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STATE OF WASHINGTON, ) ) No. 36365-1-III Respondent, ) ) v. ) ) JESSICA L. VAZQUEZ, ) UNPUBLISHED OPINION ) Appellant.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 Wn.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 Wn. 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 Wn.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 Wn. 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 Wn.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 Wn.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 Wn. 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 Wn. App. 561, 568, 66 P.3d 1095 (2003).
Most of Ms.
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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 Wn.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 Wn. 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 Wn.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 Wn. 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 Wn.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 Wn.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 Wn. 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 Wn. 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 Wn.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 Wn. App. 44, 65, 138 P.3d 1081 (2006) (admission of prior convictions otherwise excluded by ER 609); State v. Bourgeois, 133 Wn.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
Wn. 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 Wn.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 Wn. 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.