State of Washington v. Jessica L. Vazquez ( 2020 )


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  •                                                                          FILED
    JUNE 11, 2020
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                        )
    )         No. 36365-1-III
    Respondent,             )
    )
    v.                                    )
    )
    JESSICA L. VAZQUEZ,                         )         UNPUBLISHED OPINION
    )
    Appellant.              )
    KORSMO, J. — Jessica Vazquez appeals from three drug-related convictions
    claiming ineffective assistance of counsel and errors in the judgment and sentence. We
    affirm the convictions and reverse some of the challenged sentence conditions.
    FACTS
    Pursuant to a search warrant based on an informant’s tip, Asotin County deputy
    sheriffs searched a “drug house” occupied by several people. The deputies discovered
    methamphetamine in Ms. Vazquez’s bedroom. Charges of maintaining a drug dwelling,
    possession of methamphetamine with intent to deliver, and possession of drug
    paraphernalia were filed.
    No. 36365-1-III
    State v. Vazquez
    The prosecutor offered a plea agreement calling for a 24 month sentence. Ms.
    Vazquez indicated that she would accept the offer if the sentencing could be delayed two
    weeks to allow her to visit with her family. Having made the offer in order to free jail
    space, the prosecutor objected to a continuance; the trial judge declined to continue
    sentencing. Ms. Vazquez rejected the agreement and proceeded to jury trial.
    Ms. Vazquez testified in her own behalf that she lived in the house and helped the
    home owner control matters. While Ms. Vazquez admitted to extensive history of drug
    use, she denied that the methamphetamine belonged to her. She claimed that a binder
    indicating drug sales actually tracked money people pledged to help her return to Idaho
    because “I don’t sell enough drugs for people to owe me money.” During cross-
    examination, the State elicited Ms. Vazquez’s complete criminal history, including prior
    controlled substance convictions.
    Defense counsel’s theme throughout trial was that Ms. Vazquez was the wrong
    target of the law enforcement investigation. The jury convicted Ms. Vazquez on all
    charges. The court imposed a standard range sentence and imposed financial obligations
    that included a $200 criminal filing fee, a drug fine, methamphetamine cleanup fee, lab
    fee, and DNA testing fee. The court also required HIV testing.
    Ms. Vazquez timely appealed to this court. A panel considered her case without
    hearing argument.
    2
    No. 36365-1-III
    State v. Vazquez
    ANALYSIS
    We first consider Ms. Vazquez’s argument that her trial attorney provided
    ineffective assistance. We then consider her sentence-related arguments.
    Ineffective Assistance Argument
    Ms. Vazquez challenges her defense attorney’s conduct before, during, and after
    trial. She claims that counsel erred by failing to negotiate a favorable plea bargain, that
    counsel had personal issues, counsel should have objected to evidence during trial, and
    should have challenged the legal financial obligations (LFOs).1 With the exception of the
    LFO challenges that are considered independently, we address each issue in turn.
    This issue is reviewed in accordance with well settled law. Counsel's failure to
    live up to the standards of the profession will require a new trial when the client has been
    prejudiced by counsel's failure. State v. McFarland, 
    127 Wash. 2d 322
    , 334-335, 
    899 P.2d 1251
    (1995). Courts apply a two-pronged test: whether or not (1) counsel’s performance
    failed to meet a standard of reasonableness and (2) actual prejudice resulted from
    counsel’s failures. Strickland v. Washington, 
    466 U.S. 668
    , 690-692, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). When a claim can be resolved on one ground, a reviewing court
    need not consider both prongs.
    Id. at 697;
    State v. Foster, 
    140 Wash. App. 266
    , 273, 166
    1
    We do not separately address Ms. Vazquez’s cumulative error claim because we
    necessarily review the entirety of counsel’s performance when evaluating ineffective
    assistance claims.
    3
    No. 36365-1-III
    State v. Vazquez
    P.3d 726 (2007). This claim requires we review counsel’s performance as a whole to
    ascertain whether counsel rendered effective assistance. State v. Ciskie, 
    110 Wash. 2d 263
    ,
    284, 
    751 P.2d 1165
    (1988). Review is highly deferential and we engage in the
    presumption that counsel was competent; moreover, counsel's strategic or tactical choices
    are not a basis for finding error. 
    Strickland, 466 U.S. at 689-691
    .
    Ms. Vazquez does not provide any authority suggesting that counsel is ineffective
    for failing to negotiate a plea agreement, let alone a superior plea deal with desired
    conditions. Counsel has a duty to provide effective assistance during plea bargaining,
    which constitutes providing meaningful advice about the relevant consequences. State v.
    James, 
    48 Wash. App. 353
    , 362, 
    739 P.2d 1161
    (1987). Here, counsel obtained an offer
    that apparently was acceptable to Ms. Vazquez, but she ultimately rejected it for a
    collateral reason. No evidence suggests Ms. Vazquez received improper or ineffective
    plea advice. This argument is utterly lacking factual or legal support.
    Only evidence in the trial court record can be considered on appeal. 
    McFarland, 127 Wash. 2d at 337-338
    & n.5. While there is a passing reference in the record to personal
    challenges experienced by Ms. Vazquez’s defense attorney, nothing in the record
    suggests counsel was impaired at trial. Claims that defense counsel was inattentive or
    indisposed at trial require evidence of actual prejudice from the record. Matter of Lui,
    
    188 Wash. 2d 525
    , 540-542, 
    397 P.3d 90
    (2017). This issue, too, utterly lacks factual
    support in the record.
    4
    No. 36365-1-III
    State v. Vazquez
    The remainder of the challenges assert that counsel should have objected to
    questions asked of her client or challenged some of the evidence offered by the
    prosecutor. We lump these challenges together because, individually and collectively,
    they fail to overcome the presumption that counsel performed effectively.
    As the Strickland court noted, no two lawyers would try a case in the same
    
    manner. 466 U.S. at 689
    . Accordingly, discerning error from an undeveloped appellate
    record is largely a fruitless undertaking because the decision to object is a “classic
    example of trial tactics.” See State v. Madison, 
    53 Wash. App. 754
    , 763, 
    770 P.2d 662
    (1989). “Only in egregious circumstances, on testimony central to the State’s case, will
    the failure to object constitute incompetence of counsel.”
    Id. A reviewing
    court
    presumes that a “failure to object was the product of legitimate trial strategy or tactics,
    and the onus is on the defendant to rebut this presumption.” State v. Johnston, 143 Wn.
    App. 1, 20, 
    177 P.3d 1127
    (2007) (citing cases). Defense counsel may also make a
    reasonable tactical decision not to object to inadmissible evidence when such an
    objection may draw undesired attention or impair a defense strategy. State v. Gladden,
    
    116 Wash. App. 561
    , 568, 
    66 P.3d 1095
    (2003).
    Most of Ms. Vazquez’s contentions present evidentiary arguments that in some
    contexts could have succeeded if raised at trial due to the discretion afforded the trial
    5
    No. 36365-1-III
    State v. Vazquez
    judge over the admission of evidence.2 State v. Clark, 
    187 Wash. 2d 641
    , 648-649, 
    389 P.3d 462
    (2017). However, none of these potential claims established error in the context
    of this trial. Ms. Vazquez was arrested inside of a house full of drug users with ample
    evidence of drug use throughout the building. Trial counsel’s theory of the case played to
    those facts—Ms. Vazquez was just another user rather than a dealer.
    Defense counsel presented a consistent theme at trial that Ms. Vazquez was a
    victim of police “tunnel vision” that ignored more culpable individuals. Counsel
    developed a defense theory to serve her client consistent with professional standards.
    Under the circumstances, the appellate claim rings hollow. Ms. Vazquez did not
    establish either that her counsel erred or that her trial was rendered unfair by counsel’s
    mistakes. Thus, she has not proved her claim of ineffective assistance of counsel.
    Sentencing Contentions
    Ms. Vazquez challenges the imposition at sentencing of the criminal filing fee,
    various drug fines mentioned below, the DNA testing fee, and a HIV testing requirement.
    We grant relief on most of her arguments.
    A defendant is subject to a mandatory $2,000 fine for a subsequent drug offense
    unless the court finds the defendant indigent. RCW 69.50.430(2). Methamphetamine
    2
    E.g., State v. Warren, 
    134 Wash. App. 44
    , 65, 
    138 P.3d 1081
    (2006) (admission of
    prior convictions otherwise excluded by ER 609); State v. Bourgeois, 
    133 Wash. 2d 389
    ,
    402-403, 
    945 P.2d 1120
    (1997) (prosecutor may pre-empt credibility challenge to
    witness).
    6
    No. 36365-1-III
    State v. Vazquez
    possession under RCW 69.50.401(2) requires a mandatory cleanup fine when the
    quantity exceeds two kilograms, but it is otherwise discretionary. State v. Corona, 
    164 Wash. App. 76
    , 78-80, 
    261 P.3d 680
    (2011). Crime laboratory fees may be suspended if
    the defendant is indigent. RCW 43.43.690(1). Trial courts may not impose discretionary
    LFOs on indigent defendants, including the $200 criminal filing fee. State v. Ramirez,
    
    191 Wash. 2d 732
    , 739, 
    426 P.3d 714
    (2018).
    The trial court found that Ms. Vazquez was indigent. Neither party disputes the
    $200 filing fee must be waived. The trial court erroneously treated the drug fine, crime
    laboratory fee, and methamphetamine cleanup fee3 as mandatory. Because Ms. Vazquez
    is indigent, those fees should have been waived. The court found no evidence that Ms.
    Vazquez was previously ordered to provide DNA; that fee was properly imposed.
    The trial court may order HIV testing if it “determines at the time of conviction
    that the related drug offense is one associated with the use of hypodermic needles.”
    RCW 70.24.340(1)(c). The court must enter an appropriate finding to establish whether
    the defendant used or intended to use needles as part of the offense. State v. Mercado,
    
    181 Wash. App. 624
    , 635-636, 
    326 P.3d 154
    (2014).
    3
    Ms. Vazquez possessed 8.2 ounces of methamphetamine, which is below the
    statutory requirement of 2 kilograms.
    7
    No. 36365-1-III
    State v. Vazquez
    The record does not establish that Ms. Vazquez used needles as part of this
    offense. Her testimony only described smoking methamphetamine. Without an
    appropriate basis for the finding, we reverse the HIV testing order.
    Affirmed and remanded to strike the noted provisions from the judgment and
    sentence.
    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.
    _________________________________
    Korsmo, A.C.J.
    WE CONCUR:
    _________________________________
    Lawrence-Berrey, J.
    _________________________________
    Siddoway, J.
    8