IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81511-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
VICTOR ESTRADA FRANCO,
Appellant.
SMITH, J. — Victor Estrada Franco appeals his conviction for felony
violation of a domestic violence no-contact order (DVNCO). He claims that we
should vacate his conviction and withdraw his arraignment plea of not guilty due
to ineffective assistance of counsel. Franco’s arraignment attorney did not
advise him of his absolute right to plead guilty at the arraignment, did not advise
him about the possibility that his charge could be amended to a felony on the
basis of his prior convictions, and did not advise him that pleading guilty would
preclude the filing of felony charges against him. Because his attorney’s
performance fell below a standard of reasonable assistance, and this failure
prejudiced Franco, we conclude that Franco’s right to effective counsel was
violated. We remand to superior court for Franco to be charged and arraigned
on the original gross misdemeanor charge.
FACTS
On April 14, 2019, Burien police officers responded to a trespass call and
found Jayonna Graver and Franco sitting in a car. Graver had a DVNCO against
Franco, and Franco was arrested for violation of the court order. The next day,
the State charged Franco with violation of a DVNCO, and Franco was arraigned
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81511-3-I/2
in King County District Court. The State’s written request to set bail was filed the
same day as the arraignment hearing and it noted that Franco had been
“convicted of five counts of DVNCO[1].” Franco’s arraignment attorney entered a
plea of not guilty on Franco’s behalf.
On April 18, 2019, the State charged Franco in superior court with felony
violation of a DVNCO based on Franco’s five prior misdemeanor convictions for
violations of DVNCOs. On April 23, the district court dismissed Franco’s
misdemeanor charge without prejudice.
On November 12, 2019, Franco moved to withdraw his not guilty plea in
district court, contending ineffective assistance of his arraignment counsel.
Franco filed two declarations in support of this motion. In the first declaration,
Franco’s arraignment attorney stated that he did not advise Franco of his
absolute right to plead guilty, did not advise Franco about the possibility that
repeat offenses can be amended to felonies on the basis of prior convictions, and
did not advise him that pleading guilty would preclude the filing of felony charges
against him. In the second declaration, Franco stated that he would have
pleaded guilty to the misdemeanor if he had known the charge could be refiled as
a felony. However, on December 17, 2019, the district court denied the motion to
withdraw on the grounds that it had lost jurisdiction over the case when the case
was dismissed and refiled in superior court.
On December 30, 2019, before trial for the felony charge, Franco again
moved to withdraw his not guilty plea, but this time in superior court. On
1 Violation of a no-contact order.
2 No. 81511-3-I/3
January 9, 2020, the superior court made an oral ruling denying Franco’s motion.
The court found that the record was insufficient because it did not have a record
of the proceedings at district court, the issue was not properly raised because the
plea happened in a separate jurisdiction, and there was insufficient information to
make a finding of ineffective assistance of counsel.
On January 21, 2020, Franco proceeded to jury trial. Franco stipulated
that he had two prior convictions for violation of court orders, that he and Graver
were in a dating relationship, and that they had a child in common. Graver
testified at trial that “[i]t’s kinda hard to deny that we didn’t . . . have contact. . . .
[W]e were caught in the same car together; kind of hard to deny, when the cops
catch you together.”
On January 22, 2020, the jury found Franco guilty on count I, domestic
violence felony violation of a court order, under RCW 26.50.110(1)-(5). On
May 19, 2020, the court imposed an exceptional sentence downward of 20
months, departing from the standard range of 51 to 60 months.
Franco appeals.
ANALYSIS
Franco contends that his conviction should be vacated because but for his
arraignment counsel’s failure to inform him of his absolute right to plead guilty
and the consequences of pleading not guilty, he would have pleaded guilty to the
gross misdemeanor in King County District Court. We agree.
Ineffective assistance of counsel claims are reviewed de novo. State v.
Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). Every accused person is
3 No. 81511-3-I/4
guaranteed the constitutional right to effective counsel. U.S. CONST. amend. VI;
WASH. CONST. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 685-86, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 229, 743
P.2d 816 (1987). The right to effective counsel is violated when (1) the attorney’s
performance was deficient and (2) the deficiency prejudiced the accused.
Strickland, 466 U.S. at 687; Thomas, 109 Wn.2d at 225-26.
Deficient Performance
Counsel’s performance is deficient when it falls below an objective
standard of reasonableness. Thomas, 109 Wn.2d at 226. When evaluating
whether counsel’s representation is deficient, “the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688. Appellate courts must be highly deferential and
“indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689. A
defendant can overcome the presumption of effective representation if the
defendant proves that counsel failed to conduct research that “falls below an
objective standard of reasonableness where the matter is at the heart of the
case.” Estes, 188 Wn.2d at 460. The defendant may also meet this burden by
demonstrating “the absence of legitimate strategic or tactical reasons supporting
the challenged conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336,
899 P.2d 1251 (1995). The decision whether or not to plead guilty is the
defendant’s alone. In re Pers. Restraint of Burlingame, 3 Wn. App. 2d 600, 610,
416 P.3d 1269 (2018).
4 No. 81511-3-I/5
In Burlingame, Burlingame’s attorney failed to inform him that he had the
absolute right to plead guilty at arraignment, that he would lose that right if he
pleaded not guilty, and that the State could then charge him with a more serious
crime. Burlingame, 3 Wn. App. 2d at 607. The court held that this failure to
advise constituted deficient performance. Burlingame, 3 Wn. App. 2d at 609-10.
The court concluded that “competent counsel would have advised Mr.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81511-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
VICTOR ESTRADA FRANCO,
Appellant.
SMITH, J. — Victor Estrada Franco appeals his conviction for felony
violation of a domestic violence no-contact order (DVNCO). He claims that we
should vacate his conviction and withdraw his arraignment plea of not guilty due
to ineffective assistance of counsel. Franco’s arraignment attorney did not
advise him of his absolute right to plead guilty at the arraignment, did not advise
him about the possibility that his charge could be amended to a felony on the
basis of his prior convictions, and did not advise him that pleading guilty would
preclude the filing of felony charges against him. Because his attorney’s
performance fell below a standard of reasonable assistance, and this failure
prejudiced Franco, we conclude that Franco’s right to effective counsel was
violated. We remand to superior court for Franco to be charged and arraigned
on the original gross misdemeanor charge.
FACTS
On April 14, 2019, Burien police officers responded to a trespass call and
found Jayonna Graver and Franco sitting in a car. Graver had a DVNCO against
Franco, and Franco was arrested for violation of the court order. The next day,
the State charged Franco with violation of a DVNCO, and Franco was arraigned
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81511-3-I/2
in King County District Court. The State’s written request to set bail was filed the
same day as the arraignment hearing and it noted that Franco had been
“convicted of five counts of DVNCO[1].” Franco’s arraignment attorney entered a
plea of not guilty on Franco’s behalf.
On April 18, 2019, the State charged Franco in superior court with felony
violation of a DVNCO based on Franco’s five prior misdemeanor convictions for
violations of DVNCOs. On April 23, the district court dismissed Franco’s
misdemeanor charge without prejudice.
On November 12, 2019, Franco moved to withdraw his not guilty plea in
district court, contending ineffective assistance of his arraignment counsel.
Franco filed two declarations in support of this motion. In the first declaration,
Franco’s arraignment attorney stated that he did not advise Franco of his
absolute right to plead guilty, did not advise Franco about the possibility that
repeat offenses can be amended to felonies on the basis of prior convictions, and
did not advise him that pleading guilty would preclude the filing of felony charges
against him. In the second declaration, Franco stated that he would have
pleaded guilty to the misdemeanor if he had known the charge could be refiled as
a felony. However, on December 17, 2019, the district court denied the motion to
withdraw on the grounds that it had lost jurisdiction over the case when the case
was dismissed and refiled in superior court.
On December 30, 2019, before trial for the felony charge, Franco again
moved to withdraw his not guilty plea, but this time in superior court. On
1 Violation of a no-contact order.
2 No. 81511-3-I/3
January 9, 2020, the superior court made an oral ruling denying Franco’s motion.
The court found that the record was insufficient because it did not have a record
of the proceedings at district court, the issue was not properly raised because the
plea happened in a separate jurisdiction, and there was insufficient information to
make a finding of ineffective assistance of counsel.
On January 21, 2020, Franco proceeded to jury trial. Franco stipulated
that he had two prior convictions for violation of court orders, that he and Graver
were in a dating relationship, and that they had a child in common. Graver
testified at trial that “[i]t’s kinda hard to deny that we didn’t . . . have contact. . . .
[W]e were caught in the same car together; kind of hard to deny, when the cops
catch you together.”
On January 22, 2020, the jury found Franco guilty on count I, domestic
violence felony violation of a court order, under RCW 26.50.110(1)-(5). On
May 19, 2020, the court imposed an exceptional sentence downward of 20
months, departing from the standard range of 51 to 60 months.
Franco appeals.
ANALYSIS
Franco contends that his conviction should be vacated because but for his
arraignment counsel’s failure to inform him of his absolute right to plead guilty
and the consequences of pleading not guilty, he would have pleaded guilty to the
gross misdemeanor in King County District Court. We agree.
Ineffective assistance of counsel claims are reviewed de novo. State v.
Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). Every accused person is
3 No. 81511-3-I/4
guaranteed the constitutional right to effective counsel. U.S. CONST. amend. VI;
WASH. CONST. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 685-86, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 229, 743
P.2d 816 (1987). The right to effective counsel is violated when (1) the attorney’s
performance was deficient and (2) the deficiency prejudiced the accused.
Strickland, 466 U.S. at 687; Thomas, 109 Wn.2d at 225-26.
Deficient Performance
Counsel’s performance is deficient when it falls below an objective
standard of reasonableness. Thomas, 109 Wn.2d at 226. When evaluating
whether counsel’s representation is deficient, “the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688. Appellate courts must be highly deferential and
“indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689. A
defendant can overcome the presumption of effective representation if the
defendant proves that counsel failed to conduct research that “falls below an
objective standard of reasonableness where the matter is at the heart of the
case.” Estes, 188 Wn.2d at 460. The defendant may also meet this burden by
demonstrating “the absence of legitimate strategic or tactical reasons supporting
the challenged conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336,
899 P.2d 1251 (1995). The decision whether or not to plead guilty is the
defendant’s alone. In re Pers. Restraint of Burlingame, 3 Wn. App. 2d 600, 610,
416 P.3d 1269 (2018).
4 No. 81511-3-I/5
In Burlingame, Burlingame’s attorney failed to inform him that he had the
absolute right to plead guilty at arraignment, that he would lose that right if he
pleaded not guilty, and that the State could then charge him with a more serious
crime. Burlingame, 3 Wn. App. 2d at 607. The court held that this failure to
advise constituted deficient performance. Burlingame, 3 Wn. App. 2d at 609-10.
The court concluded that “competent counsel would have advised Mr.
Burlingame of his one-time right to plead guilty as charged without the agreement
of the prosecutor—even if the lawyer’s recommendation was that Mr. Burlingame
not plead guilty.” Burlingame, 3 Wn. App. 2d at 610.
In this case, as in Burlingame, Franco’s counsel failed to inform him that
he had the absolute right to plead guilty at arraignment and that he would lose
that right if he pleaded not guilty and the charges were refiled as a felony. The
State’s written request to set bail noted that Franco had previously been
convicted of five counts of misdemeanor DVNCO. It should have been readily
apparent to counsel without performing deep investigative work that the charge
could be refiled as a felony, which requires only two prior court order violations
under RCW 26.50.110(5). Counsel’s failure to recognize this and inform Franco
falls below the standard of reasonableness. Furthermore, the State concedes
and we agree that there was no legitimate strategic or tactical reason for the
attorney’s failure to advise Franco about his right to plead guilty and the risk of
the State refiling the charge as a felony if he pleaded not guilty. Therefore,
Franco’s arraignment attorney’s representation was deficient.
5 No. 81511-3-I/6
Prejudice to Franco
To show prejudice, a defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. A
reasonable probability is one sufficient to undermine confidence in the outcome.
Estes, 188 Wn.2d at 458. A defendant’s self-serving assertion about how he
would have pleaded is not alone sufficient proof of prejudice. State v. Buckman,
190 Wn.2d 51, 62, 409 P.3d 193 (2018); Burlingame, 3 Wn. App. 2d at 611.
Rather, “the defendant must show that the plea decision he now claims he would
have made was a rational plea decision.” Burlingame, 3 Wn. App. 2d at 611.
Lastly, in evaluating prejudice, “we ‘look[ ] at the contemporaneous evidence that
the defendant presents to substantiate [his] expressed preferences.’ ”
Burlingame, 3 Wn. App. 2d at 611 (alterations in original) (internal quotation
marks omitted) Buckman, 190 Wn.2d at 70 n.15.
Here, Franco claims that he would have pleaded guilty had he known that
the charge could have been refiled as a felony. Franco’s assertion is supported
by two attempts to withdraw his not guilty plea before trial and before the
unfavorable verdict was reached. Although both of those motions were denied,
the attempts to withdraw provide credibility to Franco’s assertion because the
claim was not based on mere retrospective beliefs or an unfavorable verdict.
Furthermore, pleading guilty would have been a rational decision. There
was a high probability that the charge would be refiled as a felony due to
Franco’s five prior convictions for violations of a DVNCO. Once he was charged
6 No. 81511-3-I/7
with a felony, there was also a high probability that the State would be able to
establish guilt. Under RCW 26.50.110(1) and (5), the State was required to
prove that Franco knowingly remained within a specified distance of Graver in
violation of a protection order and that he had at least two previous convictions
for violating provisions of a protection order. Franco knew that the State would
be able to establish the elements of the statute because the police found him
with the protected person in the same vehicle, which Graver admitted at trial.
Additionally, Franco knew he had five previous convictions for DVNCO, and later
stipulated to two of these convictions. This indicates that Franco chose to plead
not guilty not because he thought he had a strong case against the charge, but
instead because his counsel failed to inform him that he had a right to plead
guilty and the consequences of not doing so. Because Franco did not plead
guilty to the misdemeanor, he received a significantly longer sentence and the
collateral consequences of a felony record.
The contemporaneous evidence that Franco presents substantiates his
claim that he would have pleaded guilty had his arraignment attorney properly
advised him of his right to plead guilty and the possible consequences of
pleading not guilty. Accordingly, we reverse the court’s oral ruling denying the
motion to withdraw Franco’s not guilty plea due to ineffective assistance of
counsel. Further, we remand to superior court for Franco to be arraigned on the
original gross misdemeanor charge. 2 If Franco pleads guilty, he can move to
2 Under RCW 3.66.060, the district and superior court have concurrent jurisdiction with regard to gross misdemeanors.
7 No. 81511-3-I/8
vacate the felony conviction after the judgment and sentence is entered.
However, if he again pleads not guilty, the State can move to dismiss the gross
misdemeanor.
We reverse and remand.
WE CONCUR: