IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. QUY DINH NGUYEN, Appellant. No. 68408-6-1

ORDER GRANTING MOTION TO PUBLISH 

### Respondent State of Washington has filed a motion to publish the court's opinion entered December 23, 2013. After due consideration, the panel has determined that 

### the motion should be granted. Nowtherefore, it is hereby ORDERED that respondent's motion to publish the opinion is granted. 

### Done this /O day ofFebruary, 2014. FOR THE PANEL: 

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# 2013DEC23 WI0--31

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. QUY DINH NGUYEN, Appellant. No. 68408-6-

PUBLISHED OPINION FILED: December 23, 2013 Verellen, J. — Following a plea bargain, Quy Dinh Nguyen was convicted of second degree murder and conspiracy to commit leading organized crime. Nguyen challenges the trial court's denial of his motion for a continuance to allow his newlyappointed attorney four to six months to prepare for a hearing on his motion to withdraw his guilty plea. Nguyen contends thatthe trial court violated his right to counsel and due process by refusing to continue the hearing, and that his attorney provided ineffective assistance as a result. Finding no error, we affirm. FACTS Nguyen was a leader of a gang involved in growing and distributing marijuana and operating illegal gambling machines. After Nguyen's brotherwas convicted for shooting another gang member, Nguyen wanted to punish Hoang Nguyen (Hoang) for testifying against his brother. Nguyen arranged for his associate Le Le to pay Jerry Thomas $5,300 to shoot Hoang. Thomas's first attempt to shoot Hoang wasNo. 68408-6-1/2 

### unsuccessful because his gun jammed. Thomas later approached Hoang in a car and shot him inthe head, killing him. Afterward, Nguyen paid Thomas as agreed. With the assistance of a confidential witness, police identified Nguyen, learned of his role inthe killing, and uncovered his leadership role inthe marijuana and gambling operations. The State charged Nguyen with conspiracy to commitfirst degree murder, attempted first degree murder, conspiracy to commitfirst degree murder, and violation ofthe uniform controlled substances act (VUCSA). The State later amended the 

### information to add charges ofleading organized crime, second degree murder, first degree assault, conspiracy to commitfirst degree assault, conspiracy to commitfirst 

### degree professional gambling, and conspiracytocommitVUCSA.1 The case proceeded to trial. 

### After jury selection and opening arguments, Nguyen accepted the State's offer to plead guilty to second degree murderwith a firearm enhancement and conspiracy to lead organized crime. In his statement on plea of guilty, Nguyen acknowledged the factual basis for the murder plea as follows: On January 7, 2007 and January 8, 2007,1 asked a person who worked for me to hire another person to shoot Hoang Van Nguyen with a 

### firearm. At my direction this third person shot Hoang Van Nguyen in Tukwila, King County, Washington on January 8, 2007. Although Idid not intend for this third person to kill Hoang Van Nguyen, Hoang Van Nguyen 

### died as a result of being shot. Ipaid this third person $5,300 for shooting 

### Hoang Van Nguyen.[2]

1Nguyen was chargedin federal courtwith conspiracytomanufacture marijuana. He pleaded guilty to that charge as part of a negotiated agreement, underwhichthe federal prosecutor agreed to recommend that Nguyen receive the same length of sentence for the federal charge as he received for the state charges. 

### 2Clerk's Papers at 44.No. 68408-6-1/3 

### Nguyen's attorney Jennifer Cruz informed the courtthat Nguyen's plea was voluntary: And your Honorwe did have an opportunity, both [co-counsel] Mr. [Brian] Todd and I,to go overthe Statement of Defendant on Plea of Guilty with Mr. Nguyen. Both—two interpreters. Once Iwent over it with Mr. Nguyen, and once Mr. Todd went over it with Mr. Nguyen. And he was able to ask any questions that he had. He had a couple ofquestions, and we were able to answer those questions for him. He understands that by pleading guilty today he is giving up the several constitutional rights. The most important one atthis point, and at this juncture is his right to a trial.
... Ibelieve that he is making a knowing, intelligent, and voluntary plea today to both the murder in the second degree, and also the 

