Opinion
Nos. 29048-1-II (Consolidated), 29111-8-II, 29118-5-II
Filed: July 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 00-1-04174-0. Judgment or order under review. Date filed: 06/14/2002. Judge signing: Hon. Kitty-Ann Vandoorninck.
Counsel for Appellant(s), Antonio Salazar, Attorney at Law, 810 3rd Ave Ste 308, Seattle, WA 98104-1622.
Counsel for Respondent(s), Miry Kim, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Bremner Allen Abelson appeals his convictions for second degree murder, first degree theft, and unlawful manufacturing of a controlled substance, following his Alford pleas. He argues that his counsel was ineffective, and that the court should have allowed him to withdraw his pleas or should at least have held an evidentiary hearing on his motion to withdraw. He also argues there was insufficient support for the Alford pleas. We affirm.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Facts
The State charged Bremner Allen Abelson with first degree murder, first degree assault, first degree robbery, obstructing a law enforcement officer, unlawful manufacturing of a controlled substance, unlawful possession of pseudoephedrine with intent to manufacture methamphetamine, and two counts of unlawful possession of a controlled substance.
While awaiting trial, Abelson's attorney arranged for Bryan Hershman, counsel for Abelson's co-defendant, to visit Abelson in jail. According to Hershman and Abelson's attorney, Hershman had interviewed a key prosecution witness, Clint Frymire; Hershman visited Abelson to discuss the witness's likely testimony and credibility.
The State later amended the informations, charging Abelson with only four counts, including second degree murder, first degree theft, unlawful possession of a controlled substance, and unlawful manufacturing of a controlled substance.
Abelson entered Alford pleas on the murder, theft, and manufacturing charges. He entered a regular guilty plea on the possession charge.
Abelson's attorney stated that he reviewed the plea agreements with him and answered all his questions. He explained that Abelson understood the difference between an Alford plea and a regular guilty plea. And he asserted that Abelson entered into the agreements freely, intelligently, and voluntarily.
Abelson agreed with his attorney's statements. He said that his attorney went through each form with him `in detail.' Report of Proceedings (RP) (Jan. 24, 2002) at 4. He stated that he understood the plea documents, the rights he was giving up, and the maximum possible sentences. Abelson also represented that he was pleading guilty of his own free will.
On May 10, 2002, Antonio Salazar substituted in as Abelson's attorney of record. Salazar moved to withdraw Abelson's pleas. At a hearing on June 14, 2002, Abelson argued that he should be allowed to withdraw his pleas because his counsel was ineffective and his pleas were involuntary. The court denied Abelson's motion, finding that he had not demonstrated that his pleas were involuntary or that his counsel was ineffective.
Analysis
We review a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). A trial court abuses its discretion if its decision is manifestly unreasonable or rests on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
I. Hearing
Under CrR 4.2(f), a court must `allow a defendant to withdraw the defendant[']s plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.' Manifest injustice is `an injustice that is obvious, directly observable, overt, not obscure.' State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). The defendant bears the burden of demonstrating manifest injustice. State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984). And this is a demanding standard. Taylor, 83 Wn.2d at 597. Where a defendant is denied effective counsel or a plea is involuntary, manifest justice is established. Taylor, 83 Wn.2d at 597.
Citing In re Personal Restraint Petition of James, 96 Wn.2d 847, 640 P.2d 18 (1982), Abelson argues the trial court erred by failing to hold a hearing on his motion to withdraw his guilty pleas.
In James, the defendant entered into a plea agreement with the State but was later arrested on misdemeanor charges. James, 96 Wn.2d at 848. The defendant, however, denied the validity of the misdemeanor accusations. James, 96 Wn.2d at 848. The State argued that it was not obligated to perform as promised under the agreement, and it therefore refused to recommend probation. James, 96 Wn.2d at 848. The Supreme Court held that the defendant was entitled to a hearing on whether he had breached the agreement. The court reasoned that absent a hearing, the misdemeanor charges alone could excuse the State from performing its part of the agreement even though the defendant might later be acquitted of the misdemeanor charges. James, 96 Wn.2d at 851.
