¶19 (dissenting) — The material facts are undisputed. One day after rejecting arguments for less time, the trial court vacated a final judgment to impose less time so Ignacio Quintero Morelos would not be deported. Applying CrR 7.8(b)(5) and State v. Cortez, 73 Wn. App. 838, 841-42, 871 P.2d 660 (1994), I would reverse.
Brown, J.*601¶20 In Cortez, in the same legal situation, we reasoned:
We find no extraordinary circumstances which warrant vacation of the judgment in this case and the interests of justice do not compel, or permit, vacation. There is no reason in law or policy which suggests that a conviction should be vacated for circumstances existing at the time the judgment is entered. Though, as noted by the trial judge, the conviction result seems “too harsh” as applied to Mr. Cortez, nevertheless it is a punishment specifically provided for under federal law.
Cortez, 73 Wn. App. at 842. Cortez is not distinguishable.
¶21 Mr. Quintero Morelos concedes his argument is based solely on CrR 7.8(b)(5) (“[a]ny other reason justifying relief”), the same ground asserted and rejected in Cortez. Before sentencing is final, a judge may discretionally consider and weigh all relevant factors but after final sentencing, principles of finality, consistency, and predictability must control. Id. at 841-42.
¶22 Mr. Quintero Morelos was represented by competent counsel who did advocate for a shorter sentence before the sentence became final. Under Cortez, his later argument should have been rejected because it was based upon “circumstances existing at the time [of] judgment.” Id. at 842. Sound principles of consistency, predictability, and finality do not permit a judge to revisit a sentence every time the judge or the defendant has second thoughts or thinks of new arguments. Id. at 841-42. Thinking of a new argument after the final sentence does not support hindsight ineffective assistance of counsel claims or motions to vacate.
|23 I would reach Mr. Quintero Morelos’ cross-appeal claim of ineffective assistance of counsel. He must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Mr. Quintero Morelos shows neither. Trial counsel did not need to testify because P.F. (a minor) testified fully and was duly cross-examined. The uncalled witnesses are not alleged to have new or material evidence. Tactical decisions whether or not to argue immigration status do not *602support ineffective assistance claims. I disagree with Mr. Quintero Morelos’ proposition that his trial counsel was ineffective under the Strickland standard and current law for not arguing immigration grounds at a state court sentencing hearing.
¶24 In sum, consistent application of Cortez and CrR 7.8 require reversal. No legal distinction exists between Mr. Cortez and Mr. Quintero Morelos permitting the trial court to vacate the original sentence. Accordingly, I respectfully dissent.
Review denied at 159 Wn.2d 1018 (2007).