’s errors, the result of the trial would have been different.” Id. Ritchie argues his counsel was deficient by failing to investigate or call witnesses; failing to object after certain testimony; failing to move for a mistrial after a question from the jury; and proposing an improper jury instruction. We review these claims of ineffective assistance of counsel de novo. In re Pers. Restraint of Hopper, 4 5 86653-2-I/6 Wn. App. 2d 838, 843, 424 P.3d 228 (2018). A. Failure to Investigate and Call Witnesses Failure to investigate or interview witnesses may support a claim of ineffective assistance of counsel. State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991). Ritchie claims his trial counsel was ineffective because he failed to investigate, interview, or call exculpatory witnesses, specifically Happy ABTR Singh, the owner of the Lochsloy store, and Daniel Wennig, Duran’s cousin. We disagree. According to Ritchie, Singh and Wennig would have provided “highly exculpatory evidence that negates [his] ‘guilt’” and impeaches Garibay, Duran, and Chapin. In support of this claim, Ritchie provides declarations from Singh and Wennig obtained after trial, which defense counsel failed to include with the CrR 7.8 motion to the trial court. Singh’s declaration describes his meeting with a Sheriff deputy who visited the store to review camera footage for evidence of the incident. Singh stated that they found no footage of the four people allegedly involved in the altercation. Singh also informed the deputy that he worked the day in question and the events as described could not have occurred and gone unnoticed. Wennig’s declaration impeaches Duran’s character, stating that she is a liar and “you can not believe a word that comes out of her mouth.” Further, Duran and Garibay made up the story “to try and get a free script from the fire dept.” Wenning states that Duran and Garibay would say and do “about anything to get drugs.” While Ritchie claims the declarations are “highly exculpatory,” the State provides evidence undermining their authenticity. In August 2024, a deputy from the Snohomish 6 86653-2-I/7 County Sheriff’s Office contacted Singh to verify the declaration. Singh informed the deputy that “he did not know Cornelius Ritchie and had never written a letter for him.” The deputy also spoke with Wennig who acknowledged that he knows Ritchie, “but has not and would not ever write a character letter for him.” Wennig said, “Cornelius was not worth the time or effort involved in writing a letter.” Given the questionable authenticity of the declarations, Ritchie fails to establish that trial counsel was deficient by failing to call Singh and Wennig as witnesses or submit their declarations with the CrR 7.8 motion. Moreover, Ritchie cannot demonstrate prejudice. The Sheriff’s deputy originally assigned to the case testified that he met with Singh and found no camera footage of the day in question, and that Singh, who was working at the store on the day of the alleged incident, had not observed or been aware of any altercation or disturbance. Therefore, the jury heard Singh’s exculpatory evidence through the deputy’s testimony. Failure to call Singh and Wennig as defense witnesses does not amount to ineffective assistance of counsel. B. Issues Related to Smith’s Testimony Several of Ritchie’s claims arise from testimony given by Deputy Eddie Smith of the Snohomish County Sheriff’s Office. Smith testified that he contacted Garibay on December 25, 2019, and observed “some wounds or bruises” and “[e]motionally, she was upset, crying, anxious, afraid.” Smith also stated that he met with Ritchie the same day. When they spoke, Ritchie was detained, specifically he was handcuffed and had been advised of his rights. Ritchie had “some wounds or abrasions,” and provided a statement: “on 12-18-19, Deborah Kay Garibay hit me with a pipe in my back and my right knee causing lasting pain, swelling, and bruising.” Smith took photographs of 7 86653-2-I/8 Ritchie’s injuries that were admitted as evidence. The State objected to questions about Ritchie’s injuries from “assaultive behaviors” by Garibay posed by defense counsel during Smith’s cross-examination. Court adjourned for the day with the intention of addressing the objections the next morning. In the morning, defense counsel brought concerns to the court’s attention: And I’m going to ask the Court to address the State’s violation of the motions in limine regarding bad acts and what appears to be a clearly willful and intentional violation after we had had a discussion with the Court about whether there were issues that the parties thought might need to be presented to address them outside the presence. The State asked for permission to go outside and talk to its witness to review the motions in limine, called Deputy Smith in to testify. Unlike testimony in the first case where it was clear that Deputy Smith did not at any time testify about contact with Ms. Garibay, or Ms. Garibay’s condition, or the fact that he, as a result of that, arrested Mr. Ritchie, but testified about an investigation that lead him to have contact with Mr. Ritchie and taking a statement from him. In this case, the State called Detective [sic] Smith, and essentially the first thing after establishing what his beat and job was, to establish that he responded to the address of 6410 and contacted Deborah Garibay and noted wounds and bruises about her person. The contact he had on December 25th was with regard to a call of assault by Ms. Garibay to the deputy, that his report noted that when he saw her and took her report about being assaulted several times within the past couple of months and assaulted her again last night. “I observed various bruises in different colors or stages of healing” and that is why somehow it was hard for him to photograph them. So, this, this is not about December 18th. This is not about anything linked to December 18th, but this is about wounds and bruises connected to potentially a series of other bad acts. And then the next thing we establish is he contacts Mr. Ritchie and places him under arrest, so the inference that the State wants to achieve is that Mr. Ritchie is a batterer and that Mr. Ritchie is being arrested for his assaults upon Ms. Garibay. And the idea from the motions in limine were clear. The State seemed to understand it in the first trial, but I don’t know whether the State’s trying to achieve a mistrial in this case now, but this is clearly a violation of the motion in limine. It’s clearly intentional as a variation from testimony in the first trial. It clearly took place after she stepped outside to discuss the Court’s rulings with the witness. And there is no specific link to his testimony to the incidents of December 18th. And it puts the defense in a position that it 8 86653-2-I/9 can’t challenge this testimony without the State then claiming that it’s opened the door to further discussion of these otherwise impermissible bad acts evidence. Defense counsel asked the court to strike the testimony that Smith observed wounds and bruises on Garibay or, “unfortunately, the only other option I had would be to ask for a mistrial and we don’t want one.” The trial court agreed with defense counsel and struck the testimony. The instructions to the jury were specific as to the testimony the jury could consider: I’m going to strike certain testimony, and I’m going to ask that you disregard certain testimony that came in yesterday afternoon. Just before we broke for the day, Deputy Smith testified, and during his testimony, he testified to a contact that he had with the defendant on the 25th of December 2019. He testified to observations he also made during his contact with Ms. Garibay on December 25th, 2019. I’m asking you now to strike and disregard Deputy Smith’s testimony regarding the observations he made of Deborah Garibay during that contact. You are also to disregard Deputy Smith’s testimony regarding the fact that the defendant was arrested on that day. The testimony provided by Deputy Smith regarding his observations of the defendant’s injuries still stands, as well as the testimony provided on cross-examination by Deputy Smith regarding his discussions with the defendant in relation to those injuries. The testimony still stands. You are, however, to disregard the portion of Deputy Smith’s testimony in which he indicated that the defendant informed him that Deborah Garibay had scratched his face the night before. That testimony is stricken. Please disregard it. (i) Failure to Object Ritchie contends that trial counsel was ineffective by failing to object to Smith’s testimony. However, defense counsel clearly objected and achieved the optimal outcome—the court struck testimony about Garibay’s visible injuries and Ritchie’s arrest but allowed the jury to first hear testimony about Ritchie’s injuries caused by Garibay. The allegation that defense counsel failed to object is unsupported and cannot establish 9 86653-2-I/10 deficiency for a claim of ineffective assistance of counsel. (ii) Failure to Move for a Mistrial Ritchie also argues he received ineffective assistance because trial counsel failed to move for a mistrial after Smith’s testimony. We disagree. “To prevail on a claim that counsel was ineffective for failing to make a motion, a defendant must establish that the motion would have been granted if made.” State v. Houser, 30 Wn. App. 2d 235, 262, 544 P.3d 564 (2024). A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial will ensure a fair trial. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). Here, counsel objected and succeeded in having the testimony struck. The trial court specifically instructed the jury to disregard the evidence about Garibay’s injuries and Ritchie’s arrest. We presume the jury followed the instruction given by the trial court. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). A new trial was not necessary after the trial court adequately instructed the jury to disregard the objectionable testimony. According to Ritchie’s declaration, his defense counsel “made no attempt to move for a mistrial even though he himself told me this was the only remedy to the State’s misconduct. . . he not only refused to ask for the mistrial, after acknowledging to the court that this was my only option, instead telling the court that ‘we didn’t want one’ and to strike the prejudicial, errant testimony instead.” Ritchie also claims that due to his disagreement with counsel about moving for a mistrial, the conflict “became so heated that the court heard me threaten to stand up and demand a mistrial myself. . . the court admonished me for arguing with my counsel, regarding my desire for a mistrial.” 10 86653-2-I/11 The record does not reflect these allegations. As noted above, defense counsel informed the court “we don’t want one” in reference to a mistrial. When the court agreed to strike the testimony, Ritchie displayed behavior that the court addressed: “you need to refrain from those sort of gestures toward the Court. That is not an appropriate conduct.” The court also stated, “[y]our attorney is going to speak on your behalf and is going to argue the evidence and the case on your behalf, and you have a very competent attorney sitting by your side.” Ritchie responded, “I do.” Ritchie agreed that counsel was competent. The record does not include any attempt by Ritchie to explain that he wanted a mistrial, he was unhappy with his representation, or he disagreed that counsel was very competent. We observe that Ritchie did not submit a declaration from trial counsel to support his assertions. Ritchie has not established that counsel was deficient or that he was prejudiced by the failure to move for a mistrial after Smith’s testimony. C. Failure to Move for Mistrial After Jury Question Ritchie argues he received ineffective assistance because counsel failed to move for a mistrial after the jury submitted a question about domestic abuse. We disagree. During deliberation, the jury sent an inquiry to the court: “[d]oes a victim have to agree to press charges for an investigation to go forward? An investigation of domestic abuse.” The parties agreed that the court should respond by referring the jury back to the instructions provided. Ritchie claims defense counsel “failed to move for a new trial, when the jury clearly demonstrated they were considering and discussing evidence, in direct violation of a court order that such evidence be stricken and not considered for any purpose 11 86653-2-I/12 during their deliberations.” According to Ritchie, Smith’s testimony allowed the State to argue that he “was a serial abuser and that the dynamic between himself, and the alleged victim, was one of ongoing and repeated domestic abuse.” Ritchie cites the jury question as evidence “[t]his dynamic was clearly being considered by the Jury, in violation of the rulings pre-trial and the curative instruction given by the court.” Ritchie construes the jury question as dispositive evidence that the jury improperly considered Smith’s evidence, thereby necessitating a mistrial. However, the jury question does not establish who it considered the victim. Smith testified about Ritchie’s injuries from Garibay, and the jury saw photographs of those injuries. The trial court did not strike this testimony, explicitly informing the jury that the testimony about Ritchie’s injuries “still stands.” Given the evidence introduced, any conclusion that the jury inquiry pertained to Garibay as a victim of domestic violence is speculation. The jury question does not establish that Ritchie was so prejudiced that a mistrial was necessary. Russell, 125 Wn.2d at 85. In fact, the verdict belies Ritchie’s assertions that the jury improperly considered Smith’s evidence. The jury answered “no” to the special verdict as to whether Garibay and Ritchie were members of the same family or household. The jury specifically declined to find domestic violence. As a result, Ritchie cannot demonstrate prejudice. Ritchie’s counsel objected to Smith’s testimony about other bad acts, and the trial court struck the testimony, instructing the jury to disregard the evidence of Garibay’s injuries and Ritchie’s arrest. This mitigated the improper evidence and its possible prejudice. Ritchie fails to establish by a preponderance of the evidence that he was actually and substantially prejudiced by Smith’s testimony as necessary for relief by 12 86653-2-I/13 personal restraint petition. 1 See Davis, 152 Wn.2d at 671-72. C. Improper Jury Instruction Ritchie claims that defense counsel proposed an improper jury instruction that was a judicial comment on the evidence. We disagree. Defense counsel requested that the “to convict” jury instructions for the three counts of assault in the second degree specify that the deadly weapon involved was a vehicle. Specifically, counsel proposed instructions for assault in the second degree stating that the jury must find the defendant assaulted the victims “with a deadly weapon, to wit: a vehicle.” The trial court hesitated, concerned about “caselaw that seems to suggest that the Court refrain from using the ‘to wit’ language in a jury instruction because. . . including that in the instruction may be a comment on the evidence,” but issued the instructions as requested. “A judge is prohibited by article IV, section 16 from ‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been established as a matter of law.’” See State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). Any remark that suggests the jury need not consider an element of an offense could qualify as judicial comment. Levy, 156 Wn.2d at 721. A judicial comment on the evidence is presumed prejudicial, and the State has the burden to show that the defendant was not prejudiced unless the record affirmatively shows that no prejudice could have resulted. Id. at 725. A “to-wit” instruction may amount to an improper judicial 1 Ritchie also alleges the State and Smith conspired to use false evidence and perjured testimony, specifically Smith’s testimony about Garibay’s wounds and bruises. As discussed, Ritchie cannot demonstrate actual and substantial prejudice to warrant relief by personal restraint petition. 13 86653-2-I/14 comment on the evidence if it impermissibly instructs the jury that a matter of fact has been established as a matter of law. State v. Mansour, 14 Wn. App. 2d 323, 330, 470 P.3d 543 (2020); Levy, 156 Wn.2d at 721-22; Becker, 132 Wn.2d at 65 (a “to-wit” instruction naming an entity as a school removed a disputed issue of fact from the jury’s consideration and was a judicial comment on the evidence). Ritchie contends that including “to wit: a vehicle” “is a direct comment on the evidence and did what the State was unable to do in her case in chief: prove a vehicle even existed.” Despite this claim, the existence of a vehicle was never in question. Global positioning data recorded Ritchie traveling on State Route 92 at speeds of between 21 miles per hour and 52 miles per hour. Indeed, defense counsel stated in closing arguments, “[w]e’ve got proof that Mr. Ritchie was on the road driving 6 miles under the speed limit, and 30 miles under the speed limit.” The facts establish that Ritchie was in a vehicle. Therefore, the record affirmatively shows that no prejudice could have resulted from the instruction. See Levy, 156 Wn.2d at 724. Additionally, use of the “to wit” instruction was strategic. Defense counsel elicited testimony that called into question whether Ritchie chased and struck Chapin’s vehicle, including: GPS data showing Ritchie’s speed of movement demonstrating that the vehicle in which he was traveling did not exceed the speed limit; testimony that Chapin’s car sustained no damage, even though he claimed to have been struck at over 60 miles per hour; and different answers from the three victims as to the number of times Ritchie struck the vehicle. Ritchie, 24 Wn. App. 2d at 636-37. By including the vehicle as the deadly weapon in the “to convict” instruction, defense counsel focused the jury’s attention on evidence that undermined the State’s claim that Ritchie used his vehicle as 14 86653-2-I/15 alleged to commit the three counts of assault in the second degree with a deadly weapon. 2 As a legitimate trial tactic, the “to wit” instruction cannot establish deficiency as required for a claim of ineffective assistance of counsel. See McFarland, 127 Wn.2d at 336. Ritchie fails to establish deficiency or prejudice sufficient for a successful claim of ineffective assistance of trial counsel. As such, he has not demonstrated constitutional error as required for relief through a personal restraint petition. Ineffective Assistance of Appellate Counsel Ritchie also alleges he received ineffective assistance of appellate counsel. We disagree. Where a petitioner raises ineffective assistance of appellate counsel on collateral review, “he or she must first show that the legal issue that appellate counsel failed to raise had merit.” In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 777-78, 100 P.3d 279 (2004). Additionally, the petitioner must show actual prejudice from appellate counsel’s failure to raise the issue. Id. at 778. “Failure to raise all possible nonfrivolous issues on appeal is not ineffective assistance, and the exercise of independent judgment in deciding what issues may lead to success is the heart of the appellate attorney’s role.” Id. at 787. Ritchie asserts appellate counsel was ineffective “for failing to make a claim of ineffective assistance on the part of trial counsel.” As discussed above, none of Ritchie’s allegations establish ineffective assistance by trial counsel. Therefore, 2 Garibay testified that Ritchie hit her with a bat. Without specificity in the “to convict” instruction, the jury could have considered the bat, rather than the vehicle as the deadly weapon. 15 86653-2-I/16 appellate counsel was not deficient for failing to raise unsupported ineffective assistance of counsel claims. Additionally, Ritchie states that appellate counsel “was ineffective in her failure to consult with me as to the potential issues for appeal in my case.” According to Ritchie, “I only spoke with appellate counsel once and did not have the opportunity to review with her the myriad issues in my case.” He further claims appellate counsel “could not possibly have known of [his] many appellate issues from review of the record alone.” Ritchie misunderstands the nature of a direct appeal. “[C]ases on appeal will be decided only from the record.” State v. Wilson, 75 Wn.2d 329, 332, 450 P.2d 971 (1969). Allegations that “rest on matters that are outside the record” cannot be considered on direct appeal. State v. Kinzle, 181 Wn. App. 774, 786, 326 P.3d 870 (2014). Issues requiring evidence or information not in the record are properly raised in a personal restraint petition. McFarland, 127 Wn.2d at 338. Therefore, Ritchie’s claim that he required more contact with appellate counsel or that counsel only reviewed the record does not establish deficiency. Appellate counsel spoke with Ritchie, reviewed the record, and exercised independent judgment to decide which issues to raise in the appeal. We observe that Ritchie did not submit a declaration from his appellate counsel regarding his assertions. CONCLUSION Ritchie has failed to establish constitutional error or actual prejudice arising from that error as required for relief by way of a personal restraint petition. See Davis, 152 16 86653-2-I/17 Wn.2d at 671-72. His petition is denied. See Rice, 118 Wn.2d at 885. Denied. WE CONCUR: 17