FILED
FEB 26,2013
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STATE OF WASHINGTON, ) No. 30573·2-III ) Respondent, ) ) v. ) ) ALVIN R. MELARA FLORES, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Alvin Melara Flores appeals his juvenile prison riot conviction,
contending he received ineffective assistance of counsel in his stipulated evidence bench
trial because his attorney did not present evidence on his behalf or impeach the State's
evidence. Because Mr. Flores waived his trial rights and fails to show any deficient
performance from his trial counsel, we affirm.
FACTS
On September 19,2011, 15-year-old Alvin Melara Flores and a fellow gang
member and inmate at the Grant County Juvenile Detention Facility attacked a rival gang
member while the rival spoke on the telephone. The State charged Mr. Flores with prison
riot and fourth degree assault. Defense counsel moved unsuccessfully to dismiss the No.30573-2-III State v. Flores
prison riot charge, arguing the juvenile detention facility was not a "correctional
institution" as defined by statute. Mr. Flores then agreed to a stipulated evidence bench
trial in order to preserve his right to appeal the trial court's denial of his dismissal motion.
Defense counsel filed a Statement on Stipulated Trial, which he prepared on a
guilty plea form "since a stipulated trial is in many respects about the same as pleading
guilty." Report of Proceedings (RP) at 24. In this statement, Mr. Flores agreed "to the
admissibility of the police report and/or discovery as supplemented at trial herein."
Clerk's Papers (CP) at 47. Mr. Flores validly waived "the right to testify, to have
witnesses testify for [him], and to hear and question witnesses" at his trial. CP at 42. In
exchange, the State agreed to dismiss the fourth degree assault charge and recommend a
sentence of 15 days' detention on the prison riot charge.
Defense counsel advised Mr. Flores regarding the stipulation, stating, "essentially
with a stipulated trial it's just about the same as pleading [guilty] except reserving the
appeal right." RP at 29. Further, defense counsel told Mr. Flores he "would not be
presenting any argument" at trial and "the reports would be the only evidence before [the
court]." RP at 29.
At trial, defense counsel reassured the trial court Mr. Flores agreed to admissibility
of the State's incident reports and declarations. When the State rested, defense counsel
took no further action, stating he understood Mr. Flores's stipulation to mean he waived
his right to present evidence and demand the State produce live witnesses subject to
No. 30573-2-III State v. Flores
cross-examination. The Grant County Superior Court Juvenile Department found Mr.
Flores guilty of prison riot. Mr. Flores appealed.
ANALYSIS
The issue is whether Mr. Flores was denied effective assistance of counsel in his
stipulated evidence trial because his attorney did not present evidence on his behalf or
impeach the State's evidence. Mr. Flores contends that by this omission, defense counsel
entirely failed to subject the State's case to meaningful adversarial testing. Mr. Flores
further contends ineffective assistance is presumed under United States v. Cronic, 466
U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), so he need not prove deficient
performance or prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). We disagree with Mr. Flores.
To prove an ineffective assistance of counsel claim under Strickland, the
defendant must show "counsel's performance was deficient" and "the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687. Failure to show either
element defeats the claim. Jd. Deficient performance occurs if "counsel's representation
fell below an objective standard of reasonableness." Jd. at 688. "[A] defendant must
overcome a strong presumption that counsel's performance was reasonable." State v.
Breitung, 173 Wn.2d 393,398,267 P.3d 1012 (2011). To do so, the defendant must
show "there is no conceivable legitimate tactic explaining counsel's performance." State
v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). "A stipulation as to facts may
No.30573-2-III State v. Flores
represent a tactical decision ...." State v. Mierz, 127 Wn.2d 460,476, 901 P.2d 286
(1995).
In a stipulated facts trial, the defendant typically admits "'if the State's witnesses
were called, they would testify in accordance with the summary presented by the
prosecutor.'" In re Det. o/Moore, 167 Wn.2d 113, 121,216 P.3d 1015 (2009) (quoting
State v. Wiley, 26 Wn. App. 422, 425, 613 P.2d 549 (1980)). However, "the judge or jury
still determines the defendant's guilt or innocence; the State must prove beyond a
reasonable doubt the defendant's guilt; and the defendant is not precluded from offering
evidence or cross-examining witnesses." State v. Johnson, 104 Wn.2d 338, 342,705
P.2d 773 (1985).
Unlike other stipulated facts trials, Mr. Flores validly waived "the right to testify,
to have witnesses testify for [him], and to hear and question witnesses" at his trial. CP at
42. Thus, defense counsel did not present evidence on Mr. Flores's behalf or impeach the
State's evidence because Mr. Flores's stipulation required he not do so. As defense
counsel correctly noted, this atypical stipulation was more akin to a guilty plea. In this
way, the stipulation represented a legitimate tactic limiting Mr. Flores's liability and
sentencing exposure while preserving his right to appeal the trial court's denial of his
dismissal motion. Mr. Flores does not argue defense counsel performed deficiently in
negotiating this atypical stipulation or advising him on it. Therefore, Mr. Flores cannot
prove deficient performance under Strickland. Further, he does not argue prejudice under
Strickland.
Instead, Mr. Flores argues that because defense counsel entirely failed to subj ect
the State's case to meaningful adversarial testing, ineffective assistance is presumed
under Cronic, and he need not prove deficient performance or prejudice under Strickland.
Although Strickland's test generally governs, ineffective assistance is presumed, under
Cronic, in limited circumstances "so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658.
Specifically, prejudice is presumed if,. for example, "counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing." Id. at 659. For this exception to
apply, "the attorney's failure must be complete." Bell v. Cone, 535 U.S. 685, 697, 122 S.
Ct.
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FILED
FEB 26,2013
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. 30573·2-III ) Respondent, ) ) v. ) ) ALVIN R. MELARA FLORES, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Alvin Melara Flores appeals his juvenile prison riot conviction,
contending he received ineffective assistance of counsel in his stipulated evidence bench
trial because his attorney did not present evidence on his behalf or impeach the State's
evidence. Because Mr. Flores waived his trial rights and fails to show any deficient
performance from his trial counsel, we affirm.
FACTS
On September 19,2011, 15-year-old Alvin Melara Flores and a fellow gang
member and inmate at the Grant County Juvenile Detention Facility attacked a rival gang
member while the rival spoke on the telephone. The State charged Mr. Flores with prison
riot and fourth degree assault. Defense counsel moved unsuccessfully to dismiss the No.30573-2-III State v. Flores
prison riot charge, arguing the juvenile detention facility was not a "correctional
institution" as defined by statute. Mr. Flores then agreed to a stipulated evidence bench
trial in order to preserve his right to appeal the trial court's denial of his dismissal motion.
Defense counsel filed a Statement on Stipulated Trial, which he prepared on a
guilty plea form "since a stipulated trial is in many respects about the same as pleading
guilty." Report of Proceedings (RP) at 24. In this statement, Mr. Flores agreed "to the
admissibility of the police report and/or discovery as supplemented at trial herein."
Clerk's Papers (CP) at 47. Mr. Flores validly waived "the right to testify, to have
witnesses testify for [him], and to hear and question witnesses" at his trial. CP at 42. In
exchange, the State agreed to dismiss the fourth degree assault charge and recommend a
sentence of 15 days' detention on the prison riot charge.
Defense counsel advised Mr. Flores regarding the stipulation, stating, "essentially
with a stipulated trial it's just about the same as pleading [guilty] except reserving the
appeal right." RP at 29. Further, defense counsel told Mr. Flores he "would not be
presenting any argument" at trial and "the reports would be the only evidence before [the
court]." RP at 29.
At trial, defense counsel reassured the trial court Mr. Flores agreed to admissibility
of the State's incident reports and declarations. When the State rested, defense counsel
took no further action, stating he understood Mr. Flores's stipulation to mean he waived
his right to present evidence and demand the State produce live witnesses subject to
No. 30573-2-III State v. Flores
cross-examination. The Grant County Superior Court Juvenile Department found Mr.
Flores guilty of prison riot. Mr. Flores appealed.
ANALYSIS
The issue is whether Mr. Flores was denied effective assistance of counsel in his
stipulated evidence trial because his attorney did not present evidence on his behalf or
impeach the State's evidence. Mr. Flores contends that by this omission, defense counsel
entirely failed to subject the State's case to meaningful adversarial testing. Mr. Flores
further contends ineffective assistance is presumed under United States v. Cronic, 466
U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), so he need not prove deficient
performance or prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). We disagree with Mr. Flores.
To prove an ineffective assistance of counsel claim under Strickland, the
defendant must show "counsel's performance was deficient" and "the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687. Failure to show either
element defeats the claim. Jd. Deficient performance occurs if "counsel's representation
fell below an objective standard of reasonableness." Jd. at 688. "[A] defendant must
overcome a strong presumption that counsel's performance was reasonable." State v.
Breitung, 173 Wn.2d 393,398,267 P.3d 1012 (2011). To do so, the defendant must
show "there is no conceivable legitimate tactic explaining counsel's performance." State
v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). "A stipulation as to facts may
No.30573-2-III State v. Flores
represent a tactical decision ...." State v. Mierz, 127 Wn.2d 460,476, 901 P.2d 286
(1995).
In a stipulated facts trial, the defendant typically admits "'if the State's witnesses
were called, they would testify in accordance with the summary presented by the
prosecutor.'" In re Det. o/Moore, 167 Wn.2d 113, 121,216 P.3d 1015 (2009) (quoting
State v. Wiley, 26 Wn. App. 422, 425, 613 P.2d 549 (1980)). However, "the judge or jury
still determines the defendant's guilt or innocence; the State must prove beyond a
reasonable doubt the defendant's guilt; and the defendant is not precluded from offering
evidence or cross-examining witnesses." State v. Johnson, 104 Wn.2d 338, 342,705
P.2d 773 (1985).
Unlike other stipulated facts trials, Mr. Flores validly waived "the right to testify,
to have witnesses testify for [him], and to hear and question witnesses" at his trial. CP at
42. Thus, defense counsel did not present evidence on Mr. Flores's behalf or impeach the
State's evidence because Mr. Flores's stipulation required he not do so. As defense
counsel correctly noted, this atypical stipulation was more akin to a guilty plea. In this
way, the stipulation represented a legitimate tactic limiting Mr. Flores's liability and
sentencing exposure while preserving his right to appeal the trial court's denial of his
dismissal motion. Mr. Flores does not argue defense counsel performed deficiently in
negotiating this atypical stipulation or advising him on it. Therefore, Mr. Flores cannot
prove deficient performance under Strickland. Further, he does not argue prejudice under
Strickland.
Instead, Mr. Flores argues that because defense counsel entirely failed to subj ect
the State's case to meaningful adversarial testing, ineffective assistance is presumed
under Cronic, and he need not prove deficient performance or prejudice under Strickland.
Although Strickland's test generally governs, ineffective assistance is presumed, under
Cronic, in limited circumstances "so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658.
Specifically, prejudice is presumed if,. for example, "counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing." Id. at 659. For this exception to
apply, "the attorney's failure must be complete." Bell v. Cone, 535 U.S. 685, 697, 122 S.
Ct. 1843, 152 L. Ed. 2d 914 (2002). If the defendant stands trial, "counsel must hold the
prosecution to its heavy burden of proof beyond [a] reasonable doubt." Cronic, 466 U.S.
at 656 n.19. But counsel need not "do what is impossible or unethical" by "attempting a
useless charade" where "there is no bona fide defense to the charge." Id.
Here, while it is true defense counsel permitted the State's case to proceed without
any adversarial testing, he did so in obedience to Mr. Flores's stipulation, itself the
product of our adversarial criminal justice system. The atypical nature of Mr. Flores's
stipulation apparently reflects the reality that he had no bona fide defense to the prison
riot charge, and attempting to create a reasonable doubt as to his guilt would be a useless
No.30S73-2-III State v. Flores
charade. It appears the sole reason Mr. Flores agreed to a stipulated evidence trial, as
opposed to a gUilty plea, was to preserve his right to appeal the trial court's denial of his
dismissal motion. Although Mr. Flores has abandoned his dismissal denial theory on
appeal, we cannot say these circumstances were so likely to prejudice Mr. Flores that
requiring him to meet Strickland's test is unjustified. Thus, we do not presume
ineffective assistance under Cronic. It follows that Mr. Flores cannot prove ineffective
assistance because he has not shown deficient performance or prejudice under Strickland.
Affirmed.
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.
Brown, J.
WE CONCUR: