                                                                         FILED
                                                                      JUNE 11, 2020
                                                              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. 36365-1-III
                    Respondent,             )
                                            )
      v.                                    )
                                            )
JESSICA L. VAZQUEZ,                         )         UNPUBLISHED OPINION
                                            )
                    Appellant.              )

      KORSMO, J. — Jessica Vazquez appeals from three drug-related convictions

claiming ineffective assistance of counsel and errors in the judgment and sentence. We

affirm the convictions and reverse some of the challenged sentence conditions.

                                        FACTS

      Pursuant to a search warrant based on an informant’s tip, Asotin County deputy

sheriffs searched a “drug house” occupied by several people. The deputies discovered

methamphetamine in Ms. Vazquez’s bedroom. Charges of maintaining a drug dwelling,

possession of methamphetamine with intent to deliver, and possession of drug

paraphernalia were filed.
No. 36365-1-III
State v. Vazquez


       The prosecutor offered a plea agreement calling for a 24 month sentence. Ms.

Vazquez indicated that she would accept the offer if the sentencing could be delayed two

weeks to allow her to visit with her family. Having made the offer in order to free jail

space, the prosecutor objected to a continuance; the trial judge declined to continue

sentencing. Ms. Vazquez rejected the agreement and proceeded to jury trial.

       Ms. Vazquez testified in her own behalf that she lived in the house and helped the

home owner control matters. While Ms. Vazquez admitted to extensive history of drug

use, she denied that the methamphetamine belonged to her. She claimed that a binder

indicating drug sales actually tracked money people pledged to help her return to Idaho

because “I don’t sell enough drugs for people to owe me money.” During cross-

examination, the State elicited Ms. Vazquez’s complete criminal history, including prior

controlled substance convictions.

       Defense counsel’s theme throughout trial was that Ms. Vazquez was the wrong

target of the law enforcement investigation. The jury convicted Ms. Vazquez on all

charges. The court imposed a standard range sentence and imposed financial obligations

that included a $200 criminal filing fee, a drug fine, methamphetamine cleanup fee, lab

fee, and DNA testing fee. The court also required HIV testing.

       Ms. Vazquez timely appealed to this court. A panel considered her case without

hearing argument.



                                             2
No. 36365-1-III
State v. Vazquez


                                        ANALYSIS

       We first consider Ms. Vazquez’s argument that her trial attorney provided

ineffective assistance. We then consider her sentence-related arguments.

       Ineffective Assistance Argument

       Ms. Vazquez challenges her defense attorney’s conduct before, during, and after

trial. She claims that counsel erred by failing to negotiate a favorable plea bargain, that

counsel had personal issues, counsel should have objected to evidence during trial, and

should have challenged the legal financial obligations (LFOs).1 With the exception of the

LFO challenges that are considered independently, we address each issue in turn.

       This issue is reviewed in accordance with well settled law. Counsel's failure to

live up to the standards of the profession will require a new trial when the client has been

prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d

1251 (1995). Courts apply a two-pronged test: whether or not (1) counsel’s performance

failed to meet a standard of reasonableness and (2) actual prejudice resulted from

counsel’s failures. Strickland v. Washington, 466 U.S. 668, 690-692, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). When a claim can be resolved on one ground, a reviewing court

need not consider both prongs. Id. at 697; State v. Foster, 140 Wn. App. 266, 273, 166



       1
         We do not separately address Ms. Vazquez’s cumulative error claim because we
necessarily review the entirety of counsel’s performance when evaluating ineffective
assistance claims.

                                              3
No. 36365-1-III
State v. Vazquez


P.3d 726 (2007). This claim requires we review counsel’s performance as a whole to

ascertain whether counsel rendered effective assistance. State v. Ciskie, 110 Wn.2d 263,

284, 751 P.2d 1165 (1988). Review is highly deferential and we engage in the

presumption that counsel was competent; moreover, counsel's strategic or tactical choices

are not a basis for finding error. Strickland, 466 U.S. at 689-691.

       Ms. Vazquez does not provide any authority suggesting that counsel is ineffective

for failing to negotiate a plea agreement, let alone a superior plea deal with desired

conditions. Counsel has a duty to provide effective assistance during plea bargaining,

which constitutes providing meaningful advice about the relevant consequences. State v.

James, 48 Wn. App. 353, 362, 739 P.2d 1161 (1987). Here, counsel obtained an offer

that apparently was acceptable to Ms. Vazquez, but she ultimately rejected it for a

collateral reason. No evidence suggests Ms. Vazquez received improper or ineffective

plea advice. This argument is utterly lacking factual or legal support.

       Only evidence in the trial court record can be considered on appeal. McFarland,

127 Wn.2d at 337-338 & n.5. While there is a passing reference in the record to personal

challenges experienced by Ms. Vazquez’s defense attorney, nothing in the record

suggests counsel was impaired at trial. Claims that defense counsel was inattentive or

indisposed at trial require evidence of actual prejudice from the record. Matter of Lui,

188 Wn.2d 525, 540-542, 397 P.3d 90 (2017). This issue, too, utterly lacks factual

support in the record.

                                              4
No. 36365-1-III
State v. Vazquez


       The remainder of the challenges assert that counsel should have objected to

questions asked of her client or challenged some of the evidence offered by the

prosecutor. We lump these challenges together because, individually and collectively,

they fail to overcome the presumption that counsel performed effectively.

       As the Strickland court noted, no two lawyers would try a case in the same

manner. 466 U.S. at 689. Accordingly, discerning error from an undeveloped appellate

record is largely a fruitless undertaking because the decision to object is a “classic

example of trial tactics.” See State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662

(1989). “Only in egregious circumstances, on testimony central to the State’s case, will

the failure to object constitute incompetence of counsel.” Id. A reviewing court

presumes that a “failure to object was the product of legitimate trial strategy or tactics,

and the onus is on the defendant to rebut this presumption.” State v. Johnston, 143 Wn.

App. 1, 20, 177 P.3d 1127 (2007) (citing cases). Defense counsel may also make a

reasonable tactical decision not to object to inadmissible evidence when such an

objection may draw undesired attention or impair a defense strategy. State v. Gladden,

116 Wn. App. 561, 568, 66 P.3d 1095 (2003).

       Most of Ms. Vazquez’s contentions present evidentiary arguments that in some

contexts could have succeeded if raised at trial due to the discretion afforded the trial




                                              5
No. 36365-1-III
State v. Vazquez


judge over the admission of evidence.2 State v. Clark, 187 Wn.2d 641, 648-649, 389

P.3d 462 (2017). However, none of these potential claims established error in the context

of this trial. Ms. Vazquez was arrested inside of a house full of drug users with ample

evidence of drug use throughout the building. Trial counsel’s theory of the case played to

those facts—Ms. Vazquez was just another user rather than a dealer.

       Defense counsel presented a consistent theme at trial that Ms. Vazquez was a

victim of police “tunnel vision” that ignored more culpable individuals. Counsel

developed a defense theory to serve her client consistent with professional standards.

Under the circumstances, the appellate claim rings hollow. Ms. Vazquez did not

establish either that her counsel erred or that her trial was rendered unfair by counsel’s

mistakes. Thus, she has not proved her claim of ineffective assistance of counsel.

       Sentencing Contentions

       Ms. Vazquez challenges the imposition at sentencing of the criminal filing fee,

various drug fines mentioned below, the DNA testing fee, and a HIV testing requirement.

We grant relief on most of her arguments.

       A defendant is subject to a mandatory $2,000 fine for a subsequent drug offense

unless the court finds the defendant indigent. RCW 69.50.430(2). Methamphetamine


       2
        E.g., State v. Warren, 134 Wn. App. 44, 65, 138 P.3d 1081 (2006) (admission of
prior convictions otherwise excluded by ER 609); State v. Bourgeois, 133 Wn.2d 389,
402-403, 945 P.2d 1120 (1997) (prosecutor may pre-empt credibility challenge to
witness).

                                              6
No. 36365-1-III
State v. Vazquez


possession under RCW 69.50.401(2) requires a mandatory cleanup fine when the

quantity exceeds two kilograms, but it is otherwise discretionary. State v. Corona, 164

Wn. App. 76, 78-80, 261 P.3d 680 (2011). Crime laboratory fees may be suspended if

the defendant is indigent. RCW 43.43.690(1). Trial courts may not impose discretionary

LFOs on indigent defendants, including the $200 criminal filing fee. State v. Ramirez,

191 Wn.2d 732, 739, 426 P.3d 714 (2018).

      The trial court found that Ms. Vazquez was indigent. Neither party disputes the

$200 filing fee must be waived. The trial court erroneously treated the drug fine, crime

laboratory fee, and methamphetamine cleanup fee3 as mandatory. Because Ms. Vazquez

is indigent, those fees should have been waived. The court found no evidence that Ms.

Vazquez was previously ordered to provide DNA; that fee was properly imposed.

      The trial court may order HIV testing if it “determines at the time of conviction

that the related drug offense is one associated with the use of hypodermic needles.”

RCW 70.24.340(1)(c). The court must enter an appropriate finding to establish whether

the defendant used or intended to use needles as part of the offense. State v. Mercado,

181 Wn. App. 624, 635-636, 326 P.3d 154 (2014).




      3
         Ms. Vazquez possessed 8.2 ounces of methamphetamine, which is below the
statutory requirement of 2 kilograms.

                                            7
No. 36365-1-III
State v. Vazquez


       The record does not establish that Ms. Vazquez used needles as part of this

offense. Her testimony only described smoking methamphetamine. Without an

appropriate basis for the finding, we reverse the HIV testing order.

       Affirmed and remanded to strike the noted provisions from the judgment and

sentence.

       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.

                                             _________________________________
                                                     Korsmo, A.C.J.

WE CONCUR:



_________________________________
      Lawrence-Berrey, J.



_________________________________
      Siddoway, J.




                                             8
