       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          No. 67745-4-1

                    Respondent,               DIVISION ONE


              v.



ALEXANDER SINCLAIR CAHILL,                    UNPUBLISHED OPINION


                     Appellant.               FILED: September3, 2013


      Becker, J. — Appellant Alexander Cahill was found with another person's

debit card. After five months in custody, he pleaded guilty to possession of

stolen property in exchange for the State's recommendation that he be

sentenced to two months and that he be released immediately. While awaiting

sentencing, Cahill moved to withdraw his guilty plea on grounds of ineffective

assistance of counsel. Because counsel did not conduct a reasonable

investigation before advising Cahill to take the plea and failed to discover an

available helpful witness, we conclude Cahill has shown both deficient

performance and prejudice and is entitled to withdraw his plea.




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       Cahill was homeless at the time of these events. On August 7, 2010,

Seattle police arrested him pursuant to a report that he had been seen

trespassing at a vacant rental. He was found to be in possession of a debit card

and an identification card belonging to other people.

      The State initially charged Cahill with one count of identity theft in the

second degree for possession of the debit card. An element of this crime is to

possess another person's financial information "with the intent to commit, or to

aid or abet, any crime." RCW 9.35.020(1). During the ensuing months, Cahill's

assigned counsel, Erin Curtis, communicated with the prosecutor about the

difficulty the State would have in proving that Cahill intended to use the debit

card to commit a crime. Meanwhile, Cahill was in custody. He was held in the

King County Jail or released on work release subject to conditions of release

from August 27, 2010, to January 11, 2011, when the trial court entered his plea

agreement.

      The trial was set for January 18, 2011. At the omnibus hearing on

January 7, 2011, the State declared its intention to amend the charge to one

count of the lesser charge of possession of stolen property in the second degree.

Based on Cahill's criminal history, the standard range for second degree

possession of stolen property was two to five months in jail.

      An element of the lesser charge is to possess stolen property "knowing

that it has been stolen." RCW 9A.56.140(1). Proof of actual knowledge is not
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required. It is enough if the defendant had knowledge of facts sufficient to put

him on notice that the item was stolen. State v. Rockett. 6 Wn. App. 399, 402,

493P.2d321 (1972).

       Before the omnibus hearing, the State offered to let Cahill plead guilty to

the amended charge. Cahill considered it but decided against it. After the

omnibus hearing, Curtis received a voice mail from Cahill. He had changed his

mind and wanted to take the plea offer after all to expedite his release from

confinement. According to Curtis, "At that point Mr. Cahill had been remanded

back into secure confinement from work release, and given that he had an offer

that would result in him having credit for time served, he indicated that he wanted

to take the offer as soon as possible and wanted to be set on for sentencing as

soon as possible."

      On January 11, 2011, the State filed the amended information and the trial

court entered the plea agreement. Before accepting the plea, the trial court

engaged in the standard colloquy to ensure that Cahill understood the rights he

would be waiving by pleading guilty. The court went over with Cahill the

statement on the plea of guilty that he had signed. Cahill agreed it was a true

statement where he admitted that he knowingly possessed someone else's debit

card that he "knew had been stolen" and had on his person "for less than 24

hours, which resulted in it being withheld" from its owner.
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       In exchange for the plea, the State agreed not to file any other charges for

the incident and recommended a sentence of two months in jail with credit for

time served and that Cahill be released pending sentencing. Cahill was released

from custody.

      A month later, new counsel, Kenan Isitt, was appointed for Cahill so that

Cahill could advance a claim of ineffective assistance of counsel as a basis for

moving to withdraw his guilty plea. Cahill's motion to withdraw the plea was filed

on May 5, 2011. Cahill claimed he had found the debit card on the side of the

road at a bus stop in Burien and nearby business owners could confirm he

frequented that location. He argued that under the circumstances, it was not

reasonable to believe he knew the debit card was stolen and that Curtis had

unreasonably failed to follow up on his request to conduct an investigation at the

location where he found the card. The motion explained that Cahill chose to

plead guilty so he could get out of jail immediately rather than continue the trial

and spend more time in custody waiting for Curtis to investigate. By January 11,

2011, Cahill had already spent more time in custody than the high end of the

standard range sentence for the crime he was charged with.

       Isitt reported that it took him less than 15 minutes to locate a bamboo plant

business Cahill had described to him. The owner told Isitt he had occasionally

found wallets, licenses, mail, and debit cards strewn about the roadway in front of

his business and he assumed thieves had just tossed these items out of the
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window as they drove by. The store owner believed Cahill "might be one of

several homeless people that he has occasionally observed in front of his

business waiting for the bus." He thought Cahill's explanation of having found

the debit card there was entirely plausible.

       On September 16, 2011, the court heard testimony on the motion to

withdraw the guilty plea. Cahill testified that he found the debit card at a bus stop

in Burien and did not know it was stolen. He said he was intending to turn it in,

perhaps at the Department of Motor Vehicles. He said he had asked Curtis for

months to talk to store owners near the bus stop who could verify the plausibility

of his account at least as to the location. Cahill said that when Curtis did not

respond to his requests for this investigation, he took the plea offer because he

felt otherwise he was "going to be left to rot in jail."

       Curtis testified that she met with Cahill a handful of times and talked to him

on the phone. Curtis said she explained to Cahill that he was no longer being

charged with stealing and that the issue came down to whether or not a

reasonable person in his circumstances would have or should have known the

cards were stolen. "And so the investigation or the witness that he wanted me to

talk to didn't necessarily help with that problem." Curtis explained that she

intended to visit the scene before trial but as was typical in her office, the

investigation would not occur until after the omnibus hearing. "We want to make
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sure that because we only have a limited number of investigators that we are

using them on the cases that are really going to go to trial."

       On September 23, 2011, the court denied Cahill's motion to withdraw the

plea. The court reviewed the standard for ineffective assistance and reasoned:

              While it is true that Ms. Curtis' delay perhaps delayed the
       ability of Mr. Cahill to know whether or not he would have a witness
       who would present him a defense, given the fact that Ms. Curtis in
       her professional judgment believed that any such witness who
       might be found would not provide a complete defense, and given
       Mr. Cahill made an independent decision to take credit for time
       served for the reason he wanted to get out of jail as soon as
       possible, I conclude that Mr. Cahill has not met the burden, and the
       motion to withdraw the guilty plea is denied.

       The court noted that although it was unclear how much time Cahill had

actually served, it appeared he had served more than five months. The court

sentenced Cahill to two months with credit for time served.



                      WITHDRAWAL OF GUILTY PLEA


       Cahill argues the trial court should have granted his motion to withdraw

the guilty plea because his original counsel failed to do any investigation,

rendering his plea involuntary.1 Atrial court shall allow a defendant to withdraw
his guilty plea if "necessary to correct a manifest injustice." CrR 4.2(f). Denial of




       1 Because Cahill's statement of additional grounds for review essentially
reiterates his argument on direct appeal, we do not address it separately.
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effective assistance of counsel is one way to establish a manifest injustice. State

v. Wakefield. 130 Wn.2d 464, 472, 925 P.2d 183 (1996); State v. Taylor. 83

Wn.2d 594, 597, 521 P.2d 699 (1974).

      A trial court's denial of a motion to withdraw a plea is generally reviewed

for abuse of discretion. State v. Williams. 117 Wn. App. 390, 398, 71 P.3d 686

(2003), review denied. 151 Wn.2d 1011 (2004). But an ineffective assistance

claim is reviewed de novo because it presents mixed questions of law and fact.

State v.A.N.J., 168 Wn.2d 91, 109, 225 P.3d 956 (2010).

      To establish ineffective assistance resulting in a guilty plea, the defendant

must show (1) counsel's performance fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced him. State v.

Sandoval. 171 Wn.2d 163, 169, 249 P.3d 1015 (2011).

      To provide constitutionally adequate assistance, counsel must, at a

minimum, conduct a reasonable investigation so that counsel can make informed

decisions about how best to represent the client. In re Pers. Restraint of

Fleming. 142 Wn.2d 853, 866, 16 P.3d 610 (2001).

