Opinion
No. 25470-4-III.
January 8, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 04-8-00370-7, Kenneth L. Jorgensen, J., entered August 29, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Kulik, J., and Stephens, J. Pro Tem.
The decision whether to allow a criminal defendant to withdraw a guilty plea is addressed to the discretion of the trial judge. Here, the trial judge refused to allow a juvenile defendant to withdraw his plea of guilty to the crime of first degree child molestation. The judge's conclusions that the defendant was not ineffectively represented, adequately understood the proceedings before pleading guilty, and, in fact, committed the crime are supported by this record. We then affirm the court's decision that denied the defendant's motion to withdraw.
FACTS
The State charged 12-year-old A.N.J. with first degree child molestation on July 2, 2004.
A.N.J. appeared in court on July 19, 2004. The trial court told him that he was being charged with the class A felony of first degree child molestation. The trial court then asked him if he understood what he was charged with, and he replied that he did. A.N.J. told the trial court that he had gone over his rights with a representative of the juvenile department and that he understood them.
A.N.J. pleaded guilty on September 21, 2004. He checked a box next to the language in his statement on plea of guilty that said: "Instead of making a statement, I agree that the judge may review the police reports and/or statement of probable cause supplied by the prosecution to establish a factual basis for the plea." Clerk's Papers (CP) at 10. The trial court reviewed A.N.J.'s statement and the police reports at the request of A.N.J.'s lawyer.
The trial court then asked A.N.J. whether his attorney had read the statement of plea of guilty to him and he replied that he had. Report of Proceedings (RP) (Sept. 21, 2004) at 2. The trial court asked if he understood what was read to him, and he replied "Yes." Id. at 3. The trial court asked him if he had any questions, and he replied "No." Id. The trial court accepted the plea and found that it was knowingly, intelligently, and voluntarily made.
A.N.J. hired a different lawyer and moved to withdraw his guilty plea on December 2, 2004. He claimed that his plea was not voluntary, knowing, and intelligent, and that the plea reflected a manifest injustice because he received ineffective assistance of counsel. The court held a hearing and heard testimony from those involved with the plea, including Douglas Anderson, the lawyer who originally represented A.N.J., A.N.J.'s parents, and an expert. The court entered findings to the effect that A.N.J. had accepted the State's version of the facts; that those facts supported the charge of first degree child molestation; and that his only factual dispute was over who initiated the sexual contact. The court then concluded that A.N.J. had not shown ineffective assistance of counsel or the manifest injustice necessary to withdraw his plea. And the court denied his motion to withdraw the plea.
DISCUSSION
A.N.J. challenges a number of the court's findings of fact as unsupported by the evidence. We review those challenged findings for substantial evidence. State v. Moore, 73 Wn. App. 805, 810, 871 P.2d 1086 (1994). And he challenges the court's conclusions of law that his plea was not a manifest injustice and that he was not ineffectively represented by Mr. Anderson. We review those conclusions de novo. State v. Horrace, 144 Wn.2d 386, 392, 28 P.3d 753 (2001). Findings of Fact
A.N.J. assigns error to a number of the trial court's findings. Specifically, he assigns error to the findings that: (1) A.N.J. accepted the State's version of the facts; (2) A.N.J. initiated the contact with the alleged victim; (3) A.N.J. possessed the requisite intent; and (4) A.N.J. voluntarily, knowingly, and competently pleaded guilty. The specific findings in full are:
The respondent had accepted the State's version of the alleged facts, not only as to what had occurred, but also that the respondent had initiated the contact and possessed the requisite intent.
CP at 215 (Finding of Fact 10).
Respondent's plea was voluntary, knowingly and competently made.
CP at 216 (Finding of Fact 16).
A.N.J. told the trial court that he understood the charges against him on his first appearance in court. RP (July 19, 2004) at 2. He filed a statement on plea of guilty. The statement reaffirmed that he understood the charges against him and would enter a plea of guilty. RP (Sept. 21, 2004) at 2-5; CP at 3. He did not enter an Alford plea. As part of his plea, he chose to submit the police reports/statement of probable cause as the factual basis rather than making his own statement. His lawyer, Mr. Anderson, testified that A.N.J. admitted the conduct that the State accused him of. CP at 183-84.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (an Alford plea is a plea in which the defendant enters a plea of guilty for purposes of settling the criminal proceeding at hand, but does not admit guilt).
