                                                                              FILED
                                                                           AUGUST 1, 2017
                                                                     In the Office of the Clerk of Court
                                                                    WA State Court of Appeals, Division Ill
i



l
J
                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


    STATE OF WASHINGTON,
                                   DIVISION THREE

                                                  )


l
                                                  )         No. 34183-6-111
                         Respondent,              )
                                                  )

l          V.

    JESSE JAMES LUNA, JR.,
                                                  )
                                                  )
                                                  )
                                                  )
                                                            UNPUBLISHED OPINION

                         Appellant.               )

           FEARING, C.J. - Jesse Luna appeals the trial court's refusal to permit the

    withdrawal of a guilty plea. He argues that he was confused as to the difference between

    a consecutive sentence and a concurrent sentence, his trial counsel performed

    ineffectively by failing to properly advise him during plea negotiations, and that the trial

    court erroneously denied him a factual hearing on his motion to withdraw. We reject

    Luna's contentions and affirm the denial of his motion to withdraw.

                                              FACTS

           Although the procedural outline of this prosecution holds more importance to this

    appeal, we relate some of the underlying circumstances of the crime. On May 23, 2013,

    at 11 :41 p.m., a robbery occurred at a Zip Trip store on the comer of Wellesley Street and

    Monroe Street in Spokane. While working on paperwork behind the counter, the clerk on

    duty, Dallas Tibbets, noticed a short Hispanic male enter the store and proceed to stand in
No. 34183-6-111
State v. Luna


front of the counter as if ready to buy something. Tibbets ambled to the cash register to

help him. In a calm voice, the man told Tibbets, "[y]ou've got five seconds to give me

all your money." Clerk's Papers (CP) at 1, 33. The robber warned Tibbets that, ifhe did

not surrender the money, the robber would shoot him. The man started counting down

from five. Tibbets opened the cash register and handed the robber bills and coins.

       While Dallas Tibbets relinquished the money, his coworker, Darla Enquist,

walked to the cash register to ask Tibbets a question. The robber ordered Enquist to lay

on the ground and to look away. Enquist complied. The man then demanded money

from Tibbets' wallet. Tibbets removed his empty wallet from his pants and displayed its

barrenness. Before leaving the store, the robber cautioned Tibbets and Enquist that, if

one of them provided his description to police, he would return and harm them.

       Either Dallas Tibbets or Darla Enquist reported the robbery to emergency

dispatch, and Spokane Police Officer Adam Potter responded to the Zip Trip store.

Officer Potter viewed the store's surveillance video and observed the suspect committing

the robbery. Potter also interviewed Tibbets and Enquist. Both store employees

described the suspect as a five foot, one inch Hispanic male with a cursive writing tattoo,

one-half inch in height, on the left side of his neck. The robber wore a black baseball

cap, a black jacket, and black pants.

       During the evening of May 24, 2013, Police Officer Adam Potter assembled a

photograph montage of possible robbery suspects. Based on the video surveillance and

                                             2
No. 34183-6-111
State v. Luna


the witness's descriptions, Officer Potter considered Jesse Luna as a suspect. Potter

knew Luna from earlier encounters. Officer Potter showed Dallas Tibbets and Darla

Enquist the photomontage that included Luna's picture. Both victims identified Luna as

the robber.

                                         PROCEDURE

       The assignments of error on appeal surround the lengthy procedure before the trial

court. The State of Washington initially charged Jesse Luna with two counts of second

degree robbery and two counts of intimidating a witness. On May 29, 2013, Luna

appeared in Spokane County Superior Court, represented by defense counsel Todd

Porter. The trial court scheduled an arraignment date for June 11, 2013. The court

remanded Luna to the custody of the Spokane County jail and ordered a $100,000 bond.

Luna remained in custody throughout the proceedings.

       On June 5, 2013, before arraignment, the State filed an amended information that

added one count of bail jumping. On June 11, 2013, the trial court arraigned Jesse Luna.

We lack a copy of the arraignment transcript and do not know if counsel assisted Luna at

the hearing. A scheduling order set trial for September 3, 2013. No defense attorney

signed the scheduling order. The next day, on June 12, the State presented a most serious

offense notice, which notified Luna that, if convicted, he may be classified as a persistent

offender and sentenced to life without parole. On June 13, defense counsel, Kevin

Griffin, filed a notice of appearance.

                                             3
No. 34183-6-III
State v. Luna


       The trial court s~bsequently entered numerous scheduling orders that continued

the trial date. On August 19, 2013, the trial court postponed the trial date to September

30, 2013. The postponement order reflects a party requested the continuance for

negotiations, but the order does not identify the requestor. Jesse Luna personally signed

the order. On September 13, 2013, the trial court delayed the trial until November 4,

2013, for continued discovery and negotiations. Luna signed the September 13 order.

On October 18, 2013, the trial court continued trial, for continued discovery and

negotiations, to December 9, 2013. Luna signed this order.

       On November 21, 2013, Jesse Luna requested a trial postponement. The trial

court, finding good cause, granted Luna's request and continued the trial to December 16,

2013. The court instructed the defense that it must notify the State of any "issues" by

November 26, 2013. We do not know the nature of any "issues." Luna signed the

November 21 order.

       For an unknown reason, trial did not proceed on December 16, 2013. On February

6, 2014, the trial court rescheduled the trial date because the defense had yet to supply a

witness list. Jesse Luna signed an order postponing the trial until February 24, 2014.

       On February 10, 2014, the State of Washington filed an amended information that

changed the second degree robbery charge to a first degree robbery accusation with a

deadly weapon enhancement. The second amended information retained the two counts

of witness intimidation and the bail jumping charge. On February 10, Jesse Luna served

                                             4
No. 34183-6-III
State v. Luna


notice that he intended to rely on an alibi defense. On the same day the trial court also

entertained Luna's motions to suppress an alleged impermissibly suggestive

identification and to exclude in-court identification. The court denied the motions.

       On February 24, 2014, on the first day of trial, the trial court allowed Jesse Luna's

defense counsel, Kevin Griffin, to withdraw because of ethical concerns. We lack a

transcript for February 24. The trial court also, in order for Luna to obtain new counsel,

continued the trial to May 19, 2014. The February 28 scheduling order reflects that Luna

"refused to appear" and was in custody. Clerk's Papers (CP) at 27. Luna did not sign the

order. Thereafter, on an unknown date, the trial court appointed Eric Christianson to

represent Luna.

       On May 5, 2014, the trial court stayed the prosecution and directed Eastern State

Hospital to evaluate Jesse Luna's competence to stand trial. On August 22, 2014, Eastern

State Hospital filed its report with the court. In the report, Dr. Daniel Lord-Flynn

concluded that Luna enjoyed the capacity to understand the court proceedings and to

participate in his own defense. Accordingly, on September 2, 2014, the trial court lifted

the stay. The court rescheduled trial for November 3, 2014. Luna signed the September

2 order.

       On October 9, 2014, Jesse Luna requested a trial continuance to accommodate his

defense counsel's schedule and to afford additional time for trial preparation. The trial

court granted Luna's request and reset trial for March 2, 2015. On January 9, 2015, Luna

                                             5
No. 34183-6-III
State v. Luna


filed a motion to dismiss based on alleged misconduct by the State. On February 6, 2015,

the trial court denied the motion to dismiss.

       On February 12, 2015, defense counsel filed a motion requesting a trial

continuance for time to interview Jesse Luna's designated witnesses. The State objected.

The court denied the motion for trial postponement.

       On February 25, 2015, less than one week before the March 2 trial date, Jesse

Luna's defense counsel, Eric Christianson, moved to withdraw as counsel. The trial court

denied Christianson's motion. The court directed counsel to at least represent Luna at the

beginning of trial and withdraw later if necessary. Luna could then represent himself

without an attorney with Christianson functioning as standby counsel. At the trial court's

request, Christianson, on March 2, filed a sealed declaration explaining the circumstances

for his withdrawal request. In his declaration, Christianson disclosed a conflict between

his duty to advocate for his client and his duty to refuse to offer evidence he reasonably

knew was false.

       On the trial date of March 2, 2015, the State of Washington filed a second

amended information that charged Jesse Luna with (1) one count of second degree

burglary, (2) one count of first degree theft, and (3) one count of intimidating a witness.

During the morning of trial, the trial court noticed the State and defense counsel trading

notes. In response to a trial court inquiry, the attorneys advised that they may have

reached a resolution, but needed time to prepare paperwork and for defense counsel to

                                                6
No. 34183-6-III
State v. Luna


review the papers with Luna. The court granted the request, and the hearing recessed for

an hour.

       After the recess on March 2, the State filed a third amended information that

charged (1) one count of second degree burglary, (2) one count of first degree theft, and

(3) one count of intimidating a witness. In turn, defense counsel provided the trial court

with a written statement on plea of guilty to the amended charges. The plea statement

identified Luna's offender score as 9+. Jesse Luna signed the written plea statement. In

bold and underlined language, Paragraph 6(h) of the plea agreement asserted:

              There is an agreed recommendation of 30 years in prison; Ten
       years on each count, to run consecutively. Defendant understands that
       this sentence is outside the standard sentencing ranges, and that he has
       agreed to an exceptional sentence above the range to accommodate this
       sentence. Defendant also understands that these sentences are
       presumptively calculated to run concurrently, but that there is an
       agreement under the exceptional sentencing statute to run the
       sentences consecutively.

CP at 140 (emphasis in original).

       During the March 2 hearing and pursuant to CrR 4.2(e), the parties submitted an

"UNDERSTANDING OF DEFENDANT'S CRIMINAL HISTORY" that recorded the

State's knowledge of Jesse Luna's criminal history. CP at 148-49. The document listed

Luna's numerous past felony and misdemeanor convictions including, but not limited to,

assault in the second degree, robbery in the first degree, theft in the second degree,

burglary in the second degree, domestic violence assault, and rioting. Some of these


                                              7
No. 34183-6-III
State v. Luna


convictions subjected Jesse Luna to a possible lifetime sentence.

       On March 2, 2015, defense counsel, in open court, confirmed Jesse Luna

understood the amended charges and his statement on guilty plea. The trial court then

asked defense counsel:

             But have there been some negotiations going on in the past or is this
       something that just happened today?

Report of Proceedings (RP) at 16. The court added that it wished to know the amount of

time afforded to Luna to evaluate the plea agreement. Defense counsel confirmed the

existence of negotiations, but did not delineate the length of the negotiations or identify

the window of time available to Luna to contemplate the plea.

       The trial court, on March 2, next engaged in a colloquy with Jesse Luna. Luna

declared that he ( 1) read and understood the documents he signed, (2) he understood the

amended charges, (3) he understood the rights he waived when entering a plea, (4) he

understood the standard range and maximum penalties for the crimes charged, ( 5) he

agreed with his criminal history presented by the State, and (6) he understood the State

and his counsel would recommend an exceptional sentence of a prison term of thirty

years, ten years on each count to run consecutively. The following discussion occurred

with regard to the consecutive sentence recommendation:

             THE COURT: All right. Mr. Luna, in return for your plea of guilty
      to these charges, I understand that there is a joint recommendation that you,
      your attorney, and the state are asking me to follow. The agreed


                                              8
No. 34183-6-111
State v. Luna


       recommendation would be for 30 years in prison, 10 years on each count to
       run consecutively.
              This states that you understand this sentence is outside the standard
       sentencing ranges and that you have agreed to an exceptional sentence
       above the range to accommodate this sentence. It says the defendant also
       understands that these sentences are presumptively calculated to run
       concurrently, which means all at the same time, but that there is an
       agreement under the exceptional sentencing statute to run the sentences
       consecutively.

             THE COURT: All right. And then they're going to dismiss the bail-
      jumping charge. Is that your understanding of what the recommendations
      are going to be?
             MR. LUNA: Yes, that's my understanding.
             THE COURT: All right. Do you understand I don't have to follow
      those recommendations? I'm free to sentence you to any sentence
      authorized by law. Of course, these are maximum sentences. So do you
      understand that, though, first?
             MR. LUNA: Yes, I understand that.

CP at 21-22.

       On March 2, 2015, the trial court accepted Jesse Luna's Alford and Barr pleas of

guilty, while finding that Luna voluntarily, intelligently, and knowingly entered the pleas.

The court scheduled Luna's sentencing to April 23, 2015.

       On March 4, 2015, Jesse Luna notified defense counsel Eric Christianson that he

wished to withdraw his guilty plea. Luna contended that ineffective assistance of counsel

led to his guilty plea. Accordingly, prior to the sentencing hearing and on April 17, 2015,

defense counsel again petitioned the trial court to withdraw as Luna's attorney. In a

declaration supporting the petition, Christianson informed the court that the Rules of

Professional Conduct precluded him from writing a motion to withdraw his guilty plea

                                             9
No. 34183-6-III
State v. Luna


based on his alleged ineffective assistance of counsel. The trial court granted

Christianson's motion and ordered the Spokane County Public Defender's Office to

procure Luna new counsel. The trial court then appointed Timothy Trageser as Luna's

new counsel.

       On April 23, 2015, the original sentencing.date, the trial court granted new defense

counsel a continuance of the sentencing hearing to May 7, 2015. We lack the transcript

from the April 23 hearing. Either at this hearing or shortly thereafter, Jesse Luna entered

an oral motion to withdraw his guilty plea. Defense counsel did not file a written motion.

The State responded to Luna's oral request to withdraw his guilty plea with a written

memorandum.

       At the rescheduled sentencing hearing of May 7, 2015, the trial court recalled that

Jesse Luna sought to withdraw his plea, and the court questioned why it had not seen a

motion to withdraw the plea. The trial court noted that the State filed a response to

Luna's oral request. Luna's defense counsel declared that the question of whether Luna

understood the recommended sentence required a factual hearing. According to counsel,

Luna claimed he understood, when entering the plea of guilty, that prior defense counsel

could argue for concurrent, instead of consecutive, sentences. Counsel stated:

              And I have examined carefully the plea agreement, and I know what
      it says. And I have, as I indicated, spoke to counsel who represented Mr.
      Luna. But, however, having talked to Mr. Luna about this, there is a
      genuine issue that I believe the Court should address, and that is whether or



                                            10
No. 34183-6-111
State v. Luna


       not Mr. Luna was under some confusion, not withstanding [sic] the clear
       language of the plea agreement.
               What I'm talking about is-are the oral representations Mr. Luna has
       told me occurred at the time of this plea, specifically that counsel was free
       to argue these matters could run concurrent. And in fact, as I understand it,
       the charges were amended to three class B felonies, properly-related
       offenses, and that-nonviolent offenses. And the purpose of doing so was
       to avoid a mandatory life sentence without the possibility of parole.
               It was Mr. Luna's understanding that counsel was still free to argue
       that these cases could run concurrent, and that in fact was the reason for the
       delay was to prepare for a sentencing hearing to make and deliver all of the
       information necessary to the Court to sentence and make a determination as
       to whether or not these offenses should run concurrently, specifically
       bringing in family members, Mr. Luna making a decision as to whether or
       not he should take the stand.                 ·
               And I'm not the finder of fact, but I can tell you that ifl thought and
       believed I was proffering false statements and things that I believed not to
       be true as clear as day, I would move to withdraw, claiming that I have a
       conflict of interest. But in speaking with my client, he is adamant,
       adamant, that it was his understanding that counsel was free to argue
       concurrent.
               He described the situation at counsel table when the decision was
       made and the parties going back and forth. And I'm not alleging any
       intentional misconduct by anybody. I am just indicating that my client
       believed that they were going to come back for sentencing and that his
       counsel was free to argue concurrent.
               And I'll just summarize this. My client has specifically said that
       counsel stated to him, "Don't worry. It's okay. We are-we can ask the
     · Court to run these concurrently." And so that's where I stand now.
               Now, I only spoke to Mr. Christianson, I don't know, last week,
       probably five days ago, and so I haven't had a chance to file an appropriate
       motion with the appropriate affidavits and whether or not they should be
       sealed, but I'd like some additional time for that. I haven't been on the case
       that long. It's a really serious matter, Judge, as you know, and my client is
       subjected to a 30-year sentence.

RP at 34-35.




                                            11
No. 34183-6-III
State v. Luna


       The State responded that, if Jesse Luna wanted to withdraw his plea and proceed

to a third strike trial on the original charges, it would agree. The State, nonetheless,

expressed frustration that Luna created conflicts with defense counsel and engaged in

gamesmanship.

       During the May 7 hearing, the trial court iterated:

               The reason I'm pausing here, Counsel-I'll just say this to everyone.
       I recall, because it wasn't that long ago, fairly vividly the sequence of
       events that happened in this case on March the 2nd, the day that we were
       here for trial and we were discussing certain pretrial motion practice. And
       Mr. Luna wrote a note, handed it to his attorney. His attorney then turned
       and whispered to the prosecutor, who was Mr. Treppiedi at the time and we
       took a pause, kind of, in the proceedings, and I asked whether the parties
       needed some time to talk in private.

              One of the questions I asked Mr. Christianson before we started was
       whether or not these were some discussions that had come up just that
       morning or whether these were some ongoing plea negotiations, and Mr.
       Christianson advised that there had been some negotiations that had been
       gomg on ....

              THE COURT: But in terms of what the agreement was, I think this
      is clear and unequivocal. I questioned Mr. Luna if that was his
      understanding. He gave me an unequivocal answer that it was. I also asked
      him whether he had had sufficient time to discuss this with his attorney. He
      said he did. Again, that's a standard question I ask in every plea
      agreement. And so I just think that's fairly overwhelming evidence that
      this was an unequivocal understanding that it wasn't going to run
      concurrently.
              Now, again, even if Mr. Luna says, "Well, the Court doesn't have to
      follow that recommendation so therefore I'm free to argue that it should
      just be 10 years," I think they're free to argue that at sentencing now. But
      this is what the plea agreement said, and I don't see that meeting the
      standard-that this was a-I don't think this comes close to any manifest
      injustice, which would be the burden on Mr. Luna.

                                              12
No. 34183-6-111
State v. Luna



              THE COURT: But Mr. Luna could probably say anything he wants
      in his allocution.
              MR. CIPOLLA [State's attorney]: Mr. Luna could do whatever Mr.
      Luna wants. We've gone through that already.

              THE COURT: And I'm not saying that there is some sort of
      agreement to argue anything differently. I'm just saying that there's always
      a caveat that the Court does not have to follow those recommendations and
      that, at some point, allows, either on my own request or my own discretion,
      for me to say I'm not going to follow it, or it allows Mr. Luna during
      allocution to say whatever he may wish to say.
              But this, to me, is powerful. I mean, this was not, you know, we're
      agreeing to 10 years just consecutive, because then I guess somebody could
      argue, Well, what does consecutive mean versus concurrent? Those are
      terms of art that I always have to pause before I say it to make sure I'm
      getting them right and not mixing them up. But when you start off, "There
      is an agreed recommendation of 30 years in prison, 10 years on each count
      to run consecutively," that doesn't appear to be ambiguous to me in any
      way.

RP at 39-44. The trial court confirmed that, during the March 2 hearing, it "carefully"

reviewed the statement of guilty with Jesse Luna. During that hearing, the trial court read

verbatim the sentencing recommendations found in paragraph 6(h) of the plea statement.

During the May 7 hearing, the trial court reread for Jesse Luna paragraph 6(h) and

emphasized the language of consecutive sentences.

      Near the conclusion of the May 7 sentencing hearing, the trial court commented

that Jesse Luna does not come close to the manifest injustice needed to withdraw a plea.

The court commented:

            But in terms of what the agreement was, I think this is clear and
      unequivocal. I questioned Mr. Luna if that was his understanding. He gave

                                            13
No. 34183-6-III
State v. Luna


       me an unequivocal answer that it was. I also asked him whether he had had
       sufficient time to discuss this with his attorney. He said he did. Again,
       that's a standard question I ask in every plea agreement. And so I just think
       that's fairly overwhelming evidence that this was an unequivocal
       understanding that it wasn't going to run concurrently.

RP at 41. The court concluded that a fact-finding hearing would not change the outcome

of the motion to withdraw the plea.

       During the May 7 hearing, the trial court reminded the parties that it need not

follow the sentencing recommendation in the plea agreement. The court also noted that,

if Luna wished to request concurrent sentences, he may do so in his allocution.

       During his allocution, Jesse Luna informed the trial court that he understood

sentencing, but that his defense counsel, Eric Christianson, lied to him by telling him that

he could argue concurrent sentences and that the "judge can do anything he wants." RP

at 62. The trial court asked Luna multiple questions including whether he recalled the

court reading him the agreed sentencing recommendations, whether he recalled telling the

court he received no promises to induce his plea, and whether he remembered the court

asking whether he read and understood the plea agreement in its entirety. Luna answered

all of these questions in the affirmative. Luna, however, insisted that he would have

never agreed to a thirty-year sentence if his counsel had not prevaricated. He added:

             So as far as consecutive and concurrent, the only other thing I
      understood about consecutive and concurrent sentence is that if it's the
      same course of conduct and happened at the same time and there was [sic]
      no acts of cruelty and no aggravating factors stipulated by the state, which
      there was none, I understood that it ... would be run concurrently.

                                            14
No. 34183-6-111
State v. Luna



RP at 63. Luna asked the court to run the ten-year sentences concurrently.

       At the end of the May 7 hearing, the trial court sentenced Jesse Luna to the agreed

thirty-year sentence. The court found that the sentence, while substantial, was reasonable

in light of the life sentence Luna faced had he been convicted of the original offenses.

On May 7, 2015, the trial court entered a felony judgment and sentence and findings of

fact and conclusions of law supporting the agreed exceptional sentence.

                                     LAW AND ANALYSIS

       Issue 1: Whether Jesse Luna's first trial counsel was ineffective when he failed to

object to untimely trial settings?

       Answer 1: No.

       Jesse Luna contends his respective trial counsel provided him ineffective

assistance of counsel more than once. He first argues that his first trial counsel

performed deficiently when counsel failed to object to an erroneously scheduled trial

date. Luna claims this failure denied him his right to be brought to trial within sixty days

of his arraignment. The State argues that Luna failed to demonstrate that counsel did not

discuss the untimely trial setting with him and the procedure for objecting to the hearing

date. We reject Luna's claim since counsel probably withheld an objection to trial

postponements based on legitimate trial strategy.




                                             15
No. 34183-6-111
State v. Luna


       A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's

performance was deficient, and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); State v. Hamilton, 179 Wn.

App. 870, 879, 320 P.3d 142 (2014). The State argues that Jesse Luna fails to satisfy

either prong of the test. We rely only on the first prong. If one prong of the test fails, we

need not address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d

563 (1996). The question of ineffective assistance of counsel presents a mixed question

of law and fact that we review de novo. Strickland v. Washington, 466 U.S. at 698.

       For the deficiency prong, this court bestows great deference to trial counsel's

performance and begins the review with a strong presumption of counsel's effectiveness.

State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015). Deficient performance is

performance that falls below an objective standard of reasonableness based on

consideration of all the circumstances. State v. McFarland, 127 Wn.2d 322, 334-35, 899

P .2d 1251 (1995). The appellant bears the burden to prove ineffective assistance of

counsel. State v. McFarland, 127 Wn.2d at 335. Legitimate trial strategy and tactics

cannot support a finding of deficient performance. State v. McFarland, 127 Wn.2d at

336; State v. Garrett, 124 Wn.2d 504,520,881 P.2d 185 (1994).

       A defendant has a right to a speedy trial under the Sixth Amendment to the United

States Constitution and article I, section 22 of the Washington State Constitution. In re

                                             16
No. 34183-6-111
State v. Luna


Personal Restraint ofSaunders, 153 Wn. App. 209,216, 220 P.3d 1238 (2009). A court

rule also protects the timely trial right. Under CrR 3.3(b)(l)(i), an accused held in

custody pending trial must be tried within sixty days of arraignment. The court rule's

requirement, however, is not a constitutional mandate. State v. Carson, 128 Wn.2d 805,

821, 912 P.3d 1016 (1996); In re Personal Restraint of Saunders, 153 Wn. App. at 216-

17. The calculation of the speedy trial period excludes the time allowed based on valid

continuances and other delays. CrR 3.3(e)(3). When the applicable speedy trial period

has expired without a trial, the trial court must dismiss the charges. CrR 3.3(h).

       Any party objecting to a trial date on speedy trial grounds must do so within ten

days after receiving notice of the trial setting. CrR 3.3(d)(3). Any party who fails, for

any reason, to make this motion loses the right to object to a violation. CrR 3.3(d)(3).

Defense counsel bears some responsibility for timely asserting a client's speedy trial

rights under CrR 3.3. State v. Carson, 128 Wn.2d at 819. The trial court arraigned Jesse

Luna on June 11, 2013 and scheduled trial for September 3, 2013. The September 3 trial

date lies eighty-four days after the arraignment. Under CrR 3.3(b)(l)(i), the trial court

should have scheduled trial within sixty days of June 11 or by August 10, 2013. We do

not know whether any counsel represented Luna at the arraignment, when the trial court

scheduled trial, because the June 11 scheduling order lacks defense counsel's signature,

and we lack a transcript from the arraignment hearing. When Jesse Luna first appeared in




                                             17
No. 34183-6-III
State v. Luna


court, on May 29, 2013, defense counsel Todd Porter assisted Luna, but Porter, to our

knowledge, never entered a formal notice of appearance.

       Kevin Griffin filed a notice of appearance on June 13, two days after arraignment

and after the trial court's setting of the trial date. We do not know whether Griffin, as of

June 13, knew of the scheduling of trial beyond CrR 3.3(b)'s sixty-day rule.

Nevertheless, eight days remained for Griffin, on behalf of Jesse Luna, to object to the

untimely trial date. No evidence suggests Griffin objected to the trial date orally or in

writing. Furthermore, no evidence documents any discussions between Griffin and Luna

regarding the untimely trial setting. On August 19, 2013, nine days after the expiration of

the speedy trial period expired, Griffin, on behalf of Luna, requested a continuance of the

September 3 trial date.

       If the record lacked a history of later trial postponements requested on behalf of

Jesse Luna, we might consider trial counsel's failure to timely assert the speedy trial rule

to constitute professional error. Nevertheless, the record shows nine trial continuances.

Jesse Luna specifically requested the continuance on three occasions. He either

requested or agreed to a continuance on the other six occasions. We can reasonably

surmise that defense counsel, in August 2013, did not assert the speedy trial rule because

of the need for discovery and trial preparation. Attorney Kevin Griffin knew of Luna's

long criminal history, his high offender score, and the State's intent to seek a sentence of




                                             18
No. 34183-6-111
State v. Luna


life without parole, all factors showing a need for extensive preparation, if not tactical

delay to gain a favorable plea agreement.

       Additional principles support our ruling that counsel did not engage in

professional error. To rebut the presumption of trial counsel competence, a defendant

must establish an absence of any legitimate trial tactic that would explain counsel's

performance. State v. Grier, 171 Wn.2d at 33 (2011); In re Personal Restraint of Davis,

188 Wn.2d 356, 371, 395 P.3d 998 (2017). Competency of counsel is determined based

on the entire record below. State v. McFarland, 127 Wn.2d at 335 (1995); State v. White,

81 Wn.2d 223,225, 500 P.2d 1242 (1972).

       Issue 2: Whether Jesse Luna's third trial counsel was ineffective when he failed to

file a written motion to withdraw the guilty plea?

       Answer 2: No.

       Jesse Luna next argues his third trial counsel, Timothy Trageser, performed

deficiently when Trageser failed to file a written motion to withdraw his guilty plea after

making the motion orally. The State responds that the result would not have been

different if counsel had prepared a written motion because the court found no manifest

injustice occurred when the defendant entered his guilty plea. We conclude Trageser did

not perform ineffectively because the oral motion sufficed to place the motion before the

trial court and the outcome of the motion would not have differed with a written motion.




                                             19
No. 34183-6-III
State v. Luna


       Timothy Trageser appeared as counsel for Jesse Luna on April 21, 2015, two days

before the first scheduled sentencing hearing. Jesse Luna did not provide the court with a

transcript from the April 23, 2015 hearing when Timothy Trageser requested a

continuance of the sentencing hearing. During the April 23 hearing, Trageser may have

mentioned an intent to file a motion to withdraw the guilty plea.

       At the rescheduled sentencing hearing, on May 7, 2015, the trial court questioned

Timothy Trageser regarding Jesse Luna's desire to withdraw his guilty plea. Trageser

responded that, after reviewing the case files and speaking with Luna and his previous

counsel, Eric Christianson, he discerned a need for a fact-finding hearing on the motion

to withdraw the plea. According to Trageser, the motion presented a genuine issue of

fact with respect to Luna's understanding of the recommended sentence and the

difference between concurrent and consecutive sentences. According to Luna,

Christianson told him that, despite the plea agreement, Luna could still request concurrent

sentences.

       At the May 7 sentencing hearing, the trial court concluded that a fact-finding

hearing would not change its ruling on a motion to withdraw the plea. The court resolved

that Jesse Luna did not satisfy the manifest injustice test for withdrawing a plea. The

plea agreement language regarding consecutive sentences contained no ambiguity, and,

during the plea colloquy, the trial court unmistakably warned Luna of consecutive

sentences.

                                            20
No. 34183-6-111
State v. Luna


       We previously reviewed the rules and principles surrounding a claim of ineffective

assistance of counsel. Timothy Trageser's performance did not fall below an objective

standard of reasonableness based on the circumstances. Trageser had approximately two

weeks from his appointment to prepare for the sentencing hearing. Trageser apprised the

court that Luna may want to withdraw his plea. He reviewed the files and spoke with

Luna and his previous counsel, Eric Christianson. Once Trageser possessed the

important facts, he believed a fact-finding hearing was appropriate and requested one at

the sentencing hearing. Based on these circumstances, the decision not to file a written

withdrawal of guilty plea prior to the sentencing hearing was objectively reasonable.

       Jesse Luna and Timothy Trageser, on behalf of Luna, in essence forwarded an oral

motion to withdraw the guilty plea. CrR 4.2(t) controls withdrawal of guilty pleas.

               (f) Withdrawal of Plea. The court shall allow a defendant to
       withdraw the defendant's plea of guilty whenever it appears that the
       withdrawal is necessary to correct a manifest injustice. If the defendant
       pleads guilty pursuant to a plea agreement and the court determines under
       RCW 9 .94A.431 that the agreement is not consistent with ( 1) the interests of
       justice or (2) the prosecuting standards set forth in RCW 9.94A.401-.411, the
       court shall inform the defendant that the guilty plea may be withdrawn and a
       plea of not guilty entered. If the motion for withdrawal is made after
       judgment, it shall be governed by CrR 7.8.

Nothing in CrR 4.2(f) requires the motion to withdraw be in writing. Although Luna

sought withdrawal before entry of judgment, nothing in CrR 7 .8, requires a motion be in

writing. Although Washington courts have never expressly ruled that an oral motion

suffices to properly bring a request before the trial court, other jurisdictions have

                                              21
No. 34183-6-111
State v. Luna


recognized the validity of oral motions. Osowski v. AMEC Construction Management,

Inc., 69 A.D.3d 99, 887 N.Y.S.2d 11, 16 (2009); Will of Mingo v. Mingo, 743 So. 2d 433,

435 (Miss. Ct. App. 1999); Stern v. Dill, 442 N.W.2d 322, 325 (Minn. 1989); Ex parte

Tampling Tile Co. v. J&J Construction, 551 So. 2d 1072, 1074 (Ala. Civ. App. 1989);

Gregg Kendall & Associates, Inc. v. Kauhi, 53 Haw. 88, 488 P.2d 136, 139 (1971).

While all cited decisions rest on the civil side of the law, we see no need to distinguish,

for purposes of the acceptability of oral motions, criminal from civil cases.

       Jesse Luna may argue that, even if trial counsel's performance in failing to file a

motion to withdraw the plea before the sentencing hearing was not deficient, counsel

committed professional error by failing to file a written motion after the sentencing

hearing. We disagree. The trial court, during the sentencing hearing, already addressed

the merits of the motion to withdraw. The trial court's reasoned decision would not have

changed by the filing of a motion after the sentencing. Trial counsel does not perform

deficiently by failing to file a superfluous motion.

       Jesse Luna argues that a different standard applies to the withdrawal of a plea

depending if the defendant brings the motion before or after sentencing. Presumably, he

suggests that his burden after entry of the judgment would wane. Under CrR 4.2(t), the

movant, before sentencing, must establish "manifest injustice." Under CrR 7.8(b)(5), the

court may grant relief from the judgment on "[ a]ny other reason justifying relief from the

operation of the judgment."

                                             22
No. 34183-6-III
State v. Luna


       Jesse Luna's argument benefits him none. Under CrR 7.8(b), final judgments

should be vacated or altered only in those limited circumstances when the interests of

justice most urgently require. State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989);

State v. Smith, 159 Wn. App. 694, 700, 247 P.3d 775 (2011). This standard echoes and

may be more stringent than the manifest injustice measurement. Also, CrR 7.8(b)(5)

does not apply when the circumstances used to justify the relief existed at the time the

judgment was entered. State v. Smith, 159 Wn. App. at 700. Any motion to vacate the

final judgment would be based on circumstances already existing at the time.

       Issue 3: Whether the trial court committed error when refusing to schedule a

hearing on Luna's oral motion to withdraw his guilty plea?

       Answer 3: No.

       Jesse Luna now moves his focus from the performance of trial counsel to rulings

by the trial court. Luna argues that a fact-finding hearing was necessary before the trial

court denied his motion to withdraw his plea. He contends the trial court needed to

resolve what his defense counsel told him regarding "concurrent" and "consecutive"

sentences. The State argues that the trial court did not abuse its discretion when it

declined to hold a fact-finding hearing because the court had all necessary facts before it.

We agree with the State.

       In addressing Jesse Luna's contention, we must precisely delineate what he claims

counsel Eric Christianson told him on the day of the guilty plea. Luna does not contend

                                             23
No. 34183-6-111
State v. Luna


that Christianson told him that he would receive concurrent sentences. Luna does not

contend he was confused between the meaning of the terms "consecutive" and

"concurrent." He contends that his counsel told him that, despite the plea agreement, he

may request that the court grant him concurrent sentences. But, in fact, assuming

Christianson delivered such advice, the advice was accurate. Luna, during his allocution,

could and did ask the sentencing court to run the sentences concurrent. The trial court

also recognized it need not accept the recommendation for a thirty-year sentence.

