Opinion
No. 33328-7-II.
May 23, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04162-9, Beverly Grant, J., entered June 2, 2005.
Counsel for Appellant(s), Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA 98070-2711.
Counsel for Respondent(s), P. Grace Kingman, Attorney at Law, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Reversed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Penoyar, JJ.
Jerald Jason Marshall appeals from an order denying his motion to withdraw his guilty pleas to charges of first degree unlawful possession of a firearm and intimidation with a weapon. He claims that the trial court improperly applied CrR 7.8(c) standards rather than CrR 4.2(f) standards in dismissing his motion. And he claims that the record demonstrates that he did not make a knowing, intelligent, and voluntary decision to plead guilty. We reverse and remand to determine if inadequacies in trial counsel's performance left him with no choice but to enter a guilty pleas when, but for those inadequacies, he would have proceeded to trial.
A violation of RCW 9.41.010(2).
A violation of RCW 9.41.270(1) and (2) (weapons apparently capable of producing bodily harm unlawful carrying or handling).
Facts
On August 28, 2004, police responded to a call at the Fort Clark Motel in Lakewood. Witnesses there described Marshall pointing a gun at another over a $180 debt. The police recovered a Ruger 9mm handgun from the motel room toilet. Marshall denied having a gun in the motel room but did admit needing protection as a cab driver.
The State charged Marshall by second amended information with first degree unlawful possession of a firearm (UPF), second degree assault, intimidation with a weapon, and two counts of intimidating a witness. Marshall agreed to plead guilty on January 18, 2005, his trial date. As part of this agreement, the State dismissed the assault and witness intimidation charges and recommended a standard range, 85 month sentence on the UPF charge and 365 days suspended on the intimidation charge. The court accepted these recommendations. Marshall appeals.
Analysis
Marshall first argues that the sentencing court applied the wrong standard and thus improperly denied his motion to withdraw his guilty pleas. He made his motion under CrR 4.2(f) before the court sentenced him. That rule applies when the court has not yet sentenced the defendant. It specifically states: `If the motion for withdrawal is made after judgment, it shall be governed by CrR 7.8.' (Emphasis added.) CrR 7.8(c)(1) requires a `motion stating the grounds upon which relief is asked, and supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based.' In denying Marshall's motion, the court stated: `What I'm going to do is I am going to rule in favor of the state. I don't think the rule has been complied with pursuant to the 7.8. There are other routes for you to take. You can file a 7.8 petition, sir and go from there.' Report of Proceedings (RP) (May 6, 2005) at 13.
In State v. Davis, 125 Wn. App. 59, 104 P.3d 11 (2004), the court found that the trial court erred in not considering Davis's CrR 4.2(f) motion to withdraw. Critical to the analysis was the meaning of `after judgment' in CrR 4.2(f) because the court had pronounced Davis's sentence but it had not yet finalized it with Davis's fingerprints nor filed it with the court clerk. The reviewing court found that Davis made his motion before judgment because the judgment and sentence had not yet been filed with the clerk. Davis, 125 Wn. App. at 68. The court then noted: `Because the determination of whether Davis's plea of guilty was voluntary and intelligent is a question of fact `peculiarly within the province of the trial court,' we must remand the issue. Davis is entitled to representation by counsel on this motion because it is an essential stage of his prosecution.' Davis, 125 Wn. App. at 68 (footnotes omitted) (quoting State v. McLaughlin, 59 Wn.2d 865, 870, 371 P.2d 55 (1962)). The court also noted that this distinction is important because if a manifest injustice occurred, the defendant should have immediate relief rather than having to invoke postjudgment proceedings without counsel's assistance. Davis, 125 Wn. App. at 64.
The State responds that Davis does not control because there the court's ruling precluded Davis from making a factual presentation and here, Marshall gave factual bases for his motion. But as the discussion below demonstrates, the record does not conclusively show that Marshall made knowing, intelligent, and voluntary pleas. Whether he did so requires resolution of factual issues and thus requires us to remand this matter.