James is distinguishable. Abelson does not claim that the State failed to perform any part of the plea agreement. And the validity of Abelson's plea does not turn on any alleged conduct he engaged in after entering the pleas. Rather, whether the plea was voluntary is tested by what Abelson and his attorney said in court at the time he pleaded. State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003) (`The voluntariness of a plea is determined by considering the relevant circumstances surrounding it.'), review denied, 151 Wn.2d 1011 (2004).
The trial court did not abuse its discretion by denying Abelson a full evidentiary hearing.
II. Plea Withdrawal
Abelson next argues he should have been allowed to withdraw his guilty plea on the murder charge because the court inaccurately stated that the maximum sentence was 225 months.
Where a defendant pleads guilty following receipt of an information, we presume the plea is knowing, intelligent, and voluntary. In re Pers. Restraint Petition of Hews, 108 Wn.2d 579, 596, 741 P.2d 983 (1987). A defendant's signature on the plea form provides strong evidence that the plea is voluntary. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). And `[w]hen the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.' State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982).
Abelson relies upon State v. Walsh, 143 Wn.2d 1, 17 P.3d 591 (2001). In Walsh, the defense and the prosecution believed the standard sentence range was 86-114 months, but later realized it was 95-125 months. Walsh, 143 Wn.2d at 4. The defendant was apparently not advised of the error before sentencing. Walsh, 143 Wn.2d at 5. The court found that the plea was involuntary and the sentence could not stand Walsh, 143 Wn.2d at 9.
The facts here are distinguishable. Although the trial judge apparently told Abelson when he entered his plea that the high end of the standard range was 225 months, Abelson had already signed the statement of defendant on plea of guilty, which clearly stated that the standard range was 175-275 months. He and his attorney represented to the court that they had been through the documents `each page and paragraph on each page.' RP (Jan. 24, 2002) at 4. Abelson said that he had read and understood the charges and possible consequences.
We are satisfied that Abelson was informed of the correct sentencing range despite the court's alleged misstatement. Because his plea was knowing, voluntary, and intelligent, the court did not abuse its discretion by denying Abelson's motion to withdraw the plea.
III. Support for Alford Pleas
Abelson argues the trial court did not have a sufficient factual basis to accept his Alford pleas.
CrR 4.2(d) states in part, `The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.' In accepting an Alford plea, the court may rely on evidence such as pre-sentence reports, witness affidavits, and the prosecutor's statements. See State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976).
Abelson points to In re Personal Restraint Petition of Montoya, 109 Wn.2d 270, 280-81, 744 P.2d 340 (1987), which states that an Alford plea is valid if the record provides `strong evidence of actual guilt,' and the defendant concludes that he should enter a guilty plea. Because the court here said only that it found a factual basis, and not a `strong' factual basis, Abelson argues the court applied the wrong standard. Appellant's Br. at 40.
But `[t]he factual basis requirement of CrR 4.2(d) does not mean the trial court must be convinced beyond a reasonable doubt that defendant is in fact guilty.' Newton, 87 Wn.2d at 370. There need only be "sufficient evidence for a jury to conclude that he is guilty." Newton, 87 Wn.2d at 370 (citing United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970)).
Here, Abelson argued before the trial judge that it was required to find that he would likely be found guilty. The court responded, `Right, based upon the declaration of determination of probable cause. I have taken thousands of guilty pleas and it's always also a factual basis on the determination of probable cause, the evidence that's provided to me under oath.' RP (June 14, 2002) at 14.
The prosecutor's declarations provided ample factual basis for the pleas. The probable cause statement for murder stated that Abelson and two other men entered Joshua Kizer's apartment with a Glock 9 mm handgun, intending to steal money and drugs. One of Abelson's co-conspirators fired about 10 shots. One of the bullets struck and killed Kizer. Two bullets pierced another victim's forearms. One victim fired back. During the gunplay, the individual with the Glock 9 mm handgun was shot. He collapsed and died as he tried to flee. Abelson and the third man, who were also wounded, fled the scene. They drove the stolen blue pickup truck they used to commit the crimes to Tacoma General Hospital. The hospital security guard saw the two men exit the truck and dispose of a wallet or purse from one of the victims. Detectives later learned that the three men were driving around together in Abelson's truck earlier that day. The probable cause statement for manufacturing a controlled substance reported that police found an active methamphetamine lab in a motel room after they received reports that chemical odors were emanating from the room and that Abelson might be running a meth lab. Inside, police found documents belonging to Abelson. They also found isopropyl alcohol, ephedrine, pseudoephedrine, rock salt, coffee filters, an electronic scale, a propane tank, lye, an empty toluene can, and an eight-quart bucket and two three-gallon garbage cans containing methamphetamine.
Abelson also asserts that the record fails to show that he received copies of the amended information or that he understood the elements of the crimes. As we've already discussed, Abelson stated in open court that he did understand the charges. And the plea agreements Abelson signed matched the amended informations.
There was sufficient evidence to support the Alford pleas, and the trial court applied the proper standard in accepting them.
IV. Ineffective Assistance
Abelson argues that his counsel was ineffective because he allegedly pressured him to accept the State's plea offer, and also allowed his co-defendant's attorney to visit him in jail and pressure him to accept the plea.
To show ineffective assistance of counsel, Abelson must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs if, but for the deficient performance, the outcome would have been different. In re the Pers. Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great deference to counsel's performance and our analysis begins with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Counsel's performance is not deficient if counsel merely exercises a strategic or tactical choice. In re Pers. Restraint Petition of Jeffries, 110 Wn.2d 326, 333, 752 P.2d 1338 (1988).
`The Strickland test also applies to claims of ineffective assistance of counsel in the plea process.' In re Pers. Restraint Petition of Peters, 50 Wn. App. 702, 703, 750 P.2d 643 (1988) (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)). In the context of a guilty plea, the defendant must show that counsel failed to substantially assist him in deciding whether to plead guilty, and that but for counsel's failure to properly advise him, he would not have pleaded guilty. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997) (citations omitted).
Abelson has not demonstrated that his attorney failed to properly advise him or that he would not have otherwise pleaded guilty. Abelson's attorney and Hershman deny pressuring him to enter pleas. Other than Abelson's own assertion, there is no evidence that either attorney pressured him. A defendant who later seeks to retract his admission of voluntariness made in open court bears a heavy burden in trying to convince a court that his admission was coerced. State v. Frederick, 100 Wn.2d 550, 558, 674 P.2d 136 (1983), overruled on other grounds by Thompson v. State Dep't of Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999). And a bare allegation of coercion is insufficient. Osborne, 102 Wn.2d at 97. When Abelson entered the pleas, the trial judge asked him, `Is this something that you're doing of your own free will?' RP (Jan. 24, 2002) at 9. Abelson responded, `Correct.' RP (Jan. 24, 2002) at 9. In denying the motion to withdraw, the judge stated, `I don't recall any hesitation on Mr. Abelson's part. I gave him ample opportunity to indicate that there was any remorse, concern that it was not a free and voluntary and knowing plea.' RP (June 14, 2002) at 28.
Abelson compares his case to In re Pers. Restraint Petition of Hoisington, 99 Wn. App. 423, 993 P.2d 296 (2000). In Hoisington, the plea agreement incorrectly stated that the maximum sentence was 10 years, rather than life imprisonment. Hoisington, 99 Wn. App. at 425. When the parties learned of the mistake, the defendant agreed to allow the State to correctly amend the plea agreement. Hoisington, 99 Wn. App. at 427. Because the defendant's attorney did not advise him that he had a right to seek specific enforcement of the original plea agreement, the court found his performance deficient. Hoisington, 99 Wn. App. at 434.
Hoisington is distinguishable. Abelson's attorney did not misadvise him of the consequences of his plea. Nor would Abelson have been entitled to specific performance because of the trial judge's misstatement of the sentencing range. The trial judge commented that she thought the recorded statement was a simple typo or slight misstatement on her part, because her standard practice was to read the terms from the forms. More importantly, we have found that Abelson was correctly advised of the range in his plea statement. Abelson has failed to demonstrate that he received ineffective assistance of counsel, or that the trial court erred by denying his motion.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J.P.T. and COX, J.P.T., concur.