Personal Restraint Petition Of Stephanie Marelda Salyers ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
June 26, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 49799-9-II
Personal Restraint Petition of
STEPHANIE MARELDA SALYERS,
Petitioner.
UNPUBLISHED OPINION
PENOYAR, J.* — In 2016, Stephanie Salyers entered an Alford1 plea to one count of first
degree custodial interference.2 She now argues in a personal restraint petition (PRP) that she
should be permitted to withdraw her plea because (1) it lacks a factual basis, (2) her counsel
rendered ineffective assistance when he misadvised her of a collateral consequence of the plea and
failed to adequately investigate her case, (3) she was not released from jail under CrR 3.2, and (4)
she has shown egregious governmental misconduct. Because (1) Salyers’s plea has a factual basis,
(2) she fails to show ineffective assistance of counsel, (3) she waived her CrR 3.2 argument, and
*
Judge Joel M. Penoyar is serving as a judge pro tempore of the Court of Appeals pursuant to
CAR 21(c).
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
2
RCW 9A.40.060(1)(a).
No. 49799-9-II
(4) she has not shown that the misconduct she alleges resulted in actual and substantial prejudice,
we deny Salyers’s PRP.
FACTS
I. BACKGROUND3
On February 19, at a shelter care hearing, a juvenile court placed Salyers’s three children
in state custody. Two days later, police responded to a report that Salyers had found her children
and removed them from state custody in violation of the shelter care orders. The family from
whose home Salyers had taken her children reported that she had come to their home, claimed she
was allowed to visit the children, and then, when she was unsupervised, fled with the children
through a bedroom window.
Later in the day on February 21, police located Salyers and arrested her for kidnapping. At
the time of her arrest, Salyers had left her children at a friend’s home while Salyers and her friend
gathered belongings from Salyers’s home. Police questioned Salyers’s friend, who said that
Salyers intended to leave the area with her children.
Salyers maintained her innocence, stating that she had never been given paperwork saying
that she could not have her children. Incident reports and a probable cause statement that was not
sworn to “under penalty of perjury” documented that Salyers had been present at the shelter care
hearing and also that shelter care orders had been entered.4 The shelter care orders stated that
3
The facts in sections I and II are from incident reports and a probable cause declaration that
Salyers received as discovery on March 11, the custody orders from the February 19 hearing,
Salyers’s statement on plea of guilty and associated documents, her judgment and sentence, and
the supplemental record provided by Salyers.
4
One incident report incorrectly states that a police officer, Detective Sandra Aldridge, was present
at the shelter care hearing. Subsequent reports correct this statement and say that Detective
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No. 49799-9-II
Salyers’s children were in the Department of Social and Health Services’ (DSHS’s) temporary
custody.
II. CHARGES AND PLEA
On February 24, the State charged Salyers with three counts of first degree custodial
interference, one for each child. Salyers’s attorney received as discovery from the prosecutor the
information, incident reports, and probable cause statement associated with her February 21 arrest,
setting forth the background facts above.
On March 18, Salyers entered an Alford plea to one count of first degree custodial
interference. In her signed statement on plea of guilty, she agreed that the superior court could
review associated police reports and the probable cause statement for her kidnapping charges to
establish a factual basis for her plea. Her statement on plea of guilty also expressly incorporated
the prosecutor’s plea offer.
The plea offer included provisions that the prosecutor would recommend 30 days of
confinement and the entry of no-contact orders prohibiting Salyers from contacting her children
for five years. The plea offer also allowed the no-contact order provision to “be addressed post-
conviction in conjunction with family court/dependency proceedings.” Resp. to PRP, App. D at
14 (underlining omitted). Salyers signed the plea offer’s last page, following the provisions
discussing the no-contact order recommendation. Her signature was directly below the statement
that she had reviewed the offer’s terms with her attorney and understood them.
Aldridge was not present at the shelter care hearing but was “in direct communication with” the
DSHS worker who was present at the hearing. PRP, App. B at 9. The DSHS worker claimed that
Salyers was present at the hearing when her children were placed in state custody and was given
paperwork stating as much.
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No. 49799-9-II
The superior court sentenced Salyers to 30 days of confinement and entered no-contact
orders preventing her from seeing her children until March 2021.
III. PRP AND APPENDICES
In December, Salyers filed a CrR 7.8 motion, which the superior court transferred to this
court as a PRP. She relies on various video recordings and documents as supporting evidence, the
relevant portions of which are summarized below.
A. SHELTER CARE HEARING VIDEO AND ORDER
Salyers relies upon a video recording of the juvenile court’s oral ruling at the February 19
shelter care hearing. With Salyers present, the juvenile court found that “your children would be
in serious danger right now if I placed them back with you” and twice stated its ruling “that there
is shelter care [sic].” Ex. 3 at 19 sec. to through 33 sec., 2 min. 12 sec.
The juvenile court directed the prosecutor to prepare a written order for presentation the
following week. The prosecutor informed Salyers that the social worker assigned to her case
would be changing, that she could contact the social worker to set up ongoing visitation, and that
a visit would be set up for the following Monday at DSHS.
After court was adjourned, Salyers left the courtroom, and the juvenile court inquired
whether the prosecutor had “anything . . . to keep the kids in shelter care over the weekend.” Ex.
3 at 4 min. 54 sec. through 4 min. 57 sec. The prosecutor answered affirmatively.
In addition to the shelter care hearing video, Salyers relies upon the shelter care orders from
the February 19 hearing. The orders are unsigned by Salyers.
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No. 49799-9-II
B. SALYERS’S DECLARATION
Salyers also relies upon her declaration, signed under penalty of perjury, describing her
interactions with her defense attorney and her understanding of her guilty plea’s effect. In her
declaration, Salyers claims that her defense counsel visited her only once in jail and discussed her
case with her for only a few minutes. Salyers provides a jail record of her attorney’s only visit on
March 15, confirming that he stayed for merely six minutes. She claims her counsel did not review
any discovery, mention any efforts to investigate her case, or do more than advise her to accept
the State’s plea offer.
Salyers states that her attorney affirmatively “advised me to accept the State’s plea offer
so I could get out of jail and see my children.” PRP, App. DD at 2. He summarized the plea offer
without including notice that she “would lose” her children and told her “flat out that signing the
plea agreement was the ‘quickest way to get reunited with [my] children’” and that “pleading
would get me back with them.” PRP, App. DD at 2-3 (alteration in original). According to Salyers,
“I would not have ever entered the ‘Alford’ plea if I knew . . . that there was any possibility of a
no contact order being entered that barred me from being with my children for another day, let
alone five years.” PRP, App. DD at 3.
Salyers acknowledges her signature on the plea offer but claims that she signed the offer
based entirely on her attorney’s summary, which did not include any possibility that she might
lose her children. She claims that she was not given a copy of the plea offer and her attorney did
not read it to her before she signed it.
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No. 49799-9-II
C. PLEA HEARING TRANSCRIPT
Salyers also relies upon an unofficial transcript of the plea hearing, which was not prepared
by a court transcriptionist. According to the transcript, Salyers answered affirmatively when the
superior court questioned whether she had reviewed her statement on plea of guilty, discussed it
with her attorney, and understood what was in the statement. The superior court did not ask Salyers
whether she had read the plea offer or refer to the no-contact order provision until after Salyers
had entered her plea.
When the parties discussed Salyers’s sentence, the prosecutor referred to the no-contact
order provision and requested “standard conditions including formal no-contact orders with the
children.” PRP, App. EE at 6. The superior court ruled that Salyers’s sentence would “include
the no-contact order,” and Salyers acknowledged that she understood that violating the no-contact
order would worsen her situation. PRP, App. EE at 9.
D. “RETALIATION” APPENDICES
Salyers also relies on various materials to support her claims of police misconduct and
retaliation, summarized below. Some of her materials relate to an incident at her home on February
16, when police arrested Salyers and her husband.
1. 2014 E-MAILS
First, Salyers relies upon e-mails from 2014. A single e-mail, sent to the entire Vancouver
Police Department, criticizes “a couple [Child Protective Services] social workers shopping for
officers/deputies in the field and requesting they sign children into protective custody, after
[Children’s Justice Center] has told them we do not have [probable cause],” a practice known as
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No. 49799-9-II
“pink-sheet shop[ping].” PRP, App. V. The e-mail warns officers to ensure they do not “sign the
pink sheets” without probable cause. PRP, App. V.
Salyers also relies upon a string of e-mails between Detective Aldridge5 and another person
in 2014. The other person complains about “dumb lazy officers who either don’t know how to or
won’t do the child protective custody thing when they should.” PRP, App. W at 1. Detective
Aldridge responds that officers should “turn off MDC” (recording device), “get kid,” and “‘get’
the other people who made this mess.” PRP, App. W at 1. The other person responds, “Time to
buy another shovel,” to which Detective Aldridge says she will “help dig.” PRP, App. W at 1.
2. FEBRUARY 16, 2016 PROBABLE CAUSE STATEMENT
Salyers relies upon Detective Aldridge’s probable cause statement for Salyers’s husband’s
February 16, 2016 arrest for assaulting Salyers. As set forth in this probable cause statement, on
February 16, Salyers’s family reported to 911 that Salyers had called her mother while Salyers’s
husband was assaulting her. Salyers told her family that her husband had kneed her and broken
her finger, and Salyers’s family believed they heard a physical struggle and choking.
Police reported to Salyers’s home, where neither Salyers nor her husband would exit their
home or allow officers inside, stating that the police officers were “foreign agents.” PRP, App. O.
Officers entered the home and arrested Salyers’s husband for assault 6 and Salyers under an
outstanding misdemeanor warrant for driving with a suspended license. In the probable cause
5
Detective Aldridge is one of the officers who reported to Salyers’s home on February 16, after
Salyers’s family reported that Salyers’s husband was assaulting her.
6
The charges against Salyers’s husband were dismissed on March 7 because the prosecution could
not secure witnesses. Salyers was released from custody on February 17.
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No. 49799-9-II
statement, Detective Aldridge wrote that she observed an injury to Salyers’s hand, between her
fingers, and that officers noticed red marks consistent with strangulation on Salyers’s neck.
3. FEBRUARY 16 INCIDENT REPORTS
Salyers also submits incident reports from Detective Aldridge and other officers who
reported after Salyers’s family’s 911 call on February 16. The incident reports document that
officers did not observe injuries consistent with Salyers’s claim that her husband had hurt her back
and broken her fingers, including any “obvious” injuries to Salyers’s hands. PRP, App. Q at 21.
However, other officers, including Detective Aldridge, did observe that Salyers had a recent
abrasion on her hand. According to Detective Aldridge’s report, Salyers claimed the injury, which
was between her fingers, was from washing dishes.
One officer documented that she had placed Salyers in a neck restraint when Salyers
resisted arrest to prevent injury to others. The officer and Detective Aldridge observed red
markings on Salyers’s neck that were not caused by the neck restraint.
4. KIDNAPPING DISPATCH CALL TRANSCRIPT
Salyers relies upon a transcript that she alleges is a dispatch recording from Detective
Aldridge’s 911 call on the day that Salyers was arrested for custodial interference. Detective
Aldridge explains that there had been a shelter care hearing the week before and says, “They
[Salyers and her husband] were extremely unhappy about that. They’re like Constitutionalists,
don’t trust the government, blah, blah, blah.” PRP, App. CC at 3.
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No. 49799-9-II
ANALYSIS
I. PRP LEGAL PRINCIPLES
Where a PRP petitioner had a prior opportunity or avenue for judicial review, the petitioner
must meet a high standard to obtain relief. In re Pers. Restraint of Coats, 173 Wash. 2d 123, 132,
267 P.3d 324 (2011). For claimed constitutional error in a PRP, the petitioner must show actual
and substantial prejudice. In re Pers. Restraint of Finstad, 177 Wash. 2d 501, 506, 301 P.3d 450
(2013).
We may grant, deny, or transfer a PRP to the superior court for a full determination on the
merits. In re Pers. Restraint of Yates, 177 Wash. 2d 1, 17, 296 P.3d 872 (2013). We grant the PRP
if the petitioner shows actual and substantial prejudice. In re Pers. Restraint of Rice, 118 Wash. 2d
876, 885, 828 P.2d 1086 (1992). We deny the petition if the petitioner fails to show actual and
substantial prejudice. Rice, 118 Wash. 2d at 885. And we transfer to a superior court for a reference
hearing if the petitioner makes a prima facie showing of error, but we cannot determine the merits
of her contentions solely on the record. Yates, 177 Wash. 2d at 18.
In addition to actual and substantial prejudice, the petitioner must establish that she is under
a “restraint” that is “unlawful” for one of the reasons set forth in RAP 16.4(c). As relevant to
Salyers’s PRP, restraint is unlawful if a conviction was obtained in violation of the state or federal
constitution or state law. RAP 16.4(c)(2).
The petitioner must state with particularity the facts underlying the claim of unlawful
restraint and the available evidence to support those factual allegations. Rice, 118 Wash. 2d at 885-
86. “Bald assertions and conclusory allegations” are insufficient. Rice, 118 Wash. 2d at 886. “If the
petitioner’s allegations are based on matters outside the existing record, the petitioner must
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No. 49799-9-II
demonstrate that [she] has competent, admissible evidence to establish the facts that entitle [her]
to relief.” Rice, 118 Wash. 2d at 886.
“Generally, if a petitioner enters a guilty plea, the petitioner must show that a new trial is
necessary ‘to correct a manifest injustice,’ but ‘a guilty plea . . . generally bars a later collateral
attack based on newly discovered evidence.’” In re Pers. Restraint of Spencer, 152 Wash. App. 698,
708, 218 P.3d 924 (2009) (internal quotation marks omitted; alteration in original) (quoting State
v. Mendoza, 157 Wash. 2d 582, 587; In re Pers. Restraint of Reise, 146 Wash. App. 772, 783-84, 192
P.3d 949 (2008)). Where the petitioner entered an Alford plea, we grant relief if the petitioner
shows that the evidence, viewed in balance with the record, changes the factual basis for her plea.
Spencer, 152 Wash. App. at 708.
II. THRESHOLD ISSUE: “NEWLY DISCOVERED EVIDENCE”
Because Salyers brought this claim within one year of the judgment she attacks, we need
not address whether she has produced “[n]ewly discovered evidence” that would allow her to avoid
RCW 10.73.090(1)’s one-year time-bar. RCW 10.73.100(1). We proceed directly to whether
Salyers’s various arguments show actual and substantial prejudice. See In re Pers. Restraint of
Faircloth, 177 Wash. App. 161, 165 n.4, 311 P.3d 47 (2013).
III. FACTUAL BASIS ARGUMENTS
Salyers argues that we should allow her to withdraw her Alford plea because she has
provided evidence undermining the factual basis for the intent element of custodial interference.
We disagree.
We grant relief if a petitioner shows a manifest injustice by providing evidence that viewed
in balance with the record, changes the factual basis for her plea. Spencer, 152 Wash. App. at 708.
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No. 49799-9-II
A factual basis exists where there is sufficient evidence for a jury to conclude that the defendant
is guilty.7 State v. Newton, 87 Wash. 2d 363, 370, 552 P.2d 682 (1976). Thus, a petitioner prevails
if she makes a showing that a manifest injustice exists because there is no longer sufficient
evidence in the record that could support a jury finding of guilt.
Here, the issue raised is intent. Under RCW 9A.40.060(1)(a), first degree custodial
interference occurs when,
[a] relative of a child under the age of eighteen . . . with the intent to deny access to
the child . . . by a parent, guardian, institution, agency, or other person having a
lawful right to physical custody . . . takes, entices, retains, detains, or conceals the
child . . . from a parent, guardian, institution, agency, or other person having a
lawful right to physical custody . . . and
. . . . Intends to hold the child . . . permanently or for a protracted period.
(Emphasis added.) “The State must establish a defendant is aware of the existence of the order to
prove the defendant intentionally violated it.” State v. Boss, 167 Wash. 2d 710, 720, 223 P.3d 506
(2009).
In this case, the probable cause statement and incident reports state that at the shelter care
hearing, Salyers was presented with an order stating that her children were in state custody. 8 In
support of her PRP, Salyers provides materials contradicting that she was presented with shelter
7
Thus, a factual basis requires less than that the trial court was convinced of the defendant’s guilt
beyond a reasonable doubt. State v. Newton, 87 Wash. 2d 363, 370, 552 P.2d 682 (1976).
8
In her PRP, Salyers briefly argues that there was no factual basis because neither the probable
cause statement nor the incident reports were sworn to under penalty of perjury. But in her
statement on her guilty plea, she agreed that the probable cause statement and incident reports
could be considered to determine whether there was a factual basis for her plea. Further, there is
no requirement that a probable cause statement or incident reports contain a perjury statement in
order to be relied upon by the trial court. Rather, “the factual basis for the plea may come from
any source the trial court finds reliable” so long as the material relied upon is part of the record.
Newton, 87 Wash. 2d at 370 (emphasis added).
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No. 49799-9-II
care orders at the hearing, including a transcript of the shelter care hearing and a video recording
of the proceedings.9 From the transcript and video, it appears that Salyers left the courtroom after
the juvenile court orally ruled her children would remain in state custody, directed the prosecutor
to prepare a written order for presentation the next week, and adjourned the hearing. It was only
after Salyers left the courtroom that the juvenile court noted that it needed a written order to keep
Salyers’s children in custody over the weekend. In addition, the custody orders are unsigned by
Salyers.
Certainly, the shelter care order should have been signed in Salyers’s presence. But having
made the mistake of excusing Salyers before the order was signed, the trial court correctly realized
that an order needed to be signed ex parte so that the State had continued lawful custody of the
children over the weekend. See RCW 13.34.060(1). And because the order was signed ex parte,
a reasonable effort should have been made to serve the order on Salyers as soon as was practicable.
However, none of this vitiates the factual basis for her plea.
It is clear from the record that even if Salyers believed the State did not have valid authority
to keep her children in custody until written orders were entered, she had no intention of returning
her children to state custody the next week, when she was told the written orders would be entered.
Salyers went to the house where she knew her children were staying, lied about her purpose, and
then absconded with her children through a bedroom window. She later left her children at another
9
We note that the State objects to our reliance on Salyers’s unofficial transcripts of proceedings
including the shelter care hearing insofar as the transcripts support Salyers’s arguments. But in
our view, Salyers’s materials undermine, rather than support, her arguments, so that we do not
decide whether any of Salyers’s materials should be excluded.
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No. 49799-9-II
location while she and a friend gathered belongings from Salyers’s home. And when questioned
by police, Salyers’s friend told police that Salyers intended to leave the area with her children.
We hold that there is sufficient evidence to show that even if Salyers believed the State did
not have lawful authority over her children until written orders were entered, she nevertheless had
the intent to keep her children after the orders were signed, once again giving the State legal
custody. Thus, there is a factual basis to find that when she took the children, she acted with the
“intent to deny access to the child . . . by a . . . person having a lawful right to physical custody.”
RCW 9A.40.060(1)(a). In sum, Salyers fails to show that there is no longer sufficient evidence in
the record to support a jury finding of guilt on the intent element of custodial interference.10
Accordingly, we hold that she has not established a manifest injustice and is not entitled to
withdraw her plea.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS
Salyers argues that she received ineffective assistance of counsel, such that she should be
allowed to withdraw her guilty plea. She bases her claim on two alleged failures: failure to advise
her that the plea included a no-contact order preventing her from seeing her children and failure to
adequately investigate her case. We disagree that Salyers has shown ineffective assistance of
counsel in either respect, as set forth below.
10
We do not need to reach Salyers’s arguments that under Boss and State v. Kirwin, 166 Wash. App.
659, 271 P.3d 310 (2012), mere presence during the juvenile court’s oral ruling that the children
would be in state custody over the weekend was insufficient. Neither do we reach Salyers’s
arguments, first raised in her reply, that she was a “parent,” not a “relative,” of her children and
that DSHS, not the family from whom Salyers took her children, had the lawful right to custody
of her children. “An issue raised and argued for the first time in a reply brief is too late to warrant
consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549
(1992); RAP 10.3(a)(6).
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No. 49799-9-II
A. LEGAL STANDARDS
We review de novo ineffective assistance of counsel claims. In re Pers. Restraint of Lui,
188 Wash. 2d 525, 538, 397 P.3d 90 (2017). If a petitioner successfully shows ineffective assistance
of counsel, she necessarily meets her burden to show actual and substantial prejudice. In re Pers.
Restraint of Crace, 174 Wash. 2d 835, 846-47, 280 P.3d 1102 (2012).
A petitioner must establish both deficient performance and resulting prejudice to prevail
on a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient performance, the petitioner “must show
that counsel’s representation fell below an objective standard of reasonableness,” based on
“prevailing professional norms.” Strickland, 466 U.S. at 688. A reviewing “court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
To show prejudice, the petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In the plea bargaining context, the
prejudice test is whether but for counsel’s errors, the petitioner “‘would not have pleaded guilty
and would have insisted on going to trial.’” Reise, 146 Wash. App. at 788 (quoting Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)). “Inaccurate advice about a collateral
consequence may be prejudicial when it causes a defendant to plead guilty.” Reise, 146 Wash. App.
at 788.
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No. 49799-9-II
B. FAILURE TO INFORM OF COLLATERAL CONSEQUENCE
1. NOT DEFICIENT PERFORMANCE
Salyers argues that her counsel’s performance during plea bargaining was deficient because
her counsel affirmatively misadvised her of the collateral consequence11 that the prosecutor would
recommend that a no-contact order be entered against her and that pleading guilty was the quickest
way to be reunited with her children. We disagree.
Our Supreme Court has distinguished between “direct” and “collateral” consequences of a
plea bargain. State v. A.N.J., 168 Wash. 2d 91, 113-14, 225 P.3d 956 (2010). For direct
consequences—those representing a definite, immediate, and largely automatic effect on the range
of punishment—the defendant must be informed of the consequences. A.N.J., 168 Wash. 2d at 113-
14. Although a defendant need not be informed of all collateral consequences, affirmative
misinformation about a collateral consequence permits withdrawal of a plea if the defendant relies
on that misinformation when deciding to plead guilty. A.N.J., 168 Wash. 2d at 114; Reise, 146 Wn.
App. at 787. “Misinformation with respect to the outcome of an Alford plea is especially
problematic” because a defendant unwilling to admit culpability will “rapidly change[] [her]
calculations about the costs and benefits of standing trial.” State v. Stowe, 71 Wash. App. 182, 187-
88, 858 P.2d 267 (1993).
11
Both Salyers and the State agree that the entry of a no-contact order was a collateral
consequence. They correctly discern that a no-contact order is not a “definite” and “automatic”
result of a first degree custodial interference conviction. State v. A.N.J., 168 Wash. 2d 91, 114, 225
P.3d 956 (2010). Rather, “[a]s part of any term of community custody, the [sentencing] court may
order an offender to” “[r]efrain from direct or indirect contact with the victim of the crime.” RCW
9.94A.703(3)(b) (emphasis added).
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No. 49799-9-II
In support of her PRP, Salyers provides her own declaration, signed under penalty of
perjury, that her attorney affirmatively advised her that pleading guilty was the quickest way for
her to be reunited with her children. She further claims that she would not have entered the plea
had she known “that there was any possibility of a no contact order being entered.” PRP, App.
