                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        September 15, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 46330-0-II

                                Respondent,

        v.

 BRIAN DELISLE,                                               UNPUBLISHED OPINION

                                Appellant.

       SUTTON, J. — Brian DeLisle appeals the superior court’s denial of his CrR 7.8 motion to

withdraw his guilty plea to one count of attempting to elude a pursuing police vehicle. He argues

that the superior court erred when it concluded that (1) he failed to prove he was incompetent when

he entered his guilty plea, and (2) he did not receive ineffective assistance of counsel based on his

counsel’s failure to interview potential witnesses or investigate the competency issue. We hold

that (1) the superior court abused its discretion when it denied DeLisle’s motion to withdraw his

guilty plea based on DeLisle’s incompetency claim because it failed to apply the preponderance

of the evidence standard and (2) the superior court did not err in denying DeLisle’s ineffective

assistance of counsel claim. Accordingly, we affirm the superior court’s denial of DeLisle’s

ineffective assistance of counsel claim, reverse its denial of DeLisle’s incompetency claim, and

remand for the superior court to apply the correct legal standard to the existing findings of fact on

DeLisle’s incompetency claim.
No. 46330-0-II


                                                 FACTS

                            I. CHANGE OF PLEA HEARING AND SENTENCING

          The State charged DeLisle with attempting to elude a pursuing police vehicle and third

degree driving while license suspended or revoked. DeLisle hired attorney George Trejo to

represent him in this matter. On April 18, 2012, DeLisle entered a guilty plea to the attempting to

elude a pursuing police vehicle charge. The other charge was dismissed under the plea agreement.

          During the change of plea hearing, the superior court engaged in detailed discussions with

DeLisle to confirm that he understood the consequences of his plea. The court also advised

DeLisle that he could have additional time to confer with counsel if he felt he needed it. The

superior court then reviewed DeLisle’s rights and attempted to verify that DeLisle understood the

rights he was giving up by pleading guilty. Although DeLisle stated that he understood, the

superior court commented, “You look like you’re having questions,” and then reiterated the rights

DeLisle was giving up and mentioned several additional consequences of the plea. Report of

Proceedings (RP) at 4. DeLisle confirmed that he understood. The superior court accepted the

plea and proceeded to sentencing.

          The State recommended a 90-day sentence and did not object to work release. Trejo argued

for electronic home monitoring, noting that DeLisle had medical issues because of a head injury

and that he was on “a number of different medications.” RP at 10. Trejo also stated that DeLisle

had presented additional medical information at a previous bail hearing that disclosed that he

suffered from “acute psychosis, seizure disorders, anxiety as well as paranoid delusions.”1 RP at




1
    The bail hearing record is not part of the appellate record.

                                                    2
No. 46330-0-II


10. Trejo further commented that DeLisle had suffered some seizures while in custody. The

superior court sentenced DeLisle to 90 days, the low end of the standard range, with 37 days credit

for time served, and the remainder to be served on work release. During this hearing, no one raised

any issues about DeLisle’s competency to enter his plea.

                                 II. MOTION TO WITHDRAW PLEA

       On April 15, 2013, almost a year after he pleaded guilty, DeLisle filed a motion to withdraw

his guilty plea.2 He argued that he should be allowed to withdraw his plea because (1) he had not

been competent to enter the plea due to his mental health issues, and (2) he received ineffective

assistance of counsel.

       DeLisle attached several exhibits to his motion. One exhibit was a letter from his

psychologist, Mark Clark, stating that DeLisle had a cognitive disorder secondary to closed head

injury, that he occasionally had seizures which he controlled with medication, that he suffered

from posttraumatic stress disorder (PTSD), and that he might also have an underlying bipolar

disorder. Clark also commented that (1) DeLisle is impulsive in his decision-making and this

impulsivity is aggravated by stress, regardless of whether he is on his medications, (2) he is easily

confused and has trouble tracking conversation, and (3) he has a history of substance abuse and

dependence.

       DeLisle also attached several jail records describing his sick calls and medication history

around the time of the change of plea hearing on April 18, 2012. These records showed that

DeLisle had suffered seizures on October 4, 2011, April 10, 2012, and May 16, 2012. A follow-



2
  Because this motion was filed after the trial court filed the judgment and sentence, we consider
it to be a CrR 7.8 motion. CrR 4.2(f).

