IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON ,

Respondent ,

v. DUSTIN JAMES EGUIRES ,

Appellant

. )

) ) ) ) ) ) ) ) No. 34651

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UNPUBLISHED OPINION

S IDDOWAY , J.

— We are presented with a two

- tier ed claim of ineffective

a ssistance of counsel. After Dustin Eguires accepted a plea offer and his guilty plea was accepted, attorney David Mason substituted in as counsel and filed a CrR 4.2 motion for leave to withdraw the p lea. He argued that Mr. Eguires’s original lawyer, Theodore
Heilman

- Schott , provided ineffective ass istance of counsel by allowing Mr. Eguires to plead guilty despite having a viable basis for suppressing the State’s most important evidence

. Mr. Mason’s argument failed , and Mr. Eguires argues on appeal that if the trial court correctly found that Mr. Mason’s showing was insufficient, then Mr. Mason provided in effective assistance of counsel by failing to submit competent evidence and clear legal argument

. 

### FILED JULY 3 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 34651

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2 The trial court correctly found Mr. Mason’s showing to be insufficient. And because the additional evidence Mr. Eguires presents on appeal does not demonstrate that Mr. Heilman

- Schott overlooked a basis for suppressing key evidence that was likely to

su cceed, Mr. Eguires is not entitled to the reversal of the trial court’s order denying his
CrR 4.2 motion. We affirm.

FACTS AND PROCEDURAL BACKGROUND On a fall morning in 2015, three officers from the Yakima County Sheriff’s Office
and an unidentified numb er of officers from the Yakama Nation Police Department (hereafter sometimes “YNPD”) responded to White Swan High School after Dustin Eguires was seen on high school property with a ri fle. He was observed removing the rifle from the back of a white truck and placing it into a waiting blue two

- door vehicle. The high school was placed in lock down. Officers responding from the county sheriff’s office were Deputy Brian McI lrath, Deputy Reyna, and Sergeant Splawn. 1 By the time they arrived at the high school, Yakama Nation officers had located the white truck, which belonged to Mr. Eguires, and were talking to two individuals. According to a statement later provided by Sergeant Splawn, a short time after arriving at t he school, sheriff’s officers

1 Our record provides only the last names of Deputy Reyna and Sergeant Splawn.No. 34651

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3 were notified that a YNPD officer had spotted the blue car at Dustin’s house. Dustin and a second male were seen to the rear of the house. Dustin appeared to be armed with a rifle. C lerk’s P apers (CP) at 75. In response t o this inf ormation, the sheriff’s deputies went to Mr. Egu ire s ’s home , where Mr. Eguire s and another man were found looking through a duffel bag outside a minivan . Both were handcuffed and put in patrol cars. Deputy McIlrath read Mr. Eguires Miranda 2 w arnings , spoke with him, and made a telephonic application for a sear ch warrant to enter the buildings and vehicles located at the address to search for the rifle

. The search warrant was granted, the search was conducted, and the rifle was found. In th e course of the search, the sheriff’ s deputies saw multiple pieces of identification in the open duffel bag . Deputy McIlrath called the judge who had issued the warrant, asking that it be amended to expand the scope of the search

. The judge granted the requested amendment. The duffel ba g turned out to contain many pieces of government

- issued identification, tax records, and a check , all belonging to other individuals . Mr. Eguires wa s eventually charged with 12 counts of second d egree identity theft in violation of RCW 9.35.020(3) and (1) , and 1 count of carrying a firearm onto public school property in violation of RCW 9.41.280(1).

2 Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 34651

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4 Mr. Eguires ther eafter reached a plea agreement under which he would enter an Alford 3 plea to the counts charged in this action, in exchange for which the State would recommend an exceptional downward sentence of only 18 months and would dismiss two other criminal cases pending against Mr. Eguires. With an offender score of 9+ in light of the more tha n one dozen charges against him, the standard ranges Mr. Eguires faced were 43 to 57 months for each of the identity theft counts and 364 days for the firearm charge. A hearing was held at which Mr. Eguires , represented by Mr. Heilman

- Schott, acknowledged his understanding of the plea agreement . The trial court accepted the plea. Before sentencing, a second lawyer , Mr. Mason, ap peared for Mr. Eguires and
f iled a “Motion to Withdraw Plea Franks v. Delaware , 4 Strickland v. Washington