### conspiracytocommit leading organized crime.1] Questioned by the prosecuting attorney, Nguyen informed the courtthat he understood the charges against him and was satisfied with his interpreters. He stated that he had the opportunity to discuss the charges with his attorneys, and intended to plead guilty to the reduced charges. The court's colloquy with Nguyen included the following exchange: COURT: Iwant to make sure that you are not being talked into anything, and thatthis is your idea to plead guilty to the two counts in the second amended information ofmurder in the second degree armed with a firearm, and conspiracy to leading organized crime. So is ityour decision to plead guilty today? NGUYEN: Yes. COURT: Do you have any questions about what you are doing? NGUYEN: No. COURT: Do you wantthe court, meaning me, to accept your guilty plea? NGUYEN: Yes.

Report of Proceedings (RP) (Oct. 13, 2011) at 15-16.No. 68408-6-1/4 COURT: Do you believe you have had enough time to meet and talk with both your lawyers Ms. Cruz and Mr.Todd? NGUYEN: Yes, Ihave enough time. COURT: Okay. And they were able to answer all ofyour questions? NGUYEN: Yes.[4] The trial court determined that Nguyen's plea was made knowingly, intelligently and voluntarily, and thatthere was a factual basis to support the plea. When the court inquired, Nguyen stated he had no questions. The court accepted Nguyen's plea. 

### Despite this, Nguyen moved to withdraw his guiltyplea to second degree murder at his November4, 2011 sentencing hearing, stating: Iwant to have a trial. When Isigned the plea, Idid not understand 

### everything, and then—and then when the lawyer from the federal court told me that is going to be murder, itwas then that Iunderstood.... I 

### swear, Ineverintend tokill him. Ididn't kill him.[5] Based on Nguyen's remarks, the trial court continued the hearing until December 16. On November 17, inresponse to Nguyen's motion for new counsel, the trialcourt entered an order appointing attorney Al Kitching to represent Nguyen. The order calendared a December 16 evidentiary hearing and described the purpose ofthe hearing: 

### Mr. Nguyen shall waive the attorney-client privilege with [his prior 

### attorneys] Ms. Cruz and Mr. Todd insofaras to theirunderstanding of Mr. Nguyen's knowledge and understanding of the plea agreement he entered into on October 13, 2011. The court anticipates that Ms. Cruz 

### and/or Mr. Todd may be called to testify by either side during the motion to 

### withdrawtheplea.[6] 4RP(Oct. 13, 2011) at 17. 5RP(Nov. 4, 2011) at 15. 

### 6Clerk's Papers at77-78.No. 68408-6-1/5 

### On November 29, Kitchingmoved for a four- to six-month continuance to consult with Nguyen, consultwith experts, and investigate the case. He argued thatthe discovery, which he said had not been provided to him, comprised nearly 28,000 pages, and that he needed to be versed inthe historical facts ofthe investigation in orderto advise Nguyen whetherto withdraw his plea. The trial court denied the motion because the only issue to resolve was whether Nguyen entered his guilty plea knowingly, intelligently, and voluntarily. Kitching again moved for a continuance. Atthe December 16 hearing, the trial court reiterated the narrow focus of its inquiry: COURT: Your focus should be on whether or not Mr. Nguyen entered his plea knowingly, intelligently, and voluntarily. It's not whether he got a good deal. It's not whether you would have advised him to do the same thing. The focus of this hearing, and what this Court's responsibility [is], is to determine whether or not Mr. Nguyen made a knowing, 

### intelligent, andvoluntary plea. It's thatsimple.171 Kitching explained the actions he had taken and felt he still needed to take in orderto 

### effectively represent Nguyen. He explained that he had not received the entire discovery, and had prepared forthe hearing by reading the certification for determination ofprobable cause, speaking with Nguyen's former attorneys, and speaking with Nguyen. He explained that he had arranged for mental health specialist Dr. BrettTrowbridge to interview Nguyen. He informed the court that Dr. Trowbridge had met with Nguyen once and performed an initial assessment but needed additional time to determine whether Nguyen was incompetent atthe time he entered his plea.



