                                                                        FILED
                                                                    DECEMBER 6, 2016
                                                                 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. 32507-5-111
                     Respondent,              )
                                              )
      v.                                      )
                                              )
JOHNATHON MICHAEL FLORES,                     )         OPINION PUBLISHED IN PART
                                              )
                    Appellant.                )

      KORSMO, J. -Johnathon Flores appeals his convictions for first degree assault

and first degree robbery, primarily arguing that he was constructively denied counsel

because his appointed attorney did not have the requisite experience under the standards

for indigent defense (SID). We conclude in the published portion of this opinion that a

violation of the SID is evidence of deficient performance to be considered in assessing an

ineffective assistance of counsel challenge and does not constitute a denial of counsel. In

the unpublished portion, we conclude that trial counsel's performance, while deficient,

was not ineffective. The convictions are affirmed.

                                         FACTS

      Mr. Flores, his half-brother Jesse Flores, and his half-sister Faith Flores,

confronted Jeffrey Weitman in the home of Sandra McCorkle in Omak on May 16,
No. 32507-5-111
State v. Flores


2013. 1 Weitman, age 34, had been dating Mccorkle, age 63, for a decade. The previous

day, Faith Flores had gotten into an altercation with Weitman at the residence of her

friend Mccorkle over the belief that Weitman was contacting another woman via

Facebook. Faith telephoned her brother Johnathon in Spokane, and had the two men

speak. Johnathon told Weitman, a former high school classmate, that he would be

coming to talk to him.

       Despite being restricted to staying in Spokane County by the terms of an earlier

judgment and sentence, Johnathon traveled to Omak to assist in dealing with Weitman.

On the 16th, Weitman called McCorkle and received permission to borrow some lawn

equipment. He drove to the house, entered it, and proceeded to the kitchen. There he

was confronted by the three Flores siblings.

       Jesse Flores was armed with a knife that he displayed at some point early in the

encounter. The three Flores family members demanded that Weitman empty his pockets

in order to discover and return any items stolen from McCorkle. Weitman put his wallet,

$80, keys, and an MP3 player in a basket near the door. Faith Flores then escorted Ms.

McCorkle to another room. At some point thereafter, an altercation took place and Jesse

Flores stabbed Weitman. The three Flores siblings fled, splitting up briefly before


       1
         Jesse Flores and Faith Flores are not related to each other, but both are half-
siblings to Johnathon Flores. Johnathon and Faith share the same mother, while Jesse
and Johnathon share the same father. Because all three share the same surname, we will
occasionally refer to them by first name for purposes of clarity.

                                               2
No. 32507-5-III
State v. Flores


meeting together later. They took the $80; Weitman's keys ended up in the freezer and

his cell phone on the floor by the door.

       All three were eventually charged in Okanogan County Superior Court with

varying robbery and assault charges. Jesse Flores pleaded guilty, while Faith Flores

reached a plea deal that required her to testify against her brother. Johnathon, charged

with first degree robbery and first degree assault, both alleged to have been committed

with a deadly weapon, elected to take his case to trial. The trial court appointed the

Okanogan County contract indigent defender to represent Johnathon Flores. The law

office of MacDougall & Prince held the indigent defender contract for the county. Clerk's

Papers (CP) at 156. That office soon thereafter assigned Emma Paulsen to represent

Johnathon Flores. She filed a notice of appearance dated June 6, 2013. CP at 15 5.

       Ms. Paulsen represented Johnathon Flores until withdrawing five months later.

When Ms. Paulsen withdrew, Mubarak Raheem substituted as counsel for Johnathon

Flores. CP at 154. The contact address Mr. Raheem filed with the court was different

than that of the MacDougall firm. CP at 154, 156. During the litigation, Mr. Raheem

filed documents with the court on pleading paper bearing his office's name and address,

as well as on pleading paper from the MacDougall & Prince firm.

      Mr. Raheem provided the sole representation for Mr. Flores in front of the jury.

Faith Flores testified for the prosecution, as did Mr. Weitman, Ms. Mccorkle, and several

law enforcement officers. Jesse Flores was the sole witness to testify for the defense.

                                             3
No. 32507-5-III
State v. Flores


       Weitman testified that he was assaulted by the two Flores brothers and was

stabbed by Jesse. Defense counsel questioned Weitman about his telephone conversation

with Johnathon, confirming that Johnathon had been calm and had not threatened him.

Cross-examination also developed that Weitman weighed around 350 pounds and was

five inches taller and more than 200 pounds heavier than Jesse. Weitman was not asked

about his statement to a defense investigator or whether he had conversations with

Johnathon Flores' wife.

      Faith Flores testified that she called both of the brothers and asked for their help

with Weitman. Although she did not tell them what to do, she wanted them to beat

Weitman up for disrespecting her and also regain checks belonging to McCorkle. She had

McCorkle tell Weitman that the Flores siblings were not present, and then the three of

them hid in the house in anticipation of Weitman's arrival. Defense counsel impeached

Faith with the terms of her plea agreement that called for her to spend 25 months in prison

for robbery. She also admitted that she had planned to take Weitman's car.

      Mccorkle testified that she witnessed the three Flores siblings corner Weitman in

the kitchen. Faith walked her out of the kitchen after Jesse had stepped on McCorkle's

foot, causing her pain. She had not wanted anyone to get hurt, but knew something had

happened by the sound of breaking glass.

      The defense called Jesse Flores to testify. He admitted responsibility for stabbing

Weitman and denied that the others had known or expected that he would do so. He also

                                            4
No. 32507-5-III
State v. Flores


claimed responsibility for taking Weitman's property. He told the jury that Johnathon

had only come to talk to Weitman and was not involved in the altercation or theft. The

stabbing occurred when Weitman tried to escape by fighting his way past Jesse.

       Defense counsel then sought to call the defense investigator concerning his

interview with Weitman. The trial court sustained the prosecutor's objection to calling

the witness. on the basis that no foundation had been established to impeach Weitman

since he had never been asked about the interview. A similar objection was sustained

concerning any testimony from Michaela Flores, the defendant's wife, about

conversations between her and Weitman. Defense counsel then sought to recall Weitman

to the stand to set a foundation for impeaching him. The trial court again sustained the

prosecutor's objection, noting that Weitman had been excused and had not been on the

defense witness list.

       In closing argument, the defense argued that Johnathon was an innocent bystander

who had only traveled to Okanogan to talk to Weitman about the way he treated Faith

Flores. Ms. Flores, the chief instigator of the confrontation, had been pursuing her own

agenda and had not recruited Jonathon for criminal activity. The jury did not accept the

argument and, instead, found Johnathon Flores guilty of both crimes and the

accompanying deadly weapon allegations.

       Mr. Raheem filed a motion for a new trial, focusing on alleged juror misconduct,

late disclosure of evidence, and the court's refusal to recall Weitman to the stand. Ms.

                                             5
No. 32507-5-III
State v. Flores


MacDougall appeared with Mr. Raheem for the post-trial hearings and argued the new

trial motion. The court stood by its original ruling concerning Weitman' s testimony and

the court denied the motion.

       Mr. Raheem represented Mr. Flores at sentencing. The court imposed concurrent

standard range sentences. Mr. Flores then timely appealed to this court. Subsequently,

Mr. Raheem's qualifications to try this case were put at issue. In an affidavit, he alleged

that he was not qualified because, while he had tried three felony cases to a jury, he did

not have sufficient practice experience. 2 The appellate record was also supplemented

with his certifications of SID compliance during the 2013 calendar year.

       We granted the motion of The Defender Initiative to file an amicus curiae brief. A

panel subsequently heard oral argument.

                                       ANALYSIS

      As indicated previously, the sole issue we consider in the published portion of this

opinion is a contention, raised both by Mr. Flores and the amicus, that appellant was

constructively denied his constitutional right to counsel because Mr. Raheem did n_ot

satisfy the requirements of the SID at the time of trial. We consider the ineffective




      2
         At the time of appointment, Mr. Raheem had been admitted to the bar for more
than two years. While the affidavit does not explain why he did not satisfy the time of
practice requirement, appellate counsel clarified at argument that Mr. Raheem did not
practice law during that entire period.

