       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,
                                           No. 791 09-5-I
                         Respondent,
                                           DIVISION ONE
              V.
                                           UNPUBLISHED OPINION
ANDREW ALLEN ECK,

                         Appellant.        FILED: February 18, 2020


       PER CURIAM   —   Andrew Eck appeals his convictions for six misdemeanor

counts of violating a court order. Eck argues he was denied effective assistance

of counsel because his attorney conceded guilt as to these charges. Because

defense counsel made a legitimate strategic choice that likely resulted in Eck’s

acquittal on more serious felony charges, we affirm.

                                       FACTS

      Andrew Eck and Demetria Murphy are married with two children. They

lived together until September 2017, when Murphy obtained a protection order

prohibiting Eck from contacting her. Eck moved in with his sister but left most of

his personal property at the couple’s home.

      On September 14, 2017, Murphy left for work and Eck came to get some

of his possessions. Murphy returned while Eck was still at the home. Eck

became upset, accusing her of having an affair. Eck punched several holes in

the wall out of anger and Murphy left and got in her car. Eck began texting
No. 791 09-5-1/2


Murphy, threatening to “burn [her] room down” if she did not provide the

password to her bank account so he could investigate the alleged infidelity. A

“big burst of flames” erupted from the bedroom. Investigators surveyed the fire

damage and concluded that Eck poured fingernail polish remover on a bedside

table and ignited it.

       The State charged Eck with first degree arson and violating a court order.

While awaiting trial, Eck made numerous phone calls to Murphy from jail. In

some of the calls, Eck made statements suggesting Murphy should testify

favorably on his behalf. The State charged Eck with five additional counts of

violating a court order and one count of witness tampering.

       In opening statement, defense counsel stated that Eck had been drinking

and using drugs to cope with the recent death of his father and brother. Defense

counsel conceded that Eck violated the no-contact order but argued that he did

not maliciously start the fire:

       As far as the no[-]contact, Mr. Eck, when he first went into the jail,
       was still completely off his gourd and he’s saying mean things to
       [Murphy]. When he got into jail and he started trying to talk to her,
       and realistically, he doesn’t feel bad about talking to his wife. In his
       view, she is the only one who helps him keep on the path that he
       wants to be on now, which [is] a path where he[] starts trying to fix
       some things that he’s done wrong. And so we’ll admit to those
       violations and he’ll take responsibility for those violations.

            But he just wasn’t trying to kill himself and he wasn’t trying to
       burn down the house or burn down the room. He was trying to get
       attention, and he was trying to get attention from a person that he
       loves. So yes, this is a sad story and this is a sad story that ends
       with Mr. Eck needing to make substantial changes in his life and
       needing to deal with things that he hasn’t dealt with in the past.




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         But it is not the story of an arsonist, and it is not a story of
         somebody who’s controlling. And we will ask at the end of this trial
         that you do find him guilty of a no-contact order violation. He
         admits to those. But we will argue that there wasn’t damage and
         there wasn’t substantial damage to anything in the house that
         [Murphy] is still sleeping on the same mattress and everything was
         taken care of. And that as soon as he realized that there was a fire
         at all, it never was out of control. It was a second and it went out.
         We’ll argue that this wasn’t a malicious and intentional fire, and we
         believe at the end of this trial, you will find him not guilty of that part
         of the offense.
Prior to Murphy’s testimony, Eck stipulated that he knew a court order prevented

him from contacting her.

         During closing argument, defense counsel acknowledged that the

evidence clearly showed that Eck contacted Murphy in violation of the no-contact

order.

         As far as the violations of [the] no[-]contact order, yeah, he called
         her, there was a no[-]contact order. As I indicated before he
         doesn’t really feel bad about it because he wanted to talk to his
         wife. And she testified that he called her; you heard the calls.
         There’s nothing I can say about the fact that he made those calls.
         We expect you to find him guilty of the violations of [thel no[
         ]contact order.
         The jury convicted Eck of the six counts of violating the no-contact order,

but acquitted him of the two felony charges. Eck appeals.

                                        ANALYSIS

         Eck argues he was denied effective assistance of counsel because his

attorney conceded guilt as to the no-contact order violations. We disagree.

         Whether counsel was ineffective is a question of law we review de novo.

In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). To show

ineffective assistance of counsel, a defendant must show both deficient



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performance and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225-26,

743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Counsel’s representation is deficient if it falls

below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d

668, 705-06, 940 P.2d 1239 (1997). We do not consider an alleged deficiency in

isolation, but rather within its surrounding context. State v. Monday, 171 Wn.2d

667, 675, 257 P.3d 551 (2011). A strong presumption exists that counsel’s

performance was reasonable. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260

(2011). A defendant is prejudiced if, but for the deficient performance, there is a

reasonable probability the trial outcome would have been different. Stenson, 132

Wn.2d at 705-06.

       If defense counsel’s performance can be characterized as legitimate trial

strategy or tactics, performance is not deficient. Grier, 171 Wn.2d at 33.

Conceding guilt on a particular count can be a sound trial tactic when the

evidence on that count is overwhelming. State v. Silva, 106 Wn. App. 586, 596,

24 P.3d 477 (2001). This approach may help win the jury’s confidence and

preserve the defendant’s credibility when a more serious charge is at stake.

State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96 (2007); Silva, 106 Wn.

App. at 597-98. Defense counsel is not required to consult with the client before

making this strategic move. Silva, 106 Wn. App. at 596 (citing Underwood v.

Clark, 939 F.2d 473, 474 (7th Cir. 1991)).

      Here, defense counsel made a tactical decision to concede Eck’s guilt as

to the misdemeanor charges. The evidence that Eck repeatedly violated the no


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contact order was overwhelming. Eck sent threatening text messages to

Murphy. The record also shows Eck’s booking number was used to place calls

from jail to Murphy. The telephone calls were recorded and played for the jury.

Murphy testified at trial and identified Eck’s voice on the recordings. During the

calls, Eck and Murphy discussed details relevant to Eck’s case. Defense

counsel’s decision to admit guilt as to the no-contact order violations was a

legitimate strategy to support the defense theory of the case, gain the jury’s

sympathy, and preserve Eck’s credibility as to the felony charges. Accordingly,

Eck’s ineffective assistance claim fails.1

        We affirm.


                 FOR THE COURT:                   _______________________




         1 We reject Ecks argument that defense counsel’s concession was a structural

deprivation of his right to counsel under U.S. v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed.
2d 657 (1984). Cronic recognizes a narrow exception to the Strickland test, in which prejudice is
presumed when “‘counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.’” Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002)
(quoting Cronic, 466 U.S. at 659). Eck contends defense counsel failed to subject the State’s
proof regarding the no-contact order violations to a meaningful adversarial test and effectively left
him without counsel. But because defense counsel’s concession was a legitimate trial tactic
rather than a complete fai ure to contest the State’s case, Cronic does not apply.


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