       The trial court did not need to resolve any dispute in facts. Even under Jesse

Luna's version of the facts, Eric Christianson gave no misleading advice. Luna supplies

no legal authority that demands that the trial court conduct a factual hearing when

reviewing a motion to withdraw a guilty plea when the court need not resolve any

disagreement in the facts.

       We also note that Jesse Luna could not be confused about the meaning of the

terms "consecutive" and "concurrent," because the plea agreement specifically referred to

a thirty-year sentence. For Luna to receive a thirty-year sentence, the ten-year sentences

had to run consecutively.

      An appellate court reviews a trial court's decision to grant or deny a motion to

withdraw a guilty plea for an abuse of discretion. State v. Forest, 125 Wn. App. 702,

706, 105 P .3d 1045 (2005). A trial court abuses its discretion when it bases its decision




                                            24
No. 34183-6-III
State v. Luna


on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244,258, 893 P.2d 615

(1995).

       Under CrR 4.2(f), the court shall allow a defendant to withdraw the defendant's

guilty plea whenever it appears that the withdrawal is necessary to correct a manifest

injustice. A manifest injustice is "an injustice that is obvious, directly observable, overt,

not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Withdrawal

may be necessary to correct a manifest injustice when the defendant establishes ( 1) he or

she received ineffective assistance of counsel, (2) the plea was not ratified by the

defendant or one authorized by him or her to do so, (3) the plea was involuntary, or (4)

the plea agreement was not kept by the prosecution. State v. Quy Dinh Nguyen, 179 Wn.

App. 271, 282, 319 P.3d 53 (2013). The defendant has the burden of establishing

manifest injustice. State v. Quy Dinh Nguyen, 179 Wn. App. at 282-83.

       The trial court did not abuse its discretion when it declined to hold a fact-finding

hearing and instead denied Jesse Luna's oral motion to withdraw his guilty plea. The

court recalled the circumstances leading to the plea agreement, which included Luna

handing a note to his attorney, who then passed the note to the prosecutor, ultimately

resulting in a proposed plea agreement. Luna's counsel, Eric Christianson, advised the

court of on-going negotiations. During the plea hearing, the trial court carefully

discussed the plea agreement with Luna and read in Luna's hearing all of the

recommendations contained therein. The joint sentencing recommendation in paragraph

                                             25
No. 34183-6-111
State v. Luna


6(h) declared a thirty-year exceptional sentence, with three consecutive ten-year

sentences for each crime. This language in the plea agreement was bold and underlined.

       Issue 4: Whether the trial court abused its discretion when it did not consider

Luna's pro se request for a "same criminal conduct" analysis during the course of his

allocution at the sentencing hearing?

       Answer 4: No.

       We phrase issue four as formulated by Jesse Luna. Nevertheless, the issue's

wording assumes erroneous facts. During his allocution, Jesse Luna complained about

consecutive sentences. Nevertheless, he never requested that the trial court engage in a

same criminal conduct analysis.

       On appeal, Jesse Luna contends that the sentencing court did not exercise its

discretion when it failed to conduct a "same criminal conduct" analysis under RCW

9.94A.589(1)(a). Nevertheless, Luna fails to inform this court how a same criminal

conduct analysis would benefit him. The State responds that the trial court was not

required to exercise its discretion in determining whether the crimes of burglary and theft

were the same course of conduct because ( 1) Luna agreed to consecutive sentences on all

three charges in exchange for the State dismissing the charges that would result in a

persistent offender sentence, and (2) Luna held the burden to prove the charges

constituted the same criminal conduct, which he failed to do. We agree with the State

and add that Luna waived this assignment of error.

                                            26
No. 34183-6-111
State v. Luna


       The failure of a defendant to argue at sentencing that two crimes constituted the

same criminal conduct waives the argument on appeal. State v. Rattana Keo Phuong,

174 Wn. App. 494, 547, 299 P.3d 37 (2013). When a defendant fails to request the court

to exercise its discretion in sentencing, any error in that regard is waived. In re Personal

Restraint of Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002).

                             Statement of Additional Grounds

       Jesse Luna presents three additional grounds on which he seeks vacation of the

judgment of guilty. He contends that his first trial counsel, Kevin Griffin, asked him to

lie so that Griffin could withdraw from the case on ethical grounds. Statement of

additional grounds (SAG) at 1. Luna contends his second trial counsel was ineffective

when he refused to attach a supporting letter from Spokane Police Chief Frank Straub in

support of his motion to dismiss. SAG at 1. This letter is not in the record. Finally, he

argues that his second trial counsel, Eric Christianson, asked him to say "some (crazy)

statements" so that Christianson could request a mental evaluation. SAG at 2. This court

cannot address any of the arguments because they depend on facts outside the record.

                                      CONCLUSION

       We affirm the trial court's denial of Jesse Luna's motion to withdraw guilty plea

and affirm the trial court's judgment and sentence.




                                             27
No. 34183-6-111
State v. Luna


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



                                            Pennell, J.




                                           28
