Opinion
No. 53406-8-I
Filed: March 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-10661-5. Judgment or order under review. Date filed: 10/24/2003. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Allen/Doc# 781026 (info Only (Appearing Pro Se), Washington State Reformatory, P.O. Box 777, Monroe, WA 98272.
Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Andrea Ruth Vitalich, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Twenty-two-year-old Nelson Allen entered an Alford plea to one count of second degree murder. The trial court denied his motion to withdraw his plea. Allen appeals, arguing that the plea was equivocal and involuntary. Having failed to show that withdrawal is necessary to correct a manifest injustice, Allen's motion was properly denied. Because the other grounds for relief raised by Allen in his pro se brief have not been properly preserved for review, we affirm.
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
FACTS
Allen and a companion were linked to a shooting incident in which one person was killed and another was seriously injured. Allen was initially charged with one count of second degree murder for intentionally causing that death. His codefendant, Leonard Kelly, was charged with attempted second degree murder for shooting another person in the same incident. The State amended the information to charge both Allen and codefendant Kelly with one count of first degree murder while armed with a deadly weapon (count 1), and one count of attempted first degree murder while armed with a firearm (count 2). A lengthy trial ensued.
After four days of deliberations, during which the court received a number of jury inquiries about the law to be applied in count 1, the jurors indicated that they were deadlocked on that count but had reached a verdict on count 2. Outside the presence of the jury, Allen's counsel said Allen was interested in renewing plea negotiations which had previously stalled. Over the next several hours, Allen spoke with his attorney and consulted with others about the merits of the State's revived plea offer. When proceedings resumed, the State indicated that Allen had made a decision to accept its plea offer. The State then filed a third amended information charging Allen with one count of second degree murder. Allen entered an Alford plea to the amended charge.
After the court accepted Allen's plea, the jurors returned to the courtroom. The court explained to the jury that their verdict would not be taken in open court as Allen had agreed to plead guilty to a single count of second degree murder. The jurors were then excused from the courtroom, at which point Allen stated that he didn't want to plead guilty. The court declined to address the matter and directed Allen to consult with his attorney.
At sentencing, the trial court imposed a standard range sentence of 240 months. Allen then filed a motion to withdraw his plea on grounds it was equivocal and involuntary. The trial court denied the motion and entered findings of fact and conclusions of law. This appeal followed.
DECISION
Allen contends the trial court improperly denied his motion to withdraw his Alford plea. Because the plea was equivocal and involuntary, Allen argues, this court should reverse his murder conviction and remand the matter to the trial court for further proceedings. We disagree.
Under CrR 4.2(f), a defendant must be allowed to withdraw a guilty plea `whenever it appears that the withdrawal is necessary to correct a manifest injustice.' The defendant has the burden of proving a manifest injustice. A `manifest injustice' is one that is "obvious, directly observable, overt, not obscure." An involuntary plea constitutes a manifest injustice. We review a trial court's denial of a motion to withdraw a plea for abuse of discretion. `A court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds.' Although Allen asserts his Alford plea was equivocal, all Alford pleas are inherently equivocal because they don't admit guilt. But this does not render an otherwise voluntary and intelligent plea invalid. Rather, the question is whether the defendant understood the plea proceedings and made a knowing, voluntary, and intelligent plea.
State v. Hurt, 107 Wn. App. 816, 829, 27 P.3d 1276 (2001).
State v. Norval, 35 Wn. App. 775, 783, 669 P.2d 1264 (1983) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)).
Hurt, 107 Wn. App. at 829.
State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000).
State v. Jamison, 105 Wn. App. 572, 590, 20 P.3d 1010, review denied, 144 Wn.2d 1018 (2001).
State v. Hubbard, 106 Wn. App. 149, 155, 22 P.3d 296, review denied, 145 Wn.2d 1004 (2001).
Hubbard, 106 Wn. App. at 155; In re Montoya, 109 Wn.2d 270, 280, 744 P.2d 340 (1987) (Alford pleas should be examined to determine whether the defendant has made an intelligent and voluntary choice between his or her alternative courses of action).
Allen assigns error to one of the court's findings:
Although the defendant mumbled some of his responses and moved away from the microphone at times during the colloquy conducted by the prosecutor and by the court, the court recalls and finds that all of the defendant's responses during the plea colloquy indicated his understanding of the charge, his understanding of his rights, his understanding of the Alford plea procedure, and his understanding of the direct consequences of his plea. Accordingly, after the defendant had ratified his plea both orally and in writing, and after the court found a factual basis to support the plea, the defendant's plea was accepted and entered by the court.
This finding is supported by substantial evidence, and the other findings are not disputed, so we decline to disturb them. Allen signed a written statement on plea of guilty indicating that the plea was made freely and voluntarily. This statement alone `provides prima facie verification of the plea's voluntariness.' The record further indicates that Allen thoroughly discussed the contents of the plea statement with his attorney. While Allen's plea was less than enthusiastic and he later clearly regretted his decision, the record before us, which includes both a written transcript and a video recording of the plea hearing, shows that his plea was knowing, intelligent, and voluntary. Allen was advised of the nature of the charge against him and the rights he waived by pleading guilty. He also knew the sentencing consequences of his plea. And there is no dispute that there is a factual basis for the plea. Despite being faced with a court-imposed deadline for taking the plea, Allen was given a fair opportunity to consider all his options and make an informed, if difficult, decision. The trial court properly denied Allen's motion to withdraw his Alford plea. We find no abuse of discretion.
State v. Stough, 96 Wn. App. 480, 487, 980 P.2d 298, review denied, 139 Wn.2d 1011 (1999).
State v. Perez, 33 Wn. App. 258, 261, 654 P.2d 708 (1982) (citing In re Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980)).
Allen, pro se, also raises several additional grounds for relief. He contends that his murder conviction should be reversed because (1) the prosecutor engaged in misconduct by impermissibly interfering with a defense interview of a key State witness, (2) his speedy trial rights were violated, and (3) defense counsel was ineffective for failing to contact and call a requested alibi witness and failing to arrange for Allen to participate in a psychological evaluation. By pleading guilty, however, Allen waived his right to appeal all of these claims.
See In re Teems, 28 Wn. App. 631, 637, 626 P.2d 13 (1981) (defendant whose guilty plea was validly entered generally waives complaints about governmental misconduct occurring prior to the entry of the plea); State v. Wilson, 25 Wn. App. 891, 895, 611 P.2d 1312 (defendant waives speedy trial issues by pleading guilty), review denied, 94 Wn.2d 1016 (1980); In re Perez, 50 Wn. App. 702, 705, 750 P.2d 643 (1988) (`An ineffective assistance of counsel claim is immaterial in a collateral attack on a guilty plea except to the extent that it bears on issues of voluntariness and understanding.') (citing Gov't v. Pamphile, 604 F. Supp. 753, 756 (D.V.I. 1985)).
Affirmed.
AGID, COLEMAN, BECKER, JJ.