### FILED DECEMBER 6, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. JOHNATHONMICHAEL FLORES, Appellant. ) ) ) ) ) ) ) ) ) No. 32507-5-111

OPINION PUBLISHED INPART

KORSMO,J. -JohnathonFlores appeals his convictions for first degree assault and first degree robbery, primarily arguing thathewas constructively denied counsel becausehis appointed attorney did nothave the requisite experience underthe standards for indigent defense (SID). We conclude inthepublishedportion ofthis opinionthat a violation ofthe SID is evidence ofdeficientperformance to be considered in assessing an ineffective assistance ofcounsel challenge and does not constitute a denial ofcounsel. In the unpublishedportion, we concludethattrial counsel'sperformance, while deficient,
was not ineffective. The convictions are affirmed. FACTS Mr. Flores, his half-brotherJesse Flores, andhis half-sisterFaithFlores, confrontedJeffrey Weitman in the home ofSandraMcCorkle in OmakonMay 16,No. 32507-5-111 State v. Flores
2013. 1 Weitman, age 34, had been dating Mccorkle, age 63, for a decade. The previous day, Faith Flores had gotten into an altercation with Weitman at the residence ofher friend Mccorkle overthe beliefthat Weitman was contacting another woman via Facebook. Faithtelephoned herbrother Johnathon in Spokane, and hadthe two men speak. Johnathon told Weitman, a former high school classmate, that he would be comingto talk to him. Despite being restricted to staying in Spokane County by the terms ofan earlier judgment and sentence, Johnathon traveled to Omakto assist in dealing with Weitman. On the 16th, Weitman called McCorkle and receivedpermission to borrow some lawn equipment. He drove to the house, entered it, and proceeded to the kitchen. There he
was confronted by the three Flores siblings. Jesse Flores was armed with aknife that he displayed at somepoint early in the encounter. The three Flores family members demanded that Weitman empty his pockets in orderto discover and return any items stolen from McCorkle. Weitman put his wallet, $80, keys, and an MP3 player in a basket nearthe door. Faith Flores then escorted Ms. McCorkle to anotherroom. At some pointthereafter, an altercationtookplace and Jesse Flores stabbed Weitman. The three Flores siblings fled, splitting up briefly before

