       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                           No. 78285-1-1
                         Respondent,
                                           DIVISION ONE
                  V.

JESSE VIRGIL GALLAGHER,                    UNPUBLISHED OPINION

                        Appellant.
                                           FILED: April 15, 2019


       PER CURIAM-Jesse Gallagher challenges legal financial obligations

(LF0s) imposed following his guilty pleas to possession of a stolen vehicle, first

degree unlawful possession of a firearm, and possession of a controlled

substance. Gallagher contends, and the State concedes, that the $200 criminal

filing fee and $100 DNA (deoxyribonucleic acid) collection fee should be stricken

from his judgment and sentence due to his indigence, previous DNA collection,

amendments to ROW 36.18.020(2)(h) and ROW 43.43.7541, and State v.

Ramirez, 191 Wn.2d 732, 746-50,426 P.3d 714(2018). We accept the State's

concessions and remand for the trial court to strike the filing and DNA collection

fees from the judgment and sentence.

       In his pro se statement of additional grounds for review (SAG), Gallagher

asserts three arguments, which we address in turn.
No. 78285-1-1/2


       First, Gallagher argues that the trial court denied his request for a prison

based DOSA (Drug Offender Sentencing Alternative) without a meaningful

inquiry. Generally, a trial court's decision whether to grant a DOSA is not

reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183(2005).

Exceptions include refusing to exercise discretion at all or relying on an

impermissible basis in making the decision. State v. Garcia-Martinez, 88 Wn.

App. 322, 330, 944 P.2d 1104 (1997). "While no defendant is entitled to an

exceptional sentence below the standard range; every defendant is entitled to

ask the trial court to consider such a sentence and to have the alternative

actually considered." Grayson, 154 Wn.2d at 342. A trial court's failure to

meaningfully consider a sentencing alternative is reversible error. Grayson, 154

Wn.2d at 342.

       Here, the record shows that the trial court considered Gallagher's age at

sentencing (i.e., age 32), his criminal history, and his inability to comply with the

terms of prior community custody conditions. The trial court also considered

Gallagher's response to a question during sentencing that was so strong and

aggressive that "the law enforcement officers in th[e] courtroom all stood up and

all came forward towards [him] in case they needed to control [Gallagher]." After

considering all of the information before it, the court denied Gallagher's request

for a DOSA. The trial court meaningfully considered Gallagher's request and did

not categorically reject it.

       Second, Gallagher contends his plea was neither knowing nor voluntary

because the State committed prosecutorial misconduct by withholding material



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No. 78285-1-1/3


evidence favorable to him. As factual support for this argument, Gallagher points

to a page in the State's response to his pretrial "Motion to Suppress," which

purportedly references a confidential informant who had tipped law enforcement

that Gallagher possessed a firearm. However, the State's pleading allegedly

containing this language is not a part of the record on appeal. We do not

consider evidence outside the record on appeal. State v. McFarland, 127 Wn.2d

322, 335, 899 P.2d 1251 (1995). Accordingly, Gallagher's argument fails.

       Gallagher last contends his defense counsel was ineffective for failing to

investigate and discover the above-mentioned evidence allegedly withheld by the

State. A manifest injustice allowing a defendant to withdraw his guilty plea exists

where defense counsel failed to provide constitutionally effective assistance.

State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377(2010). To establish

ineffective assistance of counsel, Gallagher must show both that(1) his counsel's

performance was deficient, and (2) the deficient performance prejudiced him.

State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260(2011)(quoting State v.

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). "In a plea bargaining

context, 'effective assistance of counsel' merely requires that counsel 'actually

and substantially [assist] his [or her] client in deciding whether to plead guilty."

State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683(1984)(first alteration in

original)(quoting State v. Cameron, 30 Wn. App. 229, 232,633 P.2d 901

(1981)). To demonstrate prejudice in the plea bargain context, Gallagher must

show a reasonable probability that he would not have pleaded guilty but for his




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No. 78285-1-1/4


defense counsel's deficient performance. In re Pers. Restraint of Riley, 122

Wn.2d 772, 780-81, 863 P.2d 554 (1993).

       Other than his own words, Gallagher fails to cite to any evidence in the

record supporting his contention that his defense counsel was ineffective. The

record indicates that defense counsel reviewed the plea paperwork with

Gallagher and answered all of Gallagher's questions regarding the plea and the

rights Gallagher was giving up by entering the plea agreement. Defense counsel

also discussed with Gallagher provisions relating to firearms and immigration

issues. When asked by the trial court, Gallagher stated that he had read the plea

agreements, understood them, and signed them. He stated that no one made

any threats or promises—other than the ones contained in the agreements—to

get him to plead guilty. Gallagher indicated that he was pleading guilty

voluntarily and that he was knowingly foregoing his right to trial. He verified the

truth of his written statements by describing how he, in fact, committed the

offenses as charged. He confirmed that he had sufficient time to talk with

defense counsel prior to pleading guilty. Nothing in the record suggests

Gallagher's counsel was deficient in providing assistance in the plea agreement

process.

       We remand for correction of the LFOs but otherwise affirm.

                     FOR THE COURT:




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