State Of Washington, Respondent V. Juan Ortiz, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JUAN ORTIZ,
Appellant.
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No. 81363-3-I
DIVISION ONE
UNPUBLISHED OPINION
ANDRUS, A.C.J. — After pleading guilty to first degree murder and second
degree assault, Juan Ortiz challenges the validity of his plea agreement, contends
his guilty plea was involuntary, and argues the trial court abused its discretion in
refusing to continue his sentencing hearing to give him time to move to withdraw
the plea. In a consolidated personal restraint petition, Ortiz contends he received
ineffective assistance of counsel.
We conclude Ortiz’s plea agreement 	did not 	restrict 	the trial court’s
discretion to consider his youth as required by State v. Houston-Sconiers, 188
Wn.2d 1, 391 P.3d 409 (2017). We further conclude that Ortiz understood he was
forgoing the right to request an exceptional sentence, that the court did not abuse
its discretion in refusing to grant a fifth continuance of the sentencing hearing, and
that Ortiz has not demonstrated ineffective assistance of counsel. 	We therefore
affirm Ortiz’s conviction and sentence and deny his personal restraint petition.

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FACTS
In 2010, the State charged Ortiz with first degree murder, first degree
assault, and first degree unlawful possession of a firearm. 	CP 1-2. 	The State
alleged that Dean Salavea was at Juan Zuniga’s residence with Zuniga when Ortiz
and Naitaalii Toleafoa1 arrived. 	Within seconds of their arrival, four to five gun
shots rang out. A witness saw Ortiz leave Zuniga’s home through the front door,
carrying a handgun. Ortiz was 17 years old.
Police responded to the home on May 12, 2010, and found Zuniga dead.
He had several gunshot wounds, including what appeared to be an execution-style
wound to the back of the head.2 Salavea had tried to run, but he succumbed to at
least one gunshot wound to the back, which ultimately rendered him paraplegic.
Ortiz fled to Mexico. 	Over six years later, on August 30, 2016, Ortiz was
arrested in Mexico. He was extradited to Pierce County and arraigned on April 5,
2017.
On February 13, 2018, Ortiz entered an Alford3 plea to first degree murder,
with a firearm sentencing enhancement, and second degree assault. 	The plea
included a provision relating to the parties’ sentencing recommendations: 	“State
1 In late 2013, Toleafoa was extradited from Mexico, and on June 17, 2014, he pleaded guilty to
one count of first degree murder with a firearm sentence enhancement.
2 The State contended Zuniga’s execution was premeditated. He was the leader of the Eastside
Lokotes Surenos gang and was, at the time of his murder, in disfavor with other members of the
gang, including Ortiz. The State alleged that senior gang members decided to execute Zuniga,
choosing Ortiz and Toleafoa to carry out the order, and that Salavea had the misfortune of being
in the wrong place at the wrong time.
3 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “In an Alford plea,
the accused technically does not acknowledge guilt but concedes there is sufficient evidence to
support a conviction.” In re Pers. Restraint of Cross, 178 Wn.2d 519, 521, 309 P.3d 1186 (2013).
Washington adopted the Alford holding in State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).

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will 	recommend 	high 	end 	sentence 	and 	defense 	will 	recommend 	low 	end
sentence.”
The 	court 	reviewed 	the 	probable 	cause 	declaration 	and 	Ortiz’s 	plea
statement and found the facts alleged, if proven, would support the charges. After
conducting an in-depth colloquy with Ortiz regarding the terms of the plea
agreement, the court accepted the guilty plea, finding it was voluntary and made
with an understanding of its direct and collateral consequences. 	The court
scheduled Ortiz’s sentencing hearing for February 23, 2018.
Defense counsel subsequently requested, and the court granted, four
continuances of the sentencing date, to allow further professional evaluation of
Ortiz’s 	intellectual 	capacity. 	On 	June 	12, 	2018, 	Ortiz—apparently, 	without
consulting with his counsel—noted a motion to withdraw his guilty plea. The court
set a hearing on the motion for June 18, 2018, a week before the June 25, 2018
sentencing date. Before the June 18 hearing, Ortiz requested to strike the hearing.
No pleadings related to the motion were ever filed.
At the outset of the June 25 sentencing hearing, Ortiz informed his counsel
that he again wanted to withdraw his guilty plea. 	Counsel asked the court to
continue the sentencing hearing yet again so he could consult with Ortiz on the
request. 	Counsel indicated some of the reports on Ortiz’s intellectual capacity
could have spurred Ortiz’s desire to withdraw his plea, but without revealing
attorney client privileged communications, he could not discuss the matter further
at that time. The court asked counsel if the report implicated a lack of intellectual
capacity, which could render Ortiz’s guilty plea invalid. Counsel assured the court

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that was not the case, stating he would have brought a formal motion if that was a
concern. 	The court denied the continuance, and Ortiz’s sentencing hearing
proceeded.
At sentencing, the State recommended a high-end sentence based on
Ortiz’s criminal history and the underlying seriousness of the crimes. As allowed
by the plea agreement, defense counsel argued the Houston-Sconiers factors
justified a sentence at the low end of the sentencing range. 	In support of that
recommendation, counsel presented evidence of Ortiz’s troubled youth, including
intellectual disabilities impairing his development and bullying leading to his
protection by gang members, one of whom was his older brother.
The court sentenced Ortiz to the mid-range standard sentence for the first
degree murder charge—320 months. 	With the 60-month firearm enhancement,
Ortiz was sentenced to 380 months total confinement,4 with a mandatory minimum
of 20 years confinement and 36 months of community custody.
Ortiz appeals the denial of his request to continue the sentencing hearing,
and in a separate personal restraint petition, claims he received ineffective
assistance of counsel.
ANALYSIS
Ortiz argues the trial court abused its discretion by denying his request to
continue the sentencing hearing, erred in allowing the plea agreement to limit its
sentencing discretion under Houston-Sconiers, and erred in finding the plea
4 Ortiz’s sentence included 17 months on the second degree assault charge, to be served
concurrently with the first degree murder sentence and firearm enhancement.

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agreement to be knowing and voluntary. 	In his personal restraint petition, Ortiz
argues counsel provided ineffective assistance on multiple grounds. We address
each argument in turn.
Motion to Continue Sentencing Hearing
Ortiz argues the trial court abused its discretion by denying his motion to
continue sentencing so he could file a motion to withdraw his guilty plea. 	We
review a trial court’s decision to deny a motion to continue under an abuse of
discretion standard. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).
The record does not show the court abused its discretion here.
Courts are statutorily required to hold sentencing hearings within 40 court
days of a defendant’s conviction, unless good cause is shown to extend the time
period for conducting the hearing. 	RCW 9.94A.500(1); CrR 7.1(a)(1). 	Here, the
trial court had already continued Ortiz’s sentencing hearing four times. And at the
time defense counsel sought a fifth continuance—with no promise that Ortiz would
file a motion to withdraw his guilty plea, given the previously stricken hearing—
Ortiz was 4 months post-conviction, well beyond the statutory 40 court days.
Additionally, pre-judgment, courts must allow defendants to withdraw guilty
pleas whenever it appears the withdrawal is necessary to correct a “manifest
injustice.” 	CrR 4.2(f). 	“A manifest injustice exists where (1) the plea was not
ratified 	by 	the 	defendant; 	(2) the 	plea 	was 	not 	voluntary; 	(3) counsel 	was
ineffective; or (4) the plea agreement was not kept.” 	State v. DeClue, 157 Wn.
App. 787, 792, 239 P.3d 377 (2010). 	“The injustice must be ‘obvious, directly
observable, overt, [and] not obscure.’” Id. (alteration in original) (quoting State v.

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Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). “The defendant’s burden when
seeking to withdraw a plea is demanding because ample safeguards exist to
protect the defendant’s rights before the trial court accepts the plea.” Id.
In this case, counsel provided no reason to believe a manifest injustice
might exist, even telling the court he did not think anything in the professional
evaluations rendered Ortiz’s plea involuntary or unknowing. 	Thus, it was not
unreasonable for the court to consider Ortiz’s second, last minute request to
withdraw his guilty plea as “a manipulation, frankly, of the sentencing procedure.”
The trial court did not abuse its discretion by denying Ortiz’s motion to continue the
sentencing hearing.5
Validity of Plea Agreement
Next, Ortiz argues his plea agreement is invalid under Houston-Sconiers
because it limited the trial court’s sentencing discretion and did not allow the court
to consider Ortiz’s youth at the time the crimes were committed. 	We reject this
argument because the plea agreement did not limit the trial court’s sentencing
discretion. 	Furthermore, the record demonstrates the trial court exercised its
discretion and considered Ortiz’s youth when deciding the appropriate sentence.
In Houston-Sconiers, minor defendants were sentenced to over 30 years
without the possibility of parole. 	188 Wn.2d at 13. 	The trial court concluded it
could not sentence the defendants to less than 30 years because of the firearm
5 Under CrR 7.8, a defendant may move to vacate a guilty plea even after he is sentenced. Thus,
the trial court’s refusal to continue the sentencing hearing did not prevent Ortiz from filing a motion
to vacate.

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enhancement requirements in the Sentencing Reform Act6 (SRA). 	Id. at 13, 20-
21. But our Supreme Court disagreed, holding that
sentencing 	courts 	must 	have 	complete 	discretion 	to 	consider
mitigating circumstances associated with the youth of any juvenile
defendant . . . . To 	the 	extent 	our 	state 	statutes 	have 	been
interpreted to bar such discretion with regard to juveniles, they are
overruled. Trial courts must consider mitigating qualities of youth at
sentencing and must have discretion to impose any sentence below
the otherwise applicable SRA range and/or sentence enhancements.
Id. at 21. The court went on to explain:
[I]n exercising full discretion in juvenile sentencing, the court must
consider mitigating circumstances related to the defendant’s youth—
including age and its “hallmark features,” such as the juvenile’s
“immaturity, 	impetuosity, 	and 	failure 	to 	appreciate 	risks 	and
consequences.” 	It must also consider factors like the nature of the
juvenile’s surrounding environment and family circumstances, the
extent of the juvenile’s participation in the crime, and “the way familial
and peer pressures may have affected him [or her].” 	And it must
consider how youth impacted any legal defense, along with any
factors suggesting that the child might be successfully rehabilitated.
Id. at 23 (second alteration in original) (citations omitted) (quoting Miller v.
Alabama, 567 U.S. 460, 477, 132 S. Ct. 2455, 2468, 183 L. Ed. 2d 407 (2012)).
In this case, the State and defense counsel represented to the court in their
sentencing memoranda that they had agreed Ortiz would not seek an exceptional
downward departure from the guidelines based on any of the factors set out in
Houston-Sconiers. The State represented:
The State and defense negotiated the present plea resolution
that allows the State to argue for high end and [Ortiz] to argue for low
end of the standard range. The court should understand, however,
the so-called Houston-Sconiers factors (related to [Ortiz’s] youth)
have been specifically considered by the State and defense in
negotiating the case and the defense has agreed not to use these
6 Chapter 9.94A RCW.

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factors as a basis for recommending an exceptional sentence
downward.
Defense counsel confirmed this agreement:
The State . . . correctly noted in its Sentencing Memorandum
that the parties have considered [Ortiz’s] “youth” in negotiating this
case and the [d]efense has specifically agreed to not use the
Houston-Sconiers 	factors 	as 	a 	basis 	for 	recommending 	an
exceptional sentence below the standard range.
Ortiz 	contends 	this 	agreement 	violates 	Houston-Sconiers 	because 	it
restricted the trial court’s discretion to impose an exceptional sentence based on
Ortiz’s youth. We disagree. It is well established that a defendant may waive the
ability to request an exceptional sentence as a part of a plea agreement.
“Agreements to forgo seeking an exceptional sentence, to decline prosecuting all
offenses, to pay restitution on uncharged crimes, and to waive the right to appeal
are all permissible components of valid plea agreements.” State v. Lee, 132 Wn.2d
498, 506, 939 P.2d 1223 (1997). That is all that Ortiz did here.
Indeed, Ortiz’s plea statement itself clearly indicated that while the parties
were going to make their own sentencing recommendations, “[t]he judge does not
have to follow anyone’s recommendation as to sentence.” 	Consistent with
statutory requirements, the trial court informed Ortiz it was not required to follow
either parties’ sentencing recommendations and it would do what it thought the law
required. 	See RCW 9.94A.431(2) (“The sentencing judge is not bound by any
recommendations contained in an allowed plea agreement and the defendant shall
be so informed at the time of plea.”). Counsel stated he had explained, and Ortiz
represented 	he 	understood, 	the 	judge 	did 	not 	have 	to 	follow 	anyone’s
recommendation as to the sentence.

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And the record demonstrates the trial court did not believe its discretion had
been limited in any way by the plea agreement. At the sentencing hearing, defense
counsel argued Ortiz’s age, background, developmental difficulties, bullying, and
the need to seek protection from gang members as a result of the bullying, were
all mitigating factors justifying a low-end standard range sentence. 	Counsel
discussed how Ortiz’s cognitive and intellectual difficulties and small stature led
him to seek the protection of the gang with which his older brother was affiliated.
He explained that English was Ortiz’s mother’s second language so when many of
Ortiz’s problems began to present themselves in middle school, she was unable
to fully comprehend the ramifications. Counsel represented that Ortiz lived in high-
risk environments, causing him to constantly seek interaction with protectors who
ultimately exploit him. Finally, counsel acknowledged that Ortiz had a “jaded view
of the world. 	He has some misguided loyalties that prevent going forward in this
case to his benefit.”
In delivering the sentence, the trial court recognized that “youthful offenders
are susceptible to peer pressure,” that “[t]hey act with impulsivity,” and that “they
act 	in 	a 	manner 	that 	doesn’t 	reflect 	their 	understanding 	of 	the 	long-range
consequences of their behavior.” 	The court reasoned, however, that this crime
was a premeditated execution. It found the killing had not occurred in the context
of Ortiz being picked on or bullied. 	The court also pointed out that Ortiz
successfully eluded authorities in Mexico for six years. 	And while it was not
unsympathetic to Ortiz’s cognitive challenges, “those challenges don’t morph a
murderer into a victim.” Although it could “appreciate that [those challenges] may

No. 81363-3-I/10
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render that particular individual susceptible to . . . [a] lack of foresight and [an]
inability to resist peer pressures,” the court did not think the circumstances of this
case warranted a sentence at the low end of the standard range.
The 	record 	demonstrates 	the 	court 	considered 	all 	the 	mitigating
circumstances 	related 	to 	Ortiz’s 	youth—immaturity, 	impetuosity, 	failure 	to
appreciate risks and consequences, environmental and familial circumstances, the
extent of his participation in the crime, the effect of familial peer pressures, and
factors suggesting Ortiz might be successfully rehabilitated. The plea agreement
did not limit the trial court’s discretion, and the trial court exercised its full discretion,
even if it did not sentence Ortiz—a minor at the time of the charged crimes—to an
exceptional sentence below the standard range. 	We therefore reject Ortiz’s
argument that the trial court’s discretion was improperly limited by the plea
agreement.
Voluntariness of Plea Agreement
Ortiz next contends his plea was involuntary because the trial court did not
ensure he understood he was waiving his “rights” to an exceptional sentence under
Houston-Sconiers. CrR 4.2(d) requires a trial court to determine if a guilty plea is
made “voluntarily, competently and with an understanding of the nature of the
charge and the consequences of the plea.” 	Due process requires a defendant’s
guilty plea to be knowing, intelligent, and voluntary. 	State v. Codiga, 162 Wn.2d
912, 922, 175 P.3d 1082 (2008). 	Whether a plea is knowingly, intelligently, and
voluntarily made is determined from a totality of the circumstances. 	State v.
Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). 	“There is a strong public

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interest in the enforcement of plea agreements when they are voluntarily and
intelligently made.” 	Codiga, 162 Wn.2d at 922; see also In re Det. of Scott, 150
Wn. App. 414, 426, 208 P.3d 1211 (2009).
The question here is not whether Ortiz understood he was waiving his right
to an exceptional sentence. 	No such right exists. 	The question is whether Ortiz
understood he was waiving the right to request an exceptional sentence. 	The
record demonstrates he did.
At the plea hearing, defense counsel drew the court’s attention to the fact
that the alleged crime occurred in 2010, when Ortiz was under 18 years of age.
Counsel indicated, “We went over the four instances where the [c]ourt could go
above or below the standard range sentence.” 	Paragraph 6(k) of Ortiz’s plea
statement identified one of the four instances to include “if the judge finds
mitigating circumstances supporting an exceptional sentence.” Ortiz initialed this
paragraph, indicating he understood it. 	Counsel also stated on the record, “No
one in this case will be asking for an above or below the standard range sentence.”
This agreement was documented in Paragraph 6(j) of the plea statement, also
initialed by Ortiz. 	In addition, Ortiz signed the plea statement, representing that
“[m]y lawyer has explained to me, and we have fully discussed, all of the above
paragraphs . . . . I understand them all.” 	“A defendant’s signature on a plea
statement is strong evidence of a plea’s voluntariness.” 	Scott, 150 Wn. App. at
427.
The 	court 	engaged 	Ortiz 	in 	an 	extensive 	colloquy 	to 	ensure 	Ortiz
understood the terms of the plea and its consequences. Although the court did not

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explicitly 	reference 	Houston-Sconiers, 	it 	asked 	Ortiz 	if 	he 	understood 	the
provisions of his plea statement which, by implication, included the sentencing
recommendation and exceptional sentence provisions. 	Ortiz told the court his
counsel had gone over the plea statement with him “paragraph by paragraph” and
“line by line.”7 	“When the judge goes on to inquire orally of the defendant and
satisfies 	himself 	on 	the 	record 	of 	the 	existence 	of 	the 	various 	criteria 	of
voluntariness, the presumption of voluntariness is well nigh irrefutable.” 	Branch,
129 Wn.2d at 642 n.2 (internal quotation marks omitted) (quoting State v. Perez,
33 Wn. App. 258, 262, 654 P.2d 708 (1982)); see also Scott, 150 Wn. App. at 427.
The record demonstrates that Ortiz understood the judge could impose an
exceptional sentence based on the presence of mitigating circumstances and that
he understood he had agreed not to ask for such a sentence. We are not aware
of any case requiring a court to ask a defendant if he understands that his age is
a mitigating circumstance that might justify an exceptional sentence before the
court can accept a defendant’s agreement to forgo asking for an exceptional
sentence. 	We therefore deny Ortiz’s claim on appeal that the trial court erred in
finding the plea to be knowing and voluntary.
Ineffective Assistance of Counsel
To obtain judicial relief through a personal restraint petition, an inmate must
show by a preponderance of the evidence that he is being unlawfully restrained
under RAP 16.4. See In re Pers. Restraint of Yates, 177 Wn.2d 1, 16-17, 296 P.3d
7 Paragraph 6(e)(i) also notified Ortiz that because he was under the age of 18 at the time of the
crime, if sentenced to more than 20 years of confinement, he could be able to petition the
Indeterminate Sentence Review Board for early release after serving 20 years. Defense counsel
stated he had explained this provision to Ortiz as well.

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872 (2013). 	There is no dispute that Ortiz is being restrained by the Department
of Corrections. The only issue is whether that restraint is unlawful. RAP 16.4(c)(2)
makes a restraint unlawful if a conviction was obtained “in violation of the
Constitution of the United States or the Constitution or laws of the State of
Washington.” Thus, Ortiz must show by a preponderance of the evidence that any
alleged constitutional error actually prejudiced him. Yates, 177 Wn.2d 1 at 17.
A petitioner must support his unlawful restraint claim with factual evidence,
rather than conclusory allegations. In re Pers. Restraint of Gronquist, 138 Wn.2d
388, 396, 978 P.2d 1083 (1999). 	As an evidentiary prerequisite, the petitioner
must demonstrate he has competent, admissible evidence to establish facts that
entitle him to relief. 	In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d
1086 (1992).
Once the petitioner makes this threshold factual showing, the court then
examines the State’s response, which must answer the allegations and identify
any material disputed questions of fact. 	Id.; RAP 16.9. 	To define disputed
questions of fact, the State must meet the petitioner’s evidence with its own
competent evidence. Rice, 118 Wn.2d at 886. If the parties’ evidence establishes
the existence of material disputed issues of fact, then we may direct the superior
court to hold a reference hearing to resolve these factual disputes. Id. at 886-87.
Both the Sixth Amendment to the United States Constitution and article I,
section 	22 	of 	the 	Washington 	Constitution 	guarantee 	the 	right 	to 	effective
assistance of counsel, including during the plea process. In re Pers. Restraint of
Riley, 122 Wn.2d 772, 779-80, 863 P.2d 554 (1993); see also State v. Sandoval,

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171 Wn.2d 163, 169, 249 P.3d 1015 (2011). “Counsel’s faulty advice can render
the defendant’s guilty plea involuntary or unintelligent.” 	Sandoval, 171 Wn.2d at
169. 	To establish the plea was involuntary or unintelligent because of counsel’s
inadequate advice, the defendant must satisfy the familiar Strickland8 two-prong
test. 	Id.; see also Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d
203 	(1985). 	Ortiz 	must 	prove 	objectively 	unreasonable 	performance 	(the
performance prong) and actual prejudice (the prejudice prong). Riley, 122 Wn.2d
at 780. 	“The court may begin its review of the defendant’s claim with an
examination of either prong. If the prejudice prong is not proved by the defendant,
then the court need not proceed to an examination of the performance prong.” Id.
To satisfy the performance prong in the guilty plea context, Ortiz must show
that counsel failed to substantially assist him in deciding whether to plead guilty.
In re Pers. Restraint of Cross, 180 Wn.2d 664, 705, 327 P.3d 660 (2014),
abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621
(2018); see also Hill, 474 U.S. at 59. The failure to advise a defendant of available
options 	and 	possible 	consequences 	during 	plea 	negotiations 	constitutes
ineffective assistance of counsel. 	State v. Cox, 109 Wn. App. 937, 940, 38 P.3d
371 (2002) (quoting In re Pers. Restraint of McCready, 100 Wn. App. 259, 263-64,
996 P.2d 658 (2000)). 	To satisfy the prejudice prong, a defendant challenging a
guilty plea “must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.”
Riley, 122 Wn.2d at 780-81.
8 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

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Ortiz submitted his declaration and a declaration from his nephew, Isai
Alvarez, stating that defense counsel failed to inform Ortiz that by pleading guilty,
he “waived [his] right to use Houston-Sconiers,” told Ortiz he would receive a low-
end sentence because of his age and mental status, refused to help Ortiz file a
motion to withdraw his guilty plea, failed to provide Ortiz with discovery when
requested, and pressured Ortiz into accepting the plea offered by the State. 	We
conclude Ortiz has not shown by a preponderance of the evidence that counsel’s
performance was objectively unreasonable.
As to the allegation that he was not informed he was waiving any right to
seek an exceptional sentence under Houston-Sconiers, we conclude Ortiz has not
proved this accusation by a preponderance of evidence. The record demonstrates
Ortiz was aware he had agreed to seek a low-end sentence rather than push for
an exceptional sentence based on any mitigating circumstances. 	And in his
declaration and the testimony of Alvarez, it is clear both understood Ortiz’s age
and his cognitive limitations were mitigating circumstances. 	Ortiz told the court
that his counsel had gone over the entire plea statement with him and that he
understood every paragraph and every line. 	We therefore reject his Houston-
Sconiers claim under the performance prong.
We similarly conclude Ortiz has not demonstrated deficient performance in
the advice counsel gave on the likelihood he would be sentenced at the low end
of the standard range. 	At the plea hearing, Ortiz was present when counsel
explicitly stated that the charge carried a mandatory minimum sentence of 20
years, that Ortiz’s standard range based on his criminal history was 271 months to

No. 81363-3-I/16
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361 months,9 that he and Ortiz would be requesting a sentence at the low end of
this range, that the State would request a sentence at the high end of the range,
that the court could accept or reject either party’s recommendation, and that Ortiz
had the legal option of seeking early release from the Indeterminate Sentence
Review Board after serving 20 years of any sentence. The declaration testimony
from Ortiz and Alvarez supports a conclusion that counsel advised Ortiz there was
a strong possibility counsel could convince the court to accept his recommendation
for a low-end sentence because of Ortiz’s age and background, but there is no
evidence before us that counsel ever “promised” he could guarantee the court
would do so. In fact, at his plea hearing, Ortiz represented to the court that no one
made him any promises to convince him to plead guilty. 	And the court, before
accepting Ortiz’s guilty plea, made it absolutely clear that it would ultimately decide
the most appropriate sentence, regardless what defense counsel or the State
recommended. 	The 	record 	does 	not 	support 	Ortiz’s 	claim 	that 	counsel’s
performance regarding sentencing advice was deficient.
Nor does the record support Ortiz’s allegations that trial counsel refused to
assist Ortiz in filing a motion to withdraw his guilty plea. At the sentencing hearing,
defense counsel specifically stated:
Mr. Ortiz is bringing his own motion to withdraw the guilty plea. 	He
informed me this morning that he would like to withdraw his plea. 	I
am not sure, because I have not sat down and consulted with him,
the basis for that withdrawal.
I can let the [c]ourt know that approximately ten days ago, Mr. Ortiz
wanted to withdraw his plea and then changed his mind. A hearing
was set, and that was struck at his request.
9 This range does not include the 60 months for the firearm sentence enhancement.

No. 81363-3-I/17
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Given that he told me a few minutes before the [c]ourt took the bench
that he would like to withdraw his plea, I’m certainly not aware of the
basis for his withdrawal. On his behalf, I’d ask the [c]ourt to set this
matter over to allow him to inform me or file his own motion if that’s
what he wants to do.
When the trial court suggested that Ortiz was manipulating the sentencing process,
defense counsel explained that “as part of the plea agreement, . . . the [d]efense
was not afforded the opportunity to argue age as a factor under Houston-Sconiers,”
so counsel had asked that Ortiz be evaluated for his intellectual capacity. The first
evaluation indicated Ortiz had a “significantly low intelligence level.” Counsel was
uncomfortable with the results and asked that Ortiz be reexamined. 	After he
received the results from the second evaluation, Ortiz expressed a desire to
withdraw his plea based on reasons other than any alleged diminished intellectual
capacity. Counsel stated that Ortiz had a basis for his motion, but counsel could
not disclose it to the court without Ortiz’s permission: 	“So Mr. Ortiz this morning
informs me that he would like to go forward on those – on other issues not
specifically related to his intelligence level.” The trial court rejected Ortiz’s request
to continue the sentencing hearing for the fifth time, despite counsel’s advocacy.
This record demonstrates defense counsel did not refuse to assist Ortiz in
bringing a motion to withdraw his plea. Counsel in fact scheduled a hearing on the
motion and only struck it because Ortiz changed his mind. 	And when Ortiz
changed his mind again, counsel attempted to obtain a continuance of the
sentencing hearing so he could consult with Ortiz about bringing the motion.
Furthermore, Ortiz has not explained what basis he now has for withdrawing
his guilty plea, other than the Houston-Sconiers claims we have rejected. “[A] trial

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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). 	Without
demonstrating a manifest injustice requiring the withdrawal of his guilty plea under
CrR 4.2(f), Ortiz has not met the threshold to prove by a preponderance of
evidence that his counsel was deficient in failing to file such a motion.
As to the remaining allegations, the evidence does not meet the threshold
to create an issue of fact on the prejudice prong. 	We have no evidence that the
discovery materials Ortiz claimed he did not receive would have materially
changed the outcome of a trial such that he would have insisted on going to trial
rather than pleading guilty. 	And Ortiz stated at his plea hearing that no one
threatened, manipulated, coerced, or induced him to plead guilty and that it was
his choice to enter the Alford plea of his own free will.
Because Ortiz fails to make a threshold showing of deficient performance
that actually prejudiced him, we conclude Ortiz’s ineffective assistance of counsel
claim fails and deny his personal restraint petition.
Affirmed.
WE CONCUR: