IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ; 1 NO. 71493-7-1 Respondent,

v. DIVISION ONE 1 ro

— MICHAEL ANTHONY GLASS, UNPUBLISHED OPINION Appellant. FILED: March 2, 2015 c 

### Lau, J. — Michael Glass pleaded guilty to two counts ofdomestic violence felony violation of a court order, two counts of misdemeanorfourth degree assault—domestic 

### violence—and one count of first degree unlawful possession of a firearm. At his 

### sentencing hearing, he moved pro se to withdraw his guilty plea alleging that he received ineffective assistance of counsel. The trial court denied his motion. On 

### appeal, Glass alleges the trial court erred when it denied his motion towithdraw his 

### guilty pleas based on ineffective assistance of counsel without appointing new counsel to litigate his claims. He also alleges that the finding in the judgment and sentence related to an ongoing pattern ofabuse must be vacated. Because Glass failed to establish either deficient performance by trial counsel or 

### prejudice, thetrial court actedwithin its discretion to denyappointment of newcounsel71493-7-1/2


### and to deny his motion to withdraw his guiltypleas. Butbecause the State properly concedes itagreed to dismiss the "ongoing pattern ofabuse" aggravator, we remand with instructions to the trial court to strike or vacate the aggravatorfinding. FACTS AND PROCEDURAL HISTORY1 The record shows the following facts: Michael Glass and Makeba Winstead were involved romantically for eight years. Between 2008 and 2012, Glass was convicted of multiple acts of domestic violence involving Winstead. On April 6, 2013, Winstead was at Glass's home. During an argument, Glass bit Winstead's hand. The wound required emergency treatment and stiches to her palm and fingers. 

### Less than a week later, on April 11, Winstead and her sister, TiffanyJones, went to Glass's home to retrieve some of her belongings. Glass was not present but returned while the two were still inside. Winstead tried to leave and put her hand on the front 

### door knob. Glass grabbed her hand, rippingthe stitches open. Jones stated that Glass squeezed Winstead's injured hand "very hard" and she could see the hand was 

### bleeding. Glass drove Winstead and Jones to Virginia Mason Hospital. The hospital social worker told investigating Police Officer M. Harris aboutWinstead's April 6 

### emergency room visit and medical treatment. Winstead told Officer Harris aboutthe 

### April 6 and April 11 assaults. He confirmed the existence of twovalid no-contact orders prohibiting Glass from contacting Winstead.



### 1Because Glass entered a guiltyplea before trial, the facts related here are set 

### out in the certificate ofprobable cause filed by Seattle Police Detective Nicole Freutel. -2-71493-7-1/3 Christy Olson lives next door to Glass and his mother. She told Detective Nicole 

### Freutel thatWinstead stayed at the Glass residence since August or September 2012 when Glass got out of jail. She also reported seeing Glass's new girlfriend, Sarah Chaffee-Leingang, at the Glass residence within the pastfew months. Olson said she heard a loud disturbance at the Glass residence. Olson heard Winstead say, "Stop it," "leave me alone—you're hurting me," followed by Glass swearing loudly atWinstead in

an "ugly mean voice." She also heard Glass yell, "I'll kill her," referring to Winstead. Olsen said she saw Glass and Winstead leave in his car afterWinstead begged Glass to take her to the hospital. Later, Olsen saw Glass and Leingang return and remove a 

### large rifle out ofthe trunk. She called 911 because she was afraid Glass would kill Winstead. Officer Harris spoke with Glass while investigating the assault, and he recovered the rifle. 

### Officer Welch contacted Leingang. She told him she was Glass's new girlfriend. She claimed that Winstead threatened her numerous times, assaulted her, broke into Glass's residence, and stole items. Leingang also said she was with Glass all day and the assault on Winstead never happened. 

### During a traffic stop, Glass identified himself to Officer Morrison as "Michael Glass." When the officer asked him where he was coming from, he said the hospital. 

### On September20, 2013, the State charged Glass by firstamended information with two counts ofdomestic violence felony violation of a court order, two counts of 

### assault in the fourth degree—each with an "ongoing pattern ofabuse" aggravator—and

one count of unlawful possession of a firearm inthe first degree.

-3-71493-7-1/4
Trial began on the morning of September 27, 2013, with pretrial motions. Bythe afternoon session, the parties notified the court of a negotiated plea agreement. The State agreed to dismiss the ongoing pattern of abuse aggravator and to recommend a prison-based drug offender sentencing alternative (DOSA). Inexchange, Glass pleaded guilty as charged inthe amended information. Atthe sentencing hearing on November 1, 2013, Glass filed two letters and argued pro se to appoint substitute counsel and to withdraw his guilty plea. 

### In his first letter, dated September 12, 2013,2 Glass wrote that he was aware that
a defendant has a right to assistance ofcounsel. Glass wrote, "Your Honor Ifeel without a reasonable doubt that my present counsel and Icannot and will not mitigate 

### atonementformollifying representation." Glass claimed a breakdown in communication with his attorney. His second letter, undated, thanked the court and those involved inthe DOSA 

### program. Glass wrote that he was "expressing complete ineffective assistance of counsel." He wrote that his attorney had visited him a "mere maximum of 4 times" while 

### awaitingtrial and that his requests forcase information had been ignored. He wrote that he wanted to tell his attorney aboutWinstead's convictions forcheckfraud and his 

### family's attempt to keep Winstead from visiting the house. He claimed his attorney failed to interviewWinstead. Finally, he wrote that his attorney had "railroaded" him by 

### saying "we cannotwin" before informing him about the State's plea offer.

2The record shows thatthis letterwas not presented to the court untilthe 

### sentencing hearing on November 1, 2013. -4-71493-7-1/5
The court asked whether Glass understood that ifhe withdrew his plea, he was not guaranteed a DOSA sentence. Glass responded that he wanted a new attorney to present additional mitigating evidence to get a better plea offer. The court continued the hearing to review Glass's letters and to determine whether Glass had established a prima facie case warranting an evidentiary hearing. In an order dated November 4, 2013, the court denied Glass's motion for new 

### counsel and to withdraw his plea ofguilty.3 Glass submitted a third letter, filed on November 19, 2013, asking the court to 

### reconsider its ruling. He repeated his claims and provided details about his family's history withWinstead and her priorfalse accusations. The court sentenced Glass on November 22. At that hearing, Glass filed a 

### motion and fourth letter, repeating his assertions and asking to withdraw his plea. The
court denied his motion.4 

### The court imposed a prison-based DOSA on the two counts offelony violation of a court order and the one count of unlawfulpossession of a firearm, which resulted in a total of 39 months ofconfinement and 39 months ofcommunity custody. On the two

3 The court's order stated: 

### "THIS MATTER came before the undersignedjudge on defendant's motion of 

### withdrawal ofguilty plea and motion for appointmentof new counsel. TheCourt, having considered the defendant's motion, and being fullyadvised inthe premises: "IT IS HEREBY ORDERED that the defendant's motion ofwithdrawal of guilty 

### plea and motion for appointment of new counsel is DENIED." 4The State claims that the court allowed Glass to make a record of his last motion and read his fourth letter to the court. The record shows thatthe court allowed 

### Glass to readaloud only a portion of hisletter. The motion and letterare included in our record. -5-71493-7-1/6


### assault charges, both misdemeanors, the court imposed concurrent 364-day sentences. Glass appeals.
ANALYSIS 

### Glass claims that the trial court erred by denying his motion to withdraw his plea without appointing new counsel to represent him. Glass argues that (1) he experienced

a breakdown in communication with his attorney, (2) his attorney failed to investigate his case, and (3) his attorney failed to provide him with discovery. We are not persuaded by these arguments. Criminal defendants have a Sixth Amendment right to counsel at a plea 

### withdrawal hearing. State v. Harell, 80 Wn. App. 802, 804, 911 P. 2d 1034 (1996). Glass's requestfor new counsel occurred inthe context of, and was based on, his motion to withdraw his plea for ineffective assistance ofcounsel. 

### Under CrR 4.2(d), the trial court "shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding ofthe 

### nature of the charge and the consequences of a plea." A court must allow withdrawal of a guilty plea if"necessary to correct a manifest injustice." CrR 4.2(f). Amanifest 

### injustice is one that is "'obvious, directlyobservable, overt, not obscure.'" State v. Saas. 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor. 83 Wn.2d 594, 596, 

### 521 P.2d 699 (1974)). This is a demanding standard, justified by the safeguards 

### protecting the defendant at the time the plea isentered. State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996); Taylor. 83 Wn.2d at 596. Ineffective assistance of counsel constitutes a manifest injustice. State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192(2001). -6-71493-7-1/7
For claims of ineffective assistance of counsel during the plea process, we apply the test used in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Stowe. 71 Wn. App. 182, 186, 858 P.2d 267 (1993). Under that test, a defendant must show (1) deficient performance and (2) prejudice. Strickland. 466 U.S. at 687. We strongly presume effective representation. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). To establish deficient performance, the defendant must overcome the presumption that underthe circumstances, the 

### challenged action might be considered sound trialstrategy. Strickland. 466 U.S. at 689. We need not inquire further ifthe defendantfails to establish either prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). 

### In plea bargaining, effective assistance ofcounsel merely requires counsel to 

### actually and substantially assistthe defendant in deciding whether to pleadguilty. State

v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984). To show prejudice, the defendant 

### must show that there is a reasonable probability that, but forcounsel's errors, he would 

### not have pleaded guilty and would have insisted on a trial. State v. Garcia, 57Wn. App. 927, 933, 791 P.2d 244 (1990); State v. McCollom, 88 Wn. App. 977, 982, 947 P.2d 

### 1235 (1997). Generally, this is shown by demonstrating to the court some legal or factual matter that was notdiscovered bycounsel or conveyed to the defendant himself before entry of the plea ofguilty. The Supreme Court has explained: 

### "[W]here the alleged error of counsel is a failure to investigate or discover 

### potentially exculpatory evidence, the determination whether the error'prejudiced' the defendant by causing him to plead guilty rather than go totrial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in 

### large part on a prediction whether the evidencelikely would have changed the outcome of a trial." -7-71493-7-1/8



### Garcia. 57 Wn. App. at 933 (quoting Hill v. Lockhart. 474 U.S. 52, 59, 106 S. Ct. 366, 88 L.Ed. 2d 203 (1985)). We review denial of a motion to withdraw a guilty plea for abuse ofdiscretion. Marshall, 144 Wn.2d at 280. Likewise, the determination ofwhether an indigent's dissatisfaction with his court-appointed counsel warrants appointment ofsubstitute counsel rests within the sound discretion ofthe trial court. State v. Stark, 48 Wn. App. 

### 245, 252, 738 P.2d 684 (1987). A trial court abuses its discretion when itbases its 

### decision on untenable grounds or reasons. State v. Nguyen, 131 Wn. App. 815, 819, 129P.3d821 (2006). Failure to Communicate 

### Forthe first time at sentencing, Glass raised his attorney's deficient 

### representation by arguing therewas acommunication breakdown with his attorney.5 The prosecutor's comprehensive pleacolloquy and thetrial court'sfollow upcolloquy demonstrate no communication breakdown between Glass and his attorney.6 For 

### example, when asked abouthis discussions with his attorney, Glass expressedgeneral satisfaction with his attorney's advice. He also acknowledgedin one of his lettersfiled with the court that his attorney met with him four times before trial. 

### THE COURT: Okay. All right. And so, Mr. Glass, do you feel that you 

### had enoughtime toconferwith [yourattorney] about whetherto go totrial onthis case or acceptthe—the State's plea offer? 

### 5Nothing in ourrecord shows Glass evermoved to discharge hisattorney before 

### sentencing andhis attorney never sought towithdraw based onirreconcilable conflicts. And Glass did not raise any of his concerns to the trial court when trial began. 

### 6The pleacolloquy undermines Glass's bare assertion of duress. -8-71493-7-1/9

THE DEFENDANT: You know, Your Honor, in a situation like this, there's—there's always doubt and questions eitherway. But, yes, Ihad enough time to review and make a cognizant decision. THE COURT: Okay. And are you comfortable going forward now with your plea? THE DEFENDANT: Yes, I am. 

### THE COURT: Okay. All right. And did you carefully review both these plea forms with [your attorney]? THE DEFENDANT: I did. THE COURT: -before you signed them? THE DEFENDANT: I did. 

### THE COURT: Okay. All right. And do you—have you had enough time to 

### discuss with [your attorney] thejoint recommendation for a prison-based DOSA? THE DEFENDANT: Yes, I have. 

### Report ofProceedings (Sept. 26, 2013) (RP) at 59-61. 

### [THE STATE]: And he's gone over both your documents, the documents 

### you havein front ofyou, your Statement on Plea ofGuiltyforthefelony and misdemeanor matters? THE DEFENDANT: Yes. Yes. 

### [THE STATE]: Answered all yourquestions to the best of hisability? THE DEFENDANT: Yes. 

### [THE STATE]: You feel confidentthatyou—based onyour consultation with [your attorney], thatyou understand the consequences associatedwith pleading guilty to these offenses? THE DEFENDANT: Yes, Ido.
RP at 38. 

### During the State's colloquy, theprosecutorasked Glasswhetherheunderstood the elements the State was required to prove ifhe chose to go to trial: 

### [THE STATE]: Nowthatyou had an opportunity to speakwith [your attorney] and reviewtheAmended Information, doyou understand all the elements that each of the five charges that you would plead guilty to that the 

### state would have toprove beyond a reasonable doubtifwe went totrial? THE DEFENDANT: Yes. 

### [THE STATE]: Do you understand by pleading guiltytoall theseoffenses, that you're waiving yourrightto a trial? THE DEFENDANT: Yes, Ido. -9-71493-7-1/10

RP at 40. 

### The State discussed each ofthe constitutional rights Glass would be waiving. The State asked whether his attorney had gone overthose rights with him: [THESTATE]: Have you reviewed each ofthese rights with [your attorney? THE DEFENDANT: Yes, Ihave. [THE STATE]: Do you understand by pleading guilty to the offenses that we've discussed already this afternoon, that you are waiving each ofthose rights in paragraph five listed Athrough F? THE DEFENDANT: Yes, Ido.
RPat41. The record here plainly demonstrates that Glass's attorney provided actual and substantial assistance to Glass on the decision whether to plead guilty. Otherthan bare assertions, nothing of record indicates a breakdown ofcommunication between Glass and his trial counsel. Failure to Investigate 

### Glass also claims his attorney failed to investigate.7 Generally, an attorney must perform an adequate investigation prior to recommending a guilty plea. State v. A.N.J., 168 Wn.2d 91, 109-12, 225 P.3d 956 (2010). In particular, Glass cites his attorney's failure to interview his family and Winstead about her statement that "ifshe could not have me, no one could." He claimed the interviews would show Winstead initiated contact and stalked the house. But the record shows that defense counsel interviewed Winstead. Counsel's trial



### 7Glass neglects to mention that his attorney soughtto subpoena Leingang for trial as soon as the State released her from its subpoena. Presumably, she would 

### testify inaccordance with her statement summarized above. -10-71493-7-1/11
memorandum informed the court that he needed more time to complete Winstead's 

### defense interview: "Makeba Winstead has yet to be interviewed to a conclusion by the defense. The parties have scheduled the completion ofher interview at 11:30 on the morning ofthe first day of trial. The Court is requested to recess for this interview." The record indicates the court recessed to allow the interview to take place. In 