We are not in the business of assessing the credibility of the witnesses, weighing evidence, or resolving differing accounts of the circumstances in question; that is for the trial judge. State v. Romero, 113 Wn. App. 779, 798, 54 P.3d 1255 (2002) (quoting State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Conflicting evidence is not enough to overturn the court's findings. In re Disability Proceeding Against Diamondstone, 153 Wn.2d 430, 438, 105 P.3d 1, cert. denied, 546 U.S. 845 (2005). And that is all A.N.J. has offered here on appeal.
A.N.J. argues that his plea statement was not voluntary. He suggests an obligation by the court to determine voluntariness, independently of the agreement or A.N.J.'s testimony at the plea hearing. To the extent that he does, we disagree. There is a strong presumption that the plea is voluntary when a defendant completes a plea statement and admits to reading, understanding, and signing it (as A.N.J. did at the hearing). State v. S.M., 100 Wn. App. 401, 413-14, 996 P.2d 1111 (2000) (citing State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998)). The court's findings here are supported by this record. The police report and the information both indicate (1) that A.N.J. touched the victim's groin area over and under the victim's clothing; (2) that the victim was less than 12 years old and unmarried when the event occurred; and (3) that A.N.J. is at least 36 months older than the victim. CP at 1, 21, 23. Ineffective Assistance of Counsel A.N.J. next contends that he was ineffectively represented by Mr. Anderson. Specifically, he argues that Mr. Anderson failed to establish a confidential attorney-client relationship with A.N.J. apart from his parents. He argues that Mr. Anderson failed to investigate A.N.J.'s case. Also, he argues that Mr. Anderson failed to consult an expert witness. And, finally, he argues that Mr. Anderson affirmatively misstated the collateral consequences of his plea: that the offense would come off of his record.
We review a claim of ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We begin with a strong presumption that defense counsel's performance was effective. Id. A defendant bears the burden to overcome that presumption. State v. McFarland, 127 Wn.2d 322, 335, 337, 899 P.2d 1251 (1995).
A defendant must first show that "defense counsel's representation was deficient." Id. at 334-35; State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). In other words, "it fell below an objective standard of reasonableness based on consideration of all the circumstances." McFarland, 127 Wn.2d at 334-35; Stenson, 132 Wn.2d at 705-06. This must be shown based upon the trial record. McFarland, 127 Wn.2d at 335. The defendant must then show that he or she was prejudiced by the deficient representation. Id. at 334-35; Stenson, 132 Wn.2d at 705-06. The threshold is that, "but for" the errors, the outcome would have been different. Stenson, 132 Wn.2d at 705-06; State v. Varga, 151 Wn.2d 179, 198-99, 86 P.3d 139 (2004).
Guilty pleas add another refinement to these rules. A defendant must show that his counsel failed to "`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) (alteration in original) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)). He also must show that, but for counsel's failure to adequately advise him, he would not have pleaded guilty. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997).
A.N.J. cites four specific instances of his lawyer's ineffectiveness. We take each in order.
Failure to Establish a Confidential Attorney-Client Relationship
A.N.J. complains that Mr. Anderson never conducted a meeting with him outside the presence of his parents. He cites no legal authority that would impose such a categorical obligation on a lawyer, and we find none. He relies instead on the testimony of a law professor. The professor opined that the Rules of Professional Conduct require a lawyer to establish a confidential relationship with his client (here, with an accused juvenile, outside the presence of his parents). First, that is not the law and we need not accept it as law. And, second, the trial judge obviously rejected the "expert testimony" and that was well within his prerogative. CP at 213-17.