                                                 3
No. 46330-0-II


up entry on April 10, 2012 noted that later that same day DeLisle had reported he was “fine.”

Clerk’s Papers (CP) at 51.

       The reports also showed that (1) on March 28, although DeLisle reported having psychosis,

paranoia, attention deficit disorder, and a brain injury, his thoughts were cohesive without

psychosis when he was examined, but (2) on April 3, DeLisle believed he had received the wrong

medications and reported auditory hallucinations, weird dreams, and concern about his “thought

process.” CP at 52. On April 15, he missed his medications. And on April 16, two days before

the change of plea hearing, DeLisle reported that he was concerned about his blood pressure and

seizures because he was having trouble staying compliant with his medications. The records

showed that although his medications were available, DeLisle was not always compliant with his

medications because he would not wake up in time to receive them. His medications were,

however, helpful when he took them. There were no entries in these records for the date of the

change of plea hearing.

                             III. SEPTEMBER 18, 2013 CRR 7.8 HEARING

       The superior court determined that DeLisle had made a substantial showing that he was

entitled to an evidentiary hearing on the motion to withdraw the plea. On September 18, the

superior court held an evidentiary hearing addressing the ineffective assistance of counsel claim.

                             A. DELISLE’S CRR 7.8 HEARING TESTIMONY

       DeLisle testified that he had hired Trejo to handle this criminal matter and a related civil

forfeiture, that he met with Trejo in person only four times, and that they discussed the criminal

case only the day before the change of plea hearing and at the hearing. DeLisle further testified

that although he provided Trejo with a list of witnesses who could provide an alibi, Trejo did not


                                                4
No. 46330-0-II


contact these witnesses. DeLisle did not, however, say who these witnesses were or what specific

information they could have provided if contacted.

       As to the mental health issues, DeLisle testified that he told Trejo’s office about his

(DeLisle’s) mental health issues, but Trejo did not contact DeLisle’s psychologist and never asked

DeLisle if he understood the proceedings against him. DeLisle asserted that he suffered from

bipolar disorder, a cognitive disorder, dementia, memory loss, paranoid delusions, a closed head

injury, PTSD, a seizure disorder, and “[p]sycho-social and environmental problems related to the

interaction with the legal system itself.”3 RP at 33.

       DeLisle further contended that because he was not on his medication and had recently

suffered a seizure in jail, he did not comprehend what was happening during the change of plea

hearing and was too compromised to tell the superior court that he did not understand the

proceedings. He also asserted that he had reported auditory hallucinations and a “confused thought

process” while in jail. RP at 34. And he stated that when he does not take his medication, he is

“not [him]self,” and is confused, not very coherent, and “just not real sure what’s going on around

[him].” RP at 32. DeLisle stated that he had, through an e-mail sent by a third person, advised

Trejo that he was not receiving his medications while in the jail.

       DeLisle admitted that he had pleaded guilty to other crimes in the past, but he asserted that

his poor memory prevented him from recalling what happened when he entered those pleas. 4 He



3
 DeLisle later clarified that one of his conditions was “an axis work condition [that] can shut [him]
down when it comes to legal proceedings, mentally.” RP at 41. He asserted that this reaction is
amplified when he is not on his medication.
4
 He later clarified that he had not previously been convicted of a felony or participated in a change
of plea hearing in superior court.

                                                 5
No. 46330-0-II


also asserted that he could not remember telling the superior court that he had read the plea, talked

to counsel, or understood his rights; nor could he recall the superior court advising him that he

could ask questions. When the State later asked DeLisle if he had lied when he told the superior

court that he had read the plea statement, DeLisle responded that he was just repeating what was

being said because of his mental health issues. He stated, “I don’t really feel I was lying. I was

more in a state of shock and just going through the motions.” RP at 43. But DeLisle also testified

on redirect that he did not “really” remember the change of plea hearing.

                            B. TREJO’S CRR 7.8 HEARING TESTIMONY

       Trejo testified that he began representing DeLisle in a civil forfeiture action stemming from

the attempted eluding charge and that DeLisle later retained him as substitute counsel on the

criminal matter. Trejo met with DeLisle four times when DeLisle was out of custody and four

more times in the jail. They also had telephone contact and e-mail contact through a third party.

