Opinion
No. 60667-1-I Linked w/ 60703-1-I
Filed: February 9, 2009 UNPUBLISHED OPINION
In these linked cases, Marlow Eggum challenges the trial court's decision to deny his motion to collaterally attack the February 7, 2005 judgment and sentence for one count of felony stalking, and his motion to collaterally attack the January 24, 2007 judgment and sentence for two counts of felony stalking and one count of felony harassment.
As to the February 7, 2005 judgment and sentence, because we reject the State's contention that Eggum's amended motion to withdraw his guilty plea was a separate collateral attack, we conclude the trial court abused its discretion in dismissing his motion. However, we affirm the dismissal on the alternative grounds that Eggum's unsupported assertions are insufficient to support his motion. In addition, because the trial court did not address the merits of Eggum's motion, we conclude he was not entitled to appointed counsel.
As to the January 24, 2007 judgment and sentence, because Eggum cannot challenge the exceptional sentence that he agreed to as part of his plea agreement, we affirm the exceptional sentence based on the stipulated aggravating factors. And finding no merit to the issues raised in the statement of additional grounds, we affirm.
February 7, 2005 Judgment and Sentence
Marlow Eggum was charged with one count of stalking Janice Gray, his ex-wife, in 2004. On February 7, 2005, he pleaded guilty as charged. Because Eggum had a previous stalking conviction, the standard range sentence was 6-12 months. However, based on the plea agreement, the court sentenced Eggum to an exceptional sentence down of three months for time served.
Whatcom County Superior Court Case No. 04-1-00500-3; RCW 9A.46.110(1)(a).
In January 2006, Eggum submitted a "Motion to Change Alford Plea Entered" by mail to Whatcom County Superior Court. The Court Clerk rejected the motion because it was on oversized paper. Eggum's attorney in another case noted Eggum's motion to withdraw the guilty plea for a hearing on May 9, 2006.
At the May 9 hearing, the court addressed the question of whether the motion was timely filed. Eggum and the attorney described Eggum's efforts to properly file the motion. They argued that even though the Clerk rejected the motion because it was on oversized paper, the motion was received on February 3, 2006. The court ruled "in the greater interest of justice" that Eggum's motion to withdraw his guilty plea was timely filed on February 3, 2006.
The State moved for a continuance of the hearing on the motion to withdraw the guilty plea. The State asserted that without a transcript of the plea hearing, it was not prepared to address the merits of Eggum's motion. Eggum opposed a continuance and argued that he was entitled to withdraw his guilty plea on the grounds that the State had breached the agreement to return property that was seized. The court granted the continuance and declined to address the motion on the merits: "What you are trying to do is address all of the factors concerning and resolving around your motion to withdraw the plea and we are going to hear that a different day. I don't want to hear this now. The matter wasn't filed properly."
Over a year later, Eggum received a copy of the transcript of the plea hearing. On August 15, 2007, Eggum filed a 13-page "Motion / Withdraw of Plea Amendment, Request for Transport for Trial." Although Eggum raised additional issues in the amended motion, the crux of Eggum's argument was that he was entitled to withdraw his guilty plea because the State had breached the plea agreement by not returning seized property. Based on the court's ruling at the May 2006 hearing, Eggum requested a hearing on his motion to withdraw his guilty plea.
The court entered an order dismissing Eggum's amended motion to withdraw his guilty plea as barred by the one year time limit under RCW 10.73.090.
RCW 10.73.090 imposes a one year limit on collateral attacks on a judgment and sentence, subject to several exceptions in RCW 10.73.100.
On appeal, Eggum asserts that the trial court abused its discretion in dismissing his amended motion after finding the original motion to withdraw his guilty plea was timely. The State concedes that Eggum's original motion to withdraw his guilty plea was timely, but argues that the amended motion was a separate untimely collateral attack on his February 2005 judgment and sentence. In the alternative, the State argues Eggum's amended motion fails to comply with the requirements of CrR 7.8(c).
Eggum also assigns error to the court's finding that he had not shown that any of the exceptions in RCW 10.73.100 apply. Because Eggum does not support this assignment of error with argument, consideration is waived on appeal. RAP 10.3(a)(6); Bercier v. Kiga, 127 Wn. App. 809, 824, 103 P.3d 232 (2004).
The State also contends that Eggum did not have permission to amend his original motion, but the record does not show that the trial court dismissed his amended motion on that basis.
We review a trial court's denial of a collateral motion to withdraw a guilty plea for abuse of discretion. State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653 (2001). The court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
Because the crux of Eggum's argument in his amended motion was the same argument he attempted to make during the May 6, 2006 hearing in support of his original motion, we reject the State's argument that the amended motion was a separate collateral attack on his February 2005 judgment and sentence. However, we affirm on an alternative ground.
In a collateral attack on a judgment and sentence, unsupported assertions are not sufficient to carry the defendant's burden of establishing the facts necessary in order to schedule a hearing on a motion to withdraw a guilty plea. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Eggum's unsupported self-serving assertions that his plea agreement is involuntary do not overcome the evidence in the record that Eggum's plea was knowing, intelligent, and voluntary.State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984).
Although Eggum alleges that the State promised to return seized property, there is no such promise in the plea agreement or in the record. We affirm the trial court's decision to dismiss Eggum's amended motion to withdraw his guilty plea on the alternative ground that Eggum did not meet his burden of setting forth facts that entitled him to relief.
As the State argues, a court can also deny a collateral motion to withdraw a guilty plea if the motion is not supported by statements signed under penalty of perjury. State v. Forest, 125 Wn. App. 702, 706-07, 105 P.3d 1045 (2005).
Eggum also argues that the court erred in denying his motion for appointed counsel to support his original motion to withdraw his guilty plea. A defendant is constitutionally entitled to appointed counsel in all critical stages of a criminal proceeding. State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005). Eggum relies on State v. Harell, 80 Wn. App. 802, 911 P.2d 1034 (1996), to argue that because his motion to withdraw his guilty plea was a critical stage, he was entitled to appointed counsel. But Harell involved a defendant's motion to withdraw a guilty plea before judgment, not a collateral attack.Harell, 80 Wn. App. at 803-04. A defendant seeking to withdraw a guilty plea in a collateral attack is entitled to appointed counsel only if the court determines that the motion establishes grounds for relief.Robinson, 153 Wn.2d at 695-97. We reject Eggum's contention that the court ruled that a full evidentiary hearing on his motion was warranted. While the court ruled Eggum's motion was timely filed, the court expressly declined to consider the motion on the merits.
January 24, 2007 Judgment and Sentence
On July 20, 2005, the State charged Eggum with one count of felony stalking his ex-wife Gray and one count of felony stalking her friend Jerry Hemple. In the First Amended Information, the State charged Eggum with a total of 12 counts of stalking, harassment, and violation of a no contact order, and also provided notice of its intent to seek an exceptional sentence.
Whatcom County Superior Court Case No. 05-1-01094-3.
As part of a plea agreement with Eggum, the State filed a Fourth Amended Information on January 24, 2007. The Fourth Amended Information charged Eggum with two counts of felony stalking as to Gray and Hemple and one count of felony harassment as to Gray. The standard range sentence was 15-20 months for each of the two stalking counts, and 9-12 months for the harassment count. In the Statement of Defendant on Plea of Guilty, Eggum agreed to an exceptional sentence.
I have entered into a plea agreement with the State. In exchange for my pleading guilty as stated herein, the state makes the following recommendation to the judge: The defendant shall serve 72 months with credit for time served since June 3, 2005 for COUNT: I, 72 months with credit for time served starting on 6/3/2005 for COUNT: II, 72 Months with credit for time served starting on 6/3/2005, for COUNT: III, confinement in the custody of the Dept. of Corrections,
. . . To clarify time to serve: The defendant shall receive an exceptional sentence on all three counts up to 24 months on each. Each of the three counts shall run consecutively to a total of 72 months. The defendant shall receive credit for time served with his incarceration beginning on 6/3/2005. The estimated number of days of credit is 601 days. This time reflects an exceptional sentence above. . . .
Eggum agreed in the Statement of Defendant on Plea of Guilty that "[t]he judge may . . . impose an exceptional sentence above the standard range if the State and I stipulate that justice is best served by imposition of an exceptional sentence. . . ."
Based on the parties' agreed recommendation in the plea agreement, the court sentenced Eggum to an exceptional sentence of 24 months for each count, to be served consecutively for a total of 72 months with credit for about 600 days served, including about 270 days for violating the conditions of his release in the 2005 judgment and sentence. The court expressly found that "[Eggum] and the state stipulate that justice is best served by imposition of the exceptional sentence ABOVE the standard range and the court finds the exceptional sentence furthers and is consistent with the interests of justice and the purposes of the sentencing reform act." Eggum did not object to the court's finding.
On August 15, 2007, Eggum filed a pro se motion seeking both to withdraw his guilty plea and challenging the exceptional sentence imposed by the court. The court denied Eggum's motion on the grounds that he "does not present adequate grounds to entertain a CrR 7.8 motion to withdraw guilty plea."
Eggum's motion only challenged the validity of the stalking count as to Hemple.
On appeal, Eggum does not challenge his guilty plea. Eggum argues that the court erred in imposing an exceptional sentence by relying on impermissible aggravating circumstances and seeks remand for resentencing.
