State Of Washington, Res/cross-app. v. Zachary Richard Standley, App/cross-res. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72313-8-1
Respondent,
DIVISION ONE
v. ro
ZACHARY RICHARD STANDLEY, UNPUBLISHED OPINION
o
Appellant. FILED: July 27, 2015 en
Becker, J. — To prevail on a claim for ineffective assistance of counsel,
the defendant must overcome the presumption that counsel's actions were
strategic. Because the defendant has failed to do so here, we affirm.
Appellant Zachary Standley was convicted by stipulated bench trial of
felony failure to register as a sex offender from February 18, 2014, through
February 27, 2014. Defense counsel argued for an exceptional sentence below
the standard range on the ground that Standley was willing to comply with
registration requirements but lacked the financial and transportation resources to
do so. The trial court declined to impose an exceptional sentence, instead
imposing a sentence at the low end of the standard range. Standley appeals.
Standley argues that he received ineffective assistance of counsel when
his attorney failed to cite State v. Garcia, 162 Wn. App. 678, 256 P.3d 379(2011). review denied, 173Wn.2d 1008(2012).
No. 72313-8-1/2
Criminal defendants are entitled to the effective assistance of counsel.
U.S. Const, amend. 6; Wash. Const, art. I, § 22. Reviewing courts presume
counsel's representation was effective. State v. McFarland. 127 Wn.2d 322, 335,
899 P.2d 1251 (1995). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both that his counsel's representation was deficient
and that the deficiency was prejudicial. McFarland, 128 Wn.2d at 335. 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). To establish deficient
performance, the defendant must overcome the presumption that counsel's
decisions were strategic. McFarland, 128 Wn.2d at 336.
Garcia recognized that an offender's willingness to comply with sex
offender registration requirements, as evidenced by his attempts to comply, could
serve as a basis for an exceptional sentence below the standard range. Garcia
was a transient sex offender. To comply with his duty to register every week, he
arranged to get rides with friends from Sunnyside, where he lived, to the sheriff's
office in Yakima. Due to a fire, Yakima was the closest place Garcia could report
even though it was 40 miles away. On the day in question, Garcia arranged
transportation from Sunnyside to Yakima to register with the sheriff's office. He
also planned to turn himself in to the Department of Corrections in Yakima on an
outstanding bench warrant. His ride was almost an hour late. He called the
sheriff's office to let them know he would not make it on time. He was told that if
he turned himself in on the warrant, he would not be in violation of his reporting
requirements. But he got to the Department of Corrections office half an hour
No. 72313-8-1/3
after the deadline to turn himself in. Garcia was convicted as charged with failure
to register as a sex offender. Garcia's standard range was 33 to 43 months. The
trial court imposed an exceptional sentence of 364 days based on Garcia's
transportation difficulties, his attempts to comply with his reporting obligations,
his obligation to register with two different government agencies located 40 miles
apart, and the de minimis nature of his obligation. The State appealed, arguing
that the mitigating factors relied on by the trial court were not substantial or
compelling and that the sentence was too lenient. This court affirmed, finding
that, except for the de minimis rationale, the mitigating factors found by the trial
court were appropriate because they were not factors envisioned by the
legislature when it established the standard sentence ranges for the crime of
failure to register.
Standley's theory of ineffective assistance assumes that Garcia supports
his claim to an exceptional sentence down. It does not. Unlike Garcia, Standley
took no action to comply with his reporting requirements. Itwas only after he
missed the reporting deadline and was arrested that he told police he was unable
to get to the reporting office. Unlike in Garcia, where the 40-mile distance
contributed to the transportation difficulty, Standley acknowledged that the office
was only 6 miles away and he could have walked. If defense counsel had cited
Garcia to the trial court as authority for a lenient sentence, it would have drawn
attention to Standley's relative lack of effortto comply with the registration
requirement as compared to Garcia's very substantial efforts. Under these
No. 72313-8-1/4
circumstances, Standley cannot overcome the presumption that counsel's failure
to cite Garcia was strategic.
In State v. McGill, 112 Wn. App. 95, 47 P.3d 173 (2002), counsel's failure
to cite a case showing the court had authority to impose an exceptional sentence
downward was held to be ineffective assistance where the trial court at
sentencing expressed the incorrect belief that it lacked the authority to impose an
exceptional sentence. This is not a case like McGill. The court was aware of its
authority to impose an exceptional sentence below the standard range. Counsel
made an argument for an exceptional sentence based on the factors considered
in Garcia but without citing Garcia. Citing Garcia would have made the argument
weaker, not stronger.
Affirmed.
WE CONCUR:
JLA JVH^IQ