State Of Washington, V Brian D. Tauscher

ACED ErOURI T OF APPEALS L 1IVI,' 1011 IT 2013 2- 09 STAB

Jk r SII IPIOTO'

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 42423 1 II - -

Respondent,

LIFIM

BRIAN DAVID TAUSCHER, . UNPUBLISHED OPINION

I1

BRINTNALL P. . —Brian Tauscher was charged with multiple felonies related to QuiNN- J

sexual contact with his stepdaughter. Tauscher pleaded guilty to one count of first degree

attempted child molestation. - Tauscher appeals (1)the trial court's denial of his motion to -

withdraw his guilty plea, 2) trial court's denial of his motion to appoint new.counsel, 3) ( the ( the

trial court's comparability finding regarding his California conviction, and (4) trial court's the

findings regarding Tauscher's ability to pay his legal financial obligations. The trial court did not err by denying Tauscher's motions, Tauscher's California conviction was properly included in his offender score, and we reject the State's concession regarding the trial court's findings

pay his financial obligations: Accordingly, we affirm. regarding Tauscher's ability to legal

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FACTS

On June 1, 2010, the State charged Tauscher with one count of first degree rape of a child, one count of first degree incest, and one count of first degree child molestation, all with aggravating factors..On July 16, 2010, the State filed an amended information charging Tauscher with one count of attempted first degree child molestation. Tauscher agreed to plead guilty to the amended information. Tauscher's offender score was calculated at nine. Tauscher's

standard range was a minimum of 111.75 to 148.5 months with a mandatory maximum of life. n i

prison. After conducting a colloquy with Tauscher, the trial court found that the plea was knowingly, intelligently, and voluntarily made with an understanding of the charges and the consequences of the plea, there's a factual basis for the plea, and that you're guilty as charged."

Report of Proceedings (RP)July 16, 2010) at 8. Tauscher then entered a signed statement of (

defendant on plea of guilty to sex offense.

After entering his guilty plea, Tauscher wrote a pro se letter to the court requesting to withdraw his guilty plea. In the letter,Tauscher wrote,

Defensecounsel] coersed [sic]me into taking a plea by telling me I should take - the deal cause it is a good deal, and if I take the deal at least I know I' getting m out in a few year's sic].He also said that I really didn't have a chance with the [ jury.... he said if we do go to trial and I lose the jury will find me guilty Then on all account's sic]and I will do life. [

Clerk's Papers (CP)at 69. Tauscher also filed a request for new counsel because he felt defense

counsel was "not doing his job." at 71. Tauscher also included allegations that two of his CP

sons had stated that the victim had been told what to say by her grandmother.

On August 25, 2010, the trial court held a sentencing hearing and addressed Tauscher's motions. Defense counsel told the trial court that he continued to work with Tauscher even after

Tauscher filed his motions. The following exchange also took place:

M

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COURT]: Mr. Tauscher, do you want to be heard on it?Anything in addition to what you've already written in? DEFENDANT]: I feel with proper representation I have a good chance of going to trial and beating this. COURT]:So why did you plead guilty then? DEFENDANT]:I felt I was pushed into it. COURT]:By whom and how? DEFENDANT] :By Mr.Brown. COURT]:What [did]he do to push you into it? DEFENDANT]: He told me if I, do the deal I would be doing life t didn' without parole. COURT]: Which is entirely possible. You told the judge, me, all of us, that you were pushed into it, you didn't want to plead? This was totally involuntary when we went through the plea. DEFENDANT] : Yes, sir. COURT]: You told me that?No, of course you didn't tell me that. I' m talking about when you did your plea. DEFENDANT]: Sorry, sir. COURT]:You didn't, you? did DEFENDANT]:No. COURT]: There is no.asis here to withdraw the plea as far as I can see b so I'l deny both motions. Are we ready to do sentencing? l

RP ( Aug. 25, 2010) at 12 13. - After denying Tauscher's motions, the trial court sentenced

Tauscher based on the State's recommendation in the plea agreement.

On November 5, 2010, Tauscher filed a pro se motion to modify or correct judgment or sentence. In the motion, Tauscher alleged that his offender score was incorrectly calculated because his California convictions were not comparable to Washington felonies. Tauscher

specifically argued that his California conviction was for grand theft of an animal carcass and the California statute is not comparable to a Washington statute. After Tauscher obtained new

appointed counsel, Tauscher's counsel filed an amended motion to modify but adopted both of

Tauscher's arguments regarding his California convictions. The State conceded that Tauscher's California conviction for lewd and lascivious behavior is not comparable to a Washington

felony, but argued that California's grand theft of an animal carcass statute was comparable to

No. 42423 1 II - -

Washington's theft of livestock statute. The trial court agreed with the State. The State

recalculated Tauscher's offender score at six which resulted in a new standard range of 73. to 5

97. months. The trial court resentenced Tauscher to 97. months with a maximum term of life. 5 5

Tauscher timely appeals.

ANALYSIS

MOTION TO WITHDRAW GUILTY PLEA

Tauscher argues that the trial court erred by denying his motion to withdraw his guilty plea because he had established that his plea was involuntary and he received ineffective assistance of counsel. Furthermore, Tauscher argues that the trial court erred because he denied Tauscher's motion without investigating Tauscher's claim that his plea was coerced. But Tauscher did not make any allegations that could establish a claim.that his plea was coerced, therefore the trial court did not err by either denying Tauscher's motion to withdraw his guilty plea or by failing to hold a hearing to investigate Tauscher's claim.

We review a trial court's decision on a motion to withdraw a guilty plea for an abuse of

discretion. State v. Pugh,153 Wn.App. 569 576, 222 P. d 821 (2009)citing State v. Marshall, - 3 (

144 Wn. d 266, 280, 27 P. d 192 (2001), 2 3 abrogated by State v. Sisouvanh, 175 Wn. d 607, 290 2

A P. d 942 (2012)). 3 trial court abuses its discretion when it bases its decision on untenable

grounds or reasons. Pugh, 153 Wn. App. at 576 (citing State v. Brown, 132 Wn. d 529, 572, 940 2

P. d 546 (1997), 2 cent. denied, 523 U. . 1007 (1998)). S Under CrR 4. ( f), allow a 2 the court shall "

defendant to withdraw the defendant's plea of guilty `whenever it appears that the withdrawal is necessary to correct a manifest injustice. "' Pugh, 153 Wn. App. at 577 (quoting CrR 4. ( f)) 2

Manifest injustice' means `an injustice that is obvious, directly observable, overt, [ nd] not a

obscure. "' Pugh, 153 Wn. App. at 577 (alteration in original) quoting ( State v. Taylor, 83 Wn. d

No. 42423 1 II - -

594, 596, 521 P. d 699 (1974)). 2 There are four indicia of manifest injustice: (1) defendant the

received ineffective assistance of counsel, 2) defendant did not ratify his plea agreement, 3) ( the (

the plea was involuntary, and (4) prosecution did not honor the plea agreement. Pugh, 153 the Wn. App. at 577 ( citing Taylor, 83 Wn. d at 2 597). Because of the many safeguards that "

precede a guilty plea, the manifest injustice standard for plea withdrawal is demanding." Pugh,

153 Wn. App. at 577 (citing Taylor, 83 Wn. d at 596). 2

Tauscher claims that he should be permitted to withdraw his guilty plea because his plea

was involuntary and he received ineffective assistance of counsel.. Tauscher raises two different

grounds for withdrawing his guilty plea, but both grounds are based on the same allegations regarding his defense counsel's conduct. Tauscher's allegations include defense counsel telling him that he would probably be convicted at trial and he would get life if he was convicted. In an additional motion for appointment of counsel pursuant to CrR 3.1, Tauscher argued that he should be given new counsel for the following reasons:

Reason 1)Mr. Brown was asked to obtain video and audio from CPS instead he called and asked if anybody saw or heard anything! Reason 2) Mr. Brown refused to call upon my witnesses and instead went fishing —not once but twice! Reason 3)Once Mr.Brown had gotten a plea bargain, he waited a week to tell me about it,then his demeanor towards this case went downhill!

CP at 79.

Tauscher's claim that his plea was involuntary, fails because he has not presented sufficient evidence to overcome the strong presumption that his plea was voluntary. As we have observed,

When a defendant fills out a written statement on plea of guilty in compliance with CrR 4. ( g) acknowledges that he or she has read it and understands it 2 and and that its contents are true, the written statement provides prima facie verification of the plea's voluntariness. When the judge goes on to inquire orally

No. 42423 1 II - -

of the defendant and satisfies himself on the record of the existence of various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.

State v. Perez, 33 Wn. App. 258, 261 62,654 P. d 708 (1982) citations omitted). To overturn - 2 (

the trial court's finding that Tauscher entered into his plea voluntarily, we would need to

consider the trial court's finding to be "manifestly erroneous." State v. McLaughlin, 59 Wn. d 2

865, 870, 371 P. d 55 ( 1962). Here, Tauscher signed the guilty plea and, after conducting a 2

colloquy on the record, the trial court found that Tauscher's plea was voluntary. Tauscher's subsequent allegations are not sufficient to overcome the presumption that Tauscher's plea was voluntary or that the trial court's original finding was manifestly erroneous. Therefore, the trial court did not abuse 'its discretion when it denied Tauscher's motion to withdraw his guilty plea based on voluntariness.

Tauscher's ineffective assistance of counsel claim also fails. " In a plea bargaining

context, effective assistance of counsel' merely requires that counsel `actually and substantially `

assist] his client in deciding whether to plead guilty. "' State v. Osborne, 102 Wn. d 87, 99, 684 2

P. d 683 (1984) alteration in original) quoting State v. Cameron, 30 Wn. App. 229, 232, 633 2 ( (

P. d 901, review denied, 96 Wn. d 1023 (1981)). 2 2 Defense counsel must inform the defendant of

all direct consequences of the guilty plea. State v. A. .168 Wn. d 91, 113 14,225 P. d 956 J., 2 N - 3

2010). Furthermore, effective assistance of.counsel requires "not only communicating actual offers, but discussion of tentative plea negotiations and the strengths and weaknesses of the defendants' case so that the defendants know what to expect and can make an informed

judgment whether or not to plead guilty."State v. James, 48 Wn. App. 353, 362, 739 P. d 1161 2

1987).

Cel

No. 42423 1 11 - -

State v. Smith, 74 Wn. App. 844, 875 P. d 1249 (1994), 2 review denied, 125 Wn. d 1017 2

1995), addresses a similar issue. In Smith, the defendant asserted that "his guilty pleas to all

three charges were not voluntary because at the time he entered the pleas he was severely

depressed and under pressure from his counsel to enter the pleas." 74 Wn.. App. at 850. This court held that because Smith could not demonstrate a causal connection between his

psychological disorders and his decision to take the plea, the allegations against his defense attorney were unsubstantiated and the trial court did not err by refusing to allow him to withdraw

his guilty plea. Smith, 74 Wn. App. at 850 51. -

Here, Tauscher's allegations are not sufficient to allege an ineffective assistance of counsel claim; in fact, Tauscher's allegations support the contention that he received effective assistance of counsel. Tauscher's defense counsel was required to explain to him the

consequences of the charges and the strength or weakness of Tauscher's case. James, 48 Wn. App. at 362. Therefore, defense counsel's statements about the possibility of Tauscher getting life in prison or losing his case were actually required for defense counsel to adequately explain the plea offer. Tauscher has not -offered any -evidence which would demonstrate his defense

counsel coerced him into accepting the State's guilty plea offer, therefore he has not met his burden of demonstrating ineffective assistance of counsel. Smith, 74 Wn. App. at 850. The remainder of Tauscher's allegations have no bearing on whether he received effective assistance of counsel for his plea agreement. A thorough investigation of a case is not required to actually and substantially assist a client with the decision to plead guilty so long as the defense counsel has sufficient information to explain the strengths and weaknesses of the defendant's case. See

State v. Young, 62 Wn. App. 895,. P. d 829, 817 P. d 412 (1991). Accordingly, 802 2 2

No. 42423 1 II - -

has failed to demonstrate that he received ineffective assistance of counsel when entering into his plea.

Furthermore, the trial court was not required to hold a special evidentiary hearing to investigate Tauscher's claim that his defense counsel coerced him into accepting the plea

agreement. Here, Tauscher , et out his allegations in two pro se motions as well as two letters. s

The record demonstrates that the trial court reviewed these documents prior to making his decision. Furthermore, neither Tauscher nor his defense counsel asked to present additional information that should be added to the record. Because the trial court relied on the written

pleadings, rather than simply the original colloquy establishing that the plea was made voluntarily, the trial court did not err by refusing to hold an additional hearing to investigate Tauscher's claim.

Tauscher bears the burden of demonstrating a manifest injustice that requires permitting

him to withdraw his guilty plea. See Pugh, 153 Wn. App. at 577 (citing Taylor,83 Wn. d at 2

596).Because Tauscher fails to establish that the trial court's finding that his plea was voluntary was manifestly erroneous or that he received ineffective assistance of counsel, Tauscher has failed to meet his burden to demonstrate a manifest injustice. Accordingly, the trial court did not abuse its discretion when it denied Tauscher's motion to withdraw his guilty plea.

APPOINTMENT OF NEW COUNSEL

Tauscher alleges that the trial court was required to appoint new counsel prior to deciding Tauscher's motion to withdraw his guilty plea because part of Tauscher's allegations included ineffective assistance of counsel. In addition to his allegations about coercion, Tauscher alleged that his defense counsel improperly investigated his case. But because simple allegations of

No. 42423 1 II - -

ineffective assistance of counsel do not entitle a defendant to new counsel, the trial court did not abuse its discretion by failing to appoint new counsel for Tauscher.

We review a trial court's decision to deny a motion to appoint new counsel for abuse of

discretion. State v. Varga, 151 Wn. d 179, 200, 86 P. d 139 (2004).Factors to be considered 2 3 "

include `the reasons given for the defendant's dissatisfaction, together with [the trial court's] own evaluation of the competence of existing counsel and the effect of substitution upon the

scheduled proceedings. "' State v. Rosborough, 62 Wn. App. 341, 346, 814 P. d 679 (alteration 2

in original) quoting State v. Stark, 48 Wn. App. 245, 253, 738 P. d 684, review denied, 109 ( 2

Wn. d 1003 (1987)), 2 review'denied, 118 Wn. d 1003 (1991).A mere allegation of ineffective 2

assistance of counsel does not create an inherent.conflict of interest requiring substitute counsel. Rosborough, 62 Wn. App. at 346.

As explained above, Tauscher's allegations fail to demonstrate he received ineffective assistance of counsel. Therefore, there was no conflict of interest that would require

appointment of new counsel and the trial court did not abuse its discretion by denying Tauscher's motion. It is important to note that Tauscher's allegations must be viewed under the standard for effective assistance of counsel during plea negotiations not during or after trial. While failure to contact or call witnesses who could potentially exonerate the defendant may be ineffective assistance of counsel after a defendant has gone to trial, it is not ineffective assistance of counsel when advising a defendant about a plea agreement. See Young, 62 Wn. App. 895. Therefore, Tauscher's allegations about his defense counsel failing to contact CPS or additional witnesses do not support a claim of ineffective assistance of counsel which would require the trial court to appoint new counsel.

No. 42423 1 II - -

CALIFORNIA CONVICTION

Tauscher argues that his offender score was improperly calculated because Cal. Penal Code § 487a (Grand theft; stealing, transporting, appropriating, etc.,carcass of animal) is not

comparable to a Washington felony. But the California order of probation Tauscher presented to the trial court shows that in 1995 Tauscher pleaded nolo contendre to a violation of former Cal.

Penal Code § 487( ) ( grand theft).To resolve this discrepancy, we remanded to the trial a 1993) (

court for a reference hearing to determine under which statute Tauscher was convicted. The trial

court found that Tauscher was convicted of grand theft under former Cal. Penal Code § 487( ) a

and concluded that California's grand theft statute was comparable to Washington's second

degree theft statute, former RCW 9A. 6.1994). 040 ( 5 In his supplemental briefing regarding the reference hearing on remand, Tauscher argues

that the trial court improperly considered additional evidence regarding Tauscher's California conviction. Sufficient evidence in the original record supports the trial court's finding that

Tauscher was convicted of grand theft under former Cal. Penal Code § 487( ). a Therefore,

although we are inclined to disagree with Tauscher's assertion, we do not decide whether - additional evidence was properly considered on remand. See LAWS OF 2008, ch. 231, § 1

Given the decisions in In re Cadwallader, 155 Wn. d 867[,123 P. d 456] 2005); 2 3 ( State v.

1 In 2009, the legislature amended RCW 9A. 6.to increase the minimum value of property 040 5 for second degree theft from $ 750. LAWS 250 to $ OF But we apply the 2009, ch. 431, § 8. statutes in effect at the time the offense was committed. Accordingly, we compare the California and Washington statutes in effect in 1995.

2 In the statement of defendant on plea of guilty, Tauscher stipulated that he had a prior conviction for a violation of former Cal. Penal Code § 487( ) a and the minute and order of probation Tauscher submitted to the court in support of his motion to modify and correct his offender score shows that Tauscher pleaded nolo contendre to a violation of former Cal. Penal Code § 487( ). a

No.42423 1 II - -

Lopez, 147 Wn. d 515[,55 P. d 609] 2002); 2 3 ( State v. Ford, 137 Wn. d 472[,973 P. d 452] 2 2

1999); State v. McCorkle, 137 Wn. d 490[, and 2 973 P. d 461] 1999), legislature finds it 2 ( the

necessary to amend the provisions in RCW 9. 9. and 9. in order to 500, 94A. 525, 94A. 530 94A.

ensure that sentences imposed accurately reflect the offender's actual, complete criminal history, whether imposed at sentencing or upon resentencing. "). Accordingly, our analysis is limited to whether Tauscher's 1995 California conviction was comparable to a Washington felony. We hold that it was.

Out ofstate convictions for offenses shall be classified according to the comparable - -

offense definitions , and sentences provided by Washington law." RCW 9. ). 525( 4A. 3 9

Washington courts employ a two part, test to determine whether foreign convictions are -

comparable to Washington offenses. In re Pers. Restraint ofLavery, 154 Wn. d 249, 255, 111 2 P. d 837 ( 2005). The 3 court must compare the elements of a Washington criminal statute in

effect when the.foreign crime was.committed. In re Lavery, 154 Wn. d at 255 (citing State v. 2

Morley, 134 Wn. d 588, 605 06,952 P. d 167 (1998)). the elements of the foreign conviction 2 - 2 If

are comparable to the elements of a Washington - strike -offense on their face, the foreign conviction counts toward the defendant's offender score. In re Lavery, 154 Wn. d at 255. 2

Under former Cal. Penal Code § 487, grand theft theft was " committed ... ( a) [ hen the w]

money, labor, or real or personal property taken is of a value exceeding four hundred dollars

400)."person was guilty of theft if he "feloniously steal[s], s], ies], s], A take[ carr[ lead[ or

s away the personal property of drive[ ] another." Former Cal. Penal Code § 484( ) ( a 1980)..

Under former RCW 9A. 6. a person 040, 5 was guilty of theft if he " commits theft of. ( a)

p] or services which exceed(s) hundred and fifty dollars in value, but does not roperty two exceed one thousand five hundred dollars in value."In Washington, theft means "to wrongfully

No. 42423 1 II - -

obtain or exert unauthorized control over the property or services of another or the value thereof,

with intent to deprive him of such property or services."Former RCW 9A. 6. 020( a 1975). 5 ). (

While California law provided that a person committed theft by feloniously taking,

Washington's wrongfully obtain"was the substantial equivalent. In addition, California courts "

have held that theft "requires a specific intent permanently to deprive the rightful owner of his

property."California v. Kunkin, 9 Cal. 3d 245, 251, 507 P. d 1392, 107 Cal. Rptr. 184 (1973).. 2

Accordingly, California's definition of theft was essentially identical to Washington's definition

of theft. In addition, because California required the stolen property to be worth at least $ 00,an 4

amount that is higher than the former $250 Washington requirement, a person would have necessarily violated the Washington statute by violating the California statute. Accordingly,

California's grand theft statute, former Cal. Penal Code § 487( ), legally comparable to a was

Washington's second degree theft statute, former RCW 9A. 6. The trial court did not err by 040. 5

including Tauscher's California conviction in his offender score.

LEGAL FINANCIAL OBLIGATIONS

Tauscher argues, and the State concedes, that the trial court erred by concluding that

Tauscher had the present and future ability to pay his legal financial obligations because there were no formal findings to support its conclusion. But we reject the State's concession as

improvident. See State v. Ziegenfuss, 118 Wn. App. 110, 112, 74 P. d 1205 (2003) ( " 3 Because the defendant] has not yet failed to pay her legal financial obligations ... her argument is not

yet ripe for review. "),review denied, 151 Wn. d 1016 (2004); 2 State v. Baldwin, 63 Wn. App.

303, 310, 818 P. d 1116, 837 P. d 646 ( 1991) (T] e 2 2 "[ h meaningful time to examine the

defendant's ability to pay is when the government seeks to collect the obligation. "); see also

State v. Blazina, No. 42728 1 II,2013 WL 2217206, at *2 3 ( - - - Wash. Ct. App. May 21, 2013)

No. 42423 1 II - -

Challenge to the trial court's finding that the defendant has the ability to,pay legal financial

obligations is waived under RAP 2. ( affirm. a).). 5 We

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.6.it is 040, 0

so ordered.

AV? QUINN- BRINTNALL, P. . J We concur:

OVA

AN DEREN, J. . T. P