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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                             No. 74043-1-1


                     Respondent,

           v.



TYLER ANDREW WAGNER,                             UNPUBLISHED OPINION

                     Appellant.                  FILED: November 14, 2016


       Verellen, C.J. — Tyler Wagner pleaded guilty to criminal trespass and

malicious mischief. He later moved to withdraw the plea, alleging ineffective assistance

of counsel during plea negotiations. Wagner contends that defense counsel should

have undertaken an additional investigation of two potential witnesses before advising

him to plead guilty. But defense counsel was already aware of the witnesses' potential

testimony and their significant credibility problems. Under the circumstances, the

decision not to investigate further was reasonable and did not constitute deficient

representation. Accordingly, the trial court did not abuse its discretion in withdrawal of

the guilty plea. We affirm.

                                          FACTS


       During the early morning hours of September 23, 2014, an Everett homeowner

called 911 and reported hearing the sound of breaking glass and voices from the house

next door. The house had been the subject of previous break-ins.
No. 74043-1-1/2



       Everett police officers contacted Lourde Godiava, the owner and determined that

no one was supposed to be in the house. Upon arrival, the officers noticed an open

sliding glass door and a broken kitchen window. The officers then encountered Yee Xiong

and Tyler Wagner as they came out of the house. Officers also found A.J., a juvenile

female, inside the house.

      After waiving his rights, Xiong gave the officers varying accounts of whether he had

broken into the house. At one point, Xiong claimed that his brother owned the house.

Xiong also said that he had a prior relationship with Godiava and had lived in a shed

behind Godiava's house in Mill Creek. Xiong claimed that he was in the house to check

on a television and bicycle that he had stored there several months earlier. He explained

that he moved a large box containing an entertainment center to the front door to make it

easier for him to find his television. At one point, Xiong acknowledged that he did not have

permission to be in the house.

       Wagner told police that he was there to help Xiong, whom he described as an

acquaintance. He claimed that Xiong said his brother owned the house and that he was

there to retrieve property he had stored in the house. Wagner acknowledged that he saw

Xiong enter the house through a broken window. While inside, Xiong directed Wagner to

move the box containing the entertainment center to the front door. Xiong told Wagner

that he did not own the box. Wagner admitted he felt "spooked"1 by going into the house.

       Godiava told the police that Xiong did not have permission to enter the Everett

house. He acknowledged that he had previously hired Xiong to do some landscaping and

Xiong had stayed in a shed at Godiava's house in Mill Creek for a short time. The two


       1 Clerk's Papers (CP) at 25.
No. 74043-1-1/3


later had a falling-out because Xiong "was always lying and involved in criminal activity."2

Godiava alleged that Xiong had previously burglarized both of his houses while Godiava

was in jail. Godiava claimed he had not seen Xiong in more than a year.

       The State charged both Xiong and Wagner with residential burglary. On March 11,

2015, Xiong pleaded guilty to an amended information charging one count of criminal

trespass in the first degree and one count of malicious mischief in the third degree. On

June 2, 2015, Wagner pleaded guilty to identical charges.

       Prior to sentencing, Wagner moved to withdraw his guilty plea. Newly appointed

counsel argued that Wagner's plea attorney had provided constitutionally deficient

assistance when he failed to interview Xiong and further investigate Godiava. Counsel

maintained that further investigation would have demonstrated that Xiong was authorized

to stay in Godiava's house, supporting Wagner's claim that his entry at Xiong's invitation

was not unlawful.

       The trial court found that defense counsel did not provide deficient assistance and

denied Wagner's motion to withdraw the guilty plea. The court noted that there had been

a substantial amount of investigation and that the attorneys for Xiong and Wagner shared

the results. The court concluded that Wagner's attorney appeared to have made a

reasonable tactical decision not to pursue an additional investigation in light of Xiong's

obvious and substantial credibility problems. The court then sentenced Wagner to a 364-

day sentence, with 274 days suspended.




         CP at 35.
No. 74043-1-1/4


                                      DISCUSSION


       Wagner contends that he was denied effective assistance of counsel during plea

negotiations when his plea attorney failed to interview Xiong or investigate the

relationship between Xiong and Godiava. He argues that further investigation would

have revealed exculpatory evidence supporting a defense that his entry into Godiava's

house was not unlawful. Wagner suggests that had he known of that evidence, he

would not have pleaded guilty and would have insisted on going to trial.

       Under CrR 4.2(f), a court must permit withdrawal of a guilty plea whenever

necessary to correct a "manifest injustice." This is a demanding standard, and the

defendant bears the burden of establishing that he has suffered "'an injustice that is

obvious, directly observable, overt, not obscure.'"3 Ineffective assistance of counsel

may constitute a manifest injustice sufficient to permit withdrawal of a guilty plea.4 We

review the trial court's decision on a motion to withdraw a guilty plea for an abuse of

discretion.5

       In order to establish ineffective assistance, Wagner must demonstrate both that

counsel's representation fell below an objective standard of reasonableness, and that

prejudice resulted.6 "In satisfying the prejudice prong, a defendant challenging a guilty

plea must show that there is a reasonable probability that, but for counsel's errors, he




      3 State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996) (quoting State v.
Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)).
       4 State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974).
       5 State v. Lamb, 175Wn.2d 121, 127, 285 P.3d 27 (2012).
      6 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L Ed. 2d
674 (1984); see also State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
No. 74043-1-1/5


would not have pleaded guilty and would have insisted on going to trial."7 When

counsel's alleged error is the failure to investigate exculpatory evidence, the

assessment of whether the error prejudiced the defendant involves the likelihood that

the evidence "'would have led counsel to change his recommendation as to the plea.

This assessment, in turn, will depend in large part on a prediction whether the evidence

likely would have changed the outcome of a trial.'"8 To provide constitutionally adequate

assistance, "'counsel must, at a minimum, conduct a reasonable investigation enabling

[counsel] to make informed decisions about how bestto represent [the] client.'"9
       We begin our analysis with the "strong presumption" that counsel's performance

was reasonable.10 To rebut this presumption, Wagner must establish the absence of

any conceivable legitimate tactic explaining counsel's performance.11 We review
ineffective assistance claims de novo.12

       Wagner's arguments rest on the assertion that defense counsel would have
uncovered exculpatory evidence had he interviewed Xiong or investigated the prior
relationship between Godiava, the owner ofthe house, and Xiong. But the record




       7 In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993)
(citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
       8 State v. Garcia, 57 Wn. App. 927, 933, 791 P.2d 244 (1990) (quoting HN]- 474
U.S. at 59).
       s In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001)
(emphasis omitted) (alterations in original) (quoting Sanders v. Ratelle, 21 F.3d 1446,
1456 (9th Cir. 1994)).
       10 State v. Kvllo. 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
       11 State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011).
       12 State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
No. 74043-1-1/6



shows that defense counsel was fully aware of this potential evidence before Wagner

pleaded guilty.

       The police reports established that Xiong gave contradictory accounts of his

presence at Godiava's house, including an admission that he did not have permission to

enter the house. Defense counsel also knew that Godiava had expressed considerable

hostility toward Xiong, calling him a compulsive liar and alleging that he previously

burglarized both of his houses.

       Moreover, during the course of plea negotiations, defense counsel was also in

contact with Xiong's attorney, who provided defense counsel and the deputy prosecutor

with the results of her investigation. Among other things, defense counsel learned that

there was evidence suggesting that Xiong had had an earlier relationship with

Godiava's family and appeared to have been authorized to be at the Everett house on

two earlier occasions. Xiong's counsel also shared her summary of the transcript of an

insurance hearing involving some of Godiava's earlier insurance claims, which indicated

that Godiava frequently changed his name, hid income, and "melted down during

questioning"13

       But defense counsel clearly recognized that both Xiong and Godiava presented

significant credibility problems and that their relationship was "filled with deceit."14
Nothing in the record suggests that either witness could have provided any additional

exculpatory information or evidence that would have been helpful to Wagner's decision

to plead guilty. Underthe circumstances, counsel could reasonably have concluded



       13 CP at 42.
       14 CP at 45.



                                               6
No. 74043-1-1/7


that any further investigation of Xiong or Godiava would not have been helpful. Defense

counsel's actions constituted a reasonable tactical decision, not deficient performance.15

       Because Wagner has failed to demonstrate that defense counsel's

representation was deficient, we need not address his claim of prejudice.16 The trial

court did not abuse its discretion in denying Wagner's motion to withdraw his guilty plea.

       Affirmed.




WE CONCUR:




       15 See In re Pers. Restraint of Clements, 125 Wn. App. 634, 647, 106P.3d244
(2005) (defense counsel's decision not to interview potential witnesses with credibility
issues was reasonable).
       16 See State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2011).
