                                                                                                 ACED
                                                                                        ErOURI T OF APPEALS
                                                                                               L 1IVI,'
                                                                                                     1011 IT
                                                                                       2013        2-          09
                                                                                       STAB

                                                                                              Jk    r SII IPIOTO'




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,                                                          No. 42423 1 II
                                                                                        - -


                                 Respondent,

       LIFIM




BRIAN DAVID TAUSCHER, .                                                 UNPUBLISHED OPINION


                                 I1

            BRINTNALL P. . —Brian Tauscher was charged with multiple felonies related to
       QuiNN-          J


sexual contact with his      stepdaughter. Tauscher pleaded guilty to one count of first degree

attempted      child molestation. -   Tauscher appeals (1)the trial court's denial of his motion to
                                                                            -

withdraw his guilty plea, 2) trial court's denial of his motion to appoint new.counsel, 3)
                          ( the                                                         ( the

trial court's comparability finding regarding his California conviction, and (4) trial court's
                                                                                the

findings regarding Tauscher's ability to pay his legal financial obligations. The trial court did

not err by denying Tauscher's motions, Tauscher's California conviction was properly included

in his offender score, and we reject the State's concession regarding the trial court's findings

                                      pay his           financial   obligations: Accordingly, we   affirm.
regarding Tauscher's ability to                 legal
No. 42423 1 II
          - -



                                              FACTS


       On June 1, 2010, the State charged Tauscher with one count of first degree rape of a

child, one count of first degree incest, and one count of first degree child molestation, all with

aggravating factors..On July 16, 2010, the State filed an amended information charging

Tauscher with one count of attempted first degree child molestation. Tauscher agreed to plead

guilty to the amended information. Tauscher's offender score was calculated at nine. Tauscher's

standard range was a minimum of 111.75 to 148.5 months with a mandatory maximum of life. n
                                                                                       i

prison. After conducting a colloquy with Tauscher, the trial court found that the plea was

knowingly, intelligently, and voluntarily made with an understanding of the charges and the

consequences of the plea, there's a factual basis for the plea, and that you're guilty as charged."

Report of Proceedings (RP)July 16, 2010) at 8. Tauscher then entered a signed statement of
                           (

defendant on plea of guilty to sex offense.

       After entering his guilty plea, Tauscher wrote a pro se letter to the court requesting to

withdraw his guilty plea. In the letter,Tauscher wrote,

       Defensecounsel] coersed [sic]me into taking a plea by telling me I should take
                                                               -
       the deal cause it is a good deal, and if I take the deal at least I know I' getting
                                                                                 m
       out in a few year's sic].He also said that I really didn't have a chance with the
                             [
       jury.... he said if we do go to trial and I lose the jury will find me guilty
            Then
       on all account's sic]and I will do life.
                         [

Clerk's Papers (CP)at 69. Tauscher also filed a request for new counsel because he felt defense

counsel was "not doing his job." at 71. Tauscher also included allegations that two of his
                                CP

sons had stated that the victim had been told what to say by her grandmother.

        On August 25, 2010, the trial court held a sentencing hearing and addressed Tauscher's
motions. Defense counsel told the trial court that he continued to work with Tauscher even after

Tauscher filed his motions. The following exchange also took place:

                                                  M
No. 42423 1 II
          - -



                 COURT]: Mr. Tauscher, do you want to be heard on it?Anything in
       addition to what you've already written in?
               DEFENDANT]: I feel with proper representation I have a good chance
       of going to trial and beating this.
                 COURT]:So why did you plead guilty then?
                 DEFENDANT]:I felt I was pushed into it.
                 COURT]:By whom and how?
                 DEFENDANT] :By Mr.Brown.
              COURT]:What [did]he do to push you into it?
              DEFENDANT]: He told me if I, do the deal I would be doing life
                                             t   didn'
       without parole.
              COURT]: Which is entirely possible. You told the judge, me, all of us,
       that you were pushed into it, you didn't want to plead? This was totally
       involuntary when we went through the plea.
              DEFENDANT] : Yes, sir.
               COURT]: You told me that?No, of course you didn't tell me that. I'
                                                                                m
       talking about when you did your plea.
                 DEFENDANT]: Sorry, sir.
                 COURT]:You didn't, you?
                                  did
                 DEFENDANT]:No.
               COURT]: There is no.asis here to withdraw the plea as far as I can see
                                      b
       so I'l deny both motions. Are we ready to do sentencing?
           l

RP ( Aug. 25,    2010) at   12 13.
                               -     After denying Tauscher's motions, the trial court sentenced

Tauscher based on the State's recommendation in the plea agreement.

