                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           March 29, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 46110-2-II

                                Respondent,

          v.

    REGINALD LEMAR JUNTUNEN,                                   UNPUBLISHED OPINION

                                Appellant.


         LEE, J. — Reginald Lemar Juntunen appeals the superior court’s denial of his motion to

withdraw his guilty plea to one count of first degree child molestation1 with a predatory

aggravator.2 On appeal, Juntunen (1) assigns error to four findings of fact, claiming they are

unsupported by the record; and (2) claims his guilty plea is invalid because he received ineffective

assistance of counsel for (a) not negotiating a better plea deal; (b) not exploiting inconsistences in

the victim’s story; (c) not hiring a DNA expert; (d) meeting with him only 10 times, not 14; and

(e) his attorney’s simultaneous role as a city prosecutor in the same county. We reject each of

Juntunen’s arguments and affirm the denial of his motion to withdraw his guilty plea.




1
    RCW 9A.44.083.
2
    RCW 9.94A.030(39).
No. 46110-2-II


                                              FACTS

       In September 2007, a detective with the Lewis County Sheriff’s Office responded to a

reported sexual assault of an eight-year-old girl, S.E.H.3, at a campground in Lewis County. S.E.H.

told the detective that she was riding her bike around the campground when she was approached

by a man who ordered her into the campground bathroom and told her he had a knife. Once inside

the bathroom, S.E.H. told the detective that the man “pushed her to the floor,” “pulled her pants

down to her knees,” and “began to rub his hands over the top of her . . . vagina and buttocks area.”

Clerk’s Papers (CP) at 9-10. She told the detective that the man did not “put anything inside of

her private area,” and after an unknown amount of time, the man “put something on her” “front

privates” that was “white like lotion and felt warm.” CP at 10.

       After the man left the bathroom, S.E.H. went back to her family’s campsite, reported to her

mother what had happened, and then “wiped the white lotion substance off of herself with a tissue.”

CP at 10. A deputy with the sheriff’s department collected the substance from the tissue and placed

it into evidence.

       Almost five years later, in June 2012, the Washington State Patrol Crime Laboratory

advised another detective with the Lewis County Sheriff’s Department that it had discovered a

deoxyribonucleic acid (DNA) match to the DNA recovered from the substance on the tissue. Using

the Washington State Patrol’s Combined DNA Index System (CODIS), the DNA profile had been

matched to Reginald Juntunen. The detective interviewed S.E.H. again, and her story was

substantially the same except this time she alleged that the man had anally raped her.


3
  We use initials to protect the minor victim’s privacy interests. General Order 2011-1 of Division
II, In Re The Use Of Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases, available
at: http://www.courts.wa.gov/appellate_trial_courts/


                                                 2
No. 46110-2-II


       Juntunen was charged by amended information with (1) first degree child rape, with three

aggravators; (2) first degree rape, with four aggravators; (3) indecent liberties by forcible

compulsion, with four aggravators; and (4) first degree kidnapping with sexual motivation, with

six aggravators. Christopher Baum was appointed to represent Juntunen.

       Baum had been practicing for about 10 years at the time of his appointment to this case,

the first six years as a deputy prosecutor, and since then as defense counsel. He had represented

Juntunen in at least one prior prosecution in Lewis County.

       Juntunen pleaded guilty to first degree child molestation with a predatory aggravator,

pursuant to a second amended information, on November 9, 2012. On December 10, 2013, with

new counsel, Juntunen moved to withdraw his guilty plea.

       At the hearing on the motion to withdraw his plea, Juntunen waived his attorney-client

privilege and Baum testified. Baum testified that at his first meeting with Juntunen, Juntunen

“right off the bat” admitted to the allegations, except he told Baum that he did not have intercourse

with S.E.H. and he did not have a knife. Verbatim Transcript of Proceedings (VTP) (Feb. 14,

2014) at 44.

       Juntunen’s admission to Baum led Baum to “spen[d] a lot of time looking at the legal issues

surrounding [the] DNA [evidence].” VTP (Feb. 14, 2014) at 47. Baum explained that he “looked

into multiple” experts and located a DNA expert in California. VTP (Feb. 14, 2014) at 69. But,

after his discussions with the expert and with the crime laboratory in Vancouver, Baum decided

not to hire the expert to attack the DNA evidence.

       Baum testified, “There really wasn’t a way to get around it. The warrant was solid that

they got for his DNA. . . . I called to talk to the DNA tester down in Vancouver, [Washington],



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No. 46110-2-II


and we spent quite a bit of time talking about the sample provided.” VTP (Feb. 14, 2014) at 47.

Baum continued:

              In any event, the match to him was uncontroverted then his own admission
       to me that he had done this kept me from going after the DNA, because I initially
       was going to have the DNA analyzed, but chose not to, because I think it ultimately
       would have produced an additional witness against him . . . .

       ....

       So if you go to trial on a case like this and you decide prior to trial that you are
       going to have DNA analysis done really to try to refute the State’s case, most of the
       time you don’t have a client who is admitting it. Most of the time the client is
       denying it, so you are working from an idea maybe I’ll get some evidence that
       shows consistent with what he says that it did not happen . . . .

               But when you have a client saying, well, I did in fact do it, this is exactly
       what happened, because I knew it was his DNA, I’d only be trying to attack the
       State’s evidence.

                Now, I talked to the DNA expert from the State, and I could find no kinks,
       couldn’t find any errors for that matter that the State had done, so if I go I get an
       expert knowing that my client has admitted to doing it knowing that the State’s
       analysis came back positive for his DNA, I can—really what I am doing is
       producing an additional witness that would be able to testify that Mr. Juntunen was
       in fact the person that did this, which does not benefit him.

VTP (Feb. 14, 2014) at 48-49, 66-67.

       Baum also testified that through the course of his representation, he repeatedly discussed

with Juntunen the differences in the statements made by S.E.H. immediately after the molestation

and shortly before Juntunen’s arrest. The differences in S.E.H.’s stories was the “primary reason”

he drove to Sumner, Washington to interview S.E.H.          VTP (Feb. 14, 2014) at 45. After

interviewing S.E.H., he found her to be “very credible” and “a very compelling witness,” and that

he discussed the implications of this with Juntunen. VTP (Feb. 14, 2014) at 46.




                                                4
No. 46110-2-II


       Baum further testified that he met with the prosecutor “a number of times” on “multiple

occasions to try to get [the prosecutor] to give up on [the aggravators], with some other form of

resolution, but [the prosecutor was] unwilling to do that.” VTP (Feb. 14, 2014) at 42, 43. After

his investigation, meetings with the prosecutor, and meetings with Juntunen:

       I thought it . . . was [a] high likelihood he would be convicted, because I couldn’t
       find a decent defense[;] then the risk of a tremendous sentence weighed on me[,]
       and he and I talked about this at great length.

       ....

       . . . I’ve seen this Court hand out 300, 400, 500, 600 month sentences without a
       problem, and I think in this instance this type of case is the type of case that shocks
       the conscience more than almost any other type.

               Most of these child rapes, child molestations are oftentimes a family friend
       or a parent, somebody who takes advantage of an opportunity, but there’s not a
       situation where a child is taken and secreted away by threat of weapon and bodily
       injury and then a sexual attack forced upon them, and I think a jury would have
       found aggravators. I think the jury would have found it was predatory, and I think
       [the] judge would have reacted to those findings giving a sentence extraordinarily
       or substantially more than 25 years to life that he ended up ultimately pleading to.

       ....

       . . . One of the reasons we pled this way, the child molestation, is it was consistent
       with behavior that Mr. Juntunen himself admitted to me that he had done, so he
       didn’t have to admit to something that was alleged, the child rape or Rape 1st. He
       admitted to something that he agreed he had actually done. Possibly he could get
       better good time, because child molestation is a serous [sic] offense not a serious
       violent [offense]. As relates to the possibility of good time, he would possibly get
       better good time on a violent offense than a serious violent offense, so anyways
       because yeah we talked quite a bit about the sentencing.

VTP (Feb. 14, 2014) at 49-51.

       After receiving the evidence and hearing argument, the superior court denied Juntunen’s

motion to withdraw his guilty plea and entered written findings of fact and conclusions of law.

Juntunen appeals.


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No. 46110-2-II


                                            ANALYSIS

A.     STANDARD OF REVIEW

       We review the denial of a motion to withdraw a guilty plea for abuse of discretion. State

v. A.N.J., 168 Wn.2d 91, 106, 225 P.3d 956 (2010). Ineffective assistance of counsel claims

present mixed questions of law and fact, and are reviewed de novo. Id. at 109.

       A superior court abuses its discretion when it bases its decision on untenable grounds or

reasons. State v. Pugh, 153 Wn. App. 569, 576, 222 P.3d 821 (2009). Under CrR 4.2(f), “the trial

court [shall] allow a defendant to withdraw his guilty plea ‘whenever it appears that the withdrawal

is necessary to correct a manifest injustice.’” Id. at 577 (quoting CrR 4.2(f)). “‘Manifest injustice’

means ‘an injustice that is obvious, directly observable, overt, [and] not obscure.’” Id. (alteration

in original) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). One indication of

manifest injustice is ineffective assistance of counsel. Pugh, 153 Wn. App. at 577. “Because of

the many safeguards that precede a guilty plea, the manifest injustice standard for plea withdrawal

is demanding.” Id. (citing Taylor, 83 Wn.2d at 596).

B.     SUFFICIENT FACTUAL BASIS

       Juntunen first challenges four findings of fact made by the superior court. He argues

findings of fact 1.2, 1.3, 1.20, and 1.32 lack evidentiary support. We hold there is sufficient

evidence in the record to support the challenged findings of fact.

       We review challenged findings of fact to determine whether the findings are supported by

substantial evidence; substantial evidence is evidence sufficient to persuade a fair-minded, rational

person of the findings’ truth. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).

Unchallenged findings of fact are verities on appeal. State v. Bonds, 174 Wn. App. 553, 562, 299



                                                  6
No. 46110-2-II


P.3d 663, review denied, 178 Wn.2d 1011 (2013). The party challenging the findings bears the

burden to show that substantial evidence does not support the superior court’s findings. A.N.J.,

168 Wn.2d at 107. Findings of fact that contain errors are subject to a harmless error analysis.

State v. Banks, 149 Wn.2d 38, 43-46, 65 P.3d 1198 (2003). An error is harmless when it appears

beyond a reasonable doubt that the challenged error did not contribute to the result. Id. at 44.

       1.      Finding of fact 1.2

       Juntunen challenges finding of fact 1.2, claiming that the content of this finding should not

be accepted as true because it relies on hearsay within hearsay and there is nothing in the record

to support his having “‘rubbed’ the victim’s vagina.” Br. of Appellant at 17. This challenge fails.

       First, with respect to Juntunen’s assertion that the finding is insufficient because it relies

on hearsay within hearsay, he provides no argument on the point and the only authority he cites is

a “see id.” cite to A.N.J., 168 Wn.2d at 107, with no explanation of A.N.J.’s application. A.N.J.

does not support Juntunen’s assertion because “hearsay within hearsay” was not an issue or even

discussed in A.N.J. Br. of Appellant at 17; see generally A.N.J., 168 Wn.2d 91. Thus, Juntunen

provides no legal support for his assertion.

       Second, the finding that Juntunen ordered her to the bathroom and “rubbed” the victim’s

vagina is supported by the record. For example, the affidavit regarding probable cause states:

       She stated the male subject told her he had a knife and ordered her to go into the
       bathroom . . . the male subject began to rub his hand over the top of her front
       privates . . . also known as the vagina . . . [T]he male subject then put something on
       her. . . . When asked where the male subject put this substance, S.E.H. looked down
       and stated on her front privates.

