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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  41413-9-II

                             Respondent,

       v.

JOSEPH KOROSHES,                                           UNPUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  Joseph Koroshes appeals the trial court's denial of his counsel's motion 

to withdraw.  Koroshes argues that the conditional terms of the State's plea offer interfered with 

his right to effective assistance of counsel under the United States and Washington Constitutions.  

We affirm the trial court's order denying defense counsel's motion to withdraw.

                                            FACTS

       On July 23, 2010, the State charged Koroshes with three counts of delivery of a controlled 

substance (amphetamine or methamphetamine)1 and one count of possession of a controlled 

substance other than marijuana.2  

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

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

plea offer and seeks the confidential informant's identity, the office's policy is "to withdraw the 

plea offer and proceed to trial."  Clerk's Papers (CP) at 7.  If the defendant "seeks to proceed to 

trial, the confidential informant's identity will be disclosed in the course of discovery." CP at 7.

1 In violation of RCW 69.50.401(1).

2 In violation of RCW 69.50.4013(1). 

41413-9-II

       Consistent with this policy, the State presented Koroshes with a plea offer3 "conditioned 

on [Koroshes] not demanding the identity of the [confidential informant].  The State will comply 

with a demand for the [confidential informant's] identity, but once the [confidential informant's] 

identity is disclosed the offer is withdrawn and the State will proceed to trial as charged." CP at 

24.  According to the State, it provided Koroshes's defense counsel with the following discovery:  

investigative police reports, crime lab reports analyzing the drugs the confidential informant 

purchased from Koroshes, transcripts of recorded conversations between the confidential 

informant and Koroshes, a summary of the confidential informant's credibility, and a copy of the 

confidential informant's agreement with law enforcement.  

       On September 28, 2010, defense counsel filed a motion to withdraw as counsel and for 

certification for appeal.  Defense counsel argued that, after reviewing the discovery, "it became 

clear that the case would be greatly influenced by the confidential informant and that informant's 

credibility." CP at 58.  He thus sought to withdraw, asserting that the plea offer prevented him 

from ascertaining whether a conflict existed, adequately advising his client, and complying with 

his ethical duties.  The trial court denied the motion to withdraw but allowed defense counsel to 

seek discretionary review.  

       Defense counsel also moved to stay the proceedings pending a decision of this court 

regarding his petition for discretionary review and to certify the case, under RAP 2.3(b)(4), as 

involving a controlling question of law as to which there is substantial ground for a difference of 

opinion.  The trial court entered an order staying the proceedings and certifying the question at 

3 The State offered to dismiss one count of delivery of a controlled substance (amphetamine or 
methamphetamine), not to charge school bus route enhancements, and to recommend a low-end, 
standard-range sentence in exchange for Koroshes's plea of guilty.  
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issue in defense counsel's motion for withdrawal. 

       Koroshes filed a motion for discretionary review of the trial court's denial of defense 

counsel's motion to withdraw.  We accepted review.

                                          ANALYSIS

       Koroshes argues that the trial court erred in denying his motion for the withdrawal of 

counsel because "the State's action has created a situation in which [defense counsel] cannot obey 

the requirements of the Rules of Professional Conduct [(RPCs)] while continuing to represent the 

defendant."  Pet'r's Mot. for Discretionary Review at 4.  Thus, he contends, the State's plea 

offer, which is conditioned on the nondisclosure of a confidential informant's identity, interferes 

with his right to assistance of counsel under the Washington and United States Constitutions.  We 

disagree.

       We review a trial court's ruling on an attorney's motion to withdraw for abuse of 

discretion.  See State v. Hegge, 53 Wn. App. 345, 350, 766 P.2d 1127 (1989).  The trial court 

abuses its discretion when the basis for its decision is manifestly unreasonable or based on 

untenable grounds.  State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).  A criminal 

defendant has a right to the assistance of counsel at every critical stage of a criminal proceeding.  

U.S. Const. amend. VI; Wash Const. art. I, § 22; State v. Robinson, 153 Wn.2d 689, 694, 107 

P.3d 90 (2005).  "[T]he right to counsel is the right to the effective assistance of counsel." 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)).

       To prove ineffective assistance of counsel, the defendant must show that (1) his counsel's 

performance fell below an objective standard of reasonableness and (2) counsel's performance 

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prejudiced him.  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)).

       Koroshes argues that A.N.J., 168 Wn.2d 91, "requires counsel [to] assist defendants in 

making informed decisions whether to accept plea offers.  The plaintiff's policy of making plea 

offers contingent on not seeking or obtaining full discovery regarding confidential informants 

frustrates defense counsels' ethical duties under A.N.J." Pet'r's Mot. for Discretionary Review at 

5.  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 as little as 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.  

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41413-9-II

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 109, 111-12.

       Koroshes asserts that "[i]n this case, counsel cannot give any meaningful advice related to 

acceptance or rejection of the plea offer, or evaluate the strengths and weaknesses of the State's 

case against the defendant without the information requested in the demand for discovery."  

Pet'r's Mot. for Discretionary Review at 3.  But the State persuasively contends that Koroshes's 

defense counsel had sufficient evidence to effectively advise his client.  Through discovery, 

Koroshes's defense counsel obtained investigative police reports, crime lab reports analyzing the 

drugs the confidential informant purchased from Koroshes, transcripts of recorded conversations 

between the confidential informant and Koroshes during two of the alleged drug sales, a summary 

of the confidential informant's credibility, and a copy of the confidential informant's agreement 

with law enforcement.  The credibility summary included the confidential informant's drug use 

history, criminal history, and motivation to work with the Olympic Peninsula Narcotics 

Enforcement Team.4    Further, defense counsel could have interviewed the investigative officers.  

We conclude that, with this evidence, defense counsel could have reasonably evaluated the 

evidence against Koroshes and effectively assisted Koroshes in making an informed decision as to 

4 Even if Koroshes 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.

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41413-9-II

whether to plead guilty or go to trial.5

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

to prevent defense counsel from violating the RPCs.  Koroshes's argument is entirely speculative, 

as he presents no RPC provision that his 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 see how an 

attorney 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 identity of confidential informants.  

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 

5 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.
                                               6 

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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.

       Koroshes argues that his case is distinguishable from Moen because (1) here the State

decided to plea bargain, but in Moen, the State refused to plea bargain; (2) Moen involved a civil 

forfeiture suit brought by the City of Spokane, but here "all action is attributable to the State"; 

and (3) here defense counsel sought withdrawal as a remedy rather than dismissal of all charges.  

Pet'r's Mot. for Discretionary Review at 4.  While the facts of Moen are, in fact, distinguishable 

from this case, the reasoning of the Moen court persuasively supports the conclusion here that the 

State's plea offer was proper.  First, a plea bargain is a contract, and the terms of the offer at issue 

presented advantages to both parties:  Koroshes would have received the benefit of a lenient 

sentence and, in exchange, the State would have received the benefit of protecting the identity of 

its informant.  Further, while the offer required Koroshes to waive his right to request disclosure 

of the informant's identity, waivers are necessary components of plea agreements.  See Moen, 150 

Wn.2d at 230-31.  Accordingly, because the State's plea offer did not preclude Koroshes's 

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41413-9-II

defense counsel from providing effective assistance of counsel and because the law did not require 

the State to disclose the confidential informant's identity before Koroshes decided whether to 

accept the plea offer, the trial court correctly denied Koroshes's counsel's motion to withdraw.

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41413-9-II

       Affirmed.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                           Penoyar, C.J.

We concur:

       Van Deren, J.

       Worswick, J.

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