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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

STATE OF WASHINGTON,                                                               No. 40262 -9 -II


                                       Respondent,


         MA




LARRY DOUGLAS STOVALL,                                                       UNPUBLISHED OPINION




                                                                                   consolidated with

In re Personal Restraint Petition of                                     Nos. 41575 -5 -II and 42278 -6 -II)


LARRY DOUGLAS STOVALL,


                                       Petitioner.




         QUINN- BRINTNALL, P. J. —                  Larry Stovall pleaded guilty to one count of unlawful

possession of cocaine with intent to deliver and one count of unlawful delivery of cocaine with a

bus stop      enhancement.         Stovall   appeals,    arguing that ( 1)    he received ineffective assistance of


counsel, (    2) the prosecutor breached the plea agreement, and ( 3) the trial court erred by refusing

to   return   two   cell phones seized as evidence.           Stovall also filed two personal restraint petitions


 PRP), arguing that ( 1)       he    received     ineffective    assistance   of counsel, (   2) the sentencing court

                     to hold       hearing        his            to discharge his counsel,            3) he is   entitled   to
erred   by failing             a             on         motion                                and (
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



withdraw       his   plea   based   on numerous             instances      of misconduct.'          Because his challenges lack


merit, we reject each of Stovall' s arguments, affirm his sentence, and dismiss his PRPs.

                                                                FACTS


          On October 31, 2008, Stovall was arrested following a narcotics investigation conducted

by    officers of    the Lakewood Police Department.                        The State charged Stovall with one count of


unlawful possession of a controlled substance with intent to deliver and one count of unlawful


delivery   of a controlled substance.               On February 5, 2009, the State filed an amended information

charging Stovall with one count of unlawful delivery of a controlled substance and one count of

unlawful possession of a controlled substance with                           intent to deliver. The State also alleged that


count one was committed              in   a public      transit stop       shelter,   RCW 69. 50. 435( l)( h), and both counts


were committed while Stovall was on community custody, RCW 9. 94A.525( 19).
                                                                        4lford2

          On    May     12, Stovall       agreed       to   enter an                  plea   to   both   charges.   The defendant' s


statement on plea of guilty included the following recommendation from the State:

          84    months       on   counts    I    and   II   concurrent;        community custody; $ 500
                                                                             9 - 12   mo.

           Crime Victim           Penalty       Assessment]; $ 100 [ deoxyribonucleic acid ( DNA)]; DNA
          sample; $         200   costs; $      400 '[ Department            of   Assigned         Counsel]    recoupment;

          Defense      can       Drug
                              argue [              Offender      Sentencing           Alternative ( DOSA)]          sentence;


          forfeit seized property.




  Specifically, Stovall argues that the prosecutor, the police, the informant, the trial judge, and
the   court reporter committed misconduct.                     Stovall' s claims of misconduct against the police and
the informant regard the criminal investigation and are itrelevant to challenges to Stovall' s guilty
plea.    And on May 23, 2011, we issued an order to provide Stovall with copies of the clerk' s
papers filed in this case, and all volumes of the verbatim reports of proceedings comply with the
requirements of                       Accordingly, we do not address Stovall' s claim against the
                       RAP 9. 2( e)( 1)( F).
police, the informant, or the court reporter any further.

2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).

                                                                       2
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II


Clerk'    s   Papers ( CP)          at   10.    Stovall   signed     the statement on plea of guilty.      After a colloquy, the

trial   court        accepted       Stovall'    s   guilty   plea.       The trial court continued the sentencing hearing to

allow Stovall to gather information regarding the availability of a DOSA option and entered an
                                                                     3
order     for    presentence         screening for DOSA.


              On August 7, 2009, the trial court continued sentencing to allow Stovall additional time

to   obtain presentence              screening for DOSA.                  At the sentencing hearing on September 18, 2009,

the State informed the court that, originally, it did not believe that Stovall qualified for a DOSA.

But based on the State' s research and preparation, the State agreed that a DOSA sentence would




3
     We   note           that there are two types of DOSA                   sentences:   residential   and prison- based.     RCW
9. 94A. 660( 3).            To determine which type of DOSA is appropriate, the trial court may order either,
or    both,          a    risk assessment report   and a chemical     dependency screening report. RCW
9. 94A.660( 4).             From the record it does not appear that the residential DOSA sentence was being
considered for Stovall.                        RCW 9. 94A.662, which defines the prison -based DOSA sentence,
provides,

                1)       A sentence for a prison - ased special drug offender sentencing alternative
                                                 b
              shall include:
                             a) A period of total confinement in a state facility for one -half the
              midpoint of the standard sentence range or twelve months, whichever is greater;
                             b) One -half the midpoint of the standard sentence range as a term of
              community custody, which must include appropriate substance abuse treatment in
              a program that has been approved by the division of alcohol and substance abuse
              of the department of social and health services;
                             c)   Crime -
                                        related prohibitions, including a condition not to use illegal
              controlled substances;

                             d) A requirement to submit to urinalysis or other testing to monitor that
              status; and

                             e)   A term of community custody pursuant to RCW 9. 94A.701 to be
              imposed upon the failure to complete or administrative termination from the
              special drug offender sentencing alternative program.
                             2) During incarceration in the state facility, offenders sentenced under
              this        section shall undergo              a comprehensive        substance   abuse    assessment and
              receive,           within    available         resources,     treatment    services   appropriate   for   the
              offender.           The treatment services shall be designed by the division of alcohol and
              substance abuse of the department of social and health services, in cooperation
              with        the department        of corrections.
Consol. Nos. 40262 -9 -II / 41575 -5 - II / 42278 -6 -II



be   appropriate.     Stovall' s defense counsel addressed the court regarding the availability of DOSA

and explained that when offenders are sentenced to more than 36 months confinement, they are

screened       in   prison,    enter    inpatient    drug   treatment      during    their   confinement,   and    receive



outpatient     drug   treatment     while on     community custody. He also explained that local offices and


the Department         of   Corrections ( DOC)         will only do presentence DOSA screening when the

offender qualifies for a residential DOSA which is a sentence less than 36 months confinement.

The trial court stated,


         I don' t like      doing   things with the uncertainty.           I can go along with what the State
         is saying and what [ Stovall' s counsel is] saying, ... for him, at 50 years old, and
         get him some help. But, I want to know that it' s real, that it' s funded, and that it

         is pursuant to the law and the pleadings that are necessary to accomplish it, and
         that there are resources to accomplish it.


Report    of   Proceedings ( RP) ( Sept. 18, 2009)             at    20.   The trial court continued the sentencing

hearing for another 60 days.

         The trial     court   held    another   sentencing    hearing     on   December 18, 2009.   Stovall' s attorney

explained that DOC had stopped doing prescreened prison - ased DOSAs, but they had recently
                                                        b

begun providing prescreening              again.     Stovall' s attorney provided the trial court with a copy of

the prescreening         report
                                    finding   that   Stovall   suffered      from   chemical    dependency.       Stovall' s


attorney admitted that he was unable to obtain specific dollar amounts used for DOSA programs,

but he presented findings from DOC' s monthly reports:

          In November of this year they disclosed that they added 115 new beds and that
          their intention is to consistently increase the beds for DOSA.                      And it shows that

          they have them in a Chehalis facility and the Airway Heights facility, and also in
          the McNeil         facility. And they' re increasing the bed numbers, and they' ve
                            Island
          filled those bed numbers. In November, I think they had 47 people recommended
          from judges for the DOSA. Of those, they let 43 in. So, essentially what happens
          is, if you order a DOSA, then they become eligible for the DOSA in the prison
          system.    They will then do another evaluation of that offender to determine
          whether or not they want that offender in their program. In November, four of the

                                                                rd
Consol. Nos. 40262 -9 -II / 41575 -5 - II / 42278 -6 -II


         47, the DOC didn' t want them in their program. If that' s what happens, then they
         serve the midpoint of their sentence range. If they do accept them in, they stay in

         prison population until a bed comes open.


RP ( Dec. 18, 2009)        at   8 - 9.    During the hearing, the trial court and the State repeatedly confirmed

the State'    s recommendation as expressed               in the    statement on plea of         guilty. The trial court had


to continue the sentencing hearing again because Stovall decided to challenge his criminal

history and offender score; therefore, the State needed additional time to obtain certified copies

of Stovall' s previous judgment and sentences.


         Stovall     was sentenced on           December 31, 2009.           At sentencing, the State recommended 84

months       confinement        and        argued   against     a   DOSA      sentence.        After the      State   made   its


recommendation, the following exchange took place:

                     DEFENSE COUNSEL]:    I just don' t think I can do or say anything.
          Stovall] has a memorandum in support of motion and declaration, attorney /client
         conflict of interest, exigent circumstance, mandating the immediate discharge of
         counsel. He' s filed Bar complaints against me. He' s filed Bar complaints against
          the   prosecutor]. They' ve been dismissed. He has filed appeals on the dismissal.
                     You know, the second -to- the -last time we were here, I asked him if he
         wanted me to proceed. He said proceed, you know. And that' s subsequent to this
         being filed with the clerk of the court. I don' t think any bench copies ever made it
         to   you.    And I don' t know if [the             prosecutor]      has it,   or not.    But, you know, I
         argued for his DOSA, I' d guess, on probably four or five occasions....
                     In   addition, you asked        to   see   if there   was still a viable program.         They' ve
         added     115 beds just in November. It'               s a viable program.       It   exists.   It is preferred
         under the law....


                     COURT]:               In the recommendation, though, you agree that the State' s,
         recommendation, through the deputy prosecutor, is 84 instead of 144; and to
         argue     against      the [ DOSA]         is within the discretion of the agreement and the
         prosecutor.

                     DEFENSE COUNSEL]:                    I do.     I do
                                                                that -- I guess what I' m saying
                                                                           agree

         here, just for the record, is that there was an evolution which began with this offer
         that the State made and is sticking to and has come back to....

                     But, at the same time, if [Stovall' s] motion is properly before this Court,
         your failure to consider his motion and rule on his motion is, in and of itself, a
         reversible       error.         That is an abuse of discretion to not consider a motion that' s


                                                                    z
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



        properly before the Court. So, if                     you   don' t   consider   his   motion   to fire   me --   and,

        quite frankly, if we don' t fire me, there' s just going to be more problems and
        more problems                 and more problems.            And so, in all candor toward the tribunal,

        that' s what I' m trying to say.
                 COURT]: I don' t have any motion before the Court.
                  STATE]: There is no motion before the Court. It is not properly before
        the Court.
                  COURT]:                Nothing is properly before the Court except sentencing.

RP ( Dec. 31, 2009)         at   9 - 13.    Stovall' s defense counsel concluded by making a final argument for

the imposition    of a      DOSA           sentence.    After defense counsel was finished, the trial court allowed


Stovall to make an extensive argument which included many of the reasons why he believed his

defense counsel had been deficient and his problems with the underlying, substantive facts of the

case. After listening to the attorneys and Stovall, the trial court stated,

        All   right.    Now, before I impose the sentence and make a decision regarding the
         DOSA], I feel that it' s incumbent upon the Court to make an observation. I think
        that both the State' s attorney and. your defense attorney have acted with
        professionalism and with integrity in handling this case, and to the extreme.
         Defense counsel] has represented you to persuade this Court to impose a DOSA
        sentence.       I   see no violation of        defending you. And, with regard
                                                          his    practice     in
        and with response to the State and their representation in this matter, they have
        also acted with integrity and been professional.  And, it appears to me, having
        reviewed the Statement of Defendant on Plea of Guilty, that they are following
        the recommendation that is in that document.
                  So,       with       that, I'   m   going to impose         a sentence.     I' ve thought about this.
         I' ve thought about your history and your background, and I'm convinced that the
        just and fair sentence in this matter is not DOSA, so I' m going to follow the
        recommendation of                  the State.     I   could give you anywhere.             You remember, the

        Court doesn' t have to follow anybody' s recommendation.

RP ( Dec. 31, 2009)              at    19 -20 (   emphasis      added).       The trial court imposed 84 months of total


confinement, 12 months of community custody, legal financial obligations, and forfeiture of

contraband that is evidence.


        After the trial               court   imposed         sentence,      Stovall   alleged   that "[   t] here is an issue of


property,"    specifically cell phones that were seized at Stovall' s arrest. RP ( Dec. 31, 2009) at 22.


                                                                       Con
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



The court stated his sentencing order provided that all contraband would be forfeited and all

other   property    would     be    returned.    The State informed the trial court that it was its position that


the   cell    phones   were     contraband,       and    Stovall disagreed.       The trial court agreed that it was


probably not something that could be returned to Stovall.

          Stovall filed     a   pro    se   direct    appeal.     He   also   filed two   separate,   pro   se   PRPs.   We


consolidated his direct appeal and both of his PRPs for review.

                                                           ANALYSIS


INEFFECTIVE ASSISTANCE OF COUNSEL


             Generally, we apply different standards of review depending on whether an issue is raised

on    direct   appeal or   in   a   PRP.    However, recently our Supreme Court stated that if a defendant

meets the Stricklana4 standard for ineffective assistance of counsel, he has necessarily made a

showing        of prejudice sufficient      to   grant a   PRP.    In re Pers. Restraint of Crace, 174 Wn.2d 835,

846 -47, 280 P. 3d 1102 ( 2012) ( " We hold that if a personal restraint petitioner makes a successful


ineffective assistance of counsel claim, he has necessarily met his burden to show actual and

substantial prejudice. ").          Therefore, we address all of Stovall' s ineffective assistance of counsel


claims collectively, regardless of whether he raised them in his direct appeal or his PRPs.

             To prevail on an ineffective assistance of counsel claim, Stovall must show both deficient

performance        and   resulting    prejudice.        Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct.


2052, 80 L. Ed. 2d 674 ( 1984).                 Counsel' s performance is deficient if it fell below an objective


standard of reasonableness.             State    v.   Stenson, 132 Wn. 2d 668, 705, 940 P. 2d 1239 ( 1997),              cent.




denied, 523 U. S. 1008 ( 1998).              Our scrutiny of counsel' s performance is highly deferential; we



4 Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).

                                                                  7
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



strongly      presume reasonableness.            State v. McFarland, 127 Wn.2d 322, 335 -36, 899 P. 2d 1251


 1995).       To establish prejudice, a defendant must show a reasonable probability that the outcome

would     have differed        absent    the deficient   performance.       State v. Thomas, 109 Wn.2d 222, 226,


743 P. 2d 816 ( 1987).           If an ineffective assistance of counsel claim does not support a finding of

either deficiency or prejudice, it fails. Strickland, 466 U. S. at 697.

          Stovall argues that his attorneys' performances were deficient preparing for trial, before

he    entered   his guilty     plea.    He also alleges numerous instances of ineffective assistance during

sentencing.       Because Stovall fails to meet his burden under Strickland, his ineffective assistance

of counsel claims fail.


          First, Strickland alleges that he received ineffective assistance of counsel from both of his

                                                               5
attorneys       prior   to entering his guilty         plea.       He argues that his attorneys failed to properly

interview       and     subpoena       witnesses.      Because Stovall entered a guilty plea, we review the

reasonableness of counsel' s conduct under the standard for effective assistance of counsel in a

plea    bargaining      context. "     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.2d 87, 99, 684 P. 2d 683 ( 1984) ( alteration in original)


 quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P. 2d 901, review denied, 96 Wn.2d 1023

    1981)).     Defense counsel must inform the defendant of all direct consequences of the guilty

plea.     State   v.      J., 168 Wn.2d 91, 113 - 14, 225 P. 3d 956 ( 2010).
                       A.N.                                                                 The trial court' s extensive


colloquy with Stovall prior to accepting Stovall' s guilty plea demonstrates that Stovall was fully

5
     Stovall had        one    attorney appointed at the beginning of his case, but after expressing
dissatisfaction         with   her performance, Stovall successfully moved to proceed pro se. Stovall' s
second        defense    counsel was    originally      appointed as     standby     counsel.   Later, Stovall agreed to
allow     standby      counsel   to represent him.
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



informed of the consequences of the guilty plea, the rights he was giving up by pleading guilty,

and   the    potential    consequences             of   being   convicted at      trial.    In addition, both Stovall and trial


counsel stated that they had discussed the guilty plea. Therefore, defense counsel' s performance
                                                                                                                     6
was not       deficient    and    Stovall'     s   ineffective    assistance of counsel             claim   fails.       Strickland, 466


U. S. at 697.

            Second,       Stovall claims that defense counsel' s performance was. deficient during

sentencing because he failed to obtain a timely DOSA screening and obtain information

regarding the       funding      of   DOSA         programs.     We disagree. The record shows that defense counsel


obtained all information regarding the availability and resources for DOSA except for specific

dollar      amounts.      Moreover, the trial court did not refuse to impose a DOSA sentence because of


either the DOSA screening or the information on DOSA funding. Rather, the trial court decided

not   to impose       a   DOSA        after   considering Stovall'         s   history     and    background.        Therefore, Stovall


                                  defense                                                   his   claim   fails.     Because failure to
was not prejudiced           by                    counsel' s performance,          and




establish prejudice necessarily defeats Stovall' s claim, we do not address further whether defense

counsel' s performance was deficient. Strickland, 466 U.S. at 697.

             Third, Stovall alleges that defense counsel' s performance was deficient because defense

counsel failed to argue that the State was violating the plea agreement by arguing against a

DOSA         sentence at.    Stovall'    s    final sentencing      hearing. As we explain below, the State did not

violate its obligations under the plea agreement. Any objection or argument the defense counsel



6
    Even if we considered defense counsel' s performance under the standard for trial counsel,
    there   is   no absolute requirement                that defense   counsel      interview       witnesses      before trial."   In re

Pers. Restraint of Pirtle, 136 Wn. 2d 467, 488, 965 P. 2d 593 ( 1998).                                             Therefore,    defense

counsel' s        failure to interview witnesses does not fall below an objective standard of
reasonableness and does not support a claim of ineffective assistance of counsel.

                                                                       6
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



may have     made       lacked legal basis      and would    have been futile.   Therefore, defense counsel' s


performance was neither deficient nor prejudicial. Strickland, 466 U. S. at 697.


          Fourth, Stovall argues that his counsel was deficient for failing to file a motion for the

return of   his   cell phones.     CrR 2. 3( e) governs motions for the return of property no longer needed

as evidence.       State v. 41away, 64 Wn. App. 796, 798, 828 P.2d 591, review denied, 119 Wn.2d

1016 ( 1992).      A CrR 2. 3( e) motion may be filed at any time, including after trial. State v. Card,

48 Wn.    App.     781, 786, 741 P. 2d 65 ( 1987).         Stovall may file a CrR 2. 3( e) motion for the return

of his cell phones at any time, therefore he was not prejudiced by defense counsel' s failure to file

the motion at or before sentencing. Accordingly, this ineffective assistance of counsel claim also

fails. Strickland, 466 U. S. at 697.

          Fifth,   Stovall argues that he received ineffective assistance of counsel because his

defense counsel omitted elements of the plea agreement on the written statement of defendant on


plea of guilty including ( 1) the State would not argue against a DOSA sentence, and ( 2) the State

was required       to   return   his two   cell phones.   However, the record belies Stovall' s assertion. The


court reviewed all the conditions of the plea agreement included in the written document and

Stovall   confirmed       that   they   were correct.     Stovall has not met his burden to show that defense

counsel' s performance was deficient, and his ineffective assistance of counsel claim fails.

Strickland, 466 U. S. at 697.


          Stovall has failed to meet the burden necessary to prevail on all his ineffective assistance

of counsel claims.         Accordingly, both his direct appeal and his PRP ineffective assistance claims

must fail.




                                                             10
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



BREACH OF PLEA AGREEMENT


            Stovall argues that the State breached the plea agreement by arguing against imposing a

DOSA        sentence.        However, the plain language of the plea agreement establishes that the State

retained     the discretion to         argue either         for   or against   the DOSA    sentence.    Accordingly, the State
                                                                      7
did   not   breach the terms          of the plea agreement.



            A plea agreement is a contract between the defendant and the State, under which the

defendant        pleads      guilty for     some        State   concession such as a     sentencing    recommendation.   State


v.   Barber, 170 Wn.2d 854, 859, 248 P. 3d 494 ( 2011).                          Due process requires the State to follow a


plea agreement' s            terms..       State   v.    Sledge, 133 Wn.2d 828, 839, 947 P. 2d 1199 ( 1997) ( citing


Santobello           v.   New York, 404 U. S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 ( 1971)).                        The State


breaches the plea agreement when it either fails to make the agreed recommendation or

undercuts        the terms      of   the   plea agreement.          State v. Van Buren, 101 Wn. App. 206, 213, 2 P. 3d

991, review denied, 142 Wn.2d 1015 ( 2000).

            Here, the express terms of the plea agreement required the State to recommend 84


months confinement (the low end of Stovall' s standard sentencing range) and to allow Stovall to

argue    for     a   DOSA      sentence.       Nothing in the agreed upon recommendation prevented the State

from being able to argue against Stovall' s request for a DOSA sentence. At sentencing, the State

recommended 84 months confinement, as required by the plea agreement. Stovall' s attorney was

given    the opportunity to            argue       extensively for        a   DOSA   sentence.   Therefore, the State complied




7 In his PRP, Stovall also makes a claim of prosecutorial misconduct based on the State' s alleged
breach      of   the      plea agreement.          Because the State did not breach the plea agreement, we do not
address Stovall' s PRP claim separately.

                                                                          11
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



with the express terms of the recommendation in the plea agreement and Stovall' s claim that the

State breached the plea agreement lacks merit.


RETURN OF CELL PHONES IN EVIDENCE


           Stovall further claims that the State " violated Stovall' s due process rights" because it did

not return       two    cell phones seized         from Stovall. Br. of Appellant at 32 ( capitalization omitted).


In response, the State argues that this issue is not ripe for review. We agree with the State.

           To determine whether a claim is ripe, a court must examine the fitness of the issues for

judicial determination and the hardship to the parties that withholding determination would

cause.     State   v.   Sanchez Valencia, 169 Wn.2d 782, 786, 239 P. 3d 1059 ( 2010). On review, issues


are     fit for judicial determination             when   three     requirements       are   met: (   1)   the issues raised are


primarily legal, ( 2) the issues              raised    do    not   require   further factual development,           and (   3)   the



challenged        action   is final.    Sanchez Valencia, 169 Wn.2d at 786 ( quoting State v. Bahl, 164

Wn.2d 739, 751, 193 P. 3d 678 ( 2008)).


           The issues raised in Stovall' s appeal are not ripe for judicial determination. Although the

judgment         and sentence requires         Stovall to " forfeit any property in             evidence,"    CP at 27, Stovall


bases his        claim   to the   return of    the   cell phones on        CrR 2. 3(   e).   But he did not file a CrR 2. 3( e)


motion until after         this   appeal was       pending.     The record on appeal does not disclose whether the


trial    court   has    ruled on    Stovall'   s   CrR 2. 3(   e)   motion.    Thus, Stovall has not challenged a final

                                                                                                               8
action;     in    addition,   the issues he          raises   require     further factual development.             Because these


issues are not fit for judicial determination, we hold that Stovall' s claim is not ripe for review.

 Valencia, 169 Wn.2d at 786.




 8 Upon Stovall' s oral request, the parties briefly disputed whether the two cell phones were
 contraband; the sentencing court refused Stovall' s request without resolving this dispute.
                                                                     12
Consol. Nos. 40262 -9 -II / 41575 -5 - II / 42278 -6 -II


PERSONAL RESTRAINT PETITIONS


           Stovall raises several issues in his consolidated PRPs. We address three of them in detail


below: ( 1)     whether   the trial   court erred   by failing   to discharge his         second    attorney, ( 2) whether


the trial court erred by disregarding two of his pro se motions, and ( 3) whether the trial court

committed misconduct by removing his bar complaints against the attorneys from the court file.

Stovall     cannot meet    the high burden    required    for    us   to   grant relief   in   a   PRP.   Accordingly, we

dismiss his PRPs.


              Relief by way of a collateral challenge to a conviction is extraordinary, and the

petitioner must meet a high standard before this court will disturb an otherwise settled

judgment. "' In     re   Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P. 3d 450 ( 2013) ( quoting


In   re   Pers. Restraint of Coats, 1. 73 Wn.2d 123, 132 -33, 267 P. 3d 324 ( 2011)).                     To meet the high


standard for granting collateral relief, the petitioner must show " either that he or she was actually

and substantially prejudiced by constitutional error or that his or her trial suffered from a

fundamental defect of a nonconstitutional nature that inherently resulted in a complete

miscarriage      of justice."    In re Finstad, 177 Wn.2d at 506 ( citing In re Pers. Restraint ofElmore,

162 Wn.2d 236, 251, 172 P. 3d 335 ( 2007)).               Even assuming that Stovall' s allegations establish

that the trial court committed error, he cannot satisfy the standard for granting relief in a PRP.

            First, Stovall argues that the trial court erred by refusing to discharge his second counsel.

The record clearly demonstrates that Stovall' s counsel repeatedly advocated for the trial court to

impose a DOSA sentence and made a significant effort to gather the information on DOSA the

trial     court requested.      Considering defense counsel continued to advocate for a DOSA, Stovall

cannot show that he was substantially prejudiced or that there was a complete miscarriage of

justice.     Furthermore, Stovall was represented by counsel at the time he filed his pro se motions

                                                           13
Consol. Nos. 40262 -9 -II / 41575 -5 -II / 42278 -6 -II



to the   court.    Because defendants do          not   have the      right   to " hybrid   representation,"     defendants


cannot file pro se motions while they are represented by counsel unless the trial court specifically

allows     the hybrid      representation.   State v. Hightower, 36 Wn. App. 536, 541, 676 P. 2d 1016,

review   denied, 101 Wn. 2d 1013 ( 1984).            Accordingly, Stovall' s pro se motions were not properly

before the trial court.


           Second, Stovall      argues   that the trial   court erred     by " totally   disregard[ ing]"      numerous pro




se motions      that   he filed   on   December 1, 2009,        and    October 13, 2010.        CP ( Jan. 4, 2011) at 9.


However, Stovall has not presented any argument establishing why or how he was prejudiced by

the trial   court' s   failure to hear his   motions.        See Hightower, 36 Wn.          App.   at   541.   As explained


above,      Stovall'   s   attorney repeatedly       advocated      for   a   DOSA, the       State complied with its


sentencing recommendation, and the trial court gave him several opportunities to address the

court    with   his    own arguments.        Accordingly, Stovall has failed to demonstrate that the trial

court' s failure to consider his motions caused substantial prejudice or a complete miscarriage of


justice.


            Third, Stovall argues that the trial court committed misconduct by removing copies of the

bar   complaints       he filed from the     court   file.    Stovall has presented no argument, and we fail to


see, how he could have been prejudiced by the removal of copies of the bar complaints from the

court' s file or how the removal of the bar complaints constitutes a complete miscarriage of

justice.     Therefore, Stovall has failed to meet the high standard required for us to grant relief

from a PRP.


            Stovall has presented several issues for our review on both direct appeal and in his

consolidated      PRPs.      His numerous ineffective assistance of counsel claims fail and the State did

not   breach its      obligations under    the   plea agreement.          His claim regarding seized property is not

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Consol. Nos. 40262 -9 -II / 41575 -5 -11 / 42278 -6 -II


ripe for review. And he fails to meet the high burden required for us to grant relief under a PRP.

Accordingly, we affirm Stovall' s conviction and sentence and dismiss his PRPs.

        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.




                                                          JINN- BRINTNALL, P. J.
We concur-




P    O,        J.



BJORa1;




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