State v. Brown
State v. Brown
Opinion of the Court
¶1 Shane Brown pleaded guilty to possession of a controlled substance with intent to deliver and
FACTS AND PROCEDURAL BACKGROUND
¶2 On December 24, 2008, an officer found Mr. Brown passed out in his vehicle. The officer found Mr. Brown’s identification, ran his name, and arrested him for an outstanding warrant and driving with a suspended license. A search of the vehicle incident to arrest yielded methamphetamine and a handgun. Mr. Brown was charged on January 13, 2009 with possession of a controlled substance (methamphetamine) with intent to deliver and second degree unlawful possession of a firearm. On January 26,2009, Mr. Brown pleaded guilty to both counts. After a colloquy with Mr. Brown, the trial judge found the plea to be knowingly and voluntarily made. Mr. Brown received a standard range sentence of 20 months’ confinement.
¶3 On April 21, 2009, the United States Supreme Court decided Gant, in which it held that the exception to the general warrant requirement for searches incident to arrest is available only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, thereby correcting what it perceived to be an overbroad reading by the courts of the search incident to arrest exception as articulated in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
ANALYSIS
¶5 Mr. Brown argues that his counsel’s failure to research and advise him of then-pending Gant before he pleaded guilty constituted ineffective assistance of counsel, resulting in his entry of an unknowing and unintelligent guilty plea. A claim of ineffective assistance of counsel presents a mixed question of fact and law, reviewed de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
¶6 Effective assistance of counsel is guaranteed by both the federal and state constitutions. See U.S. Const. amend. VI; Wash. Const. art. I, § 22. The purpose of the guaranty is to ensure a reliable disposition of the case. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994) (quoting Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). It is well settled that to demonstrate ineffective assistance of counsel, a defendant must show two things: “(1) defense counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel’s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)
¶7 This test applies to claims of ineffective assistance in the plea bargaining process. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999). In order to satisfy the first prong of the test in a plea bargaining context, Mr. Brown must demonstrate that his counsel failed to “actually and substantially” assist him in determining whether to plead guilty. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901, review denied, 96 Wn.2d 1023 (1981)).
¶8 Appellate review of counsel’s performance starts from a strong presumption of reasonableness. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990); see also State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007) (“In assessing performance, ‘the court must make every effort to eliminate the distorting effects of hindsight.’ ” (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992))). Trial counsel owe several responsibilities to their clients, including the duty to research relevant law. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing Strickland, 466 U.S. at 690-91). “[D]efense counsel has a duty to investigate all reasonable lines of defense,” In re Pers. Restraint of Davis, 152 Wn.2d 647, 744, 101 P.3d 1 (2004) (citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)), but has no duty to pursue strategies that reasonably appear unlikely to succeed, McFarland, 127 Wn.2d at 334 n.2. Many state and federal cases have also concluded that an attorney’s failure to raise novel legal theories or arguments is not ineffective assistance. See, e.g., Anderson v. United States, 393 F.3d 749, 754 (8th Cir.) (“Counsel’s failure to raise [a] novel argument does not render his performance constitutionally ineffective.”), cert. denied, 546 U.S. 882 (2005); Haight v. Commonwealth, 41 S.W.3d 436, 448 (Ky.) (“while the failure to
¶9 A handful of recent Washington Court of Appeals decisions from Division Two have considered the question under review here and each concluded that counsel’s failure to anticipate changes in the law does not amount to deficient representation. State v. Slighte, 157 Wn. App. 618, 238 P.3d 83 (concluding that trial counsel is not deficient for failing to anticipate changes in relevant case law and adjusting legal trial strategy accordingly), petition for review filed, No. 85027-5 (Wash. Sept. 3, 2010); State v. Pearsall, 156 Wn. App. 357, 361-62, 231 P.3d 849 (finding that trial counsel’s failure to file a suppression motion in anticipation of Gant does not constitute deficient performance), petition for review filed, No. 84734-7 (Wash. June 28, 2010); State v. Millan, 151 Wn. App. 492, 502, 212 P.3d 603 (2009) (recognizing that “defense counsel’s failure to move to suppress the seized firearm in the trial court would not constitute ineffective assistance because preGant case law indicated that the seizure was valid”), review granted, 168 Wn.2d 1005 (2010).
¶11 Because Mr. Brown has not shown that his trial counsel failed to actually and substantially assist him in the plea bargaining process, his argument fails on the deficiency prong alone; there is no need to address prejudice. Since Mr. Brown argues that his guilty plea was not voluntary or knowing exclusively on ineffective assistance grounds, there is no need to otherwise consider the validity of the plea.
¶12 Defense counsel’s performance was not deficient and Mr. Brown’s plea was knowingly, intelligently, and voluntarily entered into between him and the State.
STATEMENT OF ADDITIONAL GROUNDS
¶13 In his statement of additional grounds, Mr. Brown claims that his attorney never told him of his right to appeal at all and that he would have gone to trial had counsel advised him of the then-pending Gant case. Nothing in the record substantiates his claim and he does not
¶14 We affirm.
556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
Slighte, Pearsall, and Millan all present additional issues not present here; it is on different issues that the Supreme Court accepted review in Millan and in State v. Robinson, noted at 151 Wn. App. 1030, 2009 WL 2233110, 2009 Wash. App. LEXIS 1899, review granted in part, 168 Wn.2d 1001 (2010) (granting review “on search issue only”; see Petitions for Review: February 9, 2010, Washington Courts, http://www.courts.wa.gov/appellate_trial_courts/supreme/?fa=atc_supreme.display &year=2010&petition=prl00209; Supreme Court Issues: September Term 2010, Washington Courts, http://www.courts.wa.gov/appellate_trial_courts/supreme/issues/ ?fa=atc_supreme_issues.display&fileID=2010Sep (last visited Dec. 23, 2010)).
Reference
- Full Case Name
- The State of Washington v. Shane E. Brown
- Cited By
- 34 cases
- Status
- Published