Filed Washington State Court of Appeals Division Two
January 9, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49616-0-II
Respondent,
v. UNPUBLISHED OPINION
ARIANNA S. EISELE-CHAVEZ,
Appellant.
MAXA, A.C.J. – Arianna Eisele-Chavez appeals an order denying her CrR 7.8(b) motion
to vacate her conviction of second degree malicious mischief, which was entered on stipulated
facts after a diversion program failed. Eisele-Chavez claims that defense counsel provided
ineffective assistance of counsel by not informing her that she could be convicted of a felony as
opposed to a misdemeanor if the diversion failed or that she could lose her subsidized housing
because of the felony conviction.
We hold that Chavez failed to establish ineffective assistance of counsel and therefore
that the trial court did not abuse its discretion in denying her motion. Accordingly, we affirm the
trial court’s order denying Eisele-Chavez’s CrR 7.8 motion to vacate her conviction.
FACTS
On June 4, 2014, Eisele-Chavez poured a gallon of bleach into her boyfriend’s pickup
truck. The State charged her with second degree malicious mischief, a felony. No. 49616-0-II
In September 2014, Eisele-Chavez entered into a diversion agreement in which she
agreed to waive her right to a trial in exchange for having the charge dismissed if she
successfully completed the diversion program. Eisele-Chavez also agreed that if she failed to
successfully complete the diversion program, the trial court could find her guilty of the charged
offense based on a reading of law enforcement investigation reports. Finally, she stipulated that
the facts contained in the investigative reports were sufficient for a trier of fact to find her guilty
of the charged offense.
The diversion agreement presented to Eisele-Chavez initially indicated that she was
charged with a gross misdemeanor, but the trial court and defense counsel confirmed that the
charged offense was a felony. The agreement was amended to reflect the felony charge, and
Eisele-Chavez initialed the changes.
In November 2015, the trial court determined that Eisele-Chavez had failed in diversion
and found her guilty of second degree malicious mischief based on a review of the declaration of
probable cause. The court sentenced her to community service and imposed mandatory legal
financial obligations. Eisele-Chavez did not appeal her conviction or her sentence.
Ten months later, in September 2016, Eisele-Chavez filed a motion to vacate her
conviction under CrR 7.8(b). She argued that she was not made aware that losing her subsidized
housing would be a consequence of her felony conviction. She claimed that if she had been
made aware of this consequence, she would have handled the matter differently. Defense
counsel stated that he did not recall advising Eisele-Chavez of this consequence. At oral
argument, Eisele-Chavez argued that if she had known that a felony conviction could affect her
2 No. 49616-0-II
housing she would have made an effort to establish that the correct charge should have been a
misdemeanor rather than a felony.
The trial court denied the motion. The court stated that this was not a situation where
Eisele-Chavez could withdraw a guilty plea because she was found guilty on stipulated facts
rather than pleading guilty. The court also found that Eisele-Chavez had failed to demonstrate
any basis to vacate under CrR 7.8(b).
Eisele-Chavez appeals the trial court’s denial of her CrR 7.8(b) motion to vacate her
conviction.
ANALYSIS
A. MOTION TO VACATE
Eisele-Chavez argues that the trial court erred in denying her CrR 7.8(b) motion to vacate
her conviction based on ineffective assistance of counsel. We disagree.
1. Legal Principles
CrR 7.8(b) allows relief from a judgment for (1) mistakes, inadvertence, surprise, or
excusable neglect, (2) newly discovered evidence, (3) fraud, and (4) a void judgment. Under
CrR 7.8(b)(5), relief also may be granted for “[a]ny other reason justifying relief from the
operation of the judgment.” CrR 7.8(c) states that the motion must state the grounds upon which
relief is asked “and, supported by affidavits setting forth a concise statement of the facts or errors
upon which the motion is based.”
We review a superior court’s ruling on a CrR 7.8(b) motion for abuse of discretion. State
v. Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016). The trial court abuses its discretion
3 No. 49616-0-II
when its decision is manifestly unreasonable or is based on untenable grounds or reasons. Id. at
217-18.
Our scope of review for an order denying a CrR 7.8(b) motion is limited to the record and
evidence presented at the CrR 7.8 hearing. State v. Schwab, 141 Wn. App. 85, 96, 167 P.2d
1225 (2007). On appeal of a CrR 7.8(b) ruling, a defendant cannot raise issues regarding the
validity of the underlying judgment and sentence. Id. We review only whether the trial court’s
denial of the motion was proper. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002).
Appealing the denial of a CrR 7.8(b) motion does not trigger appellate review of an unappealed
final judgment. Id.
2. Disclosure Regarding Felony Charge
Eisele-Chavez argues that the court erred in denying her motion to vacate because neither
the trial court nor defense counsel informed her that she was stipulating to facts and waiving a
jury trial on a felony charge rather than on a misdemeanor charge. However, Eisele-Chavez did
not assert this claim in the trial court as a basis for relief under CrR 7.8(b). Therefore, we
decline to consider this argument.1 RAP 2.5(a).
