                                                                              FLED
                                                                      001JR1' OF APPEALS
                                                                           DIMIS[mq TI,
                                                                    2013 JUN -4 AM 8: 57

                                                                    STATE OF WASHINGTON
                                                                     BY-
                                                                       DEPU




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                              No. 42851 2 II
                                                                            - -


                              Respondent,

        V.




EDWARD CHARLES HALSTEN,                                     UNPUBLISHED OPINION




        JOHANSON, A. .
                  J.
                   C           Edward Charles Halsten appeals the trial court's denial of his
                                —


motion to withdraw his guilty plea, and he also claims the trial court denied him a fair sentencing

hearing when it considered matters outside the record. In his statement of additional grounds

SAG),' appeals his convictions and sentence claiming defense counsel provided ineffective
    he
assistance.   We affirm his convictions and sentence because the trial court did not abuse its

discretion by finding that Halsten pleaded guilty knowingly, voluntarily, and intelligently and
because he failed to demonstrate defense counsel's deficient performance or prejudice.




1
    RAP 10. 0.
          1
No. 42851 2 II
          - -



                                                     FACTS


       In 2011, authorities arrested Halsten after he twice sold              methamphetamine. Searching

Halsten's   car   incident to   arrest, officers   found evidence of   drug delivery: The State charged

Halsten with two counts of delivering a controlled substance ( counts 1 and 2)and one count of

possessing a
           '      controlled substance with intent to manufacture        or    deliver (count 3).The   trial


court appointed Christopher Baum to represent Halsten.

       The State offered to recommend a 75 month sentence if Halsten pleaded guilty to all
                                           -

three counts.      Because count 3 involved a larger amount of methamphetamine, Halsten was

ineligible for a Drug Offender Sentencing Alternative (DOSA). Baum identified a potential.
                                                            But
suppression issue in count 3 and negotiated a revised plea offer. In exchange for Halsten's guilty

pleas to counts 1 and 2, the State offered to dismiss count 3, recommend an agreed 75 month
                                                                                      -

sentence, and allow Halsten to request a 75 month DOSA.
                                            -

       Halsten accepted the State's revised offer and pleaded guilty to two counts of delivery of

a controlled substance. During the plea colloquy, Halsten stated that nobody forced him to plead

guilty, that he understood his rights, and that he understood that the State's sentencing

recommendation did not bind the trial court. Halsten's statement on plea of guilty also informed

him that the "judge does not have to follow anyone's recommendation as to sentence," that
                                                                                   and

the judge "may sentence [him] under the drug offender sentencing alternative." Clerk's Papers
CP)at 12, 14 (emphasis added). Further, at the plea hearing, the trial court specifically stated,

2
    RCW 69. 0. b). (
        401(
           1 2)(
           5 ),
3
    RCW 69. 0. b). (
        401(
           1 2)(
           5 ),
4
    RCW 9.
        660.
          94A.



                                                        2
No. 42851 2 II
          - -




T] e sentencing judge ...
 h                                     is free to give you any sentence the judge feels is appropriate .. .

t]
 hat    includes not       accepting    the DOSA." Verbatim      Report of Proceedings (VRP) Sep. 29,
                                                                                             (

2011)at 9. Halsten indicated that he understood.

        During a presentence DOSA evaluation, Halsten told the Department of Corrections

DOC) evaluator that he used methamphetamine at least daily and that he had sold drugs for 10

years. The DOSA evaluation concluded that the likelihood of Halsten's DOSA program success

was very minimal.

        The day the DOC evaluator filed the DOSA evaluation with the trial court, Halsten asked

to withdraw his plea because Baum had coerced him into pleading guilty. Baum then withdrew

as Halsten's attorney and Halsten received new counsel. At the plea withdrawal hearing, Halsten

argued that he only pleaded guilty because Baum led him to believe, under false pretenses, that

going   to   trial   was   the "wrong     thing   to do."VRP (Nov. 30, 2011) at 10.      Halsten stated that


Baum never answered any questions about his case and only told him to accept the plea offer.

During cross -examination at the plea withdrawal hearing, Halsten stated that Baum told him that

he had the right to go to trial, but Halsten did not wish. o go to trial with incompetent counsel.
                                                         t

Halsten also stated that he did not have a drug problem.

         After Halsten's        cross - examination, the trial   court asked him    several   questions.   In


response, Halsten admitted that he lied at the plea hearing when he stated that he was not being

forced to plead. He also testified that he lied when he stated that the fact statement on the plea
form was his statement.


         Baum testified at the plea withdrawal hearing that he had discussed Halsten's options

with him before the guilty plea hearing. Baum explained that he had advised Halsten that the


                                                          3
No. 42851 2 II
          - -




plea offer was probably safer because of Halsten's criminal history and the risk of taking the case

to trial.


        The trial court denied Halsten's motion to withdraw his guilty plea. The trial court stated

that Halsten's     testimony   was   not credible because, he had    repeatedly   lied.   Proceeding to

sentencing, the State sought two concurrent 75 month sentences and opposed the DOSA,
                                               -

agreeing with the DOC recommendation that a DOSA would be ineffective under the

circumstances. Halsten requested a DOSA, or alternatively, the agreed recommendation of 75

months.       The trial court imposed two concurrent 96 month sentences largely because Halsten
                                                        -

lied to the court at the plea withdrawal hearing, at the sentencing hearing, and during the DOSA

evaluation. The court also stated that Halsten is a drug dealer that profits from the transactions.

Halsten timely appeals.

                                                 ANALYSIS


                           I.KNOWING, INTELLIGENT, AND VOLUNTARY PLEA

            First, Halsten argues the trial court denied him due process when it denied . motion to
                                                                                        his

withdraw his guilty plea because he did not plead knowingly, voluntarily, and intelligently due to

Baum's coercion. Specifically, Halsten claims that he did not plead knowingly and voluntarily

because Baum's lack of preparation"coerced Halsten into "taking a plea bargain that he did not
                "

want to enter."Br. of Appellant at 16. We disagree.

            We will set aside the trial court's exercise of discretion in reviewing a motion to

withdraw only upon a clear abuse of discretion. State v. Olmsted, 70 Wn. d 116, 118, 422 P. d
                                                                       2                  2

312 (1966).According to CrR 4. ( court "shall allow" a defendant to withdraw his guilty
                            f),
                             2a

plea   when it is " necessary to correct     a   manifest   injustice." The defendant must meet the



                                                     4
No. 42851 2 II
          - -




demanding" standard        of    showing   that   a   manifest   injustice   exists.   State v. Taylor, 83 Wn. d
                                                                                                             2

594, 596, 521 P. d 699 (1974).
               2

       To support his argument, Halsten relies on State v. Kissee, 88 Wn. App. 817, 947 P. d
                                                                                         2

262 (1997)and State v. Walsh, 143 Wn. d 1, 17 P. d 591 (2001).But here, unlike in Kissee and
                                    2          3

in Walsh, there was no mistake of fact. In Kissee, we allowed Kissee to withdraw his guilty plea,

concluding that he pleaded involuntarily because he was mistakenly told that he was eligible for

a Special Sexual Offender Sentencing Alternative. 88 Wn. App. at 822. In Walsh, the defendant

pleaded guilty based on mistaken information as to the length of his standard range sentence.

143 Wn. d at 4. Our Supreme Court held that the defendant was entitled to withdraw his plea
      2

because his   plea   was   not   voluntary   due to the mistake.        Walsh, 143 Wn. d at 9 10. Because
                                                                                     2        -

here, Halsten does not show a mistake, Kissee and Walsh are inapposite and do not support

Halsten's argument that he should be allowed to withdraw his guilty plea.

       The defendant's high burden of proof requires more evidence than "a mere allegation by
                                                     ,

the defendant." State v. Osborne, 102 Wn. d 87, 97, 684 P. d 683 (1984).In Osborne, one of
                                        2                2

the defendants moved to withdraw his guilty plea, stating that he pleaded involuntarily because
his wife threatened to commit suicide if he went to trial. 102 Wn. d at 92, 96 97. Our Supreme
                                                                 2             -

Court determined that because the defendant had "specifically stated, several times during the

plea proceedings, that his guilty plea was voluntary and free of coercion,"
                                                                          these statements on

the record constituted "`
                        highly persuasive' evidence of voluntariness" that required more than

just a "mere allegation of the defendant"to be overcome. Osborne, 102 Wn. d at 97.
                                                                        2

        Similarly, Halsten made several specific indications during his plea hearing that his plea

was voluntary and free of coercion. Like the defendant in Osborne, Halsten presents nothing to


                                                           5
No. 42851 2 II
          - -




overcome this "` ighly persuasive' evidence of voluntariness" other than his allegation that
               h

Baum had coerced Halsten into     pleading by convincing   Halsten that trial   was   inadvisable. 102


Wn. d at 97.
  2              Halsten fails to demonstrate that the trial court clearly abused its discretion in

denying his motion to withdraw his guilty plea.

                                      II.RIGHT To FAIR TRIAL


       Halsten next argues that the trial court violated his constitutional right to a fair trial

because it lacked impartiality when the trial court acted as an "advocate for one side of the

controversy,"
            made biased comments at sentencing and considered evidence not in the record at

sentencing. Br. of Appellant at 22.

       We disagree that the trial court was biased and that it considered facts not in the record,

and accordingly we affirm Halsten's sentence. A]
                                              "[ dministration of justice is dependent upon the

impartiality, disinterestedness, and fairness on the part of the judge."State ex rel. McFerran v.

Justice Court ofEvangeline Starr, 32 Wn. d 544, 549, 202 P. d 927 (1949).Therefore,judges
                                       2                  2

must not only be impartial, but also appear impartial. State v. Bilal, 77 Wn. App. 720, 722, 893

P. d 674, review denied, 127 Wn. d 1013 (1995).The defendant has the burden of establishing
 2                             2

bias through sufficient evidence. State v. Dominguez, 81 Wn. App. 325, 329 30, 914 P. d 141
                                                                           -        2

1996).In order to maintain the appearance of fairness, we decide whether a reasonably prudent
and disinterested observer would conclude that the proceedings were fair, impartial, and neutral.

Bilal,77 Wn. App. at 722.

       Halsten's evidence of impartiality consists merely of the fact that the trial court sentenced

Halsten beyond the agreed sentence recommendation as well as a short series of questions that

the judge asked Halsten at the motion hearing to gauge Halsten's credibility. Here, Halsten put


                                                  a
No. 42851 2 II
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his credibility at issue when he moved to withdraw his plea because he claimed Baum coerced

him into the plea after expressly stating earlier that he had pleaded voluntarily. The trial court

questioned Halsten to obtain a clear answer and discern the actual circumstances of his guilty

plea. Moreover, RCW 9. )
                    530( 4A. allows the trial court to impose any sentence within the
                       1
                       9

standard range, and the trial court did not sentence Halsten beyond his standard range.

Accordingly, Halsten does not meet his burden of providing sufficient evidence to establish bias.

          Halsten next argues that the trial court violated his right to a fair trial by considering

evidence outside the record. At sentencing, the trial court stated, Halsten] is a drug dealer. He
                                                                    "[

profits    from that." VRP ( Nov. 30, 2011) at 43.        Halsten contends that these statements


illustrate[]the court's lack of impartiality" because there was "no evidence in the record to

support these conclusions."Br. of Appellant     at 23. This   argument fails.   During sentencing, a

      shall
judge "        consider the ...   presentence reports."
                                                      RCW 9. ). his presentence
                                                          500( 4A. During
                                                             1
                                                             9
DOSA evaluation, Halsten indicated that his drug and alcohol problems were "extremely"

serious and that he had been " ealing drugs in Oregon and Washington for over 10 years."CP at
                             d

22, 24. He also stated that he "sold drugs because the money was too good to pass up."CP at

22.       The DOSA evaluation      was   part of the court record     at   sentencing.   Under RCW


530( 4A. the trial court did not err by considering the evidence in the presentence
9. ),
   2
   9
evaluation.




5 On May 17, 2011, this court held RCW 9. ) 500( 4A.unconstitutional " s applied when used to
                                                 1
                                                 9                         a
relieve the State of its burden of proof at sentencing"regarding the defendant's criminal history.
State v. Hunley, 161 Wn. App. 919, 929, 253 P. d 448 (2011), d,175 Wn. d 901, 287 P. d
                                                  3               aff'          2              3
584 (2012). However,        the statute remains valid for our purposes because this case does not
concern criminal history as evidence at sentencing.

                                                   7
No. 42851 2 II
          - -




       Moreover, RCW 9. )
                     530( 4A. provides that. a sentencing court "may impose any
                        1
                        9

sentence within the [ standard] range that it deems            appropriate." Accordingly, the trial court

enjoys . almost completely unfettered discretion in imposing standard range sentences, even

standard range sentences        lengthened     because   a   defendant committed   perjury.   See State v.


Herzog, 112 Wn. d 419, 423 24,771 P. d 739 (1989)citing United States v. Grayson, 438 U. ..
              2            -       2              (                                    S

41, 98 S. Ct. 2610, 57 L.Ed. 2d 582 (1978)).

       Given this wide latitude in determining how to impose standard range sentences, the trial

court did not .err when it sentenced Halsten beyond the State's recommendation "largely"

because Halsten had lied to the court either during the guilty plea hearing, which Halsten

admitted   doing,     or   at the   plea withdrawal hearing.       VRP ( Nov. 30, 2011) at 43; RCW

530( 4A. Therefore, because we acknowledge the wide latitude the trial court enjoys in
9. ).
   2
   9

imposing standard range sentences, we affirm the trial court's sentence here. See Herzog, 112
                   -
Wn. d at 423 24.
  2          -

                                    III.EFFECTIVE ASSISTANCE OF COUNSEL

       Halsten also raises          numerous   ineffective assistance claims in his SAG. Each of his

arguments fail.       Halsten must show that (1)counsel's conduct was deficient; and (2)the



6 In Grayson, the Court affirmed a trial court's sentence within statutory limits after the trial
court considered the defendant's false testimony that it observed during trial. 438 U. . at 53.
                                                                                     S
The Court held that taking a defendant's false testimony into account at sentencing did not
violate due process by punishing the defendant for perjury, for which the defendant had not been
charged or convicted. Grayson, 438 U. . at 53. Three Justices dissented, arguing that the trial
                                        S
court erred in holding a perceived lack of truthfulness against Grayson, without a determination
that his testimony was false. Grayson, 438 U. . at 55 (Powell, J.,
                                            S                    dissenting). Like Grayson,
here the trial court did not violate Halsten's due process in imposing a standard range sentence
after considering Halsten lied; and further, unlike Grayson, here Halsten admitted to lying,
adding support   to   the trial court's consideration of his untruthfulness.
No. 42851 2 II
          - -



defendant   was   prejudiced   as a   result.   Strickland v. Washington, 466 U. . 668, 687, 104 S. Ct.
                                                                               S

2052, 80 L. Ed. 2d 674 (1984). When reviewing the claim that counsel was deficient, courts
                                                                                    "

will indulge in a strong presumption of reasonableness." State v. Thomas, 109 Wn. d 222, 226,
                                                                                2

743 P. d 816 (1987). In
     2                          order to show prejudice, the defendant must demonstrate that it is

reasonably probable that "but for counsel's unprofessional errors, the result of the proceeding

would have been different."
                          Strickland, 466 U. . at 694. If the ineffective assistance claim fails
                                           S

on one prong, the court need not address the other prong."State v. Staten, 60 Wn. App. 163,
              "

171, 802 P. d 1384, review denied, 117 Wn. d 1011 (1991).
          2                              2

       First, Halsten argues that Baum provided ineffective assistance because Baum coerced

Halsten into pleading guilty by telling him it was in Halsten's best interest that [Halsten] should
                                                                 "

accept this [p] to the DOSA treatment [p]
              lea                       rogram." SAG at 1. Halsten asserts that he was

misinformed of the consequences" of the plea because he was unaware that the trial court did

not have to "accept [his] DOSA," that he "only pled to DOSA and in the alternative to 75
                               and

m]nth [p] [s]
 o      rison entence." SAG at 2.

       Halsten's arguments lack merit.             At his initial plea hearing, the trial court informed

Halsten that it was not bound by any recommendations and specifically told him that it did not

have to impose the DOSA. Halsten also signed the statement of defendant on plea of guilty,

which clearly stated that the sentencing judge had discretion and was free to impose any sentence

within the standard      range.        The record does not support Halsten's claims that he was

misinformed about the consequences of his plea. Therefore, Halsten's claim that his plea was

involuntary because Baum provided ineffective assistance fails because Halsten cannot




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No. 42851 2 II
          - -




demonstrate Baum's deficient performance. Since Halsten fails to prove deficient performance,

we need not address whether he suffered prejudice. Staten, 60 Wn. App. at 171.

       Next, Halsten argues that Baum provided ineffective assistance by failing to move to

reduce bail. Even if Halsten could show that Baum's conduct was deficient, he nevertheless fails

to show how Baum's failure to request a bail reduction caused prejudice. Accordingly, Halsten

cannot demonstrate ineffective assistance. See Staten, 60 Wn. App. at 171.

       Next, Halsten argues that Baum     was   incompetent         and   unprofessional.   But defense


counsel's unprofessional conduct usually does not constitute ineffective assistance. In State v.

Warnick, a defendant alleged ineffective assistance because defense counsel only talked with her

twice, failed to call exculpatory witnesses, and stated that he had "something else to do"if her

case was continued. 121 Wn. App. 737, 745 46,90 P. d 1105 (2004).The defendant only made
                                          -      3

a "bare allegation" and "show[ d]no deficient performance in that regard." Warnick, 121 Wn.
                             e

App.   at 746.   Division Three of this court found that counsel's conduct did not constitute

ineffective assistance because the defendant failed to demonstrate that (1) counsel's conduct
                                                                           her

was deficient; and (2)she had been prejudiced        as   a   result.   Warnick, 121 Wn. App. at 746.

Similarly, here, Halsten asserts that Baum's conduct constitutes ineffective assistance because
Baum was argumentative, uncooperative, and disrespectful, as if he honestly [did] not care."
                                                          "

SAG at 3. Like Warnick, here Halsten cannot demonstrate that Baum's conduct was deficient or

that any deficiency prejudiced Halsten.

        Next;Halsten argues that Baum was ineffective because Baum failed to move to suppress

certain evidence found in Halsten's vehicle. Failure to move to suppress evidence is not per se

deficient representation. State v. McFarland, 127 Wn.2d 322, 336 37, 899 P. d 1251 (1995).
                                                                 -        2


                                                10
No. 42851 2 II
          - -




The defendant must show "absence of legitimate strategic or tactical reasons supporting

challenged conduct of counsel."McFarland, 127 Wn. d at 336. Baum knew that a DOSA was
                                                2

an option, but the large amount of methamphetamine involved in count 3 made Halsten

ineligible. Using the suppression issue as leverage, Baum negotiated count 3' dismissal,
                                                                            s

making Halsten     DOSA   eligible. Baum's failure to move to suppress this evidence was not

incompetent inaction    but   strategic negotiation. Accordingly, Halsten fails to show deficient

performance.

       Finally, Halsten argues that Baum failed to provide adequate representation at sentencing.

Halsten identifies Baum by Baum's full name and Washington State Bar Association number.

Halsten's assertions completely lack merit because Baum was not Halsten's counsel at

sentencing; Baum withdrew as counsel on October 13, 2011, and Halsten was sentenced on

November 30, 2011.

       We affirm Halsten's convictions and sentence.


       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


                                                                                 AV-         ZrI
                                                                  Johanson, A. .
                                                                            J.
                                                                             C
We concur:




                 Quinn-
                      Brintnall, J.



                 jorgen,J.

                                                  11
