FILED
OCTOBER 25, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33553-4-111
Respondent, )
)
v. )
)
JOSEPH MARTIAL WONCH, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. -Joseph Wonch appeals from the resentencing required by his
successful personal restraint petition (PRP), primarily arguing that his counsel was
ineffective in failing to raise the question of his ability to pay discretionary legal financial
obligations (LFOs) at the resentencing. Since he has failed to establish that he was
prejudiced by the alleged failure of counsel, we affirm.
The relevant facts can be briefly stated. Mr. Wonch was convicted of two counts
of possession of a controlled substance (oxycodone and methamphetamine) and one
count of unlawful possession of a firearm in the second degree by guilty plea that
included an agreement by the parties to an exceptional sentence. He was sentenced in
2012 to 84 months in prison on the drug offenses and ordered to pay $2,300 in fines and
costs. The only discretionary cost imposed was $500 for attorney fees.
No. 33553-4-III
State v. Wonch
Despite the agreed upon exceptional sentence, Mr. Wonch appealed to this court,
challenging the sentence and his LFOs. This court declined to consider the LFO
challenge because it was not ripe for review and affirmed the exceptional sentence.
Subsequently, Mr. Wonch successfully challenged the 84 month sentences on the drug
counts because they exceeded the trial court's sentencing authority. Our Chief Judge
ordered that Mr. Wonch be resentenced and directed that imprisonment on the the drug
counts not exceed 60 months. The PRP ruling did not address LFOs.
At the resentencing, defense counsel and the prosecutor agreed that the only issue
before the court was the sentence length and asked the court to reduce the 84 month terms
to 60 month terms. 1 The prosecutor indicated that she had what was in effect an agreed
order that carried over the same LFOs ordered in the original sentence. Defense counsel
agreed that his client had completed his sentence and was done with everything except
LFOs. Mr. Wonch told the judge that he had been accepted into the University of
Washington and was looking forward to completing his education. The judge, who had
known Mr. Wonch since he was age 6, described "Joe" as intelligent. The court then
signed the agreed upon judgment and sentence.
1
The prosecutor also reminded the judge that the defendant had been arrested for
more than 50 felonies and the judge recalled that Mr. Wonch was facing a sentence like
"forever" prior to the negotiated plea.
2
No. 33553-4-III
State v. Wonch
Nonetheless, Mr. Wonch once again appealed to this court. He originally asked
that the court invalidate the LFOs for the failure of the 2012 sentencing to conduct a
Blazina 2 inquiry and also argued that his counsel was ineffective for failing to raise the
issue at the 2015 resentencing. In his reply brief, appellant agreed that he was only
challenging his counsel's effectiveness at the 2015 proceeding. We agree that is the only
issue before us since the 2012 judgment and sentence was superseded by the 2015
sentence.
Well settled standards govern the ineffective assistance issue. The Sixth
Amendment guarantees the right to counsel, requiring that the attorney perform to the
standards of the profession. Effectiveness of counsel is judged by the two prong standard
of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That
test is whether or not (1) counsel's performance failed to meet a standard of reasonableness,
and (2) actual prejudice resulted from counsel's failures. Id. at 690-692. In evaluating
ineffectiveness claims, courts must be highly deferential to counsel's decisions and there
is a strong presumption that counsel performed adequately. A strategic or tactical
decision is not a basis for finding error. Id. at 689-691. When a claim can be disposed of
on one ground, a reviewing court need not consider both Strickland prongs. Id. at 697;
State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
2 State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015).
3
No. 33553-4-111
State v. Wonch
While we could debate whether or not counsel erred given the significant sentence
reduction negotiated by the parties and comparative lesser importance of the $500 in
discretionary LFOs at issue here, we need not address that prong of the Strickland
standard because the claim falters on the second-Mr. Wonch has not shown that he was
actually prejudiced by the failure to inquire. The primary problem is that on this record
he cannot show that the outcome of the sentencing would have been different. See State
v. Lyle, 188 Wn. App. 848, 853-854, 355 P.3d 327 (2015). His own ability to seek
remission under RCW 10.01.160(4) is another reason that counsel's failure was not
necessarily prejudicial. Id. at 854 n.2. The ability to raise the issue by motion ensures
that the ability to challenge the discretionary LFOs was not lost by any failure of counsel.
The judgment is affirmed.
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:
ncurring in result only l
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