3. Disclosure Regarding Housing Consequences
Eisele-Chavez argues that defense counsel’s failure to inform her that she could lose her
subsidized housing denied her effective assistance of counsel. She claims that the trial court
should have vacated her conviction because of this failure. We disagree.
1 In any event, the record is clear that the court, counsel, and Eisele-Chavez all agreed that the stipulation involved a felony charge.
4 No. 49616-0-II
Relief under CrR 7.8(b)(5) is for situations not covered by sections (1) through (4) and
“ ‘where the interests of justice most urgently require.’ ” State v. Lamb, 175 Wn.2d 121, 128,
285 P.3d 27 (2012) (quoting State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989)).
Ineffective assistance of counsel can provide the basis for vacating a judgment under CrR
7.8(b)(5). State v. Martinez, 161 Wn. App. 436, 441, 253 P.3d 445 (2011).
We review ineffective assistance of counsel claims de novo. State v. Estes, 188 Wn.2d
450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the defendant
must show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. Id. at 457-58. There is a strong presumption that
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Filed Washington State Court of Appeals Division Two
January 9, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49616-0-II
Respondent,
v. UNPUBLISHED OPINION
ARIANNA S. EISELE-CHAVEZ,
Appellant.
MAXA, A.C.J. – Arianna Eisele-Chavez appeals an order denying her CrR 7.8(b) motion
to vacate her conviction of second degree malicious mischief, which was entered on stipulated
facts after a diversion program failed. Eisele-Chavez claims that defense counsel provided
ineffective assistance of counsel by not informing her that she could be convicted of a felony as
opposed to a misdemeanor if the diversion failed or that she could lose her subsidized housing
because of the felony conviction.
We hold that Chavez failed to establish ineffective assistance of counsel and therefore
that the trial court did not abuse its discretion in denying her motion. Accordingly, we affirm the
trial court’s order denying Eisele-Chavez’s CrR 7.8 motion to vacate her conviction.
FACTS
On June 4, 2014, Eisele-Chavez poured a gallon of bleach into her boyfriend’s pickup
truck. The State charged her with second degree malicious mischief, a felony. No. 49616-0-II
In September 2014, Eisele-Chavez entered into a diversion agreement in which she
agreed to waive her right to a trial in exchange for having the charge dismissed if she
successfully completed the diversion program. Eisele-Chavez also agreed that if she failed to
successfully complete the diversion program, the trial court could find her guilty of the charged
offense based on a reading of law enforcement investigation reports. Finally, she stipulated that
the facts contained in the investigative reports were sufficient for a trier of fact to find her guilty
of the charged offense.
The diversion agreement presented to Eisele-Chavez initially indicated that she was
charged with a gross misdemeanor, but the trial court and defense counsel confirmed that the
charged offense was a felony. The agreement was amended to reflect the felony charge, and
Eisele-Chavez initialed the changes.
In November 2015, the trial court determined that Eisele-Chavez had failed in diversion
and found her guilty of second degree malicious mischief based on a review of the declaration of
probable cause. The court sentenced her to community service and imposed mandatory legal
financial obligations. Eisele-Chavez did not appeal her conviction or her sentence.
Ten months later, in September 2016, Eisele-Chavez filed a motion to vacate her
conviction under CrR 7.8(b). She argued that she was not made aware that losing her subsidized
housing would be a consequence of her felony conviction. She claimed that if she had been
made aware of this consequence, she would have handled the matter differently. Defense
counsel stated that he did not recall advising Eisele-Chavez of this consequence. At oral
argument, Eisele-Chavez argued that if she had known that a felony conviction could affect her
2 No. 49616-0-II
housing she would have made an effort to establish that the correct charge should have been a
misdemeanor rather than a felony.
The trial court denied the motion. The court stated that this was not a situation where
Eisele-Chavez could withdraw a guilty plea because she was found guilty on stipulated facts
rather than pleading guilty. The court also found that Eisele-Chavez had failed to demonstrate
any basis to vacate under CrR 7.8(b).
Eisele-Chavez appeals the trial court’s denial of her CrR 7.8(b) motion to vacate her
conviction.
ANALYSIS
A. MOTION TO VACATE
Eisele-Chavez argues that the trial court erred in denying her CrR 7.8(b) motion to vacate
her conviction based on ineffective assistance of counsel. We disagree.
1. Legal Principles
CrR 7.8(b) allows relief from a judgment for (1) mistakes, inadvertence, surprise, or
excusable neglect, (2) newly discovered evidence, (3) fraud, and (4) a void judgment. Under
CrR 7.8(b)(5), relief also may be granted for “[a]ny other reason justifying relief from the
operation of the judgment.” CrR 7.8(c) states that the motion must state the grounds upon which
relief is asked “and, supported by affidavits setting forth a concise statement of the facts or errors
upon which the motion is based.”
We review a superior court’s ruling on a CrR 7.8(b) motion for abuse of discretion. State
v. Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016). The trial court abuses its discretion
3 No. 49616-0-II
when its decision is manifestly unreasonable or is based on untenable grounds or reasons. Id. at
217-18.
Our scope of review for an order denying a CrR 7.8(b) motion is limited to the record and
evidence presented at the CrR 7.8 hearing. State v. Schwab, 141 Wn. App. 85, 96, 167 P.2d
1225 (2007). On appeal of a CrR 7.8(b) ruling, a defendant cannot raise issues regarding the
validity of the underlying judgment and sentence. Id. We review only whether the trial court’s
denial of the motion was proper. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002).
Appealing the denial of a CrR 7.8(b) motion does not trigger appellate review of an unappealed
final judgment. Id.
2. Disclosure Regarding Felony Charge
Eisele-Chavez argues that the court erred in denying her motion to vacate because neither
the trial court nor defense counsel informed her that she was stipulating to facts and waiving a
jury trial on a felony charge rather than on a misdemeanor charge. However, Eisele-Chavez did
not assert this claim in the trial court as a basis for relief under CrR 7.8(b). Therefore, we
decline to consider this argument.1 RAP 2.5(a).
3. Disclosure Regarding Housing Consequences
Eisele-Chavez argues that defense counsel’s failure to inform her that she could lose her
subsidized housing denied her effective assistance of counsel. She claims that the trial court
should have vacated her conviction because of this failure. We disagree.
1 In any event, the record is clear that the court, counsel, and Eisele-Chavez all agreed that the stipulation involved a felony charge.
4 No. 49616-0-II
Relief under CrR 7.8(b)(5) is for situations not covered by sections (1) through (4) and
“ ‘where the interests of justice most urgently require.’ ” State v. Lamb, 175 Wn.2d 121, 128,
285 P.3d 27 (2012) (quoting State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989)).
Ineffective assistance of counsel can provide the basis for vacating a judgment under CrR
7.8(b)(5). State v. Martinez, 161 Wn. App. 436, 441, 253 P.3d 445 (2011).
We review ineffective assistance of counsel claims de novo. State v. Estes, 188 Wn.2d
450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the defendant
must show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. Id. at 457-58. There is a strong presumption that
counsel’s performance was effective. Id. at 458. Representation is deficient if, after considering
all the circumstances, it falls below an objective standard of reasonableness. Id. Prejudice exists
if there is a reasonable probability that, except for counsel’s errors, the result of the proceeding
would have been different. Id.
Eisele-Chavez does not establish that her counsel was deficient in failing to inform her
that a felony conviction could affect her housing. She analogizes her diversion agreement to a
plea agreement, arguing that her loss of housing subsidies was a direct consequence and she was
unaware of it when she agreed to diversion. But with a guilty plea, a defendant must be
informed only of the direct consequences of a plea, not all possible collateral consequences.
State v. Ward, 123 Wn.2d 488, 512, 869 P.2d 1062 (1994). “The distinction between direct and
collateral consequences of a plea ‘turns on whether the result represents a definite, immediate
and largely automatic effect on the range of the defendant’s punishment.’ ” State v. Barton, 93
5 No. 49616-0-II
Wn.2d 301, 305, 609 P.2d 1353 (1980) (quoting Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364,
1366 (4th Cir. 1973).
Here, there is no evidence that loss of housing benefits was a direct consequence of
Eisele-Chavez’s felony conviction. The record before us contains no sworn affidavits, no
evidence supporting her claims, and no explanation about whether loss of housing benefits is an
automatic result of a felony conviction and, if so, which laws and regulations apply. Thus, her
claim by analogy fails to show that defense counsel had an obligation to inform her of the effect
a felony conviction would have on her housing benefits.
Eisele-Chavez also does not establish prejudice. Her attorney stated Eisele-Chavez had
advised him that “because of her felony conviction her landlord is evicting her from her
residence.” Clerk’s Papers at 17. But other than this hearsay statement, Eisele-Chavez provided
no other information from which the trial court could conclude that losing her housing was a
direct consequence of her felony conviction. And she does not show that the outcome of her
case would have been different if she would have known that a felony conviction might affect
her housing benefits.
Because Eisele-Chavez cannot establish ineffective assistance of counsel, we hold that
the trial court did not abuse its discretion in denying the motion to vacate.
B. APPELLATE COSTS
Eisele-Chavez asks that we refrain from awarding appellate costs if the State seeks them.
The State represents that it does not intend to request appellate costs. Therefore, we decline to
impose appellate costs.
6 No. 49616-0-II
CONCLUSION
We affirm the trial court’s order denying Eisele-Chavez’s CrR 7.8 motion to vacate her
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.
MAXA, A.C.J.
We concur:
JOHANSON, J.
SUTTON, J.