Opinion
Nos. 36118-3-II; 36508-1-II.
July 29, 2008.
Appeals from a judgment of the Superior Court for Clark County, No. 05-1-02281-7, John F. Nichols, J., entered February 22, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
John Alphonse Fisher appeals from the trial court's denial of his motion to withdraw guilty plea to two counts of second degree assault with a deadly weapon enhancement on each count and a stipulated exceptional sentence of 48 months total confinement. We affirm the trial court's denial.
FACTS
On June 15, 2006, Fisher pleaded guilty to a second amended information charging him with two counts of second degree assault with a deadly weapon enhancement on both counts. Fisher agreed to a stipulated exceptional sentence of 48 months' confinement.
Referencing the plea form, the trial court engaged Fisher in a standard plea colloquy to ensure he understood the consequences of his guilty plea. Fisher's attorney, Matthew Hoff, was present along with the deputy prosecutor. Upon finishing the colloquy, the trial court accepted Fisher's plea and sentenced him to 12 months' confinement for each of the two second degree assault convictions to run consecutively, with a deadly weapon enhancement of 12 months on each of the underlying two convictions, resulting in 48 months' total confinement.
Two months later, on August 15, 2006, the Department of Corrections (DOC) filed a letter with the trial court, requesting amendment and clarification of Fisher's judgment and sentence. DOC indicated that, although the sentencing data in section 2.3 of Fisher's judgment and sentence reflected a 12-month deadly weapon enhancement on counts 1 and 2, section 2.1 did not include a special verdict/finding regarding the enhancement of Fisher's convictions under counts 1 and 2. DOC also interpreted section 4.5 of the judgment and sentence to reflect only 48 months' concurrent confinement ordered on each count. Due to these inconsistencies in the judgment and sentence, DOC requested the trial court to clarify whether the enhancement portion of Fisher's sentence was valid.
On February 22, 2007, the trial court addressed DOC's request in a hearing. Hoff, the deputy prosecutor, and the trial court agreed that the original judgment and sentence should have included a deadly weapon enhancement finding on counts 1 and 2. Accordingly, they agreed to clarify section 4.5 of the judgment and sentence to indicate 12 months' confinement on both second degree assault counts, plus 12 months' confinement for each of the two deadly weapon enhancements to run consecutively, for a total of 48 months' confinement. Fisher, however, did not agree. He interpreted DOC's letter to mean that he would be required to serve 60 months' confinement as opposed to 48 months' confinement. Fisher sought to withdraw his guilty plea.
Hoff indicated that he had a different recollection of Fisher's plea agreement and the events surrounding that agreement. Because of this, Hoff refused to assist Fisher in withdrawing his plea. The trial court agreed that Hoff and Fisher had a conflict based on their differing understandings of the original sentence. To remedy this predicament, the trial court appointed Fisher a new attorney to assist him in a future motion to withdraw his plea. But the trial court resentenced him at that time.
The trial court signed the State's order correcting judgment and sentence. Hoff agreed to the order, but Fisher did not. Through the order, the trial court modified the original judgment and sentence by adding deadly-weapon findings to both second degree assaults, counts 1 and 2. In addition, it clarified that the sentence on each second degree assault count was 12 months. Thus, the order specified that Fisher's total sentence was 48 months. Fisher appealed the modification of his judgment and sentence on March 23, 2007.
Then on June 21, 2007, with the assistance of his new attorney, Fisher sought to withdraw his original plea. The trial court entertained briefing and argument from the State, Fisher's new attorney, and from Fisher himself. But ultimately it denied Fisher's motion to withdraw his plea. Thereafter, Fisher timely filed an amended notice of appeal, requesting that this court also consider the trial court's order denying his motion to withdraw his plea. Fisher filed an appeal of the modification and an appeal of the motion to withdraw plea under separate cause numbers; we consolidated them for review.
ANALYSIS I. Effective Assistance of Counsel
Fisher contends that he received ineffective assistance of counsel because Hoff refused to assist him in withdrawing his plea during the resentencing hearing due to a conflict of interest. He implies that because the trial court clarified his judgment and sentence rather than inquiring further into the conflict of interest at the resentencing hearing, we must reverse his convictions. This argument fails.
To establish ineffective assistance of counsel, Fisher must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Fisher must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 706, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, Fisher must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335.
Here, Fisher has failed to establish that his counsel's performance was either deficient or prejudicial during the resentencing. At the resentencing hearing, Hoff plainly stated on the record that he and Fisher had differing recollections of the circumstances surrounding the original plea agreement. It was for that reason that Hoff refused to assist Fisher in withdrawing his plea. The trial court immediately appointed a new attorney to represent Fisher on the motion to withdraw the plea. Thus, Fisher had an opportunity, and in fact did, file a motion to withdraw his plea at a later date, with the assistance of a new attorney. Accordingly, there was no conflict of interest when Fisher filed and argued his motion to withdraw the plea agreement.
Moreover, Hoff's performance was not deficient during the actual resentencing. The purpose of the hearing was limited and specific: DOC requested that the trial court clarify whether the deadly weapon enhancements on counts 1 and 2 were valid. Hoff stated on the record that he was there to clarify the original plea. The record contains no evidence that Hoff's performance during the resentencing was deficient or affected the outcome of sentencing in any way. Hoff merely stated his recollection of the plea during resentencing. Hoff's performance was neither deficient, nor did his performance result in any prejudice to Fisher. Thus, contrary to Fisher's contention, he was not denied effective assistance of counsel during his resentencing hearing or thereafter. See McFarland, 127 Wn.2d at 335.
Again, during the resentencing hearing, the trial court appointed different counsel to assist Fisher in withdrawing his plea.
II. Fisher's Motion to Withdraw Guilty Plea
Additionally, in his statement of additional grounds (SAG), Fisher contends that the trial court erred when it denied his motion to withdraw his guilty plea. Specifically, he contends that the trial court should have granted his motion to withdraw the plea because he did not enter it knowingly, voluntarily, and intelligently.
RAP 10.10.
An appellate court reviews a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). A trial court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds. Olmsted, 70 Wn.2d at 119.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). Likewise, CrR 4.2(d) mandates that the trial court not accept a guilty plea without first determining that a criminal defendant has entered into the plea "voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." See also State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (stating that for a plea to be knowing and voluntary, a criminal defendant must be informed of all direct consequences of his plea). A defendant does not knowingly make a guilty plea when he bases that plea on misinformation regarding sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988).
On review, the critical inquiry is whether a defendant was properly informed of the consequences of his guilty plea at the time he entered into the plea agreement. When he entered into that agreement knowingly and voluntarily, any sentencing error by the trial court does not invalidate his plea. See In re Pers. Restraint of Williams, 111 Wn.2d 353, 362, 759 P.2d 436 (1988). A strong presumption that a plea is voluntary exists when a defendant completes a plea agreement and admits to reading, understanding, and signing that plea agreement. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). "When [a] judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable." State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982).
Notwithstanding this presumption of validity, CrR 4.2(f) provides that "[t]he 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." A manifest injustice is obvious and directly observable, an overt injustice, and not an obscure one. State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Manifest injustice includes instances where (1) effective assistance of counsel was denied, (2) the plea was not voluntary, (3) the plea agreement was not honored by the prosecution, or (4) the plea was not ratified by the defendant. Taylor, 83 Wn.2d at 597.
As discussed above, Fisher was afforded effective assistance of counsel during the resentencing hearing. Likewise, he was afforded effective assistance of counsel at the time he pleaded guilty and the trial court originally sentenced him. During the June 15, 2006 sentencing hearing, defense attorney Hoff, the deputy prosecutor, and trial court noted that the plea was a result of extensive negotiations. And Fisher received a substantial benefit by pleading guilty to two counts of second degree assault with a deadly weapon enhancement on each count. Specifically, he escaped prosecution for his original charges including first degree assault and kidnapping. This was a direct result of Hoff's negotiations with the State on Fisher's behalf. Furthermore, although Fisher argues that his attorney led him to believe his offender score was zero and that although he was pleading to an exceptional sentence of 48 months' confinement, he would only serve 36 months total confinement, there is no evidence in the record to support this argument.
Moreover, the record does not support Fisher's contention that his plea was involuntary. Hoff reviewed the plea agreement with him; the trial court also engaged in the standard colloquy to ensure Fisher understood the ramifications of his plea. During the colloquy, the trial court specifically stated that Fisher's stipulation to the exceptional sentence required consecutive sentences:
Each of these crimes carries with it a maximum term of ten years in prison and a $20,000 fine. Based upon your prior criminal history the standard range for actual confinement on the underlying charge is 12 to 14 months with the enhancements that would run 24 to 26, and that must be served consecutively. Do you understand that?
RP at 4. Fisher answered affirmatively. The trial court also stated:
You do understand that you are pleading guilty to the deadly weapon enhancement? This is a mandatory sentence with regard to that and must run consecutive to any other sentence.
RP at 5. Fisher, again, answered affirmatively. He went on to state that he made his decision to plead freely and voluntarily. And Fisher did not contest the State's oral statement that pleading to the second degree assaults raised his offender score from zero to two. Fisher did, however, speak up on his own to confirm that the no-contact order against the victim be dropped as a result of the plea. In other words, Fisher had an opportunity to contest his plea agreement and/or sentence during the hearing, but he chose not to. He agreed to the plea orally in front of the trial court and in writing when he signed the agreement. And significantly, the prosecution has consistently honored the plea agreement, which Fisher ratified during his sentencing.
The trial court sentenced Fisher in accord with the plea agreement that he entered into freely and voluntarily. He pleaded guilty to two counts of second degree assault, 12 months' confinement on each count, totaling 24 months on the underlying convictions. In addition, Fisher pleaded to weapons enhancements on each of the two second degree assault convictions, totaling 24 months' confinement for the weapons enhancements. Therefore, the total confinement Fisher pleaded to was 48 months, as set forth in the stipulated exceptional sentence. The trial court sentenced Fisher to 48 months' confinement, in accord with his plea agreement.
There is no evidence in the record that withdrawal of Fisher's plea agreement is necessary to correct a manifest injustice. See Taylor, 83 Wn.2d at 597. The trial court did not err when it found that Fisher understood the exceptional sentence stipulating 48 months' confinement. There was no abuse of discretion and it properly denied Fisher's motion to withdraw his plea. See Olmsted, 70 Wn.2d at 119. Because we hold that the trial court properly denied Fisher's motion to withdraw his plea agreement, we do not address the other arguments in the SAG.
Fisher contends that he was not advised of his Sixth Amendment right to have a jury find facts relating to his deadly weapon enhancements. He maintains that this violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). But the trial court did advise Fisher that by agreeing to the plea, he was waiving his Sixth Amendment right to a jury. In addition, Fisher contends that cumulative error rendered his plea involuntary. There was no error, thus we do not address cumulative error.
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 VAN DEREN, C.J. concur.