### 7RP(Dec. 16,2011) at6-7.No. 68408-6-1/6 

### The court denied the motion to continue, explaining that Nguyen failed to make a 

### "threshold showing" thathis plea wasinvalid.8 Thecourtexplained that nofurther examination by Dr. Trowbridge was necessary because any opinion Dr. Trowbridge might have about Nguyen's mental health on the day ofthe plea hearing would be speculative and would carry littleweight. Having dispensed with the motion to continue, the court conducted the evidentiary hearing on Nguyen's motion to withdraw his plea. 

### The State presented the testimony ofNguyen's former trial attorneys, Cruz and Todd, seeking to establish that Nguyen understood that he was pleading guilty to
murder. Cruz and Todd both testified thatthey had no reason to question Nguyen's competency to stand trial or enter a plea, or to doubt that he understood his plea or the consequences thereof. Cruz testified that she metwith Nguyen approximately 20 times
overtwo years, all but once with an interpreter. Cruz averred that she had no difficulty communicating with Nguyen about his case through the interpreters. Cruz stated that Nguyen early on expressed confidence ininterpreter Nova Phung, and specifically requested to have Phung interpret when available. Todd likewise testified that he never had any concern that Nguyen didn't understand the translation, and that Nguyen never expressed any concern about the quality oftranslation rendered by his interpreters. Both attorneys explained that Nguyen was reluctant to enter a plea but changed his mind after Le and Thomas took plea deals and agreed to testify against him. Cruz and Todd testified thatthey discussed proposed plea deals with Nguyen the weekend before trial. At that time, Nguyen's primary concern was the length of his sentence. If
RP(Dec. 16, 2011) at 9.No. 68408-6-1/7 he lost attrial, he would likelybe in prison the rest of his life. On the other hand, if he pleaded guilty to second degree murder, he would likelybe sentenced to a maximum of 304 months. Nguyen told his attorneys that he wanted a maximum 12-year sentence, which his attorneys explained was not realistic. After jury selection and opening 

### statements, Nguyen asked Cruz to request a 15-yeardeal and a manslaughter charge ratherthan murder. Cruz explained thatthis result was also not likely. Both attorneys observed that Nguyen was nervous about his prospects at trial, and remained anxious after he entered the plea agreement, but appeared to be 

### competentto enter his plea. Cruz testified that immediately before agreeing to the 

### State's offer, Nguyen felt "overwhelmed," "tired," and "worried."9 He was nervous because people in jail told him that his trial prosecutor had never lost a trial, and he "mentioned looking atthejurors and being worried as to whatthey were thinking when 

### opening statements were made."10 However, Cruz believed he wascompetenttoeither stand trial or entera plea. Todd similarly observed nothing different about Nguyen's concentration or attentiveness to detail on the day he entered his plea. Cruz testified that when the State formalized its offer of murder in the second degree, she went through the elements ofthat charge as articulated inthe second amended information with Nguyen, and told him what the State would have to prove. Nguyen made no comments that led Cruz to believe he did not understand the elements ofthe charge. Cruz explained that Nguyen was reluctant to plead guilty to any charge



### 9RP(Dec. 16,2011) at 30, 31. 10RP(Dec. 16,2011) at 31.No. 68408-6-1/8 

### ofmurder,11 but hetooktheofferafter heunderstood that theoffense did notrequire proofthat he intended to kill but simply thatthere was an intentional assaultthat resulted in someone's death. Todd likewise testified that he went through the elements ofthe crimes with Nguyen "several times," and "explained to him that there was an assaultthat occurred, and unfortunately as a result the victim died and that by definition 

### ismurderin the seconddegree."12 Cruz testified that Nguyen understood the elements ofthe conspiracy to commit leading organized crime charge, and was actively and intelligently engaged inthe bargaining process. Cruz explained that Nguyen was particularly reluctant to plead guilty to leading organized crime because he did not want people in prison to think that he led organized crime. However, Cruz testified, Nguyen came up with a solution to his quandary by suggesting thatthe offense be charged as a conspiracy. The State agreed to Nguyen's proposal. Cruz explained that "we went backto [the State] to ask ifwe 

### could do aconspiracy, and sothen itwasamended to aconspiracy."13 Cruz testified that Nguyen also demonstrated competency by requesting detailed changes to terms ofthe proposed no-contact order: A. He wanted to be able to have contact with Kristine Nguyen because ofthe fact thatthey had a child together.... and he was 

### 11 Byway ofbackground, Cruz explained thatNguyen did notcontest the basic facts alleged inthe information, but maintained he only wanted to hurt Hoang, not to kill him. Because of this, Nguyen was reluctantto plead guilty to an offense withthe word "murder" in it. Cruz even discussed bringing the homicide as a federal offense without the word "murder" in it, but Nguyen declined because the federal offense carried a longer sentence. Cruz also testified that after Le and Thomas accepted plea deals and agreed to testify against Nguyen, Nguyen became more intent on resolving his case by entering a guilty plea. 

### 12RP(Dec. 16, 2011) at 105. 13RP(Dec. 16,2011)at 33-34.

8No. 68408-6-1/9
concerned that with this no contact order, that he would not be able to have access to his son. 

### Q. So was itclearto you, based upon that interaction with Mr. Nguyen, that he was paying attention or that you believed he was paying attention to some ofthe more minute details and nuances ofthe impactthat this plea agreement was going to have on him? A. Yes.[14] Following the hearing, the trial court denied Nguyen's motion to withdraw his 

### guiltypleas and commenced the sentencing. Afterthe State presented its recommendation, the trial court granted Nguyen's motion to continue the sentencing hearing untilJanuary 27, 2012. On January 26, Nguyen moved for another continuance and for reconsideration ofthe order denying his motion to withdraw his 

### plea.15 Thetrial courtdenied both motions. Nguyen wassentencedto304 months in custody, to be served concurrently with his federal sentence. Nguyen appeals.
ANALYSIS Nguyen contends thatthe trial court erred by refusing his repeated requests for a continuance ofthe plea withdrawal hearing, and that the denials deprived him of his right to counsel and right to due process. But Nguyen fails to persuasively demonstrate thatthe trial court erred, or that he was prejudiced by the court's decisions. The decision ofwhetherto grant a continuance rests within the sound discretion ofthe trial court, even when it is argued that a refusal to grant a continuance deprives a 

### 14RP(Dec. 16,2011)at 34-35. 

### 15Attached to the pleadings was thedeclaration ofexpert witnessMichael laria, who opined that Kitching was unable to provide effective assistance to Nguyen due to the trial court's rulings denying a continuance.No. 68408-6-1/10 defendant ofthe right to due process and right to representation, and the reviewing 

### courtwill affirm unless therecord affirmatively demonstrates an abuse ofdiscretion.16 A court abuses its discretion when its decision is manifestly unreasonable or exercised on 

### untenable grounds orfor untenable reasons.17 Nguyen fails to make anyshowing that the trial court abused its discretion. The trial court repeatedly emphasized that the purpose ofthe evidentiary hearing
was to determine whetherthere was any valid basis for Nguyen's statementthat he did not understand his plea, and particularly, that he did not know itwas a murder charge, despite his contrary claims during his plea colloquy. Although a defendant has no absolute right to withdraw a guilty plea, it is well 

### settled that criminal defendants have the right to counsel in all critical stages ofthe 

### proceedings againstthem,18 and that apresentence motion towithdraw aguilty plea pursuanttoCrR4.2 is a critical stage.19,20 CrR4.2(f) provides in pertinentpartthat
16 Statev. Sutherland. 3Wn. App. 20, 21, 472P.2d 584(1970); Statev. Bailey. 71 Wn.2d191, 195. 426 P.2d 988 (1967) (quoting State v. Moe. 56 Wn.2d 111, 114, 351 P.2d 120(1960)). 

### 17 Statev. Brown. 132Wn.2d 529, 572, 940P.2d 546(1997); Statev. Barker. 35 Wn. App. 388, 397, 667 P.2d 108 (1983); State v. Henderson. 26 Wn. App. 187, 190, 611 P.2d 1365(1980). 

### 18 U.S. Const, amends.VI &XIV; Wash. Const, art. I, § 22; CrR 3.1(b)(2); Gideon v. Wainwriaht. 372 U.S. 335, 337, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). 

### 19 State v. Puqh. 153Wn. App. 569, 579, 222 P.3d821 (2009). 

### 20 Sentencing is also a critical stage. Statev. Robinson. 153Wn.2d 689, 694, 107 P.3d 90 (2005). Nguyen appears to suggestthat he was deprived ofdue process and effective assistance in sentencing as well. However, Nguyen does not address the subject inargument, except to cite cases discussing sentencing. Butthese are isolated passing references, unsupported by any analysis of Nguyen's sentencing hearing or his attorney's performance at the hearing. Nguyen does not address the fact thatthe trial court did grant a continuance for sentencing. Nguyen's briefing ofthe issue is inadequate to permit review ofthe sentencing hearing.

10No. 68408-6-1/11 

### "[t]he court shall allow a defendantto withdraw the defendant's plea of guiltywhenever it appears thatthe withdrawal is necessary to correct a manifest injustice." Withdrawal 

### may be necessary to correct a manifest injustice where the defendant establishes (1) he
or she received ineffective assistance ofcounsel; (2) the plea was not ratified by the defendant or one authorized by him or her to do so; (3) the plea was involuntary; or 

### (4) theplea agreementwasnot keptbytheprosecution.21 Thedefendantgenerally bears theburden ofestablishing the necessityforwithdrawing theplea.22 Suchreliefis entrusted to the trial court's discretion.23 The trial court's approach, requiring an initialthreshold showing of a valid basis 

### for Nguyen's motion to withdraw his plea, was reasonable. Because CrR 4.2 provides extensive safeguards for defendants inentering pleas, our Supreme Court describes 

### thestandard on a motion towithdraw as "demanding."24 Moreover, CrR4.2requires thatthe defendant demonstrate a manifest injustice, inpart because ofthese safeguards. As our Supreme Court explained: Priorto the adoption of CrR 4.2(f), this courtfollowed a dual standard for analyzing motions to withdraw pleas depending on when the motion was made. A more liberal standard was applied ifthe defendant moved to withdraw before sentencing. The motion was addressed to the sound discretion ofthe court "to be exercised liberally infavor of life and liberty." Following the adoption of CrR 4.2(f), we abandoned the dual standard in favor of a singular, and more stringent, standard of "allowing a defendant to withdraw his plea of guilty whenever itappears thatthe withdrawal is necessary to correct a manifest injustice." We adopted the uniform standard because an examination of other rules connected to CrR 4.2(f) "prevents a court from accepting a plea of guilty until it has ascertained 

### 21 Statev. McCollum, 88Wn. App. 977, 981, 997 P.2d 1235(1997). 22 State v. Osborne. 102Wn.2d 87, 97, 684 P.2d 683 (1984). 23 State v. Robinson, 172Wn.2d 783,791, 263 P.3d 1233(2011); State v. Zhao. 157 Wn.2d 188, 197, 137 P.3d 835 (2006). 