But even were we to assume that such a failure amounted to ineffective assistance of counsel, there is no showing of prejudice. A.N.J. makes no claim that, but for Mr. Anderson's failure to establish a confidential attorney-client relationship with him, he would not have pleaded guilty. He offers no explanation why his parents' presence in this case negatively impacted his actual decision to plead guilty. Was he coerced by his parents? Was he afraid to speak in front of his parents? Is he innocent? He makes no showing on any of these questions.
A.N.J. does not suggest that he would have refused to plead guilty had Mr. Anderson met with him alone. In fact, there is no testimony from A.N.J. at any point nor is there any assertion of specific facts on appeal. Indeed, his main complaint appears to be that Mr. Anderson did not adequately inform him of the possible collateral consequences of his plea. That is not grounds for setting aside the plea. In re Pers. Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). A.N.J. has not then met his burden to overcome the presumption that his attorney's assistance was effective. Failure to Investigate A.N.J.'s Case
A.N.J. suggested two possible witnesses to Mr. Anderson. A.N.J. argues that the failure to interview the two witnesses prejudiced his case. The witnesses would have been able to testify that the alleged victim in this case displayed sexually precocious behavior and had also been abused by another person. A.N.J. cites to standards promulgated by the Washington Defender Association and the Washington State Bar Association. Appellant's Br. at 25-26.
Mr. Anderson telephoned both witnesses but did not get in touch with them on the first attempt. He did not try calling again. Mr. Anderson did not continue to investigate because his client admitted to the conduct the State alleged. And his client then said he wanted to accept the plea offer. Mr. Anderson approved of the plea because it increased the likelihood that his client could get a lesser charge and eventually have the registration requirement (as a sex offender) removed. Also, Mr. Anderson could see from the police report that going to trial would likely result in additional charges for A.N.J.
Again, we find no authority that would require a lawyer to continue an investigation after a client admits guilt nor would there be any prejudice even assuming some obligation. Moreover, the only person in this process who has ever known about the existence of the witnesses or the substance of their potential testimony has been A.N.J. himself. So no one was more familiar than A.N.J. with what they had to offer. And he, nonetheless, decided to plead guilty.
Further, there is no suggestion by A.N.J. that had Mr. Anderson investigated the witnesses he would not have pleaded guilty. There is no evidence or suggestion, now or ever, that he pleaded guilty (even though he believed himself innocent) because he had insufficient witness testimony at his disposal. He did not enter an Alford plea. He admitted guilt. The suggestion that Mr. Anderson's failure to investigate prejudiced A.N.J. is speculative and therefore cannot overcome the presumption that defense counsel's performance was effective.
A.N.J. next urges that Mr. Anderson had a conflict of interest. Mr. Anderson's public defense contract requires him to pay out of his own pocket for investigators and expert witnesses. A.N.J. contends that this creates an inherent conflict of interest according to the Washington State Bar Association. He then cites to In re Pers. Restraint of Stenson, 142 Wn.2d 710, 722, 16 P.3d 1 (2001), for his conclusion that "[t]his is precisely the sort of conflict — arising from the attorney's own `financial interest' — that established a presumption of prejudice in ineffective assistance of counsel cases." Appellant's Br. at 27. Of course, public defenders should have access to meaningful investigative resources without compromising the modest fees they are paid for this difficult work. And any system that puts the defender in a position of paying himself or hiring an investigator is wrong.
But Mr. Anderson testified here that he does not always have to pay for expert witnesses but may get the cost approved by the court. CP at 80. And again A.N.J. admitted his responsibility knowing the substance of what these witnesses would offer. Finally, none of the "irreconcilable differences" that concerned the court in Stenson are present here. Stenson, 142 Wn.2d at 722.
Failure to Consult an Expert Witness about the Reliability of Child Victim Witness Interviews
We are not sure why A.N.J. believes Mr. Anderson should have gone about the process of preparing and consulting with witnesses in order to properly respond to child-victim witness interviews. After all there was no trial here. Further, the standards on which he relies simply state that such expert services "`should be available to lawyers and to their clients at all stages of juvenile . . . proceedings.'" Appellant's Br. at 28 (alteration in original) (quoting IJA ABA, Juvenile Justice Standards: Standards Relating to Counsel for Private Parties std. 2.1(c) (1980), reprinted in ABA, Criminal Justice Section, Juvenile Justice Standards Annotated: A Balanced Approach (Robert E. Shepherd, Jr., ed. 1996)). We do not read that standard as a mandate that Mr. Anderson make use of those services prior to accepting a guilty plea offer.
