Opinion
No. 27099-8-III.
Filed: September 3, 2009.
Appeal from the Superior Court, Walla Walla County, No. 07-1-00437-5, Robert L. Zagelow, J., entered April 21, 2008.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Brown, J J.
Unpublished Opinion
Richardo L. Aguilar pleaded guilty to attempting to elude a pursuing police vehicle while armed with a firearm, possession with intent to deliver cocaine while armed with a firearm, and unlawful possession of a firearm in the first degree. Mr. Aguilar appeals the denial of his motion to withdraw his guilty plea. He argues that the plea was involuntary because he was not adequately informed about the sentencing consequences of the plea.
The record shows Mr. Aguilar's plea was voluntary and made with full knowledge of the consequences of the plea. And Mr. Aguilar fails to show that a manifest injustice necessitates withdrawal of his plea. Thus, we conclude the trial court properly denied Mr. Aguilar's motion and we affirm the convictions.
FACTS
On December 11, 2007, police arrested Mr. Aguilar on a warrant after he fled from police in his car. Police obtained a search warrant for the car. Officers found large amounts of marijuana, cocaine, hydrocodone, and methamphetamine in the car. Police also found scales and packaging materials commonly used in the sale of narcotics, and two loaded handguns. Paperwork in the car linked Mr. Aguilar to the vehicle and its contents.
Mr. Aguilar was subsequently charged with one count of attempting to elude a pursuing police vehicle while armed with a firearm, four counts of possession of a controlled substance with intent to deliver while armed with a firearm, two counts of first degree unlawful possession of a firearm, and one count of first degree possession of stolen property.
A jury found Mr. Aguilar guilty of previous charges of escape from community custody and bail jumping. As part of a plea negotiation wherein Mr. Aguilar agreed to waive his right to appeal his escape and bail jumping convictions, he pleaded guilty to three counts in this case: count 1 (attempting to elude a pursuing police vehicle while armed with a firearm), count 3 (violation of the uniform controlled substances act — possession with intent to deliver cocaine while armed with a firearm) and count 6 (unlawful possession of a firearm in the first degree).
VUCSA.
In part, the guilty plea statement indicated the prosecutor would recommend "120 months total time (the sentences to run concurrent) and will move to dismiss the remaining [five] counts, and will not seek an exceptional sentence of multiple consecutive sentences of 120 months each for the other [three] drug charges." Clerk's Papers (CP) at 22. The plea statement also contained the following language:
[6.](cc) I understand that the offense(s) I am pleading guilty to include a deadly weapon, firearm, or sexual motivation enhancement. Deadly weapon, firearm, or sexual motivation enhancements are mandatory, they must be served in total confinement, and they must run consecutively to any other sentence and to any other deadly weapon, firearm, or sexual motivation enhancements.
CP at 25.
At the guilty plea hearing, the trial court read to Mr. Aguilar portions of the statement on plea of guilty out loud. The court reviewed the portion of the plea statement which advised Mr. Aguilar of the consequences of the guilty plea, including the standard range and maximum term sentences for each count, as well as the sentence enhancement on count 3. Specifically, the court noted:
So Count 1, has a maximum of five years, Count 3, a maximum of 10 years, and Count 6, has a maximum of 10 years. But the standard range for Count 1 is 22 to 29 months, the standard range for Count 3 is 60 to 120 [months], but we have an enhancer there of 36 months, which brings the total to 96 to 120 months. And then we have Count 6, the standard range is 87 to 116 months. So those are our standard ranges for the three.
Report of Proceedings (RP) at 5 (emphasis added).
The court advised Mr. Aguilar, and section 6(a) of the plea statement showed, that only count 3 (VUCSA — possession of cocaine with intent to deliver while armed with a firearm) carried a 36-month enhancement. Although the record contains a reference to the firearm enhancement in count 1 of the information, the record shows that only one of the counts would include a firearm enhancement:
MR. BARRETT [Defense counsel]: Do you hear what we're saying?
THE DEFENDANT [Mr. Aguilar]: Um hmm.
THE COURT: Even though we may have a couple of firearm problems, we're not going to stack those firearms three times, we're only going to do it once, right?
