Opinion
No. 26523-4-III.
March 17, 2009.
Petition for relief from personal restraint.
Dismissed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Brown, J.
UNPUBLISHED OPINION
Rogelio Perez-Castillo pleaded guilty to the second degree child rape of his daughter. He subsequently filed this personal restraint petition (PRP) seeking to withdraw his guilty plea. He alleged several errors including a claim that the court failed to notify him that he was subject to lifetime community custody for the offense. We appointed counsel to address the community custody issue. The record shows that Mr. Perez-Castillo was advised of the community custody consequences at the time he pleaded guilty. His other claims were waived and also lack merit. Accordingly, we dismiss his petition.
FACTS
The daughter, 13, reported to police in April 2006, that her father had raped her on multiple occasions since she turned seven. The most recent event occurred earlier in the month on April 3. On that occasion, Mr. Perez-Castillo dragged her into his bedroom, took off her clothes, squeezed her breasts, and placed his finger in her vagina.
Police interviewed Mr. Perez-Castillo with the assistance of a Spanish language interpreter. He waived his Miranda rights and told police that on April 3 he had touched his daughter's breasts and put a finger in her vagina, but only because she wanted him to do so. The police then arrested him for second degree rape.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Prosecutors eventually filed three counts of first degree child rape, one count of second degree child rape, one count of first degree child molestation, one count of second degree child molestation, and one count of incest. The trial court conducted a CrR 3.5 hearing to determine the admissibility of the statements made to the police. The court concluded that the statements were admissible and denied the motion to suppress.
The parties then reached an agreement whereby Mr. Perez-Castillo would plead guilty to one count of second degree rape of a child. The remaining charges would be dismissed and the parties would recommend a standard range sentence. The written plea form advised that the maximum sentence for the crime was life in prison and also noted that the case was subject to community custody under RCW 9.94A.712 for the remainder of the maximum term. See Appendix D to Respondent's Brief. His counsel also told the court that Mr. Perez-Castillo was subject to lifetime custody, but it was questionable whether he would serve that since he was subject to deportation. See Report of Proceedings (Jan. 30, 2007) at 10. The plea statement form noted that an interpreter had read the entire form to Mr. Perez-Castillo, who acknowledged that fact during his colloquy. Id. at 6. The court accepted the guilty plea.
Sentencing was conducted three months later before a different judge. As part of the sentence, the trial court imposed a term of 36-48 months community custody. Subsequently, the Department of Corrections notified the court and parties that the community custody term was in error. An order amending judgment was entered September 18, 2007, correcting the community custody period to be life. Mr. Perez-Castillo filed this PRP on October 29, 2007.
The petition alleged that Mr. Perez-Castillo did not understand his rights and should have had an interpreter explain them. He also wanted an independent medical examination of the victim. By means of a reply brief, he raised additional issues, including a contention that his plea was involuntary due to the incorrect term of community custody imposed at his original sentencing. He also said that his behavior did not constitute a crime and that his counsel was ineffective in having him plead guilty. We appointed counsel to address the effect of the sentencing error on the plea. The parties have filed supplemental briefs.
ANALYSIS
The primary issue is whether the sentencing error invalidated the guilty plea. It did not. The other issues raised in the pro se petition are without factual basis and/or utterly without merit. Accordingly, we dismiss the PRP.
The burdens imposed on a petitioner in a PRP are significant. Because of the significant societal costs of collateral litigation often brought years after a conviction and the need for finality, relief will only be granted in a PRP if there is constitutional error that caused substantial actual prejudice or if a nonconstitutional error resulted in a fundamental defect constituting a complete miscarriage of justice. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). It is the petitioner's burden to establish this "threshold requirement." Id. To do so, a PRP must present competent evidence in support of its claims. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially entitle the petitioner to relief, a reference hearing may be ordered to resolve the factual allegations. Id. at 886-887.
Here, there is no actual dispute about the facts. For instance, while Mr. Perez-Castillo claimed to have been deprived of an interpreter, he presented no evidence in support of the allegation. In response, the prosecutor provided both a plea statement form signed by the interpreter and a transcript showing the court and the parties acknowledging the presence of an interpreter. The other factual allegations of the petition are likewise unsupported by any evidence. There is no need for any reference hearing in this case.
Voluntariness of Guilty Plea. The issue we appointed counsel to brief involves whether or not Mr. Perez-Castillo was properly advised concerning the community custody that would result from pleading guilty. Incorrect advice concerning the term of community custody is a basis for setting aside a guilty plea. In re Pers. Restraint of Murillo, 134 Wn. App. 521, 142 P.3d 615 (2006) (finding guilty plea involuntary where defendant was not told of lifetime term of community custody).
Here, the record establishes that Mr. Perez-Castillo was told both in writing and by his counsel in open court that the charge was subject to lifetime community custody. It was the sentencing judge who later erred in imposing a different term. While Mr. Perez-Castillo argues that the sentencing error invalidates his guilty plea, he presents no relevant authority on that point. In contrast, all other plea validity cases have turned upon what information was conveyed at the time of the guilty plea. E.g., In re Pers. Restraint of Isadore, 151 Wn.2d 294, 88 P.3d 390 (2004); State v. Ross, 129 Wn.2d 279, 916 P.2d 405 (1996). That is not surprising, because due process requires "an affirmative showing that the plea was made intelligently and voluntarily." State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980) (citing Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969)). Whether or not a guilty plea was made voluntarily simply is not impacted by post-plea developments such as an incorrect sentence.
The record reflects that at the time Mr. Perez-Castillo pleaded guilty, he was properly advised of his rights and the consequences of pleading guilty. The plea, therefore, was voluntary. Boykin, 395 U.S. at 243-244. The petition has not established that any error occurred with respect to the plea.
Other Issues. Respondent properly notes that by pleading guilty, petitioner effectively waived his right to raise his other challenges. As was noted many years ago: It is, of course, recognized that a plea of guilty precludes an appeal except as to collateral questions such as the validity of the statute violated, the sufficiency of the information, the jurisdiction of the court, or the circumstances under which the plea was made. State v. Saylors, 70 Wn.2d 7, 9, 422 P.2d 477 (1966). The other challenges raised by the petition do not fit within any of the collateral challenges permitted following a guilty plea.
The complaint that there was no interpreter present is one involving the circumstances of the plea and was not waived by the guilty plea. The allegation is belied by the record and petitioner has presented no competent evidence that he was denied an interpreter. In fact, the plea statement form and the transcript show otherwise.
Despite that fact, we will briefly note that the challenge to the application of the statute to this case involves a fundamental misunderstanding of this state's rape laws. The second degree child rape conviction required proof of "sexual intercourse," which itself is a term of art. RCW 9A.44.076. "Sexual intercourse," in turn, means both "its ordinary meaning" and "means any penetration of the vagina or anus however slight, by an object, when committed on one person by another." RCW 9A.44.010(1). A finger is "an object" within the meaning of this statute. State v. Cain, 28 Wn. App. 462, 624 P.2d 732 (1981).
Thus, the claim that petitioner's behavior did not fit the statute lacks merit. Mr. Perez-Castillo admitted penetrating the victim's vagina with his finger. The victim likewise reported that behavior. The conduct Mr. Perez-Castillo admitted does constitute "sexual intercourse" in Washington and, therefore, the child rape statute properly applied to his behavior.
The allegation of ineffective assistance of counsel is largely based on this claim and fails for the same reason. The other alleged deficiencies in counsel's performance are not supported by the record and also were waived by the guilty plea.
This petition has not satisfied its heavy burden of proving actual prejudicial error. Accordingly, the PRP is dismissed.
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.
KULIK, A.C.J. and BROWN, J., concur.