Opinion
Nos. 22440-6-III linked w/, 22483-0-III-cons. w/, 22441-4-III linked w/, 22484-8-III cons. w/, 22442-2-III linked w/, 22485-6-III cons. w/, 22443-1-III linked w/, 22486-4-III cons. w/, 22444-9-III linked w/, 22487-2-III cons. w/, 22445-7-III linked w/, 22488-1-III cons. w/, 22446-5-III linked w/, 22489-9-III cons. w/, 22447-3-III linked w/, 22482-1-III
Filed: September 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-03067-1. Judgment or order under review. Date filed: 10/01/2003. Judge signing: Hon. Gregory David Sypolt.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Casey D. Beckham pleaded guilty to multiple charges filed in eight different cases pursuant to a plea agreement. The court ordered a concurrent, high-end standard range sentence of 84 months instead of the State's recommended 70 months. Mr. Beckham unsuccessfully asked to withdraw his pleas citing the court's failure to follow the plea recommendation and an unspecified claim of innocence in some crimes. On appeal, Mr. Beckham now alleges the trial court erred in denying his request because no factual basis existed to support one of the charges. Mr. Beckham's additional grounds and personal restraint petitions raise claims of ineffective assistance of counsel, plea agreement breach, innocence, and duress. We affirm and dismiss the personal restraint petitions.
FACTS
Pursuant to a plea agreement, Mr. Beckham pleaded guilty to multiple charges in eight informations: (1) possession of a controlled substance, methamphetamine, (2) two counts of second degree burglary and first degree theft, (3) two counts of forgery and second degree theft, (4) second degree burglary, identity theft, eight counts of forgery, second degree theft and first degree theft, (5) vehicle prowling (subsequently dismissed) and second degree possession of stolen property, (6) two counts of possession of a controlled substance, methamphetamine and vicodin, (7) first degree theft and first degree trafficking in stolen property, and (8) first degree possession of stolen property. In exchange, the State agreed not to file specified additional charges and to recommend a 70-month standard range sentence with all sentences to run concurrently. Mr. Beckham's offender score well exceeded the maximum of nine.
Mr. Beckham agreed to incorporate the affidavit of facts/summary of facts to establish the facts of each charge. At issue here is solely the summary for first degree possession of stolen property, which involved Mr. Beckham and an alleged co-defendant, Mr. Kingsley. According to the summary, a green 1992 Eagle Talon was stolen from Vic's Auto Sales. A witness stated that approximately one week later, he entered a friend's garage and observed Mr. Beckham and Mr. Kingsley with a green Talon in a 'partially stripped-out condition.' Clerk's Papers (CP) (No. 22447-3-III) at 4. He also overheard Mr. Beckham and Mr. Kingsley discuss obtaining a torch. The summary of facts states the arresting officer's report supports that Mr. Beckham 'possessed and facilitated the disassembly of a stolen [vehicle], having a value in excess of $1,500.00.' CP (No. 22447-3-III) at 4-5.
At the plea hearing, the judge explained to Mr. Beckham his rights and Mr. Beckham stated he 'completely' understood the court did not have to follow the State's recommendation. Report of Proceedings (RP) at 13. The court then accepted Mr. Beckham's pleas and sentenced him to total confinement of 84 months, the high end of the standard range sentence for first degree trafficking in stolen property.
As the sentencing court and parties weighed through the remaining sentencing details, Mr. Beckham's defense counsel informed the court at a sidebar bench conference that his client was then refusing to sign the remaining sentencing forms and desired to withdraw his guilty pleas because the court had exceeded the State's 70-month recommendation. According to defense counsel, Mr. Beckham believed he was not advised the court was free to sentence anywhere within the standard range on each of the charges. Apparently, defense counsel had informed Mr. Beckham that he could not support the motion on that basis, but Mr. Beckham retained the right to collaterally attack the sentence. The trial court offered to make a record of the issue in front of Mr. Beckham. When the bench conference concluded, the court explained the discussion on the record and invited defense counsel to proceed.
After reviewing the matter in Mr. Beckham's presence, the court asked whether a separate motion hearing was necessary to consider Mr. Beckham's request to withdraw his guilty pleas. Defense counsel responded it wasn't his practice to 'set any motion that I don't feel there's a basis in statutes or case law.' RP at 47. The trial court allowed Mr. Beckham to offer his own views of why the pleas should be withdrawn.
After clarifying Mr. Beckham's concerns regarding restitution, Mr. Beckham finally stated his grounds for wanting to withdraw his pleas: 'The only reason that I pled guilty was because of the prosecutor's recommendation to the 70 months.' RP at 49. The court asked if there was any other reason for requesting withdrawal, which Mr. Beckham replied: 'I'm not guilty of all these crimes.' RP at 49. After the court denied Mr. Beckham's motion and advised him of his appeal rights, Mr. Beckham completed the necessary sentencing documents, and then appealed.
ANALYSIS A. Motion to Withdraw Guilty Pleas
The issue is whether the trial court erred in denying Mr. Beckham's motion to withdraw his guilty pleas because the court did not follow the State's lower sentencing recommendation and instead ordered a higher standard range sentence.
A trial court allows withdrawal of a guilty plea 'to correct a manifest injustice,' such as a defendant's involuntary plea or the denial of effective assistance of counsel. CrR 4.2(f); State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). We review the trial court's denial of a motion to withdraw a plea for an abuse of discretion. State v. Moon, 108 Wn. App. 59, 61-62, 29 P.3d 734 (2001).
Mr. Beckham contends his plea was involuntary because there was no factual basis to support the charge for first degree possession of stolen property, relating to the 1992 Eagle Talon. He claims without a factual basis he should be permitted to withdraw his plea not only to the possession charge, but all charges under State v. Turley, 149 Wn.2d 395, 69 P.3d 338 (2003), because the pleas were part of a package deal. The State responds that Mr. Beckham's challenge to the factual basis of his first degree possession charge is not properly before this court because it is raised for the first time on appeal. Mr. Beckham counters that a manifest constitutional error exists.
Generally, we do not consider issues raised for the first time on appeal. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). An exception exists for a manifest error affecting a constitutional right. RAP 2.5(a)(3); McFarland, 127 Wn.2d at 333. To establish manifest constitutional error, Mr. Beckham must (1) identify the constitutional error; and (2) 'show how, in the context of the trial, the alleged error actually affected [his] rights.' McFarland, 127 Wn.2d at 333.
Since Mr. Beckham raises an issue unique and distinct from the issues raised at the trial level to withdraw his plea, he must meet the RAP 2.5(a)(3) standard. Mr. Beckham directly attacks the trial court's alleged failure to comply with the 'factual basis' requirement of CrR 4.2(d). He argues the plea should be withdrawn because it lacks a factual basis. This is a technical argument based upon our court rules, not one based upon constitutional principles.
Even though CrR 4.2(d) requires the judge taking a plea to be 'satisfied that there is a factual basis for the plea,' the federal and state constitutions do not require that. See In re Pers. Restraint of Hews, 108 Wn.2d 579, 591-92, 741 P.2d 983 (1987) (holding 'establishment of a factual basis is not an independent constitutional requirement, and is constitutionally significant only insofar as it relates to the defendant's understanding of his or her plea'); In re Pers. Restraint of Barr, 102 Wn.2d 265, 269 n. 2, 684 P.2d 712 (1984) (holding a violation of the factual basis requirement of CrR 4.2(d) does not necessarily establish that a particular plea was constitutionally infirm); In re Pers. Restraint of Hilyard, 39 Wn. App. 723, 727, 695 P.2d 596 (1985) ('CrR 4.2 is not the embodiment of a constitutionally valid plea; strict adherence to the rule, is 'not a constitutionally mandated procedure.'').
Moreover, Mr. Beckham fails to show the alleged error was 'manifest.' In this setting, 'manifest' means a showing of actual prejudice. Walsh, 143 Wn.2d at 18. Here, before his plea, Mr. Beckham indicated he (1) had some college education, (2) was satisfied with counsel, (3) had discussed the plea with his attorney and understood the nature of the charges against him, (4) intended to plead guilty, (5) understood his rights, (6) understood the consequences of pleading guilty, (7) understood a standard range sentence could not be appealed, (8) knew the sentencing court was not bound by the State's recommendations, (9) acted freely and voluntarily, (10) acted without promises except those shown in the plea agreement, and (11) understood the State's recommendations. Particularly, when asked if he understood that the court was not required to follow any sentence recommendations, Mr. Beckham replied, 'I completely understand, sir.' RP at 13.
Regarding the allegedly defective factual basis, the trial court was asked to incorporate the record of affidavits of facts in lieu of an oral recitation of facts. The court asked Mr. Beckham whether it was correct that he had 'carefully' gone over with his attorney 'every one of the police reports corresponding to [his] charges' before the court. RP at 19. Mr. Beckham replied, 'Yes, sir, it is correct.' RP at 19. Mr. Beckham agreed that should the cases have gone to trial, he could be convicted 'based on the summary of facts contained in those reports.' RP at 19. The relevant summary clearly shows Mr. Beckham's joint participation with Mr. Kingsley in possessing and stripping the 1992 Eagle Talon automobile over a period of time. Whether Mr. Beckham acted with Mr. Kingsley as a principal or accomplice makes no difference in his criminal liability.
We must presume defense counsel advised Mr. Beckham regarding whether his conduct fell within the possession charge. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). A signed plea form is 'prima facie verification of the plea's voluntariness.' State v. Perez, 33 Wn. App. 258, 261, 654 P.2d 708 (1982). Without a showing that Mr. Beckham's rights were adversely affected by the alleged constitutional error, the claimed error is not 'manifest' under RAP 2.5(a)(3) and cannot be raised for the first time on appeal. McFarland, 127 Wn.2d at 338.
B. Additional Grounds and Personal Restraint Petitions
As additional grounds for review, Mr. Beckham individually contends his attorney was ineffective and that the State breached its plea agreement, apparently by not persuading the sentencing court to follow its recommendations. Mr. Beckham's personal restraint petitions contain the same general concerns, plus whether he entered into the agreement under duress.To show ineffective assistance, an appellant must show counsel's performance was deficient and the deficient performance prejudiced him or her. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In Re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). Our analysis begins with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 335.
Mr. Beckham argues his defense counsel was ineffective because he 'would not file any of my motions.' Statement of Additional Grounds (January 8, 2004) at 1. We assume he is referring to his motion to withdraw his guilty pleas. The record, however, shows defense counsel conveyed to the court Mr. Beckham's desire to withdraw his guilty pleas. The court considered the motion and ruled against Mr. Beckham after a colloquy with both Mr. Beckham and his counsel. Mr. Beckham's reasons for wanting to withdraw his pleas were adequately explained to the court. Defense counsel did not believe a separate hearing was required to explain the reasons and did not urge a separate hearing for that purpose.
Mr. Beckham has the burden of demonstrating that no legitimate strategic or tactical rationale existed for the attorney's failure to request a separate hearing. McFarland, 127 Wn.2d at 336. Mr. Beckham fails in his burden by not showing any other facts or circumstances that might have been considered at a separate hearing. Vague allegations do not establish deficient performance. Here, the court fully considered each of Mr. Beckham's concerns before denying his plea withdrawal motion. Mr. Beckham does not suggest any additional facts or circumstances that could have been presented at a separate hearing. Thus, a separate hearing was legitimately considered unmerited by his counsel. Therefore, counsel's decision not to request a separate hearing was not ineffective.
Regarding Mr. Beckham's claim of plea agreement breach, we treat plea agreements as contracts and analyze them under basic contract principles. State v. Sledge, 133 Wn.2d 828, 838, 947 P.2d 1199 (1998). Because plea agreements implicate fundamental constitutional rights of the accused, the defendant's contract rights implicate due process considerations. Id. at 839. '[D]ue process requires a prosecutor to adhere to the terms of the agreement.' Id. After a party breaches the plea agreement, the non-breaching party may either rescind or specifically enforce it. State v. Miller, 110 Wn.2d 528, 535-36, 756 P.2d 122 (1988). Here, the State made the promised 70-month recommendation without reservation. As Mr. Beckham was told, the court was, however, not bound to follow any recommendation. While the plea agreement acts to bind the parties, the court is not a party to the plea agreement. Mr. Beckham cites no contrary authority.
Next, Mr. Beckham argues in his personal restraint petitions that his guilty pleas should be withdrawn because of ineffective assistance of counsel, he is not guilty, and the pleas were made under duress. As we have explained, Mr. Beckham failed to show ineffective assistance of counsel based upon counsel's performance related to Mr. Beckham's plea withdrawal motion because he shows no prejudice resulted in not having a separate hearing to consider the motion.
Finally, Mr. Beckham stated on the record he understood his rights and entered his pleas voluntarily. He does not specify what duress occurred. Furthermore, a signed plea form provides 'prima facie verification of the plea's voluntariness.' Perez, 33 Wn. App. at 261. No basis is shown to grant Mr. Beckham any relief by personal restraint petition. Accordingly, his personal restraint petitions are dismissed.
Affirmed.
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.
SCHULTHEIS, J. and KURTZ, J., Concur.