And even if there was such a requirement, there is no prejudice here. A.N.J. admitted responsibility and pleaded guilty. We will not assume that he would not have done so had an expert told him how to respond to child-victim testimony. Such speculation does not prove prejudice or overcome the presumption of effective assistance of counsel.
Affirmative Misstatements about the Effect of a Guilty Plea
A.N.J. next argues that on authority of State v. Stowe the trial judge should have allowed him to withdraw his guilty plea because Mr. Anderson misinformed him about the consequences of the plea.
State v. Stowe, 71 Wn. App. 182, 858 P.2d 267 (1993).
Stowe states that, even though defense counsel does not have an obligation to inform his client of all possible collateral consequences of a guilty plea, counsel may fall below the objective standard of reasonableness if he misinforms a defendant as to the collateral consequences of a guilty plea. Stowe, 71 Wn. App. at 187. A defendant must, however, still prove the prejudice prong in order to prevail on a claim of ineffective assistance of counsel. Id. at 188. And A.N.J. has not done that.
First, the record does not support A.N.J.'s representation of the facts. A.N.J.'s father testified that "[m]y wife asked him when this would come off his records, and Mr. Anderson's reply was, `I'm not sure. The laws change all the time. I'll have to check into it and get back to you.'" CP at 122. A.N.J.'s mother testified that when asked when the charge would come off A.N.J.'s record, Mr. Anderson told her that "the laws change all the time, I'll have to look into it. It's either 18 or 21." Id. at 198.
Mr. Anderson testified that he advised A.N.J. and his family that sex offenses are not sealed, but that there is, with juveniles, the possibility that the registration requirement could be removed, but that was usually up to the discretion of the court and beyond that, he was unfamiliar with the law with respect to that issue. Id. at 164, 179.
First, A.N.J. never testified. So there is no evidence as to what A.N.J. personally heard or understood or what he relied upon when making his guilty plea. Second, it is unclear what issue A.N.J. is concerned about — sealing or registration. Third, the relevant testimony of all three witnesses supports that Mr. Anderson said he did not know the answer and would do some research. Any thought he may have ventured was made in that context.
There is no evidence in the record as to what A.N.J. understood or relied on in making his plea. His parents claim that they relied on Mr. Anderson's statements. But they both admit that Mr. Anderson told them that he did not know the answer and would have to look into it.
And moreover, the impetus for withdrawing this plea was not misinformation, but A.N.J.'s concern when he later discovered his school's policies on sex offenders. CP at 216. A.N.J. does not assign error to that finding. Dumas v. Gagner, 137 Wn.2d 268, 280, 971 P.2d 17 (1999) (citing Riley v. Rhay, 76 Wn.2d 32, 33, 454 P.2d 820 (1969)).
A.N.J. was not ineffectively represented nor is there any showing of prejudice. Trial Court's Obligation to Inquire about A.N.J.'s Subjective Understanding of First Degree Child Molestation and Sexual Contact A.N.J. next argues that under CrR 4.2(d) the trial court had to ask about A.N.J.'s subjective understanding of the crime before accepting his guilty plea. And the judge failed to do this.
CrR 4.2(d) provides that before the court accepts a plea of guilty, it must first determine that it is made voluntarily, competently, and with an understanding of the nature of the charge and the consequences of the plea.
We review the sentencing judge's decision on a motion to withdraw a guilty plea under CrR 7.8 for an abuse of discretion. CrR 4.2(f); State v. Olivera-Avila, 89 Wn. App. 313, 317, 949 P.2d 824 (1997); State v. Padilla, 84 Wn. App. 523, 525, 928 P.2d 1141 (1997). The court abuses its discretion only when its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The withdrawal of a juvenile's plea is governed by CrR 4.2. JuCR 7.6(b); In re Welfare of Bryan, 24 Wn. App. 426, 429, 601 P.2d 969 (1979); S.M., 100 Wn. App. at 408. "The 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." CrR 4.2(f). 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).
