FILED
SEPTEMBER 8, 2026
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. 40575-3-III )
Respondent, )
)
v. ) UNPUBLISHED OPINION )
MARWAN ABDULLAH NASSIR, a/k/a ) MARWAN ABDULLAH NASSER, )
)
Appellant. )
MURPHY, J. — Marwan Nasser1 and the State reached a global plea agreement involving separate criminal proceedings. In the cause number on appeal, Nasser pleaded guilty to two counts of felony harassment and two gross misdemeanor counts of violation of a no-contact order. In a joint recommendation, the parties proposed a prison-based drug offender sentencing alternative (DOSA) for the felony counts, with the gross misdemeanor sentences to run concurrent with the felonies and with each other.
1 The appellant in his plea statement used the last name “Nasser” and his counsel in briefing to this court does the same. We follow those examples and use “Nasser” throughout the body of this opinion.
State v. Nassir
The trial court declined to follow that recommendation and instead imposed the statutory maximum with the gross misdemeanor counts to run consecutive to the felonies and to each other. Nasser appeals, claiming he received ineffective assistance of counsel that rendered his plea not knowing, intelligent, or voluntary.
After filing the appeal, Nasser moved in the trial court to withdraw his plea on the same grounds, which the trial court denied. Nasser now argues the trial court erred in denying his motion to withdraw his plea.
Nasser lastly contends that the trial court imposed a no-contact order longer than authorized by statute. The State concedes the no-contact order error but disputes the plea challenge.
We hold the trial court’s order denying Nasser’s motion to withdraw his guilty plea is not properly before this court. Nasser did not file a timely notice of appeal or amended notice of appeal from that order, and he has not satisfied the requirements of RAP 2.5(a) to raise the issue for the first time on appeal.
Regarding his appeal from his judgment and sentence, the record establishes that Nasser’s plea was knowing, intelligent, and voluntary. The trial court conducted an extensive colloquy advising Nasser of the standard sentencing ranges and the court’s discretion to impose consecutive sentences regardless of any recommendation. On the
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record, Nasser affirmed this understanding of the court’s discretion, with the signed plea paperwork expressly stating the judge was not required to follow the parties’ recommendation. Therefore, even assuming counsel rendered deficient performance, Nasser cannot demonstrate he was prejudiced by such deficiency.
On the no-contact order issue, we accept the State’s concession of error. The trial court imposed no-contact orders with an effective duration exceeding the statutory maximum. We remand for the limited purpose of correcting the 10-year no-contact order to comply with the statutory limit of five years.
FACTS
In November 2023, the State charged Nasser with three counts of felony harassment—threat to kill. The charges arose from handwritten letters Nasser sent to his twin daughters he shared with Silviya Chernenko, threatening to kill Chernenko. The charges were later amended to two counts of felony harassment (one against Chernenko and one against their two minor children) and two gross misdemeanor counts of violation of a no-contact order.
The parties negotiated a global resolution of the 2023 case and a case under a separate cause number that originated in 2021. In the 2023 case, Nasser signed a statement of defendant on plea of guilty in which he agreed to plead guilty to two counts
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of felony harassment and two gross misdemeanor counts of violation of a no-contact order. His offender score was listed as “9” with a standard range of 51 to 60 months on each of the felonies. The potential range of confinement on the two gross misdemeanors was identified as 0 to 364 days. The State agreed to recommend a prison-based DOSA (27.75 months’ confinement plus 27.75 months’ community custody), to run concurrent with any sentence in the 2021 case. Further, the State would recommend 364 days on the two gross misdemeanor counts, with the time also to be run concurrent with the felonies and with each other. The statement of defendant on plea of guilty expressly stated that “[t]he judge does not have to follow anyone’s recommendation as to sentence.” Clerk’s Papers (CP) at 59. Nasser signed the agreement.
At the plea hearing, the court engaged in an extensive colloquy with Nasser.
Nasser confirmed he had a bachelor’s degree, could read and write, and that his attorney reviewed the entire agreement with him. Nasser affirmed he understood the charges, the rights he was waiving, the consequences of his plea (including sentencing ranges and no- contact order provisions), and that the court was not bound by the parties’ recommendation.
The court specifically advised Nasser that the standard range for the felony harassment counts was 51 to 60 months, the gross misdemeanors carried 0 to 364 days,
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and the court had discretion to run the misdemeanor counts consecutive to each other and to the felonies. Nasser stated he understood.
The parties paused the proceedings to discuss the misdemeanor charges off the record. After these discussions, the State informed the court it recommended a suspended jail sentence on the misdemeanor charges so that Nasser was not delayed in going to the Department of Corrections (DOC) to begin DOSA programming. After additional off- record discussions, defense counsel confirmed Nasser’s questions had been answered and they were ready to proceed.
To the court, Nasser affirmed he had sufficient time with his lawyer to discuss the recommendation and all of his questions were answered. Nasser pleaded guilty to the charges in the 2021 and 2023 cases. Nasser affirmed he discussed his decision to plead guilty with his attorney and affirmed he pleaded guilty to all counts “freely, voluntarily, with a clear and sober mind.” 1 Rep. of Proc. (RP) (June 11, 2024) at 28. The trial court accepted the plea, finding it was entered “knowingly, intelligently, voluntarily, competently, unequivocally, with the assistance of [his] attorney and with a full understanding of both the nature of the charges and also the consequences for pleading guilty.” 1 RP (June 11, 2024) at 28-29.
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Sentencing proceeded just over two weeks after the plea hearing. In accord with the agreement, the State recommended a DOSA. Chernenko and the parties’ daughters made statements to the court. Chernenko told the trial court she did not agree with a DOSA and believed Nasser should serve the full sentence in prison. One of the children asked the court to keep Nasser in jail, which would allow her to have peace. The other child told the court:
The only thing I will say is, um, with the DOSA, this man, he never used drugs. And I don’t know he got on steroids and all that. Maybe it’s not my place to say it right now, but he will do anything to—to get less time for what he did.
1 RP (June 27, 2024) at 46-47.
Defense counsel asked the trial court to follow the joint recommendation stating Nasser was eligible for a DOSA because Nasser was taking Suboxone for his problem with steroids. When challenged by the court as to Suboxone being used to assist with a dependency to steroids, Nasser’s counsel answered:
[DEFENSE COUNSEL]: That’s what I have been told, yes, your Honor. So in my experience, I’ve never had a—I’ve never had DOSA denied as far as any kind of claim the person doesn’t have a drug problem.
I’m not saying that never occurs. But most crimes, frankly, are committed with some sort of substance issue. There’s certainly evidence, evidence supporting that here.
1 RP (June 27, 2024) at 51-52.
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The trial court declined to follow the joint recommendation, ruling:
THE COURT: . . . The court ordinarily does follow plea recommendations. It’s important. The court is well aware that our system is somewhat reliant upon it; however, I don’t in all cases follow the recommendation. And this is a circumstance where I’m not inclined to follow the recommendation in this case either. I don’t think it is proper to follow the joint recommendation.
I have serious concerns when I look at the criminal history here. The criminal history here starts back in ’99 with [domestic violence] assault, stalking. And then there is a long period starting in the 2000s, going through 2012, a continuing pattern of financial fraudulent-type of crimes.
And those go all the way up to offense dates of 2013 and convictions in 2018. We’re dealing with a 9-plus offender score.
The allegations and the conduct that’s been pled to is also concerning to the court. When I listen to the victims’ statements, I sense genuine fear. And I—I don’t think it’s a situation where children have been coached to make certain statements. I think that their fear is genuine and warranted. And I trust—I put some weight into their—into their instinct.
I’m not following the recommendation in this case. I’m going to impose the high end of the standard range on the felony counts, 60 months on each of those counts. The felonies will run concurrent. I’m running the gross misdemeanors 364 days consecutive to that, so a total sentence of [84] months minus two days.
I’m going to grant the victims their request and to give them as much peace and the feeling of safety for as long as I can under the circumstances and the law. And so I’m placing you in custody for as long as the court has authority to under the charges that have been pled. Again, this is not an exceptional sentence. This is a sentence within the standard range. And the court has discretion, with respect to the gross misdemeanors, to run them consecutive, which I will do and find that there’s good cause to do so.
