IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 78285-1-1
Respondent,
DIVISION ONE
V.
JESSE VIRGIL GALLAGHER, UNPUBLISHED OPINION
Appellant.
FILED: April 15, 2019
PER CURIAM-Jesse Gallagher challenges legal financial obligations
(LF0s) imposed following his guilty pleas to possession of a stolen vehicle, first
degree unlawful possession of a firearm, and possession of a controlled
substance. Gallagher contends, and the State concedes, that the $200 criminal
filing fee and $100 DNA (deoxyribonucleic acid) collection fee should be stricken
from his judgment and sentence due to his indigence, previous DNA collection,
amendments to ROW 36.18.020(2)(h) and ROW 43.43.7541, and State v.
Ramirez, 191 Wn.2d 732, 746-50,426 P.3d 714(2018). We accept the State's
concessions and remand for the trial court to strike the filing and DNA collection
fees from the judgment and sentence.
In his pro se statement of additional grounds for review (SAG), Gallagher
asserts three arguments, which we address in turn.
No. 78285-1-1/2
First, Gallagher argues that the trial court denied his request for a prison
based DOSA (Drug Offender Sentencing Alternative) without a meaningful
inquiry. Generally, a trial court's decision whether to grant a DOSA is not
reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183(2005).
Exceptions include refusing to exercise discretion at all or relying on an
impermissible basis in making the decision. State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997). "While no defendant is entitled to an
exceptional sentence below the standard range; every defendant is entitled to
ask the trial court to consider such a sentence and to have the alternative
actually considered." Grayson, 154 Wn.2d at 342. A trial court's failure to
meaningfully consider a sentencing alternative is reversible error. Grayson, 154
Wn.2d at 342.
Here, the record shows that the trial court considered Gallagher's age at
sentencing (i.e., age 32), his criminal history, and his inability to comply with the
terms of prior community custody conditions. The trial court also considered
Gallagher's response to a question during sentencing that was so strong and
aggressive that "the law enforcement officers in th[e] courtroom all stood up and
all came forward towards [him] in case they needed to control [Gallagher]." After
considering all of the information before it, the court denied Gallagher's request
for a DOSA. The trial court meaningfully considered Gallagher's request and did
not categorically reject it.
Second, Gallagher contends his plea was neither knowing nor voluntary
because the State committed prosecutorial misconduct by withholding material
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evidence favorable to him. As factual support for this argument, Gallagher points
to a page in the State's response to his pretrial "Motion to Suppress," which
purportedly references a confidential informant who had tipped law enforcement
that Gallagher possessed a firearm. However, the State's pleading allegedly
containing this language is not a part of the record on appeal. We do not
consider evidence outside the record on appeal. State v. McFarland, 127 Wn.2d
322, 335, 899 P.2d 1251 (1995). Accordingly, Gallagher's argument fails.
Gallagher last contends his defense counsel was ineffective for failing to
investigate and discover the above-mentioned evidence allegedly withheld by the
State. A manifest injustice allowing a defendant to withdraw his guilty plea exists
where defense counsel failed to provide constitutionally effective assistance.
State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377(2010). To establish
ineffective assistance of counsel, Gallagher must show both that(1) his counsel's
performance was deficient, and (2) the deficient performance prejudiced him.
State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260(2011)(quoting State v.
Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). "In a plea bargaining
context, 'effective assistance of counsel' merely requires that counsel 'actually
and substantially [assist] his [or her] client in deciding whether to plead guilty."
State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683(1984)(first alteration in
original)(quoting State v. Cameron, 30 Wn. App. 229, 232,633 P.2d 901
(1981)). To demonstrate prejudice in the plea bargain context, Gallagher must
show a reasonable probability that he would not have pleaded guilty but for his
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defense counsel's deficient performance. In re Pers. Restraint of Riley, 122
Wn.2d 772, 780-81, 863 P.2d 554 (1993).
Other than his own words, Gallagher fails to cite to any evidence in the
record supporting his contention that his defense counsel was ineffective. The
record indicates that defense counsel reviewed the plea paperwork with
Gallagher and answered all of Gallagher's questions regarding the plea and the
rights Gallagher was giving up by entering the plea agreement. Defense counsel
also discussed with Gallagher provisions relating to firearms and immigration
issues. When asked by the trial court, Gallagher stated that he had read the plea
agreements, understood them, and signed them. He stated that no one made
any threats or promises—other than the ones contained in the agreements—to
get him to plead guilty. Gallagher indicated that he was pleading guilty
voluntarily and that he was knowingly foregoing his right to trial. He verified the
truth of his written statements by describing how he, in fact, committed the
offenses as charged. He confirmed that he had sufficient time to talk with
defense counsel prior to pleading guilty. Nothing in the record suggests
Gallagher's counsel was deficient in providing assistance in the plea agreement
process.
We remand for correction of the LFOs but otherwise affirm.
FOR THE COURT:
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