                                                                           FILED 

                                                                         FEB 26,2013 

                                                               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. 30573·2-III
                                             )
                     Respondent,             )
                                             )
             v.                              )
                                             )
ALVIN R. MELARA FLORES,                      )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

       BROWN, J. - Alvin Melara Flores appeals his juvenile prison riot conviction,

contending he received ineffective assistance of counsel in his stipulated evidence bench

trial because his attorney did not present evidence on his behalf or impeach the State's

evidence. Because Mr. Flores waived his trial rights and fails to show any deficient

performance from his trial counsel, we affirm.

                                         FACTS

       On September 19,2011, 15-year-old Alvin Melara Flores and a fellow gang

member and inmate at the Grant County Juvenile Detention Facility attacked a rival gang

member while the rival spoke on the telephone. The State charged Mr. Flores with prison

riot and fourth degree assault. Defense counsel moved unsuccessfully to dismiss the
No.30573-2-III
State v. Flores

prison riot charge, arguing the juvenile detention facility was not a "correctional

institution" as defined by statute. Mr. Flores then agreed to a stipulated evidence bench

trial in order to preserve his right to appeal the trial court's denial of his dismissal motion.

       Defense counsel filed a Statement on Stipulated Trial, which he prepared on a

guilty plea form "since a stipulated trial is in many respects about the same as pleading

guilty." Report of Proceedings (RP) at 24. In this statement, Mr. Flores agreed "to the

admissibility of the police report and/or discovery as supplemented at trial herein."

Clerk's Papers (CP) at 47. Mr. Flores validly waived "the right to testify, to have

witnesses testify for [him], and to hear and question witnesses" at his trial. CP at 42. In

exchange, the State agreed to dismiss the fourth degree assault charge and recommend a

sentence of 15 days' detention on the prison riot charge.

       Defense counsel advised Mr. Flores regarding the stipulation, stating, "essentially

with a stipulated trial it's just about the same as pleading [guilty] except reserving the

appeal right." RP at 29. Further, defense counsel told Mr. Flores he "would not be

presenting any argument" at trial and "the reports would be the only evidence before [the

court]." RP at 29.

       At trial, defense counsel reassured the trial court Mr. Flores agreed to admissibility

of the State's incident reports and declarations. When the State rested, defense counsel

took no further action, stating he understood Mr. Flores's stipulation to mean he waived

his right to present evidence and demand the State produce live witnesses subject to


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No. 30573-2-III
State v. Flores

cross-examination. The Grant County Superior Court Juvenile Department found Mr.

Flores guilty of prison riot. Mr. Flores appealed.

                                        ANALYSIS

       The issue is whether Mr. Flores was denied effective assistance of counsel in his

stipulated evidence trial because his attorney did not present evidence on his behalf or

impeach the State's evidence. Mr. Flores contends that by this omission, defense counsel

entirely failed to subject the State's case to meaningful adversarial testing. Mr. Flores

further contends ineffective assistance is presumed under United States v. Cronic, 466

U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), so he need not prove deficient

performance or prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). We disagree with Mr. Flores.

       To prove an ineffective assistance of counsel claim under Strickland, the

defendant must show "counsel's performance was deficient" and "the deficient

performance prejudiced the defense." Strickland, 466 U.S. at 687. Failure to show either

element defeats the claim. Jd. Deficient performance occurs if "counsel's representation

fell below an objective standard of reasonableness." Jd. at 688. "[A] defendant must

overcome a strong presumption that counsel's performance was reasonable." State v.

Breitung, 173 Wn.2d 393,398,267 P.3d 1012 (2011). To do so, the defendant must

show "there is no conceivable legitimate tactic explaining counsel's performance." State

v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). "A stipulation as to facts may


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No.30573-2-III
State v. Flores

represent a tactical decision ...." State v. Mierz, 127 Wn.2d 460,476, 901 P.2d 286

(1995).

       In a stipulated facts trial, the defendant typically admits "'if the State's witnesses

were called, they would testify in accordance with the summary presented by the

prosecutor.'" In re Det. o/Moore, 167 Wn.2d 113, 121,216 P.3d 1015 (2009) (quoting

State v. Wiley, 26 Wn. App. 422, 425, 613 P.2d 549 (1980)). However, "the judge or jury

still determines the defendant's guilt or innocence; the State must prove beyond a

reasonable doubt the defendant's guilt; and the defendant is not precluded from offering

evidence or cross-examining witnesses." State v. Johnson, 104 Wn.2d 338, 342,705

P.2d 773 (1985).

       Unlike other stipulated facts trials, Mr. Flores validly waived "the right to testify,

to have witnesses testify for [him], and to hear and question witnesses" at his trial. CP at

42. Thus, defense counsel did not present evidence on Mr. Flores's behalf or impeach the

State's evidence because Mr. Flores's stipulation required he not do so. As defense

counsel correctly noted, this atypical stipulation was more akin to a guilty plea. In this

way, the stipulation represented a legitimate tactic limiting Mr. Flores's liability and

sentencing exposure while preserving his right to appeal the trial court's denial of his

dismissal motion. Mr. Flores does not argue defense counsel performed deficiently in

negotiating this atypical stipulation or advising him on it. Therefore, Mr. Flores cannot




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No.30573-2-III
State v. Flores

prove deficient performance under Strickland. Further, he does not argue prejudice under

Strickland.

       Instead, Mr. Flores argues that because defense counsel entirely failed to subj ect

the State's case to meaningful adversarial testing, ineffective assistance is presumed

under Cronic, and he need not prove deficient performance or prejudice under Strickland.

Although Strickland's test generally governs, ineffective assistance is presumed, under

Cronic, in limited circumstances "so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658.

Specifically, prejudice is presumed if,. for example, "counsel entirely fails to subject the

prosecution's case to meaningful adversarial testing." Id. at 659. For this exception to

apply, "the attorney's failure must be complete." Bell v. Cone, 535 U.S. 685, 697, 122 S.

Ct. 1843, 152 L. Ed. 2d 914 (2002). If the defendant stands trial, "counsel must hold the

prosecution to its heavy burden of proof beyond [a] reasonable doubt." Cronic, 466 U.S.

at 656 n.19. But counsel need not "do what is impossible or unethical" by "attempting a

useless charade" where "there is no bona fide defense to the charge." Id.

       Here, while it is true defense counsel permitted the State's case to proceed without

any adversarial testing, he did so in obedience to Mr. Flores's stipulation, itself the

product of our adversarial criminal justice system. The atypical nature of Mr. Flores's

stipulation apparently reflects the reality that he had no bona fide defense to the prison

riot charge, and attempting to create a reasonable doubt as to his guilt would be a useless


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No.30S73-2-III
State v. Flores

charade. It appears the sole reason Mr. Flores agreed to a stipulated evidence trial, as

opposed to a gUilty plea, was to preserve his right to appeal the trial court's denial of his

dismissal motion. Although Mr. Flores has abandoned his dismissal denial theory on

appeal, we cannot say these circumstances were so likely to prejudice Mr. Flores that

requiring him to meet Strickland's test is unjustified. Thus, we do not presume

ineffective assistance under Cronic. It follows that Mr. Flores cannot prove ineffective

assistance because he has not shown deficient performance or prejudice under Strickland.

       Affirmed.

       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.




                                                          Brown, J.

WE CONCUR: 





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