....
I’m also not persuaded that this is an appropriate case for prison-
based DOSA. I am not persuaded that the source of this was a drug issue, the source of this conduct. There’s been a long pattern of criminal history of varied crimes that do not appear to be drug-influenced crimes. Although
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the Court’s aware that steroids can increase a person’s tendencies towards violence and be a source of addiction, I’m not satisfied that a prison-based DOSA, especially when he’s already serving probation on the federal matters, is a good use of public resources and a good use of that sentencing alternative. So I decline to follow it.
1 RP (June 27, 2024) at 53-55.
The trial court signed the warrant of commitment for 83 months and 28 days, issued a 10-year no-contact order protecting Chernenko, and 5-year no-contact orders protecting each child.
Nasser filed a timely notice of appeal from his judgment and sentence entered in the 2023 case. He did not appeal from the judgment and sentence entered in the 2021 case. More than six months later, after this court had accepted review of his appeal, Nasser moved under CrR 7.8, in front of the trial court, to withdraw his plea. The trial court denied the motion. Nasser did not file a separate notice of appeal or amend his existing notice to include that denial order.
ANALYSIS
1. Postjudgment motion to withdraw guilty plea The State correctly argues that the trial court’s postjudgment order denying Nasser’s CrR 7.8 motion to withdraw his plea is not properly before this court. Under RAP 5.1(a) and 5.2, a party must file a notice of appeal within 30 days of the decision.
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RAP 7.2(e) generally requires separate review of postjudgment motions unless an exception found in RAP 2.4 applies. No such exceptions apply here, and Nasser does not contend otherwise. 2. Challenge to voluntariness of plea on direct appeal Nasser argues his plea was not knowing, voluntary or intelligent because he received ineffective assistance of counsel at his plea proceedings and sentencing. Because he raises this issue for the first time on appeal, he must show manifest constitutional error. RAP 2.5(a)(3). Constitutional due process requires that a guilty plea be knowing, intelligent, and voluntary. State v. Olsen, 3 Wn.3d 689, 698, 555 P.3d 868 (2024) (citing State v. Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018)). The defendant must have been “sufficiently informed of the direct consequences of the plea that existed at the time of the plea.” State v. Lamb, 175 Wn.2d 121, 129, 285 P.3d 27 (2012) (alteration in original). We review de novo the constitutional adequacy of a plea. State v. Snider, 199 Wn.2d 435, 444, 508 P.3d 1014 (2022).
Ineffective assistance of counsel can render a defendant’s plea of guilty involuntary or unintelligent. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015 (2011). To establish a plea was involuntary or unintelligent because of counsel’s inadequate advice, the defendant must satisfy the two-part test for ineffective assistance
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of counsel as set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Id.
Under the Strickland two-part test, a defendant must show both that (1) defense counsel’s representation was deficient and (2) that the deficient representation was prejudicial. 466 U.S. at 687. If one prong of the Strickland test fails, then this court need not address the remaining prong. State v. Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541 (2019). Representation is deficient if, after considering all the circumstances, it falls below an objective standard of reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). A petitioner alleging ineffective assistance of counsel must overcome a strong presumption that counsel’s performance was reasonable. Id. “When counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Prejudice occurs when, but for counsel’s deficient performance, there is a reasonable probability the outcome would have been different. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). If a defendant satisfies the two-part Strickland test, he necessarily demonstrates manifest constitutional error under RAP 2.5. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
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Nasser claims his counsel was deficient when advising him to enter a plea bargain that was not likely to be accepted by the trial court. He claims this deficient performance rendered his plea involuntary. He argues the trial court was not likely to accept his plea agreement because his attorney (1) failed to research whether a person on steroids would be eligible for a DOSA, (2) failed to provide the court with legal authority that steroids were covered under the DOSA statute, and (3) did not demonstrate any connection between his steroid or Suboxone use and the crimes committed.
The record on review contains insufficient evidence regarding the advice Nasser received from his attorney and the amount of research his attorney performed. Because Nasser brings this claim as a direct appeal, rather than a personal restraint petition, he can only rely on evidence that was before the trial court at the time of the plea and sentence.2 Therefore, Nasser fails to prove his counsel rendered deficient performance.
Regarding the quality of his attorney’s arguments in support of a DOSA, Nasser’s claims do not establish deficient performance. Counsel’s decision to not make extensive arguments could have been a legitimate tactical decision in that he did not want to draw
2 The supplemental clerk’s papers, while procedurally filed, contain post-plea materials that were not before the trial court at the time of the plea and sentence. We do not consider them on the direct appeal from the judgment and sentence. See McFarland, 127 Wn.2d at 335; RAP 9.6(a) (“Any party may supplement the designation of clerk’s papers and exhibits prior to or with the filing of the party’s last brief.”).
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attention to the fact that Nasser’s steroid use may not strongly correlate with the charged offenses. This is especially true given the parties had a joint recommendation, which itself has persuasive qualities as acknowledged by the trial court: “The court ordinarily does follow plea recommendations. It’s important.” 1 RP (June 27, 2024) at 53.
Nasser also claims his attorney was deficient for not advising him about the possibility of consecutive sentences. Again, the record on review is silent as to what advice Nasser’s attorney gave him as to the possibility of consecutive sentences and thus Nasser fails to show that his counsel was deficient on this basis.
Since Nasser has not shown his counsel was deficient, we need not address prejudice under the Strickland test. Crow, 8 Wn. App. 2d at 507. We note, however, that Nasser has not shown prejudice. The trial court acknowledged steroids’ potential effects but found DOSA inappropriate given the overall circumstances and considerations given to public resources. Moreover, the trial court’s decision rested on grounds independent of steroid use and its connection to the charged crimes. The trial court explained its decision was grounded in Nasser’s high offender score, criminal history, and the victims’ credible statements of fear. In other words, even if Nasser’s attorney had made a robust argument in support of a DOSA due to Nasser’s use of steroids, it is unlikely the court would have followed that recommendation.
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Regarding Nasser’s understanding of the potential sentencing consequences, even assuming counsel failed to advise him of this possibility, Nasser received this information prior to entering his plea of guilty. At the plea hearing, the court expressly informed Nasser that it had authority to impose consecutive sentences:
THE COURT: All right. And the court, again, has the discretion to impose counts III and IV consecutively to each other and consecutively to counts I and II, meaning back to back if it chose to. You understand that?
THE DEFENDANT: Yes, your Honor.
1 RP (June 11, 2024) at 22-23. The record on review thus shows Nasser was advised that consecutive sentences was a potential outcome.
Because Nasser cannot demonstrate ineffective assistance on this record, and thus no manifest constitutional error, we do not disturb the plea. 3. No-contact orders Nasser argues, and the State concedes, that the 10-year no-contact order with Chernenko exceeds statutory authority. We accept the State’s concession.
The no-contact orders were issued under chapter 10.99 RCW. For both class C felony harassment convictions and gross misdemeanor violations, the maximum duration is five years. RCW 10.99.050(2)(c)-(d); RCW 9A.20.021(1)(c). The legislature has not authorized combining or running these periods consecutively to create a single 10-year order.
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Here, the trial court followed the parties’ recommendations for the no-contact orders and imposed a 10-year no-contact order for Chernenko. The parties arrived at the length of Chernenko’s no-contact order by “having the felony no-contact order be for five years and the gross misdemeanor no-contact order be for five years, for a total of ten.” 1 RP (June 11, 2024) at 18.
We remand for the ministerial correction of the no-contact order to five years.
State v. Ramos, 171 Wn.2d 46, 48, 246 P.3d 811 (2011) (ministerial corrections on remand do not require full resentencing).
CONCLUSION
We affirm the judgment and sentence and remand for correction of the 10-year no-contact order.
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.
_________________________________
Murphy, J.
WE CONCUR:
______________________________ _________________________________ Lawrence-Berrey, J. Hill, J.