### defendant's presentence reportfiled withthe court, his attorney wrote, "Atthe defense interview, [Winstead] reported that she is in recovery." We also reject Glass's claim that his attorney should have investigated his claim thatWinstead initiated contact with him and stalked the house. Even assuming Winstead initiated contact with Glass, consent by the protected party is not a defense to charges offelony violation of a court order. State v. Dejarlais, 136 Wn.2d 939, 946, 969 P.2d 90 (1998). Glass cannot show that failure to investigate this issue would either undermine counsel's assistance or change his decision to accept the State's offer. And Glass fails to explain how any information gained from family interviews would have altered counsel's plea recommendation or his own decision to accept the State's offer. His conclusory assertion that he wanted a better plea deal or that he felt "railroaded" is insufficient to meet his burden. Furthermore, there is no absolute requirement that counsel interview all witnesses before trial. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998). Glass fails to overcome the presumption that this decision was a strategic choice by counsel.

-11-71493-7-1/12 

### Glass also incorrectlyargues that his attorney failed to raise evidence of Winstead's prior crimes ofdishonesty.8 The record shows that the trial court, the State, 

### and defense counsel discussed Winstead's convictions forcrimes ofdishonesty. Before trial, the parties stipulated that her convictions forcrimes ofdishonesty within the last 10 years were admissible under ER 609. The court, the State, and defense counsel also discussed the admissibility of Osborne's prior convictions at trial. Glass's claim thatthis evidence would have altered either the State's plea offer or his decision to accept it is unpersuasive. None ofthe alleged investigation failures Glass asserts involve exculpatory evidence. Glass must show that there is a reasonable probability he would not have pleaded guilty butfor the alleged failures ofcounsel. McCollom, 88 Wn. App. at 982. When Glass moved to withdraw his plea, he stated that he wanted a better offerfrom
the State: THE COURT: Okay. All right. And so, Mr. Glass, you are—with the understanding that this is a recommended DOSA, you're still asking the Courtto allow you to withdraw your guilty plea so that you can have a trial. Am Icorrect? THE DEFENDANT: So that Ican have another attorney at least present more mitigating evidence to—in support ofbetter plea offer, ifthat should be something that comes up at that point in time. 

### RP (Nov. 1, 2013) at 72. Glass fails to show that his attorney neglected to adequately investigate his case. And he makes no showing that he would have rejected the State's 

### offer and gone to trial but for this alleged failure.9

8In his second pro se letter, Glass claimed, "These mitigating factors play a huge role in the mitigation process." 

### 9Hisattorney successfully negotiated a plea agreement that resulted in a DOSA sentence and dismissal of the aggravator. The record establishes that given Glass's -12-71493-7-1/13

Failure to Provide Discovery 

### Glass contends that his attorney failed to share discovery with him. He relies on CrR 4.7(h)(3). That rule provides: 

### Custody of Materials. Any materials furnished to an attorney pursuantto these rules shall remain in the exclusive custody ofthe attorney and be used only for 

### the purpose ofconducting the party's side of the case, unless otherwise agreed 

### by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a 

### defense attorney shall be permitted to provide a copy of the materials to the defendant aftermaking appropriate redactions which are approved by the prosecuting authority or order of the court. 

### Thisrule was amended in 2005 by adding new language to subsection (h)(3) governing 

### custody ofmaterials. Theamendment permits a prosecuting attorney and defense attorneyto agree on, or thecourttoorder, anexception to therequirementthat 

### discovery materials remain in the"exclusive custody" ofthedefense attorney butonly aftermaking appropriate redactions ofsensitive information as approved bythecourtor prosecuting attorney. 

## history and the State's evidence, his attorney negotiated areasonable and beneficial resolution for Glass. 

### Forexample, Glasstold thecourt onNovember2,2013, that hetook 

## responsibilityfor his actions and then stated hewished to have newcounsel sothathe could obtain abetterplea offer. In his second letter, he expressedhis gratitudefor 

## being allowed to participate in the DOSA program and getdrug treatment. And at sentencing on November22, 2013, he stated he looked forward to being apartofthe DOSA program and that hethought itwould assist him greatly. Glass's second letter stated in pertinent part: 

### "YourHonor, Thankyou foryourtime andefforts. Iwould alsolike to 

## acknowledge and thankthe parties involved in theforefront and behindthe scenes who put the DOSA program together. 

## "I truly believethatmy philandering relationship with drugs and alcoholwould have cut mylife span drastically, ifnotended it! 

## "Mythanks and gratitudego outto the individuals behindthe programwho are 

## unequivocallyseeking outthe mostpositivelyeffective solutionsforpeoplewho struggle with addiction. Though I'm expressing genuine appreciationforthe State's concernfor the above issue, Iultimately bear the responsibilityfor my actions." -13-71493-7-1/14 

### Glass claims,with no citation to authority, that "[competentcounsel provides his client with discovery." Appellant's Br. at 9. An appellate court need not consider issues unsupported by citation to authority. State v. Lord. 117 Wn.2d 829, 853, 822 P.2d 177 

### (1991). Where no authorities are cited insupport of a proposition, the court is not 

### required to search out authorities but may assume that counsel, after diligentsearch, has found none. State v. Logan, 102 Wn. Add. 907. 911 n.1. 10 P.3d 504 (2000). We 

### also note as quoted above, that CrR 4.7(h)(3) generally requires that discovery materials remain inthe "exclusive custody" ofthe defense attorney.10 Glass also relies on an isolated quote from State v. Yates: "In order to provide adequate information for informed pleas, expedited trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protections of persons, effective law enforcement, the adversary system, and national security." 111 Wn.2d 793, 797, 765 P.2d 291 (1988) (quoting Criminal Rules Task Force, Washington Proposed Rules ofCriminal Procedure 77 (1971)). Yates is not controlling. There, the issue dealt with whether the trial court abused its discretion when itordered defense counsel to produce for in camera review all transcripts of 

### interviews, notes taken during such interviews, and summaries ofinterviews ofState's 

### witnesses prepared bydefense counsel and defense investigator.11 As to Glass's assertion the court erred by not appointing new counsel to represent him on his motion to withdraw his guilty plea, he presented the trial courtwith 

### 10 Despite opportunities to raise this alleged failure withthe trial court before and during the plea hearing, Glass remained silent until he soughtto withdraw his guilty plea. 11 Yates predates the 2005 amendment to CrR 4.7(h)(3). -14-71493-7-1/15 

### nothing more than mere allegations. He failed to make the required threshold showing that his plea was not valid based on trialcounsel's alleged deficient performance. See 

### State v. Quv DinhNguyen. 179 Wn. App. 271, 283, 319 P.3d 53 (2013) ("The trial court's approach, requiring an initial threshold showing of a validbasis for Nguyen's motion to withdraw his plea, was reasonable"). "[A] trial court is not required to waste valuable court time on frivolous or unjustified CrR 4.2 motions." State v. Davis, 125 Wn. App. 59, 68, 104 P.3d 11 (2004). The court is not required to appoint new counsel when ithas evaluated the defendant's claim and determines it is baseless. State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987) (declining to adopt a rule requiring the appointment ofsubstitute counsel incases in which defendantwishes to argue his counsel's ineffectiveness). Aggravator Glass contends the case should be remanded to correct a scrivener's error in the 

### judgment and sentence. The State agreed, as part ofthe plea agreement, to dismiss the aggravating circumstance—the offenses are domestic violence offenses that were part of an ongoing pattern ofabuse ofthe same victim. The State properly concedes this error. We accept the concession and remand to the trial court with instructions to vacate or strike the aggravator. CONCLUSION Because Glass fails to establish either deficient performance by his trial counsel 

### or prejudice resulting fromcounsel's alleged deficiencies, the trial court acted well within its discretion by denying Glass's motion for new counsel and to withdraw his plea of 

### guilty. Because the State properly concedes that the "ongoing pattern of abuse" finding -15-71493-7-1/16
inthejudgment and sentence is erroneous, we affirm thejudgment and sentence but remand with instructions to strike or vacate the aggravator finding.


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