CP at 9-10. Also, the presentence investigation states that “[s]he was approached by a man, later

identified as Juntunen, who . . . directed her to enter the bathroom. . . . He pulled her pants down



                                                 7
No. 46110-2-II


around her knees and began rubbing her vaginal . . . area.”4 CP at 47. Further, Baum, testified

that:

               Mr. Juntunen right off the bat told me what happened and how this thing
        played out. . . . He saw the little girl, . . . took her into the bathroom like pushed her
        down onto the ground, held her clothes out of the way and rubbed his penis on her
        buttocks area.”

VTP (Feb. 14, 2014) at 44. Thus, substantial evidence supports the superior court’s finding of fact

1.2, and we hold that Juntunen’s challenge fails.

        2.      Finding of fact 1.3

        Juntunen challenges finding of fact 1.3, claiming that the record does not support the

superior court’s finding that Juntunen “put something on [S.E.H.]’s vagina.” Br. of Appellant at

17 (quoting CP at 185). Juntunen’s argument fails.

        The affidavit regarding probable cause states:

        She [S.E.H.] stated . . . that the male subject then put something on her[.] When
        asked what it was, she stated she did not know, but stated it was white like lotion
        and felt warm. When asked where the male subject put this substance, S.E.H.
        looked down and stated on her front privates

CP at 10. The presentence investigation report states: “Juntunen ejaculated inside her and on

S.E.H.’s vaginal and buttock area.” CP at 47. Also, unchallenged finding of fact 1.11 states that

Juntunen admitted to his attorney that he forced S.E.H. into the bathroom, “had sexual contact with

her and then ejaculated on her.” CP at 185. Because the record and unchallenged findings of fact


4
  The presentence investigation report relies on the affidavit of probable cause for the facts it sets
forth. “By failing to object to the information contained in the presentence report or to demand
an evidentiary hearing to refute that information, this Defendant acknowledged that he was
unable to controvert the facts set forth in the report.” State v. Garza, 123 Wn.2d 885, 891, 872
P.2d 1087 (1994).




                                                    8
No. 46110-2-II


are sufficient to persuade a rational person of the truth of finding of fact 1.3, we hold Juntunen’s

challenge fails.

       3.      Finding of fact 1.20

       Juntunen challenges finding of fact 1.20 only insofar as to the superior court’s inclusion of

the word “strategically,” claiming that it is a conclusion of law that this court should review de

novo. Br. of Appellant at 17. Finding of fact 1.20 states:

       Baum strategically decided against obtaining a DNA expert, which based on
       defendant’s admission, Baum believed would only corroborate the State’s case
       against his client.

CP at 186.

       We hold that Juntunen’s challenge fails because this finding of fact is supported by other

unchallenged findings. Finding of fact 1.18 is not challenged and states, “Baum conducted

interviews with the Washington State Patrol Crime lab and other DNA experts. Baum was unable

to discover any legal issues regarding collection, custody or testing of the DNA evidence in this

case.” CP at 186. Because the trial court expressly found that the attorney decided against

obtaining a DNA expert after the attorney was unable to discover, after several interviews with

experts in the field, any legal issues with the collection, custody, or testing of the DNA evidence.

Therefore, substantial evidence supports the superior court’s finding that the attorney’s decision

was “strategic,” and Juntunen’s challenge to finding of fact 1.20 fails.

       4.      Finding of fact 1.32

       Juntunen challenges finding of fact 1.32, claiming that it lacks support in the record.

Finding of fact 1.32 states:

       Defendant did not present any evidence beyond the self-serving allegations of his
       mother to show that his guilty plea was not voluntarily made.


                                                 9
No. 46110-2-II



CP at 187.

       Juntunen did not file any declaration in support of his motion to withdraw his guilty plea

to demonstrate that he did not understand the plea, did not know what he was doing, or proceeded

involuntarily. Also, unchallenged finding of fact 1.29 states that “[o]n December 10, 2014, the

defendant filed a Motion to Withdraw his Guilty Plea, which was not supported by any evidentiary

documentation or declarations.” CP at 187. Further, unchallenged finding of fact 1.31 states that

“[d]efendant did not submit a declaration or testify at the hearing.” CP at 187. Because neither

findings of fact 1.29 nor 1.31 are challenged, they are verities on appeal. Thus, Juntunen’s claim

that substantial evidence does not support finding of fact 1.32 fails.

C.     EFFECTIVENESS OF COUNSEL

       Juntunen argues his guilty plea was invalid because he received ineffective assistance of

counsel. Specifically, Juntunen argues his counsel was ineffective because counsel did (1) not

negotiate a better plea deal; (2) not exploit inconsistences in the victim’s story; (3) not hire a DNA

expert; (4) not meet with Juntunen 14 times; and (5) serve as a city prosecutor in the same county

while representing Juntunen.

       To establish ineffective assistance resulting in a guilty plea, the defendant must show (1)

counsel’s performance was deficient, meaning it fell below an objective standard of

reasonableness; and (2) he or she was prejudiced by the deficient performance. State v. Sandoval,

171 Wn.2d 163, 169, 249 P.3d 1015 (2011). Failure to establish either prong is fatal to an

ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984).




                                                 10
No. 46110-2-II


       “In a plea bargaining context, ‘effective assistance of counsel’ merely requires that counsel

‘actually and substantially [assist] his client in deciding whether to plead guilty.’” State v.

Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (alteration in original) (quoting State v.

Cameron, 30 Wn. App. 229, 232, 633 P.2d 901, review denied, 96 Wn.2d 1023 (1981)). And, in

the plea bargaining 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).

       1.      Negotiating the Plea

       Juntunen argues his counsel was ineffective by failing “to negotiate a better deal.” Br. of

Appellant at 22. Specifically, Juntunen claims that counsel failed to file “motions to attack the

legality of the aggravator” and “present any mitigating evidence.” Br. of Appellant at 21. We

disagree.

       First, Juntunen does not provide any argument as to how the “legality” of the predatory

aggravator could be attacked by Baum; nor does Juntunen provide any indication of what sort of

mitigating evidence Baum could have presented. This is likely because Juntunen’s admission to

Baum was consistent with the statutory definitions of the crime of child molestation and predatory

aggravator.

       Baum testified that Juntunen admitted to him “right off the bat” that he had committed the

conduct alleged in the child molestation charge with a predatory aggravator. VTP (Feb. 14, 2014)

at 44. “A person is guilty of child molestation in the first degree when the person has . . . sexual

contact with another who is less than twelve years old and not married to the perpetrator and the

perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.083(1). To be



                                                11
No. 46110-2-II


“predatory” means that the “perpetrator of the crime was a stranger to the victim,” where being a

“stranger” means “that the victim did not know the offender twenty-four hours before the offense.”

RCW 9.94A.030(39), (51).

        Here, Baum testified that Juntunen said, “He saw the little girl, took her into the bathroom,

. . . and rubbed his penis on her buttocks.” VTP (Feb. 14, 2014) at 44. Baum also explained the

reasoning behind recommending that Juntunen accept this particular plea—the plea did not require

Juntunen to admit to anything he had not admitted to doing and child molestation was a serious

offense, not a serious violent offense, so Juntunen would have a better possibility of getting good

time served credits Given Juntunen’s failure to present a substantiated contrary argument,

Juntunen’s admission, and        Baum’s explanation, we hold that Baum was not deficient in

representing Juntunen in plea negotiations with the State.

        Additionally, the superior court found in finding of fact 1.15 that “Baum met with the

Deputy Prosecutor on several occasions on behalf of his client, but was unable to negotiate a plea

to a lesser charge, which may have resulted in a lesser sentence.” CP at 186. This finding is

unchallenged and is a verity on appeal. Bonds, 174 Wn. App. at 562. Therefore, we hold

Juntunen’s argument that his counsel was deficient for not negotiating a better plea fails.

        2.      Exploiting Inconsistencies

        Juntunen argues his counsel was ineffective for failing to “exploit[] the inconsistencies in

the victim’s statements and argue[] that no molestation occurred.” Br. of Appellant at 22. In his

briefing, Juntunen does not identify what inconsistencies he is arguing that his attorney was

ineffective for failing to exploit.