DD at 3. Salyers’s claims strain credulity: it is unlikely under the circumstances that Salyers
believed pleading guilty would immediately reunite her with her children because Salyers knew
that her children were in state custody and that there was a pending dependency case.
However, even if we accept as true Salyers’s claim that she believed her attorney when he
told her that pleading guilty was the quickest way for her to be reunited with her children, Salyers
fails to show that this advice was incorrect. Salyers faced the possibility of conviction of three
counts of custodial interference and a one-year sentence. RCW 9.94A.505(2)(b) (unranked
felonies bear 0- to 12-month sentences); former RCW 9.94A.515 (2015) (custodial interference
not ranked). And if she were convicted at trial, the prosecutor could still recommend the
imposition of no-contact orders at sentencing.
But if Salyers accepted the plea offer, she faced only a 30-day sentence with the no-contact
orders that in all likelihood would also have been entered had she gone to trial and lost. Further,
her attorney could reasonably have factored into his advice that Salyers could move to vacate the
no-contact orders because the plea offer included that the no-contact orders could “be addressed
post-conviction in conjunction with family court/dependency proceedings.”12 Resp. to PRP, App.
12
We note that since Salyers entered her plea, the Supreme Court has indicated that the duration
of a no-contact order entered under RCW 10.99.050 cannot exceed the length of the sentence
actually imposed. See State v. Granath, __ Wn.2d __, 415 P.3d 1179, 1183 (2018).
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No. 49799-9-II
D at 14 (underlining omitted). Indeed, this appears to be what the parties anticipated: at the plea
hearing, the prosecutor noted that he had informed Salyers’s defense counsel that the no-contact
orders would “likely be . . . addressed at a later date in conjunction with how things proceed in
those dependency . . . matters.” PRP, App. EE at 7. Based on these facts, it was reasonable for
Salyers’s attorney to advise that the quickest way for her to be reunited with her children would
be to accept the plea offer. Salyers fails to show that her attorney misadvised her.
Salyers relies on State v. Sandoval, in which an attorney’s advice about the immigration
consequences of pleading guilty—advice that left the impression that deportation was a remote
possibility—constituted deficient performance. 171 Wash. 2d 163, 173-74, 249 P.3d 1015 (2011).
However, the attorney’s performance in Sandoval was deficient because the attorney essentially
gave wrong advice that his client would not be deported when, in fact, his client was deportable.
171 Wash. 2d at 174. Here, as set forth above, Salyers’s attorney did not misadvise her, and thus we
decline to hold that Salyers’s attorney rendered deficient performance.
Salyers fails to overcome the strong presumption that her counsel’s performance was
“within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Although we find no deficient performance, we also address her prejudice argument.
2. PREJUDICE
Salyers argues that but for her counsel’s deficient performance, she would have insisted
upon going to trial, so that she has shown prejudice and should be allowed to withdraw her plea.
In addition to failing to show deficient performance, Salyers fails to show prejudice.
Salyers maintains that she would not have accepted the plea bargain if she had known the
prosecutor would recommend a five-year no-contact order barring her from seeing her children.
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No. 49799-9-II
She contends that she did not read the plea offer for herself and relied upon her attorney’s verbal
summary, which did not include that the prosecutor would recommend a no-contact order. But
Salyers signed the plea offer directly below the provision about the no-contact order
recommendation. Her signature acknowledges that she had reviewed and understood the terms of
the offer. Thus, Salyers’s claim that she did not read the offer and knew no more about it than her
attorney’s summary is contradicted by her signature on the plea offer.13
And even if it were unclear from the plea offer that Salyers understood that it included the
no-contact order recommendation, the no-contact provision was discussed elsewhere in the record.
For instance, Salyers provides a transcript of her plea hearing that shows she was aware that a no-
contact order would be entered against her. And at the hearing on Salyers’s guilty plea, after the
superior court accepted her plea, the prosecutor briefly discussed the no-contact order. Then, the
superior court ruled that it would incorporate a no-contact order into the judgment and sentence,
pursuant to the prosecutor’s recommendation:
Judge: All right, we’ll go ahead and, uh, put that in place with a judgment
[and] sentence. It is going to include the no-contact order with the
children at this time, and it’s imperative that you follow that no-
contact order, because if you were, for even what you believe are
good intentions, to violate that, it’s only going to make the, uh,
situation for you substantially worse. Do you understand that?
[Salyers]: Yes, Your Honor.
13
In our view, it would have been preferable for the plea offer to include more specific language,
such as the language in the statement on plea of guilty that Salyers had “fully discussed” with her
attorney and understood “all of the above paragraphs.” PRP, App. D at 10. Nevertheless, Salyers’s
acknowledgment that she had reviewed and understood the offer’s terms contradicts her claim that
she did not read the offer.
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PRP, App. EE at 9. Salyers did not object or do anything other than agree when the superior court
asked if she understood that a no-contact order would be entered against her.
Salyers provides her own affidavit that her attorney affirmatively misinformed her of the
no-contact order recommendation and that she relied on her attorney’s misstatement rather than
reading the plea offer. However, Salyers acknowledged when she signed the plea offer that she
had read it, and the transcript she provides shows that Salyers was informed of the no-contact order
provision and stated that she understood she would not be allowed to see her children after her
release. In sum, Salyers’s evidence in support of her PRP fails to establish that but for her
attorney’s misinformation, she would not have pleaded guilty.14
Salyers has shown neither deficient performance nor prejudice. We reject her ineffective
assistance of counsel argument related to failure to advise her of a collateral consequence of her
plea.
C. FAILURE TO INVESTIGATE
Salyers argues that her attorney was ineffective because he failed to obtain the shelter care
orders or obtain evidence about Detective Aldridge’s “improper motive.”15 PRP at 24. We reject
Salyers’s argument because she fails to show that her counsel’s performance was deficient in either
regard.
14
In her reply brief, for the first time, Salyers appears to raise a claim that her Alford plea was not
voluntary because she was unaware of the no-contact order recommendation. We do not reach
this argument. See Cowiche Canyon Conservancy, 118 Wash. 2d at 809; RAP 10.3(a)(6).
15
To the extent that Salyers argues that her counsel’s assistance was necessarily ineffective
because they met for only six minutes, standing alone, “[t]he alleged infrequency or brevity of
counsel’s meetings with defendant is not enough to demonstrate ineffective assistance of counsel.”
State v. Cameron, 30 Wash. App. 229, 232, 633 P.2d 901 (1981).
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No. 49799-9-II
Effective assistance of counsel in the plea bargaining context includes sufficient
investigation to evaluate the likelihood of a conviction so that the defendant can make a meaningful
decision on whether to plead guilty. A.N.J., 168 Wash. 2d at 111-12.
Before pleading guilty, Salyers received as discovery incident reports and a probable cause
statement summarizing that a DSHS worker was at the shelter care hearing and observed Salyers
being informed that her children were in state custody. Further, the family from whose home
Salyers took the children reported that she waited until the family left her unsupervised, then fled
out a window with the children, which is circumstantial evidence of her intent. And the incident
reports document Salyers’s contention that she had not received any paperwork at the shelter care
hearing.
In light of the facts set forth in the incident report and probable cause statement, counsel
had sufficient information to properly assess the likelihood of conviction. Counsel’s decision not
to investigate whether Salyers signed the shelter care orders was not deficient. It was reasonable
for counsel to determine that Salyers faced a high likelihood of conviction because regardless of
whether she signed the shelter care orders, there was ample evidence to support that she was aware
that by secreting the children she would be depriving the State of custody. Salyers cannot show
deficient performance.
Salyers also argues that her counsel should have obtained “undisclosed discovery in the
possession of law enforcement” showing Detective Aldridge’s allegedly improper, retaliatory
motives. PRP at 24. Salyers does not claim that she communicated any concerns about retaliatory
police action to her attorney, nor does the discovery her counsel obtained include any suggestion
of police misconduct. The duty to investigate in the plea bargaining context is only the duty to
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No. 49799-9-II
investigate sufficiently to evaluate the likelihood of conviction. See A.N.J., 168 Wash. 2d at 111-12.
Without showing that her attorney had any indication that Salyers believed she was the victim of
retaliatory police action, Salyers cannot overcome the strong presumption that her counsel’s
performance was adequate.
We reject Salyers’s claims of ineffective assistance of counsel for failure to investigate.
V. LACK OF PROBABLE CAUSE ARGUMENTS
CrR 3.2 relates to the conditions of release: “[i]f the court does not find, or a court has not
previously found, probable cause, the accused shall be released without conditions.” Relying on
this rule, Salyers argues that she should have been released from custody because there was a lack
of probable cause supporting her February 21 kidnapping arrest. We hold that Salyers waived her
argument.
In general, we do not review arguments first raised in this court, although we do review
alleged constitutional error that is manifest error affecting a constitutional right. RAP 2.5(a)(3).
To fall within RAP 2.5(a)(3), Salyers must show both that the alleged error affects a constitutional
right and is “manifest”—that it resulted in actual prejudice, a plausible showing that the asserted
error had practical and identifiable consequences on the case. State v. O’Hara, 167 Wash. 2d 91, 99,
217 P.3d 756 (2009).
Here, Salyers was arrested for kidnapping and booked into jail on February 21. The
probable cause statement for her arrest is signed but not under penalty of perjury. According to
Salyers, lack of a perjury provision invalidates the probable cause statement.
