State Of Washington, V. Shakaib Kashifi

• Court: Court of Appeals of Washington
• Decided: May 2, 2022
• Docket: 82712-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 82712-0-I (Consolidated with Respondent, No. 82885-1-I)

v. DIVISION ONE

SHAKAIB KASHIFI, UNPUBLISHED OPINION

Appellant.

COBURN, J. — Shakaib Kashifi appeals his conviction on plea of guilty to

domestic violence (DV) misdemeanor harassment. He, arguing his counsel was

ineffective, contends the trial court erred in denying his motion to withdraw his guilty

plea. Finding no error, we affirm.

FACTS

On September 21, 2020, Kashifi’s wife S.A. called 911 and reported that he was

“trying to take” her and their 2-year-old child. Responding police officers documented

that S.A. “appeared very distraught and had been crying.” S.A. told officers that she

needed help leaving Kashifi because he had repeatedly threatened to kill her and their

child. S.A. said she took these threats seriously because Kashifi is “not a normal

person” and she believes he has a mental illness. When asked why she did not call 911

for the previous threats, S.A. explained that she kept hoping Kashifi would leave but he

was controlling her phone and she needed help.

Citations and pin cites are based on the Westlaw online version of the cited material No. 82712-0-I/2

Officers arrested Kashifi while he was walking down the road. Kashifi asserted

that S.A. has “mental issues and is the one trying to kill him.” During a follow-up

interview with the detective assigned to the case, S.A. stated that Kashifi had “been

threatening to kill her every other day for the last few months.”

On September 23, 2020, the State charged Kashifi with DV felony harassment.

Safa Peera was appointed to represent Kashifi. Two months later, Kashifi entered a

plea of guilty to an amended charge of DV misdemeanor harassment. 1 Following a plea

colloquy, the trial court accepted Kashifi’s plea as knowing, intelligent, and voluntary. In

his statement on plea of guilty, Kashifi said, “[B]etween July 15 and Sept 21, 2020, in

King County, WA, I knowingly threatened to cause bodily harm to [S.A.] and my words

put her in reasonable fear that the threat would be carried out. She is the mother of my

daughter. My actions were taken without lawful authority.”

Prior to sentencing, Kashifi retained new counsel and moved to withdraw his

guilty plea based on ineffective assistance of counsel. Kashifi asserted that Peera had

failed to investigate a potential diminished capacity defense, failed to interview police

witnesses, and failed to provide or review complete discovery with him. In his

supporting declaration, Kashifi claimed that he has “been diagnosed with mental health

issues” and that he informed Peera about these issues but never met with a mental

health evaluator in this case. Kashifi also indicated that he was not aware of and had

not been provided “police reports, body worn video, 911 tape, or in car video.” He

stated that he “wished to have reviewed” those items before pleading guilty.

1 The parties stipulated that the facts set forth in the certification for determination of probable cause and the prosecutor’s summary are real and material facts for purposes of sentencing. 2 No. 82712-0-I/3

An evidentiary hearing on Kashifi’s motion took place on May 10, 2021. Peera

testified that she advised Kashifi what a jury trial in a DV felony harassment case would

entail. She explained that DV cases often present a “he said/she said scenario” where

“it’s just kind of one person’s word against the other person.” She further explained that

the State has the burden to prove that the victim’s fear was reasonable and that this

would allow it to present evidence of prior incidents of DV. Regarding trial strategy,

Peera spoke with Kashifi “about motive for [S.A.] to make any allegations that he had

considered were fabricated and a lie.” She reviewed the certificate for probable cause

with Kashifi but did not go over the recorded 911 call or police videos with him.

Peera acknowledged that she “had some concerns regarding [Kashifi’s]

competency,” particularly “his ability to track our conversations.” Peera enlisted a social

worker to help her determine whether this was “just either personality or just the way he

presented versus actual competency concerns.” After the social worker interviewed

Kashifi, they concluded that “it was not a competency concern.” Accordingly, Peera

saw no reason to retain a mental health expert. She acknowledged that the certification

for probable cause indicated that S.A. believed Kashifi suffered from mental health

issues, but Peera did not “think there was any issue regarding his mental state at the

time of the offense.”

Peera testified that she spoke with S.A. by telephone to assess how S.A. felt

about the case and that S.A. “was unsympathetic to Mr. Kashifi.” Peera explained that

she did not interview the officers who responded to S.A.’s 911 call or the detective

assigned to the case because, in her experience, “interviewing police officers on a

domestic violence case that has not occurred in view of the officers doesn’t yield much”

3 No. 82712-0-I/4

at that stage of the case. Peera did not request an investigator because she “didn’t

think it was necessary at that time.” Peera testified that when she first spoke to Kashifi

he was “pretty adamant about wanting to go to trial.” She focused on getting Kashifi out

of custody pending trial but was unable to secure his release before the State offered to

reduce the felony charge to a misdemeanor with sentencing conditions. Peera told

Kashifi that she believed the plea conditions requiring DV treatment and mental health

treatment were “onerous.” But Kashifi wanted to get out of jail and he decided to accept

the offer anyway.