The judge must determine whether the conduct admitted by the defendant constitutes the offense charged in the indictment or information. S.M., 100 Wn. App. at 414. Failure to comply with this requirement results in the guilty plea being set aside. Id. at 413 (quoting Wood v. Morris, 87 Wn.2d 501, 511, 554 P.2d 1032 (1976)). The rule protects a person who may be pleading with an understanding of the charge, but without appreciating whether or not his actions support the charge. S.M., 100 Wn. App. at 414. The record must show sufficient evidence at the time of the plea for a jury to conclude that a defendant is guilty. Id. "`Where, however, the court relies only on the written statement of the defendant on the guilty plea form, it must insure the facts admitted amount to the violation charged. Anything less endangers the finality of the plea.'" Id. (quoting In re Pers. Restraint of Taylor, 31 Wn. App. 254, 259, 640 P.2d 737 (1982)).
In S.M., the defendant was charged with three counts of first degree rape of a child. S.M., 100 Wn. App. at 403. A plea to first degree rape of a child requires that the defendant admit to penetrating the victim. RCW 9A.44.073(1); S.M., 100 Wn. App. at 415. S.M. signed a statement of juvenile on plea of guilty, which stated: "`In Cowlitz County in the Spring of 1994, I had sexual contact with my Brother who is age 10 in 1994. It happened three times.'" S.M., 100 Wn. App. at 403. At the hearing for entry of the guilty plea, the trial court asked S.M. if he knew what sexual intercourse meant, to which he replied that he did. Id. at 404. The court did not clarify S.M.'s plea any further. Id. The Court of Appeals concluded that the record did not show that S.M. understood the law in relation to the facts because the plea statement did not provide the necessary factual basis for the charge, and the trial court did not sufficiently clarify that S.M. admitted to conduct that would constitute the charge. Id. at 414-15.
A.N.J. argues that even though the trial court in this case may have found that the statement on guilty plea constituted a factual basis for the charge, S.M. requires more. Specifically, he urges that the court must engage the defendant in a colloquy calculated to probe his subjective understanding of the law in relation to the facts.
First, S.M. is distinguishable from this case. The concern in S.M. was that a defendant does not simply admit to a particular charge; rather, he must admit to particular conduct that supports the charge. In S.M., the defendant pleaded guilty to rape of a child, which requires penetration, but did not admit to penetration of the victim in his statement on guilty plea. So the statement on guilty plea did not support the plea without further clarification. The trial court did not clarify; therefore, it could not be determined on review whether the victim knowingly admitted to conduct that amounted to rape of a child.
Here, A.N.J. pleaded guilty to the following elements:
(1) That on or about April 7, 2004, the respondent had sexual contact with a minor child dob 05-23-98;
(2) That the minor child dob 05-23-98 was less than twelve years old at the time of the sexual contact and was not married to the respondent;
(3) That the respondent was at least thirty-six months older than the said minor child; and
(4) That these acts occurred in Grant County, Washington.
CP at 3-4.
He also chose to permit the judge to review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea. Both the police report and the information describe the specific sexual conduct as the touching of the victim's groin area over and under the victim's clothing. CP at 1, 21-24. The trial court concluded that the statement on plea of guilty constituted a factual basis for the crime charged within the information as required by CrR 4.2(d). Id. at 11; S.M., 100 Wn. App. at 414 (the judge must determine whether the conduct admitted to constitutes the offense charged in the information). Unlike S.M., A.N.J.'s statement on plea of guilty admitted conduct sufficient to support the necessary elements of the crime charged. It does not therefore appear that there is any need for the trial court to further clarify the statement.
We affirm the decision of the trial judge to deny A.N.J.'s motion to withdraw his plea.
A majority of the panel has determined that 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.
WE CONCUR:
Kulik, J.
Stephens, J. Pro Tem.