. ” 5 CP at 20. Attached to the motion was a copy of the original search warrant for Mr. Eguires’s premises; a narrative and one page of an incident report, both completed by Deputy McIlrath; and excerpts of a CAD 6 record of dispatch communications on the morni ng Mr. Eguires was located and his premises were searched. The motion argued that there were “disturbing” inconsistencies in the attached records that raised “a number of Franks issues” on the basis of which a motion to suppress the evidence against Mr. E guires

3 North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)

. 4 43 8 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). 5 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 6 Computer

- aided dispatch.No. 34651

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5 might succeed. CP at 20, 21. Given the se “ Franks issues,” the motion asked that Mr. Eguires be allowed to withdraw his guilty plea and proceed with discovery. In supplemental briefing, Mr. Mason represented that he had listened to the recording of Deputy McIlrath’s telephonic affidavit in support of t he search warra nt. Characterizing himself as an officer of the court, Mr. Mason represented that “the deputy told the court the following:” I arrived with two other deputies [and] we placed Dustin into custody After Miranda, he told me that he had a rifle He set it somewhere on the property He did not tell me where I’m requesting permission to go onto his property to retrieve the rifle
CP at 31 (alteration in original) . He argued that the CAD and other records suggested officers had seen Mr. Eguires’s rifle upon first arriving at the home, Deputy McIlrath knew where it was, and the deputies never needed a search warrant . He argued that Mr. Heilman

- Schott’s failure to “discover, disclose and discus s” a promising suppression issue with his client before Mr. Eguires entered his plea “raises significant effective assistance issues.” CP at 33. The State responded that for Mr. Eguires to establish ineffective a ssistance of counsel, he would need to dem onstrate that if a motion for a Franks hearing had been made , the trial court would likely have granted it , found the application for the warrant to be materially inaccurate, and found that an accurate application would not have demonstrated prob able cause. It argued that the showing had not been made. At aNo. 34651

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6 hearing on the motion to withdraw the guilty plea , the trial court agreed, observing that it had no affidavit from Mr. Eguires and no transcript of Deputy McIlrath’s telephonic affidavit in suppor t of the search warrant. It explained: I can’t

— I don’t have e nough information to make a

— a reasoned analysis and say, I think you would have won. I can’t say that the results from Mr. Eguires today would have been any different, because I don’t know who would have won. You have raised some questions, but that’s the extent of it. R eport of P roceedings (RP) at 63. Mr. Eguires’s CrR 4.2 motion was denied. At sentencing that took place the following week, the trial court accepted the State’s recommendat ion and sentenced Mr. Eguires to a total period of confinement of 18 months. Mr. Eguires appeals.
ANALYSIS Mr. Eguires assigns error to the trial court’s refusal to accept Mr. Mason’s offer of proof as establishing a manifest injustice supporting withdraw al of a defendant’s plea. Alternatively, if the trial court correctly required evidence of a manifest injustice, Mr. Eguires argues that Mr. Mason provided ineffective assistance of counsel by failing to prepare and offer evidence. CrR 4.2(f) provides t hat the court shall allow a defendant to withdraw his plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice. A manifest injustice is an injustice that is “obvious, directly observable, overt, not obscure.” St

ate v. Taylor , 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Four nonexclusiveNo. 34651

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7 circumstances have been identified as demonstrating a manifest injustice : (1) a denial of effective counsel, (2) a plea that is not ratified by the defendant or someone authorized by the defendant to do so, (3) an involuntary plea, or (4) a plea agreement that is not honored by the prosecution. State v. Wakefield , 130 Wn.2d 464, 472, 925 P.2d 183 (1996)

. We review a trial court’s decision on a motion to withdraw a guilty plea for ab use of discretion. State v. A.N.J. , 168 Wn.2d 91, 106, 225 P.3d 956 (2010). A trial court abuses its discretion if its decision is manifestly unreasonable , is based on untenable grounds , or is made for untenable reasons. In re Det. of Duncan , 167 Wn.2d 398, 402, 219 P.3d 666 (2009).
I. T HE TRIAL COURT DID N OT ERR BY DENYING TH E MOTION ON THE BASI S OF M R
. E GUIRE S ’ S FAILURE TO PRESENT EVIDENCE In support of his first assignment of error, Mr. Eguires argues the tria l court erroneously applied an affidavit requirement that he contends applies when a post judgment motion to withdraw a plea is made under CrR 7.8 but does not apply when

a prejudgment motion is made, as in his case. To demonstrate these allegedly differing requirements, he points to the fact th at CrR 7.8(c)(1) requires that a motion “shall be . . . supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based,” while CrR 4.2(f) says nothing about affidavits. CrR 7.8(c)(1) applies to every sort o f postjudgment motion for relief from a judgment, however. ThatNo. 34651

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8 alone explains a need for an affidavit identifying which of myriad bases for such a motion is being presented. CrR 4.2(f) , which deals only with a request to withdraw a plea, requires that a manifest injustice must be apparent to the court . I t is well settled that the defendant bears the burden of proving the existence of a manifest injustice. State v. Quy Dinh Nguyen , 179 Wn. App. 271, 283, 319 P.3d 53 (2013). “Because CrR 4.2 provides extensive safeguards for defendants in entering pleas, our Supreme Court describes the standard on a motion to withdraw as ‘demanding. ’” Id. at 283 (quoting Taylor , 83 Wn.2d at 596). Facts, such as the existence of a manifest injustice, mu st be proved by evidence

. A n offer of proof is not evi dence. An offer of proof is a method for establishing a record where the trial court excludes evidence. ER 103(a)(2). Such a n offer is often needed if a party wishes to be able to argue on appeal th at an exclusion of evidence was erroneous and not harmless. In Franks , the defendant was allowed to make only this sort of offer of proof in the trial court, because courts had not yet recognized any right to challenge the truthfulness of factual statemen ts made in an affidavit supporting a search warrant

. See Franks v. Delaware , 438 U.S. 154, 155 , 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) . At a suppression hearing, Mr. Franks was prepared to call three witnesses and sought to call two others in an effort to prove that the warrant application had been untruthful

. Id. at 158. He was denied the opportunity to present the evidence because the court agreedNo. 34651

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9 with the State that then

- controlling law limited any challenge to a search warrant to its facial sufficiency. Id. at 158

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. In holding for the first time in Franks that the application for a search warrant can be challenged in limited circumstances, the Supreme Court adopted a two

- step process for such a challenge. In the first step, a defendant m ust make a substantial preliminary showing including “allegations of deliberate falsehood or of reckless disregard for the truth . . . accompanied by an offer of proof.” Id

. at 171. This first

- step “offer of proof” required to receive a Franks hearing sh ould generally include evidence. T he challenger’s attack “must be more than conclusory and must be supported by more than a me re desire
to cro ss examine.” Id

. “Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or the ir absence satisfactorily explained.” Id.
Mr. Mason characterized his offer of proof as a representation of fact made as a

mem ber of the bar and an officer of the court. Given a lawyer’s duty of candor to the
court, see RPC 3.3(a), the court may accept such a representation . The Rules of Professional Conduct only prohibit a lawyer from “knowingly” misrepresenting matters to the court, however, see id. , thereby recognizing that even a compliant lawyer may unwittingly make a misrepresentation. And regret tably, not all officers of the court always uphold their professional obligations. Courts are not required to accept a lawyer’s representations to the court. State v. Israel , 19 Wn. App. 773, 577 P.2d 631 (1978).No. 34651

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10 The trial court reasonably treated Mr. Mason’s showing as insufficient in light of his failure to provide a transcript of Deputy McIlrath’s telephonic affidavit. We now know

— because the parties obtained a transcript for purposes of the appeal

— that a transcrip t of the call consumes over five pages. Mr. Mason’s offer of proof briefly paraphrased only five of Deputy McIlrath ’s statements to the judge . It omitted others that were equally important. The trial court did not err in determining that Mr. Eguires was required to present the pertinent evidence , not just a conclusory attack and request for discovery.
II. M R
. E GUIRE S FAILS TO DEMONSTRATE PREJUDIC E FROM THE ALLEGEDLY INEFFECTIVE ASSISTAN CE OF M R
. M ASON Effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz , 127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective assistance of counsel, a defendant must show two things: “(1) defense counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on conside ration of all the circumstances; and (2) defense counsel’s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have beenNo. 34651

