                                                                           FILED
                                                                         MAY 9, 2017
                                                                 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

STATE OF WASHINGTON,                          )
                                              )         No. 33431-7-111
                     Respondent,              )         (consolidated with
                                              )         No. 33055-9-111)
       v.                                     )
                                              )
MIGUEL BARAJAS-VERDUZCO,                      )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

                                              )
IN THE MATTER OF PERSONAL                     )
RESTRAINT OF                                  )
                                              )
MIGUEL BARAJAS-VERDUZCO,                      )
                                              )
                     Petitioner.              )


       FEARING, C.J. -This appeal raises a unique issue in the context of Padilla v.

Kentucky cases. Miguel Barajas-Verduzco's trial attorney accurately warned Barajas-

Verduzco that his guilty plea would lead to deportation, but the attorney also

recommended that Barajas-Verduzco unlawfully return to the United States after

deportation and the attorney stated he would assist Barajas-Verduzco in gaining lawful

residency. When the attorney failed to assist Barajas-Verduzco, upon the latter's return

to the United States, Barajas-Verduzco filed this personal restraint petition and appeal, by
No. 33431-7-111 cons. with No. 33055-9-111
State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


which he seeks to vacate, on the ground of ineffective assistance of counsel, his 2003

guilty plea on charges of possession of cocaine with intent to deliver, possession of

marijuana with intent to deliver, possession of stolen property in the first degree, and

alien in possession of a firearm. We reject Barajas-Verduzco's appeal and deny his

personal restraint petition because Barajas-Verduzco's unclean hands in engaging in

illegal conduct prevent his raising his claim of ineffective assistance of counsel.

                                          FACTS

       Miguel Barajas-Verduzco, presumably without permission, entered the United

States in 1998. In 2003, he commenced a relationship with Maria Manzo.

       On December 30, 2003, Miguel Barajas-Verduzco pied guilty to charges of

possession of cocaine with intent to deliver, possession of marijuana with intent to

deliver, possession of stolen property in the first degree, and alien in possession of a

firearm. Attorney Theodore Mahr then represented Barajas-Verduzco.

       In a 2012 affidavit, Miguel Barajas-Verduzco declared that, before the 2003 plea,

he asked attorney Theodore Mahr if he should fight the charges so he could stay in the

United States. Theodore Mahr advised him that Mahr had arranged the best possible plea

agreement. According to Barajas-Verduzco, Mahr warned Barajas-Verduzco that

authorities would deport him after his release from state prison, but he should hire a

Mexican coyote to assist in a return to the United States. Mahr further claimed to be an

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State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


immigration attorney and that, once Barajas-Verduzco returned to Washington, Mahr

could "help [Barajas-Verduzco] with [his] immigration case." Clerk's Papers (CP) at 32.

Theodore Mahr did not inform Barajas-Verduzco that, if he pled guilty to a drug crime,

he would forever lose his rights to be in the United States. Barajas-Verduzco deemed

himself fortunate to gamer an attorney with both criminal and immigration law expertise.

       According to his 2012 affidavit, Miguel Barajas-Verduzco trusted the

recommendations of Theodore Mahr. Ifhe knew that a guilty plea would cause his

banishment from the United States for life, he would not have pled guilty. He would

have hired a better lawyer.

       At the December 30, 2003 plea hearing, the State's attorney declared, within

Miguel Barajas-Verduzco's hearing: "he's pleading guilty as charged. He is looking at

deportation upon conviction." CP at 4 7. The prosecution also mentioned a companion

case against Maria Manzo, wherein the State agreed to offer Barajas-Verduzco's

companion a jail sentence of time already served in exchange for a guilty plea of

conspiracy to deliver cocaine. Near the close of the December 30 plea hearing, the trial

court asked Barajas-Verduzco:

            Do you understand that if you're not a citizen, a plea to this charge
      would make it almost impossible to become a citizen?
            [BARAJAS-VERDUZCO]: Yes.

CP at 51. Barajas-Verduzco signed a statement on plea of guilty that read in part:

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             If I am not a citizen of the United states, a plea of guilty to an
      offense punishable as a crime under state law is grounds for deportation,
      exclusion from admission to the United States, or denial of naturalization
      pursuant to the laws of the United States.

CP at 7. Neither the court nor Theodore Mahr advised Barajas-Verduzco of his right to

appeal his sentence.

      After Miguel Barajas-Verduzco served his Washington State sentence, the United

States government at some unknown time deported him to Mexico. Within months of

deportation, Barajas-Verduzco illegally reentered the United States and has remained in

this country since. Barajas-Verduzco does not disclose the details of his reentry and does

not mention whether he hired a coyote. He characterizes his return as harrowing.

       In his 2012 affidavit, Miguel Barajas-Verduzco avers that he telephoned Theodore

Mahr on his reentry into the United States. Mahr remembered Barajas-Verduzco. Mahr

recommended that Barajas-Verduzco delay seeking permission to stay in the United

States because Mahr predicted the United States government would soon grant amnesty

to illegal residents. Barajas-Verduzco waited.

      In his 2012 affidavit, Miguel Barajas-Verduzco relates other comments made by

Theodore Mahr presumably during the same telephone conversation, although the

comments may conflict with Barajas-Verduzco's claim that Mahr told him to delay and

that Barajas-Verduzco waited. According to Barajas-Verduzco, Mahr stated he still



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State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


assisted clients with immigration issues and that, if Barajas-Verduzco paid him $1,500,

Mahr would research the law to determine a way that Mahr could gain residency status.

Barajas-Verduzco could then apply for residency. When the United States Immigration

and Custom Enforcement agency arrested Barajas-Verduzco, he had begun collecting

money to remunerate Theodore Mahr for his services.

       At some unknown time, the United States Immigration and Customs Enforcement

agency captured Miguel Barajas-Verduzco. By 2014, the agency held Barajas-Verduzco

in Tacoma.

                                      PROCEDURE

       On November 16, 2012, Miguel Barajas-Verduzco filed with the superior court an

affidavit that the court considered as a motion to vacate his guilty plea and judgment. In

support ofBarajas-Verduzco's motion, immigration attorney Andrew White signed a

declaration averring that Barajas-Verduzco's conviction for possession of cocaine with

intent to deliver, possession of marijuana with intent to deliver, and possession of stolen

property in the first degree prevented Barajas-Verduzco from the possibility of stopping

his removal from the United States. With the convictions and despite his unlawful

presence here, Barajas-Verduzco may have successfully prevented removal, if detained,

because of his length of residency and his children being United States citizens.

According to White, Theodore Mahr should have informed Barajas-Verduzco of these

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State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


consequences from his 2003 guilty plea.

       On January 9, 2015, the superior court entered an order transferring the motion to

vacate the judgment of conviction to this court as a personal restraint petition. In the

transfer order, the superior court wrote:

              Based upon the affidavits of the defendant filed November 6, 2012
       and March 3, 2014, the court finds that defense counsel at the time of
       defendant's plea did not provide any affirmative misadvice to the defendant
       regarding the immigration consequences of his plea.
              . . . The defendant has not made a substantial showing of
       entitlement to relief.

Br. ofResp't at App. B.

       On May 22, 2015, Miguel Barajas-Verduzco filed a notice of appeal of his

December 30, 2003, guilty plea. Our court commissioner adjudged the notice of appeal

to be timely since the trial court did not advise him of his right to appeal the judgment

and sentence at the time of his December 2003 guilty plea. This court consolidated the

personal restraint petition with the appeal.

       In a statement of additional grounds (SAG), Miguel Barajas-Verduzco declares:

              I want the court to know that Ted Mahr my lawyer in this case lied
       to me so that I would take a deal. Mr. Mahr said that it didn't matter if I
       said that I was guilty for this case, that he could still get me a green card.
       He said that I would get deported by immigration only because I didn't
       have a permission. If I could just return, then he said he would file special
       papers that would give me a green card.




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State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


SAG at 1. This court lacks any testimony from Ted Mahr concerning legal advice given

to Barajas-Verduzco.

                                 LAW AND ANALYSIS

                          Personal Restraint Petition and Appeal

       In both his personal restraint petition and his direct appeal, Miguel Barajas-

Verduzco argues that he received ineffective assistance of counsel because Theodore

Mahr misadvised him of clear immigration consequences of his guilty plea. Therefore,

according to Barajas-Verduzco, Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176

L. Ed. 2d 284 (2010) compels vacation of his plea. The State responds that Mahr's

performance may have been deficient, but the deficiency did not prejudice Barajas-

Verduzco because the State possessed overwhelming evidence of guilt against Barajas-

Verduzco such that Barajas-Verduzco would have accepted the plea anyway.

      Because we review Miguel Barajas-Verduzco' s personal restraint petition, we may

consider affidavits filed by Barajas-Verduzco in support of his motion to vacate. In re

Personal Restraint ofRamos, 181 Wn. App. 743,749,326 P.3d 826 (2014), review

granted, 181 Wn.2d 1029, 340 P.3d 229 (2015). Because we also review this case on

direct appeal, Barajas-Verduzco receives the benefit of the changes in law since his 2003

plea. In re Personal Restraint ofRamos, 181 Wn. App. at 749. Anyway, our state high

court has held that Padilla v. Kentucky did not announce a new rule as applied in

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State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


Washington and therefore the benefits of Padilla apply retroactively to defendants in

collateral review. In re Personal Restraint of Young-Cheng Tsai, 183 Wn.2d 91, 103,

351 P.3d 138 (2015).

                                   Misadvice of Attorney

       Washington's CrR 4.2(t) addresses a withdrawal of a guilty plea. The rule reads:

              Withdrawal of Plea. The court shall allow a defendant to withdraw
       the defendant's plea of guilty whenever it appears that the withdrawal is
       necessary to correct a manifest injustice.

CrR 7.8(c)(2) allows transfer of the motion to withdraw a guilty plea or vacation of

judgment to this court.

       A strong public interest encourages the enforcement of a plea agreement when an

accused voluntarily and intelligently enters the plea. In re Detention ofScott, 150 Wn.

App. 414,426,208 P.3d 1211 (2009). Nevertheless, the court may allow a defendant to

withdraw his guilty plea when the withdrawal is necessary to correct a manifest injustice.

In re Detention of Scott, 150 Wn. App. at 426. The defendant bears the burden of

proving manifest injustice, defined as "obvious, directly observable, overt, not obscure."

In re Detention of Scott, 150 Wn. App. at 426-27 (quoting State v. Ross, 129 Wn.2d 279,

283-84, 916 P.2d 405 (1996)) (internal quotation marks omitted). For purposes of CrR

4.2(t), a manifest injustice exists under four per se nonexclusive instances: (1) the

defendant did not ratify the plea, (2) the plea was not voluntary, (3) the defendant

                                              8
No. 33431-7-III cons. with No. 33055-9-III
State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


received ineffective assistance of counsel, or (4) the plea agreement was not kept. State

v. Wakefield, 130 Wn.2d 464,472,925 P.2d 183 (1996); State v. Wilson, 162 Wn. App.

409, 414-15, 253 P.3d 1143 (2011). Miguel Barajas-Verduzco relies only on ineffective

assistance of counsel.

       To establish ineffective assistance of counsel, a defendant must satisfy a two part

test (1) that his or her counsel's assistance was objectively unreasonable and (2) that as a

result of counsel's deficient assistance, he or she suffered prejudice. Strickland v.

Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To

demonstrate the first prong, deficient performance, a reviewing court judges the

reasonableness of counsel's challenged conduct on the facts of the particular case, viewed

as of the time of counsel's conduct. Strickland, 466 U.S. at 690. The appellate court will

presume counsel was effective. State v. Gomez Cervantes, 169 Wn. App. 428,434,282

P.3d 98 (2012).

       The Sixth Amendment right to effective assistance of counsel encompasses the

plea process. McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d

763 (1970); State v. Sandoval, 171 Wn.2d 163,169,249 P.3d 1015 (2011). Faulty advice

of counsel may render the defendant's guilty plea involuntary or unintelligent. Hill v.

Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); State v. Sandoval,

l71 Wn.2d at 169. To establish that the plea was involuntary or unintelligent due to

                                              9
No. 33431-7-III cons. with No. 33055-9-III
State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


counsel's inadequate advice, the defendant must show under the test in Strickland that his

attorney's performance was objectively unreasonable and that he was prejudiced by the

deficiency. Sandoval, 171 Wn.2d at 169.

       Prior to Padilla v. Kentucky, 559 U.S. 356 (2010), Washington law considered

deportation a collateral consequence of a conviction and anything short of an affirmative

misrepresentation by counsel of the plea's deportation consequences could not support a

plea withdrawal. State v. Sandoval, 171 Wn.2d at 170 n. l; In re Personal Restraint of

Yim, 139 Wn.2d 581, 587-89, 989 P.2d 512 (1999). Padilla explicitly rejected the

proposition that only affirmative misadvice about deportation consequences of the plea,

and not failure to give such advice, could constitute ineffective assistance of counsel.

Padilla also emphasized that for at least the past fifteen years, professional norms

imposed an obligation on counsel to provide advice on the deportation consequences of a

client's plea.

       Dicta in Padilla suggests that its holding also applies to undocumented noncitizens

who would become ineligible to apply for relief.

               [W]e have recognized that "preserving the possibility of'
       discretionary relief from deportation ... "would have been one of the
       principal benefits sought by defendants deciding whether to accept a plea
       offer or instead to proceed to trial."

Padilla, 559 U.S. at 368 (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 323, 121 S. Ct. 2271,


                                             10
No. 33431-7-III cons. with No. 33055-9-111
State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


150 L. Ed. 2d 347 (2001)). This court applied a full Padilla analysis when an

undocumented defendant argued that counsel failed to advise him that his offense

constituted a commission of a crime involving moral turpitude, which automatically

made him ineligible to remain in the United States. In re Personal Restraint of Ramos,

181 Wn. App. at 754.

       According to Miguel Barajas-Verduzco, his counsel, Theodore Mahr, told him he

would be deported, but added that Barajas-Verduzco should return, at which time Mahr

would attempt to assist him with immigration issues. We recognize that Mahr did not

expressly promise that his assistance would keep Barajas-Verduzco in the United States,

but Mahr' s comments implied that his services could succeed. Thus, under Barajas-

Verduzco' s testimony, Mahr supplied erroneous legal guidance.

      The concurrence writes that Theodore Mahr advised Miguel Barajas-Verduzco

that authorities would deport Barajas-Verduzco and that Barajas-Verduzco would

thereafter be unable to return to the United States. To the contrary, Barajas-Verduzco

avers that Mahr never informed him of an inability to ever return to this country. The

signed plea of guilty came close to informing Barajas-Verduzco of forever forfeiting the

opportunity to return to the United States. The plea form warned Barajas-Verduzco that a

plea of guilty "is grounds for ... exclusion from admission to the United States." CP at




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No. 33431-7-III cons. with No. 33055-9-III
State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


7. Nevertheless, the language does not explicitly state that Barajas-Verduzco will be

forever excluded and the alleged misstatements of Theodore Mahr suggested otherwise.

       The concurrence also suggests that Theodore Mahr's advice addressed only a

postsentencing time period and therefore provided no assistance to Miguel Barajas-

Verduzco as to whether to plead guilty. Barajas-Verduzco's testimony, if true,

establishes otherwise. According to Barajas-Verduzco, he pied guilty on the expectation,

if not promise, that postsentence he could surreptitiously return to the United States and

Mahr would assist in procuring him legal status. Under Barajas-Verduzco's facts, the

advice procured his guilty plea.

       We recognize that no finder of fact has adjudged whether Miguel Barajas-

Verduzco's speaks the truth when testifying to advice rendered by Theodore Mahr. Ifwe

otherwise remanded the case to the trial court, we would direct the court to determine the

full extent of the advice rendered by Mahr. Because ofBarajas-Verduzco's unclean

hands, we conclude that no remand is necessary.

                                      Unclean Hands

      Miguel Barajas-Verduzco's appeal and personal restraint petition contain unique

elements not found in other reported decisions. According to Barajas-Verduzco,

Theodore Mahr advised him he would be deported. This advice was correct. The advice

of lawyers in other decisions generally stopped with the immediate consequences of the

                                            12
No. 33431-7-III cons. with No. 33055-9-III
State v. Barajas-Verduzco; Pers. Restraint of Barajas-Verduzco


client's guilty plea. Mahr's advice continued. Mahr recommended to Barajas-Verduzco

that, upon Barajas-Verduzco's deportation, he secure a coyote and recross the United

States border. Thus, Mahr not only offered accurate guidance as to the consequences of

past criminal conduct, Mahr recommended future action.

       Under federal law, anyone who enters the United States illegally commits a

misdemeanor. 8 U.S.C. § 1325. Entering the United States after being deported

constitutes a felony. 8 U.S.C. § 1326. Thus, Theodore Mahr advised Miguel Barajas-

Verduzco to perpetrate a felony. Barajas-Verduzco knew he would commit a crime by

returning to the United States. He was being been removed from the country because of

his proscribed presence. He thereafter underwent an arduous trip because of the

conduct's unlawfulness. If he considered his recrossing lawful, he could have presented

himself to the border patrol like others legally crossing from Mexico to the United States.

      Miguel Barajas-Verduzco now seeks to vacate a guilty plea by claiming he

received misadvice when the advice endorsed illegal behavior. Barajas-Verduzco seeks

to benefit from his criminal misconduct. Barajas-Verduzco tells this court that, because

he followed his attorney's recommendation and committed a crime and because things

did not tum out as hoped or planned, he should receive relief. Therefore we harness the

unclean hands doctrine and deny Barajas-Verduzco relief.

      A famous rule in equity is that one must come to court with clean hands. Income

                                            13
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State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


Investors, Inc. v. Shelton, 3 Wn.2d 599, 602, 101 P.2d 973 (1940); Burt v. Department of

Corrections, 191 Wn. App. 194,210,361 P.3d 283 (2015); Pierce County v. State, 144

Wn. App. 783, 832, 185 P.3d 594 (2008). Under the equitable doctrine of clean hands, a

complainant will not be permitted to take advantage of his or her own wrong. Middleton

v. Lockhart, 344 Ark. 572, 583, 43 S.W.3d 113 (2001); Thomson Learning, Inc. v.

Olympia Properties, LLC, 365 Ill. App. 3d 621,850 N.E.2d 314,302 Ill. Dec. 877

(2006); Opperman v. M & I. Dehy, Inc., 644 N.W.2d 1 (Iowa 2002). The principle

underlying the maxim is that equity will not aid an applicant in securing or protecting

gains from wrongdoing or in escaping its consequences. Opperman v. M & I. Dehy, Inc.,

644 N.W.2d 1 (Iowa 2002).

       No Washington or United States Supreme Court decision addresses whether the

doctrine of clean hands may preclude a criminal defendant from arguing ineffective

assistance of counsel. We also find no cases, from other jurisdictions, that expressly

apply the doctrine under such circumstances. Nevertheless, some courts have refused to

hear an ineffective assistance of counsel argument based on the defendant's engaging in

illegal conduct at the advice of his or her attorney. Harding v. Lewis, 834 F.2d 853 (9th

Cir. 1987); State v. Peoples, 446 N.J. Super. 245, 141 A.3d 350 (2016); Arnett v. State,

938 P.2d 1079 (Alaska Ct. App. 1997); DeHaven v. State, 618 So. 2d 337 (Fla. Dist. Ct.

App. 1993); Kelley v. State, 644 S.W.2d 571 (Tex. App. 1982). In essence, the courts

                                            14
No. 33431-7-III cons. with No. 33055-9-III
State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


applied the unclean hands rule.

       In State v. Peoples, the New Jersey court rejected the defendant's claim of

ineffective assistance of counsel because the defendant asserted that his attorney advised

him to tamper with a witness. Consistent with the doctrine of unclean hands, the

reviewing court would not tolerate a fraud on the court. The court wrote:

               we hold that a defendant who participates in illegal conduct in
       collusion with his attorney or acquiesces in the attorney's illegal or
       unethical conduct is not entitled [ineffective assistance of counsel] relief.
       We will not tolerate what amounts to a fraud on the court, and will not
       permit a defendant who participates or acquiesces in his attorney's illegal or
       unethical conduct to reap any benefit of [ineffective assistance of counsel]
       relief.

141 A.3d at 358.

       In Arnett v. State, defendant claimed his attorney encouraged him and assisted him

in absconding during trial since a conviction could lead to life imprisonment. The Alaska

court did not decide the accuracy of the defendant's factual assertions, but rejected the

argument for other reasons. The court wrote:

              We have no doubt that a lawyer who counsels a client to commit a
      crime for tactical gain acts incompetently. But by the same token, this form
      of advice falls so far beyond the pale of anything that could conceivably be
      considered legitimate legal assistance that a defendant's voluntary reliance
      on it is tantamount to a willing abandonment of competent representation.
      A defendant who voluntarily commits a crime on advice of counsel ought
      not to be allowed to impute blame to the attorney or to claim prejudice
      stemming from the attorney's incompetence; for in almost all such cases,
      the defendant's own voluntary acts will be a superseding cause of any
      resulting misfortune.
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State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco



938 P.2d at 1083.

                                          Prejudice

       The second prong of ineffective assistance of counsel is prejudice resulting from

the misadvice. Because we deny Miguel Barajas-Verduzco relief on the basis of unclean

hands, we need not address whether Barajas-Verduzco meets this prong.

                      STATEMENT OF ADDITIONAL GROUNDS

       A criminal defendant can submit a pro se statement of additional grounds for

review "to identify and discuss those matters related to the decision under review that the

defendant believes have not been adequately addressed by the brief filed by the

defendant's counsel." RAP 10.lO(a). The rule additionally provides in part:

              Only documents that are contained in the record on review should be
       attached or referred to in the statement.

RAP 10.lO(c); see also State v. Alvarado, 164 Wn.2d 556,569, 192 P.3d 345 (2008).

       Miguel Barajas-Verduzco filed a statement of additional grounds, by which he

seeks to add facts to the record. He forwards no new arguments. Therefore, we disregard

his statement of additional grounds.

                                       CONCLUSION

       We deny Miguel Barajas-Verduzco's motion to vacate his guilty plea. We reject

his appeal and deny his personal restraint petition.

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State v. Barajas-Verduzco; Pers. Restraint ofBarajas-Verduzco


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                         Fearing,

I CONCUR:




                                 j




                                           17
                      No. 33431-7-111 (consol. with No. 33055-9-111)

       KORSMO, J. -    (concurring in result) -   Although I agree with the result of the

majority opinion, there are additional reasons for rejecting the argument Mr. Barajas-

Verduzco raises. First, there was no manifest reason to withdraw the guilty plea and

defendant's lies to the court are neither manifest error nor should they now be a basis for

attacking his plea. Second, it is absolutely inequitable to enter into a criminal conspiracy

with defense counsel-which is what Mr. Barajas-Verduzco in essence alleges here--and

then profit from the further criminality. Although the majority opinion gets to that last

point, it should be emphasized that the case law universally and unconditionally supports

that outcome.

      Pleading Guilty

       In most cases raising claims under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.

1473, 176 L. Ed. 2d 284 (2010), the issue is whether or not defense counsel gave correct

advice concerning the immigration consequences of pleading guilty. Here, defense

counsel correctly told Mr. Barajas-Verduzco that he would be deported and unable to
No. 33431-7-III (cons. w/ No. 33055-9-III)---concur in result
State v. Barajas-Verduzco; PRP ofBarajas-Verduzco


return to the country. That should be the end of this case. Having been given correct

advice, appellant has no viable claim under Padilla. His claim also fails under the

standards governing ineffective assistance claims in this context.

        In most cases raising ineffective assistance in the guilty plea context, the questions

presented is whether the attorney "actually and substantially assisted his client in deciding

whether to plead guilty." State v. Cameron, 30 Wn. App. 229,232, 633 P.2d 901, review

denied, 96 Wn.2d 1023 (1981). Failure to assist would amount to a violation of the first

prong of Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

In re Pers. Restraint ofPeters, 50 Wn. App. 702, 703-704, 750 P.2d 643 (1988). When a

defendant is able to show that defense counsel's behavior was defective, he would still have

to show resulting prejudice. In the context of a guilty plea, this means that the defendant

must show he would not have entered the guilty plea but for his counsel's ineffectiveness.

Id. at 708.

       The law governing "typical" guilty plea challenges is also well settled. CrR 4.2(f)

permits a guilty plea to be withdrawn whenever "necessary to correct a manifest injustice."

The appropriate standard for applying this rule was set out in State v. Taylor, 83 Wn.2d 594,

596, 521 P.2d 699 (1974), as follows:

       Under CrR 4.2(f), adopted by this court, the trial court shall allow a
       defendant to withdraw his plea of guilty whenever it appears that
       withdrawal is (1) necessary to correct a (2) manifest injustice, i.e., an
       injustice that is obvious, directly observable, overt, not obscure. Webster's


                                              2
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State v. Barajas-Verduzco; PRP ofBarajas-Verduzco


       Third New International Dictionary ( 1966). Without question, this imposes
       upon the defendant a demanding standard.

The written statement form itself is sufficient to establish that the plea was voluntary. State

v. Lujan, 38 Wn. App. 735,688 P.2d 548 (1984), review denied, 103 Wn.2d 1014 (1985).

Here, Mr. Barajas-Verduzco has failed both to show that his counsel erred in assisting him

with pleading guilty and in showing that there was a manifest injustice that makes

withdrawing his guilty plea necessary.

       As to the assistance of counsel issue, Mr. Barajas-Verduzco has not shown that his

counsel erred concerning the decision to plead guilty. The allegations made against

counsel go to potential behavior after the sentence has been served and are not related to

the matter of assisting in whether or not to accept the plea offer. There being no

allegation of error in making the plea bargain decision, there is no basis for finding

counsel ineffective.

       But, even if the allegations were something relevant to this case, they fail to satisfy

the standards for withdrawing a guilty plea. As noted in Lujan, the written plea statement

form is sufficient to establish the voluntariness of that plea. In both the plea statement

form and in the trial colloquy, Mr. Barajas-Verduzco asserted that there were no other

promises made to him that had not been disclosed to the trial court. As a matter of law,




                                               3
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State v. Barajas-Verduzco; P RP ofBarajas-Verduzco


he does not now get to claim that there were material, undisclosed promises by his

attorney. 1 That basis is sufficient reason by itself for not entertaining his claim here.

       Because the current assertions are both irrelevant to his guilty plea and contrary to

his previous statements to the trial court, Mr. Barajas-Verduzco has failed to establish

any error occurred at the plea hearing.

       "Unclean Hands"

       The majority opinion recognizes that the critical issue is whether a petitioner can

profit from his own illegal behavior. Whether we entitle it "clean hands doctrine" by

name or not, we have a duty not to perpetrate fraud. Courts that have looked at

analogous behavior by counsel have had no trouble rejecting claims that, in effect, allow

a defendant to benefit from his own unlawful conduct. As a matter oflaw, the claim Mr.

Barajas-Verduzco has stated is not one that this court, or any other court, should tolerate.

       The view that a defendant should not profit from his illegal conduct, let alone

assert those actions as a basis for finding counsel ineffective, appears to be the general,

and perhaps universal, view. The matter was nicely stated last year by the appellate


       1
         In addition, judicial estoppel should prevent Mr. Barajas-Verduzco from asserting
a contrary position in this proceeding. See, e.g., Cunningham v. Reliable Concrete
Pumping, Inc., 126 Wn. App. 222, 224-225, 108 P.3d 147 (2005). "The purpose of
judicial estoppel is to bar as evidence statements and declarations by a party which would
be contrary to sworn testimony the party has given in the same or prior judicial
proceedings." King v. Clodfelter, IO Wn. App. 514,519,518 P.2d 206 (1974). A second
purpose of the doctrine is to "preserve respect for judicial proceedings." Arkison v. Ethan
Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007) (internal quotation marks omitted).

                                              4
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State v. Barajas-Verduzco; PRP ofBarajas-Verduzco


division of the New Jersey Superior Court, rejecting a claim that defense counsel was

ineffective for directing the defendant to tamper with witnesses, advice that the client

followed. State v. Peoples, 446 N.J. Super. 245, 141 A.3d 350, 357 (2016). The majority

opinion recites the critical holding, so I need not do so here. Id. at 358.

       One of the cases the New Jersey court relied on is the case that the majority

opinion primarily emphasizes. I agree with that approach, but would note a bit more

from that opinion, Arnett v. State, 938 P.2d 1079 (Alaska Ct. App. 1997). Although the

majority cites a nice passage from that opinion, Arnett says more that should also be

recited here. There defense counsel allegedly had told the defendant to abscond during

trial since he was looking at life in prison if convicted. Id. at 1082. The court rejected

the argument and stated the cases its research had uncovered:

       Relevant case law, though limited, strongly supports this conclusion:
       ineffective assistance of counsel claims have been uniformly rejected in
       cases involving active attorney-client collusion. See, e.g., Harding v.
       Lewis, 834 F.2d 853, 859 (9th Cir.1987) (rejecting ineffective assistance of
       counsel claim based on involuntary self-representation when defendant, in
       an attempt to inject reversible error into the trial through self-
       representation, conspired with counsel to invent an excuse for discharging
       counsel in the midst of trial); DeHaven v. State, 618 So.2d 337,339
       (Fla.App.1993) (rejecting ineffective assistance of counsel claim based on
       attorney's knowing use, with defendant's approval, of perjured defense
       testimony); Kelley v. State, 644 S.W.2d 571, 574 (Tex.App.1982) (rejecting
       ineffective assistance of counsel claim involving defense counsel's
       "reprehensible" attempt, acquiesced in by defendant, to dispose of
       evidence); cf United States v. Boone, 62 F.3d 323 (10th Cir.1995) (finding
       suborning perjury to be below "objective standard of reasonableness" but
       upholding conviction for lack of prejudice). The common thread of


                                              5
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State v. Barajas-Verduzco; PRP ofBarajas-Verduzco


       reasoning in these cases is persuasive: that defendants should not be
       rewarded for their own misconduct.

