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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.  40898-8-II

                             Respondent,

       v.
                                                               (consolidated with)
ROBERT THEODORE RUDE, JR.,

                             Appellant.

STATE OF WASHINGTON,                                             No.  40905-4-II

                             Respondent,

       v.

ROBERT THEODORE RUDE, JR.,                                 UNPUBLISHED OPINION

                             Appellant.

       Hunt, J.  --  Robert Theodore Rude, Jr. appeals his guilty plea convictions for five counts 

of second degree identity theft, five counts of unlawful possession of payment instruments, and 

one count of first degree robbery.  He argues that we should allow him to withdraw his guilty 

pleas because (1) he was merely a passenger in a vehicle stopped for a traffic violation; (2) a  

Consolidated Nos.  40898-8-II and 40905-4-II

police officer unconstitutionally seized him when the officer asked Rude to identify himself; (3) he 

did not knowingly, intelligently, and voluntarily enter his guilty pleas or waive his right to appeal 

because his trial counsel provided ineffective assistance in failing to move to suppress evidence 

obtained as a result of Rude's illegal seizure and search; and (4) the record does not reflect that 

Rude was ever told he could move to suppress such evidence.  In his Statement of Additional 

Grounds (SAG), Rude argues that his trial counsel did not advise him about his legal rights and he 

did not understand that he could move to suppress this evidence.  We affirm.

                                            FACTS

       Rude entered into a plea agreement with the State, disposing of his charges from two 

cause numbers arising from two separate criminal  incidents on different dates, Pierce County 

Cause No. 09-1-04544-71 and Pierce County Cause No. 09-1-05358-0.2        On May 13, 2010, he

pleaded guilty to five counts of identity theft, five counts of unlawful possession of payment 

instruments (UPPI), and one count of first degree robbery.  As part of the joint plea agreement, 

Rude stipulated to the State's  probable cause determinations for each incident  to  establish a 

factual basis for the pleas.

       Rude also signed a separate written Statement of Defendant on Plea of Guilty for each 

cause number.  Paragraph 11 of each guilty plea statement began with the phrase, "The judge has 

asked me to state what I did in my own words that makes me guilty of this crime"; under this 

1 Rude's multiple identity theft and UPPI charges were based on a single criminal incident on 
August 6, 2007.

2 Rude's robbery charge was based on a different criminal incident, on October 19, 2009.

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Consolidated Nos.  40898-8-II and 40905-4-II

paragraph on each guilty plea statement, Rude made an additional statement, partially admitting 

his guilt and describing his crimes for each cause number, independent of his earlier probable 

cause stipulations.  Clerk's Papers (CP) (Cause No. 09-1-05358-0) at 9; CP (Cause No. 09-1-

04544-7) at 13.

       In his Alford3 guilty plea statement for the robbery charge, Cause No. 09-1-05358-0, Rude 

explained:

       On [October 19, 2009], in Tacoma, Pierce County, Washington, I stole a portable 
       GPS device from inside James Evanger's car.  Mr. Evanger saw my theft and
       confronted me.  I got into my vehicle and drove away.  Mr. Evanger was near the 
       car as I was trying to leave.  *Mr. Evanger says he [was] struck by the car and was 
       injured.  That injury was inflicted during my efforts to retain his property and/or 
       overcome his resistance to my taking it.*  I do not agree with [the] part [of this 
       statement marked with an asterisk], but I have reviewed the evidence with my 
       lawyer and believe it [is] significantly likely a jury would find it true so I agree the 
       court should find the element of bodily injury and agree to that finding to take 
       advantage of the State's offer in this case.

CP (Cause No. 09-1-05358-0) at 9 (emphasis added).  Similarly, in paragraph 11 of his guilty plea 

statement for the identity theft and UPPI charges, Cause No. 09-1-04544-7, Rude provided the 

following additional description of his criminal acts:

       On the 6th day of [August]      2007 in Pierce County[,] Washington[,] I did 
       unlawfully possess bankchecks and ID[s] without the owners['] consent.  The 
       checks and IDs were in the names of the 5 victims listed in the information, and I 
       intended to use the IDs and checks to commit forgery and/or fraud and/or other 
       crimes, but I did not have these items [in my possession] long enough to formulate 
       any specific plan.

CP (Cause No. 09-1-04544-7) at 13.  Rude initialed each statement in open court with his trial 

counsel present and acknowledged that each was a "true" and "correct" statement of what had 

3 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

                                               3 

Consolidated Nos.  40898-8-II and 40905-4-II

happened, which he adopted as his own.  Verbatim Report of Proceedings (VRP) (May 13, 2010) 

at 11, 19.

       In addition, Rude's written guilty plea statements each contained a separate paragraph 5, 

which began with the following sentence in large font and bold letters:  "I Understand I Have 

the Following Important Rights, and I Give Them All Up by Pleading Guilty."  CP (Cause 

No. 09-1-04544-7) at 7; CP (Cause No. 09-1-05358-0) at 3. In signing his guilty plea statement 

for the identity theft and UPPI charges in Cause No. 09-1-04544-7, Rude acknowledged that he

understood he was giving up important constitutional rights, including his right to a jury trial and 

"[t]he right to appeal a finding of guilt after a trial as well as other pretrial motions such as time 

for trial challenges and suppression issues."   CP (Cause No. 09-1-04544-7) at 7 (emphasis 

added).  By signing the guilty plea statement, Rude also acknowledged that he was entering his 

plea  "freely and voluntarily"; that his attorney had previously read him  the  entire  guilty plea 

statement and had explained it to him; and that he had independently read the entire document 

himself and understood it in full.  CP (Cause No. 09-1-04544-7) at 13.

       Rude followed an identical process in pleading guilty to the robbery charge in Cause No. 

09-1-05358-0, acknowledging and signing the same waiver of rights.   This statement also

included an acknowledgment that Rude understood he was waiving his  "right to appeal . . . 

suppression issues"; that he was making his guilty plea "freely and voluntarily"; that he had 

reviewed the entire guilty plea statement, both with his attorney and on his own; and that he 

understood the document in full. CP (Cause No. 09-1-05358-0) at 3 (emphasis added), 9.

       The trial court then reviewed with Rude his written guilty plea statements and asked a 

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Consolidated Nos.  40898-8-II and 40905-4-II

series of questions to confirm that he had reviewed each entire document with his trial counsel

and that he understood the rights he was giving up by entering guilty pleas.4  Based on Rude's 

answers to these questions, the trial court found that Rude had made his guilty pleas "knowingly, 

intelligently, and voluntarily," and it accepted them.  VRP (May 13, 2010) at 20.

       At sentencing, in accordance with the plea agreement, (1) the State recommended a low-

end standard range sentence for Rude's robbery conviction and high-end standard range sentences 

for his identity theft and UPPI convictions, all to run concurrently; and (2) Rude's trial counsel 

4 The trial court engaged in the following colloquy with Rude:
       COURT:  Holding up the Statement of Defendant on Plea of Guilty . . . [D]id you have an 
       opportunityto go through the entire plea form with your counsel, Mr. Dippolito?
       RUDE:  Yes, Your Honor.
       COURT:  Was it, again, a combination of you reading it as well as Mr. Dippolito reading 
       it to you?
       RUDE:  Yes.
       COURT:  Do you feel you understood the plea form in its entirety?
       RUDE:  Yes, Your Honor.
       COURT:  If you had any questions, was Mr. Dippolito able to answer those questions for 
       you?
       RUDE:  Yes . . .
       COURT:  [Do you] understand . . . what you are pleading guilty to today?
       RUDE:  Yes, Your Honor.
       . . .
       COURT:  Regarding the rights that you're giving up, . . . they are on paragraph 5 on page 
       2 of the plea form.  Did you have a chance to go through those with Mr. Dippolito on this 
       case?
       RUDE:  Yes.
       COURT:  Mr. Rude, the rights you are giving up are [the] right to a trial, right to remain 
       silent, right to hear and question witnesses . . . as well as your right to appeal[.]  [Y]ou 
       are willing to give up all [of] those rights to plead guilty on this case?
       RUDE:  Yes, Your Honor.
VRP (May 13, 2010) at 14-16, 17 (emphasis added).  The trial court went through an identical 
colloquy with Rude before accepting his guilty plea for the robbery charge, which included Rude's 
oral acknowledgement that he understood he was waiving his right to "appeal" by entering his 
guilty plea.  VRP (May 13, 2010) at 10.

                                               5 

Consolidated Nos.  40898-8-II and 40905-4-II

requested an exceptional sentence below the standard range for the robbery conviction.5    VRP 

(June 4, 2010) at 6, 9, 20.  Following the State's recommendation, the trial court sentenced Rude

to 129 months of confinement and 18 months community custody for the robbery, 57 months of 

confinement and 12 months community custody for each identity theft, and 29 months of 

confinement and 12 months community custody for each UPPI, all to run concurrently.

