State of Washington v. Valeriy V. Aleshkin

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
VALERIY V. ALESHKIN,
Appellant.
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No. 36362-7-III
UNPUBLISHED OPINION
SIDDOWAY, J. — Valeriy Aleshkin appeals two burglary-related convictions,
raising an argument never made in the trial court: that the State’s evidence in support of
the charges was the fruit of a Terry1 stop that was unsupported by reasonable suspicion.
He argues in the alternative that by failing to bring such a motion, his trial lawyer
provided ineffective assistance of counsel.
Under well-settled case law, the challenge to the Terry stop was waived. The
record is insufficient to consider Mr. Aleshkin’s claim of ineffective assistance of counsel
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
FILED
FEBRUARY 13, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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2
on direct appeal, but if an expanded record would support the claim, he is free to file a
personal restraint petition. We affirm the convictions and grant Ramirez2 relief to which
the State concedes Mr. Aleshkin is entitled.
FACTS AND PROCEDURAL BACKGROUND
At 3:56 in the morning on January 31, 2017, Spokane County Deputy Sheriff
Brent Miller conducted a suspicious vehicle stop of a car being driven by Valeriy
Aleshkin. The deputy had noticed the car’s headlights at the end of a dead end road
behind Pull & Save, a salvage yard that was then closed. When Deputy Miller asked Mr.
Aleshkin for his driver’s license, Mr. Aleshkin admitted it was suspended. Dispatch
confirmed that his license was suspended and that he was required to have an interlock
device, which the car did not have. When Mr. Aleshkin got out of the car, Deputy Miller
asked why the bottom of his pants were wet and Mr. Aleshkin said it was because he was
walking in the snow and took some radiators. Deputy Miller arrested Mr. Aleshkin and
read him his Miranda3 rights. Mr. Aleshkin eventually admitted that he parked behind
Pull & Save, cut the fence with a pair of vise grips, and stole radiators and wheels from
the fenced area. Mr. Aleshkin consented to a search of his car and Deputy Miller
recovered 14 radiators and two wheels, which were returned to Pull & Save.
2 State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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Mr. Aleshkin was eventually charged with second degree burglary, possession of
burglary tools, violation of an interlock requirement, third degree driving while license
suspended, and bail jumping. The defense never moved to suppress the evidence
recovered as a result of Deputy Miller’s stop.
On the day before trial, the court conducted a CrR 3.5 hearing to determine the
admissibility of Mr. Aleshkin’s statements to Deputy Miller. Both the deputy and Mr.
Aleshkin testified at the hearing.
Mr. Aleshkin testified that he traveled to the location where he was stopped by
Deputy Miller because while earlier driving by on the freeway he saw seemingly
abandoned radiators in a snowy field outside Pull & Save’s fence. After completing an
errand with his girlfriend and taking her home, he returned to take the radiators. He
admitted that when stopped by Deputy Miller, he told the deputy he was taking radiators
and that his driver’s license was suspended. He denied ever telling the deputy that the
radiators were from inside the salvage yard, that he had stolen salvage items, or that he
cut a hole in the fence. At the conclusion of the testimony and argument, the trial court
ruled that with the exception of the pre-Miranda exchange about why his pants were wet,
Mr. Aleshkin’s statements were admissible.
In the two-day jury trial that followed, Mr. Aleshkin conceded he was guilty of
driving with a suspended license and without the required ignition interlock device, but
denied that he had possessed burglary tools or stolen any salvage items from the Pull &

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4
Save yard. The jury found Mr. Aleshkin guilty as charged. The court sentenced Mr.
Aleshkin to three months of confinement and imposed legal financial obligations,
including a $200 criminal filing fee. Mr. Aleshkin appeals.
ANALYSIS
The Terry stop exception to the warrant requirement allows officers to briefly
seize a person if specific and articulable facts, in light of the officer’s training and
experience, give rise to a reasonable suspicion that the person is involved in criminal
activity. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). “The level of
articulable suspicion necessary to support an investigatory detention is ‘a substantial
possibility that criminal conduct has occurred or is about to occur.’” State v. Bray, 143
Wn. App. 148, 153, 177 P.3d 154 (2008) (quoting State v. Kennedy, 107 Wn.2d 1, 6, 726
P.2d 445 (1986)). For the first time on appeal, Mr. Aleshkin argues that Deputy Miller
lacked reasonable suspicion to stop and question him. He also argues that his trial lawyer
provided ineffective assistance of counsel by failing to move to suppress the evidence
resulting from the Terry stop.
RAP 2.5(a) states the general rule for appellate disposition of issues not raised in
the trial court: appellate courts will not entertain them. State v. Guzman Nunez, 160 Wn.
App. 150, 157, 248 P.3d 103 (2011), aff’d, 174 Wn.2d 707, 285 P.3d 21 (2012) (citing
State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)). Mr. Aleshkin argues that the
absence of reasonable suspicion for the Terry stop is a manifest constitutional error

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reviewable under RAP 2.5(a)(3). He contends the error is manifest because the
circumstances of the stop appear in the affidavit of facts that Deputy Miller prepared after
the stop and were testified to by the deputy in the CrR 3.5 hearing and at trial. He argues
that the circumstances of the stop as described by the deputy are indistinguishable from
Washington cases in which it was found that reasonable suspicion was lacking.
I. THE RIGHT TO SEEK SUPPRESSION OF THE EVIDENCE WAS WAIVED
It is well settled that the exclusion of improperly obtained evidence is a privilege
and can be waived. State v. Baxter, 68 Wn.2d 416, 423-24, 413 P.2d 638 (1966) (citing
State v. Smith, 50 Wn.2d 408, 312 P.2d 652 (1957)). “While it is true that both our state
and federal constitutions protect us from unreasonable searches and seizures, it is also
true that, in order to preserve these rights, persons claiming benefits thereunder must
seasonably object.” Id. at 423 (citing Segurola v. United States, 275 U.S. 106, 48 S. Ct.
77, 72 L. Ed. 186 (1927)).
Mr. Aleshkin suggests that the absence of reasonable suspicion can be reviewed as
manifest constitutional error under RAP 2.5(a)(3), but if a defendant does not
affirmatively seek the protection of the exclusionary rule, there is no constitutional per se
prohibition against using unconstitutionally obtained evidence. State v. Valladares, 31
Wn. App. 63, 76, 639 P.2d 813 (1982), aff’d in part, rev’d in part on other grounds,

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99 Wn.2d 663, 664 P.2d 508 (1983). Since there was no motion to suppress, there was
no error during the trial proceeding, manifest or otherwise. State v. Millan, 151 Wn.
App. 492, 212 P.3d 603 (2009), rev’d sub nom. State v. Robinson, 171 Wn.2d 292, 253
P.3d 84 (2011). Absent any error, RAP 2.5(a)(3) cannot apply.
II. THE RECORD PROVIDES AN INSUFFICIENT BASIS FOR REVIEWING THE INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM
Mr. Aleshkin makes the alternative argument that his trial lawyer was ineffective
for failing to file a motion to suppress. To succeed on a claim of ineffective assistance of
counsel, a defendant must establish that defense counsel’s representation was deficient,
i.e., it fell below an objective standard of reasonableness, and the deficient representation
prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s
unprofessional errors, the result of the proceeding would have been different. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Both prongs must be
established based on facts in the record of proceedings below. Id. at 335-37.
Courts engage in a strong presumption that counsel’s representation was effective.
Id. at 335. Given that presumption, Mr. Aleshkin must show in the record the absence of
legitimate strategic or tactical reasons supporting the challenged conduct. Id. at 336. To
show he was actually prejudiced by his lawyer’s failure to move for suppression, he must
show that a motion likely would have been granted. Id. at 333-34. These showings often
cannot be made when challenging a lawyer’s failure to bring a suppression motion

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because the record lacks a factual basis for determining the merits of the claim. Id. at
337-38.
Mr. Aleshkin argues that the record is sufficient in his case because the facts that
are significant are clear, and they clearly do not provide a basis for reasonable suspicion.
But the record may not be complete. Since there was no motion to suppress, the State
had no need to prove that Deputy Miller had reasonable suspicion to conduct the stop. It
is unsurprising that at both the CrR 3.5 hearing and at trial the State elicited some
testimony from Deputy Miller about why he stopped and questioned Mr. Aleshkin, as
part of a coherent narrative of the events. We will not presume from that testimony alone
that the State presented all the experience, information, and observations that contributed
to Deputy Miller’s belief that he had reasonable suspicion to stop and question Mr.
Aleshkin.
Mr. Aleshkin can raise his ineffective assistance of counsel claim in a personal
restraint petition.
III. RAMIREZ RELIEF
Mr. Aleshkin was found indigent for purposes of appeal and contends that the
$200 criminal filing fee should be stricken from his judgment and sentence based on
changes to Washington law that became effective in 2018 and Ramirez, which held that
the 2018 changes apply to cases then on direct review. 191 Wn.2d 747-49. The State
concedes that the cost should be stricken.

No. 36362-7-III
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We affirm the convictions and direct the trial court to strike the $200 criminal
filing fee from the judgment and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
4&:~.---------
Pennell, A.CJ.
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