Appeal from Superior Court of King County. Docket No: 94-1-01903-8. Date filed: 03/20/95. Judge signing: Hon. Kathleen J. Learned.
PER CURIAM -- Alexander Kusulos appeals his conviction for seven counts of securities fraud and one count of theft in the first degree. He claims that the trial court erred by refusing to allow him to withdraw his guilty plea and that his counsel gave ineffective assistance during the plea. He also contends that the trial court erred by refusing to allow him to substitute counsel. Finally, he asserts that he did not sign the plea agreement and that the prosecutor signed his attorney's name to the agreement. Because the record does not support Kusulos' arguments, we affirm.
Kusulos owned an insurance/financial planning agency. He sold various financial products including mutual funds and individual retirement accounts (IRAs).
In March 1994, the State filed an information charging Kusulos with five counts of theft in the first degree and six counts of securities fraud. The Certification for Determination of Probable Cause alleged that Kusulos had used for personal and business expenses the money given him by a number of clients for investment.
The record indicates that Kusulos was represented by at least three different attorneys during the proceedings: David Smith, Randolph Finney, and Allen Ressler. The trial court granted continuances to allow counsel to prepare for trial. Kusulos entered a guilty plea.
Kusulos argues that the trial court erred by refusing to allow him to substitute counsel. The State did not respond to this argument in its brief. In any case, the argument is not substantiated by the record. There is no indication that Kusulos asked to substitute counsel in the instances that he describes.
He alleges first that the trial court refused to allow him to substitute James Flush as counsel. There is no mention of this request to substitute in the record. He further alleges that the trial court refused to allow him to substitute Allen Ressler for Randolph Finney. Again, there is nothing in the record regarding Kusulos' request to substitute a new attorney. We will not consider arguments that are not supported by the record. *fn1 The appellant bears the responsibility of ensuring that the record is complete. *fn2
Kusulos next argues that his attorney offered ineffective assistance by coercing him to enter a guilty plea. Specifically, he states that Randolph Finney, his attorney at that point in the case, informed Kusulos three days prior to trial that he was not prepared to go to trial and that the trial court had refused to grant him an extension. According to Kusulos, Finney then "persuaded and coerced" Kusulos to enter an Alford *fn3 Plea.
The standard for evaluating ineffective assistance of counsel claims is set forth in State v. McFarland. *fn4 The defendant must show that his attorney's performance fell below an objective standard of reasonableness based on the circumstances and that this deficiency prejudiced the defendant. *fn5 The reviewing court presumes that the representation was effective. *fn6 To overcome this presumption, the defendant must point to an absence in the record of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. *fn7 On direct appeal, we will consider only the trial record. *fn8
Kusulos points to nothing in the record that would indicate that his attorney coerced him to enter the plea. He merely alleges that his attorney told him he would be given home detention or sent to a work facility if he made the plea. This is nowhere in the trial record.
Indeed, it appears from the record that the plea agreement was favorable to Kusulos. The standard sentence range given his crime and criminal history was 33-43 months. Under the terms of the agreement, the prosecutor promised to recommend 22 months if Kusulos paid $66,000 in restitution prior to sentencing, would dismiss one count if Kusulos paid $33,000 in restitution, and would recommend 12 months if Kusulos paid all the restitution. The prosecutor also promised to recommend that the court defer sentencing for 90 days.
Kusulos also contends that his motion to withdraw his plea should be granted. The State responds, citing cases standing for the proposition that where a defendant challenges the validity of an Alford plea, the court must determine whether the defendant was apprised of the nature of the charges. *fn9
We note that there is nothing in the record before us regarding Kusulos' request to withdraw his plea or the court's response. This court will not review a ruling that is not in the record before it. *fn10
We next turn to the arguments set forth in Kusulos' personal restraint petition. To be eligible for collateral relief, a defendant must show (1) for constitutional error, actual prejudice, or (2) for nonconstitutional error, a "fundamental defect which inherently results in a complete miscarriage of Justice." *fn11 "Bare allegations unsupported by citation of authority, references to the record, or persuasive reasoning cannot sustain this burden of proof." *fn12
Kusulos first challenges the validity of the plea agreement based on allegations that the prosecutor signed Allen Ressler's name to the plea agreement. The plea agreement on its face rebuts this allegation. It appears that Ressler's name was added to the first page of the agreement on the line for the names of the defendant's attorney(s). However, the only signatures on the document are those of the trial court, the prosecutor, and Kusulos' attorney in that proceeding, ...