Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  40743-4-II

                             Respondent,

       v.

NERISSA SHELMIDINE,                                         PUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  Nerissa Shelmidine contests the trial court's denial of her motion to 

dismiss her delivery of a controlled substance (ecstasy) charge or, alternatively, for the withdrawal 

of counsel.  She asserts that the State's plea offer, which was conditioned on her not seeking a

confidential informant's identity, interfered with her right to effective assistance of counsel.  We 

affirm.

                                            FACTS

       On March 3, 2010, the State charged Shelmidine with one count of delivery of a 

controlled substance (ecstasy) with a school bus route stop enhancement.1 The State alleged that 

Shelmidine had delivered the controlled substance to a confidential informant.  

       In cases involving confidential informants, the Clallam County prosecutor's office 

provides a plea offer at the lower end of the sentencing range.  If the defendant does not accept 

the offer and seeks the identity of the confidential informant, "the office policy is to withdraw the 

plea offer and proceed to trial."  Clerk's Papers (CP) at 18.  If the defendant seeks to proceed to 

trial, the State will disclose the confidential informant's identity in the course of discovery.  

1 In violation of RCW 69.50.401(1), .435. 

40743-4-II

       Consistent with this policy, the State offered to dismiss the school bus route stop 

enhancement and to recommend a low-end, standard range sentence in exchange for Shelmidine's 

guilty  plea.  The plea offer also provided that it would be "withdrawn if defendant seeks 

disclosure of identity of [confidential informant]." CP at 35.

       In the course of discovery, Shelmidine's defense counsel requested the confidential 

informant's identity.  The State informed defense counsel that if it provided the demanded 

discovery, it would deem the plea offer withdrawn.  The State "otherwise provided full discovery"

to Shelmidine's defense counsel, including a document entitled "history and background of 

confidential informant." CP at 4, 49.  This document included the confidential informant's drug 

and alcohol use history and criminal history and the terms of the contract between the Olympic 

Peninsula Narcotics Enforcement Team and the confidential informant.  According to the State, 

defense counsel also obtained several police reports, a transcribed phone conversation between 

Shelmidine and the confidential informant, and laboratory reports analyzing the substances the 

confidential informant purchased from Shelmidine.

       Shelmidine filed a motion to dismiss or, in the alternative, for the withdrawal of counsel, 

arguing that the "State's policy has interfered with [her] rights to due process of law and to 

counsel, as well as created a conflict of interest." CP at 29.  The trial court denied Shelmidine's 

motion.  

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       The trial court certified this case for discretionary review under RAP 2.3(b)(4).2   We 

accepted review.  

                                          ANALYSIS

       Shelmidine argues that the trial court erred by denying her motion to dismiss or, in the 

alternative, for the withdrawal of counsel.  Specifically, she contends that the conditional terms of 

the State's plea offer prevented defense counsel from providing effective assistance of counsel by 

placing defense counsel in an "untenable ethical position." Appellant's Br. at 7.  We disagree.

       We reverse a trial court's ruling on an attorney's motion to withdraw or a CrR 8.3(b) 

motion to dismiss if the ruling was manifestly unreasonable or based on untenable grounds.  See 

State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995); State v. Martinez, 121 Wn. App. 21, 

30, 86 P.3d 1210 (2004); State v. Hegge, 53 Wn. App. 345, 350, 766 P.2d 1127 (1989).  A 

decision is manifestly unreasonable "if the court, despite applying the correct legal standard to the 

supported facts, adopts a view 'that no reasonable person would take.'"  State v. Rohrich, 149 

Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Lewis, 115 Wn.2d 294, 298, 797 P.2d 

1141 (1990)).

       A criminal defendant has a right to effective assistance of counsel at every critical stage of 

a criminal proceeding.  U.S. Const. amend. VI; Wash Const. art. I, § 22; United States v. Cronic, 

466 U.S. 648, 654, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (quoting McMann v. Richardson, 

397 U.S. 759, 771 n.14, 90 S. Ct 1441, 25 L. Ed. 2d 763 (1970)); State v. Robinson, 153 Wn.2d 

2 Under RAP 2.3(b)(4), we may grant discretionary review in the following circumstance: "The 
superior court has certified, or all the  parties to the litigation have stipulated, that the order 
involves a controlling question of law as to which there is substantial ground for a difference of 
opinion and that immediate review of the order may materially advance the ultimate termination of 
the litigation."
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689, 694, 107 P.3d 90 (2005).  In order to prove ineffective assistance of counsel, the defendant 

must show that (1) counsel's performance fell below an objective standard of reasonableness and 

(2) counsel's performance prejudiced the defendant.  Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 

P.2d 1251 (1995).  "Effective assistance of counsel includes assisting the defendant in making an 

informed decision as to whether to plead guilty or to proceed to trial."  State v. A.N.J., 168 

Wn.2d 91, 111, 225 P.3d 956 (2010) (citing State v. S.M., 100 Wn. App. 401, 413, 996 P.2d 

1111 (2000)). "[A] defendant's counsel cannot properly evaluate the merits of a plea offer 

without evaluating the State's evidence."  A.N.J., 168 Wn.2d at 109.

       "The presence of counsel during all stages of plea bargaining is mandated by the courts."  

State v. Swindell, 93 Wn.2d 192, 198, 607 P.2d 852 (1980).  But "[a] defendant does not have a 

constitutional right to plea bargain."  State v. Wheeler, 95 Wn.2d 799, 804, 631 P.2d 376 (1981) 

(citing Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977)).

       Shelmidine argues that  the terms of the State's offer prevented defense counsel from 

complying with his duty, under the Rules of Professional Conduct (RPCs) and A.N.J., 168 Wn.2d 

91, to competently represent her and reasonably evaluate the evidence against her.  Shelmidine 

contends that it is unreasonable "to expect counsel to advise a client about the strength of the 

[S]tate's case or the wisdom of entering into a plea agreement when he has been denied 

information so basic as the name of the informant upon whose word the government is basing its 

case." Appellant's Br. at 12-13.

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       RPC 1.1 reads, "A lawyer shall provide competent representation to a client.  Competent 

representation requires the legal knowledge, skill, thoroughness and preparation reasonably 

necessary for the representation." Under RPC 1.3, "[a] lawyer shall act with reasonable diligence 

and promptness in representing a client." Further, "[i]n a criminal case, the lawyer shall abide by 

the client's decision, after consultation with the lawyer, as to a plea to be entered"; "[a] lawyer 

shall . . . promptly inform the client of any decision or circumstance with respect to which the 

client's informed consent . . . is required." RPC 1.2(a); RPC 1.4(a)(1).

       In A.N.J., the State offered the defendant a plea deal: if the defendant would plead guilty 

to one count of first degree child molestation, the State would recommend a special sex offender 

disposition alternative; and, if the defendant finished treatment, the charge would be reduced to 

second degree child molestation.  168 Wn.2d at 101.  Defense counsel spent less than an hour 

with the defendant before the plea hearing, did no independent investigation, did not review the 

plea agreement carefully, and did not consult with experts.  A.N.J., 168 Wn.2d at 102.  The 

defendant pleaded guilty but after hiring a new attorney, moved to withdraw his guilty plea.  

A.N.J., 168 Wn.2d at 102.  The trial court denied his motion.  A.N.J., 168 Wn.2d at 105.  Our 

Supreme Court concluded that the defendant received ineffective assistance of counsel and held 

that "at the very least, counsel must reasonably evaluate the evidence against the accused and the 

likelihood of a conviction if the case proceeds to trial so that the defendant can make a meaningful 

decision as to whether or not to plead guilty."  A.N.J., 168 Wn.2d at 111-12.

       The State contends that defense counsel could have provided "reasonable and competent 

advice regarding the plea offer."   Resp't's Br. at 16.  We agree.    Defense counsel received 

extensive information about the State's case, apparently everything of significance, except the 

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confidential informant's identity.  According to the State, defense counsel obtained several police 

reports, a transcribed telephone conversation between Shelmidine and the confidential informant, 

and laboratory reports analyzing the substances the confidential informant purchased from 

Shelmidine.  Defense counsel also received a document entitled "history and background of 

confidential informant." CP at 49.  This document included the confidential informant's drug and 

alcohol use history and criminal history and the terms of the contract between the Olympic 

Peninsula Narcotics Enforcement Team and the confidential informant.3   Further, defense counsel 

could have interviewed the investigative officers and the known eyewitness to the alleged 

transaction.  Finally, defense counsel could have informed Shelmidine of the specific terms of the 

State's plea offer.  We conclude that with this evidence, defense counsel could competently and 

diligently represent Shelmidine in compliance with the RPCs.  Further, there was sufficient 

evidence for defense counsel to reasonably evaluate the evidence against Shelmidine and 

effectively assist her in making an informed decision as to whether to plead guilty or go to trial.4

       Shelmidine also asserts that disclosure of the confidential informant's identity is necessary 

to prevent defense counsel from "representing parties with conflicting interests."  

3 Even if Shelmidine had received no information about the informant, the result would be the 
same.  The missing information is simply part of what defense counsel may discuss with the client 
as they consider the State's offer.

4 We note the difficulty in formulating a bright line rule for when counsel has insufficient 
information to provide competent advice in the plea bargaining process.  While we can determine 
that there was sufficient information here and insufficient information in A.N.J., future cases will 
have to be evaluated on a case-by-case basis.
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Appellant's Br. at 13.  Shelmidine's argument is entirely speculative, as she presents no RPC 

provision that her counsel could even hypothetically run afoul of where, as here, counsel not only 

does not know the confidential informant's identity but has requested and even sought a court 

order to obtain that information. Accordingly, it is difficult to follow how defense counsel could 

violate the RPCs by failing to identify a conflict in this circumstance.

       Furthermore, the law does not require the State to disclose the confidential informant's 

identity.  In State v. Moen, 150 Wn.2d 221, 225, 76 P.3d 721 (2003), the defendant argued that 

"the State's policy of refusing to plea bargain with a criminal defendant who successfully compels 

disclosure of the State's confidential informant in a civil forfeiture action chills his right to obtain 

discovery in the civil case and thus violates due process." Our Supreme Court held that the policy 

did not violate the defendant's due process rights.  Moen, 150 Wn.2d at 231.

       In reaching its conclusion, the court recognized the contractual nature of plea bargains, 

reasoning that "[a] plea bargain is a contract and both sides to the agreement must perceive an 

advantage to entering the bargain."  Moen, 150 Wn.2d at 230 (internal citation omitted).  Further, 

the court noted the legitimate state interest in protecting the confidential informant's identity.  

Moen, 150 Wn.2d at 230 (citing State v. Casal, 103 Wn.2d 812, 815, 699 P.2d 1234 (1985)).  

"When the State is compelled to disclose an informant's identity, it loses a valuable asset or tool 

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of law enforcement.  Under the policy, the State gains protection of its informants and, in 

exchange, the defendant receives the opportunity to bargain for a reduction or dismissal of 

charges."  Moen, 150 Wn.2d at 230.

              We recognize that the prosecutor's policy requires the defendant to forgo 
       his right to request disclosure of an informant's identity.  However, a condition 
       insisted on by the State that requires a defendant to give up a constitutional right 
       does not, by itself, violate due process.  "Agreements to forgo seeking an 
       exceptional sentence, to decline prosecuting all offenses, to pay restitution on 
       uncharged crimes, and to waive the right to appeal are all permissible components 
       of valid plea agreements."   State v. Lee, 132 Wn.2d 498, 506, 939 P.2d 1223 
       (1997);  see State v. Perkins, 108 Wn.2d 212, 737 P.2d 250 (1987).            The 
       theoretical basis for all plea bargaining is that defendants will agree to waive their 
       constitutional rights.

Moen, 150 Wn.2d at 230-31.

       Shelmidine argues that Moen is inapplicable here because (1) it "did not deal with any of 

the ethical issues" and (2) it does not address any of the issues A.N.J raised.  Appellant's Br. at 

15.  As we discussed above, the State's plea offer did not force defense counsel to act unethically.  

Furthermore, the plea offer did not preclude defense counsel from reasonably evaluating the 

evidence against Shelmidine and the likelihood of a conviction if the case proceeded to trial.

       Rather, the Moen court's reasoning supports the conclusion that the State's plea offer was

proper.  First, a plea bargain is a contract, and the terms of the offer at issue presents advantages 

to both parties:  Shelmidine would have received the benefit of a lenient sentence and, in 

exchange, the State would have received the benefit of protecting its informant's identity.  Also, 

while the offer required Shelmidine to waive her right to request disclosure of the informant's 

identity, waivers are necessary components of plea agreements.  See Moen, 150 Wn.2d at 230-31.  

       Because the State's plea offer did    not preclude Shelmidine's defense counsel from 

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providing effective assistance of counsel, the trial court properly denied defense counsel's motion 

to withdraw.  Further, because the law does not require the State to disclose the confidential 

informant's identity before Shelmidine decided whether to accept the plea offer, the trial court 

correctly denied Shelmidine's motion to dismiss.

       We affirm.

                                                           Penoyar, C.J.

We concur:

       Van Deren, J.

       Worswick, J.

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