Id. at 1083.

       The court then stated its holding:

       We have no doubt that a lawyer who counsels a client to commit a crime for
       tactical gain acts incompetently. But by the same token, this form of advice
       falls so far beyond the pale of anything that could conceivably be considered
       legitimate legal assistance that a defendant's voluntary reliance on it is
       tantamount to a willing abandonment of competent representation. A
       defendant who voluntarily commits a crime on advice of counsel ought not
       to be allowed to impute blame to the attorney or to claim prejudice
       stemming from the attorney's incompetence; for in almost all such cases, the
       defendant's own voluntary acts will be a superseding cause of any resulting
       misfortune. Cf Napageak v. State, 729 P.2d 893 (Alaska App.1986)
       (defendant's assault on an officer was not the fruit of the officer's wrongful
       entry); see generally Restatement (Second) of Torts§ 886A(3) (1977) (there
       is no right of contribution in favor of joint tortfeasors for intentionally
       caused harms).

       We by no means suggest a belief that Arnett's trial counsel advised him to
       abscond. The point was left unresolved by the superior court, which simply
       assumed, for purposes of its decision, that Arnett's assertions were true.
       We, too, assume without deciding the truth of Arnett's claims. And we
       conclude that, even if Arnett's counsel advised him to abscond from trial
       and assisted him in doing so, Arnett has shown no grounds for claiming
       prejudice stemming from his attorney's incompetence.

Id.

       We are in the same position as the Arnett court. Even if we want to assume that

Mahr gave the advice that Barajas-Verduzco claims he gave, we should simply and

explicitly state the obvious-Barajas-Verduzco cannot profit from his own misbehavior

and obtain relief by the expedient of having committed another crime. Courts routinely

                                            6
No. 33431-7-111 (cons. w/ No. 33055-9-111}-concur in result
State v. Barajas-Verduzco; PRP ofBarajas-Verduzco


follow that approach and reject claims of ineffective assistance when defendants allege

that counsel had them lie at trial because otherwise the defendant would profit (obtain a

new trial) from his own misbehavior (lying in court). E.g., DeHaven, 618 So. 2d 337;

Commonwealth v. McNeil, 506 Pa. 607,487 A.2d 802 (1985); Commonwealth v.

Alderman, 43 7 A.2d 36, 292 Pa. Super. 263 (1981 ). 2 Courts also reach that same result in

other instances where attorneys allegedly advise clients to perform illegal acts. E.g.,

Peoples (witness tampering); Arnett (absconding); Kelley (counsel's disposal of evidence

attributed to client).

       This case easily fits within the orbit of these others. When attorneys advise illegal

or otherwise improper behavior, defendants cannot profit from following that advice.

Whether we call it "unclean hands" or something else, we still should not countenance it.

If the defendant came in and told the court that he lied when he said there were no other

promises made to him in order to adduce his guilty plea, we would not grant relief. The

fact that he now claims he lied on the basis of his attorney's advice does not make that

position more tenable.

       For the following reasons, some noted previously, we should be denying relief

here: (I) there is no Padilla violation because defense counsel correctly advised his client

he would be deported, (2) counsel performed effectively by assisting Mr. Barajas-


       2
         These cases also reinforce a point discussed previously--having apparently lied
at the time of his guilty plea, Mr. Barajas-Verduzco does not benefit from that fact now.

                                             7
No. 33431-7-111 (cons. w/ No. 33055-9-111)--concur in result
State v. Barajas-Verduzco; PRP ofBarajas-Verduzco


Verduzco in his decision whether or not to plead guilty, (3) Mr. Barajas-Verduzco's

statements at his plea hearing denying that other promises were made preclude him from

satisfying the standards for withdrawing his plea, (4) those statements should also estop

him from now claiming the truth is other than what he told the court then, (5) it would

perpetrate a fraud on the court to permit the defendant to benefit from his illegal

activities, whether or not counsel aided him in those efforts. For all of these reasons, I

concur in the result.




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