State Of Washington, Resp. V. John W. Jackson, App.

20IUUN 16 	AH 9^5
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOHN WESLEY JACKSON, JR.,
Appellant.
No. 69802-8-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 16, 2014
Leach, J. — John Jackson Jr. appeals the trial court's denial of his motion
to withdraw his guilty plea. 	He claims that his trial counsel did not provide
effective 	assistance 	during 	plea 	negotiations 	because 	the 	attorney failed 	to
inform Jackson of the State's burden to disprove his self-defense claim. 	He also
claims that his sentence for attempted assault in the first degree exceeds the
statutory maximum. 	In a statement of additional grounds, he further claims that
the 	court 	had 	no 	basis 	to 	impose 	an 	exceptional 	sentence, 	that the 	court
sentenced him twice on one cause number and improperly imposed consecutive
sentences, and that the court violated his right to a speedy trial. 	Because we
accept the State's concession that the imposed period of community custody,
when 	combined 	with 	Jackson's 	imposed 	term 	of 	incarceration, 	exceeds the
statutory maximum sentence for attempted assault in the first degree, we remand
to the trial court either to amend the community custody term or to resentence

No. 69802-8-1 / 2
Jackson on the attempted assault conviction consistent with RCW 9.94A.701(9).
Because Jackson's remaining claims are meritless, we otherwise affirm.
Background
Jackson rented two rooms in a building that Anthony Narancic managed.1
After Jackson moved out of the building in September 2011, Narancic retained
his security deposit. 	Narancic received several threatening telephone calls from
Jackson, demanding that Narancic return his security deposit.
On October 4, 2011, Jackson offered another tenant money to call him
when 	Narancic appeared 	on the 	property. 	After this 	tenant called, 	Jackson
rushed into Narancic's office and beat him over the head with a 	metal club or
pipe. 	Vincent Pettie rushed into the office and held down Narancic while Jackson
continued to beat Narancic and told Narancic that he would kill him. 	As Jackson
and Pettie drove away, Jackson yelled, "I'm a gangster" and "I'll fucking kill you."
When police arrested Jackson, he stated that he and Narancic got into a
"tussle" and that "[i]t was a fair fight." Jackson denied assaulting Narancic with a
pipe.
The State charged Jackson with assault in the first degree. 	Before trial,
Jackson told the court that he intended to raise a self-defense claim.
1 Jackson stipulated that the court could consider the facts contained in
the 	certification 	for 	determination 	of 	probable 	cause 	and 	the 	prosecutor's
summary for purposes of the sentencing hearing. 	After Jackson filed the motion
to withdraw his guilty plea, the trial prosecutor submitted a declaration to the
court detailing the State's anticipated evidence at trial.

No. 69802-8-1 / 3
The parties reached a plea agreement on the third day of trial. 	Jackson
agreed 	to 	plead 	guilty 	to 	attempted 	assault 	in the 	first 	degree 	and 	felony
harassment. 	The 	parties 	agreed 	that the 	prosecutor would 	recommend 	an
exceptional sentence above the standard range of 120 months on the assault
count, the statutory maximum, and 60 months on the harassment count, to run
consecutively. 	The prosecutor would also recommend 36 months of community
custody on the assault count.
Before sentencing, Jackson moved to withdraw his guilty plea, alleging
ineffective assistance of counsel. 	The court continued the sentencing date and
allowed Jackson's attorney, 	Daniel 	Felker, to withdraw based on 	a 	potential
conflict of interest.
After the court appointed new counsel, Jackson moved to withdraw his
guilty plea based upon ineffective assistance of counsel. 	He argued,
Despite 	being 	placed 	on 	notice 	that 	Mr. 	Jackson 	would
assert a self-defense claim at trial, neither the state nor the court
inquired 	of 	Mr. 	Jackson 	during 	his 	plea 	colloquy 	whether 	he
understood what rights he was giving up relative to the defense of
self-defense. 	At no point was Mr. Jackson asked if he was aware
of what he would need to prove for a successful self-defense claim,
or that the state would have the burden of disproving his claim of
self-defense beyond a reasonable doubt at trial.
Jackson claimed, "If [Felker] had told me about the laws of self-defense, and the
state's burdens, I would have not pled guilty but would have continued the trial
and testified."
Felker submitted two declarations about his representation. 	Felker stated
that "in an initial meeting at the King County Jail, 	Mr. Jackson described his

No. 69802-8-1/4
participation in the incident, indicating that he acted in self defense." 	He also
stated,
1. 	Over the course of my representation of Mr. Jackson and prior to
the trial date and subsequent plea in this matter, I discussed the
defense of self-defense with Mr. Jackson. 	We discussed his right
to testify and I was aware of the likely substance of Mr. Jackson's
testimony if he decided to testify at trial.
2. 	I reviewed the entire discovery, visited the scene of the crime and
interviewed 	many of the State's witnesses. 	I had two different
investigators assigned, who worked many hours on the case. 	I was
familiar with the facts of the case and the evidence that the State
would likely present. 	Approximately a month before trial, after I had
interviewed the victim and the State's witnesses and conducted an
independent investigation and evaluation of the case, Mr. Jackson
asked me for my opinion on the strength of his possible defense.
Based 	upon 	everything 	I 	knew, 	including 	what 	Mr. 	Jackson
discussed with me, I told him that he had "a really tough case," as I
did not think Mr. Jackson could avoid conviction by raising self-
defense. 	I believed that the State could prove that Mr. Jackson had
not 	acted 	in 	self-defense. 	I advised 	Mr. 	Jackson 	that 	if the
prosecutor was willing to make a 	reasonable plea offer that he
should consider it.
3. 	On the third day of trial, when Mr. Jackson announced to me and
the State that he wanted to plead guilty to an offer of 180 months,
which had been discussed with [the prosecutor] the previous day.
The parties then engaged in formal plea negotiations for the first
time. 	Based on my evaluation of the strength of the State's case,
taking into consideration Mr. Jackson's proffered defense of self-
defense and my knowledge of his intended testimony, I believe that
Mr. Jackson's plea was in his best interests and would save him
many years in prison.
After a hearing, the trial court denied Jackson's motion to withdraw his
guilty plea. The court entered the following findings of fact:
2. 	The court finds the statements contained in the October 31, 2012
and December 7, 2012 declarations of trial counsel, Daniel Felker,
credible.
3. 	The court does not find credible the statements of the defendant on
October 5, 2012, in court and does not find credible the statements
contained 	in 	the 	declaration 	of 	the 	defendant 	regarding 	his
meetings and discussions with Mr. Felker.
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No. 69802-8-1 / 5
4. 	The 	court finds 	that the 	State would 	have 	presented 	evidence
showing that the defendant (and his co-defendant) showed up at
the 	victim's 	work 	with 	a 	weapon 	in 	hand; 	that 	the 	defendant
attacked and repeatedly assaulted the victim with the weapon; that
the defendant had made prior threats against the victim; that the
defendant had offered money to another tenant if that tenant would
let the defendant know when the victim arrived at work; and that as
the defendant was leaving, he threatened to kill the victim, yelling,
"I'm a gangster, I'll kill you."
5. 	The defendant has never identified any evidence that he acted in
self-defense. 	Attorney 	Felker 	credibly 	represented 	that 	the
defendant could not have successfully claimed that he acted in self-
defense.
6. 	There was substantial evidence that the defendant did not act in
self-defense and was the first aggressor.
7. 	The court finds that Mr. 	Felker discussed 	self-defense with the
defendant, discussed the defendant's potential testimony with the
defendant, 	and 	conveyed 	to the 	defendant that while 	he 	could
assert self-defense, the State would easily disprove that assertion.
While Mr. 	Felker may 	not 	have 	used 	the exact verb[i]age of a
"shifting burden of proof," Mr. Felker did convey to the defendant
that he would not be successful in escaping conviction by claiming
self-defense. 	The defendant has not established that this advice
was unreasonable.
The court concluded that Felker's advice to Jackson to accept the plea offer was
"objectively reasonable," 	that 	Felker's 	representation 	was 	not 	deficient, 	that
Jackson 	demonstrated 	no 	prejudice 	from 	Felker's 	allegedly 	deficient
performance, that Jackson's plea was "constitutionally valid," and that "a manifest
injustice has not been committed."
The court imposed the agreed-upon exceptional sentence of 120 months
of confinement on the assault count and 60 	months of confinement on the
harassment count, to run consecutively. 	The court also imposed 36 months of
community custody on the assault count.
Jackson appeals.

No. 69802-8-1 / 6
Analysis
Jackson challenges the trial court's denial of his motion to withdraw his
guilty pleas, 	claiming that 	his 	pleas 	"were 	involuntary and 	the 	product 	of
ineffective assistance of counsel." 	He alleges that his attorney had a duty to
inform him before he 	entered 	his guilty pleas that once he 	presented some
evidence of self-defense, the burden of proof shifted to the State to disprove this
defense beyond a reasonable doubt.
We review the denial of a motion to withdraw a guilty plea for abuse of
discretion.2 	A trial court abuses its discretion when its decision is based upon
untenable grounds or reasons.3
Due process requires that a defendant's guilty plea be knowing, voluntary,
and intelligent.4 	For a plea to be valid, "the accused must be apprised of the
nature of the charge."5
The 	court 	must 	allow 	a 	defendant 	to 	withdraw 	a 	guilty 	plea 	when
necessary to correct a manifest injustice.6 	Denial of effective counsel constitutes
2 State v. Pugh, 153 Wn. App. 569, 576, 222 P.3d 821 (2009) (citing State
v. Marshall. 144 Wn.2d 266, 280, 27 P.3d 192 (2001)).
3 Pugh, 153 Wn. App. at 576 (citing State v. Brown, 132 Wn.2d 529, 572,
940 P.2d 546 (1997)).
4 In re Pers. Restraint of Montova, 109 Wn.2d 270, 277, 744 P.2d 340
(1987) (citing In re Pers. Restraint of Hews. 108 Wn.2d 579, 590, 741 P.2d 983
(1987); Henderson v. Morgan. 426 U.S. 637, 644-45, 96 S. Ct. 2253, 49 L. Ed.
2d 108(1976)).
5 Montova. 109 Wn.2d at 278 (citing Henderson, 426 U.S. at 645; Hews,
108 Wn.2d at 590; State v. Osborne, 102 Wn.2d 87, 92-93, 684 P.2d 683 (1984);
In re Pers. Restraint of Keene. 95 Wn.2d 203, 207, 622 P.2d 360 (1980)).
6 CrR 4.2(f).

No. 69802-8-1 / 7
a manifest injustice.7 	"In the context of plea bargains, effective assistance of
counsel means that defense counsel actually and substantially assist his client in
deciding whether to plead guilty."8
A 	defendant 	challenging 	a 	guilty 	plea 	on 	the 	basis 	of 	ineffective
assistance 	of 	counsel 	must 	show 	with 	reasonable 	probability 	that 	but 	for
counsel's deficient performance, 	he would not have pleaded guilty and would
have proceeded to trial.9 	Where counsel's alleged error is a failure to advise the
defendant of a potential affirmative defense to the crime charged, determining
prejudice depends largely on whether the defense likely would have succeeded
at 	trial.10 	A prediction about 	a 	trial's 	possible 	outcome 	"should 	be 	made
objectively, 	without 	regard 	for 	the 	'idiosyncrasies 	of 	the 	particular
decisionmaker.'"11 	A bare allegation that a defendant would not have pleaded
guilty but for his attorney's allegedly deficient performance does not establish
prejudice.12 	A claim of ineffective assistance of counsel fails if the defendant
does not establish both deficient performance and resulting prejudice.13
7 State v. Wakefield. 130 Wn.2d 464, 472, 925 P.2d 183 (1996) (quoting
State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)).
8 State v. Hollev, 75 Wn. App. 191, 197, 876 P.2d 973 (1994) (citing State
v. Malik, 37 Wn. App. 414, 416, 680 P.2d 770 (1984)).
9 State v. Garcia, 57 Wn. App. 927, 932-33, 791 P.2d 244 (1990) (citing
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
10 Hi!!, 474 U.S. at 59.
11 HMl, 474 U.S. at 59-60 (quoting Strickland v. Washington, 466 U.S. 668,
695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
12 In re Pers. Restraint of Peters, 50 Wn. App. 702, 708, 750 P.2d 643
(1988).
13 Strickland, 466 U.S. at 697.

No. 69802-8-1 / 8
A person is entitled to act in self-defense when he reasonably believes
that he is about to be injured and uses no more force than necessary to prevent
the offense.14
Jackson attempts to distinguish the two cases the State contends control
the outcome of this case, In re Personal Restraint of Montova15 and State v.
Havdel.16 	In Montova, the defendant challenged the validity of his guilty plea on
the basis that he was not adequately apprised of the charge because he was
never informed about the burden of proof on the issue of self-defense.17 	The
court explained that self-defense "becomes an issue only if the defendant raises
the defense and presents some credible evidence to support it."18 The defendant
told police that even though he "could not remember exactly what happened," "he
was defending himself."19 	The court stated, "Montoya's bare assertion that he
was defending himself is unpersuasive given that he was unable to remember
exactly 	what 	happened."20 	The 	court 	concluded 	that 	because 	no 	potential
evidence would 	support a self-defense claim, 	"the trial court certainly had no
obligation to inform Montoya of the burden of proof on a purely hypothetical
claim."21
14 RCW 9A.16.020(3); State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177
(2009).
15 109 Wn.2d 270, 744 P.2d 340 (1987).
16 122 Wn. App. 365, 95 P.3d 760 (2004).
17 Montova, 109 Wn.2d at 279.
18 Montova, 109 Wn.2d at 279.
19 Montova, 109 Wn.2d at 279.
20 Montova. 109 Wn.2d at 280.
21 Montova. 109 Wn.2d at 280.
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No. 69802-8-1 / 9
In Havdel, although the defendant indicated that he planned to claim self-
defense if the case proceeded to trial, the court noted, "The statement in the
omnibus 	order 	regarding 	the 	general 	nature 	of 	Haydel's 	defense 	is 	not
evidence."22 	And the facts to which Haydel pleaded established no evidence of
self-defense.23 	Accordingly, 	the 	court 	held, 	"Because 	Haydel 	presented 	no
evidence of self-defense, the State had no obligation to inform 	Haydel of its
burden of proof on his purely hypothetical claim at the time of the taking of the
plea."24
Jackson contends that he presented evidence of "a plausible self defense
claim" at the time of his plea:
Jackson asserted self defense at the time of arrest. 	He told the
officer "they got into a tussle," that "it was a fair fight," and no pipe
was 	involved. 	Jackson 	indicated 	before 	trial 	in 	his 	trial
memorandum he intended to testify he acted in keeping with this
claim of self defense. 	Defense counsel reiterated during pretrial
proceedings the defense was self defense.
These statements are similar to those rejected in Montova and Haydel. 	Despite
Jackson's argument, 	these bare assertions would not support a self-defense
claim. 	Therefore, Jackson's attorney had no obligation to inform him of the
burden 	of proof for self-defense. 	Because 	Jackson 	fails to 	establish 	that
counsel's performance was deficient, we do not address if he suffered prejudice
from counsel's allegedly deficient conduct.
22 Havdel, 122 Wn. App. at 371.
23 Havdel. 122 Wn. App. at 371.
24 Havdel, 122 Wn. App. at 371.
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No. 69802-8-1/10
Jackson also claims that the trial court imposed a sentence that exceeded
the statutory maximum for the assault count. 	Although he did not 	raise this
challenge in the trial court, he may raise it for the first time on appeal.25
A court 	has the 	power to 	impose 	only sentences 	provided 	by law.26
"'When a sentence has been imposed for which there is no authority in law, the
trial court has the power and duty to correct the erroneous sentence, when the
error is discovered.'"27
RCW 9.94A.701(9) requires the trial court to reduce a term of community
custody 	"whenever 	an 	offender's 	standard 	range 	term 	of 	confinement 	in
combination with the term of community custody exceeds the statutory maximum
for the crime as provided in RCW 9A.20.021." 	In State v. Boyd,28 our Supreme
Court 	held 	that this 	statute 	prohibits 	a 	trial 	court from 	imposing 	a 	term 	of
community custody that when combined with the term of incarceration, results in
a sentence that exceeds the statutory maximum for the crime.
Jackson received the maximum sentence of 120 months of confinement
for attempted assault in the first degree. 	The court also imposed 36 months of
community custody on this count.29 	The State concedes that when combined
with the imposed term of community custody, Jackson's sentence exceeds the
25 State v. Bahl. 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State
v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)).
26 In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980).
27 Carle, 93 Wn.2d at 33 (quoting McNutt v. Delmore. 47 Wn.2d 563, 565,
288 P.2d 848 (1955)).
28 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
29 See RCW 9.94A.701(1)(b).
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No. 69802-8-1 /11
statutory maximum. 	Because the sentencing court had no authority to impose
this sentence on the assault count, we remand to the trial court either to amend
the community custody term or to resentence Jackson on the attempted assault
conviction consistent with RCW 9.94A.701(9).
In a statement of additional grounds, Jackson claims, "I was given an
exceptional sentence, on what grounds? 	I feel that the exceptional sentence was
not 	legally, 	or 	incorrectedly 	[sic] 	done." 	Because 	Jackson 	agreed 	to 	an
exceptional sentence as part of his plea and he fails to show that this agreement
was invalid, we reject his claim.
Jackson also alleges, "I was sentenced twice on one cause[ ] number and
given consecutive sentences." 	Because Jackson provides no legal argument
supporting this claim, we decline to address it.30
Finally, Jackson asserts, "I felt that my speedy trial rights were violated,
due to the fact that I informed the judge that I was set to go to trial and he gave
continuances without me agreeing or wa[i]ving my speedy trial rights." 	Although
the record indicates that the court granted a series of continuances, it provides
no evidence of the reasons that the court granted them. 	Because consideration
of this issue involves facts not in the record, Jackson may not raise it.31
30 RAP 10.10(c): State v.Calvin. 176 Wn. App. 1, 26, 302 P.3d 509 (2013)
(citing State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008)), petition for
review filed, No. 89518-0 (Wash. Nov. 12, 2013).
31 Calvin, 176 Wn. App. at 26 (citing Alvarado, 164 Wn.2d at 569).
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No. 69802-8-1/12
Conclusion
Because the imposed period of community custody, when combined with
Jackson's 	imposed 	term 	of 	incarceration, 	exceeds 	the 	statutory 	maximum
sentence for attempted assault in the first degree and Jackson shows no other
error, we affirm his convictions and remand to the trial court either to amend the
community custody term or to 	resentence Jackson on the attempted assault
conviction consistent with RCW 9.94A.701(9).
WE CONCUR:
A//
Czzt 	^
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