1Jesse Flores and Faith Flores are not related to each other, butboth are halfsiblings to Johnathon Flores. Johnathon and Faith share the same mother, while Jesse and Johnathon share the same father. Because all three share the same surname, we will occasionally refer to them by first name for purposes ofclarity. 2No. 32507-5-III State v. Flores meetingtogether later. Theytook the $80; Weitman's keys endedup in the freezer and his cell phone on the floor by the door. All three were eventually charged in Okanogan County Superior Courtwith varying robbery and assault charges. Jesse Florespleaded guilty, while Faith Flores reached a plea deal that required her to testify against herbrother. Johnathon, charged with first degree robbery and first degree assault, both alleged to have been committed with a deadly weapon, electedto take his case to trial. Thetrial court appointedthe Okanogan County contract indigent defenderto represent Johnathon Flores. The law office ofMacDougall & Princeheld the indigent defender contract for the county. Clerk's Papers (CP) at 156. That office soon thereafter assigned EmmaPaulsento represent Johnathon Flores. She filed a notice ofappearance dated June 6, 2013. CP at 155. Ms. Paulsenrepresented Johnathon Flores until withdrawing five months later. When Ms. Paulsen withdrew, MubarakRaheem substituted as counsel for Johnathon Flores. CP at 154. The contact address Mr. Raheem filed withthe court was different than that ofthe MacDougall firm. CP at 154, 156. Duringthe litigation, Mr. Raheem filed documents with the court on pleadingpaperbearinghis office's name and address,
as well as on pleadingpaper from the MacDougall & Prince firm. Mr. Raheemprovidedthe sole representation for Mr. Flores in front ofthejury. FaithFlores testified for the prosecution, as didMr. Weitman, Ms. Mccorkle, and several law enforcement officers. Jesse Flores was the sole witness to testify for the defense. 3No. 32507-5-III State v. Flores
Weitman testified that he was assaulted by the two Flores brothers and was stabbed by Jesse. Defense counsel questioned Weitman abouthis telephone conversation with Johnathon, confirming that Johnathon hadbeen calm and had notthreatened him. Cross-examination also developed that Weitman weighed around 350 pounds and was five inches taller and more than 200 pounds heavier than Jesse. Weitman was not asked about his statement to a defense investigator or whetherhe had conversations with Johnathon Flores' wife. Faith Flores testifiedthat she called both ofthe brothers and asked for theirhelp with Weitman. Although she did nottell them what to do, she wanted them to beat Weitman up for disrespecting her and also regain checks belongingto McCorkle. She had McCorkle tell Weitman that the Flores siblings were not present, and then the three of them hid in the house in anticipation ofWeitman's arrival. Defense counsel impeached Faith with the terms ofherplea agreementthat called for herto spend 25 months in prison for robbery. She also admittedthat she had planned to take Weitman's car. Mccorkletestified that she witnessed the three Flores siblings corner Weitman in the kitchen. Faith walked her out ofthe kitchen afterJesse had stepped on McCorkle's foot, causing herpain. She had not wanted anyone to get hurt, butknew something had happened by the sound ofbreaking glass. The defense called Jesse Flores to testify. He admitted responsibility for stabbing Weitman and denied thatthe others had known or expectedthathe would do so. He also 4No. 32507-5-III State v. Flores
claimed responsibility for taking Weitman'sproperty. He toldthejurythat Johnathon had only come to talk to Weitman and was not involved in the altercation ortheft. The stabbing occurred when Weitman tried to escapeby fighting his way pastJesse. Defense counsel then sought to call the defense investigator concerning his interview with Weitman. The trial court sustained the prosecutor's objectionto calling the witness. on the basis that no foundation had been established to impeach Weitman since he had never been asked about the interview. A similar objectionwas sustained concerning any testimony from Michaela Flores, the defendant's wife, about conversations between her and Weitman. Defense counsel then soughtto recall Weitman to the stand to set a foundation for impeaching him. The trial court again sustainedthe prosecutor's objection, noting that Weitman had been excused and had not been on the defense witness list. In closing argument, the defense argued that Johnathon was an innocentbystander who had only traveled to Okanogan to talkto Weitman about the way he treated Faith Flores. Ms. Flores, the chiefinstigator ofthe confrontation, had beenpursuing her own agenda and had notrecruited Jonathon for criminal activity. Thejury did not acceptthe argument and, instead, found Johnathon Flores guilty ofboth crimes and the accompanying deadly weapon allegations. Mr. Raheem filed a motion for a new trial, focusing on allegedjurormisconduct, late disclosure ofevidence, and the court's refusal to recall Weitman to the stand. Ms. 5No. 32507-5-III State v. Flores MacDougall appeared with Mr. Raheem for the post-trial hearings and argued the new trial motion. The court stood by its original ruling concerning Weitman's testimony and the court denied the motion. Mr. Raheem represented Mr. Flores at sentencing. The court imposed concurrent standard range sentences. Mr. Flores then timely appealed to this court. Subsequently, Mr. Raheem's qualifications to try this case were put at issue. In an affidavit, he alleged that he was not qualified because, while he had tried three felony cases to ajury, he did not have sufficientpractice experience.2 The appellate record was also supplemented with his certifications ofSID compliance during the 2013 calendaryear. We granted the motion ofThe Defender Initiative to file an amicus curiae brief. A panel subsequently heard oral argument. ANALYSIS As indicatedpreviously, the sole issue we consider in the publishedportion ofthis opinion is a contention, raised both by Mr. Flores and the amicus, that appellant was constructively denied his constitutional right to counsel because Mr. Raheem did n_ot satisfy the requirements ofthe SID at the time oftrial. We considerthe ineffective