However, Salyers provides no argument or factual support that shows she argued before
the superior court that she should be released because the probable cause statement did not include
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No. 49799-9-II
a perjury provision. She does not cite to RAP 2.5(a)(3) or discuss the federal Fourth Amendment.
Her claim is purely based on CrR 3.2’s provision for pretrial release.
Further, Salyers’s sole contention that she was actually prejudiced by the allegedly
unlawful arrest is her claim that because she was in jail, she could not investigate her case to timely
obtain “exculpatory evidence.” PRP at 30. But Salyers had an appointed attorney, and she
provides no explanation of why her attorney could not have as effectively investigated and
obtained evidence as Salyers could have, had she apprised her attorney of her alleged exculpatory
evidence.
Not only does Salyers fail to satisfy RAP 2.5(a)(3), but by entering an Alford plea, Salyers
waived the right to an appeal, including the right to appeal the denial of any pretrial motions. See
State v. De Rosia, 124 Wash. App. 138, 143, 100 P.3d 331 (2004); State v. Olson, 73 Wash. App. 348,
353, 869 P.2d 110 (1994). For these reasons, we hold that Salyers waived her argument.
VI. GOVERNMENTAL MISCONDUCT ARGUMENTS
Salyers requests that this court dismiss her plea under CrR 8.3(b). She claims that police
action amounted to egregious governmental misconduct. We hold that Salyers fails to show actual
and substantial prejudice.
A. PROPRIETY OF CRR 8.3(b)
CrR 8.3(b) authorizes a court to dismiss “any criminal prosecution” for governmental
misconduct if the accused’s rights have been prejudiced and that prejudice materially affects the
accused’s right to a fair trial. CrR 8.3(a) discusses the dismissal of an “indictment, information or
complaint”; CrR 8.3(b) refers to dismissal of a “prosecution”; and CrR 8.3(c) authorizes a pretrial
22
No. 49799-9-II
motion to dismiss a “charge.” But no portion of CrR 8.3 refers to dismissal of a “conviction” or
“judgment.”
Rather, relief from a “final judgment” or “order” is available under CrR 7.8. And a CrR
7.8 motion may be transferred to this court for consideration as a PRP when the defendant has not
made a substantial showing that she is entitled to relief or when resolution of the motion will not
require a factual hearing. CrR 7.8(c).
Thus, CrR 7.8, not CrR 8.3, is the mechanism for collateral attacks on a criminal judgment.
Insofar as Salyers’s motion transferred to this court as a PRP relies on CrR 8.3(b) for
postconviction relief, her motion is procedurally improper. However, to facilitate review of
Salyers’s governmental misconduct arguments on the merits, we treat Salyers’s contentions as
arguments that her constitutional right to a fair trial was infringed upon. Accordingly, we look to
whether Salyers has shown actual and substantial prejudice.
B. NO ACTUAL AND SUBSTANTIAL PREJUDICE
Salyers must show governmental misconduct that actually and substantially prejudiced her
right to a fair trial. To do so, Salyers relies upon evidence that she claims shows that the initial
entry into Salyers’s home was unlawful and that Detective Aldridge lied about observing Salyers’s
injuries, called in improper “‘favors’” to have Salyers booked into jail, and lied about being present
at the shelter care hearing. PRP at 33. To substantiate these claims, Salyers relies on a 2014 e-
mail exchange between Salyers and another person, another 2014 e-mail about “pink-sheet
shop[ping],” the probable cause statement and incident reports in support of Salyers’s initial arrest,
23
No. 49799-9-II
Clark County booking procedures, and dispatch transcripts from Salyers’s initial arrest and
kidnapping arrest. PRP, App. V.
Of all these materials, the only evidence implicating Detective Aldridge’s involvement
related to the custodial interference charge is that Aldridge called dispatch to confirm the report
that Salyers had kidnapped her children. Detective Aldridge apparently called 911 to confirm the
address from which Salyers took the children. In the course of the conversation, Detective
Aldridge described Salyers and her husband as “Constitutionalists” who “don’t trust the
government” and were “extremely unhappy” that their children were kept in state custody. PRP,
App. CC at 3.
Salyers fails to show actual and substantial prejudice to her right to a fair trial because
Detective Aldridge’s involvement was unrelated to evidence that Salyers committed custodial
interference. Detective Aldridge was not present at the shelter care hearing, did not provide the
probable cause statement related to the custodial interference charge, and did not write the related
incident reports. Indeed, Detective Aldridge’s involvement was largely confined to Salyers’s
initial arrest under her misdemeanor warrant, and Salyers was released from jail related to that
arrest before the shelter care hearing. We hold that the alleged governmental misconduct did not
actually and substantially affect Salyers’s right to a fair trial and reject her argument.
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No. 49799-9-II
We deny Salyers’s PRP.
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.
PENOYAR, J.
We concur:
BJORGEN, P.J.
SUTTON, J.
25