IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DUSTIN JAMES EGUIRES,

Appellant.

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No. 34651-0-III

UNPUBLISHED OPINION

SIDDOWAY, J. — We are presented with a two-tiered claim of ineffective 

assistance 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 plea. He argued that Mr. Eguires’s original lawyer, Theodore 

Heilman-Schott, provided ineffective assistance 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 ineffective 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 III
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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 

succeed, 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 number 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 rifle. 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 lockdown. 

Officers responding from the county sheriff’s office were Deputy Brian McIlrath, 

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 the school, sheriff’s officers 

 

1 Our record provides only the last names of Deputy Reyna and Sergeant Splawn. 
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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.

Clerk’s Papers (CP) at 75. In response to this information, the sheriff’s deputies went to 

Mr. Eguires’s home, where Mr. Eguires 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 Miranda2 warnings, spoke with him, and made 

a telephonic application for a search 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 the 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 bag turned out to contain many pieces of 

government-issued identification, tax records, and a check, all belonging to other 

individuals. Mr. Eguires was eventually charged with 12 counts of second degree 

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).
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Mr. Eguires thereafter reached a plea agreement under which he would enter an 

Alford3 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 than 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, appeared for Mr. Eguires and 

filed 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 CAD6record of dispatch communications on the morning 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. Eguires 

 

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

4 438 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.
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might succeed. CP at 20, 21. Given these “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 the search warrant. 

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 discuss” 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 assistance of 

counsel, he would need to demonstrate 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 probable cause. It argued that the showing had not been made. At a 
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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 support of the search warrant. It explained:

I can’t—I don’t have enough 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.

Report of Proceedings (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 recommendation 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 withdrawal 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 that 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.” State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Four nonexclusive 
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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 abuse 

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. THE TRIAL COURT DID NOT ERR BY DENYING THE MOTION ON THE BASIS OF MR.

EGUIRES’S FAILURE TO PRESENT EVIDENCE

In support of his first assignment of error, Mr. Eguires argues the trial court 

erroneously applied an affidavit requirement that he contends applies when a 

postjudgment 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 that 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 of postjudgment motion for relief from a judgment, however. That 
No. 34651-0-III

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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. It 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, must be proved by evidence.

An offer of proof is not evidence. An offer of proof is a method for establishing a record 

where the trial court excludes evidence. ER 103(a)(2). Such an offer is often needed if a 

party wishes to be able to argue on appeal that 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 statements 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 agreed 
No. 34651-0-III

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with the State that then-controlling law limited any challenge to a search warrant to its 

facial sufficiency. Id. at 158-60.

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 must 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 should generally include evidence. The challenger’s 

attack “must be more than conclusory and must be supported by more than a mere desire 

to cross examine.” Id. “Affidavits or sworn or otherwise reliable statements of witnesses 

should be furnished, or their absence satisfactorily explained.” Id.

Mr. Mason characterized his offer of proof as a representation of fact made as a 

member 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 regrettably, 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. 34651-0-III

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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 

transcript 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. MR. EGUIRES FAILS TO DEMONSTRATE PREJUDICE FROM THE ALLEGEDLY

INEFFECTIVE ASSISTANCE OF MR. MASON

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 consideration 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 been 
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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 Mr. 

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-type 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 evidence-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 facts 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 the 
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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 absence 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 untruthfulness. 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 warrant affidavit artfully was 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 Atchley. 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 he 
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applied for the search warrant. He places substantial reliance on the CAD record, which 

includes communications 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. Yet there is no evidence that Deputy McIlrath 

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 communications by dispatch 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 hearing everything—directions are given to advise other 

officers of certain developments.7 And Deputy McIlrath’s police 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. They, and the 

CAD report, also reveal that Yakama Nation officers arrived at the high school and the 

Eguires residence before the sheriff’s deputies did. 

 

7 E.g., “Contact 973 adv them 1225 maybe be with the veh[icle]”; “Contact 973 

see if they want us to standby”; “Ok will let the dep[uties] know.” CP at 26, 28 (some 

capitalization omitted).
No. 34651-0-III

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In his telephonic affidavit, Deputy McIlrath 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 

custody. 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 prepared by 

Sergeant Splawn. It too, gives no indication that the deputies knew where the rifle was 

located before Deputy McIlrath applied for the search warrant. The sergeant’s report 
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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 tell me where.” TP at 6. The 

statement that the deputy was told the gun was on the table, with no identification 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 premises, but not where on the premises. That the same 

words were not used both times does not demonstrate deliberate or reckless disregard of 

the truth.

With the addition to the record of the transcript of the telephonic affidavit, Mr. 

Eguires 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 suppressed. Br. of Appellant at 16 (citing CP at 30, 33; RP at 52). The record 

contains argument 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 

that effect.” Id. Absent evidence of what Mr. Eguires would say, that is speculation.

Interestingly, Mr. Mason never represented to the trial court that Mr. Eguires 
No. 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. 

16