MR. NAGLE: Right.
THE COURT: So that's at the time of sentencing that I will try to make sure that we carry that out here. Okay.
RP at 9.
Immediately following this discussion, Mr. Aguilar entered an Alford plea to the three counts as charged. Mr. Aguilar signed the plea statement in open court in the presence of his attorney and the trial judge. Finding that Mr. Aguilar understood the nature of the charges and the consequences, the court accepted his plea as having been made knowingly, voluntarily, and intelligently.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Mr. Aguilar was sentenced to 29 months on count 1, 120 months on count 3, and 116 months on count 6. The terms of confinement were to run concurrent to each other, and the sentence was ordered to be served concurrently with the sentence for escape from community custody and bail jumping convictions. The trial court stated: "So bottom line is that's 120 months. I'm going to follow the prosecutor's recommendation and going to run both of these concurrently, so when the smoke clears what we end up with is 120 months, following the recommendation of the prosecutor." RP at 17.
In return for his guilty plea to the foregoing three counts and his waiver of his right to appeal the escape and bail jumping convictions, the remaining counts (2, 4, 5, 7, and 8) were dismissed. One month later, Mr. Aguilar filed a pro se motion to withdraw his guilty plea, arguing that he was "not fully aware of the consequences of my plea of guilty." CP at 42. Among other things, Mr. Aguilar alleged he was not aware that the firearm enhancement had to run consecutively, that the enhancement would not earn good time, or that some of the dismissed charges could be later pursued by the federal government. Mr. Aguilar further asserted that his counsel was ineffective and that he would not have taken the plea bargain had he known of these consequences.
The court denied the motion. It found that Mr. Aguilar failed to establish: (1) manifest injustice pursuant to CrR 4.2(f) and CrR 7.8, (2) that he was unaware of the consequences of his plea, and (3) that he received ineffective assistance of counsel.
Mr. Aguilar filed a timely notice of appeal.
ANALYSIS
Mr. Aguilar contends the trial court violated his right to due process by denying his withdrawal of his guilty plea. Mr. Aguilar asserts he was not adequately informed of the consequences of the plea. The parties do not dispute that the prosecutor agreed to recommend a 120-month sentence and that the court followed the prosecutor's recommendation.
Mr. Aguilar contends that his plea was involuntary because he misunderstood the direct sentencing consequences of the firearm enhancement connected with count 3. Specifically, he argues that the record does not support the conclusion that he knew of the firearm enhancement on count 3, that the 36-month enhancement sentence was mandatory, and that it must be served first in time and consecutive to the sentences imposed for counts 1 and 6 and the remaining sentence on count 3.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004).
This standard is reflected in CrR 4.2(d), which mandates that the trial court "shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." (Emphasis added.) Importantly here, "[a] defendant must understand the sentencing consequences for a guilty plea to be valid." State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988).
We review the denial of a motion to withdraw a guilty plea for an abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). "To hold that a trial court has abused its discretion, the record must show that the discretion exercised by the court was predicated upon grounds clearly untenable or manifestly unreasonable." State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966). We review de novo the circumstances under which a guilty plea was made. Young v. Konz, 91 Wn.2d 532, 536, 588 P.2d 1360 (1979). Whether the defendant knew the consequences of his guilty plea is a fact to be determined from all the circumstances. Miesbauer v. Rhay, 79 Wn.2d 505, 507, 487 P.2d 1046 (1971).
The record before us establishes that, at the time Mr. Aguilar pleaded guilty to the charges, he did so voluntarily and with full knowledge of the nature of the offenses charged and the consequences of his plea. In this case, a single firearm enhancement was imposed on one of his counts. The only effect that the enhancement had on Mr. Aguilar's sentence was that it raised the lower end of the standard range for count 3 from 60 months to 96 months because it required that he serve the first 36 months in total confinement.
Mr. Aguilar's assertion that the court did not discuss the 36-month firearm enhancement applicable to count 3, or its sentencing consequences with him before taking his plea, is without merit.
Mr. Aguilar was specifically informed that count 3 had a firearm enhancement, both by the plea agreement and the trial court's statements. The court, reading from the plea statement at the plea hearing, noted that "the standard range for Count 3 is 60 to 120 [months], but we have an enhancer there of 36 months, which brings the total to 96 to 120 months." RP at 5 (emphasis added). Likewise, the information advised Mr. Aguilar that a firearm enhancement applied, and the plea statement he signed specifies how long the enhancement was — 36 months.
Mr. Aguilar was also advised of four central consequences of a guilty plea to a crime carrying a firearm enhancement in his statement of plea of guilty: (1) he was pleading guilty to an offense that carries an enhancement, (2) enhancements are mandatory, (3) enhancements must be served in total confinement, and (4) enhancements must run consecutively to any other sentence and to any other enhancements.
Finally, during the court's discussion with the prosecutor and defense counsel regarding the firearm enhancement warning in subpart (cc) of the plea, the court clarified how many firearm enhancements were involved and how they would be applied. In the midst of this discussion, defense counsel directly asked Mr. Aguilar if he was listening, and he responded in the affirmative. The court then stated that only one of the charges did, in fact, carry a firearm enhancement.
In conclusion, nothing in the record indicates that the withdrawal of Mr. Aguilar's guilty plea was necessary to correct a manifest injustice. To the contrary, Mr. Aguilar's guilty plea was made voluntarily and with knowledge of its consequences. Accordingly, the trial court did not abuse its discretion by denying his motion to withdraw his plea.
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds for review (SAG), Mr. Aguilar again argues that the trial court erred by denying his motion to withdraw his guilty plea on the grounds that he received ineffective assistance of counsel.
Mr. Aguilar contends that he was "led to believe that the State could, and was going to, seek an exceptional sentence on the other 5 charges." SAG at 1. He also argues that this was an empty threat made by the State to intimidate him. Mr. Aguilar maintains that his trial counsel failed to inform him that under former RCW 9.94A.400, recodified as RCW 9.94A.589 (Laws of 2001, ch. 10, § 6), the multiple crimes would have encompassed the same criminal conduct for sentencing purposes. He contends that had he known that the multiple charges of VUCSA and unlawful possession of a firearm would count as same criminal conduct, he "would not have been prejudiced into taking the 120 month plea, which is the statutory max the [S]tate could have imposed even had [he] gone to trial." SAG at 2.
Mr. Aguilar erroneously argues that his 120-month sentence on count 3 is the statutory maximum sentence. The standard range, with enhancements, was 96 to 120 months. The statutory maximum term and fine is 10 years, or a fine of $25,000, or both.
Mr. Aguilar contends he relied, to his detriment, on his defense counsel's advice in making the decision to accept the plea. He further alleges that he was told there was no weapon enhancement, only to later find out that his sentence in fact included a 36-month firearm enhancement. Accordingly, Mr. Aguilar argues that ineffective assistance of counsel constituted a manifest injustice pursuant to CrR 4.2 and CrR 7.8 and mandated withdrawal of his plea.
Generally, to establish a claim of ineffective assistance of counsel, a defendant must satisfy a two-prong test by showing that the performance of counsel was so deficient that it fell below an objective standard of reasonableness, and that deficient performance prejudiced the defendant. State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
Reviewing courts engage in a strong presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). This presumption will only be overcome by a clear showing of incompetence. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). "Because the presumption runs in favor of effective representation, the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." McFarland, 127 Wn.2d at 336. In the context of guilty pleas, the defendant must show that, but for counsel's errors, the defendant would not have entered the plea. State v. Jamison, 105 Wn. App. 572, 590, 20 P.3d 1010 (2001).
Initially, Mr. Aguilar fails to show an absence of any legitimate strategic or tactical reasons for counsel's recommendation that he accept the plea offer. In a letter to Mr. Aguilar, defense counsel explains his recommendation. He also states his belief that Mr. Aguilar would be convicted and that it was highly likely that he would receive an exceptional sentence of 20 years. Defense counsel advises Mr. Aguilar to accept the plea offer.
Mr. Aguilar mistakenly argues that the prosecutor's notice of intent to seek exceptional sentence was an empty threat because the crimes would have encompassed the same criminal conduct for sentencing purposes.
RCW 9.94A.589(1)(a), the same criminal conduct statute, provides in pertinent part:
[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94 A.535.
(Emphasis added.)
Washington courts have recognized that "[d]espite a determination that offenses comprise the `same criminal conduct,' where the sentencing court finds aggravating factors that apply to multiple offenses, the [Sentencing Reform Act of 1981, chapter 9.94A RCW] permits the imposition of more than one exceptional sentence and consecutive sentences." State v. Worl, 91 Wn. App. 88, 95-96, 955 P.2d 814 (1998).
Therefore, contrary to Mr. Aguilar's assertion, the "same criminal conduct" language of RCW 9.94A.589 does not preclude consecutive sentences. See State v. Garnica, 105 Wn. App. 762, 768-69, 20 P.3d 1069 (2001) ("[A] trial court can sentence consecutively under [former] RCW 9.94A.400(1) provided aggravating factors justify imposition of an exceptional sentence.")
A sentencing court may impose a sentence outside the standard range only if "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. In RCW 9.94A.535(2), the legislature created a nonexclusive list of aggravating circumstances that constitute substantial and compelling reasons for an upward departure from the sentencing guidelines. The notice stated that one of those circumstances is implicated here in that some of the current offenses were going unpunished. See RCW 9.94A. 535(2)(c).
Under this authority, the trial court could have imposed an exceptional sentence for Mr. Aguilar's convictions and then ordered the sentences to run consecutively. Although the 120-month sentence imposed was the high end of the standard range on count 3, Mr. Aguilar fails to recognize that by accepting the plea, he avoided the possibility that he would receive an exceptional sentence. The deal offered by the State very likely resulted in substantially less jail time than if Mr. Aguilar were convicted and sentenced following a trial. Defense counsel was not deficient in advising Mr. Aguilar to accept the plea to avoid the possibility of losing at trial and receiving an exceptional sentence.
Furthermore, Mr. Aguilar has failed to show prejudice. "In satisfying the prejudice prong, a defendant challenging a guilty plea must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993). Nowhere does Mr. Aguilar demonstrate why he would have chosen to go to trial on eight counts, five of which could have carried mandatory firearm enhancement penalties and all of which could potentially have been ordered to run consecutively had the prosecution chosen to seek an exceptional sentence, instead of pleading guilty to the three counts he did. As his defense counsel concluded in his letter, Mr. Aguilar had no viable defense to any of the charges. "A bare allegation that a petitioner would not have pleaded guilty if he had known all of the consequences of the plea is not sufficient to establish prejudice under the Strickland test." Id. at 782. Consequently, Mr. Aguilar has failed to show his trial counsel provided ineffective assistance.
Finally, Mr. Aguilar claims that he was told by defense counsel that there was no weapon enhancement, only to find out later that his sentence included a 36-month firearm enhancement. This argument is without merit. In the plea bargaining context, effective assistance of counsel merely requires that counsel actually and substantially assist the defendant in deciding whether or not to plead guilty. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)).
As addressed previously, there is no evidence in the record that Mr. Aguilar's plea was anything but voluntary. Mr. Aguilar was notified in the plea statement, and by the court, that count 3 carried a mandatory 36-month firearm enhancement. Further, Mr. Aguilar acknowledged in the document, and at the plea hearing, that he reviewed the plea statement in its entirety with his attorney, and that he understood all of its provisions. In light of this evidence, Mr. Aguilar's assertion that he was not informed of the sentence enhancement is unpersuasive. A defendant's signature on a plea agreement is "strong evidence" that the plea is voluntary. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996).
In conclusion, Mr. Aguilar failed to establish that he was not aware of the sentencing consequences of his plea or that he received ineffective assistance of counsel. Consequently, he failed to establish that manifest injustice would result if he were not permitted to withdraw his guilty plea. The trial court properly denied his motion.
We affirm Mr. Aguilar's convictions for attempting to elude a pursuing police vehicle while armed with a firearm, possession with intent to deliver cocaine while armed with a firearm, and unlawful possession of a firearm in the first degree.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SWEENEY, J., concur.