IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 56601-0-II

Respondent, 

v.

REID BENJAMIN JOHNSTON, UNPUBLISHED OPINION

Appellant.

PRICE,J. — Reid Johnston appeals the trial court’s denial of his motion to suppress a stolen 

firearm found during the execution of a search warrant on a car for controlled substances and drug 

paraphernalia. After the trial court’s denial of the motion, Johnston entered a guilty plea to an 

amended information that included the following charges: possession of a stolen firearm, 

trafficking in stolen property in the first degree, and possessing stolen property in the first degree—

other than a firearm.

On appeal, Johnston argues that the trial court erred by denying his motion to suppress the 

firearm. He separately argues that his guilty plea should be withdrawn because the plea was 

constitutionally invalid. Johnston further argues that the trial court improperly imposed a $100 

DNA (deoxyribonucleic acid) collection fee against him. Finally, Johnston submits a statement of 

additional grounds (SAG).

1

 

1 RAP 10.10.

Filed

Washington State

Court of Appeals

Division Two

May 31, 2023
No. 56601-0-II

2

We affirm Johnston’s convictions. By pleading guilty, Johnston waived his right to appeal 

the suppression ruling. Johnston also fails to show that he is entitled to withdraw his guilty plea. 

We affirm the imposition of the $100 DNA collection fee and hold that Johnston’s grounds in his 

SAG fail or are unreviewable.

FACTS

I. SEARCH OF JOHNSTON’S VEHICLE

On August 18, 2020, Deputy Alan Jorgensen conducted a traffic stop of a car with a 

defective taillight. Johnston was the owner of the vehicle and rode as the front seat passenger. 

The driver admitted to Deputy Jorgensen that she had a suspended license. Deputy Jorgensen 

confirmed the driver’s license was suspended and asked her to step out of the vehicle, preparing 

to arrest her for driving with a suspended license. As she exited the vehicle, she turned toward 

Johnston and motioned. Deputy Jorgensen observed Johnston reach for an object and hide it 

behind the driver’s seat.

Deputy Jorgensen asked Johnston what he had grabbed and asked to see it. Johnston placed 

a piece of cellophane on the driver’s seat. Deputy Jorgensen suspected the cellophane contained

drugs based on his knowledge that people use cellophane for small amounts of drugs like heroin.

The driver stated that the cellophane was from some cigarettes she had purchased. Deputy 

Jorgensen became wary of the situation and asked Johnston to step out of the vehicle. On returning 

to the vehicle, the Deputy saw a piece of burned tinfoil that he believed contained heroin on the 

back seat, behind the passenger seat. Deputy Jorgensen asked the driver if the suspected heroin 

was hers, and she admitted it was and that the cellophane also contained “a little bit of heroin.” 

Verbatim Rep. of Proc. (VRP) at 12.
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Deputy Jorgensen asked Johnston for consent to search his vehicle, which Johnston denied. 

Deputy Jorgensen took Johnston into custody and seized the car to apply for a search warrant. On 

the way to the jail, the driver told Deputy Jorgensen that a bag containing methamphetamine was 

in the car and it belonged to Johnston.

Deputy Jorgensen obtained the search warrant for Johnston’s car. Pursuant to his affidavit 

in support of the search warrant, Jorgensen believed the car contained “[e]vidence of the crime(s) 

of RCW 69.50.4013 Possession of controlled substance, RCW 69.50.412 Unlawful use of Drug 

Paraphernalia;” and “[c]ontraband, fruits of crime, or other things otherwise criminally possessed.” 

Suppl. Index to Clerk’s Papers (CP) at 14 (Exhibit 5 at 1).

Deputy Jorgensen and Police Detective Jon Stuart executed the search warrant. Deputy 

Jorgensen located a bag in the center console that contained what he suspected to be 

methamphetamine. Detective Stuart searched the trunk of the car and observed a holstered firearm 

protruding from a bag. From its location inside the holster, Detective Stuart saw that the firearm’s 

grip was originally purple but was poorly spray painted black. Detective Stuart noted that the paint 

job did not appear to be professionally done. Based on his training and experience, the paint job 

was suspicious to Detective Stuart because he knew that some people attempt to alter firearms by 

painting them. This caused Detective Stuart and Deputy Jorgensen to suspect that the firearm 

could be stolen.

Detective Stuart was familiar with Johnston’s name; however, he did not know Johnston’s 

criminal history. He asked Deputy Jorgensen if Johnston was a convicted felon. Deputy Jorgensen 

stated that he was not sure, but he believed he was. Deputy Jorgensen had prior contacts with 
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Johnston and was aware he had a criminal history. Neither officer, however, was aware of 

Johnston’s specific criminal history or whether Johnston could lawfully possess a firearm.