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11 different.” State v. McFarland , 127 Wn.2d 322, 334

- 35, 899 P.2d 1251 (1995) (emphasis omitted)

. Mr. Eguires fails to demonstrate prejudice: that had it not been for Mr. Mason’s unprofessional errors, there is a reasonable probability the court would have granted M r. Eguires ’s motion to withdraw his plea. For Mr. Mason’s motion to succeed, he needed to demonstrate Mr. Heilman

- Schott’s ineffective assistance as counsel, and therefore, as the trial court pointed out, that there was a “huge and significant” Franks

- typ e suppression issue that , because Mr. Heilman

- Schott ignored it, presented a manifest injustice. RP at 63 . To prevail on appeal, Mr. Eguires needs to point to the evidence that demonstrates this huge and significant Franks

- type suppression issue that Mr. Heilman

- Schott allegedly ignored

. We begin with the presumption that the affidavit supporting a search warrant is valid. State v. Atchley , 142 Wn. App. 147, 157, 173 P.3d 323 (2007) (citing Franks , 438 U.S. at 171). We have already identified the eviden ce - based character of the offer of proof that must be made in order to be entitled to a Franks hearing challenging the truthfulness and material completeness of the fact s stated in the warrant affidavit. Id. at 157

- 58. The substantial preliminary showing a defendant must make is of a false statement or material omission that was made by the affiant “ ‘ knowingly and intentionally, or with reckless disregard for the truth. ’ ” Id . at 155

- 56 (quoting Franks , 438 U.S. at 154). The offer of proof by the defendant must (1) point out specifically theNo. 34651

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12 portion of the warrant affidavit that is claimed to be false, (2) furnish testimony demonstrating that the affiant misled the magistrate deliberately or recklessly ( or explain the ab sence of evidence ) , and (3) demonstrate that the challenged falsehood was necessary to the finding of probable cause. Franks , 438 U.S. at 171

- 72. Atchley illustrates the high bar before evidence is sufficient to demonstrate a warrant affiant’s untruthfuln ess. To challenge an officer’s truthfulness in an affidavit for a warrant to search Atchley’s home for evidence of a marijuana grow operation, Atchley offered “numerous photographs” allegedly demonstrating that the officer did not see what he had claimed to see , and declarations supporting Atchley’s contention that the officer could not have seen into his backyard because the gate was never left open. 142 Wn. App. at 158. Mr. Atchley argued that the officer’s admission that he phrased statements in the w arrant affidavit artfully w as evidence the officer knew he was conveying a false impression to the magistrate. Id. at 159. This court affirmed the trial court’s refusal to
order a Franks hearing because the photographs did not directly conflict with the warrant affidavit, the declarations did not decisively foreclose the possibility the gate was left open, and the officer’s statement was too ambiguous to be construed as an admission of perjury. Mr. Eguires ’s evidence is less persuasive than that in Atchle y. Mr. Eguires contends that Deputy McIlrath’s telephonic affidavit was false in failing to reveal to the court that the specific location of the rifle was already known to the deputy before heNo. 34651

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13 applied for the search warrant. He places substantial reliance on the CAD record, which includes comm unications that responding officers saw a rifle at the Eguires property pointing out of the window of a vehicle , and thereafter that two subjects then put the rifle down “on table or something.” CP at 28. Ye t there is no evidence that Deputy McI l rath

was aware of all of the communications reflected in the CAD record. In fact, the evidence suggests that he would not have been aware of all of the communications. The CAD record reflects communicati ons by disp atch with six different officers. The communications are identified by officer number , and the CAD report reflects communications with officers numbered 973, 1203, 1215, 1220, 1225 and 1232. The record does not establish which communications were made by or heard by Deputy McIlrath . Statements in the CAD record reflect the speakers’ knowledge that not all of the responding officers were heari ng everything

— directions are given to advise other officers of certain developments. 7 And Deputy McIlrath’s polic e report and telephonic affidavit indicate there were times on the morning of the incident when he was interviewing a bus driver at the school and making a preliminary report. T hey, and the CAD report, also reveal that Yakama Nation officers arrived at th e high school and the Eguires residence before the sheriff’s deputies did.

7 E.g. , “ C ontact 973 adv them 1225 maybe be with the veh [ icle ]”; “C ontact 973 se e if they want us to standby”; “O k will let the dep [ uties ] know .” CP at 26, 28 ( some capitalization omitted ).No. 34651

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14 In his telephonic affidavit, Deputy McIlra th told the district court judge , “Tribal police went to the house while I was giving the initial report. They located Dustin inside of the two

- door Honda car. They saw him with what looked like a rifle, they did containment. Dustin walked to the

— to his house.” Transcript of Proceedings (TP ) at 6. Only thereafter did the deputies arrive and take Mr. Eguires and the other man into
custo dy. The CAD record does not establish that Deputy McIlrath knew all that other officers had seen when he completed the telephonic affidavit. Mr. Mason also relies on Deputy McIlrath ’s narrative report of the incident, which states in part: I read Dustin his Miranda rights. He at first told me that he did not have a rifle. I obtained a search warrant for Dustin’s house and property. While filling out the search warrant Dustin told me that the gun was on the table. CP at 18. The deputy’s report goes on to state that he initially searched for the rifle inside the residence but could not locate it; he later located it outside. Nothing in the deputy’s statement indicates he was told by Mr. Eguires that the gun was on a table
outside , as opposed to inside. From the conduct of the search he describes, it is apparent that he assumed it was on a table inside. Also before the trial court was a narrative report of the incident prepare d by Sergeant Splawn. It too, gives no indication that the deputies knew whe re the rifle was located befo re Deputy McIlrath applied for the search warrant. The sergeant’s reportNo. 34651

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15 states in pertinent part that after Deputy McIlrath obtained a search warrant for the property, “We discovered the rifle on a table near the van .” CP at 75 (emphasis added). Mr. Mason argued that Deputy McIlrath’s narrative report was inconsistent with the deputy’s statement in his telephonic affidavit that Mr. Eguires told him “ he did have a rifle, he set it somewhere on this

— on his property, did not te ll me where.” T P at 6. The statement that the deputy was told the gun was on the table, with no identi fication of where “the table” was , and the statement that he was told the gun was somewhere on the property, but not where, are not inconsistent. They can be construed as a more specific versus more general way of conveying the same material fact to the judge : that the deputy

was told the gun was on the pr emises, but not where on the premises. That the same words were not used both times does not demons trate deliberate or reckless disregard of the truth.
W ith the addition to the record of the transcript of the telephonic affidavit , Mr. Eguire s still does not demonstrate a reasonable probability that a motion for a Franks hearing would have been granted. 8

8 Mr. Eguires contends on appeal that there was evidence Mr. Heilman

- Schott failed to discuss with Mr. Eguires the likelihood that evidence of the identity theft counts could be supp ressed. Br. of Appellant at 16 (citing CP at 30, 33; RP at 52 ) . The record contains a rgument to that effect, but not evidence. Mr. Eguires argues that because Mr. Mason represented Mr. Eguires told him as much, it “would have likely been rather simple to obtain and present a sworn declaration, or put Eguires on the stand to testify to tha t effect.” Id

. Absent evidence of what Mr. Eguires would say, that is speculation. Interestingly, Mr. Mason never represented to the trial court that Mr. EguiresNo. 34651-0-III State v. Eguires

Even if Mr. Eguires demonstrated a reasonable probability of success, but merely a reasonable probability of success, he might still fail to make the second required showing
of deficient performance. Mr. Heilman-Schott might reasonably have concluded that advancing a Franks motion that was not guaranteed to succeed was not worth the risk
that an attractive plea agreement offered by the State would be withdrawn. Because we need not consider both of the showings required where a defendant fails to show one, we need not analyze deficient performance further. In re Pers. Restraint of Crace, 174
Wn.2d 835, 847, 280 P.3d 1102 (2012) (citing Strickland, 466 U.S. at 697).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040. 

# d7 'Lio /,U~ I 

# JI_ • Siddoway, J.
WE CONCUR:

Fearing, J.
claimed he told Deputy Mcllrath the gun was on a table outside, in a place where deputies could have seized it without a warrant. Mr. Eguires would have firsthand knowledge of those facts, if true. The trial court would be entitled to view the absence of that evidence from Mr. Eguires as undercutting his motion for a Franks hearing.
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