2 Atthe time ofappointment, Mr. Raheem had been admittedto the bar for more than two years. While the affidavit does not explain why he did not satisfy the time of practice requirement, appellate counsel clarified at argument that Mr. Raheem did not practice law during that entire period. 6No. 32507-5-111 State v. Flores
assistance argument and challenges to the sentence in the unpublishedportion ofthis opm1on. The SID were adopted effective October 1, 2012. With one notable exception, the standards at issue here werepart ofthat original adoption. Standard 14 deals with the qualifications ofattorneys. Standard 14.1 provides: Standard 14.1. In orderto assure that indigent accused receive the effective assistance ofcounsel to which they are constitutionally entitled, attorneys providing defense services shall meetthe following minimum professional qualifications: A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and B. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to theirpractice area; and C. Be familiar with the Washington Rules ofProfessional Conduct; and D. Be familiar withthe Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association; and E. Be familiar with the consequences ofa conviction or adjudication, including possible immigration consequences and the possibility ofcivil commitmentproceedings based on a criminal conviction; and F. Be familiar with mental health issues and be able to identify the needto obtain expert services; and G. Complete seven hours ofcontinuing legal educationwithin each calendaryear in courses relating to theirpublic defense practice.

7No. 32507-5-III State v. Flores
Also at issue is Standard 14.2 B. B. Adult Felony Cases-Class A. Each attorney representing a defendant accused ofa Class A felony as defined in RCW 9A.20.020 shall meet the following requirements:
1. The minimumrequirements set forth in Section 1; and
11. Either:
a. has servedtwo years as a prosecutor; or b. has served two years as a public defender; or two years in a private criminal practice; and iii. Has beentrial counsel alone orwith other counsel and handled a significantportion ofthe trial in three felony cases thathavebeen submitted to ajury. CrR 3.l(d)(4) states: Before appointing a lawyer for an indigent person, or at the first appearance ofthe lawyer in the case, the court shall require the lawyer to certify to the courtthat he or she complies with the applicable Standards for Indigent Defense Services to be approved by the Supreme Court. In turn, the SID provides a sample certification form. The version adopted in 2013 reads: CERTIFICATION OF COMPLIANCE For criminal and juvenile offender cases, a signed Certification of Compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel. The certification mustbe in substantially the following form:

8No. 32507-5-111 State v. Flores
SEPARATE CERTIFICATION FORM [ ] SUPERIOR COURT [ ) JUVENILE DEPARTMENT [ ] DISTRICT COURT [ ] MUNICIPAL COURT FOR [ ] CITY OF [ ) COUNTY OF-------- STATE OFWASHINGTON CERTIFICATION BY: [NAME], [WSBA#] FOR THE: [1sr,2No, 3RD, 4TH] CALENDAR QUARTER OF [YEAR] The undersigned attorney hereby certifies: [ ]No.:
_____ _ [ ] Administrative Filing

CERTIFICATION OF APPOINTED COUNSEL OF COMPLIANCE WITH STANDARDS REQUIRED BYCRR 3.1 / CRRLJ 3.1 /JuCR9.2

1. Approximately
__ % ofmytotal practice time is devotedto indigent defense cases. 2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointedto represent indigentpersons and that: a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard 14.1. b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adequate telephone services to ensure prompt response to client contact, in compliance with Standard 5.2. c. Investigators: I have investigators available to me and will use investigative services as appropriate, in compliance with Standard 6.1. d. Caseload: I will comply with Standard 3.2 during representation ofthe defendant in my cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective January 1, 2015 for misdemeanor caseloads: I should not accept a greater number ofcases (or a proportional mix ofdifferent case types) than specified in Standard 3.4, prorated ifthe amount oftime spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in myjurisdiction.] e. Case Specific Qualifications: I am familiar with the specific case qualifications in Standard 14.2, Sections B-K and will not accept appointment in a case as lead counsel unless Imeetthe qualifications for that case. [Effective October 1, 2013]
Signature, WSBA# Date

9No. 32507-5-111 State v. Flores
The certifications filed by Mr. Raheem during this timeperiod did not include subparagraph 2.e adopted in 2013, but instead used the certification form adopted in 2012 that included only the paragraphs listed in 2.athrough 2.d. CP at 184-186. Mr. Flores and amicus argue that Mr. Raheem was not acting as counsel underthe Sixth Amendment to the United States Constitutionbecause he did not satisfy the two yearpractice requirement before undertaking representation in this case. The authorities do not support their argument. The Washington Supreme Court has the authority to promulgaterules that create procedural, but not substantive, rights. State v. Templeton, 148 Wn.2d 193, 212, 59 P.3d 632 (2002). Courts interpret courtrules the same way they do statutes, usingthe tools of statutory construction. State v. Hawkins, 181 Wn.2d 170,183,332P.3d 408 (2014). Questions ofstatutory interpretation are reviewed de novo. State v. Bradshaw, 152 Wn.2d 528,531, 98 P.3d 1190 (2004). A courtbegins by looking at the plain meaning of the rule as expressed through the words themselves. Tesoro Ref & Mktg. Co. v. Dep't of Revenue, 164 Wn.2d 310, 317, 190 P.3d 28 (2008). Ifthe meaning is plain on its face, the court applies the plain meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Only ifthe language is ambiguous does the court lookto aids of construction. Id. at 110-11. A provision is ambiguous ifit is reasonably subjectto multiple interpretations. State v. Engel, 166 Wn.2d 572, 579, 210 P.3d 1007 (2009). None ofthe provisions at issue here are ambiguous. 10No. 32507-5-III State v. Flores
Whether it was error for Mr. Raheem to undertake the representation in this case is
a question we cannot answer on this record. CrR 3.1(d)(4) requires the courtto require certificationby counsel eitherprior to appointment orwhen counsel appears in a case. Here, the court appointed MacDougall & Prince. No questions have beenraised concerning their certifications. However, there was no certificationby Mr. Raheem accompanying his appearance. Whetherthat is a violation ofthe rule ornot is dependent
on facts not in this record. The relationship between Okanogan County's indigent contract defender and appointees such as Mr. Raheem has not been explained. Some of the documents filed by Mr. Raheem were on his ownpleadingpaper and others were on MacDougall & Prince pleading paper, making it appearthat he was an employee ofthe firm or working undertheir direction. Similarly, whether MacDougall & Prince were expected to have a role in trial is anotherundeveloped fact. 3 The presence ofMs. MacDougall in the post-trial motions suggests that her firm may have retained the original appointmentto represent Mr. Flores. Since their role in this case is an unknown factor, we simply cannot say thatthe court erred by not requiring Mr. Raheem to certify his compliance with the SID upon appearing in the case. Nonetheless, we recommend that any counsel appearing on behalfofan indigent criminal defendant certify in the

3WhetherMacDougall & Prince assisted during the trial is yet another undeveloped fact. We therefore do nothave to address the thorny question ofwhether assistance would require presence ofan experienced attorney in the courtroom, or whetherremote assistance is sufficient. 11No. 32507-5-III State v. Flores
appearance or substitution form that he or she is qualified under Standard 14.2 to undertake the representation.4 The immediate problemhere is thatMr. Raheem represented Mr. Flores when he did nothave the two years ofcriminal practice experience required by Standard 14.2 B.5 As noted, the contention is that Mr. Raheem was not "counsel"within the meaning ofthe Sixth Amendment guarantee, leaving no need for Mr. Flores to establish thathe somehow
was prejudiced by Mr. Raheem's representation. Compare, Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

### L. Ed. 2d 674 (1984). This situation, however, is a far cry from the circumstances where a legal representative was deemed not to be counsel. The primary Washington case is City of Seattle v. Ratliff, 100 Wn.2d 212, 667 P.2d 630 (1983). There a law student, working as a rule 96 intern, was ordered by the trial courtto represent a defendant without the presence ofhis supervising attorney and without having any opportunity to prepare the case. Id. at 214. The Washington Supreme Court noted that "counsel" underthe state and federal constitutions was a

4Anotherpotential problem would be an amendment ofexisting charges to more serious ones that appointed counsel might not be qualifiedto handle. The trial court might wantto consider the qualifications issue at the time ofarraigning the defendant on the amended information. 5 While the parties also argue aboutMr. Raheem's compliance certificate, that document is oflittle consequence. The missingparagraph simply certifies that counsel was aware ofthe requirements ofStandard 14.2, a fact not in question here, and certifies he will not accept future cases for which he is not qualified. 