### 24 State v. Taylor. 83Wn.2d 594, 596,521 P.2d 699 (1974).

11No. 68408-6-1/12 

### that itwas 'made voluntarily, competently and with an understanding of the nature ofthe charge and the consequences ofthe plea.'" Thus, we felt, there were sufficient safeguards present before a plea was accepted 

### toprotectthedefendantagainstinvoluntary pleas.[25] InState v. Osborne, the court rejected a defendant's challenge to the denial of his motion to withdraw his guiltyplea because the defendant had "specifically stated, several times during the plea proceedings, that his guiltyplea was voluntary and free of 

### coercion."26 TheOsborne courtexplained thatthese statements on therecord constituted "'highly persuasive' evidence ofvoluntariness," requiring evidence, rather 

### than a "mereallegation ofthe defendant," toovercome.27 The trial court did not err by requiring Nguyen to produce something more than his mere allegations. Had Nguyen made the required threshold showing that his plea
was not valid, the trialcourt could have permitted more intensive discovery to develop the record on that issue. Norwas iterrorfor the trial court to conclude thatthe period 

### from November 17 to December 16, 2011 was adequate time for Kitching to uncover evidence sufficientto make a threshold showing that Nguyen did not understand his plea. The trial courtwas not required to authorize an attorney, at public expense, to spend four to six months getting up to speed on a voluminous record without the defendantfirst demonstrating any likelihood ofestablishing a manifest injustice. Nguyen has not shown that he was denied the assistance of counsel or due 

### process.28 Having held that thedenial ofa continuance heredid notcompletely deprive 25 Robinson. 172Wn.2d at791-92 (citations omitted) (internal quotation marks omitted). 

### 26 102Wn.2d 87, 97, 684 P.2d 683 (1984). 

### 28 Nguyen does not separatelybriefanyspecific due process claim.

12No. 68408-6-1/13 

### Nguyen of his right to counsel or due process, we will not presume prejudice. Rather, Nguyen must demonstrate prejudice; specifically, that the result ofthe hearing would 

### havelikely been different had thecontinuance beengranted.29 Hefails to make such a showing. 

### The record demonstrates that Nguyen and his attorneys were able to communicate regarding the case, that his attorneys read the plea statementto him, that 

### his attorneys believed that he understood each ofthe paragraphs ofthe written plea statement, and that he was aware ofwhat he was doing and why itwas being done. Nguyen insists that prejudice must be presumed here because he was 

### completely denied his right to counsel, an error mandating reversal. Nguyen cites In re 

### Application ofMorris.30 a case inwhich adefendantwasrepresented atsentencing by
an attorney completely unfamiliarwith the facts of his case, and Powell v. Alabama,31 in which an attorney was appointed on the day of trial to represent six defendants in a highly publicized capital murdertrial. The Morris and Powell courts held itunnecessary to establish prejudice where circumstances result in a defendant being completely deprived ofassistance ofcounsel. However, Morris and Powell are distinguishable, and their holdings inapposite. A presumption of prejudice is limited to circumstances where the magnitude of the denial makes it likelythat no competent counsel could provide effective assistance. The United States Supreme Court articulated this principle in United States v. Cronic:



### 29 Statev. Eller. 84Wn.2d 90, 95, 525 P.2d 242(1974). 30 34Wn. App. 23, 24, 658 P.2d 1279(1983). 31 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed 158(1932).

13No. 68408-6-1/14 

### [W]ebegin by recognizing thatthe right to the effective assistance of counsel is recognized not for its own sake, but because ofthe effect ithas on the ability ofthe accused to receive a fair trial. Absent some effect of challenged conduct on the reliability ofthe trial process, the Sixth Amendment guarantee is generally not implicated
.... There are, however, circumstances that are so likely to prejudice the accused thatthe 

### cost of litigatingtheir effect in a particular case is unjustified. Most obvious, ofcourse, is the complete denial ofcounsel. The presumption that counsel's assistance is essential requires us to conclude 

### that a trial is unfair ifthe accused is denied counsel at a critical stage of his trial. Similarly, ifcounsel entirely fails to subjectthe prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth 

### Amendment rights that makes the adversary process itselfpresumptively unreliable.
. .. 

### Circumstances ofthat magnitude may be present on some occasions when although counsel is available to assistthe accused during trial, the likelihood that any lawyer, even a fullycompetent one, could 

### provide effective assistance is so small that a presumption ofprejudice is 

### appropriatewithoutinquiry into the actual conductofthetrial.[32] Here, Nguyen fails to demonstrate a complete denial ofassistance by counsel,


### nor does he demonstrate that his case presented circumstances underwhich no fully competent lawyercould provide effective assistance. Because Nguyen fails to demonstrate a total deprivation ofthe right to counsel, his argumentthat structural error relieves him ofthe requirementto show prejudice is not persuasive. 

### Nguyen fails to persuasively argue that he was, in fact, prejudiced bythe trial court's denial ofhis motions for continuance. Rather, the circumstances indicate that he received effective assistance. Kitching was appointed for a limited role, and was given approximately one month to prepare for a motion hearing. He was provided a transcript


### 32466U.S. 648,658-60 &n.25, 104S. Ct. 2039, 80L. Ed. 2d 657 (1984) (footnotes omitted) (citations omitted) (The United States Supreme Court "has uniformly found constitutional errorwithout any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage ofthe proceeding.").

14No. 68408-6-1/15 

### ofthe plea colloquy, and was provided additional funds to allow an expertto assess Nguyen's mental health. Kitching interviewed Nguyen and Nguyen's trial counsel. Based on his investigation, Kitching forcefully advocated on Nguyen's behalf, arguing that Nguyen did not understand his plea because he was tired and stressed, potentially suffered from posttraumatic stress disorder, and may have been furnished inadequate translation services. Although the trial court rejected these arguments based on its evaluation ofthe evidence, the record reveals neither a total deprivation ofthe right to 

### counsel noridentifiable prejudicetoNguyen.33 Tothe extentthatNguyen relies on the declaration of Professor laria to establish prejudice, such reliance is misplaced. The declaration is nonspecific as to the particularfacts of Nguyen's case that generate identifiable concerns. Nguyen fails to demonstrate that the trial court's denial of his motion for continuance was an abuse of discretion. Nguyen also fails to persuasively argue that he received ineffective assistance of counsel. The Sixth Amendment to the United States Constitution and article I, section 

### 22 oftheWashington Constitution guaranteetherighttoeffective representation.34 To demonstrate ineffective assistance ofcounsel, Nguyen must show (1) counsel's 

### performance was objectively unreasonable; and (2) the deficient performance 

### prejudiced his defense.35 Failuretoestablish eitherpartdefeats theineffective
assistance of counsel claim.



### 33 See State v. Harrell. 80Wn. App. 802, 804, 911 P.2d 1034 (1996); United States v. Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004). 

### 34 State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). 

### 35 State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1984) (quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 LEd.2d 674 (1984)).

15No. 68408-6-1/16 

### Nguyen contends Kitching was unable to advise Nguyen whetherwithdrawing his plea was an intelligentcourse of action. But this was not Kitching's role. Kitching was required to demonstrate that Nguyen's motion to withdraw his plea had a basis infact 

### beyond Nguyen's self-serving allegations. Additionally, Nguyen's proposed standard would necessarily require lengthy continuances any time there was a large volume of discovery and new counsel was appointed to represent a defendant who has moved to withdraw a guilty plea. Without regard to whetherthere is any substance to the motion 

### to withdraw, new counsel is not necessarily obligated to engage in an exhaustive review in orderto represent the defendant on the motion to withdraw the plea. Further, Nguyen makes no showing that he is inany worse position for having pursued the motion. Because Nguyen fails to demonstrate either any error by Kitching or any resulting prejudice, he fails to demonstrate a basis for appellate relief. Affirmed.

WE CONCUR: 

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