      Cahill argues that Curtis was deficient by failing to investigate the scene

where he claimed he found the debit card. Curtis and Cahill both understood that

if the case went to trial, the State would have to prove Cahill knew the debit card

was stolen. Cahill would have testified that he merely picked the card up off the

side of the road near a bus stop and did not know it was stolen. Cahill told Curtis
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that a business owner near the bus stop might be able to corroborate his

description of the location, but she did not investigate this information.

       The State argues that Curtis had no reason to believe there was a

potential witness who could establish Cahill's innocence. Isitt, however, had no

difficulty finding a witness. While the witness Isitt talked to would not have been

able to provide a complete defense for Cahill, his testimony would have been

helpful to support the credibility of Cahill, a homeless person.

       The record reflects that Curtis intended to do an investigation at the scene

but considered it impractical to do so until she was sure the case was actually

going to go to trial. This puts the cart before the horse. If the result of an

investigation is reasonably likely to help a defendant decide between pleading

guilty and going to trial, the investigation should be done before that decision has

to be made. This is particularly true for a defendant who is being held in custody

for a crime likely to carry a short sentence. We conclude Curtis rendered

deficient performance by failing to conduct a reasonable investigation.

       The next question is whether the deficient performance prejudicially

affected the outcome of the plea process. In the plea context, the prejudice

prong requires a showing that but for counsel's errors, it is reasonably probable

the defendant would not have pleaded guilty and would have insisted on going to

trial. In re Pers. Restraint of Riley. 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993).
67745-4-1/9



       Cahill contends Curtis's deficient performance prejudiced him by

essentially forcing him to plead guilty to a crime despite his insistence that he did

not know the debit card was stolen. Cahill testified that when Curtis did not

respond to his requests for investigation, he took the plea offer because he felt

otherwise he was "going to be left to rot in jail."

       "The defendant must satisfy the court that there is a reasonable probability

that, but for counsel's deficient performance, he or she would not have pleaded

guilty and would have insisted on going to trial." State v. Garcia, 57 Wn. App.

927, 933, 791 P.2d 244. review denied, 155 Wn.2d 1010 (1990). Where the

alleged deficiency is a failure to investigate, the determination of prejudice will

typically depend on the likelihood that evidence counsel failed to discover would

have led counsel to recommend rejecting the plea agreement. "This

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

evidence likely would have changed the outcome of a trial.'" Garcia, 57 Wn. App.

at 933, quoting Hill v. Lockhart. 474 U.S. 52, 59, 88 L. Ed. 2d 203, 106 S. Ct. 366

(1985).

       The State argues that the potential witness testimony was too weak to

affect the outcome of a trial. We disagree. The State's ability to prove the crime

depended entirely on convincing the jury that Cahill kept the card in his

possession while knowing it was stolen. A reasonable jury could have found that

Cahill did not realize the card was stolen. The credibility of his version of events



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would have been enhanced by a reputable witness corroborating Cahill's

description of the location where he found the card and testifying that he had

seen other wallets, mail, and cards discarded there.

       The State further argues Cahill took the plea offer not because of the lack

of investigation, but "because he was desperate to get out of jail, and had already

served incarceration equivalent to the 5-month top-end of the standard

sentencing range" for the charge of possession of stolen property. Cahill was

justifiably anxious to be released. He had already served more time than he

would likely serve if convicted at trial. This fact reinforces our conclusion that

Cahill was prejudiced by the deficient performance. Curtis should have

discovered the potential witness earlier instead of postponing investigation until

the eve of trial. Had she done so, she would have been able to give Cahill a

more informed evaluation of his chances at trial at a time when there was still a

meaningful choice between going to trial and pleading guilty. As Cahill points

out, because he had already served all or most of his likely sentence, he "had

little if anything to lose by taking his chances with a jury."

       We conclude there is a reasonable probability that, but for counsel's

deficient performance, Cahill would not have pleaded guilty and would have

insisted on going to trial. The motion to withdraw the plea should have been

granted.




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67745-4-1/11



      Reversed.




WE CONCUR:




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