FILED
JUNE 14, 2018
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. 35229-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
VYACHESLAV KOSTENYUK, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Vyacheslav Kostenyuk appeals after his conviction
for residential burglary and second degree vehicle prowling. He requests a new trial on
the basis that he received ineffective assistance of counsel. We deny his request and
affirm.
FACTS
While driving his patrol vehicle, Corporal Raymond Harding saw Mr. Kostenyuk
run down a driveway in front of an open garage. Corporal Harding described Mr.
Kostenyuk as running at a full sprint, with “his hands . . . cupped under the front of his
shirt like he was holding something under his shirt as he ran.” Report of Proceedings at
No. 35229-3-III
State v. Kostenyuk
40. He saw Mr. Kostenyuk run in that manner down the street, enter a car, and drive
away.
As Corporal Harding passed the house with the open garage, he noticed a car
inside the garage with the passenger door and rear hatch opened. Corporal Harding,
concerned that a crime may have been committed, eventually stopped Mr. Kostenyuk’s
car. Once assistance arrived, Corporal Harding returned to the home with the open
garage.
Tana Rekofke owned the home and the car parked inside the garage. Ms. Rekofke
explained that she had been cleaning the garage, but left it open to go inside her home to
answer a telephone call. A few minutes later she heard a door slam and a dog bark, so
she hurried back into the garage and noticed her car’s passenger door and rear hatch open.
Several belongings were missing from her car: a set of keys, a green iPod, cash in unusual
denominations, and banking receipts.
Corporal Harding and Ms. Rekofke returned to Mr. Kostenyuk’s car. Looking
inside the car, she immediately recognized her keys and missing papers. At that point,
police seized the car and obtained a search warrant. Police searched the car and found all
of Ms. Rekofke’s missing items.
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No. 35229-3-III
State v. Kostenyuk
The State charged Mr. Kostenyuk with one count of residential burglary and one
count of second degree vehicle prowling. Mr. Kostenyuk did not file a suppression
motion challenging Corporal Harding’s authority to stop his car. After a short trial that
produced no other challenges on appeal, the jury found Mr. Kostenyuk guilty. Mr.
Kostenyuk now appeals.
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Kostenyuk contends he was deprived of his constitutional right to effective
assistance of counsel and requests a new trial. He argues his trial counsel was ineffective
for not filing a motion to suppress evidence obtained from the purported unconstitutional
stop of his car. He argues a suppression motion would have resulted in the suppression of
nearly all evidence, requiring dismissal. The State responds that because facts necessary
to adjudicate the claimed error are not in the record, Mr. Kostenyuk’s remedy is to file a
personal restraint petition. We agree.
In general, we will not consider an issue raised for the first time on appeal.
RAP 2.5(a). However, under RAP 2.5(a)(3), we will consider an unpreserved claim if the
claim involves a manifest error affecting a constitutional right. A claim of error is not
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No. 35229-3-III
State v. Kostenyuk
manifest if the facts necessary to adjudicate the claim are not in the record. State v.
McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
In State v. Torres, 198 Wn. App. 864, 879-80, 397 P.3d 900, review denied, 189
Wn.2d 1022, 404 P.3d 486 (2017), Ms. Torres alleged that her trial counsel was
ineffective for not bringing a suppression motion to challenge a warrantless entry into her
home. This court noted that a claim of ineffective assistance is a two-pronged analysis,
with the latter prong requiring the defendant to establish prejudice. Id. To establish
prejudice, Ms. Torres was required to show that the motion to suppress likely would have
been granted. Id. at 880. We reasoned that her trial counsel’s failure to bring a motion to
suppress prevented the development of important facts necessary to determine whether
the warrantless entry was constitutionally permissible. Id. Because the facts necessary to
adjudicate her claim were not in the record, we concluded that the claim of error was not
manifest and we refused to consider it.
Similarly here, the facts necessary to adjudicate whether Corporal Harding’s stop
of Mr. Kostenyuk’s car was constitutionally permissible are not in the record. Although
Corporal Harding testified at trial, neither party developed his reasons for stopping Mr.
Kostenyuk because those reasons were not germane to whether Mr. Kostenyuk committed
the charged crimes. We, therefore, determine that the claimed error is not manifest and
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No. 35229-3-III
State v. Kostenyuk
decline to consider it. Mr. Kostenyuk's rem~dy is to raise this and any other appropriate
constitutional claim in a personal restraint petition. McFarland, 127 Wn.2d at 339. 1
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.
Lawrence-Berrey, C.J.
WE CONCUR:
Fearing, J. • Siddoway, 1:
1
Mr. Kostenyuk asks this court to not award appellate costs in the event the State
substantially prevails. The State has substantially prevailed. In accordance with
RAP 14.2, we defer the question of appellate costs to our administrator/clerk or our
comm1ss10ner.
5