       Trejo stated that at DeLisle’s request, he had attempted to negotiate a plea on the criminal

charge that would eliminate the forfeiture action, but the State refused. Trejo further testified that

DeLisle also sought a plea that would reduce his sentence and that they were able to negotiate a

plea that was 30 days lower than what his previous counsel had negotiated. DeLisle also wanted

work release, which they were able to obtain. They had also discussed mental health court, but

there was no such program available in the Clark County Superior Court.

       Trejo further stated that he told DeLisle that, based on DeLisle’s statements to him, DeLisle

“could not testify” and Trejo did not see a viable defense given the evidence. RP at 57. Trejo

denied DeLisle telling him about a possible alibi or giving him a list of possible witnesses who

were not named in the police report. Trejo asserted that the only possible defense DeLisle raised


                                                  6
No. 46330-0-II


was his claim that he had been given authority by a local officer to drive an informant around town,

but Trejo was unable to find evidence to support this claim.

        As to DeLisle’s mental health issues, Trejo testified that he knew about DeLisle’s mental

health issues before the plea hearing and was aware that he was being treated by a psychologist.

Trejo admitted that he did not talk to DeLisle’s psychologist, but he asserted that he did not observe

anything during his representation suggesting DeLisle was having problems, and DeLisle

understood what they talked about, understood the court, and “did not hesitate to plead guilty.”

RP at 82. Trejo stated that he believed DeLisle understood what was happening when he entered

his plea, that DeLisle interacted appropriately and rationally during their communications, that he

appeared to understand the proceedings, and that he never said he was having problems. Trejo

also testified that although he had previously requested mental health evaluations for two clients,

he did not do so here because DeLisle did not appear incompetent. Trejo stated that he would not

have allowed DeLisle to go forward with the plea if he thought there were any competency issues.

On cross-examination, Trejo testified that he was not aware that the jail staff had reported that

DeLisle has been experiencing auditory hallucinations as late as April 3 or that DeLisle had

suffered seizures in jail.

        After Trejo’s testimony, DeLisle’s counsel advised the court that they were waiting for a

psychological evaluation and should be able to obtain it in two weeks. The superior court had the

parties schedule a follow-up hearing for a later date.

                       IV. MAY 2, 2014 COMPETENCY AND CRR 7.8 HEARING

        On May 2, 2014, this case came before a different judge. When the superior court asked

the parties to clarify whether they were there to address the threshold issue of whether there needed


                                                  7
No. 46330-0-II


to be a competency hearing under chapter 10.77 RCW or whether that threshold had already been

established at a previous hearing,5 both parties agreed that this hearing was to conduct a full

competency hearing.6

          DeLisle submitted a psychological evaluation from psychiatrist Dr. Jerry K. Larsen.

Dr. Larsen also testified for DeLisle.

          Dr. Larsen’s evaluation stated that as early as 2005, DeLisle had suffered from “Organic

Brain Syndrome (psychosis secondary to Traumatic Brain Injury)” seizures following a closed

head injury suffered in 2003, PTSD, and paranoid delusions related to a fear that the police were

trying to kill him. CP at 102-03. Dr. Larsen’s report stated that he relied on several records, but

only two of these records, a hospital report from 2005 that described DeLisle’s conditions and

some “Hotmail print messages,” specifically referred to any mental health or medication issues.

CP at 103.

          Dr. Larsen administered a “mini-mental status exam” that suggested DeLisle suffered from

“some kind of cognitive deficit,” which Dr. Larsen opined was a “trauma induced mild dementia.”

RP at 102. Dr. Larsen also administered “a standardized test to evaluate possible exaggeration or

malingering.” CP at 104. DeLisle’s score suggested malingering or exaggeration, but Dr. Larsen

stated that this result “may also be consistent with an organic Brain Syndrome, Traumatic in type,

complicated by seizure activity.” CP at 105. An intelligence quotient (IQ) assessment showed




5
 Although the record suggests that there was a hearing after the September 18, 2013 hearing but
before May 2, 2014, the record from that hearing is not part of the record on appeal.
6
    The State waived its right to obtain its own independent evaluation of DeLisle.

                                                  8
No. 46330-0-II


that DeLisle’s IQ was in the low/normal range “with some significant impairment, particularly in

recent and to a lesser extent in remote memory.” RP at 103.

       Dr. Larsen also reviewed the jail medical records, which showed that prior to the plea

hearing, DeLisle was taking three medications:          Depakote, Lisinopril (a blood pressure

medication), and Risperdal (an antipsychotic). Dr. Larsen testified that Risperdal can cause

seizures and is prescribed for conditions such as paranoia, visual or auditory hallucinations, and

schizophrenia. The prison notes showed that DeLisle was not taking his medications regularly,

and Dr. Larsen opined that this could have led to the grand mal seizure DeLisle suffered two days

before the change of plea hearing.7 Dr. Larsen testified that such seizures can cause confusion that

can last hours or days and, during that time, a person could still demonstrate organized thinking in

some areas.

       Dr. Larsen stated that DeLisle reported that the jail had refused to give him his medication,

that he was fearful and paranoid, that he had experienced seizures two days before the change of

plea hearing, and that he was forced to plead guilty for something he did not do. But DeLisle also

asserted that he did not even remember “what happened.” CP at 111. When DeLisle’s counsel

asked Dr. Larsen whether he had an opinion about DeLisle’s competency when he entered his plea,

Dr. Larsen testified,

       Based on the fact that he was not taking or improperly medicated, he was given an
       anti-psychotic which he may or may not have been taking and obviously the anti-


7
  Although Dr. Larsen stated that DeLisle had suffered a seizure two days before the plea hearing,
the jail reports DeLisle submitted with his motion to withdraw his plea do not show that he suffered
a seizure on April 16, 2012; they show that he was only “concerned about [blood pressure] and
seizures” because he was having trouble staying compliant with his medications. CP at 51. The
jail reports show the last seizure before the plea hearing occurred eight days before the plea
hearing.

                                                 9
No. 46330-0-II


       seizure medication was either wrong or he was not taking it well I think it’s more
       likely than not that at the time the plea was offered he was fearful, he was certainly
       paranoid and I don’t think he was competent to clearly understand what was being
       signed.

RP at 106-07. Similarly, in his report, Dr. Larsen opined, “Given the above situation in my opinion

he was unable to rationally plead guilty.” CP at 111.

       On cross-examination, Dr. Larsen testified that he did not review the jail records before

concluding that DeLisle had been incompetent to enter his plea. But Dr. Larsen stated that he had

since reviewed the jail records and that they did not change his opinion. Dr. Larsen admitted,

however, that he had relied on DeLisle’s self-reported statements during the evaluation rather than

the jail records and that some of DeLisle’s recollections could have been incorrect.

       Dr. Larsen also admitted that he had not reviewed a tape of the change of plea hearing or

read a transcript of that proceeding. He testified that viewing the tape could have influenced his

opinion.

                            V. SUPERIOR COURT’S CRR 7.8 DECISION

       The superior court denied the CrR 7.8 motion and issued written findings of fact and

conclusions of law. The superior court ruled that DeLisle failed to produce substantial evidence

that he was incompetent and did not establish that he received ineffective assistance of counsel. It

did not, however, expressly state whether the May 2, 2014 hearing was a preliminary hearing or a

full competency hearing.

       The superior court found that Trejo had testified that (1) DeLisle did not advise him of a

possible alibi, (2) it was “fully” DeLisle’s decision to enter the guilty plea, (3) Trejo was aware

that DeLisle had some mental health issues stemming from an earlier closed head injury, but he

did not observe DeLisle having any psychosis or “issues with understanding,” and (4) Trejo was

                                                10
No. 46330-0-II


aware of the mental health evaluation process because he had clients evaluated for competency in

the past, but “[h]e did not have any reason to believe [DeLisle] was incompetent.” CP at 118. But

the superior court noted that any discussion during sentencing about alternative confinement was

focused more on accommodating DeLisle and helping him keep his job than competency.

