                                                   20IUUN 16 AH 9^5




     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 69802-8-1
                    Respondent,
      v.                                        DIVISION ONE

JOHN WESLEY JACKSON, JR.,                       UNPUBLISHED OPINION

                    Appellant.                  FILED: June 16, 2014


      Leach, J. — John Jackson Jr. appeals the trial court's denial of his motion

to withdraw his guilty plea.     He claims that his trial counsel did not provide

effective assistance during plea negotiations because the attorney failed to

inform Jackson of the State's burden to disprove his self-defense claim. He also

claims that his sentence for attempted assault in the first degree exceeds the

statutory maximum. In a statement of additional grounds, he further claims that

the court had no basis to impose an exceptional sentence, that the court

sentenced him twice on one cause number and improperly imposed consecutive

sentences, and that the court violated his right to a speedy trial. Because we

accept the State's concession that the imposed period of community custody,

when combined with Jackson's imposed term of incarceration, exceeds the

statutory maximum sentence for attempted assault in the first degree, we remand

to the trial court either to amend the community custody term or to resentence
No. 69802-8-1 / 2




Jackson on the attempted assault conviction consistent with RCW 9.94A.701(9).

Because Jackson's remaining claims are meritless, we otherwise affirm.

                                    Background

        Jackson rented two rooms in a building that Anthony Narancic managed.1

After Jackson moved out of the building in September 2011, Narancic retained

his security deposit. Narancic received several threatening telephone calls from

Jackson, demanding that Narancic return his security deposit.

        On October 4, 2011, Jackson offered another tenant money to call him

when Narancic appeared on the property.          After this tenant called, Jackson

rushed into Narancic's office and beat him over the head with a metal club or


pipe. Vincent Pettie rushed into the office and held down Narancic while Jackson

continued to beat Narancic and told Narancic that he would kill him. As Jackson


and Pettie drove away, Jackson yelled, "I'm a gangster" and "I'll fucking kill you."

        When police arrested Jackson, he stated that he and Narancic got into a

"tussle" and that "[i]t was a fair fight." Jackson denied assaulting Narancic with a

pipe.

        The State charged Jackson with assault in the first degree. Before trial,

Jackson told the court that he intended to raise a self-defense claim.




       1 Jackson stipulated that the court could consider the facts contained in
the certification for determination of probable cause and the prosecutor's
summary for purposes of the sentencing hearing. After Jackson filed the motion
to withdraw his guilty plea, the trial prosecutor submitted a declaration to the
court detailing the State's anticipated evidence at trial.
No. 69802-8-1 / 3




        The parties reached a plea agreement on the third day of trial. Jackson

agreed to plead guilty to attempted assault in the first degree and felony

harassment.       The parties agreed that the prosecutor would recommend an

exceptional sentence above the standard range of 120 months on the assault

count, the statutory maximum, and 60 months on the harassment count, to run

consecutively. The prosecutor would also recommend 36 months of community

custody on the assault count.

        Before sentencing, Jackson moved to withdraw his guilty plea, alleging

ineffective assistance of counsel. The court continued the sentencing date and

allowed Jackson's attorney, Daniel Felker, to withdraw based on a potential

conflict of interest.


        After the court appointed new counsel, Jackson moved to withdraw his

guilty plea based upon ineffective assistance of counsel. He argued,

              Despite being placed on notice that Mr. Jackson would
       assert a self-defense claim at trial, neither the state nor the court
       inquired of Mr. Jackson during his plea colloquy whether he
       understood what rights he was giving up relative to the defense of
       self-defense. At no point was Mr. Jackson asked if he was aware
       of what he would need to prove for a successful self-defense claim,
       or that the state would have the burden of disproving his claim of
       self-defense beyond a reasonable doubt at trial.

Jackson claimed, "If [Felker] had told me about the laws of self-defense, and the

state's burdens, I would have not pled guilty but would have continued the trial

and testified."