       On November 5, 2010, Tauscher filed a pro se motion to modify or correct judgment or

sentence.   In the motion, Tauscher alleged that his offender score was incorrectly calculated

because his California convictions      were      not   comparable   to   Washington felonies.   Tauscher


specifically argued that his California conviction was for grand theft of an animal carcass and the
California statute is not   comparable   to   a   Washington    statute.    After Tauscher obtained new

appointed counsel, Tauscher's counsel filed an amended motion to modify but adopted both of

Tauscher's arguments regarding his California convictions. The State conceded that Tauscher's
California conviction for lewd and lascivious behavior is not comparable to a Washington

felony, but argued that California's grand theft of an animal carcass statute was comparable to

                                                        3
No. 42423 1 II
          - -



Washington's     theft of livestock statute.      The trial court   agreed with the State.         The State


recalculated Tauscher's offender score at six which resulted in a new standard range of 73. to
                                                                                          5

97. months. The trial court resentenced Tauscher to 97. months with a maximum term of life.
  5                                                   5

Tauscher timely appeals.

                                                 ANALYSIS


MOTION TO WITHDRAW GUILTY PLEA


       Tauscher argues that the trial court erred by denying his motion to withdraw his guilty

plea because he had established that his plea was involuntary and he received ineffective

assistance of counsel. Furthermore, Tauscher argues that the trial court erred because he denied

Tauscher's motion without        investigating   Tauscher's claim that his      plea    was    coerced.     But


Tauscher did not make any allegations that could establish a claim.that his plea was coerced,

therefore the trial court did not err by either denying Tauscher's motion to withdraw his guilty

plea or by failing to hold a hearing to investigate Tauscher's claim.

       We review a trial court's decision on a motion to withdraw a guilty plea for an abuse of

discretion. State v. Pugh,153 Wn.App. 569 576, 222 P. d 821 (2009)citing State v. Marshall,
                           -                        3              (

144 Wn. d 266, 280, 27 P. d 192 (2001),
      2                 3             abrogated by State v. Sisouvanh, 175 Wn. d 607, 290
                                                                             2

                A
P. d 942 (2012)).
 3                         trial court abuses its discretion when it bases its decision on untenable

grounds or reasons. Pugh, 153 Wn. App. at 576 (citing State v. Brown, 132 Wn. d 529, 572, 940
                                                                            2

P. d 546 (1997),
 2             cent. denied, 523 U. . 1007 (1998)).
                                  S              Under CrR 4. (
                                                           f), allow a
                                                            2 the court shall "

defendant to withdraw the defendant's plea of guilty `whenever it appears that the withdrawal is
necessary to correct   a   manifest   injustice. "' Pugh, 153 Wn. App. at 577 (quoting CrR 4. (
                                                                                           f))
                                                                                            2

Manifest injustice' means `an injustice that is obvious, directly observable, overt, [ nd] not
                                                                                     a

obscure. "'   Pugh, 153    Wn. App. at 577 (alteration in   original) quoting
                                                                      (         State   v.   Taylor, 83   Wn. d
                                                                                                            2
No. 42423 1 II
          - -



594, 596, 521 P. d 699 (1974)).
               2              There are four indicia of manifest injustice: (1) defendant
                                                                               the

received ineffective assistance of counsel, 2) defendant did not ratify his plea agreement, 3)
                                            ( the                                           (

the plea was involuntary, and (4) prosecution did not honor the plea agreement. Pugh, 153
                                 the
Wn.   App.   at 577 ( citing   Taylor,   83 Wn. d at
                                              2            597). Because of the many safeguards that
                                                                 "

precede a guilty plea, the manifest injustice standard for plea withdrawal is demanding." Pugh,

153 Wn. App. at 577 (citing Taylor, 83 Wn. d at 596).
                                         2

       Tauscher claims that he should be permitted to withdraw his guilty plea because his plea

was involuntary and he received ineffective assistance of counsel..
                                                                  Tauscher raises two different

grounds for withdrawing his guilty plea, but both grounds are based on the same allegations

regarding his defense counsel's conduct. Tauscher's allegations include defense counsel telling

him that he would probably be convicted at trial and he would get life if he was convicted. In an

additional motion for appointment of counsel pursuant to CrR 3.1, Tauscher argued that he

should be given new counsel for the following reasons:

       Reason 1)Mr. Brown was asked to obtain video and audio from CPS instead he
       called and asked if anybody saw or heard anything! Reason 2) Mr. Brown
       refused to call upon my witnesses and instead went fishing —not once but twice!
       Reason 3)Once Mr.Brown had gotten a plea bargain, he waited a week to tell me
       about it,then his demeanor towards this case went downhill!

CP at 79.


       Tauscher's claim that his plea was involuntary, fails because he has not presented

sufficient evidence to overcome the strong presumption that his plea was voluntary. As we have

observed,

        When a defendant fills out a written statement on plea of guilty in compliance
        with CrR 4. (
                 g) acknowledges that he or she has read it and understands it
                  2 and
        and that its contents are true, the written statement provides prima facie
        verification of the plea's voluntariness. When the judge goes on to inquire orally

                                                       5
No. 42423 1 II
          - -



       of the defendant and satisfies himself on the record of the existence of various
       criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.

State v. Perez, 33 Wn. App. 258, 261 62,654 P. d 708 (1982) citations omitted). To overturn
                                     -       2               (

the trial court's finding that Tauscher entered into his plea voluntarily, we would need to

consider the trial court's finding to be "manifestly erroneous." State v. McLaughlin, 59 Wn. d
                                                                                           2

865, 870, 371 P. d 55 ( 1962). Here, Tauscher signed the guilty plea and, after conducting a
               2


colloquy   on   the record, the trial court found that Tauscher's       plea   was   voluntary. Tauscher's

subsequent allegations are not sufficient to overcome the presumption that Tauscher's plea was

voluntary or that the trial court's original finding was manifestly erroneous. Therefore, the trial

court did not abuse 'its discretion when it denied Tauscher's motion to withdraw his guilty plea

based on voluntariness.


       Tauscher's ineffective assistance of counsel claim also fails. " In               a plea bargaining

context, effective assistance of counsel' merely requires that counsel `actually and substantially
         `

assist] his   client in   deciding   whether to   plead guilty. "' State v. Osborne, 102 Wn. d 87, 99, 684
                                                                                           2

P. d 683 (1984) alteration in original) quoting State v. Cameron, 30 Wn. App. 229, 232, 633
 2              (                       (

P. d 901, review denied, 96 Wn. d 1023 (1981)).
 2                            2              Defense counsel must inform the defendant of

all direct consequences of the guilty plea. State v. A. .168 Wn. d 91, 113 14,225 P. d 956
                                                     J., 2
                                                      N                    -       3

2010). Furthermore, effective assistance of.counsel requires "not only communicating actual

offers, but discussion of tentative plea negotiations and the strengths and weaknesses of the

defendants' case so that the defendants know what to expect and can make an informed

judgment whether or not to plead guilty."State v. James, 48 Wn. App. 353, 362, 739 P. d 1161
                                                                                    2

1987).




                                                         Cel
No. 42423 1 11
          - -



        State v. Smith, 74 Wn. App. 844, 875 P. d 1249 (1994),
                                              2              review denied, 125 Wn. d 1017
                                                                                  2

1995),
     addresses a similar issue. In Smith, the defendant asserted that "his guilty pleas to all

three charges were not voluntary because at the time he entered the pleas he was severely

depressed and under pressure from his counsel to enter the pleas." 74 Wn..
                                                                         App. at 850. This
court held that because Smith could not demonstrate a causal connection between his

psychological disorders and his decision to take the plea, the allegations against his defense

attorney were unsubstantiated and the trial court did not err by refusing to allow him to withdraw

his guilty plea. Smith, 74 Wn. App. at 850 51.
                                           -

         Here, Tauscher's allegations are not sufficient to allege an ineffective assistance of

counsel claim; in fact, Tauscher's allegations support the contention that he received effective

assistance of counsel.        Tauscher's defense counsel was required to explain to him the

consequences of the charges and the strength or weakness of Tauscher's case. James, 48 Wn.
App. at 362. Therefore, defense counsel's statements about the possibility of Tauscher getting
life in prison or losing his case were actually required for defense counsel to adequately explain
the   plea   offer.   Tauscher has not -offered any -evidence which would demonstrate his defense

counsel coerced him into accepting the State's guilty plea offer, therefore he has not met his

burden of     demonstrating ineffective assistance of counsel. Smith, 74   Wn.   App. at 850. The

remainder of Tauscher's allegations have no bearing on whether he received effective assistance

of counsel for his plea agreement. A thorough investigation of a case is not required to actually

and substantially assist a client with the decision to plead guilty so long as the defense counsel

has sufficient information to explain the strengths and weaknesses of the defendant's case. See

State v. Young, 62 Wn. App. 895,. P. d 829, 817 P. d 412 (1991). Accordingly,
                                802 2            2


                                                   7
No. 42423 1 II
          - -



has failed to demonstrate that he received ineffective assistance of counsel when entering into his

plea.

        Furthermore, the trial court was not required to hold a special evidentiary hearing to

investigate Tauscher's claim that his defense counsel coerced him into accepting the plea

agreement. Here, Tauscher , et out his allegations in two pro se motions as well as two letters.
                          s

The record demonstrates that the trial court reviewed these documents prior to making his

decision.   Furthermore, neither Tauscher nor his defense counsel asked to present additional

information that should be added to the record. Because the trial court relied on the written


pleadings, rather than simply the original colloquy establishing that the plea was made
voluntarily, the trial court did not err by refusing to hold an additional hearing to investigate
Tauscher's claim.


        Tauscher bears the burden of demonstrating a manifest injustice that requires permitting

him to withdraw his guilty plea. See Pugh, 153 Wn. App. at 577 (citing Taylor,83 Wn. d at
                                                                                   2

596).Because Tauscher fails to establish that the trial court's finding that his plea was voluntary

was manifestly erroneous or that he received ineffective assistance of counsel, Tauscher has

failed to meet his burden to demonstrate a manifest injustice. Accordingly, the trial court did not

abuse its discretion when it denied Tauscher's motion to withdraw his guilty plea.

APPOINTMENT OF NEW COUNSEL


        Tauscher alleges that the trial court was required to appoint new counsel prior to deciding

Tauscher's motion to withdraw his guilty plea because part of Tauscher's allegations included

ineffective assistance of counsel. In addition to his allegations about coercion, Tauscher alleged

that his defense counsel   improperly investigated   his   case.   But because   simple allegations   of
No. 42423 1 II
          - -



ineffective assistance of counsel do not entitle a defendant to new counsel, the trial court did not

abuse its discretion by failing to appoint new counsel for Tauscher.

       We review a trial court's decision to deny a motion to appoint new counsel for abuse of

discretion. State v. Varga, 151 Wn. d 179, 200, 86 P. d 139 (2004).Factors to be considered
                                  2                 3               "

include `the reasons given for the defendant's dissatisfaction, together with [the trial court's]

own evaluation of the competence of existing counsel and the effect of substitution upon the

scheduled   proceedings. "' State v. Rosborough, 62 Wn. App. 341, 346, 814 P. d 679 (alteration
                                                                            2

in original) quoting State v. Stark, 48 Wn. App. 245, 253, 738 P. d 684, review denied, 109
             (                                                  2

Wn. d 1003 (1987)),
  2              review'denied, 118 Wn. d 1003 (1991).A mere allegation of ineffective
                                      2

assistance of counsel does not create an inherent.conflict of interest requiring substitute counsel.

Rosborough, 62 Wn. App. at 346.

       As explained above, Tauscher's allegations fail to demonstrate he received ineffective
assistance of counsel.     Therefore, there was no conflict of interest that would require

appointment of new counsel and the trial court did not abuse its discretion by denying Tauscher's

motion. It is important to note that Tauscher's allegations must be viewed under the standard for

effective assistance of counsel during plea negotiations not during or after trial. While failure to

contact or call witnesses who could potentially exonerate the defendant may be ineffective

assistance of counsel after a defendant has gone to trial, it is not ineffective assistance of counsel

when advising a defendant about a plea agreement. See Young, 62 Wn. App. 895. Therefore,

Tauscher's allegations about his defense counsel failing to contact CPS or additional witnesses

do not support a claim of ineffective assistance of counsel which would require the trial court to

appoint new counsel.



                                                  6
No. 42423 1 II
          - -



CALIFORNIA CONVICTION


         Tauscher argues that his offender score was improperly calculated because Cal. Penal

Code §    487a (Grand theft; stealing, transporting, appropriating, etc.,carcass of animal) is not

comparable to a Washington felony. But the California order of probation Tauscher presented to
the trial court shows that in 1995 Tauscher pleaded nolo contendre to a violation of former Cal.

Penal Code §      487( ) ( grand theft).To resolve this discrepancy, we remanded to the trial
                     a 1993) (

court for a reference hearing to determine under which statute Tauscher was convicted. The trial

court found that Tauscher      was   convicted of   grand   theft under former Cal. Penal Code §   487( )
                                                                                                      a

and concluded that California's grand theft statute was comparable to Washington's second

degree theft statute, former RCW 9A. 6.1994).
                                 040 (
                                   5
         In his supplemental briefing regarding the reference hearing on remand, Tauscher argues

that the trial court improperly considered additional evidence regarding Tauscher's California

conviction.    Sufficient evidence in the original record supports the trial court's finding that

Tauscher    was   convicted of   grand    theft under former Cal. Penal Code §         487( ).
                                                                                          a Therefore,

although we are inclined to disagree with Tauscher's assertion, we do not decide whether
                                                                   -
additional evidence      was   properly   considered   on   remand.    See LAWS   OF   2008, ch. 231, § 1

    Given the decisions in In re Cadwallader, 155 Wn. d 867[,123 P. d 456] 2005);
                                                    2             3        (    State v.



1
    In 2009, the legislature amended RCW 9A. 6.to increase the minimum value of property
                                         040
                                           5
for second degree theft from $      750. LAWS
                             250 to $                         OF              But we apply the
                                                                   2009, ch. 431, §   8.
statutes in effect at the time the offense was committed. Accordingly, we compare the California
and Washington statutes in effect in 1995.

2 In the statement of defendant on plea of guilty, Tauscher stipulated that he had a prior
conviction for     a   violation of former Cal. Penal Code §          487( )
                                                                         a and the minute and order of
probation Tauscher submitted to the court in support of his motion to modify and correct his
offender score shows that Tauscher pleaded nolo contendre to a violation of former Cal. Penal
Code §    487( ).
             a
                                                       10
No.42423 1 II
         - -



Lopez, 147 Wn. d 515[,55 P. d 609] 2002);
             2            3        (    State v. Ford, 137 Wn. d 472[,973 P. d 452]
                                                             2             2

1999); State v. McCorkle, 137 Wn. d 490[,
     and                        2       973 P. d 461] 1999), legislature finds it
                                             2        (    the

necessary to amend the provisions in RCW 9. 9. and 9. in order to
                                         500,
                                           94A. 525,
                                                 94A. 530
                                                        94A.

ensure that sentences imposed accurately reflect the offender's actual, complete criminal history,

whether imposed     at   sentencing   or   upon   resentencing. "). Accordingly, our analysis is limited to

whether Tauscher's 1995 California conviction               was   comparable   to   a   Washington felony.   We


hold that it was.


          Out ofstate convictions for offenses shall be classified according to the comparable
              - -

offense    definitions , and   sentences     provided by Washington            law."       RCW 9. ).
                                                                                               525( 4A.
                                                                                                  3
                                                                                                  9

Washington courts employ a two part, test to determine whether foreign convictions are
                               -

comparable to Washington offenses. In re Pers. Restraint ofLavery, 154 Wn. d 249, 255, 111
                                                                         2
P. d 837 ( 2005). The
 3                          court must compare the elements of a Washington criminal statute in

effect when the.foreign crime was.committed. In re Lavery, 154 Wn. d at 255 (citing State v.
                                                                 2

Morley, 134 Wn. d 588, 605 06,952 P. d 167 (1998)). the elements of the foreign conviction
              2            -       2             If

are comparable to the elements of a Washington - strike -offense on their face, the foreign
conviction counts toward the defendant's offender score. In re Lavery, 154 Wn. d at 255.
                                                                             2

          Under former Cal. Penal Code § 487, grand theft               theft
                                                                    was "        committed ... (   a) [ hen the
                                                                                                     w]

money, labor, or real or personal property taken is of a value exceeding four hundred dollars

400)."person was guilty of theft if he "feloniously steal[s], s], ies], s],
    A                                                       take[ carr[ lead[ or

     s away the personal property of
drive[ ]                                           another." Former Cal. Penal Code §              484( ) (
                                                                                                      a 1980)..

Under former RCW 9A. 6. a person
                 040,
                   5                                  was     guilty of   theft if he " commits theft of. ( a)


p] or services which exceed(s) hundred and fifty dollars in value, but does not
 roperty                     two
exceed one thousand five hundred dollars in value."In Washington, theft means "to wrongfully

                                                         11
No. 42423 1 II
          - -


obtain or exert unauthorized control over the property or services of another or the value thereof,

with intent to deprive him of such property or services."Former RCW 9A. 6.
                                                                    020(
                                                                       a 1975).
                                                                       5 ). (

        While California law provided that a person committed theft by feloniously taking,

Washington's wrongfully obtain"was the substantial equivalent. In addition, California courts
               "

have held that theft "requires a specific intent permanently to deprive the rightful owner of his

property."California v. Kunkin, 9 Cal. 3d 245, 251, 507 P. d 1392, 107 Cal. Rptr. 184 (1973)..
                                                         2

Accordingly, California's definition of theft was essentially identical to Washington's definition

of theft. In addition, because California required the stolen property to be worth at least $ 00,an
                                                                                            4

amount that is higher than the former $250 Washington requirement, a person would have

necessarily    violated the    Washington      statute   by violating    the California statute.         Accordingly,

California's   grand     theft statute, former Cal. Penal Code §             487( ), legally comparable to
                                                                                a was

Washington's second degree theft statute, former RCW 9A. 6. The trial court did not err by
                                                     040.
                                                       5

including Tauscher's California conviction in his offender score.

LEGAL FINANCIAL OBLIGATIONS


        Tauscher argues, and the State concedes, that the trial court erred by concluding that

Tauscher had the present and future ability to pay his legal financial obligations because there
were   no   formal   findings    to   support its conclusion. But we reject the State's concession as

improvident. See State v. Ziegenfuss, 118 Wn. App. 110, 112, 74 P. d 1205 (2003) ( "
                                                                 3               Because
the defendant] has       not   yet failed   to pay her   legal   financial   obligations ...     her argument is not

yet ripe for review. "),review         denied, 151 Wn. d 1016 (2004);
                                                     2              State v. Baldwin, 63 Wn. App.

303, 310, 818 P. d 1116, 837 P. d 646 ( 1991) (T] e
               2              2                "[ h                           meaningful time to examine the

defendant's    ability   to pay is when the      government seeks        to    collect the     obligation. "); see   also


State v. Blazina, No. 42728 1 II,2013 WL 2217206, at *2 3 (
                            - -                         - Wash. Ct. App. May 21, 2013)
                                                          12
No. 42423 1 II
          - -



Challenge to the trial court's finding that the defendant has the ability to,pay legal financial

obligations is waived under RAP 2. ( affirm.
                                a).).
                                 5 We

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

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.6.it is
                                                                                  040,
                                                                                    0

so ordered.



                                                                                        AV?
                                                 QUINN-
                                                      BRINTNALL, P. .
                                                                  J
We concur:




    OVA



  AN DEREN, J. .
            T.
             P




                                               13