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No. 46110-2-II


         Juntunen’s claim fails because he does not provide “references to relevant parts of the

record” demonstrating the inconsistencies he now alleges his attorney was deficient for failing to

raise. RAP 10.3(a)(6). Moreover, Juntunen does not provide argument as to how he was

prejudiced by Baum’s alleged failure.       Failure to establish prejudice is fatal to Juntunen’s

ineffective assistance of counsel claim here. Strickland, 466 U.S. at 687; see also Cameron, 30

Wn. App. at 232 (“Defendant argues generally that his counsel did not thoroughly investigate the

case. Without specific allegations which would, if believed, demonstrate resulting prejudice, the

plea is not vitiated.”).

         3.     Hiring a DNA Expert

         Juntunen argues his counsel was ineffective for failing to hire a DNA expert. We disagree.

         The unchallenged findings of fact and conclusions of law establish that Baum’s failure to

hire a DNA expert was a legitimate trial strategy. Finding of fact 1.18 states that, “Baum conducted

interviews with the Washington State Patrol Crime lab and other DNA experts. Baum was unable

to discover any legal issues regarding collection, custody or testing of the DNA evidence in this

case.” CP at 186. Conclusion of law 2.2 states that, “Baum’s decision to not use a DNA expert

was legitimate trial tactics and did not fall outside the wide range of professionally competent

assistance.” CP at 187. Unchallenged findings are verities on appeal. Bonds, 174 Wn. App. at

562. Therefore, Juntunen’s claim fails.

         4.     Meeting with Juntunen

         Juntunen argues his defense counsel was ineffective for “only visit[ing] Mr. Juntunen a

total of 10 times, not 14 as Baum swore in his declaration.” Br. of Appellant at 24. This argument

fails.



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No. 46110-2-II


        “The alleged infrequency or brevity of counsel’s meetings with defendant is not enough to

demonstrate ineffective assistance of counsel.” Cameron, 30 Wn. App. at 232. Failure to establish

either deficient performance or resulting prejudice is fatal to an ineffective assistance of counsel

claim. Strickland, 466 U.S. at 687. Here, Juntunen’s argument fails because he does not provide

any argument or citation to establish that Baum’s 10 visits constituted deficient performance, nor

that he was prejudiced by Baum visiting him 10 times and not 14.

        5.      Conflict of Interest

        Juntunen argues that because Baum was a prosecutor for the city of Vader in Lewis County

while representing Juntunen, there was an “actual conflict of interest” that “constitutes ineffective

assistance of counsel per se.” Br. of Appellant at 45-46 (capitalization omitted). We disagree.

        The same argument that Juntunen now raises was rejected in State v. Tjeerdsma, 104 Wn.

App. 878, 17 P.3d 678 (2001). In Tjeerdsma, the defendant, who was tried in Skagit County, was

represented by an attorney who was also a prosecutor for the city of Mount Vernon in Skagit

County. 104 Wn. App. at 881. On appeal, the defendant argued that reversal of his conviction

was required because his counsel’s position as a prosecutor for the city of Mount Vernon presented

an “actual conflict of interest” that denied him effective assistance of counsel. Id. at 882. Division

One rejected the argument. Id. at 883. The court reasoned that the record did not show that the

attorney, as a municipal prosecutor, owed a duty to anyone whose interests were adverse to the

defendant’s; as the municipal prosecutor, the attorney’s client was the city of Mount Vernon, and

the defendant had not demonstrated that the city’s interests were in actual conflict with respect to

a legal or factual issue in his case. Id. at 883-84.




                                                  14
No. 46110-2-II


        The same reasoning applies to Juntunen’s arguments. Here, the record does not show that

Baum, as a prosecutor for the city of Vader in Lewis County, owed a duty to anyone whose

interests were adverse to Juntunen’s; as a prosecutor, Baum’s client was the city of Vader.

Therefore, we hold that Juntunen’s argument that Baum’s role as a prosecutor for the city of Vader

constituted an “actual conflict of interest” fails.

        We affirm the superior court’s denial of Juntunen’s motion to withdraw his guilty plea.

        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.



                                                                       Lee, J.
 We concur:



                   Worswick, J.




                   Johanson, C.J.




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