                                             6
No. 32507-5-111
State v. Flores


assistance argument and challenges to the sentence in the unpublished portion of this

opm1on.

      The SID were adopted effective October 1, 2012. With one notable exception, the

standards at issue here were part of that original adoption. Standard 14 deals with the

qualifications of attorneys. Standard 14.1 provides:

             Standard 14.1. In order to assure that indigent accused receive the
      effective assistance of counsel to which they are constitutionally entitled,
      attorneys providing defense services shall meet the following minimum
      professional qualifications:

           A.     Satisfy the minimum requirements for practicing law in
      Washington as determined by the Washington Supreme Court; and

             B.     Be familiar with the statutes, court rules, constitutional
      provisions, and case law relevant to their practice area; and

           C.      Be familiar with the Washington Rules of Professional
      Conduct; and

            D.      Be familiar with the Performance Guidelines for Criminal
      Defense Representation approved by the Washington State Bar
      Association; and

             E.      Be familiar with the consequences of a conviction or
      adjudication, including possible immigration consequences and the
      possibility of civil commitment proceedings based on a criminal
      conviction; and

             F.     Be familiar with mental health issues and be able to identify
      the need to obtain expert services; and

             G.    Complete seven hours of continuing legal education within
      each calendar year in courses relating to their public defense practice.


                                            7
No. 32507-5-III
State v. Flores


      Also at issue is Standard 14.2 B.

      B.     Adult Felony Cases-Class A.          Each attorney representing a
             defendant accused of a Class A felony as defined in RCW 9A.20.020
             shall meet the following requirements:

             1.     The minimum requirements set forth in Section 1; and

             11.    Either:

             a.     has served two years as a prosecutor; or

             b.     has served two years as a public defender; or two years in a
      private criminal practice; and

              iii. Has been trial counsel alone or with other counsel and handled a
      significant portion of the trial in three felony cases that have been submitted
      to a jury.

      CrR 3.l(d)(4) states:

      Before appointing a lawyer for an indigent person, or at the first appearance
      of the lawyer in the case, the court shall require the lawyer to certify to the
      court that he or she complies with the applicable Standards for Indigent
      Defense Services to be approved by the Supreme Court.

In turn, the SID provides a sample certification form. The version adopted in 2013 reads:

                         CERTIFICATION OF COMPLIANCE

             For criminal and juvenile offender cases, a signed Certification of
      Compliance with Applicable Standards must be filed by an appointed
      attorney by separate written certification on a quarterly basis in each court
      in which the attorney has been appointed as counsel.

      The certification must be in substantially the following form:




                                            8
No. 32507-5-111
State v. Flores


SEPARATE CERTIFICATION FORM

[ ] SUPERIOR COURT        [ ) JUVENILE DEPARTMENT
[ ] DISTRICT COURT        [ ] MUNICIPAL COURT
FOR                                                             [ ] No.: _ _ _ _ __
[ ] CITY OF [ ) COUNTY O F - - - - - - - -                      [ ] Administrative Filing
ST ATE OF WASHINGTON



CERTIFICATION BY:                                              CERTIFICATION OF APPOINTED
         [NAME], [WSBA#]                                       COUNSEL OF COMPLIANCE WITH
FOR THE:                                                       STAND ARDS REQUIRED BY CRR 3 .1
[1 sr,2No, 3RD, 4TH] CALENDAR             QUARTER OF           / CRRLJ 3.1 / JuCR 9.2
[YEAR]
The undersigned attorney hereby certifies:
1.     Approximately _ _% of my total practice time is devoted to indigent defense cases.
2.     I am familiar with the applicable Standards adopted by the Supreme Court for attorneys
appointed to represent indigent persons and that:
   a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard
      14.1.
   b. Office: I have access to an office that accommodates confidential meetings with clients,
      and I have a postal address and adequate telephone services to ensure prompt response to
      client contact, in compliance with Standard 5.2.
   c. Investigators: I have investigators available to me and will use investigative services as
      appropriate, in compliance with Standard 6.1.
   d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my
      cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective
      January 1, 2015 for misdemeanor caseloads: I should not accept a greater number of cases
      (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the
      amount of time spent for indigent defense is less than full time, and taking into account the
      case counting and weighting system applicable in my jurisdiction.]
   e. Case Specific Qualifications: I am familiar with the specific case qualifications in
      Standard 14.2, Sections B-K and will not accept appointment in a case as lead counsel
      unless I meet the qualifications for that case. [Effective October 1, 2013]



   Signature, WSBA#                                                  Date




                                                 9
No. 32507-5-111
State v. Flores


       The certifications filed by Mr. Raheem during this time period did not include

subparagraph 2.e adopted in 2013, but instead used the certification form adopted in 2012

that included only the paragraphs listed in 2.a through 2.d. CP at 184-186.

       Mr. Flores and amicus argue that Mr. Raheem was not acting as counsel under the

Sixth Amendment to the United States Constitution because he did not satisfy the two

year practice requirement before undertaking representation in this case. The authorities

do not support their argument.

       The Washington Supreme Court has the authority to promulgate rules that create

procedural, but not substantive, rights. State v. Templeton, 148 Wn.2d 193, 212, 59 P.3d

632 (2002). Courts interpret court rules the same way they do statutes, using the tools of

statutory construction. State v. Hawkins, 181 Wn.2d 170,183,332 P.3d 408 (2014).

Questions of statutory interpretation are reviewed de novo. State v. Bradshaw, 152

Wn.2d 528,531, 98 P.3d 1190 (2004). A court begins by looking at the plain meaning of

the rule as expressed through the words themselves. Tesoro Ref & Mktg. Co. v. Dep 't of

Revenue, 164 Wn.2d 310, 317, 190 P.3d 28 (2008). If the meaning is plain on its face,

the court applies the plain meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d

201 (2007). Only if the language is ambiguous does the court look to aids of

construction. Id. at 110-11. A provision is ambiguous if it is reasonably subject to

multiple interpretations. State v. Engel, 166 Wn.2d 572, 579, 210 P.3d 1007 (2009).

None of the provisions at issue here are ambiguous.

                                            10
No. 32507-5-III
State v. Flores


       Whether it was error for Mr. Raheem to undertake the representation in this case is

a question we cannot answer on this record. CrR 3 .1 (d)( 4) requires the court to require

certification by counsel either prior to appointment or when counsel appears in a case.

Here, the court appointed MacDougall & Prince. No questions have been raised

concerning their certifications. However, there was no certification by Mr. Raheem

accompanying his appearance. Whether that is a violation of the rule or not is dependent

on facts not in this record. The relationship between Okanogan County's indigent

contract defender and appointees such as Mr. Raheem has not been explained. Some of

the documents filed by Mr. Raheem were on his own pleading paper and others were on

MacDougall & Prince pleading paper, making it appear that he was an employee of the

firm or working under their direction. Similarly, whether MacDougall & Prince were

expected to have a role in trial is another undeveloped fact. 3 The presence of Ms.

MacDougall in the post-trial motions suggests that her firm may have retained the

original appointment to represent Mr. Flores. Since their role in this case is an unknown

factor, we simply cannot say that the court erred by not requiring Mr. Raheem to certify

his compliance with the SID upon appearing in the case. Nonetheless, we recommend

that any counsel appearing on behalf of an indigent criminal defendant certify in the


       3
         Whether MacDougall & Prince assisted during the trial is yet another
undeveloped fact. We therefore do not have to address the thorny question of whether
assistance would require presence of an experienced attorney in the courtroom, or
whether remote assistance is sufficient.

                                             11
No. 32507-5-III
State v. Flores


appearance or substitution form that he or she is qualified under Standard 14.2 to

undertake the representation. 4

       The immediate problem here is that Mr. Raheem represented Mr. Flores when he

did not have the two years of criminal practice experience required by Standard 14.2 B. 5

As noted, the contention is that Mr. Raheem was not "counsel" within the meaning of the

Sixth Amendment guarantee, leaving no need for Mr. Flores to establish that he somehow

was prejudiced by Mr. Raheem's representation. Compare, Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This situation, however, is a far cry

from the circumstances where a legal representative was deemed not to be counsel.

       The primary Washington case is City ofSeattle v. Ratliff, 100 Wn.2d 212, 667

P.2d 630 (1983). There a law student, working as a rule 96 intern, was ordered by the

trial court to represent a defendant without the presence of his supervising attorney and

without having any opportunity to prepare the case. Id. at 214. The Washington

Supreme Court noted that "counsel" under the state and federal constitutions was a


       4
         Another potential problem would be an amendment of existing charges to more
serious ones that appointed counsel might not be qualified to handle. The trial court
might want to consider the qualifications issue at the time of arraigning the defendant on
the amended information.
       5
         While the parties also argue about Mr. Raheem's compliance certificate, that
document is of little consequence. The missing paragraph simply certifies that counsel
was aware of the requirements of Standard 14.2, a fact not in question here, and certifies
he will not accept future cases for which he is not qualified. It does not speak to whether
or not counsel has done so in the past or in a current case.
       6
         APR 9.

                                            12
No. 32507-5-III
State v. Flores


person "authorized by the courts to practice law." Id. at 217. To that end, it recognized

both that attorneys and properly supervised rule 9 interns satisfied constitutional

standards. Id. at 217-18. The convictions were reversed because the intern representing

Mr. Ratliff was prevented from complying with the requirements of APR 9. Id. at 218-

21. The intern did not attain the status of"counsel" in that circumstance and reversal was

mandated without need to show prejudice. Id. at 221.

       Mr. Flores argues that Mr. Raheem should be equated with the intern in Ratliff and

not considered counsel under the Sixth Amendment, with the SID treated similarly to

APR 9. Extending Ratliff in that manner would actually put this court in conflict with

Ratliff There the court expressly defined constitutional "counsel" as a person authorized

to practice law. Id. at 217. There simply is no rule history or subsequent case law

suggesting that the court intended the adoption of Standard 14.2 to redefine the

constitutional meaning of "counsel."

       Our court has at least twice considered criminal defense standards in recent years.

The first instance was State v. A.NJ., 168 Wn.2d 91, 225 P.3d 956 (2010). There the

Washington Defender Standards, although not adopted by the court, were argued by the

defendant on appeal. Id. at 109-10. Although acknowledging that "professional

standards do not establish minimum Sixth Amendment standards," the court still found

them "useful to courts in evaluating things like effective assistance of counsel." Id. at

110. The court then detailed the proper use of the standards:

                                             13
No. 32507-5-III
State v. Flores


        While we do not adopt the WDA Standards for Public Defense Services,
        we hold they, and certainly the bar association's standards, may be
        considered with other evidence concerning the effective assistance of
        counsel.

Id. 7

        The issue of professional standards was revisited in In re Pers. Restraint of Gomez,

180 Wn.2d 337,325 P.3d 142 (2014). 8 The court's analysis was blunt:

        Prevailing professional standards may serve as guides for determining what
        is reasonable but may not serve as a checklist for evaluating attorney
        performance.

Id. at 351 (citing Strickland, 466 U.S. at 688-689). In a footnote to that statement, the

court quoted A.NJ.: "This court has previously concluded that 'professional standards are

evidence of what should be done, no more."' Id. at 3 51 n.3 ( quoting 168 Wn.2d at 113 ) 7

        In light of this history, we conclude that the adoption of the SID did not redefine

what constitutes counsel under the Sixth Amendment. As in Gomez and A.NJ., we hold

that violation of the SID is evidence of ineffective assistance of counsel. It is not a

categorical denial of counsel. To do anything else is to impose a higher standard of

representation for indigent defendants than the Sixth Amendment requires for retained



        7
         A.NJ. also held that a public defense contract that required the attorney to fund
experts out of the fees paid counsel "may be considered as evidence of ineffective
                                                                                               I
assistance of counsel." Id. at 112.
                                                                                               I!
       8
         Because the SID had not been adopted at the time of the Gomez trial, the court
declined to apply them to the evaluation of counsel's experience. 180 Wn.2d at 351 n.2.
                                                                                               I
                                             14
                                                                                               lI
                                                                                               J
No. 32507-5-III
State v. Flores


counsel. 9 Here, even if Mr. Raheem had committed no errors at all, or had achieved an

acquittal on all counts save some uncontested misdemeanor charge, Mr. Flores would still

receive a new trial due to noncompliance with Standard 14.2. Such an outcome places

the rule above that it is supposed to effectuate.

       On the same day that it decided Strickland, the United States Supreme Court

issued United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

There the court overturned a court of appeals standard that had focused on the attorney's

experience and case complexity rather than attorney performance. It noted:

               That conclusion is not undermined by the fact that respondent's
       lawyer was young, that his principal practice was in real estate, or that this
       was his first jury trial. Every experienced criminal defense attorney once
       tried his first criminal case .... The character of a particular lawyer's
       experience may shed light in an evaluation of his actual performance, but it
       does not justify a presumption of ineffectiveness in the absence of such an
       evaluation.

Id. at 665. We concur.

       Although we reject the per se argument that Mr. Flores presents in this appeal, we

are troubled by what took place here. It appears that Mr. Raheem never called the

problem to the attention of the trial judge, the person charged with ensuring compliance

with the standards, even though he talked to two experienced attorneys at MacDougall &


       9
        If Mr. Raheem had been retained rather than appointed, the sole issue would be
whether he had satisfied his Sixth Amendment obligations under Strickland, just as it
would be with any other criminal defense attorney. The SID address one group of
attorneys, not all who perform criminal defense.

                                              15
No. 32507-5-III
State v. Flores


Prince about his noncompliance during the trial. 10 If alerted, the court could have taken

efforts to assure compliance with the standards, whether that amounted to requiring an

attorney to appear and assist with trial or declaring a mistrial. Keeping the trial judge in

the dark and holding the argument for appeal is not acceptable.

       No remedy is provided in the SID for violation of the standards set forth therein.

This omission suggests that the remedy for violations of the standards rests with the

disciplinary process. Whether there was a violation of the Rules of Professional Conduct

is a question that only an appropriate investigation can answer. We do not opine on it.

       Affirmed.

       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.

       We address next Mr. Flores' ineffective assistance of counsel claim, followed by a

rather summary treatment of the remaining issues that present challenges to various

portions of the judgment and sentence.




       10
         Equally troubling is the indication that Mr. Raheem also spoke during trial with
attorneys other than MacDougall & Prince seeking advice concerning his situation, but
never presented the issue to the judge.

                                             16
No. 32507-5-III
State v. Flores


       Ineffective Assistance

       The standards governing adequacy of counsel under the Sixth Amendment have

been settled since Strickland. The Sixth Amendment guaranty of the right to counsel

requires that an attorney perform to the standards of the profession. Counsel's failure to

live up to those standards will require a new trial when the client has been prejudiced by

the failure. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In

evaluating ineffectiveness claims, courts must be highly deferential to counsel's

decisions. A strategic or tactical decision is not a basis for finding error. Strickland, 466

U.S. at 689-91. To prevail on a claim of ineffective assistance, the defendant must show

both that his counsel erred and that the error was so significant, in light of the entire trial

record, that it deprived him of a fair trial. Id. at 690-92.

       Here, Mr. Flores argues that his counsel erred in several ways, including that he

did not challenge leading questions and possible hearsay, did not object to testimony

about the arrest of Jesse Flores, and failed to properly impeach Weitman. All but the last

category can be answered summarily. While we do not agree that all of the questions

cited in the brief were leading or called for hearsay responses, none of the challenged

inquiries led to the admission of otherwise inadmissible evidence. A timely objection

may have led to the rewording of a question or an answer, but it would have done nothing

to prevent the ultimate admission of the testimony in question. This is a matter of style,

not substance. No error in the admission of evidence has been demonstrated.

                                               17
No. 32507-5-III
State v. Flores


       Similarly, counsel did not err by failing to object to the fact that Jesse Flores was

found in possession of knives at the time of his arrest. The evidence was

relevant-Johnathon was accused of acting in concert with Jesse, who was alleged to

have stabbed Weitman. The fact that Jesse was arrested with knives similar to the one

displayed during the assault was highly relevant evidence.

       However, Mr. Raheem did err in his efforts to impeach Weitman. He failed to ask

the witness about the prior statements. This was an elemental error. See ER 613(b ). If

asked, Weitman might have agreed that he made the contrary statements and obviated the

need to call any impeachment witnesses. This was a failure to perform to the standards

of the profession. State v. Horton, 116 Wn. App. 909, 916-17, 68 P.3d 1145 (2003). 11

       The remaining Strickland question is whether this error prejudiced Mr. Flores so

significantly that he was denied a fair trial. We conclude that the prejudice was not that

severe. The defense investigator was only going to be asked if Weitman had told him he

believed Mccorkle still was present when the knife was first displayed. This point was

of little moment. Michaela Flores, the defendant's wife, was expected to testify that

Weitman had denied that Johnathon had done anything. Although that information

would have some value to impeach Weitman, he had already explained to the jury that he



       11
          As observed in Cronic, Mr. Raheem's lack of experience is a likely source of
this error. The SID violation supports the conclusion that counsel made a mistake due to
lack of knowledge.

                                             18
No. 32507-5-111
State v. Flores


had told Michaela Flores he would not testify in order to "put her off' after she had asked

him to not testify. Report of Proceedings at 204. In other words, Weitman told Michaela

Flores, already a suspect witness due to her marriage to the defendant and her persistent

efforts to talk to the victim, whatever she wanted to hear. While undoubtedly the

information would have been useful for the defense, it was not so significant that we

believe the verdict would have changed. Weitman had already been impeached with

other minor inconsistencies in his testimony and his prior attempted vehicle theft

conviction. The testimony of Michaela Flores would have added little.

       We conclude that although Mr. Flores has demonstrated that his counsel erred, he

has not demonstrated that the error rendered his trial unfair. Although deficient,

counsel's performance was not ineffective.

      Sentencing Issues

      Mr. Flores also raises a number of claims relating to the judgment and sentence

form. All of these claims have been the subject of numerous recent opinions and are

treated summarily here.

      He first contends that the trial court erred by failing to conduct the necessary

statutory inquiry before imposing discretionary legal financial obligations (LFOs ). See

State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015). However, the discretionary LFOs




                                             19
No. 32507-5-111
State v. Flores


amount to only $60.40. The other $800 in LFOs imposed by the courts are mandatory

assessments. 12 We decline to consider this claim. Id. at 833-34.

       Mr. Flores argues that his due process and equal protection rights were violated

when the court imposed the DNA collection fee, and that he should not have been

ordered to provide an additional DNA sample. As to the claim that his due process rights

were violated by imposition of the DNA collection fee, Mr. Flores can point to no facts in

the record suggesting he cannot pay the $100 fee. This alleged error therefore is not

manifest and we decline to review it. RAP 2.5(a)(3); State v. Lewis, 194 Wn. App. 709,

715,379 P.3d 129 (2016); State v. Shelton, 194 Wn. App. 660, 674-75, 378 P.3d 230              II
(2016); State v. Stoddard, 192 Wn. App. 222,366 P.3d 474 (2016).
                                                                                               I
       The equal protection argument fares no better. Although it states a reviewable          I
constitutional claim, it does not have any merit, in large part because there is no factual
                                                                                               I
basis to establish that anyone was negatively impacted by the classification. Lewis, 194       i

Wn. App. at 715-20; State v. Johnson, 194 Wn. App. 304, 374 P.3d 1206 (2016); State v.
                                                                                               I
Mathers, 193 Wn. App. 913, 376 P.3d 1163 (2016).
                                                                                                I
       Mr. Flores next contends that he should not have to provide an additional DNA           !I
sample. However, the record does not contain any evidence indicating whether he has

                                                                                               I
       12
                                                                                               II
          We note that these sums total $860.40, but the judgment and sentence lists the
tally as $1,110.50. The trial court is directed to revise the judgment to reflect the proper   I
amount. The defendant need not be present.                                                     !
                                             20                                                I
                                                                                               '
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                                                                                               t
                                                                                               '
No. 32507-5-III
State v. Flores


done so in the past. Accordingly, there is no basis for relief. Lewis, 194 Wn. App. at

720-21.

      The judgment and sentence is affirmed.




WE CONCUR:




                                    j




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