The trial court denied Kashifi’s motion to withdraw his guilty plea and entered

written findings of fact and conclusions of law. The court then imposed an agreed

recommended sentence. Kashifi appeals.

DISCUSSION

Kashifi argues that the trial court erred in denying his motion to withdraw his plea.

Specifically, Kashifi asserts that counsel provided ineffective assistance by failing to (1)

investigate a possible diminished capacity defense, (2) interview police witnesses, and

(3) provide him with all discovery. We disagree.

Due process requires that a defendant’s guilty plea be knowing, voluntary, and

intelligent. State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). A defendant is

permitted to withdraw a guilty plea under CrR 4.2(f) “whenever it appears that the

withdrawal is necessary to correct a manifest injustice.” Pursuant to this demanding

standard, the defendant must demonstrate “an injustice that is obvious, directly

observable, overt, not obscure.” State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228

(1996) (quoting State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)). A defendant

4 No. 82712-0-I/5

may withdraw their guilty plea for manifest injustice if they received ineffective

assistance of counsel. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).

A defendant claiming ineffective assistance of counsel has the burden to

establish that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d

1251 (1995). If the defendant fails to establish either prong, we need not inquire further.

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). “While generally the trial

judge’s decision on whether to allow a defendant to withdraw a guilty plea is reviewed

for abuse of discretion, ‘[b]ecause claims of ineffective assistance of counsel present

mixed questions of law and fact, we review them de novo.’” State v. A.N.J., 168 Wn.2d

91, 109, 225 P.3d 956 (2010) (quoting In re Pers. Restraint of Fleming, 142 Wn.2d 853,

865, 16 P.2d 610 (2001). Additionally, where a trial court weighs evidence following a

hearing, we review its findings of fact for substantial evidence and its conclusions of law

de novo. State v. Schwab, 141 Wn. App. 85, 91, 167 P.3d 1225 (2007). 2

We strongly presume counsel’s performance was reasonable. In re Pers.

Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). “In a plea bargaining

context, ‘effective assistance of counsel’ merely requires that counsel ‘actually and

substantially [assist] his client in deciding 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 (1981)). To demonstrate prejudice, a defendant challenging a guilty

plea must show that there is a reasonable probability that, but for counsel’s errors, he

2 A conclusion of law erroneously described as a finding of fact is reviewed as a conclusion of law. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). 5 No. 82712-0-I/6

would not have pleaded guilty and would have insisted on going to trial. State v.

Buckman, 190 Wn.2d 51, 62, 409 P.3d 193 (2018).

Mental Health Defense

Kashifi argues that Peera’s performance was deficient because she was aware

that he had mental health issues yet failed to seek expert assistance or investigate a

diminished capacity defense prior to advising him to plead guilty. 3 Kashifi contends that

Peera’s failure to investigate meant that she was not in a position to determine whether

there was a basis for a diminished capacity defense.

Effective representation includes reasonable investigation and, if necessary,

expert assistance in developing an adequate defense. State v. Lopez, 190 Wn.2d 104,

116, 410 P.3d 1117 (2018). “Where an attorney makes strategic choices ‘after less

than complete investigation,’ however, a reviewing court will consider them reasonable

only ‘to the extent that reasonable professional judgments support the limitations on

investigation.’” State v. Fedoruk, 184 Wn. App. 866, 880-81, 339 P.3d 233 (2014). The

appropriate “degree and extent of investigation required will vary depending upon the

issues and facts of each case.” A.N.J., 168 Wn.2d 91 at 111.

Here, Peera did not disregard the possibility that Kashifi had mental health

issues. She testified that she “had some concerns regarding [Kashifi’s] competency,”

particularly “his ability to track our conversations.” Peera sought help from a social

worker in her office to explore competency issues and formed the opinion that there was

insufficient concern to hire a competency expert. The trial court found that Peera “did

3 To show diminished capacity, “a defendant must produce expert testimony demonstrating that a mental disorder, not amounting to insanity, impaired the defendant’s ability to form the culpable mental state to commit the crime charged.” State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). 6 No. 82712-0-I/7

not do what she thought was not necessary” with regard to hiring an expert to evaluate

Kashifi for a mental health defense and that her decision did not justify withdrawal of the

plea. Substantial evidence supports these findings, and the findings support the court’s

conclusion that Peera’s representation was not deficient.

Kashifi relies on Fedoruk in support of his claim that Peera’s failure to request a

mental health evaluation was objectively unreasonable. In Fedoruk, the defendant had

an extensive and well-documented history of serious mental illness, had previously

been found not guilty by reason of insanity, and had been involuntarily committed. 184

Wn. App. at 885. Although this information was available to the defense from the

beginning of the case, counsel did not seek to retain a mental health expert to evaluate

Fedoruk until the day before jury selection. Id. at 882. The State argued that Fedoruk

could not establish that he was legally insane, but conceded that he had a “legitimate

basis to raise the defense” and that “it could change the outcome of the trial.” Id. at

885. Under these circumstances, Fedoruk received ineffective assistance of counsel.

Id. at 885.

In contrast, in the instant case, the only evidence of mental illness in the record is

S.A.’s statement to responding officers that she “believes [Kashifi] has a mental illness”

and Kashifi’s self-serving assertion that he has “been diagnosed with mental health

issues” and that he told Peera about these “specific mental health issues.” Despite this

claim, Kashifi has provided no evidence that he has ever been diagnosed with, or been

treated for, any mental illness. We also note that Peera’s testimony is inconsistent with

Kashifi’s assertion that he told her about his mental health issues and that the trial court

was unwilling to infer from Kashifi’s declaration that he has a mental health issue. We

7 No. 82712-0-I/8

defer to the trial court on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850

(1990).

The record does not show any actual evidence of mental illness that would make

Peera’s decision to not request a mental health evaluation fall below an objective

standard of reasonableness. Given Kashifi’s failure to provide evidence that he did in

fact have a mental illness, he has not established a reasonable probability that further

investigation would have yielded information that he would not have pleaded guilty and

would have insisted on going to trial. This claim fails.

Witness Interviews

Kashifi next argues that counsel’s performance fell below an objective standard

of reasonableness because she failed to interview the responding officers and the

investigating detective before he decided to plead guilty. He contends that, without

interviewing the officers, Peera was not in a position to conclude they did not have

evidence relevant to the defense.

An attorney has wide discretion in determining which witnesses to interview. In

re Pers. Restraint of Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998). “[T]here is no

absolute requirement that defense counsel interview witnesses before trial.” Id. To

obtain relief, the defendant “must show a reasonable likelihood that the investigation

would have produced useful information not already known to defendant’s trial counsel.”

In re Pers. Restraint of Davis, 152 Wn.2d 647, 739, 101 P.3d 1 (2004).

Here, Peera testified that she “spent a lot of time” trying to get Kashifi out of

custody pending trial. She explained that she chose not to interview the law

8 No. 82712-0-I/9

enforcement witnesses at that early stage because, in her extensive experience

handling DV cases, “interviewing police officers on a domestic violence case that has

not occurred in view of the officers doesn’t yield much.” The trial court properly

concluded that Peera’s investigation was sufficient under the circumstances and that

she would have investigated more had Kashifi refused the plea offer.

Kashifi challenges the trial court’s finding that “[l]aw enforcement officers would

have only been able to testify as to what the victim reported to them.” He argues that

they could have provided useful testimony regarding the parties’ appearance, credibility,

and demeanor. But the officers’ report already documented their personal observations

of the parties, noting that S.A. “appeared very distraught and had been crying” and that

Kashifi appeared “oddly calm.” And, given that S.A. did not allege assault, the absence

of physical injuries would not be exculpatory. It was not unreasonable for Peera to

conclude that the testimony was not likely to have produced useful information. For the

same reason, Kashifi has not shown that Peera’s failure to conduct these interviews

materially affected his decision to plead guilty.

Discovery

Lastly, Kashifi argues that Peera provided constitutionally ineffective assistance

by failing to provide him with police reports, the recording of the 911 call, and police

videos prior to pleading guilty. He contends that he could not make an informed

decision about whether to plead guilty without being fully aware of this evidence. But

Peera testified that she reviewed the police reports and certificate of probable cause

with Kashifi and discussed what S.A. had alleged. The 911 call was summarized in the

certificate of probable cause. And Kashifi’s declaration does not specify whether or how

9 No. 82712-0-I/10

the electronic discovery items would have changed his decision to plead guilty. Given

Peera’s testimony and Kashifi’s desire to get out of jail as soon as possible, the trial

court’s finding that it did not matter whether Kashifi reviewed those items was supported

by substantial evidence. Kashifi has not shown that this information would have

affected his decision to plead guilty.

CONCLUSION

Kashifi has not met his burden to demonstrate that Peera’s actions were

objectively unreasonable or that her alleged errors would have changed his decision to

plead guilty. The trial court did not err in denying the motion to withdraw his guilty plea.

Affirmed.

WE CONCUR: