                                                                        FiLED
                                                                COURT OF APPEALS OW I
                                                                 STATE OF WASHINGTON

                                                                2016JAN 22 AN 9:37




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                 No. 75868-3-I/Consolidated w/
                                                 No. 75869-1-1
                     Respondent,
                                                 DIVISION ONE
       V.

ALEXSEY SHULISHOV,                               UNPUBLISHED OPINION

                     Appellant.                  FILED: January 22, 2018

       SPEARMAN, J. — To succeed on a claim of ineffective assistance of

counsel, a defendant must show that(1)the lawyer's performance fell below an

objective standard of reasonableness and (2)there was a reasonable probability

that but for the deficient performance, the outcome of the proceeding would have

been different. If the defendant cannot prove both prongs, the claim fails. Here,

the sentencing court imposed a $2,000 drug fine on appellant Alexsey Shulishov.

He claims that as a result of his lawyer's failure to inform the sentencing court

that it had discretion to waive the fine, the lawyer's representation was

ineffective. But even if counsel's performance could be considered deficient,

Shulishov cannot show that but for the error, the outcome of the proceeding

would have been different. We affirm.
No. 75868-3-1/2 Consolid. w/
No. 75869-1-1

                                            FACTS

       Alexsey Shulishov pled guilty to residential burglary, possession of heroin,

and second degree theft. His sentencing hearing was dominated by debate over

whether to grant Shulishov a drug offender sentencing alternative(DOSA)

sentence, which the court ultimately denied. The state recommended imposing a

number of legal financial obligations (LF0): a $2,000 Violation of the Uniform

Controlled Substances Act(VUCSA)fine, a $500 victim penalty assessment, a

$200 filing fee, and a $100 DNA fee. In response, Shulishov's attorney asked

that the court "waive court cost[s] and fines that you can waive..." Verbatim

Report of Proceedings(VRP)(09/02/16) at 9.1 After referring to himself as "the

old drug court judge", the sentencing judge said that for the possession and theft

convictions, "I am going to impose a drug fine of $2,000, a $500 victim penalty

assessment, and a $100 DNA fee." VRP at 13; 16. For the residential burglary,

the court imposed another $500 victim penalty assessment and $100 DNA fee.

The court also found Shulishov indigent in both cases for purposes of appeal.

Shulishov appeals his LFO, arguing that his counsel was deficient for failing to

inform the sentencing court that the VUCSA fine was discretionary.

                                        DISCUSSION

       We review an ineffective assistance of counsel claim de novo. State v.

White, 80 Wn. App. 406, 410, 907 P.2d 310(1995). The defendant has the

burden of establishing ineffective assistance of counsel. State v. Humphries, 181



       1 All citations to the VRP refer to the 09/02/16 proceedings.

                                               2
No. 75868-3-1/3 Consolid. w/
No. 75869-1-1

Wn.2d 708, 719-720, 336 P.3d 1121 (2014). To prevail, a defendant must show

that(1) counsel's performance "fell below an objective standard of

reasonableness and (2) there was prejudice, measured as a reasonable

probability that the result of the proceeding would have been different." Id. at 720

(citing Strickland v. Washington,466 U.S. 668, 687-88, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984)).

       Shulishov argues that he received ineffective assistance of counsel

because his attorney failed to alert the sentencing court that the $2,000 VUCSA

fine may be waived based on a finding of indigence. The claim fails because

even if defense counsel's performance could be considered deficient, Shulishov

cannot show a reasonable probability that the effort affected the outcome of the

proceeding. First, the sentencing judge identified himself as the "old drug court

judge," which indicates that he was familiar with discretionary nature of the

VUCSA fine. In addition, the DOSA report that the sentencing judge referred to

throughout the hearing stated that the $2,000 drug fine "may be waived if the

court makes a finding of indigence." Clerk's Papers(CP)at 40. Finally, the form

used by the court to enter the judgment and sentence presented three

alternatives for the VUCSA fine: $1,000, $2,000, or "VUCSA additional fine

deferred due to indigency." CP at 14. Thus, the judgment and sentence itself

informed the sentencing judge of its discretion with respect to the VUCSA fine. It

is apparent from this record that the sentencing court was well aware of its

discretion when it imposed the VUCSA fine.



                                         3
No. 75868-3-1/4 Consolid. w/
No. 75869-1-1

       Shuilshov argues that he was prejudiced by ineffective assistance

because "[a] trial court cannot make an informed decision if it does not know the

parameters of its decision-making authority. Nor can it exercise its discretion if it

is not told it has discretion to exercise." State v. McGill, 112 Wn. App. 95, 102,

47, P.3d 173(2002). But in McGill, the trial court denied that it had discretion to

impose a downward exceptional sentence and counsel failed to argue otherwise.

Here, the record amply demonstrates that the sentencing court was aware of its

discretion. Under these circumstances, Shulishov cannot show that he was

prejudiced by his counsel's failure to explicitly advise the sentencing court of its

discretion.

       Affirmed.




WE CONCUR:




     1,42n




                                          4