       In its conclusions of law, the superior court addressed the basic standards for a CrR 7.8

motion and described DeLisle’s arguments. As to the incompetency claim, the superior court

entered the following conclusions:

       6.     Incompetency:
              a.    A claim that a defendant lacks the competence to plead guilty is
                    equivalent to claiming that his plea was not voluntary. State v.
                    Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001)[, abrogated on
                    other grounds by State v. Sisouvanh, 175 Wn.2d 607, 622 n.3, 290
                    P.3d 942 (2012)].
              b.    Upon a motion to withdraw a guilty plea on the grounds of
                    incompetency, a defendant must show substantial evidence of that
                    incompetency. See Marshall, 144 Wn.2d at 270-73.
              c.    A defendant must show he was incompetent when he entered his
                    guilty plea because a mental defect, disease and/or medications
                    prevented him from having the capacity to understand the nature of
                    the proceedings against him, or to assist in his defense. RCW
                    10.77.010(5).
              d.    Self-serving statements by the defendant are not sufficient to
                    support a finding of substantial evidence under CrR 7.8.
              e.    The Court is not satisfied that [DeLisle] has presented substantial
                    evidence of his incompetency.
              f.    The Court finds Dr. Larsen’s testimony was unpersuasive, there
                    were inconsistencies in what [DeLisle] told him, and Dr. Larsen did
                    not rely upon outside sources of information, like a video of the
                    guilty plea, in coming to his conclusion about [DeLisle’s] state of
                    mind in April 2011 [sic].
              g.    [DeLisle] has not met the burden of showing by substantial evidence
                    that he was incompetent at the time of his guilty plea, and he has not
                    shown an extraordinary circumstance that would warrant
                    withdrawal of his guilty plea on the grounds of incompetency.

CP at 120-21 (emphasis added).


                                               11
No. 46330-0-II


       As to the ineffective assistance of counsel claims, the superior court stated the test for

ineffective assistance of counsel and entered the following conclusions of law:

       7.      Ineffective Assistance of Counsel:
               ....
               c.      George Trejo was not ineffective in his representation of [DeLisle]
               as:
                       i.      He went over the plea document with [DeLisle],
                       ii.     There was no evidence presented to him that would have
                               supported a defense of alibi or that he was driving an
                               informant to the police,
                       iii.    There was no evidence of incompetency presented to Mr.
                               Trejo;
                       iv.     He would have brought a motion pursuant to RCW 10.77 to
                               have [DeLisle] evaluated if he felt it was appropriate;
                       ....
                       vi.     [DeLisle] never gave George Trejo any reason to believe he
                               was incompetent or that he did not understand the
                               proceedings.
               d.      This Court has watched the recording of the guilty plea hearing held
                       on April 18, 2011 [sic], with both audio and video and concludes it
                       is clear that [DeLisle] understood what he was doing that day in
                       pleading guilty to the charge.
               e.      There was no deficient representation, George Trejo effectively
                       represented [DeLisle] in this case.
       8.      [DeLisle] has failed to meet his burden of showing substantial evidence to
               support either his claim of incompetency or his claim that his attorney was
               ineffective.
       9.      [DeLisle] has not shown any extraordinary circumstance which warrants
               withdrawal of his guilty plea.
       10.     [DeLisle’s] motion to withdraw his guilty plea pursuant to CrR 7.8 is
               denied.

       CP at 121-23 (emphasis added).

       DeLisle appeals the denial of the CrR 7.8 motion.

                                            ANALYSIS

       DeLisle argues that the superior court erred in denying his CrR 7.8 motion because he

established that (1) he was not competent to enter the plea, (2) Trejo provided ineffective assistance


                                                 12
No. 46330-0-II


of counsel by failing to interview potential alibi witnesses, and (3) Trejo provided ineffective

assistance of counsel by failing to investigate whether DeLisle’s mental health issues rendered him

incompetent to enter a guilty plea. We hold that the superior court erred regarding its competence

determination because it applied the wrong standard of proof but that it did not err in ruling that

DeLisle failed to establish ineffective assistance of counsel.

                        I. CRR 7.8 STANDARDS AND STANDARD OF REVIEW

       CrR 7.8 governs post-judgment motions to withdraw guilty pleas. CrR 4.2(f). Under CrR

4.2(f), the superior court must allow a defendant to withdraw his plea “whenever it appears that

the withdrawal is necessary to correct a manifest injustice.” But when a defendant moves to

withdraw his guilty plea after judgment, the motion must meet the requirements of both CrR 4.2(f)

and CrR 7.8(b). CrR 4.2(f); State v. Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012).

       We review the superior court’s decision on a motion to withdraw a guilty plea for an abuse

of discretion. Lamb, 175 Wn.2d at 127. The superior court abuses its discretion when it exercises

its discretion in a manifestly unreasonable manner or when the exercise of discretion is based on

untenable grounds or reasons. State v. Aguirre, 73 Wn. App. 682, 686, 871 P.2d 616 (1994).

       A defendant can establish a manifest injustice under CrR 4.2(f) by showing that the plea

was not voluntary or that trial counsel was ineffective.8 State v. DeClue, 157 Wn. App. 787, 792,

239 P.3d 377 (2010) (citing Marshall, 144 Wn.2d at 281). A defendant’s claim that he lacked

competence to plead guilty is equivalent to claiming an involuntary plea. Marshall, 144 Wn.2d




8
  A defendant may also establish manifest injustice by showing that he did not ratify the plea or
that the plea agreement was not kept, but these two grounds are not relevant here. State v. DeClue,
157 Wn. App. 787, 792, 239 P.3d 377 (2010).

                                                 13
No. 46330-0-II


at 281. “The defendant’s burden when seeking to withdraw a plea is demanding because ample

safeguards exist to protect the defendant’s rights before the trial court accepts the plea.” DeClue,

157 Wn. App. at 792 (citing State v. Taylor, 83 Wn.2d 594, 506-07, 521 P.2d 699 (1974)).

       To obtain relief under CrR 7.8(b)(5), DeLisle must show extraordinary circumstances not

covered by any other section of CrR 7.8. Aguirre, 73 Wn. App. at 688. “‘Extraordinary

circumstances’ must relate to ‘irregularities which are extraneous to the action of the court or go

to the question of the regularity of its proceedings.’” Aguirre, 73 Wn. App. at 688 (internal

quotation marks omitted) (quoting Shum v. Dep’t of Labor & Indus., 63 Wn. App. 405, 408,

819 P.2d 399 (1991)). Our Supreme Court “has said that a conviction should be vacated only in

those limited circumstances, ‘where the interests of justice most urgently require.’” Aguirre,

73 Wn. App. at 688 (quoting State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989)).

       We review the written findings of fact on a CrR 7.8 motion for substantial evidence. State

v. Ieng, 87 Wn. App. 873, 877, 942 P .2d 1091 (1997). Substantial evidence is a sufficient quantity

of evidence to persuade a rational, fair-minded person that a finding is true. State v. Schultz,

170 Wn.2d 746, 753, 248 P.3d 484 (2011). We defer to the trier of fact on credibility issues. State

v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Unchallenged findings of fact are verities

on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review challenges to

conclusions of law de novo. See State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2005).

                              II. CHALLENGES TO FINDINGS OF FACT

       We first examine DeLisle’s challenges to the findings of fact. DeLisle assigns error to

findings of fact 8, 12(g), and 12(k).




                                                14
No. 46330-0-II


        Finding of fact 8 states, “The discussion during sentencing regarding alternative

confinement was more about accommodation than competency. The questions regarding his work

was about helping [DeLisle] keep his job, and was not about competency. The [trial] court granted

[DeLisle’s] request to do work release.” CP at 116-17. DeLisle does not present any argument

related to this assignment of error; thus, we are not required to address it. Cowiche Canyon

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). But even if this issue had been

properly briefed, the record clearly supports this finding because the only time during the April

18, 2012 hearing that Trejo mentioned DeLisle’s mental health was in the context of arguing for

electronic home monitoring rather than traditional confinement or work release. Trejo never

argued that DeLisle was incompetent to enter the plea. And the superior court’s and State’s brief

comments about DeLisle’s work were in the context of whether he should be granted work release.

        Finding of fact 12(g) states, “It was fully [DeLisle’s] decision to enter a guilty plea.” CP

at 118. But again, DeLisle does not present argument specifically related to this assignment of

error. Although we are not required to reach this issue because DeLisle fails to support the

assignment of error with argument, Cowiche Canyon Conservancy, 118 Wn.2d at 809, we note

that this finding is supported by Trejo’s testimony that it was DeLisle’s own decision to enter the

plea.

        Finding of fact 12(k) states, “George Trejo is aware of RCW 10.77 and the process for

having a client evaluated; he has had clients evaluated for competency in the past. He did not have

any reason to believe [DeLisle] was incompetent.” CP at 118. Again, although we are not required

to reach this issue because DeLisle fails to support the assignment of error with argument, Cowiche




                                                15
No. 46330-0-II


Canyon Conservancy, 118 Wn.2d at 809, we note that this was also a finding describing Trejo’s

testimony, and Trejo testified specifically to these facts.

                                          III. COMPETENCY

       We next address DeLisle’s argument that the superior court erred when it concluded that

he failed to establish he was incompetent to enter his guilty plea. He contends that (1) the May 2,

2014 hearing was a competency hearing, so the burden of proof was a preponderance of the

evidence, and (2) the superior court abused its discretion when it applied the substantial evidence

standard. The State responds that the superior court was not obligated to hold a formal competency

hearing because it correctly found that DeLisle did not present substantial evidence of

incompetence. We agree with DeLisle that the May 2, 2014 hearing was a competency hearing

and that the preponderance of the evidence standard applied.

       When a defendant brings a motion to withdraw his plea based on incompetency, a formal

competency hearing under RCW 10.77.060 is required “whenever a legitimate question of

competency arises.” Marshall, 144 Wn.2d at 279. If a defendant supports his motion to withdraw

a guilty plea with substantial evidence of incompetency, the court must either grant the motion to

withdraw the plea or hold a formal competency hearing under RCW 10.77.060. Marshall,

144 Wn.2d at 281. The substantial evidence standard refers to a burden of production. State v.

Paul, 64 Wn. App. 801, 806, 828 P.2d 594 (1992). “The function of the burden of production is

to identify whether there is an issue of fact to be submitted to the trier of fact for decision” and

relates to the quantity of evidence rather than persuasive quality of the evidence. Paul, 64 Wn.

App. at 806.




                                                  16
No. 46330-0-II


       If the defendant meets the burden of production, a competency hearing is required.

Marshall, 144 Wn.2d at 279. During the competency hearing, the party challenging competency

has the burden of proving incompetency by a preponderance of the evidence. State v. Coley,

180 Wn.2d 543, 554-55, 326 P.3d 702 (2014). The preponderance of the evidence standard is a

burden of persuasion, and its purpose “is to define how certain the trier of fact must be before

resolving an issue of fact in favor of the party having the burden of proof.” Paul, 64 Wn. App. at

806-07. “‘[E]vidence preponderates when it is more convincing to the trier than the opposing

evidence,’ or when the trier of fact is convinced that it is more probable than not the fact in issue

is true.” Paul, 64 Wn. App. at 807 (alteration in original) (quoting F. Cleary, McCormick on

Evidence, § 339, at 956-64 (3d ed. 1984)); see also State v. Otis, 151 Wn. App. 572, 578, 213 P.3d

613 (2009). “[E]vidence is said to preponderate when the trial court reasonably finds it to be the

most credible.” Paul, 64 Wn. App. at 807 (citing Annest v. Annest, 49 Wn.2d 62, 298 P.2d 483

(1956)).

       The State argues that the May 2, 2014 hearing was a preliminary hearing (in which the

substantial evidence standard applied) and not a full competency hearing (in which the burden of

proof was by a preponderance of the evidence). However, the trial court discussed this issue with

the parties at the start of the May 2, 2014 hearing, and the parties agreed that the hearing was a full

competency hearing. Accordingly, the superior court was required to apply the preponderance of

the evidence standard of proof.

       Here, the superior court’s conclusions of law repeatedly state that it was determining

whether DeLisle had shown substantial evidence that he was incompetent. Because the superior

court applied the incorrect legal standard of substantial evidence, it abused its discretion in denying


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No. 46330-0-II


DeLisle’s CrR 7.8 motion insofar as it related to his incompetency claim. Accordingly, we vacate

the superior court’s denial of DeLisle’s motion to withdraw his plea based on incompetency and

remand for the same court to apply the correct legal standard of preponderance of the evidence to

its existing findings of fact. See Coley, 180 Wn.2d at 554-55 (the party challenging competency

has the burden of proving incompetency by a preponderance of the evidence).

                              IV. INEFFECTIVE ASSISTANCE OF COUNSEL

          DeLisle next argues that the superior court erred in rejecting his ineffective assistance of

counsel claims. We disagree.