According to Detective Stuart, he removed the firearm from the bag because of the altered 

paint job, the possibility that Johnston was a convicted felon, the fact that the officers would not 

usually leave firearms in vehicles that they released to towing companies, and the officers’ desire 

to render the firearm safe.

Detective Stuart testified that he typically renders a firearm safe when he finds one. He 

observed that the specific type of firearm can “sometimes be in poor operable condition” and he 

needed to continue his search of the bag. VRP at 42. As the officers removed the firearm from 

the holster, they determined it was loaded. They cleared the firearm’s chamber. After handling 

the firearm, the officers were able to see a serial number, which they used to determine that it was 

stolen.

Detective Jorgensen then sought an amended warrant for the stolen firearm. The amended 

warrant added authority to search for “weapons or other things by means of which a crime has 

been committed.” Suppl. Index to CP at 25 (Exhibit 6 at 4).

II. CHARGES AGAINST JOHNSTON

On August 19, 2020, the State charged Johnston with possession of a stolen firearm, 

possession of a controlled substance—heroin, and possession of a controlled substance—

methamphetamine. In April 2021, the heroin and methamphetamine counts were removed after 
No. 56601-0-II

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the drug possession statute, RCW 69.50.4013, was voided by our Supreme Court’s decision in 

State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021).

2

In December 2020, while the case was pending, the State charged Johnston under a separate 

cause number with theft in the first degree and trafficking in stolen property in the first degree for 

acts that occurred on or about December 13, 2020. Specific to the crime of trafficking in stolen 

property, the information stated that Johnston “did knowingly initiate, organize, plan, finance, 

direct, manage, or supervise the theft of property, to-wit: figured maple tree, for sale to others, or 

did knowingly traffic in stolen property.” CP at 160 (emphasis added) (boldface omitted).

In May 2021, while the two cases were pending, the State charged Johnston under a third 

cause number with possession of stolen property in the first degree for acts that occurred on or 

about April 12, 2021. The information stated that Johnston “did knowingly receive, retain, possess, 

conceal, or dispose of stolen property, other than a firearm . . . , to-wit: a 2019 John Deere 

Excavator belonging to Thomas Johnson, owner of Nordland Construction, of a value in excess of 

$5,000, knowing that it had been stolen.” CP at 162 (emphasis added) (boldface omitted).

III. CRR 3.6 SUPPRESSION HEARING

Prior to trial, Johnston moved to suppress all evidence found as a result of the August 2020 

vehicle search. In August 2021, the trial court held a CrR 3.6 suppression hearing. Deputy 

Jorgensen and Detective Stuart testified to the facts above concerning the search.

At the suppression hearing, Johnston argued that after Blake, the simple drug possession 

could not provide probable cause for a search of his vehicle. Johnston further argued that the drug 

 

2 Blake was decided after the search of Johnston’s vehicle.
No. 56601-0-II

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paraphernalia statute, RCW 69.50.412(1), should also be held void under Blake. And Johnston 

contended that the plain view doctrine did not apply to the firearm found in the trunk because the 

officers did not have immediate knowledge that the firearm was evidence of a crime.3 Thus, 

Johnston argued, the officers lacked probable cause to remove the firearm from the holster and run 

the serial number.

The trial court denied the motion to suppress evidence of the firearm.4 The court ruled that 

Deputy Jorgensen conducted a valid Terry5stop of Johnston’s car and “had probable cause to 

search for the use of drug paraphernalia, which involves both paraphernalia and substances. And 

. . . he also had probable cause at the time because . . . he had information that there was heroin 

and methamphetamine in the car.” VRP at 74-75.

The trial court also determined that the evidence of the firearm was properly obtained under 

the plain view doctrine. The court reasoned that the firearm was suspicious to the officers because 

of its paint job, it was loaded, and it was in the possession of someone they thought could be a 

convicted felon. And the officers properly removed it from the holster in order to determine if it 

was loaded and to unload it for safekeeping. On these bases, the court held that the officers were 

justified in reading and running the serial number.

 

3

“The plain view doctrine applies ‘when the police (1) have a valid justification to be in an 

otherwise protected area and (2) are immediately able to realize the evidence they see is associated 

with criminal activity.’ ” State v. Morgan, 193 Wn.2d 365, 370, 440 P.3d 136 (2019) (quoting 

State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007)).

4 The trial court did not appear to enter written findings of fact and conclusions of law on the

CrR 3.6 hearing.

5 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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IV. GUILTY PLEA

On September 24, 2021, the State informed the trial court that it was consolidating

Johnston’s three cause numbers. The amended information listed the charges as possession of a 

stolen firearm (Count I), trafficking in stolen property in the first degree (Count II), and possessing 

stolen property in the first degree—other than a firearm (Count III). Like the original charging 

documents, the amended information expressly stated that Johnston had acted with knowledge that 

the property in each count was stolen.

That same day, Johnston signed a plea form admitting to the charges contained in the 

amended information. The plea form stated that Johnston entered the plea “freely and voluntarily” 

and that he read the entire plea form and understood it in full. CP at 41. The form also stated that 

Johnston gave up his “right to appeal a finding of guilt after a trial” and that he understood that his 

“right to appeal is limited.” CP at 33.

Johnston’s own statement specific to his crimes stated, 

On April 21, 2021 I possessed stolen property valued at more than $5000. On Dec. 

13, 2020 I sold stolen property. On Aug. 18, 2020 I possessed a stolen firearm I 

knew was stolen. All acts in Jefferson County, WA.

CP at 41. Only Johnston’s statement about Count I, possession of a stolen firearm, repeated the 

knowledge element found in the amended information.

In exchange for Johnston’s plea, the State agreed to (1) recommend that the trial court

dismiss a remaining charge of theft in the first degree, (2) not file an unlawful possession of a 

firearm in the second degree charge, and (3) request the imposition of a residential drug offender 

sentencing alternative rather than a prison sentence. The plea form also informed Johnston that 

the State planned to seek restitution on charged and uncharged counts.
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During the plea hearing, the trial court conducted a colloquy with Johnston and his 

attorney. Johnston’s attorney stated that he “did go over the Statement of Defendant on Plea of 

Guilty with [Johnston]. I believe he understands the terms of the plea agreement and the 

constitutional rights that he’s giving up and he’s willingly and voluntarily doing so.” VRP at

80-81. Johnston told the trial court that what his attorney stated regarding the plea was true and 

confirmed that he had read the plea form. Johnston also stated that his attorney was able to answer 

all his questions and he believed he understood the rights that he gave up by pleading guilty. 

Johnston was not immediately sentenced.

Several weeks later, on November 5, Johnston’s attorney explained that Johnston had 

expressed “a possible concern regarding the voluntariness of the plea” and that another attorney 

should be appointed for “a second opinion about whether he ha[d] grounds to move to withdraw 

the plea.” VRP at 92. Thereafter, Johnston’s attorney withdrew and another attorney was 

appointed.

V. MOTION TO WITHDRAW GUILTY PLEA AND SENTENCING

On December 3, Johnston moved to withdraw his guilty plea pursuant to CrR 4.2(f). 

Johnston argued that his previous counsel provided ineffective assistance, specifically alleging that 

his counsel failed to advise Johnston of the consequences of the guilty plea and denied Johnston

access to discovery that would have permitted him to make an informed decision regarding the 

plea. Regarding the failure to advise, Johnston declared that he was “not fully informed of all the 

terms of the plea bargain I was pressured into. For instance, I was never informed about any 

restitution owed or who the ‘victims’ are.” CP at 52.
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Johnston clarified, however, that he was only seeking to withdraw his guilty plea as to 

Count III. Johnston’s counsel stated that the basis for the motion was the amount of restitution 

sought and Johnston’s belief that his plea as to Count III was not voluntary and therefore 

constituted a manifest injustice. In support of the motion, Johnston’s counsel argued that the 

amount of restitution sought, $8,000, was never discussed and, once Johnston learned of the 

amount, he decided to withdraw his guilty plea. Counsel pointed out that although the plea form 

stated that restitution would be sought, no amount was given.

Following arguments, the trial court determined Johnston’s plea was voluntary, knowing, 

and intelligent, recounting its extensive colloquy with Johnston during the plea hearing. The trial 

court further observed that Johnston’s desire to withdraw his plea deal as to only Count III 

undermined his claim that he was not fully informed as it seemed to be an admission that he was 

fully informed as to the first two counts. Johnston’s motion was denied.

At Johnston’s sentencing hearing on January 7, 2022, the prosecuting attorney requested 

imposition of a $100 DNA collection fee but also suggested that maybe the trial court could “hold 

off on that one.” VRP at 114. The prosecuting attorney stated that he knew Johnston had prior 

felony convictions, but he had not confirmed “to see if that prior DNA sample shows up on his 

NCIC.”6 VRP at 114.

That same day, the trial court sentenced Johnston. The judgment and sentence, signed by 

Johnston, noted that Johnston had no criminal history and imposed an offender score of two. The 

judgment and sentence also included the $100 DNA collection fee. Two days after entry of the 

 

6 NCIC is an abbreviation for the National Crime Information Center.
No. 56601-0-II

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judgment and sentence, Johnston filed this notice of appeal “of the denial of Motion to Withdraw 

Guilty Plea.” CP at 76. Johnston attached the felony judgment and sentence to his notice of appeal.

ANALYSIS

Johnston makes three arguments in this appeal. First, Johnston argues that the trial court 

erred when it denied his motion to suppress the evidence from the search of the vehicle, specifically 

the firearm. Second, Johnston argues that he should be entitled to withdraw his guilty plea because 

his plea was not knowing, intelligent, and voluntary. Third, Johnston argues the trial court erred 

by imposing the $100 DNA collection fee. We reject all three arguments.

