                                                                                                        LED
                                                                                            COURT OF APPEALS
                                                                                                   DIMS10p]II

                                                                                          2013 Si P 24      AN 9:28
    IN THE COURT OF APPEALS OF THE STATE OF W
                                                                                                    Q   lING T 0H
                                             DIVISION II
                                                                                                    Q       Ty ,
STATE OF WASHINGTON,                                                    No. 43236 6 II
                                                                                  - -


                               Respondent,

       V.




FARRELL JEFF GORDON,                                           UNPUBLISHED OPINION




                 J. Farrell Jeff Gordon appeals his conviction on two counts of
       JOHANSON, A. .
                  C   —


unlawful possession of a controlled substance. He claims that he received ineffective assistance

of counsel because his attorney failed to investigate whether he had valid prescriptions for the

controlled substances. Because the record does not demonstrate that Gordon timely told his trial

attorney that he had valid prescriptions, and because a valid prescription defense is inconsistent

with Gordon's declared unwitting possession defense, Gordon ' fails to show ineffective

assistance of counsel. We affirm.

                                                  FACTS


       In March 2011, Kelly Stancil, Gordon's girl friend, found Gordon slumped over in her

car, drooling and incoherent. As a result, Stancil took Gordon to Tacoma General Hospital.

       Meanwhile, Community Corrections Officer Donald Feist, Gordon's parole officer,

visited Gordon's house to contact him. Other residents at Gordon's house told Officer Feist that

Stancil had taken him to the hospital. At the hospital, Officer Feist noticed that Gordon appeared

to be under the influence of   drugs   or   alcohol. Because Gordon's   community   conditions   required
No. 43236 6 II
          - -




that he not consume alcohol or drugs without a valid prescription, Officer Feist took him into

custody. In Gordon's pocket, Officer Feist found a small baggy containing Clonazepam and

Alprazolam, and Gordon had not reported either of these prescription medications to Officer
Feist.      The State charged Gordon with two counts of unlawful possession of a controlled

substance, RCW 69. 0.
               4013(
                   1).
                   5

         The trial court      initially assigned   Travis Currie to represent Gordon.   With Currie's


assistance, Gordon stated in a pretrial omnibus order that he would present an "unwitting

possession" defense. 4 Verbatim Report of Proceedings at 271.

         But in August 2011, Gordon prepared and filed a motion declaring that Currie was

ineffective because Currie failed to investigate other valid defenses; and, Gordon asserted that

Currie did not sufficiently communicate with him about his case. Without finding Currie to be

ineffective but allowing his withdrawal in the administration of justice, the trial court eventually

appointed Edward Nelson to replace Currie, and Nelson unsuccessfully undertook plea

negotiations on Gordon's behalf.

         At a combined pretrial CrR 15 and 3. hearing on January 23, 2012, as well as at trial
                                            6

that same day, Officer Feist testified that Gordon had never indicated or reported as would
                                                                                   —

have been required as a condition of his parolethat he had valid Clonazepam or Alprazolam
prescriptions. At the end of the trial proceedings on January 23, outside the jury's presence, the

State inquired whether Gordon intended to present a valid prescription defense and with Gordon

present, Nelson stated that he had no such intention. But the following day, the last day of the

evidentiary portion of trial, Gordon brought to court photocopies of prescription pill bottles, and

1
    These   drugs   are   commonly known   as   Clonopin   and Xanax.
No. 43236 6 II
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he   sought   to admit them.   Because the photocopies could not be authenticated, the trial court

ruled them inadmissible.       The trial court did, however, permit Gordon to testify regarding his.

prescription history, though without reference to the photocopies that he had produced. Gordon

testified that doctors had prescribed him many medications, including Alprazolam; he did not

testify to having a Clonazepam prescription.

        The jury found Gordon guilty on both counts of unlawful possession of a controlled

substance. Gordon appeals.

                                             ANALYSIS


        Gordon argues that Nelson provided ineffective assistance because he did not

communicate with Currie and failed to investigate the prospect of a valid prescription defense.

We disagree. Gordon does not demonstrate that Nelson provided ineffective assistance because

he does not show that defense counsel performed deficiently.

                  I. INEFFECTIVE ASSISTANCE OF COUNSEL: STANDARD OF REVIEW


        To demonstrate ineffective assistance of counsel, a defendant must show that (1)his

lawyer's representation was deficient and (2) deficient performance prejudiced the defendant.
                                             the

Strickland v. Washington, 466 U. . 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
                               S

Representation is deficient if it falls below an objective standard of reasonableness based on
consideration of all the circumstances. State v. McFarland, 127 Wn. d 322, 334 35, 899 P. d
                                                                  2            -        2

1251 (1995).We review trial counsel's reasonableness based on all of the circumstances of the

case at the time of the counsel's alleged deficient performance. State v. Lord, 117 Wn. d 829,
                                                                                      2

883, 822 P. d 177 (1991),
          2             cent. denied, 506 U. . 856 (1992). Prejudice occurs when but for
                                           S

counsel's deficient performance, the result of the proceeding would have been different.


                                                   3
No. 43236 6 II
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McFarland, 127 Wn. d at 335. If a party fails to satisfy either prong of the test for ineffective
                 2

assistance of counsel, we need not consider both prongs. State .v. Foster, 140 Wn. App. 266,

273, 166 P. d 726, review denied, 162 Wn. d 1007 (2007).
          3                             2

        We are highly deferential to counsel's performance, that is,the defendant must overcome

the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy.   Strickland, 466      U. . at 689.
                                        S             Tactical decisions cannot form the basis for an


ineffective assistance of counsel claim. McFarland, 127 Wn. d.336.
                                                        at2

                                   II. TRIAL COUNSEL'S PERFORMANCE


        Because we examine the circumstances of the case at the time of counsel's allegedly

deficient performance, Lord, 117 Wn. d at 883, we must first identify the point at which
                                   2

Nelson's performance is alleged to have fallen below the objective reasonableness standard.

Gordon emphasizes Nelson's failure to conduct pretrial due diligence from the time of Nelson's

appointment through       the trial's start.   Accordingly, we must examine what Nelson knew or

should have known from the time of his appointment until trial to determine whether his

performance amounted to ineffective assistance.

        Pretrial, with Currie as his attorney, Gordon committed to pursuing an unwitting-

possession   defense and not       a         prescription defense.
                                       valid -                              Then Nelson replaced Currie as

Gordon's counsel, and Nelson said he could not speak with Currie regarding Gordon's case

because of   a    conflict.   Nelson also   attempted      to   negotiate   a
                                                                                plea.   Based on the record he


inherited when the trial court appointed him to represent Gordon, Nelson understood that Gordon

intended to pursue      an              possession defense. During the combined CrR 3. and 3.
                              unwitting -                                            5      6

pretrial hearing, and then at trial, Officer Feist testified that Gordon told him that he had no valid


                                                      11
No. 43236 6 II
          - -




prescriptions for any schedule narcotics. On this pretrial record, Nelson had no reason to believe

that Gordon sought a valid -
                           prescription defense or had any grounds to do so. Thus, Gordon fails

to show that Nelson's pretrial performance was deficient.

       It appears, on the record before us, that Gordon did not inform Nelson of the possibility

of a valid prescription defense until the close of proceedings on the second to last day of the

evidentiary portion of the trial. Gordon participated in plea negotiations, sat through the pretrial

hearing during which the State presented testimony that Gordon acknowledged having no valid

prescriptions for these medications, and observed most of the trial before alerting Nelson to the

possibility of a valid prescription defense. Nothing else in the record from the time of Nelson's

appointment until the start of trial showed that Gordon claimed to have a valid prescription for
these medications.


       Moreover, an unwitting-
                             possession defense is irreconcilable with a valid -
                                                                               prescription

defense, and because Nelson planned, pretrial, to pursue an unwitting-
                                                                     possession defense, he

would have had no reason to further investigate Gordon's prescription history. If Gordon had a

valid prescription, presumably, he would know that he was carrying his prescribed medications.

Nelson would have no reason to believe that, if Gordon claimed unwitting possession, he

actually had a valid prescription. Therefore, not only does Nelson enjoy the discretion to choose

what defense strategies to pursue, see McFarland, 127 Wn. d at 336,Nelson reasonably pursued
                                                        2

an unwitting-
            possession defense, rather than a valid -
                                                    prescription defense that lacked evidentiary

           Ultimately, Gordon does     not   demonstrate that Nelson acted   deficiently.   Because
support.

Gordon does not establish the deficiency prong, we need not consider the prejudice prong. See

Foster, 140 Wn. App. at 273.



                                                  5
No. 43236 6 II
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       We affirm.


       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

040,
2.6.it is so ordered.
 0




                                                              Johanson, A. .
                                                                        J.
                                                                         C
We concur:




                 P   oyar, J.

             r


                 Bjor   n,J.




                                              0