### It does not speak to whether or not counsel has done so in the past or in a current case. 6 APR 9. 12No. 32507-5-III State v. Flores
person "authorized by the courts to practice law." 

### Id. at 217. To that end, it recognized both that attorneys and properly supervised rule 9 interns satisfied constitutional standards. 

### Id. at 217-18. The convictions were reversed because the intern representing Mr. Ratliffwas prevented from complying withthe requirements ofAPR9. 

### Id. at 218- 21. The intern did not attain the status of"counsel" in that circumstance and reversal was mandated without need to showprejudice. 

### Id. at 221. Mr. Flores argues that Mr. Raheem should be equatedwiththe intern inRatliff and not considered counsel under the Sixth Amendment, with the SID treated similarly to APR9. ExtendingRatliff in that manner would actually putthis court in conflictwith Ratliff There the court expressly defined constitutional "counsel" as a person authorized to practice law. 

### Id. at 217. There simply is no rule history or subsequent case law suggesting that the court intended the adoption ofStandard 14.2 to redefine the constitutional meaning of"counsel." Our courthas at least twice considered criminal defense standards in recent years. The first instance was State v. A.NJ., 168 Wn.2d 91, 225 P.3d 956 (2010). There the Washington Defender Standards, although not adopted by the court, were argued by the defendant on appeal. 

### Id. at 109-10. Although acknowledging that "professional standards do not establish minimum Sixth Amendment standards," the court still found them "useful to courts in evaluating things like effective assistance ofcounsel." 

### Id. at 110. The courtthen detailed the proper use ofthe standards: 13No. 32507-5-III 

### State v. Flores

Id. 7 While we do not adopt the WDA 

### Standardsfor PublicDefense Services, we hold they, and certainly the bar association's standards, may be considered with other evidence concerning the effective assistance of counsel.

The issue ofprofessional standards was revisited in

### In re Pers. Restraintof Gomez, 180 Wn.2d 337,325 P.3d 142 (2014). 8 The court's analysis was blunt: Prevailing professional standards may serve as guides for determining what is reasonable but may not serve as a checklist for evaluating attorney performance. 

### Id. at 351 (citing 

### Strickland, 466 U.S. at 688-689). In a footnote to that statement, the court quoted

### A.NJ.: "This courthas previously concluded that 'professional standards are evidence ofwhat should be done, no more."' 

### Id. at 351 n.3 (quoting 168 Wn.2d at 113)7 In light ofthis history, we conclude that the adoption ofthe SID did not redefine what constitutes counsel under the Sixth Amendment. As in 

### Gomez and

### A.NJ., we hold that violation ofthe SID is 

### evidence ofineffective assistance ofcounsel. It is not a categorical denial ofcounsel. To do anything else is to impose a higher standard of representation for indigent defendants than the Sixth Amendmentrequires for retained

7

### A.NJ. also held that a public defense contract thatrequired the attorney to fund experts out ofthe fees paid counsel "maybe considered as evidence ofineffective assistance ofcounsel." 

### Id. at 112. 8 Because the SID had not been adopted at the time ofthe 

### Gomez trial, the court declined to apply them to the evaluation ofcounsel's experience. 180 Wn.2d at 351 n.2.
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### State v. 

### Flores
counsel. 9 Here, even ifMr. Raheem had committed no errors at all, or had achieved an acquittal on all counts save some uncontested misdemeanor charge, Mr. Flores would still receive a new trial due to noncompliance with Standard 14.2. Such an outcomeplaces the rule above that it is supposed to effectuate. On the same day that it decided

### Strickland, the United States Supreme Court issued 

### UnitedStates v. 

### Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). There the court overturned a court ofappeals standard that had focused on the attorney's experience and case complexity rather than attorney performance. Itnoted: That conclusion is not undermined by the fact thatrespondent's lawyer was young, that his principal practice was in real estate, orthatthis was his firstjurytrial. Every experienced criminal defense attorney once tried his first criminal case.... The character ofa particular lawyer's experience may shed light in an evaluation ofhis actual performance, but it does notjustify a presumption ofineffectiveness in the absence ofsuch an evaluation. 

### Id. at 665. We concur. Although we reject the per se argumentthat Mr. Flores presents in this appeal, we
are troubled by whattookplace here. Itappears that Mr. Raheem never calledthe problem to the attention ofthe trialjudge, the person chargedwith ensuring compliance with the standards, even though he talked to two experienced attorneys at MacDougall &

9 IfMr. Raheem had beenretained rather than appointed, the sole issue would be whetherhe had satisfied his Sixth Amendment obligations under

### Strickland,just as it would be with any other criminal defense attorney. The SID address one group of attorneys, not all whoperform criminal defense. 15No. 32507-5-III State v. Flores
Prince abouthis noncompliance during the trial. 10 Ifalerted, the court couldhave taken efforts to assure compliance with the standards, whetherthat amounted to requiring an attorney to appear and assist with trial ordeclaring a mistrial. Keeping the trialjudge in the dark and holding the argument for appeal is not acceptable. No remedy is provided in the SID for violation ofthe standards set forth therein. This omission suggests thatthe remedy for violations ofthe standards rests with the disciplinary process. Whetherthere was a violation ofthe Rules ofProfessional Conduct is a question that only an appropriate investigation can answer. We do not opine on it. Affirmed. A majority ofthe panel having determined that only the foregoing portion ofthis opinion will be printed in the Washington Appellate Reports andthat the remainder havingno precedential value shall be filed for public recordpursuantto RCW 2.06.040, it is so ordered. We address next Mr. Flores' ineffective assistance ofcounsel claim, followed by a rather summary treatment ofthe remaining issues thatpresent challenges to various portions ofthejudgment and sentence.

10 Equally troubling is the indication that Mr. Raheem also spoke during trial with attorneys otherthan MacDougall & Prince seeking advice concerninghis situation, but neverpresented the issue to thejudge. 16No. 32507-5-III State v. Flores IneffectiveAssistance The standards governing adequacy ofcounsel under the SixthAmendment have been settled since Strickland. The Sixth Amendment guaranty ofthe rightto counsel requires that an attorney perform to the standards ofthe profession. Counsel's failure to live up to those standards will require a newtrial when the client has beenprejudicedby the failure. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland, 466 U.S. at 689-91. To prevail on a claim ofineffective assistance, the defendantmust show both that his counsel erred and that the error was so significant, in light ofthe entire trial record, that it deprived him ofa fair trial. Id. at 690-92. Here, Mr. Flores argues thathis counsel erred in several ways, including thathe did not challenge leading questions and possible hearsay, did not objectto testimony about the arrest ofJesse Flores, and failed to properly impeach Weitman. All butthe last category can be answered summarily. While we do not agree that all ofthe questions cited in the briefwere leading or called for hearsay responses, none ofthe challenged inquiries led to the admission ofotherwise inadmissible evidence. A timely objection may have led to the rewording ofa question or an answer, but it would have done nothing to preventthe ultimate admission ofthe testimony in question. This is a matter ofstyle, not substance. No error in the admission ofevidence has been demonstrated. 17No. 32507-5-III State v. Flores Similarly, counsel did not errby failing to objectto the fact that Jesse Flores was found in possession ofknives at the time ofhis arrest. The evidence was relevant-Johnathonwas accused ofacting in concertwith Jesse, who was alleged to have stabbed Weitman. The fact that Jesse was arrested with knives similarto the one displayed during the assault was highly relevant evidence. However, Mr. Raheem did err in his efforts to impeach Weitman. He failed to ask the witness about the prior statements. This was an elemental error. See ER613(b). If asked, Weitman might have agreed thathe made the contrary statements and obviated the need to call any impeachmentwitnesses. This was a failure to perform to the standards ofthe profession. State v. Horton, 116 Wn. App. 909, 916-17, 68 P.3d 1145 (2003). 11 The remaining Stricklandquestion is whetherthis errorprejudicedMr. Flores so significantly that he was denied a fair trial. We conclude that the prejudice was notthat
severe. The defense investigator was only going to be asked ifWeitman had told him he believed Mccorkle still was present when the knife was first displayed. This pointwas oflittle moment. MichaelaFlores, the defendant's wife, was expected to testify that Weitman had denied that Johnathon had done anything. Although that information would have some value to impeach Weitman, he had already explained to thejurythat he

11 As observed in Cronic, Mr. Raheem's lack ofexperience is a likely source of this error. The SID violation supports the conclusion that counsel made a mistake due to lack ofknowledge. 18No. 32507-5-111 State v. Flores
had told MichaelaFlores he would not testify in orderto "puther off' after she had asked him to not testify. Report ofProceedings at 204. In otherwords, Weitmantold Michaela Flores, already a suspectwitness due to her marriage to the defendant and herpersistent efforts to talk to the victim, whatever she wanted to hear. While undoubtedly the information would havebeenuseful for the defense, it was not so significantthatwe believe the verdict would have changed. Weitmanhad already been impeached with other minor inconsistencies in his testimony and his prior attempted vehicle theft conviction. The testimony ofMichaelaFlores wouldhave added little. We conclude that although Mr. Flores has demonstrated that his counsel erred, he has not demonstrated thatthe error rendered his trial unfair. Although deficient, counsel'sperformance was not ineffective. SentencingIssues Mr. Flores also raises a number ofclaims relating to thejudgment and sentence form. All ofthese claims have beenthe subject ofnumerous recent opinions and are treated summarily here. He first contends that the trial court erred by failing to conductthe necessary statutory inquiry before imposing discretionary legal financial obligations (LFOs). See State v. Blazina, 182 Wn.2d 827,344P.3d 680 (2015). However, the discretionary LFOs

19No. 32507-5-111 State v. Flores

amount to only $60.40. The other $800 in LFOs imposed by the courts are mandatory assessments. 12 We decline to considerthis claim. Id. at 833-34. Mr. Flores argues that his due process and equal protectionrights were violated when the court imposed the DNA collection fee, and that he should not have been ordered to provide an additional DNA sample. As to the claim that his due process rights
were violated by imposition ofthe DNA collection fee, Mr. Flores can pointto no facts in the record suggesting he cannotpay the $100 fee. This alleged errortherefore is not manifest and we decline to review it. RAP 2.5(a)(3); State v. Lewis, 194 Wn. App. 709, 715,379 P.3d 129 (2016); State v. Shelton, 194 Wn. App. 660, 674-75, 378 P.3d 230 (2016); State v. Stoddard, 192 Wn. App. 222,366 P.3d 474 (2016). The equal protection argument fares no better. Although it states a reviewable constitutional claim, it does not have any merit, in large partbecause there is no factual basis to establish that anyone was negatively impacted by the classification. Lewis, 194 Wn. App. at 715-20; State v. Johnson, 194 Wn. App. 304, 374 P.3d 1206 (2016); State v. Mathers, 193 Wn. App. 913, 376 P.3d 1163 (2016). Mr. Flores next contends that he should not have to provide an additional DNA sample. However, the record does not contain any evidence indicating whetherhe has

12 We note that these sums total $860.40, but thejudgment and sentence lists the tally as $1,110.50. The trial court is directed to revise thejudgmentto reflectthe proper amount. The defendant need not be present. 20 

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done so in the past. Accordingly, there is no basis for relief. Lewis, 194 Wn. App. at 720-21. Thejudgment and sentence is affirmed.

WE CONCUR:



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