Opinion
No. 61343-0-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-05334-1, Charles W Mertel, J., entered February 13, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Cox, J.
Brian Claiborne argues for the first time on appeal that his pleas of guilty were involuntary because he was in need of medical help that was not available in jail. But at the plea hearing Claiborne denied that any threat or promise induced his pleas, and aside from his allegations, there is nothing in the record about his medical condition. We therefore cannot adjudicate his claim on direct appeal. His other argument relates to denial of his motion to represent himself, but a plea of guilty waives appeal of such a ruling. We therefore affirm.
Claiborne was charged with second degree malicious mischief and second degree assault under two different King County Superior Court cause numbers. Claiborne agreed to plead guilty to an amended information charging third degree malicious mischief and second degree assault. At the plea hearing on February 7, 2008, the colloquy included the following exchange:
COURT: Are you sick?
CLAIBORNE: I am. I have been tortured, and I'm severe, in severe pain.
COURT: Has anybody threatened you, or promised you anything to get you to plead "guilty" to either charge here today, other than the State's agreement to move to reduce one of them, and their recommendation? Anyone promise you anything else?
CLAIBORNE: Uh, time served.
COURT: Okay. But, other than their recommendation, anybody promise you money or anything like that?
CLAIBORNE: Money or nothin'. I'm in severe pain. I submit —
COURT: Okay. Well, just a couple more questions and then we'll be done.
CLAIBORNE: Yes.
COURT: Did anybody threaten you in any way to get you to plead "guilty" here today: physical harm, or anything like that?
CLAIBORNE: Not to plead "guilty," sir, but —
COURT: All right. So, I'm going to pass you the original statement forms. I'm going to have you sign those documents and the plea agreement, and — do you want to sit down?
CLAIBORNE: I just wanna do this so I could go get medical help.
COURT: Okay.
CLAIBORNE: But I gotta do it. It's already signed.
COURT: No, you need to sign it in ink.
CLAIBORNE: Oh.
COURT: Then, I'll have you sign the plea agreements, as well, then we'll finish up here.
Report of Proceedings (RP) (Feb. 7, 2008) at 1, 8-9.
The court accepted the pleas as knowing and voluntary. Claiborne was later sentenced. He did not seek to withdraw his plea or file a motion for relief of any kind. He now appeals, contending his desperate need for medical attention not available in jail rendered the pleas involuntary. He also argues that the court's denial of his motion to proceed pro se violated his right to counsel under both the Washington and United States Constitutions.
ANALYSIS
As a general rule, appellate courts will not consider issues raised for the first time on appeal. An exception is made for manifest errors affecting constitutional rights. Alleged involuntariness of a guilty plea is the type of constitutional error that may be raised for the first time on appeal. A "manifest" error is "unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed." Actual prejudice must appear in the record. If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.
RAP 2.5(a); State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998).
RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).
See State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). Claiborne also argues that the court erred in failing to establish the voluntariness of his plea according to CrR 4.2. But CrR 4.2 provides safeguards for guilty pleas beyond the constitutional minimum. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). Therefore, failure to follow CrR 4.2 is not of constitutional import and cannot be raised for the first time on appeal.
State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999).
State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Here, the record is inadequate for review. Claiborne stated several times in various hearings that he needed medical treatment and was not receiving it. For example, at the omnibus hearing, the court considered Claiborne's request to represent himself, in part because he needed to be released to deal with his health issues:
The situation is, as you know, I have a medical condition. I have a tooth that's stuck in my sinus cavity that the jail still hasn't did nothin' with, and there's a situation where my attorney hasn't had the time or the resources to get more witnesses.
I feel if I would have been able to take this, and would have been able to represent myself, and be able to get at least a TR to get out to get more of my health issues straight, and get my witnesses, I could be at least allowed to have, you know, be represented correctly.
. . . .
I haven't ate in two and a half weeks. . . . I been sending grievances and . . . the dental hospital can't help me. . . . They said it needs surgery. I didn't decline it. They said they couldn't do it correctly . . . [b]ecause it's in my sinus cavity, and they're not authorized to do that. . . . All I know is I'm in excruciating pain and I don't see no progress.
RP (Dec. 14, 2007) at 2, 3, 5, 7.
The court appeared to be familiar with the issue and stated, "The last I heard was that the jail's recommendation was to remove the tooth, and Mr. Claiborne wasn't consenting to that." The court then observed that it could not resolve the issue in that proceeding and suggested a hearing involving jail administrators might be appropriate. No such hearing was held.
Id. at 4.
After pleading guilty, Claiborne opposed any change in the sentencing date, declaring, "I desperately need to get my surgery." At sentencing, he again stated that he had pleaded guilty because of his medical problems, saying he pleaded guilty in order to get medical help.
RP (Feb. 7, 2008) at 11.
Claiborne's allegations are not, however, sufficient by themselves, and the record contains no supporting evidence. We are thus unable to adjudicate Claiborne's claim of involuntariness on this record. For purposes of review on direct appeal, Claiborne's plea was valid.
See State v. Osborne, 102 Wn.2d 87, 96-97, 684 P.2d 683 (1984) (defendant's bare allegations in an affidavit that he was coerced to plead guilty by his wife's threat to commit suicide if the case goes to trial not enough to overcome the evidence of plea voluntariness).
The proper procedure is a personal restraint petition under RAP 16. We express no view as to whether Claiborne's claim, if proved, would establish involuntariness.
A valid plea of guilty waives or renders irrelevant all constitutional violations that occurred before the plea, with certain exceptions not relevant here. By his plea, Claiborne waived appeal of the ruling denying his motion for self representation.
See Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975).
Affirmed.
WE CONCUR.