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State v. Cook

The Court of Appeals of Washington, Division Two
Nov 23, 2004
124 Wn. App. 1022 (Wash. Ct. App. 2004)

Opinion

Nos. 30610-7-II (consolidated with), 30620-4-II

Filed: November 23, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Mason County. Docket No. 02-1-00044-4. Judgment or order under review. Date filed: 06/26/2003. Judge signing: Hon. Toni a Sheldon.

Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.

Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.


Jeffrey W. Cook entered a guilty plea for second degree assault and second degree malicious mischief. He then sought to withdraw this plea under CrR 7.8(b) on the ground that there was newly discovered evidence that rendered the plea unjust. The trial court denied Cook's motion on this ground. Cook now appeals the court's denial of the motion on two new grounds, ineffective assistance of counsel, and involuntary plea.

FACTS

On February 1, 2002, the State charged Jeffrey W. Cook with felony harassment and second degree malicious mischief. Cook entered a diversion program on these offenses, and in doing so, stipulated that there was sufficient evidence to convict him on both charges.

On November 25, 2002, the State charged Cook with second degree assault with a firearm enhancement, felony harassment and felony violation of a court order. These charges were respectively based on his alleged assault on his wife, Linda, violation of the restraining order she had against him, and violation of his diversion program conditions. Based on the new charges, the State sought to revoke Cook's diversion program status for the February offenses. The trial court considered the new charges and the diversion revocation issue together.

The State offered to drop the remaining charges if Cook pleaded guilty to the malicious mischief charge from February and the November assault charge. Cook accepted the plea agreement and entered Alford pleas for second degree malicious mischief and second degree assault without a firearm enhancement.

North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

Cook signed a plea statement on the malicious mischief charge that indicated his plea was voluntary, and indicated that he believed he `could be found guilty of the more serious charge at trial.' 1 Clerk's Papers (CP) at 32. The signed plea statement on the second degree assault charge, indicated that Cook believed `the state has sufficient facts which if believed by the jury could result in more convictions and more time.' 2 CP at 37.

On June 4, 2003, the court read the probable cause statements, discussed the plea agreements with Cook, and Cook indicated his pleas were given freely and voluntarily. The court then accepted Cook's guilty pleas.

On June 19, 2003, Cook filed a motion to withdraw his guilty pleas based on `newly discovered evidence.' 2 CP at 26. Cook alleged that a witness, Terry Adams, saw a woman committing the November assault on his wife. The court denied Cook's motion, stating that the new evidence did not appear relevant to the victim's injuries.

The court sentenced Cook to 90 days on the malicious mischief charge, and nine months on the second degree assault, to run consecutively. Cook timely appealed to this court, and the court consolidated the February and November cases.

ANALYSISI. Motion to Withdraw Guilty Plea

We review a trial court's decision on a motion to withdraw a guilty plea for abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). Under CrR 4.2(f), a defendant may withdraw a plea of guilty `whenever it appears that the withdrawal is necessary to correct a manifest injustice.' CrR 4.2(f) also states that if the motion is filed after a final judgment, it is governed by CrR 7.8. CrR 4.2(f); In re Carlstad, 150 Wn.2d 583, 591, 80 P.3d 587 (2003).

A manifest injustice may occur if counsel's representation was ineffective or if the plea was not knowing, voluntary and intelligent. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000) (citing State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974)). Cook argues both of these deficiencies in this appeal.

But Cook's motion to the trial court to withdraw his pleas was based on CrR 7.8. Cook argued only that the court should allow him to withdraw his pleas because there was `newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.' CrR 7.8(2). Cook offered evidence which he claimed showed that his counsel did not interview Adams before Cook pleaded guilty. But Cook's counsel had information indicating that the assault Adams witnessed was not the assault at issue in Cook's case. Cook further argued that when his counsel interviewed Adams `face to face' after Cook entered his guilty plea, it was clear that Adams was actually referring to the assault to which Cook had pleaded. 1 CP at 24.

The evidence before the trial court was that Adams saw two women drag Linda into their home. Adams then heard `hitting and slapping' noises from inside the residence. Report of Proceedings (RP) at 115. Adams saw Linda came out of the house holding her nose and mouth. But evidence established that Linda's most serious injury was a four inch gash in her forehead, which Adams did not see. Adams was not sure of the exact date of the assault, did not see who was in the house, or how the actual beating took place.

Based on the evidence, the trial court concluded that `[T]his does not appear to be the type of a cut that would have been not visible from the pictures, and it is not something that has been explained by the statement of Mr. Adams.' RP at 115. The court then denied Cook's motion to withdraw his guilty plea.

This court's `scope of review is limited to the trial court's exercise of its discretion in deciding the issues that were raised by the motion.' State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). Cook's challenges on appeal, ineffective assistance of counsel and involuntary plea, were not a part of his motion below. Although we need not, we consider each allegation now in affirming the trial court's decision.

II. Involuntary Plea

Cook contends that because counsel did not disclose all potential exculpatory evidence, he did not knowingly, voluntarily and intelligently enter guilty pleas.

In order to satisfy the due process requirements of the federal and state constitutions, a guilty plea must be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); In re PRP of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987); U.S. Const. amends. V, XIV; Wash. Const. art. I, sec. 3. An Alford plea is valid when it `represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

Before the court accepts a guilty plea, CrR 4.2(d) requires it to first determine that the plea was made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The rule also requires that there be a factual basis for the plea. CrR 4.2(d).

Cook claims that his plea was made without knowledge of the facts supporting his case. But Cook had all of the information available to his counsel at the time of the plea. At the trial court, Cook alleged only that his counsel discovered new information after the pleas. And no evidence indicates that counsel withheld information from Cook, or misinformed Cook of the plea agreement or the consequences.

When a defendant has read and signed a plea statement, it creates a strong presumption that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). But a defendant must also understand the law in relation to the facts. In re PRP of Keene, 95 Wn.2d 203, 209, 622 P.2d 360 (1980).

In this case, Cook signed a separate plea agreement for each charge. The court engaged Cook in a discussion about each charge, the pleas, and the ramifications of the pleas. Cook acknowledged in writing and orally that he was pleading guilty voluntarily. Thus, Cook's guilty plea was voluntarily made with knowledge of the consequences of his plea.

III. Ineffective Assistance of Counsel

Cook also argues that his counsel failed to properly inform him of exculpatory evidence and was therefore ineffective.

An appellate court reviews a claim of ineffective assistance of counsel de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). This court presumes effective assistance, and Cook has the burden to rebut that presumption. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991).

In order to rebut the presumption that counsel was competent, Cook must show: (1) that his counsel's representation was deficient; and (2) he was prejudiced as a result of this deficiency. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

To establish deficient representation, Cook must show that counsel's representation fell below an objective standard of performance. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Representation is not deficient if counsel's actions were tied to a legitimate trial strategy or tactical rationale. McFarland, 127 Wn.2d at 335-36.

Prejudice results where there is a reasonable probability that but for counsel's deficient performance, the outcome would have been different. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). `A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, 466 U.S. at 694.

In the context of guilty pleas, counsel must `actually and substantially' assist a defendant in determining whether to plead guilty, and inform him of all the direct consequences of a guilty plea. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)).

The record indicates that counsel sought evidence that would assist Cook. With the evidence counsel uncovered, he advised Cook that it was unlikely the evidence would persuade a jury. The record also shows that counsel went through the plea agreement and plea forms with Cook, and that Cook understood the ramifications of his guilty plea.

There is no indication that Cook's counsel was deficient in `actually and substantially' assisting Cook in weighing the options of pleading guilty, or explaining the consequences of a guilty plea. Thus, counsel was not ineffective.

Cook raises no issue on appeal that justifies reversal of the trial court's decision to deny his motion to withdraw his pleas. Thus, we affirm.

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.

BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.


Summaries of

State v. Cook

The Court of Appeals of Washington, Division Two
Nov 23, 2004
124 Wn. App. 1022 (Wash. Ct. App. 2004)
Case details for

State v. Cook

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. JEFFREY W. COOK, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 23, 2004

Citations

124 Wn. App. 1022 (Wash. Ct. App. 2004)
124 Wash. App. 1022