                                                                          FILED
                                                                        JULY 3, 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

 STATE OF WASHINGTON,                         )
                                              )         No. 34651-0-III
                        Respondent,           )
                                              )
        v.                                    )
                                              )
 DUSTIN JAMES EGUIRES,                        )         UNPUBLISHED OPINION
                                              )
                        Appellant.            )

       SIDDOWAY, J. — We are presented with a two-tiered claim of ineffective

assistance of counsel. After Dustin Eguires accepted a plea offer and his guilty plea was

accepted, attorney David Mason substituted in as counsel and filed a CrR 4.2 motion for

leave to withdraw the plea. He argued that Mr. Eguires’s original lawyer, Theodore

Heilman-Schott, provided ineffective assistance of counsel by allowing Mr. Eguires to

plead guilty despite having a viable basis for suppressing the State’s most important

evidence.

       Mr. Mason’s argument failed, and Mr. Eguires argues on appeal that if the trial

court correctly found that Mr. Mason’s showing was insufficient, then Mr. Mason

provided ineffective assistance of counsel by failing to submit competent evidence and

clear legal argument.
No. 34651-0-III
State v. Eguires


       The trial court correctly found Mr. Mason’s showing to be insufficient. And

because the additional evidence Mr. Eguires presents on appeal does not demonstrate that

Mr. Heilman-Schott overlooked a basis for suppressing key evidence that was likely to

succeed, Mr. Eguires is not entitled to the reversal of the trial court’s order denying his

CrR 4.2 motion. We affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       On a fall morning in 2015, three officers from the Yakima County Sheriff’s Office

and an unidentified number of officers from the Yakama Nation Police Department

(hereafter sometimes “YNPD”) responded to White Swan High School after Dustin

Eguires was seen on high school property with a rifle. He was observed removing the

rifle from the back of a white truck and placing it into a waiting blue two-door vehicle.

The high school was placed in lockdown.

       Officers responding from the county sheriff’s office were Deputy Brian McIlrath,

Deputy Reyna, and Sergeant Splawn.1 By the time they arrived at the high school,

Yakama Nation officers had located the white truck, which belonged to Mr. Eguires, and

were talking to two individuals. According to a statement later provided by Sergeant

Splawn, a short time after arriving at the school, sheriff’s officers




       1
           Our record provides only the last names of Deputy Reyna and Sergeant Splawn.

                                              2
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State v. Eguires


       were notified that a YNPD officer had spotted the blue car at Dustin’s
       house. Dustin and a second male were seen to the rear of the house.
       Dustin appeared to be armed with a rifle.

Clerk’s Papers (CP) at 75. In response to this information, the sheriff’s deputies went to

Mr. Eguires’s home, where Mr. Eguires and another man were found looking through a

duffel bag outside a minivan. Both were handcuffed and put in patrol cars.

       Deputy McIlrath read Mr. Eguires Miranda2 warnings, spoke with him, and made

a telephonic application for a search warrant to enter the buildings and vehicles located at

the address to search for the rifle. The search warrant was granted, the search was

conducted, and the rifle was found.

       In the course of the search, the sheriff’s deputies saw multiple pieces of

identification in the open duffel bag. Deputy McIlrath called the judge who had issued

the warrant, asking that it be amended to expand the scope of the search. The judge

granted the requested amendment. The duffel bag turned out to contain many pieces of

government-issued identification, tax records, and a check, all belonging to other

individuals. Mr. Eguires was eventually charged with 12 counts of second degree

identity theft in violation of RCW 9.35.020(3) and (1), and 1 count of carrying a firearm

onto public school property in violation of RCW 9.41.280(1).




       2
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              3
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State v. Eguires


      Mr. Eguires thereafter reached a plea agreement under which he would enter an

Alford3 plea to the counts charged in this action, in exchange for which the State would

recommend an exceptional downward sentence of only 18 months and would dismiss two

other criminal cases pending against Mr. Eguires. With an offender score of 9+ in light

of the more than one dozen charges against him, the standard ranges Mr. Eguires faced

were 43 to 57 months for each of the identity theft counts and 364 days for the firearm

charge. A hearing was held at which Mr. Eguires, represented by Mr. Heilman-Schott,

acknowledged his understanding of the plea agreement. The trial court accepted the plea.

      Before sentencing, a second lawyer, Mr. Mason, appeared for Mr. Eguires and

filed a “Motion to Withdraw Plea Franks v. Delaware,4 Strickland v. Washington.”5 CP

at 20. Attached to the motion was a copy of the original search warrant for Mr. Eguires’s

premises; a narrative and one page of an incident report, both completed by Deputy

McIlrath; and excerpts of a CAD6 record of dispatch communications on the morning Mr.

Eguires was located and his premises were searched. The motion argued that there were

“disturbing” inconsistencies in the attached records that raised “a number of Franks

issues” on the basis of which a motion to suppress the evidence against Mr. Eguires




      3
        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
      4
        438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
      5
        466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
      6
        Computer-aided dispatch.

                                            4
No. 34651-0-III
State v. Eguires


might succeed. CP at 20, 21. Given these “Franks issues,” the motion asked that Mr.

Eguires be allowed to withdraw his guilty plea and proceed with discovery.

       In supplemental briefing, Mr. Mason represented that he had listened to the

recording of Deputy McIlrath’s telephonic affidavit in support of the search warrant.

Characterizing himself as an officer of the court, Mr. Mason represented that “the deputy

told the court the following:”

       I arrived with two other deputies [and] we placed Dustin into custody
       After Miranda, he told me that he had a rifle
       He set it somewhere on the property
       He did not tell me where
       I’m requesting permission to go onto his property to retrieve the rifle

CP at 31 (alteration in original). He argued that the CAD and other records suggested

officers had seen Mr. Eguires’s rifle upon first arriving at the home, Deputy McIlrath

knew where it was, and the deputies never needed a search warrant. He argued that Mr.

Heilman-Schott’s failure to “discover, disclose and discuss” a promising suppression

issue with his client before Mr. Eguires entered his plea “raises significant effective

assistance issues.” CP at 33.

       The State responded that for Mr. Eguires to establish ineffective assistance of

counsel, he would need to demonstrate that if a motion for a Franks hearing had been

made, the trial court would likely have granted it, found the application for the warrant to

be materially inaccurate, and found that an accurate application would not have

demonstrated probable cause. It argued that the showing had not been made. At a

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No. 34651-0-III
State v. Eguires


hearing on the motion to withdraw the guilty plea, the trial court agreed, observing that it

had no affidavit from Mr. Eguires and no transcript of Deputy McIlrath’s telephonic

affidavit in support of the search warrant. It explained:

       I can’t—I don’t have enough information to make a—a reasoned analysis
       and say, I think you would have won. I can’t say that the results from Mr.
       Eguires today would have been any different, because I don’t know who
       would have won. You have raised some questions, but that’s the extent
       of it.

Report of Proceedings (RP) at 63.

       Mr. Eguires’s CrR 4.2 motion was denied. At sentencing that took place the

following week, the trial court accepted the State’s recommendation and sentenced Mr.

Eguires to a total period of confinement of 18 months. Mr. Eguires appeals.

                                        ANALYSIS

       Mr. Eguires assigns error to the trial court’s refusal to accept Mr. Mason’s offer of

proof as establishing a manifest injustice supporting withdrawal of a defendant’s plea.

Alternatively, if the trial court correctly required evidence of a manifest injustice, Mr.

Eguires argues that Mr. Mason provided ineffective assistance of counsel by failing to

prepare and offer evidence.

       CrR 4.2(f) provides that the court shall allow a defendant to withdraw his plea of

guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.

A manifest injustice is an injustice that is “obvious, directly observable, overt, not

obscure.” State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Four nonexclusive


                                              6
No. 34651-0-III
State v. Eguires


circumstances have been identified as demonstrating a manifest injustice: (1) a denial of

effective counsel, (2) a plea that is not ratified by the defendant or someone authorized by

the defendant to do so, (3) an involuntary plea, or (4) a plea agreement that is not honored

by the prosecution. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).

       We review a trial court’s decision on a motion to withdraw a guilty plea for abuse

of discretion. State v. A.N.J., 168 Wn.2d 91, 106, 225 P.3d 956 (2010). A trial court

abuses its discretion if its decision is manifestly unreasonable, is based on untenable

grounds, or is made for untenable reasons. In re Det. of Duncan, 167 Wn.2d 398, 402,

219 P.3d 666 (2009).

I.     THE TRIAL COURT DID NOT ERR BY DENYING THE MOTION ON THE BASIS OF MR.
       EGUIRES’S FAILURE TO PRESENT EVIDENCE

       In support of his first assignment of error, Mr. Eguires argues the trial court

erroneously applied an affidavit requirement that he contends applies when a

postjudgment motion to withdraw a plea is made under CrR 7.8 but does not apply when

a prejudgment motion is made, as in his case. To demonstrate these allegedly differing

requirements, he points to the fact that CrR 7.8(c)(1) requires that a motion “shall be . . .

supported by affidavits setting forth a concise statement of the facts or errors upon which

the motion is based,” while CrR 4.2(f) says nothing about affidavits. CrR 7.8(c)(1)

applies to every sort of postjudgment motion for relief from a judgment, however. That




                                              7
No. 34651-0-III
State v. Eguires


alone explains a need for an affidavit identifying which of myriad bases for such a

motion is being presented.

       CrR 4.2(f), which deals only with a request to withdraw a plea, requires that a

manifest injustice must be apparent to the court. It is well settled that the defendant bears

the burden of proving the existence of a manifest injustice. State v. Quy Dinh Nguyen,

179 Wn. App. 271, 283, 319 P.3d 53 (2013). “Because CrR 4.2 provides extensive

safeguards for defendants in entering pleas, our Supreme Court describes the standard on

a motion to withdraw as ‘demanding.’” Id. at 283 (quoting Taylor, 83 Wn.2d at 596).

       Facts, such as the existence of a manifest injustice, must be proved by evidence.

An offer of proof is not evidence. An offer of proof is a method for establishing a record

where the trial court excludes evidence. ER 103(a)(2). Such an offer is often needed if a

party wishes to be able to argue on appeal that an exclusion of evidence was erroneous

and not harmless. In Franks, the defendant was allowed to make only this sort of offer of

proof in the trial court, because courts had not yet recognized any right to challenge the

truthfulness of factual statements made in an affidavit supporting a search warrant. See

Franks v. Delaware, 438 U.S. 154, 155, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). At a

suppression hearing, Mr. Franks was prepared to call three witnesses and sought to call

two others in an effort to prove that the warrant application had been untruthful. Id. at

158. He was denied the opportunity to present the evidence because the court agreed



                                              8
No. 34651-0-III
State v. Eguires


with the State that then-controlling law limited any challenge to a search warrant to its

facial sufficiency. Id. at 158-60.

       In holding for the first time in Franks that the application for a search warrant can

be challenged in limited circumstances, the Supreme Court adopted a two-step process

for such a challenge. In the first step, a defendant must make a substantial preliminary

showing including “allegations of deliberate falsehood or of reckless disregard for the

truth . . . accompanied by an offer of proof.” Id. at 171. This first-step “offer of proof”

required to receive a Franks hearing should generally include evidence. The challenger’s

attack “must be more than conclusory and must be supported by more than a mere desire

to cross examine.” Id. “Affidavits or sworn or otherwise reliable statements of witnesses

should be furnished, or their absence satisfactorily explained.” Id.

       Mr. Mason characterized his offer of proof as a representation of fact made as a

member of the bar and an officer of the court. Given a lawyer’s duty of candor to the

court, see RPC 3.3(a), the court may accept such a representation. The Rules of

Professional Conduct only prohibit a lawyer from “knowingly” misrepresenting matters

to the court, however, see id., thereby recognizing that even a compliant lawyer may

unwittingly make a misrepresentation. And regrettably, not all officers of the court

always uphold their professional obligations. Courts are not required to accept a lawyer’s

representations to the court. State v. Israel, 19 Wn. App. 773, 577 P.2d 631 (1978).



                                              9
No. 34651-0-III
State v. Eguires


       The trial court reasonably treated Mr. Mason’s showing as insufficient in light of

his failure to provide a transcript of Deputy McIlrath’s telephonic affidavit. We now

know—because the parties obtained a transcript for purposes of the appeal—that a

transcript of the call consumes over five pages. Mr. Mason’s offer of proof briefly

paraphrased only five of Deputy McIlrath’s statements to the judge. It omitted others that

were equally important. The trial court did not err in determining that Mr. Eguires was

required to present the pertinent evidence, not just a conclusory attack and request for

discovery.

II.    MR. EGUIRES FAILS TO DEMONSTRATE PREJUDICE FROM THE ALLEGEDLY
       INEFFECTIVE ASSISTANCE OF MR. MASON

       Effective assistance of counsel is guaranteed by both the Sixth Amendment to the

United States Constitution and article I, section 22 of the Washington Constitution.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective

assistance of counsel, a defendant must show two things: “(1) defense counsel’s

representation was deficient, i.e., it fell below an objective standard of reasonableness

based on consideration of all the circumstances; and (2) defense counsel’s deficient

representation prejudiced the defendant, i.e., there is a reasonable probability that, except

for counsel’s unprofessional errors, the result of the proceeding would have been




                                             10
No. 34651-0-III
State v. Eguires


different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (emphasis

omitted).

       Mr. Eguires fails to demonstrate prejudice: that had it not been for Mr. Mason’s

unprofessional errors, there is a reasonable probability the court would have granted Mr.

Eguires’s motion to withdraw his plea. For Mr. Mason’s motion to succeed, he needed to

demonstrate Mr. Heilman-Schott’s ineffective assistance as counsel, and therefore, as the

trial court pointed out, that there was a “huge and significant” Franks-type suppression

issue that, because Mr. Heilman-Schott ignored it, presented a manifest injustice. RP at

63. To prevail on appeal, Mr. Eguires needs to point to the evidence that demonstrates

this huge and significant Franks-type suppression issue that Mr. Heilman-Schott

allegedly ignored.

       We begin with the presumption that the affidavit supporting a search warrant is

valid. State v. Atchley, 142 Wn. App. 147, 157, 173 P.3d 323 (2007) (citing Franks, 438

U.S. at 171). We have already identified the evidence-based character of the offer of

proof that must be made in order to be entitled to a Franks hearing challenging the

truthfulness and material completeness of the facts stated in the warrant affidavit. Id. at

157-58. The substantial preliminary showing a defendant must make is of a false

statement or material omission that was made by the affiant “‘knowingly and

intentionally, or with reckless disregard for the truth.’” Id. at 155-56 (quoting Franks,

438 U.S. at 154). The offer of proof by the defendant must (1) point out specifically the

                                             11
No. 34651-0-III
State v. Eguires


portion of the warrant affidavit that is claimed to be false, (2) furnish testimony

demonstrating that the affiant misled the magistrate deliberately or recklessly (or explain

the absence of evidence), and (3) demonstrate that the challenged falsehood was

necessary to the finding of probable cause. Franks, 438 U.S. at 171-72.

       Atchley illustrates the high bar before evidence is sufficient to demonstrate a

warrant affiant’s untruthfulness. To challenge an officer’s truthfulness in an affidavit for

a warrant to search Atchley’s home for evidence of a marijuana grow operation, Atchley

offered “numerous photographs” allegedly demonstrating that the officer did not see what

he had claimed to see, and declarations supporting Atchley’s contention that the officer

could not have seen into his backyard because the gate was never left open. 142 Wn.

App. at 158. Mr. Atchley argued that the officer’s admission that he phrased statements

in the warrant affidavit artfully was evidence the officer knew he was conveying a false

impression to the magistrate. Id. at 159. This court affirmed the trial court’s refusal to

order a Franks hearing because the photographs did not directly conflict with the warrant

affidavit, the declarations did not decisively foreclose the possibility the gate was left

open, and the officer’s statement was too ambiguous to be construed as an admission of

perjury.

       Mr. Eguires’s evidence is less persuasive than that in Atchley. Mr. Eguires

contends that Deputy McIlrath’s telephonic affidavit was false in failing to reveal to the

court that the specific location of the rifle was already known to the deputy before he

                                              12
No. 34651-0-III
State v. Eguires


applied for the search warrant. He places substantial reliance on the CAD record, which

includes communications that responding officers saw a rifle at the Eguires property

pointing out of the window of a vehicle, and thereafter that two subjects then put the rifle

down “on table or something.” CP at 28. Yet there is no evidence that Deputy McIlrath

was aware of all of the communications reflected in the CAD record. In fact, the

evidence suggests that he would not have been aware of all of the communications.

       The CAD record reflects communications by dispatch with six different officers.

The communications are identified by officer number, and the CAD report reflects

communications with officers numbered 973, 1203, 1215, 1220, 1225 and 1232. The

record does not establish which communications were made by or heard by Deputy

McIlrath. Statements in the CAD record reflect the speakers’ knowledge that not all of

the responding officers were hearing everything—directions are given to advise other

officers of certain developments.7 And Deputy McIlrath’s police report and telephonic

affidavit indicate there were times on the morning of the incident when he was

interviewing a bus driver at the school and making a preliminary report. They, and the

CAD report, also reveal that Yakama Nation officers arrived at the high school and the

Eguires residence before the sheriff’s deputies did.



       7
         E.g., “Contact 973 adv them 1225 maybe be with the veh[icle]”; “Contact 973
see if they want us to standby”; “Ok will let the dep[uties] know.” CP at 26, 28 (some
capitalization omitted).

                                             13
No. 34651-0-III
State v. Eguires


       In his telephonic affidavit, Deputy McIlrath told the district court judge, “Tribal

police went to the house while I was giving the initial report. They located Dustin inside

of the two-door Honda car. They saw him with what looked like a rifle, they did

containment. Dustin walked to the—to his house.” Transcript of Proceedings (TP) at 6.

Only thereafter did the deputies arrive and take Mr. Eguires and the other man into

custody. The CAD record does not establish that Deputy McIlrath knew all that other

officers had seen when he completed the telephonic affidavit.

       Mr. Mason also relies on Deputy McIlrath’s narrative report of the incident, which

states in part:

       I read Dustin his Miranda rights. He at first told me that he did not have a
       rifle. I obtained a search warrant for Dustin’s house and property. While
       filling out the search warrant Dustin told me that the gun was on the table.

CP at 18. The deputy’s report goes on to state that he initially searched for the rifle

inside the residence but could not locate it; he later located it outside. Nothing in the

deputy’s statement indicates he was told by Mr. Eguires that the gun was on a table

outside, as opposed to inside. From the conduct of the search he describes, it is apparent

that he assumed it was on a table inside.

       Also before the trial court was a narrative report of the incident prepared by

Sergeant Splawn. It too, gives no indication that the deputies knew where the rifle was

located before Deputy McIlrath applied for the search warrant. The sergeant’s report



                                             14
No. 34651-0-III
State v. Eguires


states in pertinent part that after Deputy McIlrath obtained a search warrant for the

property, “We discovered the rifle on a table near the van.” CP at 75 (emphasis added).

       Mr. Mason argued that Deputy McIlrath’s narrative report was inconsistent with

the deputy’s statement in his telephonic affidavit that Mr. Eguires told him “he did have a

rifle, he set it somewhere on this—on his property, did not tell me where.” TP at 6. The

statement that the deputy was told the gun was on the table, with no identification of

where “the table” was, and the statement that he was told the gun was somewhere on the

property, but not where, are not inconsistent. They can be construed as a more specific

versus more general way of conveying the same material fact to the judge: that the deputy

was told the gun was on the premises, but not where on the premises. That the same

words were not used both times does not demonstrate deliberate or reckless disregard of

the truth.

       With the addition to the record of the transcript of the telephonic affidavit, Mr.

Eguires still does not demonstrate a reasonable probability that a motion for a Franks

hearing would have been granted.8


       8
         Mr. Eguires contends on appeal that there was evidence Mr. Heilman-Schott
failed to discuss with Mr. Eguires the likelihood that evidence of the identity theft counts
could be suppressed. Br. of Appellant at 16 (citing CP at 30, 33; RP at 52). The record
contains argument to that effect, but not evidence. Mr. Eguires argues that because Mr.
Mason represented Mr. Eguires told him as much, it “would have likely been rather
simple to obtain and present a sworn declaration, or put Eguires on the stand to testify to
that effect.” Id. Absent evidence of what Mr. Eguires would say, that is speculation.
        Interestingly, Mr. Mason never represented to the trial court that Mr. Eguires

                                             15
No. 34651-0-III
State v. Eguires


       Even if Mr. Eguires demonstrated a reasonable probability of success, but merely a

reasonable probability of success, he might still fail to make the second required showing

of deficient performance. Mr. Heilman-Schott might reasonably have concluded that

advancing a Franks motion that was not guaranteed to succeed was not worth the risk

that an attractive plea agreement offered by the State would be withdrawn. Because we

need not consider both of the showings required where a defendant fails to show one, we

need not analyze deficient performance further. In re Pers. Restraint of Crace, 174

Wn.2d 835, 847, 280 P.3d 1102 (2012) (citing Strickland, 466 U.S. at 697).

       Affirmed.

       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.


                                                    d7 'Lio /,U~ JI_ •
                                                 Siddoway, J.
                                                                             I



WE CONCUR:




                                                 Fearing, J.

claimed he told Deputy Mcllrath the gun was on a table outside, in a place where
deputies could have seized it without a warrant. Mr. Eguires would have firsthand
knowledge of those facts, if true. The trial court would be entitled to view the absence of
that evidence from Mr. Eguires as undercutting his motion for a Franks hearing.

                                            16