                                        A. LEGAL PRINCIPLES

          As noted above, we review the superior court’s denial of a CrR 7.8 motion to withdraw a

guilty plea based on an ineffective assistance of counsel claim for abuse of discretion. Lamb,

175 Wn.2d at 127. A defendant may obtain relief from judgment based on ineffective assistance

of counsel under CrR 7.8(b)(5). State v. Martinez, 161 Wn. App. 436, 440-41, 253 P.3d 445

(2011).

          To establish ineffective assistance of counsel, DeLisle had to show that (1) Trejo’s

performance was deficient, and (2) the alleged deficient performance was prejudicial. State v.

Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); see also Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish prejudice, DeLisle had to show

a reasonable probability that the result of the proceeding would have been different absent the

deficient performance. Grier, 171 Wn.2d at 34.




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                    B. FAILURE TO INTERVIEW POTENTIAL ALIBI WITNESSES

       DeLisle contends that Trejo provided ineffective assistance because he failed to investigate

or interview possible alibi witnesses. This argument fails on two grounds.

       First, the superior court found that DeLisle did not tell Trejo about any evidence that would

have supported an alibi defense.9 Trejo’s testimony that DeLisle did not provide him with a list

of possible witnesses or tell him about anyone he should interview who was not named in the

police report supports this finding. Although DeLisle testified otherwise, the superior court’s

finding demonstrates that it found Trejo’s testimony more credible, and we will not review this

credibility determination. Camarillo, 115 Wn.2d at 71. Thus, because Trejo did not know about

a possible alibi defense or witnesses who might support this defense, DeLisle fails to show that

Trejo’s failure to investigate or interview potential alibi witnesses amounted to deficient

performance.

       Second, even assuming DeLisle told Trejo about possible alibi witnesses and Trejo failed

to interview these individuals, DeLisle did not present anything to the superior court establishing

who these witnesses were, whether they would have testified if Trejo had contacted them, or what

they would have testified about. Thus, DeLisle did not present evidence from which the superior

court could have determined that the result of the proceedings would have been different had Trejo

interviewed these potential witnesses.     Without such evidence, DeLisle failed to establish




9
  Although the superior court labeled this finding as a conclusion of law, it is more properly
characterized as a finding of fact and we review it as such. Willener v. Sweeting, 107 Wn.2d 388,
394, 730 P.2d 45 (1986) (findings of fact erroneously labeled as conclusions of law are reviewed
as findings of fact).

                                                19
No. 46330-0-II


prejudice. Accordingly, the superior court did not err in denying DeLisle’s CrR 7.8 motion based

on this ground.

                           C. FAILURE TO INVESTIGATE COMPETENCY

       DeLisle also argues that the superior court erred in rejecting his ineffective assistance claim

based on Trejo’s alleged failure to investigate DeLisle’s mental health issues before DeLisle

pleaded guilty. He contends that because Trejo knew about DeLisle’s mental health problems and

knew that he was not receiving all of his medications in the jail, Trejo’s failure to investigate

further by speaking to DeLisle’s psychologist, treating doctor, or jail medical staff to ensure

DeLisle was competent to enter the plea was deficient performance. We disagree.

       To establish deficient performance on this ground, DeLisle had to show, based on the

record before the superior court, that Trejo knew or should have known that DeLisle’s mental

health and medication issues potentially affected his ability to enter his guilty plea. Trejo, who

had prior experience with clients who required mental health evaluations, testified that although

he was aware DeLisle had mental health issues and argued for a sentence to accommodate these

issues, DeLisle gave him no reason to doubt his capacity to understand the proceedings during his

representation. Therefore, the superior court could have reasonably found that Trejo had no reason

to investigate DeLisle’s competency and his failure to do so does not amount to deficient

performance. Accordingly, the superior court did not err in denying DeLisle’s CrR 7.8 motion

based on this ground.

       We affirm the superior court’s denial of DeLisle’s ineffective assistance of counsel claim.

But we reverse its denial of DeLisle’s incompetency claim and remand for the superior court to




                                                 20
No. 46330-0-II


apply the correct legal standard, preponderance of the evidence, to the existing findings of fact on

the incompetency claim.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                     SUTTON, J.
 We concur:



 MAXA, P.J.




 LEE, J.




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