        Felker submitted two declarations about his representation. Felker stated

that "in an initial meeting at the King County Jail, Mr. Jackson described his
No. 69802-8-1/4




participation in the incident, indicating that he acted in self defense." He also

stated,

   1. Over the course of my representation of Mr. Jackson and prior to
      the trial date and subsequent plea in this matter, I discussed the
      defense of self-defense with Mr. Jackson. We discussed his right
      to testify and I was aware of the likely substance of Mr. Jackson's
      testimony if he decided to testify at trial.
   2. I reviewed the entire discovery, visited the scene of the crime and
      interviewed many of the State's witnesses. I had two different
      investigators assigned, who worked many hours on the case. I was
          familiar with the facts of the case and the evidence that the State
          would likely present. Approximately a month before trial, after I had
          interviewed the victim and the State's witnesses and conducted an
          independent investigation and evaluation of the case, Mr. Jackson
          asked me for my opinion on the strength of his possible defense.
          Based upon everything I knew, including what Mr. Jackson
          discussed with me, I told him that he had "a really tough case," as I
          did not think Mr. Jackson could avoid conviction by raising self-
          defense. I believed that the State could prove that Mr. Jackson had
          not acted in self-defense.     I advised Mr.    Jackson that if the
          prosecutor was willing to make a reasonable plea offer that he
          should consider it.
   3. On the third day of trial, when Mr. Jackson announced to me and
      the State that he wanted to plead guilty to an offer of 180 months,
      which had been discussed with [the prosecutor] the previous day.
      The parties then engaged in formal plea negotiations for the first
      time. Based on my evaluation of the strength of the State's case,
      taking into consideration Mr. Jackson's proffered defense of self-
      defense and my knowledge of his intended testimony, I believe that
      Mr. Jackson's plea was in his best interests and would save him
          many years in prison.

          After a hearing, the trial court denied Jackson's motion to withdraw his

guilty plea. The court entered the following findings of fact:

   2. The court finds the statements contained in the October 31, 2012
          and December 7, 2012 declarations of trial counsel, Daniel Felker,
          credible.
   3. The court does not find credible the statements of the defendant on
          October 5, 2012, in court and does not find credible the statements
          contained in the declaration of the defendant regarding his
          meetings and discussions with Mr. Felker.


                                           -4-
No. 69802-8-1 / 5


   4. The court finds that the State would have presented evidence
      showing that the defendant (and his co-defendant) showed up at
      the victim's work with a weapon in hand; that the defendant
      attacked and repeatedly assaulted the victim with the weapon; that
      the defendant had made prior threats against the victim; that the
      defendant had offered money to another tenant if that tenant would
       let the defendant know when the victim arrived at work; and that as
      the defendant was leaving, he threatened to kill the victim, yelling,
      "I'm a gangster, I'll kill you."
   5. The defendant has never identified any evidence that he acted in
      self-defense.    Attorney Felker credibly represented that the
      defendant could not have successfully claimed that he acted in self-
      defense.
   6. There was substantial evidence that the defendant did not act in
      self-defense and was the first aggressor.
   7. The court finds that Mr. Felker discussed self-defense with the
      defendant, discussed the defendant's potential testimony with the
      defendant, and conveyed to the defendant that while he could
      assert self-defense, the State would easily disprove that assertion.
      While Mr. Felker may not have used the exact verb[i]age of a
      "shifting burden of proof," Mr. Felker did convey to the defendant
      that he would not be successful in escaping conviction by claiming
       self-defense.   The defendant has not established that this advice
      was unreasonable.

The court concluded that Felker's advice to Jackson to accept the plea offer was

"objectively reasonable," that Felker's representation was not deficient, that

Jackson    demonstrated     no   prejudice   from   Felker's   allegedly   deficient

performance, that Jackson's plea was "constitutionally valid," and that "a manifest

injustice has not been committed."

       The court imposed the agreed-upon exceptional sentence of 120 months

of confinement on the assault count and 60 months of confinement on the

harassment count, to run consecutively. The court also imposed 36 months of

community custody on the assault count.

       Jackson appeals.
No. 69802-8-1 / 6




                                      Analysis

       Jackson challenges the trial court's denial of his motion to withdraw his

guilty pleas, claiming that his pleas "were involuntary and the product of

ineffective assistance of counsel."   He alleges that his attorney had a duty to

inform him before he entered his guilty pleas that once he presented some

evidence of self-defense, the burden of proof shifted to the State to disprove this

defense beyond a reasonable doubt.

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

discretion.2 A trial court abuses its discretion when its decision is based upon

untenable grounds or reasons.3

       Due process requires that a defendant's guilty plea be knowing, voluntary,

and intelligent.4 For a plea to be valid, "the accused must be apprised of the

nature of the charge."5

       The court must allow a defendant to withdraw a guilty plea when

necessary to correct a manifest injustice.6 Denial of effective counsel constitutes



       2 State v. Pugh, 153 Wn. App. 569, 576, 222 P.3d 821 (2009) (citing State
v. Marshall. 144 Wn.2d 266, 280, 27 P.3d 192 (2001)).
       3 Pugh, 153 Wn. App. at 576 (citing State v. Brown, 132 Wn.2d 529, 572,
940 P.2d 546 (1997)).
      4 In re Pers. Restraint of Montova, 109 Wn.2d 270, 277, 744 P.2d 340
(1987) (citing In re Pers. Restraint of Hews. 108 Wn.2d 579, 590, 741 P.2d 983
(1987); Henderson v. Morgan. 426 U.S. 637, 644-45, 96 S. Ct. 2253, 49 L. Ed.
2d 108(1976)).
     5 Montova. 109 Wn.2d at 278 (citing Henderson, 426 U.S. at 645; Hews,
108 Wn.2d at 590; State v. Osborne, 102 Wn.2d 87, 92-93, 684 P.2d 683 (1984);
In re Pers. Restraint of Keene. 95 Wn.2d 203, 207, 622 P.2d 360 (1980)).
       6 CrR 4.2(f).
No. 69802-8-1 / 7




a manifest injustice.7 "In the context of plea bargains, effective assistance of

counsel means that defense counsel actually and substantially assist his client in

deciding whether to plead guilty."8

        A defendant challenging a guilty plea on the basis of ineffective

assistance of counsel must show with reasonable probability that but for

counsel's deficient performance, he would not have pleaded guilty and would

have proceeded to trial.9 Where counsel's alleged error is a failure to advise the

defendant of a potential affirmative defense to the crime charged, determining

prejudice depends largely on whether the defense likely would have succeeded

at trial.10    A prediction about a trial's possible outcome "should be made

objectively,    without regard     for the   'idiosyncrasies   of   the    particular

decisionmaker.'"11 A bare allegation that a defendant would not have pleaded

guilty but for his attorney's allegedly deficient performance does not establish

prejudice.12 A claim of ineffective assistance of counsel fails if the defendant

does not establish both deficient performance and resulting prejudice.13



       7 State v. Wakefield. 130 Wn.2d 464, 472, 925 P.2d 183 (1996) (quoting
State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)).
       8 State v. Hollev, 75 Wn. App. 191, 197, 876 P.2d 973 (1994) (citing State
v. Malik, 37 Wn. App. 414, 416, 680 P.2d 770 (1984)).
       9 State v. Garcia, 57 Wn. App. 927, 932-33, 791 P.2d 244 (1990) (citing
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
        10 Hi!!, 474 U.S. at 59.
        11 HMl, 474 U.S. at 59-60 (quoting Strickland v. Washington, 466 U.S. 668,
695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
      12 In re Pers. Restraint of Peters, 50 Wn. App. 702, 708, 750 P.2d 643
(1988).
        13 Strickland, 466 U.S. at 697.
No. 69802-8-1 / 8




       A person is entitled to act in self-defense when he reasonably believes

that he is about to be injured and uses no more force than necessary to prevent

the offense.14

       Jackson attempts to distinguish the two cases the State contends control

the outcome of this case, In re Personal Restraint of Montova15 and State v.

Havdel.16 In Montova, the defendant challenged the validity of his guilty plea on

the basis that he was not adequately apprised of the charge because he was

never informed about the burden of proof on the issue of self-defense.17 The

court explained that self-defense "becomes an issue only if the defendant raises

the defense and presents some credible evidence to support it."18 The defendant

told police that even though he "could not remember exactly what happened," "he

was defending himself."19 The court stated, "Montoya's bare assertion that he

was defending himself is unpersuasive given that he was unable to remember

exactly what happened."20        The court concluded that because no potential

evidence would support a self-defense claim, "the trial court certainly had no

obligation to inform Montoya of the burden of proof on a purely hypothetical

claim."21



       14 RCW 9A.16.020(3); State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177
(2009).
       15 109 Wn.2d 270, 744 P.2d 340 (1987).
       16 122 Wn. App. 365, 95 P.3d 760 (2004).
       17 Montova,   109 Wn.2d   at   279.
       18 Montova,   109 Wn.2d   at   279.
       19 Montova,   109 Wn.2d   at   279.
       20 Montova.   109 Wn.2d   at   280.
       21 Montova.   109 Wn.2d   at   280.


                                             -8-
No. 69802-8-1 / 9




         In Havdel, although the defendant indicated that he planned to claim self-

defense if the case proceeded to trial, the court noted, "The statement in the

omnibus order regarding the general nature of Haydel's defense is not

evidence."22 And the facts to which Haydel pleaded established no evidence of

self-defense.23     Accordingly, the court held, "Because Haydel presented no

evidence of self-defense, the State had no obligation to inform Haydel of its

burden of proof on his purely hypothetical claim at the time of the taking of the

plea."24

         Jackson contends that he presented evidence of "a plausible self defense

claim" at the time of his plea:

         Jackson asserted self defense at the time of arrest.          He told the
         officer "they got into a tussle," that "it was a fair fight," and no pipe
         was   involved.     Jackson     indicated   before   trial   in   his   trial
         memorandum he intended to testify he acted in keeping with this
         claim of self defense. Defense counsel reiterated during pretrial
         proceedings the defense was self defense.

These statements are similar to those rejected in Montova and Haydel. Despite

Jackson's argument, these bare assertions would not support a self-defense

claim.     Therefore, Jackson's attorney had no obligation to inform him of the

burden of proof for self-defense.          Because Jackson fails to establish that

counsel's performance was deficient, we do not address if he suffered prejudice

from counsel's allegedly deficient conduct.




         22 Havdel, 122 Wn. App. at 371.
         23 Havdel. 122 Wn. App. at 371.
         24 Havdel, 122 Wn. App. at 371.


                                            -9-
No. 69802-8-1/10




       Jackson also claims that the trial court imposed a sentence that exceeded

the statutory maximum for the assault count.         Although he did not raise this

challenge in the trial court, he may raise it for the first time on appeal.25

       A court has the power to impose only sentences provided by law.26

"'When a sentence has been imposed for which there is no authority in law, the

trial court has the power and duty to correct the erroneous sentence, when the

error is discovered.'"27

       RCW 9.94A.701(9) requires the trial court to reduce a term of community

custody "whenever an offender's standard range term of confinement in

combination with the term of community custody exceeds the statutory maximum

for the crime as provided in RCW 9A.20.021." In State v. Boyd,28 our Supreme

Court held that this statute prohibits a trial court from imposing a term of

community custody that when combined with the term of incarceration, results in

a sentence that exceeds the statutory maximum for the crime.

       Jackson received the maximum sentence of 120 months of confinement

for attempted assault in the first degree. The court also imposed 36 months of

community custody on this count.29 The State concedes that when combined

with the imposed term of community custody, Jackson's sentence exceeds the


       25 State v. Bahl. 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State
v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)).
       26 In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980).
       27 Carle, 93 Wn.2d at 33 (quoting McNutt v. Delmore. 47 Wn.2d 563, 565,
288 P.2d 848 (1955)).
      28 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
       29 See RCW 9.94A.701(1)(b).

                                          -10-
No. 69802-8-1 /11




statutory maximum. Because the sentencing court had no authority to impose

this sentence on the assault count, we remand to the trial court either to amend

the community custody term or to resentence Jackson on the attempted assault

conviction consistent with RCW 9.94A.701(9).

       In a statement of additional grounds, Jackson claims, "I was given an

exceptional sentence, on what grounds? I feel that the exceptional sentence was

not legally, or incorrectedly [sic] done."       Because Jackson agreed to an

exceptional sentence as part of his plea and he fails to show that this agreement

was invalid, we reject his claim.

       Jackson also alleges, "I was sentenced twice on one cause[ ] number and

given consecutive sentences."       Because Jackson provides no legal argument

supporting this claim, we decline to address it.30

       Finally, Jackson asserts, "I felt that my speedy trial rights were violated,

due to the fact that I informed the judge that I was set to go to trial and he gave

continuances without me agreeing or wa[i]ving my speedy trial rights." Although

the record indicates that the court granted a series of continuances, it provides

no evidence of the reasons that the court granted them. Because consideration

of this issue involves facts not in the record, Jackson may not raise it.31




        30 RAP 10.10(c): State v.Calvin. 176 Wn. App. 1, 26, 302 P.3d 509 (2013)
(citing State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008)), petition for
review filed, No. 89518-0 (Wash. Nov. 12, 2013).
       31 Calvin, 176 Wn. App. at 26 (citing Alvarado, 164 Wn.2d at 569).

                                         -11-
No. 69802-8-1/12




                                   Conclusion


      Because the imposed period of community custody, when combined with

Jackson's imposed term of incarceration, exceeds the statutory maximum

sentence for attempted assault in the first degree and Jackson shows no other

error, we affirm his convictions and remand to the trial court either to amend the

community custody term or to resentence Jackson on the attempted assault

conviction consistent with RCW 9.94A.701(9).




                                                    A//
WE CONCUR:




                                                      Czzt ^




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