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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### (consolidated with 73603-5-1 73604-3-1 &73605-1-1) DIVISION ONE UNPUBLISHED OPINION FILED: April 18, 2016 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 claimsdefense counsel provided ineffective assistance. We affirm. 

### Jhaveri pleaded guilty under fourseparate cause numbers to four drug 

### charges. Two counts were forpossessing a controlled substance; two counts 

### werefor possessing a controlled substance with intenttodeliver. In exchangefor 

### theguilty plea, the State agreednottofile additional charges and torecommend a low-end standard range sentence of 20 months'confinementwith an additional 12months ofcommunity supervision. The trial courtaccepted the plea and sentenced Jhaveri in accordance with the State's recommendation. Jhaveri first claims he received ineffective assistance with respectto two 

### of the convictions: one count ofpossession and one count ofpossession with intent to deliver. As to these crimes, the affidavits ofprobable cause supply the only facts inthe record.No. 73602-7-1/2 

### The possession charge arose from an incident on March 25, 2014. Jhaveri was arrested for driving underthe influence. An officerobserved behavior by Jhaveri consistentwith the use ofheroin. Acanine unit was called to 

### assist. Outside the car, the dog alerted to the odor ofnarcotics. Police obtained

a warrant to search the car and found Jhaveri's wallet and a chunk oftar 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 consistentwith the sale ofdrugs. After one car left, the officerwalked 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 nearthe gearshift with one end melted as ifused to smoke heroin. Acanine 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 thattrial 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 ofcounsel'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 thatthe 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 thatthe 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 ofcounsel to 

### show deficient representation based on the recordestablished in the proceedings below." McFarland, 127 Wn.2d at 335. 

### The State argues thatJhaveri is essentially asking this court to assume 

### thatbecause he pleaded guilty, he must have been advised that the evidence 

### was not subject to suppression. The Statefurther argues that there is no basis forthisassumption in the record. We agree. Therecord contains noinformation about how trial counsel evaluated the evidence, what conclusions he drew about the lawfulness ofthe searches, or what advice he gave Jhaveri. We cannot 

### conclude on this record that counsel's performance was deficient. The record is also insufficientto allow us to conclude that Jhaveri was 

### prejudiced bythealleged failure ofcounsel torecognize apossible basisfor suppression. "Prejudice is established ifthedefendantshows thatthere is a reasonableprobabilitythat, butfor counsel's unprofessional errors, theoutcome 

### oftheproceeding would have beendifferent." Nichols, 161 Wn.2d at 8. The 

### State agreed todrop othercharges as partofthe pleaagreement. Ifthe evidence had been suppressed forthetwo charges at issue, it is possible thatNo. 73602-7-1/4 

### other charges would have taken their place, producing the same offenderscore for Jhaveri and the same sentence. 

### Also, an attorney who fails to bring a motion to suppress will be deemed ineffective only if itappears thatthe 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 inthe record. They may have contained information beyond what is inthe affidavits of probable cause. And it is not clearthatthe 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 sniffthe 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). Forthe 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 ofthis 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 wouldlike to be sentenced in a way that would allowhim to get treatment and be monitored. The court explained that an alternative drug sentence would entail 20 months incustody and 20 months under community supervision. The court also explained that ifJhaveri violated the requirements of the alternative sentence, he could potentially serve all40 months inconfinement. 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 ratherthan the alternative sentence, butthere is no information in the record that would allow this court to conclude Jhaveri was misled or coerced. 

### Tothe 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 inthe 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 trialjudge's decision whetherto 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 theNo. 73602-7-1/6 

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

### Jhaveri has not established thatthe court committed procedural error. Affirmed. 

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WE CONCUR: 

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