^'0 HI ,. | u I

l".'i l£- o>

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

NEILGAURANGJHAVERI,

Appellant.

No. 73602-7-1

(consolidated with 73603-5-1

73604-3-1 & 73605-1-1)

DIVISION ONE

UNPUBLISHED OPINION

FILED: April 18, 2016

Becker, J. —Appellant Neil Jhaveri claims defense counsel provided

ineffective assistance. We affirm.

Jhaveri pleaded guilty under four separate cause numbers to four drug

charges. Two counts were for possessing a controlled substance; two counts

were for possessing a controlled substance with intent to deliver. In exchange for

the guilty plea, the State agreed not to file additional charges and to recommend

a low-end standard range sentence of 20 months' confinement with an additional

12 months of community supervision. The trial court accepted the plea and

sentenced Jhaveri in accordance with the State's recommendation.

Jhaveri first claims he received ineffective assistance with respect to two

of the convictions: one count of possession and one count of possession with

intent to deliver. As to these crimes, the affidavits of probable cause supply the

only facts in the record.
No. 73602-7-1/2

The possession charge arose from an incident on March 25, 2014.

Jhaveri was arrested for driving under the influence. An officer observed

behavior by Jhaveri consistent with the use of heroin. A canine unit was called to

assist. Outside the car, the dog alerted to the odor of narcotics. Police obtained

a warrant to search the car and found Jhaveri's wallet and a chunk of tar heroin

with a digital scale.

The charge of possession with intent to deliver arose from an incident on

January 13, 2015. The same officer observed the occupants of two parked cars

engaging in activity consistent with the sale of drugs. After one car left, the

officer walked up to the other car. He recognized Jhaveri, who was the driver.

Again, the officer observed signs that Jhaveri was using heroin. For example, a

cut straw was on the console near the gearshift with one end melted as if used to

smoke heroin. A canine unit was called to assist. Outside the car, the dog

alerted to the odor of narcotics. The officer arrested Jhaveri and obtained a

warrant to search the car. Inside, he found heroin, methamphetamine, and a

digital scale and baggies.

Jhaveri claims that trial counsel was ineffective for failing to recognize that

each charge was based on evidence produced by unlawful search and seizure.

He contends both convictions should be reversed because of counsel's failure to

advise him that the evidence could have been suppressed and the charges

dismissed.

To establish that counsel was ineffective, Jhaveri must show that counsel's

conduct was deficient and that the deficient performance resulted in prejudice.
No. 73602-7-1/3

State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). Courts engage in a

strong presumption that representation was effective. State v. McFarland. 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish deficient representation,

Jhaveri must demonstrate that the representation fell below an objective

standard of reasonableness based on all the circumstances. Nichols. 161 Wn.2d

at 8. "The burden is on a defendant alleging ineffective assistance of counsel to

show deficient representation based on the record established in the proceedings

below." McFarland, 127 Wn.2d at 335.

The State argues that Jhaveri is essentially asking this court to assume

that because he pleaded guilty, he must have been advised that the evidence

was not subject to suppression. The State further argues that there is no basis

for this assumption in the record. We agree. The record contains no information

about how trial counsel evaluated the evidence, what conclusions he drew about

the lawfulness of the searches, or what advice he gave Jhaveri. We cannot

conclude on this record that counsel's performance was deficient.

The record is also insufficient to allow us to conclude that Jhaveri was

prejudiced by the alleged failure ofcounsel to recognize a possible basis for

suppression. "Prejudice is established if the defendant shows thatthere is a

reasonable probability that, butfor counsel's unprofessional errors, the outcome

ofthe proceeding would have been different." Nichols, 161 Wn.2d at 8. The

State agreed to drop other charges as partofthe plea agreement. If the

evidence had been suppressed forthe two charges at issue, it is possible that
No. 73602-7-1/4

other charges would have taken their place, producing the same offender score

for Jhaveri and the same sentence.

Also, an attorney who fails to bring a motion to suppress will be deemed

ineffective only if it appears that the motion would have succeeded. State v.

Meckelson, 133 Wn. App. 431, 436, 135 P.3d 991 (2006), review denied, 159

Wn.2d 1013 (2007). The record is inadequate to allow us to determine that

motions to suppress would have been successful. The affidavits supporting the

search warrants are not in the record. They may have contained information

beyond what is in the affidavits of probable cause. And it is not clear that the

motions to suppress would have been successful on the merits. Both searches

were conducted pursuant to warrants, not as searches incident to arrest. Jhaveri

claims that using a dog to sniff the exterior of a vehicle was an unlawful search,

but this court has held that such a practice is not a search. State v. Hartzell, 156

Wn. App. 918, 929, 237 P.3d 928 (2010). For the first time in his reply brief,

Jhaveri contends the warrants should never have been issued because they

resulted from prolonged detentions that amount to illegal arrests. Again, the

record is insufficient to permit evaluation of this claim. We conclude Jhaveri fails

to establish prejudice.

Jhaveri's second claim of ineffective assistance is that trial counsel was

responsible for the fact that Jhaveri did not receive a drug offender sentencing

alternative. Jhaveri also characterizes this claim as a sentencing error by the

trial court.
No. 73602-7-1/5

Atsentencing, Jhaveri acknowledged that he had a drug problem, and he

told the court he would like to be sentenced in a way that would allow him to get

treatment and be monitored. The court explained that an alternative drug

sentence would entail 20 months in custody and 20 months under community

supervision. The court also explained that ifJhaveri violated the requirements of

the alternative sentence, he could potentially serve all 40 months in confinement.

At defense counsel's request, the court allowed a short recess. Afterwards,

counsel informed the court that Jhaveri wanted to accept the State's

recommendation of a straight 20 months with 12 months of community

supervision. Jhaveri confirmed that was correct.

Jhaveri has not established that counsel's assistance in this matter was

ineffective. Jhaveri contends that he "blindly" agreed with counsel to accept the

straight time rather than the alternative sentence, but there is no information in

the record that would allow this court to conclude Jhaveri was misled or coerced.

To the contrary, after consulting with counsel, Jhaveri confirmed that he preferred

a nontreatment standard range sentence. As the State argues, the doctrine of

invited error prohibits a party from setting up an error in the trial court and then

arguing that itshould be reviewed on appeal. See In re Pers. Restraint of

Breedlove, 138 Wn.2d 298, 312, 979 P.2d 417 (1999).

As a general rule, a trial judge's decision whether to grant a drug offender

sentencing alternative is not reviewable. State v. Grayson, 154 Wn.2d 333, 338,

111 P.3d 1183 (2005). "However, an offender may always challenge the
No. 73602-7-1/6

procedure by which a sentence was imposed." Grayson, 154 Wn.2d at 338.

Jhaveri has not established that the court committed procedural error.

Affirmed.

fS^frgpje,

WE CONCUR:

~7~^V| c/Uq ni A" l>l