State of Washington v. David Bullard Middleton, 34459-2

Middleton was initially tried on first-degree taking of a motor vehicle and possession of a controlled substance; jury deadlocked on the vehicle-taking charge and convicted on the drug count.
Before retrial the prosecutor amended the information to add counts: possession of a stolen motor vehicle and third-degree driving while license suspended (DWLS).
The record lacks the transcript of the amendment hearing; it is unclear whether defense counsel objected there.
At retrial the jury acquitted on the taking charge but convicted Middleton of possession of a stolen motor vehicle and DWLS.
The trial court imposed an exceptional sentence running the drug and stolen-vehicle counts consecutively; Middleton appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not moving to dismiss the two amended charges	Middleton: counsel erred by not seeking dismissal under CrR 4.3.1 because "ends of justice" did not require amendment	State: possession of a stolen vehicle was a proper lesser-included charge; Middleton failed to preserve an adequate record but merits can be considered	Partially granted: ineffective assistance not shown as to stolen-vehicle charge; ineffective assistance shown as to DWLS charge and that conviction reversed
Whether possession of a stolen vehicle was properly added after trial	Middleton: challenges amendment as improper	State: the stolen-vehicle count is an included or lesser offense and amendment permissible	Court did not definitively decide lesser-included relationship but found tactical basis for not objecting, so claim fails on Strickland grounds
Whether DWLS amendment was proper or required objection	Middleton: DWLS should have been dismissed as not an inferior offense	State: conceded DWLS unjustified	Court: DWLS was not an inferior offense; counsel should have moved to dismiss; conviction reversed
Whether reversal requires resentencing	Middleton: sought relief based on vacated count	State: no resentencing needed if sentence unaffected	Court: DWLS strike does not affect felony sentence; no resentencing necessary

State v. McFarland, 127 Wn.2d 322 (1995) (establishes Washington standards for ineffective assistance review)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: performance and prejudice)
State v. Foster, 140 Wn. App. 266 (2007) (Strickland application; courts may dispose on a single prong)
State v. Russell, 101 Wn.2d 349 (1984) (amendment that adds a lesser included offense is proper)