Our holding in State v. Poston, 138 Wn. App. 898, 909, 158 P.3d 1286 (2007), review denied, 163 Wn.2d 1016, 180 P.3d 1291 (2008), controls. In Poston, the defendant, Poston, pleaded guilty and agreed to the State's recommended exceptional sentence, which the court imposed.Poston, 138 Wn. App. at 901-02. On appeal, Poston challenged his exceptional sentence, but declined to challenge his plea agreement. Poston, 138 Wn. App. at 900. We held that a defendant who agrees to an exceptional sentence cannot challenge the validity of the exceptional sentence without challenging the entire plea agreement.Poston, 138 Wn. App. at 900.
Eggum concedes that he agreed to the length of his exceptional sentence, but argues that Poston is distinguishable. RCW 9.94A.535 requires the court to find "substantial and compelling reasons" to justify an exceptional sentence. In Poston, the trial court found that Poston stipulated to "substantial and compelling reasons" to justify his exceptional sentence. Poston, 38 Wn. App. at 901. The record does not support Eggum's claim that he did not stipulate to an exceptional sentence. A stipulation to an exceptional sentence is a sufficient aggravating circumstance to uphold an exceptional sentence. RCW 9.94A.535(2)(a); State v. Dillon, 142 Wn. App. 269, 276, 174 P.3d 1201 (2007), review denied, 164 Wn.2d 1012, 195 P.3d 87 (2008). Based on Eggum's stipulation, he cannot challenge the exceptional sentence he agreed to in his plea agreement without challenging the entire plea agreement. Dillon, 142 Wn. App. at 276.
Statements of Additional Grounds
Eggum contends the two counts of felony stalking violate double jeopardy. Eggum also contends his January 24, 2007 guilty plea to two counts of felony stalking as to Gray and Hemple and one count of felony harassment as to Gray was invalid on the grounds of ineffective assistance of counsel. In addition, Eggum challenges the imposition of the domestic violence evaluation and no contact order.
Eggum makes a number of other arguments that were either not raised below or are based on documents that were not previously submitted. Our review is limited to the record and the issues raised below. State v. Gaut, 111 Wn. App. 875, 881-82, 46 P.3d 832 (2002). We grant the State's motion to strike the documents Eggum submits for the first time.State v. McFarland, 127 Wn.2d 322, 335, 338, 899 P.2d 1251 (1995).
Eggum contends that the two felony stalking convictions violate double jeopardy by punishing him twice for the same statutory unit of prosecution. We disagree. Eggum was charged with two separate counts of felony stalking as to two different victims. If a defendant violates the same statute by committing different acts against different victims, double jeopardy is not implicated. State v. Sarausad, 109 Wn. App. 824, 852-53, 39 P.3d 308 (2001). The felony stalking statute, RCW 9A.46.110(1), clearly proscribes intentionally stalking an individual and placing "the person" in fear that "a reasonable person in the same situation would experience." RCW 9A.46.110(1)(b). Here, the affidavit of probable cause in support of the plea sets forth facts supporting the separate charges of felony stalking of Gray and Hemple.
Below, Eggum argued that his attorney coerced him to enter the January 2007 plea agreement. On appeal, Eggum makes the same argument on the grounds of ineffective assistance of counsel.
Due process requires a guilty plea to be knowing, intelligent, and voluntary. State v. Jamison, 105 Wn. App. 572, 592, 20 P.3d 1010 (2001). A plea is voluntary if the defendant is informed of the direct consequences of the plea. Jamison, 134 Wn. App. at 592. A defendant's admission to reviewing, understanding, and signing a guilty plea creates a strong presumption that the plea was voluntary. State v. Smith, 134 Wn.2d 849, 853, 953 P.2d 810 (1998).
Here, the plea statement indicates Eggum was clearly informed of the direct consequences of his plea, and the plea was knowing, intelligent, and voluntary. During the plea colloquy, Eggum's attorney also informed the court that he had spent time with Eggum going over the plea. Eggum said that no one had threatened or coerced him into pleading guilty, that he was pleading guilty because of the plea offer, and he was doing so freely and voluntarily. Eggum also told the court that he did not have any questions about the guilty plea. Because the record shows Eggum's plea was knowing, intelligent and voluntary, his ineffective assistance of counsel claim fails.
We also reject Eggum's challenges to the mandatory domestic violence evaluation and no contact order that the court imposed in the 2007 judgment and sentence. Like his exceptional sentence, Eggum agreed to the State's recommendation of these sentencing conditions and he cannot challenge them without challenging his entire plea agreement. State v. Ermels, 156 Wn.2d 528, 540-41, 131 P.3d 299 (2006).
A commissioner of this court ruled that this pa Eggum's prior request for "Withdrawal and Dismissal", his proposed order regarding "LFO Payments", and his "Notice of Appeal and Motion for Discretionary Review, Appointment of New Appellate Counsel." We adhere to the previous decision of a three judge panel denying Eggum's motion to modify the commissioner's decision denying Eggum's motion to dismiss and appoint new appellate counsel. Likewise, we need not address Eggum's proposed order regarding legal and financial obligations.
We affirm.