CrR 4.2(f) instructs that `[t] he court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.' A `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). In Taylor, the Supreme Court discussed four indicia, any one of which would independently establish manifest injustice: (1) the denial of effective assistance of counsel, (2) the plea was not ratified by the defendant, (3) the plea was involuntary, and (4) the plea was not honored by the prosecution. CrR 4.2(f) places a `demanding standard' on the defendant. Taylor, 83 Wn.2d at 597. See also State v. Watson, 63 Wn. App. 854, 856-57, 822 P.2d 327 (1992).
Marshall's claim falls under categories (1) and (3). As to the first, the test for effective assistance of counsel is whether, upon reviewing the entire record, the defendant received effective representation and a fair and impartial hearing. State v. Ermert, 94 Wn.2d 839, 849, 621 P.2d 121 (1980). `In a plea bargain context, `effective assistance of counsel' merely requires that counsel `actually and substantially [assist] his client in deciding whether 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, review denied, 96 Wn.2d 1023 (1981)). As to his second claim, due process requires that a guilty plea be made knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
Our review of the record suggests that Marshall's pleas may have been involuntary. For example, he asserts that the court abused its discretion by ignoring his equivocation about the rights he was waiving, when the court asked:
THE COURT: Do you understand, sir, that if I accept your guilty plea, you will would [sic] be waiving certain constitutional rights? Do I need to read to you what those rights are or do you believe you have an understanding?
THE DEFENDANT: No, I think I understand them.
Whether this is equivocal may depend on Marshall's tone of voice and demeanor.
RP (Jan. 18, 2005) at 62.
Marshall also asserts the court did not give due consideration to his concerns about his attorney's lack of preparation. He explained that he had learned since entering his plea that one of the State's key witnesses was in jail on a bomb making charge and another was being investigated for welfare fraud. He explained that when the court denied his motion for new counsel based on counsel's failure to locate and interview potential witnesses, he had no choice but to plead guilty because counsel left him with no defense to present at trial.
Before the court accepted Marshall's plea, it asked him about his request for a new attorney:
THE COURT: And do you feel confident in your representation Mr. Franz has given, what had been brought before us earlier, I want to make sure that is on the record.
THE DEFENDANT: I still believe what I believe but I'm going to take the deal. I think that is the best thing to do right now.
THE COURT: I want to make clear that you are not asserting that you were improperly represented as it applies to the plea agreement and the decision you have made.
THE DEFENDANT: No, I made the decision on my own.
RP (Jan. 18, 2005) at 59-60.
We can reasonably examine this discussion in light of defense counsel's failure to interview six witnesses, one of whom was allegedly present during the crime. This failing, as is clear from the transcripts, left Marshall believing that he had no choice but to plead guilty as these witnesses were his only defense. Marshall explained to the court his reasons for pleading guilty:
Your Honor, basically I got coerced into this plea right here. I didn't want to plea but the way he kept on telling me, hey, you got to plea. These guys are here right now. I didn't know he [a key state witness] was competent to come to trial or anything like that. First of all, if I had a new lawyer, I would have went to trial but he never had none — I have my witnesses, go ahead and go to trial and get banged over the head and get railroaded. If I would knew that I didn't have no defense basically is what I'm saying, I didn't have no defense.
RP (May 6, 2005) at 6-7. Marshall agreed to plead guilty after the court denied his motion for new counsel. We are not confident that he made a knowing, intelligent, unequivocal plea and thus we cannot resolve his motion on the record before us. As in Davis, the ultimate question is a factual one for the trial court to resolve, not this court. Accordingly, we remand this matter for a hearing on Marshall's motion to withdraw. The court shall appoint either appellate counsel or new counsel to represent Marshall. If the court finds that his pleas were a manifest injustice, it shall vacate his judgment and sentence and allow him to withdraw his pleas.
The court's reason for denying the motion was that Judge Orlando had denied a similar motion earlier that day. The record before us, however, does not contain the hearing before Judge Orlando nor his reasons for denying the motion.
We reverse and remand.
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.
BRIDGEWATER, J. and PENOYAR, J., concur.