                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 2, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

    STATE OF WASHINGTON,                                              No. 46693-7-II

                                Respondent,

         v.

    DANIEL JAMES JACKSON,                                      UNPUBLISHED OPINION

                                Appellant.

        JOHANSON, C.J. —      Daniel James Jackson appeals his guilty plea conviction of fourth

degree assault. He argues that his trial counsel’ s failure to investigate certain evidence or discuss

a possible self-defense claim with him constituted ineffective assistance of counsel and resulted in

his entry of an involuntary guilty plea. Because the record does not support Jackson’ s ineffective

assistance of counsel claim, we affirm.

                                              FACTS

        On August 7, 2014, Jackson entered an Alford1 plea to an amended charge of fourth degree

assault.2 The statement of defendant on plea of guilty (SDPG) stated that he had been advised of


1
 North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (a defendant
may plead guilty while disputing the facts alleged by the prosecution); see also State v. Newton,
87 Wn.2d 363, 552 P.2d 682 (1976).

2
 The State originally charged Jackson with second degree assault with a deadly weapon sentencing
enhancement.
No. 46693-7-II


his rights and had waived those rights, that he made the “ plea freely and voluntarily,” and that

  n]o one has threatened harm of any kind to [him] or to any other person to cause [ him] to make

this plea.” Clerk’ s Papers (CP) at 32. Trial counsel also signed the SDPG stating that he had read

and discussed the SDPG with Jackson and believed that Jackson was competent and fully

understood the document.

       At the change of plea hearing, Jackson acknowledged that he had read the SDPG and had

also reviewed the SDPG, the elements of the crime, and the rights he would be forfeiting with trial

counsel. Jackson also confirmed that he was freely and voluntarily making his plea, that no one

had threatened him or coerced him in any way in order to get him to plead guilty, and that no one

had made him any promises not reflected in the SDPG. The trial court found a factual basis for

the plea based on the statement of probable cause and accepted the guilty plea.

       The trial court then proceeded to sentencing. During this portion of the hearing, the State

asserted that the victim claimed that Jackson had attempted to pull a knife on him and his father-

in law outside a local grocery store when they refused his request for money and that the father -

in-law had “ knocked Mr. Jackson over” when they saw the knife and Jackson was injured. Report

of Proceedings (RP) (Aug. 7, 2014) at 7. Jackson’ s counsel disputed the State’ s representation of

the facts, stating that Jackson asserted that he had not pulled a knife and that he was just turning

away when “someone slammed him to the ground,” causing significant injuries. RP (Aug. 7, 2014)

at 8. Trial counsel further stated that Jackson was initially hesitant to accept the plea offer because

he “ believe[d] he did not do anything wrong” and was the one who was assaulted, but he changed

his plea because he did not have the money to post bail and would get out of jail that day if he




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No. 46693-7-II


pleaded guilty. RP (Aug. 7, 2014) at 9. Jackson filed a timely notice of appeal challenging his

conviction.

       Approximately a month after filing his notice of appeal, Jackson, now represented by new

counsel, filed a CrR 7.8 motion to withdraw his guilty plea. Jackson’ s declaration supporting this

motion stated,

               I was previously represented by Alex Stalker and I do not believe that he
       provided me with the [ sic] sufficient information to make an informed decision
       about pleading guilty to the reduced crime of assault in the 4th degree. I believe
       that there was additional evidence that would have exonerated me and proved that
       I was attacked by the complaining witness, which included video footage that was
       never reviewed. I feel as if I was coerced to change my plea, even though I wanted
       to go to trial and be exonerated.
               Although I knew that I was pleading guilty, I do not believe that it was done
       voluntarily. I believe that I was forced to do so by my attorney, who was unwilling
       to take my case to trial. I was defending myself at the time and suffered injuries to
       my teeth and jaw, for which I will never be able to be adequately compensated. I
       was never provided with the discovery from the prosecuting attorney and believe
       that my lawyer did not contact witnesses and failed to adequately prepare my case.
       I was not aware of all of the consequences of my plea of guilty, including my
       expulsion from the local Safeway store, where I previously shopped. I wanted to
       take my case to trial, and my attorney did not follow my wishes and coerced me to
       plead guilty.

CP at 12-13 (emphasis added).

       The State opposed the CrR 7.8 motion to withdraw the plea, arguing that Jackson signed

the SDPG after a full colloquy regarding the plea and that Jackson had not established that trial

counsel failed to provide “ competent assistance.”    CP at 7. In regard to the video, the State

commented, “[ Jackson] claims an unknown video would exonerate him. The State has not located

a video, let alone a video that would change the facts of the case.” CP at 8.

       At the motion hearing, Jackson’ s new counsel argued,

        Jackson] believes that there would have been evidence that would have exonerated
       him and he told me that he believed that there was video footage that was never

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No. 46693-7-II


         reviewed and he felt as if he would [sic] coerced to change his plea and he doesn’ t
         believe that his change of plea was voluntary and he believes that he suffered
         injuries which would have perhaps gone to convince a jury that he was the victim
         and he indicated that he wasn’ t provided with discovery from the prosecutor by his
         attorney and he has reason to believe that his lawyer did not contact witnesses and
         failed to adequately pursue his case.

RP (Oct. 23, 2014) at 5-6 (emphasis added). The State responded that there was nothing supporting

Jackson’ s claim that a video existed, no information regarding evidence that was not shown to

him, and no information about other witnesses. The trial court denied Jackson’ s CrR 7.8 motion.3

                                              ANALYSIS

         Jackson argues that his trial counsel’ s failure to investigate the video and to properly advise

him about a possible self-defense claim constituted ineffective assistance of counsel resulting in

his entry of an involuntary guilty plea. Jackson further asserts that his affidavit supporting his CrR

7.8 motion provides proof of this deficiency. Based on this record, this argument fails.

         We review a claim of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). “ To prevail on an ineffective assistance of counsel claim,

Jackson] must show that (1) defense counsel’ s representation was deficient in that it fell below an

objective standard of reasonableness and (2) the deficient performance prejudiced the defendant.”

Sutherby, 165 Wn.2d at 883 (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

1995)). To meet the first part of the test, Jackson must show that trial counsel’ s representation

    fell below an objective standard of reasonableness based on consideration of all the

circumstances.”    McFarland, 127 Wn.2d at 334-35. It is Jackson’ s burden “ to show deficient



3
 Our commissioner denied Jackson’ s motion to file a late notice of appeal challenging the trial
court’ s November 24, 2014 denial of the CrR 7.8 motion to withdraw his plea. Accordingly, we
do not address whether the trial court properly denied the CrR 7.8 motion.

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No. 46693-7-II


representation based on the record established in the proceedings below.” McFarland, 127 Wn.2d

at 335. “ Effective assistance of counsel includes assisting the defendant in making an informed

decision as to whether to plead guilty or to proceed to trial.” State v. A.N.J., 168 Wn.2d 91, 111,

225 P.3d 956 (2010).

       Jackson argues that trial counsel failed to investigate the video and that his affidavit

supporting his CrR 7.8 motion supports this argument. But there is nothing in the record showing

that this video existed or that trial counsel was aware of any video at the time he advised Jackson

about the plea. Even assuming, without deciding, that we can consider Jackson’ s declaration, the

record shows only that Jackson “ believe[d]” a video existed and that the State was unable to locate

such a video. CP at 12. Without evidence in the record demonstrating that an exculpatory video

existed or that trial counsel was aware of such a video, Jackson cannot establish that trial counsel

was deficient for failing to investigate the video or that there was any additional information

Jackson should have considered before entering his guilty plea. Additionally, because there is no

evidence in the record that an exculpatory video existed, Jackson also fails to establish that he was

prejudiced by any failure to investigate the video.4

       Jackson further argues that his guilty plea was involuntary because his trial counsel did not

properly advise him about a possible self-defense claim before Jackson entered his plea. Portions

of the record, specifically trial counsel’ s argument at sentencing, suggest that Jackson was

claiming that he had acted in self-defense and that trial counsel was aware of this claim. But




4
  If there is evidence outside the record supporting this claim, the proper way to present this issue
is to file a personal restraint petition. McFarland, 127 Wn.2d at 335.

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No. 46693-7-II


precisely what advice trial counsel gave Jackson about this possible defense before Jackson entered

his guilty plea is outside the record. Accordingly, this argument also fails.5

          Because Jackson does not establish on this record that trial counsel’ s deficient performance

resulted in the entry of an involuntary guilty plea, 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 2.06.040,

it is so ordered.




                                                      JOHANSON, C.J.
    We concur:




    WORSWICK, J.




    LEE, J.




5
  Again, if there is evidence outside the record supporting this claim, the proper way to present this
issue is to file a personal restraint petition. McFarland, 127 Wn.2d at 335.
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