Opinion
No. 60322-1-I.
October 13, 2008.
Petition for relief from personal restraint.
UNPUBLISHED OPINION
Erik Barnes ("Barnes") filed a personal restraint petition alleging ineffective assistance of counsel based on failure to file a suppression motion. This court remanded to the trial court for a reference hearing. The trial court concluded that counsel had rendered effective assistance. We deny the petition.
FACTS
On February 11, 2000, Barnes was involved in a one-car accident on I-5 near Marysville, Washington. Before police arrived, Barnes exited his vehicle and stood approximately fifteen feet in front of his car, talking on his cell phone. Troopers Daniel Anderson and Andrew Stoeckle of the Washington State Patrol arrived to investigate the accident. Trooper Anderson persuaded Barnes to be examined in the ambulance. Barnes refused any treatment and exited the ambulance.
Trooper Anderson placed Barnes under arrest for driving under the influence. At the time of the arrest, Barnes stood approximately fifteen feet away from the car. As Trooper Anderson arrested Barnes, he instructed Trooper Stoeckle to search the car. Trooper Stoeckle conducted a search of the car, discovering a .357 magnum handgun. Because of a hole in the back deck of Barnes' car, Trooper Stoeckle saw a rifle case in the trunk. Based on this information, the police obtained a search warrant for the trunk. When the trunk was searched, police found the rifle and two containers of methamphetamine.
The DUI charge was later dismissed.
Karen Halverson ("Halverson") was appointed as Barnes' counsel. Halverson did not move to suppress the evidence obtained in the search incident to arrest. A jury found Barnes guilty of possession of methamphetamine with intent to deliver, first degree possession of stolen property, and two counts of first degree unlawful possession of a firearm.
Barnes appealed his convictions. This court reversed his conviction for one count of unlawful possession of a firearm. The Supreme Court granted review and affirmed. State v. Barnes, 153 Wn.2d 378, 103 P.3d 1219 (2005).
Barnes then filed a personal restraint petition challenging his remaining convictions, and alleging ineffective assistance of counsel for failure to file a motion to suppress the evidence obtained in the search incident to arrest. His petition was remanded to Snohomish County Superior Court for a reference hearing.
Trooper Anderson, Trooper Stoeckle, Barnes, and Halverson testified at the reference hearing that took place on April 26 and June 15, 2007. The trial court found that Halverson's decision not to file a suppression motion was reasonable under the circumstances, and concluded that her performance was not deficient. The trial court also determined that the search of Barnes' car fell within the search incident to arrest exception.
DISCUSSION
I. STANDARD OF REVIEW
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). To show prejudice, the defendant must prove that, but for the deficient performance, there is a reasonable probability that the outcome would have been different. Matter of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998), as amended. If one of the two prongs of the test is absent, we need not inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007), review denied, 162 Wn.2d 1007 (2007). Competency of counsel is determined based upon the entire record below. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972) (citing State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969)).
A court's findings of fact at a reference hearing are reviewed for substantial evidence. In re Gentry, 137 Wn.2d 378, 410, 972 P.2d 1250 (1999). "Substantial evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded, rational person that the declared premises are true." Id. (quoting Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 112, 937 P.2d 154, 943 P.2d 1358 (1997), cert. denied, 522 U.S. 1077, 118 S. Ct. 856, 139 L. Ed. 2d 755 (1998)). Credibility determinations are not reviewed on appeal. Id. We review the trial court's conclusions of law de novo. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
II. FINDINGS OF FACT
Barnes assigns error to four of the court's findings of fact, but he has provided no argument regarding two of them: that Halverson conducted an adequate investigation into the possibility of bringing a suppression motion based on an illegal search incident to arrest, or to the court's finding that Halverson made a tactical decision not to pursue such a motion. An assignment of error that is unsupported by argument is considered waived. State v. Goodman, 150 Wn.2d 774, 782, 83 P.3d 410 (2004).
Barnes argues that the court erred in finding that his car door was open and unlocked. Trooper Anderson, Trooper Stoeckle, and Barnes gave conflicting testimony as to the status of the door at the time of arrest. Trooper Anderson testified that he believed it was closed. Trooper Stoeckle testified that the door was open. Barnes testified that he had kicked the door shut and locked it.
The trial court found: "The credibility on that issue as to whether the door was locked or unlocked, the Court resolves the credibility issue in favor of the officer over Mr. Barnes." The trial court found that the door was not locked and was accessible. The testimony of Officer Stoeckle, upon which the trial court relied, supports the finding. We hold the finding is supported by substantial evidence.
Barnes also argues that the court erred in finding that at the time of the arrest, he had the ability to reach or lunge into his vehicle and obtain any weapons or contraband that may have been stored there. Trooper Stoeckle and Barnes testified that Trooper Anderson conducted field sobriety tests between Barnes' vehicle and Trooper Anderson's vehicle. Barnes was also handcuffed. Barnes argues this prevented him from reaching or lunging into the passenger compartment. However, at the time prior to arrest, Barnes was standing approximately fifteen feet away from his car and the door was unlocked. The finding that Barnes could have accessed the vehicle is supported by substantial evidence.
The finding states that at the time of arrest he had the ability to reach or lunge into his vehicle. Barnes' argument is based on a literal interpretation of this language (that he was in handcuffs and so it was impossible for him to reach or lunge into his car.) The search incident to arrest doctrine does not contemplate such a strict definition of "at the time of arrest." "At the time of arrest" includes the time just before the arrest takes place, when the arrestee could have gained access to weapons or destroyed evidence. See State v. Fore, 56 Wn. App. 339, 347, 783 P.2d 626 (1989).
III. CONCLUSIONS OF LAW
Barnes claims that Halverson's performance was deficient, because she failed to file a motion to suppress the methamphetamine and guns found in his car. The trial court concluded that Halverson's performance was not deficient and that the search was lawful, precluding a finding of prejudice.
A motion to suppress evidence should be filed when there are serious questions about the validity of the search, unless there is a tactical reason for not doing so. State v. Reichenbach, 153 Wn.2d 126, 130-31, 101 P.3d 80 (2004). Counsel's decision not to file the motion is presumed to be legitimate. State v. McFarland, 127 Wn.2d 322, 336-37, 899 P.2d 1251 (1999). The defendant must show that counsel's actions were "outside the wide range of professionally competent assistance." Strickland, 446 U.S. at 690.
The key findings of fact are: Barnes was within fifteen feet of his vehicle at the time of arrest, the door of the vehicle was unlocked and the vehicle was accessible to him, Halverson made adequate investigation into the possibility of filing a motion to suppress, and Halverson made a tactical decision not to file such a motion. The first two findings support the proximity requirements of State v. Fore, 56 Wn. App. 339, 347, 783 P.2d 626 (1989) (requiring a "close physical and temporal proximity between the arrest and the search") and are consistent with the circumstances contemplated in State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986) (permitting vehicles searches incident to arrest "immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car," even though the justifications for the search may no longer exist). The third finding does not support deficient performance. And finally, the finding that Halverson made a tactical decision not to file a motion precludes ineffectiveness because "deficient performance is not shown by matters that go to trial strategy or tactics." State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
Barnes has failed to show that counsel's conduct fell below the objective standard of reasonableness. We need not consider the issue of prejudice.
We deny the petition.