I. GUILTY PLEA WAIVED RIGHT TO CHALLENGE SUPPRESSION DECISION

Johnston challenges the trial court’s order denying suppression of the stolen firearm 

discovered in the trunk of his car. Johnston argues that the search warrant relied on probable cause 

for a crime that was void under Blake and a void crime could not supply the required “authority of 

law” to search his vehicle. Br. of Appellant at 15. He also argues the warrant was not severable 

as to the alleged unlawful possession of a controlled substance and unlawful possession of 

paraphernalia. He further contends that the officers lacked probable cause under the plain view 

doctrine to believe the firearm was evidence of a crime and, therefore, the officers unlawfully 

removed the firearm from its holster.

The State argues that Johnston waived any challenge to the suppression ruling because he 

pleaded guilty. We agree with the State.
No. 56601-0-II

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A. LEGAL PRINCIPLES

Once a guilty plea is entered, there are limitations on the issues a defendant is entitled to 

appeal. State v. Cross, 156 Wn.2d 580, 621, 132 P.3d 80 (2006), abrogated on other grounds by 

State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). Generally, a defendant may appeal from that 

guilty plea only on issues related to the “validity of the statute, sufficiency of the information, 

jurisdiction of the court, or circumstances surrounding the plea.” Id.; see also State v. Olson, 73 

Wn. App. 348, 353, 869 P.2d 110 (1994), review denied, 124 Wn.2d 1029 (1994), (“If, indeed, 

[the defendant] did enter a guilty plea, then he would not be entitled to appeal the denial of any 

pretrial motions. A guilty plea generally waives the right to appeal.”). Similarly, we have stated 

that “ ‘[a] guilty plea waives or renders irrelevant all constitutional violations that occurred before 

the guilty plea, except those related to the circumstances of the plea or to the government’s legal 

power to prosecute regardless of factual guilt.’ ” State v. Brandenburg, 153 Wn. App. 944, 948, 

223 P.3d 1259 (2009) (alteration in original) (internal quotation marks omitted) (quoting State v. 

Amos, 147 Wn. App. 217, 225-26, 195 P.3d 564 (2008)), review denied, 170 Wn.2d 1009 (2010).

But there have been exceptions to these general principles based on the specifics of the 

plea. For example, in State v. Smith, 134 Wn.2d 849, 851-52, 953 P.2d 810 (1998), the defendant,

Smith, stated that he read, understood, and signed the plea statement. Smith’s counsel, however, 

stated in open court that Smith was not waiving the right to appeal the trial court’s suppression 

ruling. Id. at 853. Opposing counsel and the trial court failed to correct this interpretation. Id. 

Our Supreme Court stated that ordinarily, the defendant’s representation that he read and 

understood the plea agreement “would provide sufficient evidence of a voluntary plea and a valid 

waiver of the right to appeal.” Id. But under those specific circumstances, the Supreme Court 
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stated that it was not clear if Smith had “knowingly, voluntarily, and intelligently relinquished the 

right to appeal the suppression ruling.” Id. The Supreme Court permitted Smith to withdraw his 

plea. Id.

B. APPLICATION

Here, Johnston stated in open court that he had read the plea statement form and believed 

he understood his rights and the rights he gave up by pleading guilty. In the plea form, Johnston 

acknowledged that, as a consequence of signing the form, his right to an appeal was limited, and 

he answered a series of questions during the trial court’s colloquy that affirmed he understood the 

plea form and had discussed it with his counsel. Unlike Smith, nothing was said that cast doubt 

about whether an ability to appeal the suppression hearing was preserved, notwithstanding the 

plea. Nothing in the record supports that Johnston failed to understand the effect of a guilty plea 

on his right to appeal the suppression ruling.

Nonetheless, Johnston contends he can still appeal the suppression ruling for two reasons. 

First, he argues the express waivers in the plea form itself are either ambiguous or do not apply. 

Johnston suggests that the plea form only said his appeal rights were “limited,” without explaining 

the actual limitations. Reply Br. at 5. And although the form stated he waived his right to appeal 

“after a trial,” a plea is not a trial. Reply Br. at 5-6. Johnston asserts these issues should be 

construed in favor of his right to appeal.

Second, he argues that even under the restrictions discussed in Cross, a suppression hearing 

is part of the circumstances surrounding the plea and, therefore, the results of the hearing remain 

available for appeal. 156 Wn.2d at 621.
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Neither argument is persuasive. To support his first argument that the plea form waivers 

should be construed in favor of his right to appeal the suppression decision, Johnston cites State v. 

Bisson, 156 Wn.2d 507, 521-23, 130 P.3d 820 (2006). There, the plea agreement stated that five 

24-month enhancements would be included in the defendant’s sentence. Id. at 521. The defendant, 

however, was never advised the enhancements would run consecutively and nothing in the record 

refuted this expectation. Id. In fact, the record included an erroneous citation indicating the 

enhancements would run concurrently, the weapon enhancement scoring sheet never clarified that 

the enhancements would run consecutively, and the trial court initially interpreted the plea 

agreement and attached documents as permitting the weapon enhancements to run concurrently. 

Id. Thus, on review, our Supreme Court accepted the State’s concession that the plea was 

involuntary because Bisson was never clearly informed that the enhancements would be served 

consecutively. Id. at 525-26.

But there are no similar ambiguities or inaccuracies involved in this case. At no point was 

the appealability of the suppression decision raised in the context of the plea. And, unlike Bisson,

no misrepresentations or errors were included in either the plea form or the trial court’s colloquy. 

The asserted ambiguities identified by Johnston are simply too attenuated to the suppression 

decision to overcome the waiver of pre-plea issues that generally results from a guilty plea.

For his second argument, Johnston claims that, based on our Supreme Court’s decision in 

Cross, “a pretrial suppression ruling can be challenged on appeal following a guilty plea” because 

it is part of the circumstances surrounding the plea. Reply Br. at 10-11. In Cross, the defendant 
No. 56601-0-II

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challenged admission of statements he made to an officer after he was read his Miranda7rights. 

156 Wn.2d at 619. The trial court ruled all the statements admissible before Cross entered an 

Alford8plea, and several of the statements were used in the sentencing phase. Id. On appeal, the 

Supreme Court stated:

Broadly construed, Cross is challenging the circumstances surrounding his plea. 

However, given that he does not seek to withdraw his plea, any defect in the 

circumstances would have to be striking to be cognizable.

Id. at 621 (emphasis added).

Johnston argues that this language from Cross should be seen as our Supreme Court’s 

endorsement of the rule that pretrial suppression rulings should be appealable after a guilty plea. 

Johnston specifically asks us to hold that a pretrial suppression ruling can be challenged following 

a guilty plea when the denial of the motion arguably led to the defendant’s plea. He explains that 

the suppression hearing was related to the circumstances surrounding the plea because, but for the 

admissibility of the firearm, he would not have pleaded guilty.

Johnston reads too much into Cross. “Broadly construed,” nearly all pretrial decisions of 

consequence would be related to the circumstances that might motivate the maneuverings of the 

parties prior to trial, such as whether to make or accept an offer, add or dismiss charges, or to 

proceed to trial. See Id. The finality traditionally inherent in a guilty plea would be drastically 

eroded by such an interpretation. Here, the pretrial suppression ruling was simply too attenuated 

to the plea to be properly considered part of the circumstances surrounding the plea.

 

7 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

8 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
No. 56601-0-II

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We hold that when Johnston pleaded guilty, he waived his right to appeal the suppression 

ruling entered below.

II. VALIDITY OF GUILTY PLEA

Separate from his request to directly challenge the suppression decision, Johnston argues 

that his guilty plea was invalid and should be withdrawn. Johnston contends that his guilty plea 

as to Counts II and III was not entered knowingly, intelligently, and voluntarily because the record 

“fails to affirmatively show” that Johnston understood the relationship between his conduct and 

the elements of the crimes charged. Br. of Appellant at 58. Johnston argues that “the record does 

not demonstrate Mr. Johnston understood he needed to know the property was stolen in order to 

be guilty of both trafficking in stolen property (Count [II]) and possession of stolen property 

(Count [III]).” Br. of Appellant at 58; see also RCW 9A.82.050(1); RCW 9A.56.150(1). We 

disagree.9

A. LEGAL PRINCIPLES

“ ‘Whether a plea is knowingly, intelligently, and voluntarily made is determined from a 

totality of the circumstances.’ ” State v. Snider, 199 Wn.2d 435, 444, 508 P.3d 1014 (2022) 

(quoting State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996)).

“ ‘[A] plea does not qualify as intelligent unless a criminal defendant first receives real 

notice of the true nature of the charge against him, the first and most universally recognized 

 

9 The State suggests that Johnston should not be permitted to challenge whether his plea was 

knowing, intelligent, and voluntary as to Count II, arguing that his appeal should be limited to only 

those arguments made below, specifically withdrawing his plea only as to Count III. Nonetheless, 

because Johnston broadly challenges the validity of his plea on the general basis that it was not 

entered intelligently and voluntarily, we do not limit our consideration as urged by the State.
No. 56601-0-II

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requirement of due process.’ ” Id. at 444 (alteration in original) (internal quotation marks omitted) 

(quoting Bousley v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). 

In order to receive this notice, the defendant must “ ‘be aware of the basic elements of the offense 

charged.’ ” Id. (quoting State v. Chervenell, 99 Wn.2d 309, 318, 662 P.2d 836 (1983)). This 

requires an “ ‘aware[ness] of the acts and the requisite state of mind in which they must be 

performed to constitute a crime.’ ” Id. at 444-45 (internal quotation marks omitted) (quoting In re 

Pers. Restraint of Mendoza Montoya, 109 Wn.2d 270, 278, 744 P.2d 340 (1987)).

“When a defendant pleads guilty after receiving a charging document that accurately 

describes the elements of the offense charged, their plea is presumed to be knowing, voluntary, 

and intelligent.” Id. at 445. “That presumption can be overcome by subsequent misinformation 

from the trial court about the elements of the charged crime.” Id.

When a defendant moves to withdraw their plea before sentencing, CrR 4.2 applies. See 

State v. Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012); CrR 4.2 (“If the motion for withdrawal 

is made after judgment, it shall be governed by CrR 7.8.”). Pursuant to CrR 4.2(d), a trial court 

“shall not accept a plea of guilty, without first determining that it is made voluntarily, competently 

and with an understanding of the nature of the charge and the consequences of the plea.” Further, 

a trial court must permit “a defendant to withdraw the defendant’s plea of guilty whenever it 

appears that the withdrawal is necessary to correct a manifest injustice.” CrR 4.2(f).

A manifest injustice is one that is “ ‘obvious, directly observable, overt, [and] not 

obscure.’ ” Branch, 129 Wn.2d at 641 (internal quotation marks omitted) (quoting State v. Saas, 

118 Wn.2d 37, 42, 820 P.2d 505 (1991)). A manifest injustice is shown when the defendant is

(1) denied effective assistance of counsel, (2) the defendant or his agent did not ratify the plea,
No. 56601-0-II

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(3) the plea was not voluntary, or (4) the State failed to keep the plea agreement. State v. Wakefield, 

130 Wn.2d 464, 472, 925 P.2d 183 (1996).

We review the denial of a motion to withdraw a plea under CrR 4.2 for an abuse of 

discretion. State v. Moon, 108 Wn. App. 59, 61, 29 P.3d 734 (2001). However, when the request 

for withdrawal of a plea is based on a claimed constitutional error, such as when the plea is alleged 

to be involuntary, our review is de novo. State v. Buckman, 190 Wn.2d 51, 57-58, 409 P.3d 193 

(2018). Here, based on Johnston’s arguments, we apply a de novo review.

B. APPLICATION

Johnston argues that the omission of the knowledge element for Counts II and III from the 

plea form and the failure of the trial court to specifically inquire about all elements of the counts 

means he may withdraw his plea. For this, Johnston principally relies on three cases: State v. S.M.,

100 Wn. App. 401, 996 P.2d 1111 (2000); State v. A.N.J., 168 Wn.2d 91, 225 P.3d 956 (2010);

and Snider, 199 Wn.2d 435.

In S.M., the State charged S.M., age 12, with three counts of rape of a child in the first 

degree, alleging that S.M. had “sexual intercourse” with his brother. 100 Wn. App. at 403. S.M. 

entered a plea agreement stating that he had “sexual contact” with his brother. Id. S.M. met with 

appointed counsel for only a brief period before the court hearing for entry of his guilty plea. Id. 

In open court, the trial court asked S.M. if he knew the meaning of “sexual intercourse” to which 

S.M. responded affirmatively. Id. at 404. This court held that S.M.’s plea statement did not show 

his understanding of the term “sexual intercourse,” and the trial court’s inquiry into whether he 

understood the meaning of the term, to which S.M. responded, “yes,” also failed to show that S.M. 

understood the charges against him. Id. at 414-15.
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In A.N.J., another case with a juvenile defendant charged with a sex offense, our Supreme 

Court held that A.N.J. could withdraw his guilty plea because the record failed to show that he

understood that “mere contact with another was insufficient to constitute the crime” rather, the 

contact had to occur for the purpose of sexual gratification. 168 Wn.2d at 96, 119-120. As in 

S.M., the defendant in A.N.J. had limited contact with his attorney before entering his plea. Id. at 

120.

Johnston contrasts S.M. and A.N.J. with Snider, in which our Supreme Court held that the 

record established that the defendant understood the elements of the crime charged against him 

and the nature of that crime. Snider, 199 Wn.2d at 450. In Snider, the defendant, Snider, was 

charged with the crime of failure to register, and the plea statement initially omitted the element 

of “knowingly.” Id. at 442-43. However, Snider later added this element in his own handwriting 

and the trial court read out loud this amended plea statement during the plea colloquy. Id. at 443. 

The trial court also engaged Snider in a colloquy to confirm that he understood the charge against 

him. Id. at 450.

Although Johnston acknowledges the factual differences in these cases, he combines their 

holdings to contend that because the trial court only asked general questions, and his plea 

agreement failed to set forth the knowledge requirements of Counts II and III with no corrective 

notations (like in Snider), the record is insufficient to show that he understood all of the elements 

of those counts.

Johnston’s argument is unpersuasive. The totality of the circumstances establish that 

Johnston understood that he was required to act knowingly with regard to Counts II and III. As 

acknowledged by Johnston, the amended information accurately conveyed the knowledge element 
No. 56601-0-II

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for these counts. The original charging documents also accurately conveyed the required elements. 

And Johnston stated in his plea agreement that he was pleading guilty to the charges as stated in 

the amended information and acknowledged that he “received a copy of that Information.” CP at 

41. Johnston also acknowledged that he fully discussed the plea agreement with his counsel, 

understood it, and had no further questions.

Although Johnston’s personal statement of guilt omitted the knowledge element for Counts 

II and III, Johnston pleaded guilty to the charges as stated in the amended information, 

acknowledged receiving the information, and acknowledged signing the plea agreement freely and 

voluntary; the totality of the circumstances show that Johnston was aware of the elements of his 

charged crime.10 We reject Johnston’s request to withdraw his plea.

III. IMPOSITION OF $100 DNA COLLECTION FEE

Johnston argues that the trial court erroneously imposed a $100 DNA collection fee 

because the record is silent as to whether Johnston’s DNA has previously been collected. Johnston 

argues that the State bears the burden of showing that a defendant’s DNA has not previously been 

collected and, if unable, the DNA collection fee must be struck.

When an individual is convicted of a felony, a DNA collection fee must be imposed, unless 

the DNA has been previously collected as a result of a prior conviction. RCW 43.43.754, RCW 

43.43.7541. “[W]hen a defendant has a prior Washington felony conviction, the State must show 

 

10 The factual differences of S.M. and A.N.J. are too substantial to compel a different result here. 

In both cases, the defendants were juveniles who had only limited contact with counsel to discuss 

legal concepts that were not reliably within their knowledge. S.M., 100 Wn. App. 401; A.N.J., 168 

Wn.2d 91. Here, Johnston was an adult who met with counsel and had the charging documents 

that accurately stated the relatively straightforward elements of his crimes.
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that the defendant’s DNA has not previously been collected.” State v. Houck, 9 Wn. App. 2d 636, 

651-52 n.4, 446 P.3d 646 (2019), review denied, 194 Wn.2d 1024 (2020).

At Johnston’s sentencing hearing, the State informed the court that it was asking it to 

impose the $100 DNA collection fee, but commented, “[W]e can hold off on that one, maybe, 

Your Honor. I know he has prior felony convictions. I did not double-check yet to see if that prior 

DNA sample shows up on his NCIC.” VRP at 114. However, no other comments about Johnston’s 

criminal history were made, and the felony judgment and sentence stated that no other criminal 

history was noted. In the end, the trial court imposed the $100 “DNA collection fee (Mandatory).” 

CP at 66.

The record contains no indication that Johnston had a previous felony conviction in 

Washington.11 Johnston, himself, does not claim he has a prior Washington felony conviction.12 

Because there is no evidence of a previous Washington conviction, we affirm the trial court’s 

imposition of the DNA collection fee.

 

11 Although the State never returned to the topic of Johnston’s criminal history before the trial 

court, Johnston signed off on the judgment and sentence that stated that he had no other criminal 

history and imposed an offender score of two with three current convictions.

12 The only suggestion of a prior conviction is found in Johnston’s SAG. There, Johnston states 

that his last conviction was 11 years ago and was for a “non-violent, non-drug class c conviction 

‘damage to gov[ernment] property’ in Federal Court.” SAG at 6.
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IV. SAG

Johnston raises three additional grounds for relief in his SAG. He contends that he received

ineffective assistance of counsel, he was forced to sign the plea agreement, and the record contains

inaccuracies. We hold each of these grounds fails or is unreviewable.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Johnston first contends that his attorney, who represented him at both the suppression 

hearing and his guilty plea hearing provided ineffective assistance of counsel that undermined the 

validity of his guilty plea.

In order to prevail on an ineffective assistance of counsel claim, the defendant must show 

that (1) counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced 

the defense. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). An ineffective assistance 

of counsel claim fails if the defendant fails to satisfy either prong. Id. at 33.

Before the trial court, Johnston moved to withdraw his guilty plea as to Count III on the 

basis that “his previous counsel was ineffective in failing to advise defendant of the consequences 

of his guilty plea and denying access to evidence to make an informed decision regarding his plea.” 

CP at 51. He claimed that his attorney’s performance was deficient and resulted in actual 

prejudice. In support, Johnston submitted a declaration stating that he had repeatedly requested a 

copy of the discovery in his case but “[he] was never provided with a copy or given an opportunity 

to review discovery and therefore had no opportunity to refute the validity of any charges and/or 

evidence against [him].” CP at 52.

In his SAG, Johnston again contends that his counsel failed to provide him full discovery

under each cause number when Johnston requested it. He claims he was not provided full 
No. 56601-0-II

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discovery until after he signed the plea agreement. At that point, he “still wanted to withdraw [his]

plea.” SAG at 3.

Here, even assuming deficient performance based on this discovery issue, Johnston cannot 

show prejudice. It is unclear how the discovery documents would have assisted him in refuting 

the charges against him or how the outcome of his case would have differed. In fact, Johnston 

indicates that when he was provided the discovery, he still maintained his desire to withdraw his 

guilty plea. Because there is no showing that the failure to provide the sought-after discovery 

resulted in prejudice, Johnston’s ground fails.

Next, Johnston alleges that he was provided ineffective assistance of counsel because his 

attorney had a conflict of interest. Specifically, Johnston asserts that his previous attorney had a 

“relationship with a former Judge of Kitsap County and the actual owner of the stolen firearm in 

case 1.” SAG at 1.

13

“[T]he right to effective assistance of counsel includes the right to conflict-free counsel.” 

In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142 (2014). “To show a violation 

of [that] right, a defendant must show that (a) defense counsel ‘actively represented conflicting 

interests’ and (b) the ‘actual conflict of interest adversely affected’ [counsel’s] performance.” Id.

at 348-49 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)).

Here, not only does Johnston fail to explain the type of relationship his counsel may have 

had with these other persons, there is no evidence of any alleged relationships within the record. 

See State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995) (a reviewing court does 

 

13 Defendant hand-numbered his SAG and labeled the first two pages as page 1. This quote comes 

from the second page 1.
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not review alleged errors that are outside the record on direct appeal). Therefore, we do not 

consider Johnston’s ineffective assistance of counsel claim based on a conflict of interest.

B. FORCED TO SIGN PLEA AGREEMENT

Johnston next contends that he was forced to sign the plea agreement.

As explained above, we look to the totality of the circumstances when determining if a plea 

agreement is voluntary. Snider, 199 Wn.2d at 444. “A guilty plea is involuntary and invalid if it 

is obtained by mental coercion overbearing the will of the defendant.” State v. Williams, 117 Wn. 

App. 390, 398, 71 P.3d 686 (2003), review denied, 151 Wn.2d 1011 (2004).

Johnston claims his counsel informed him that he had 30 minutes to accept the plea 

agreement, and he also asserts that he had no money to employ additional counsel, suggesting that 

this also caused him to enter the plea. Before the trial court, when he moved to withdraw his guilty 

plea as to Count III, Johnston made similar arguments, declaring that he felt rushed to enter the 

plea agreement and he did not have additional money that would permit him to continue litigating 

the charges against him.

But, as noted above, Johnston signed the plea agreement, which stated that he was signing 

it freely and voluntarily. The trial court asked Johnston a series of questions, including whether 

he was forced to sign the plea agreement, stating: “Other than the plea offer that’s being made 

here, is anybody making threats or promises to you or forcing you or coercing you to plead guilty?” 

VRP at 85. Johnston responded that he was not forced or coerced. The record shows that Johnston 

had the opportunity to state that he felt forced into taking the plea, but he failed to do so. Nothing 

else in the record plausibly relates to facts about Johnston being forced to sign the plea agreement. 

This ground fails.
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C. FACTS UNDERLYING CHARGES

Finally, Johnston alleges that errors in the record violated his rights. Specifically, Johnston 

alleges that (1) errors exist in the police report, (2) an officer’s statement did not match the police 

report, (3) Johnston had his registration and insurance at the time that Deputy Jorgensen stopped 

the driver of the vehicle; however, the deputy did not accept or look at them, (4) Deputy Jorgensen 

failed to inform Johnston of the reason for his arrest, and (5) Deputy Jorgensen acted as if he knew 

Johnston, however, Johnston has had no recent felony convictions.

All of these claimed errors rely on facts that are not contained in our record. Therefore, 

we cannot review them. McFarland, 127 Wn.2d at 338 n.5; State v. Alvarado, 164 Wn.2d 556, 

569, 192 P.3d 345 (2008) (issues that rely on facts outside of the record should be raised in a 

personal restraint petition, not a SAG).

CONCLUSION

Johnston’s guilty plea was entered knowingly, intelligently, and voluntarily. Accordingly, 

he waived his ability to appeal the pre-plea suppression ruling and may not withdraw his plea. 

Further, the trial court did not err by imposing the $100 DNA collection fee, and the grounds raised 

in Johnston’s SAG either fail or are unreviewable.

We affirm.
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A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

PRICE, J. 

We concur:

LEE, P.J.

CHE, J.