Opinion
No. 34557-9-II.
May 30, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03722-2, John A. McCarthy, J., entered February 10, 2006.
Harry Carrier appeals his convictions of first degree child molestation and dealing in depictions of a minor engaged in sexually explicit conduct. He argues the trial court erred in denying his motion to withdraw his guilty pleas and that he received ineffective assistance of counsel. We affirm.
FACTS
On July 30, 2004, the State charged Carrier with one count of first degree rape of a child (count I), RCW 9A.44.073; one count of first degree child molestation (count II), RCW 9A.44.083; one count of sexual exploitation of a minor (count III), RCW 9.68.040(1)(b); one count of dealing in depictions of a minor engaged in sexually explicit conduct (count IV), RCW 9.68A.050(1); and one count of possession of depictions of a minor engaged in sexually explicit conduct (count V), former RCW 9.68A.070 (2004). The State filed a persistent offender notice, alleging in part that Carrier had a 1981 conviction of indecent liberties, which is a "most serious offense" as defined by former RCW 9.94A.030(28) (2004). The State later filed an amended information changing count I from first degree rape of a child to another count of first degree child molestation.
During a pretrial CrR 3.5 hearing, Carrier entered a guilty plea on counts IV and V. The plea agreement Carrier signed stated that the standard range sentence for count IV was 60 months. The standard range for count IV had an asterisk next to it and the word "disputed" next to another asterisk, denoting that Carrier disputed whether his previous conviction of indecent liberties should be included in the calculation of his offender score. Clerk's Papers (CP) at 12.
The trial court asked Carrier a lengthy series of questions to ensure that the plea was voluntary and that he understood the consequences and the rights he waived by pleading guilty, including whether he understood the maximum sentence for count IV was 60 months of confinement. He pleaded guilty to counts IV and V after informing the court he (1) read the plea agreement, (2) was aware of his potential sentence of 60 months for count IV, and (3) would enter the plea voluntarily. The trial court accepted his pleas on counts IV and V.
The case proceeded to a jury trial on counts I, II, and III. After a recess in the trial, Carrier agreed to plead guilty to count I in exchange for the State dismissing counts II and III. The plea agreement he signed noted that the maximum sentence and the sentence the State planned to pursue was life imprisonment without the possibility of parole. The agreement also noted that he would dispute the maximum sentence, arguing he was not a persistent offender because his previous indecent liberties conviction was not comparable to first degree child molestation.
In Carrier's presence, his counsel told the trial court that he explained to Carrier that the State had filed a persistent offender notice and that there was a "distinct possibility that [Carrier] could be sentenced to life in prison without release or parole." 3 Report of Proceedings (RP) at 231. Carrier also received and reviewed with his counsel a document that advised him of the persistent offender law.
The trial court again asked Carrier a lengthy series of questions to ensure his plea was voluntary and that he understood the consequences and the rights he waived by pleading guilty. He told the trial court he understood that there was a sentencing issue based on the classification of his indecent liberties conviction, which the trial court would ultimately decide. The trial court asked him if he understood he could receive a sentence of life imprisonment without the possibility of parole depending on the court's decision, and he said he understood. The trial court accepted his guilty plea, finding that he made it knowingly, intelligently, and voluntarily; dismissed counts II and III; and set a sentencing hearing date.
At Carrier's sentencing hearing, his counsel informed the trial court that Carrier wished to withdraw his guilty pleas. The trial court delayed sentencing and Carrier, represented by a new defense counsel, moved to withdraw his guilty pleas under CrR 4.2(f).
On February 10, 2006, the trial court held a hearing on Carrier's motion to withdraw his guilty pleas. Carrier and his original defense counsel testified at the hearing. Carrier testified that defense counsel informed him that the maximum sentence for count IV was 12 months and that he thought the plea agreement for count I noted the State would pursue a "lite" sentence, not a "life" sentence. RP (Feb. 10, 2006) at 30.
Carrier's original defense counsel said that he explained to Carrier the standard range for count IV was 60 months, told Carrier that if he pleaded guilty to count I or II he could receive a life sentence without parole, and that Carrier decided to plead guilty to count I because he did not "want to put the victim through the process any further." RP (Feb. 10, 2006) at 53. The trial court found that there was a "serious credibility problem" with Carrier's testimony and denied his motion to withdraw his guilty pleas. RP (Feb. 10, 2006) at 69.
After the trial court denied the motion to withdraw Carrier's pleas, his new defense counsel argued that Carrier was not a persistent offender under former RCW 9.94A-.030(32)(b)(i)(A) (2004) because his indecent liberties conviction was not comparable to first degree child molestation, a "most serious" offense for purposes of the persistent offender law. The crux of Carrier's argument was that the trial court could not use his indecent liberties conviction to classify him as a persistent offender because nothing in his indecent liberties guilty plea indicated that the victim was not his spouse, despite the fact that the victim was his seven year old daughter. The trial court concluded that Carrier was a persistent offender because his 1981 indecent liberties conviction was comparable to a charge of first degree child molestation under the 2004 statute.
Based on the trial court's finding that Carrier was a persistent offender, it sentenced him to life imprisonment without the possibility of parole on count I, 60 months' confinement for count IV, and 12 months' confinement for count V, all to run concurrently. Carrier appeals.
ANALYSIS Motion to Withdraw Guilty Plea
First, Carrier argues that the trial court abused its discretion in denying his motion to withdraw his guilty pleas for counts I and IV. He argues that he did not enter his pleas knowingly, voluntarily, or intelligently because he did not understand the sentencing repercussions of the pleas.
We review the denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
Carrier is entitled to withdraw his guilty pleas only if he establishes that "withdrawal is necessary to correct a manifest injustice." CrR 4.2(f); See State v. Taylor, 83 Wn.2d 594, 596-97, 521 P.2d 699 (1974). Manifest injustice is "an injustice that is obvious, directly observable, overt, not obscure." Taylor, 83 Wn.2d at 596. An involuntary plea is an example of a manifest injustice. Taylor, 83 Wn.2d at 597. Many safeguards precede a plea of guilty, so the manifest injustice standard is demanding. Taylor, 83 Wn.2d at 596.
A defendant's signature on a plea agreement is "strong evidence" that it is voluntary. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). Additionally, when the trial court judge has inquired into the voluntariness of the plea on the record, the presumption of voluntariness is "well nigh irrefutable." State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982).
Carrier argues he did not knowingly, voluntarily, or intelligently enter his guilty plea for either count I or count IV because he did not understand the potential sentences for either count. But he signed a plea agreement that clearly stated the standard sentencing range for count IV was 60 months and that the State "may recommend any sentence authorized by law, up to [the] statutory maximum." CP at 14. He also signed a plea agreement for count I that showed the State recommended and intended to pursue a sentence of life without parole.
Although Carrier testified his original defense counsel told him that the maximum standard range for count IV was 12 months, counsel testified that he explained to Carrier the standard range for count IV was 60 months. The trial court did not find Carrier's testimony credible, and we will not disturb the trial court's credibility ruling. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Although he disputed the recommended sentences on both plea agreements, both agreements sufficiently informed him of the maximum possible sentence he could receive if he pleaded guilty to either count. See, e.g., State v. Christen, 116 Wn. App. 827, 832, 67 P.3d 1157 (2003) (when entering plea, defendant informed that his standard range could go up or down based on additional criminal history, so he assumed this risk and could not later withdraw his plea).
Additionally, the trial court engaged in a colloquy with Carrier when he entered both pleas. When the trial court inquired about whether he entered his plea for count IV voluntarily, he told the court he (1) understood the standard range sentence to be 60 months, (2) read and understood the plea agreement, and (3) entered his plea voluntarily.
The trial court also inquired if Carrier entered his plea for count I voluntarily and if he understood the State's sentencing recommendation and the possibility of receiving a life sentence without parole for the charge. Carrier told the court that he (1) had read the plea agreement for count I with his counsel, (2) understood the plea agreement, (3) understood the possibility of receiving a life sentence without the possibility of parole, and (4) voluntarily pleaded guilty. The trial court acknowledged that Carrier disputed his standard range sentence on both counts based on the classification of his previous indecent liberties conviction, and it sufficiently informed him of a guilty plea's sentencing repercussions for either count. Accordingly, Carrier's voluntariness in entering both pleas is "well nigh irrefutable." See Perez, 33 Wn. App. at 262.
Carrier does not establish that withdrawal of his guilty pleas was necessary to correct a manifest injustice. Accordingly, the trial court did not abuse its discretion in denying his motion to withdraw his pleas.
Ineffective Assistance of Counsel
Carrier further argues that he received ineffective assistance of counsel when entering his pleas, claiming that his counsel failed to advise him of the sentencing consequences of his plea on count I because there was no "realistic possibility" that the trial court would not impose life without parole. Appellant's Br. at 20.
The test of ineffective assistance of counsel is whether (1) the defense counsel's performance fell below an objective standard of reasonableness and (2) this deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "In the context of a guilty plea, the defendant must show that his counsel failed to `actually and substantially [assist] his client in deciding whether to plead guilty.'" State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997) (quoting State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (internal quotations omitted)). The defendant must also show that but for counsel's failure to advise him adequately, he would not have pleaded guilty. McCollum, 88 Wn. App. at 982. We review an ineffective assistance of counsel claim with a strong presumption that defendant received competent representation. McCollum, 88 Wn. App. at 982.
Carrier claims that his defense counsel "failed to inform him [of]and affirmatively misrepresented both the applicable law and consequences of [his] guilty plea to Count I." Appellant's Br. at 22. But the record shows that defense counsel adequately advised Carrier that he could receive a sentence of life imprisonment without the possibility of parole if he pleaded guilty to count I. Defense counsel informed Carrier that there were "some questions to be raised about [his] prior criminal history," but defense counsel never gave Carrier an estimate as to whether he would succeed in arguing that his indecent liberties conviction did not qualify him as a persistent offender. RP (Feb. 10, 2006) at 57. Carrier told the court he understood he could potentially receive a sentence of life without the possibility of parole if he was not successful in disputing his classification as a persistent offender and, with that understanding, he pleaded guilty to count I. Accordingly, he fails to overcome the presumption that defense counsel provided constitutionally adequate assistance.
Affirmed.
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.
Quinn-Brintnall, J. and Penoyar, J. concur.