       Rude appeals.6

                                          ANALYSIS

                     I.  No Showing of Basis for Withdrawal of Guilty Pleas

       Rude argues that we should allow him to withdraw his guilty pleas because the evidence 

against him was unconstitutionally seized;  he  did not knowingly, intelligently, and voluntarily

plead guilty and waive his right to appeal because his trial counsel failed to move to suppress this 

evidence; and the record does not show that his counsel ever advised him that such suppression

issue existed. The State responds that Rude did not receive ineffective assistance of counsel and

that, when Rude knowingly, intelligently, and voluntarily pled guilty, he waived his right to appeal

any potential suppression issue.  We agree with the State.

       In  pleading guilty and signing two statements of defendant on plea of guilty, Rude

admitted to his guilt and expressly waived his right to a jury trial and his right to appeal any 

5 Rude's written guilty plea statement also informed him that the trial court did not have an 
obligation to accept his request for an exceptional sentence for the robbery charge or to adopt the 
State's recommended low-end sentence for the charge.

6 Rude filed notices of appeal in both Cause No. 09-1-04544-7 and Cause No. 09-1-05358-0.  We 
consolidated them on appeal.

                                               6 

Consolidated Nos.  40898-8-II and 40905-4-II

"suppression issues."7  See State v. Smith, 134 Wn.2d 849, 852-53, 953 P.2d 810 (1998). Where, 

as here, a defendant has completed a written guilty plea statement in compliance with CrR 4.2(g) 

and admitted that he has read it, that he understands it, and that its contents are true, the written 

statement provides "prima facie verification" of the plea's voluntariness.  State v. Perez, 33 Wn. 

App. 258, 261, 654 P.2d 708 (1982).  Furthermore, where, as here, a trial judge goes on to 

inquire orally of the defendant and satisfies himself on the record that various criteria of 

voluntariness exist, the presumption of voluntariness is "well nigh irrefutable."  Perez, 33 Wn. 

App. at 262.

       The record supports the trial court's finding that Rude pled guilty knowingly, intelligently, 

and voluntarily.  Rude completed and signed two written statements of defendant on plea of guilty 

that met the requirements of CrR 4.2(g) -- one for Cause No. 09-1-04544-7 and one for Cause 

No. 09-1-05358-0.  Both guilty plea statements, standing alone, provide sufficient prima facie 

verification that Rude entered his guilty pleas voluntarily and understood the rights that he waived 

by entering such pleas.  In addition, both       guilty plea statements specifically  informed 

Rude -- under a heading with bold letters -- that by pleading guilty, he was waiving his right to 

appeal any "suppression issues."8 By signing his guilty plea statements, Rude also acknowledged

that (1) he entered his guilty pleas "freely and voluntarily," (2) he had reviewed the full guilty plea 

statements  with his trial  counsel, and  (3) he  had read them and understood them in  their

7 CP (Cause No. 09-1-04544-7) at 7; CP (Cause No. 09-1-05358-0) at 3.

8 CP (Cause No. 09-1-04544-7) at 7; CP (Cause No. 09-1-05358-0) at 3.

9 CP (Cause No. 09-1-04544-7) at 13; CP (Cause No. 09-1-05358-0) at 9.

                                               7 

Consolidated Nos.  40898-8-II and 40905-4-II

entireties.9  Rude's additional statement that he had "reviewed the evidence with [his] lawyer"10 in 

his guilty plea statement for the robbery charge also supports the trial court's finding that Rude 

had been advised by counsel and that he intelligently entered his guilty pleas.

       Furthermore, before accepting Rude's guilty pleas, the trial court questioned Rude in open 

court and asked him a series of questions to confirm that he had, in fact, reviewed both guilty plea 

statements in their entireties with counsel, that he understood them, and that he was making his

pleas knowingly, intelligently, and voluntarily. During his colloquy with the trial court, Rude 

again acknowledged that he had reviewed the entire guilty plea statements with his trial counsel, 

that he had the opportunity to ask his counsel questions, and that he understood that he was 

waiving his right to "appeal."

       At no point did Rude ask the trial court questions or otherwise  indicate that his trial 

counsel had failed to review any portion of his guilty plea statements with him.  Nor did Rude

indicate that he misunderstood the nature of his charges or any of the consequences of his guilty 

pleas.11 Therefore,  under  Perez and Smith,  we hold that the  trial  record contains sufficient 

evidence to conclude that Rude "voluntarily" entered his guilty pleas and that, in doing so, he 

waived his right to appeal any issues relating to suppressing evidence.  Accordingly, we do not 

9 CP (Cause No. 09-1-04544-7) at 13; CP (Cause No. 09-1-05358-0) at 9.

10 CP (Cause No. 09-1-05358-0) at 9.

11 In addition, as we discuss later in more detail, Rude has not demonstrated any manifest injustice 
requiring a withdrawal of his guilty pleas.  See Perez, 33 Wn. App. at 261 (once the safeguards of 
CrR 4.2 have been employed, a defendant can withdraw a plea only upon a showing that 
withdrawal is necessary to avoid a manifest injustice).

                                               8 

Consolidated Nos.  40898-8-II and 40905-4-II

reach the merits of Rude's suppression arguments.

                      II.  No Showing of Ineffective Assistance of Counsel

       Rude does not contend that he misunderstood the terms of his plea agreement or that he 

was forced to accept the agreement under duress or against his will.  Instead, he argues that we 

should allow him to withdraw his pleas because (1) his trial counsel failed to advise him of his 

right to move to suppress illegally seized evidence, thus withholding from him critical information 

that  was necessary to make an informed decision about whether to plead guilty;12 and (2) 

therefore, he did not knowingly, intelligently, and voluntarily plead guilty or waive his right to 

appeal.  This argument fails.

       Under CrR 4.2(f), a court shall allow a defendant to withdraw his guilty plea whenever it 

appears withdrawal is necessary to correct a "manifest injustice." CrR 4.2(f).  Manifest injustice 

is a "demanding" standard because ample safeguards exist "to protect a defendant's rights before

the trial court accepts his plea." State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010) 

(emphasis added) (citing State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)).  

Nevertheless, manifest injustice may arise where (1) a defendant received ineffective assistance of 

12 Rude makes essentially the same ineffective assistance of counsel argument in his SAG -- that 
his trial counsel did not advise him about his legal rights and that he did not understand he could 
potentially suppress the evidence obtained from the search of his backpack before he entered his 
guilty pleas.  To the extent that Rude now claims that his guilty plea testimony about having 
discussed his rights and his guilty pleas with counsel were false or that his trial counsel did not 
advise him about a specific issue relating to his guilty pleas, such claim would involve facts 
outside the record, which he can raise in a personal restraint petition, but not by itself on direct 
appeal.  State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).      For similar reasons, 
relating to facts outside the record, we do not address the State's alternative argument that the 
preservation of error and manifest constitutional error doctrines preclude review of Rude's 
suppression claim.

                                               9 

Consolidated Nos.  40898-8-II and 40905-4-II

counsel, (2) the plea was not ratified by the defendant or one authorized by him to do so, (3) the

plea was involuntary, or (4) the plea agreement was not kept by the prosecution.  State v. 

McCollum, 88 Wn. App. 977, 981, 947 P.2d 1235 (1997) (citing Taylor, 83 Wn.2d at 597).  

Rude meets none of these criteria.

       We review challenges to effective assistance of counsel de novo.  State v. White, 80 Wn. 

App. 406, 410, 907 P.2d 310 (1995).  We begin  our inquiry with a strong presumption that 

counsel's conduct fell within the wide range of reasonable professional assistance.  In re Pers. 

Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 

466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).  To prevail on an ineffective

assistance of counsel claim, a defendant must prove that (1) his counsel's  performance was 

deficient and (2) the deficiency prejudiced him.  State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 

177 (2009) (citing Strickland, 466 U.S. at 694).  To prove the deficiency prong, the defendant 

"must show in the record the absence of legitimate strategic or tactical reasons" supporting his 

counsel's challenged conduct.  State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)

(emphasis added).  To prove prejudice, "the defendant also bears the burden of showing, based on 

the record developed in the trial court, that the result of the proceeding would have been 

different but for [his] counsel's deficient representation."   McFarland, 127 Wn.2d at 337

(emphasis added).

       In the guilty plea context, the defendant must show that his attorney failed to assist him in 

deciding whether to plead guilty and that, but for his counsel's failure to advise him, he would not 

have pleaded guilty.  McCollum, 88 Wn. App. at 982.  Bare allegations that a defendant would 

                                               10 

Consolidated Nos.  40898-8-II and 40905-4-II

not have pleaded guilty are insufficient to show prejudice.  In re Pers. Restraint of Peters, 50 Wn. 

App. 702, 708, 750 P.2d 643 (1988).  In addition, where, as here, a defendant's claim is brought 

on direct appeal, the reviewing court will not consider matters outside the trial record.  

McFarland, 127 Wn.2d at 335.

       On the record before us, Rude fails to meet the first prong of the test because he does not 

show that his counsel's performance was deficient.  As we note in footnote 12, Rude cannot 

premise his argument on asserted facts outside the record; therefore, it is outside the scope of this 

direct appeal whether his trial counsel specifically discussed with him the merits of pursing a 

motion to suppress specific evidence.        We reiterate, however, that Rude specifically 

acknowledged on the record that he had discussed with his counsel that by pleading guilty, he was 

waiving suppression issues and the right to appeal.

       Furthermore, as with other trial-related strategic decisions,13 whether to enter into a plea 

bargain with the State is also the subject of defense counsel strategy:

       Plea bargains are the result of complex negotiations suffused with uncertainty, and 
       defense attorneys must make careful strategic choices in balancing opportunities 
       and risks.
       . . .
       There are, moreover, special difficulties in evaluating the basis for counsel's 
       judgment:  An attorney often has insights borne of past dealings with the same 
       prosecutor or court, and the record at the pretrial stage is never as full as it is after 
       trial. In determining how searching and exacting their review must be, [courts] 
       must respect their limited role in determining whether there was a manifest 
       deficiency in light of information then available to counsel.

13 See, e.g., State v. Grier, 171 Wn.2d 17, 30-32, 246 P.3d 1260 (2011) (defense counsel's 
decision to forgo lesser included offense instructions is part tactic, part objective; although 
decision involves input from the defendant, decision ultimately rests with counsel); see also State 
v. Breitung, No. 84580 -- 8, 2011 WL 6824965, at *6 (Wash. Dec. 29, 2011).

                                               11 

Consolidated Nos.  40898-8-II and 40905-4-II

Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733, 741, 178 L. Ed. 2d 649 (2011) (citing Lockhart 

v. Fretwall, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)) (federal habeas, not 

direct appeal).  The record shows that Rude's plea  agreement with the State was a two-way 

bargain:  It disposed of his  charges for two separate cause numbers, Rude's trial counsel 

requested an exceptional sentence downward for Rude's robbery charge, and the State agreed to 

seek a low-end sentence within the standard range if the trial court denied Rude's exceptional 

sentence.  This low-end sentence recommendation from the State was a significant benefit for 

Rude, who was facing a potential maximum sentence of  life imprisonment for first degree 

robbery;14 and, because Rude's offender score was over nine at the time of sentencing, the State 

could have requested an exceptional sentence above the high end of the standard range if it had 

not requested life imprisonment.15 Furthermore, in pleading guilty to the robbery charge, Rude 

specifically stated that he was pleading guilty in order to take advantage of the State's plea 

bargain offer.

       Also under the plea agreement, the State agreed to recommend that Rude's identity theft 

and UPPI sentences run  concurrently with each other and with his robbery sentence, which 

ultimately resulted in Rude's serving no additional time for the identity theft and UPPI charges

above that which he was serving for the robbery charge.  Thus, the record strongly suggests that,

for tactical reasons, Rude's counsel likely advised him to accept the State's plea bargain offer and 

to plead guilty to avoid a life sentence for his robbery conviction and to ensure that Rude received 

14 RCW 9A.56.200(2) (first degree robbery is a class A felony); Former RCW 9A.20.021(1)(a) 
(2003) (maximum sentence for a class A felony is life imprisonment, or a fine a fine of $50,000).

15 RCW 9.94A.535(2)(C).

                                               12 

Consolidated Nos.  40898-8-II and 40905-4-II

a favorable shorter sentence overall. Based on these facts, Rude has not demonstrated in the 

record an absence of strategic or tactical reasons for his counsel's conduct.  The threshold for 

proving deficient performance is high, given the deference afforded to decisions of defense 

counsel in the course of representation.  State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011); 

see also State v. Breitung, No. 84580 -- 8, 2011 WL 6824965, at *6, *9 (Wash. Dec. 29, 2011).  

To overcome the strong presumption that counsel provided reasonable assistance, the defendant 

must establish an absence of any "'conceivable          legitimate tactic explaining counsel's 

performance.'"  Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 

P.3d 80 (2004)).  Because Rude has failed to meet the first prong of the ineffective assistance of 

counsel test, we do not address the second, prejudice prong.

       We hold that the record contains sufficient evidence to conclude that Rude knowingly, 

intelligently, and voluntarily entered his guilty pleas.  Furthermore, Rude has failed to prove that 

he received ineffective assistance of counsel, precluding him from entering voluntary guilty 

                                               13 

Consolidated Nos.  40898-8-II and 40905-4-II

pleas or warranting their withdrawal.  We affirm.16

       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.

                                                 Hunt, J.
We concur:

Armstrong, P.J.

Johanson, J.

16 Because we affirm both of Rude's guilty plea convictions, we do not address the State's 
alternative argument that if we allow Rude to withdraw his guilty plea in one cause number, he 
must also withdraw his plea in the other cause number.

                                               14