Opinion
No. 36237-6-II.
September 3, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 06-1-00370-8, Gordon Godfrey, J., entered April 16, 2007.
David T. Gannon entered guilty pleas on two counts of first degree felony murder pursuant to a plea agreement with the State. The trial court subsequently denied his motion to withdraw his guilty pleas, which he now appeals. We affirm.
Facts are taken in part from the affidavit supporting Gannon's arrest warrant (i.e., statement of probable cause). Gannon admitted the truth of these facts at his guilty plea hearing.
On May 27, 2006, Charles Wilcox went to his parents' residence in Hoquiam to visit. He found the severely beaten body of his stepfather, Vernon Bishop, lying on the living room floor. Wilcox also found his mother, Maxine Bishop, lying in the hallway, still alive, but also severely beaten. The Bishops had sustained their injuries some four to six days before Wilcox's visit. An autopsy later revealed that Vernon had died from blunt force trauma to his head and neck. Maxine Bishop was airlifted to a medical facility, but died from her injuries four days after her son found her. Wilcox also found that his parents' home had been ransacked and personal items, including gold and jewelry were missing. Vernon Bishop had been a trader in gems, gold, and jewelry.
With the discovery of the homicide, police contacted Brannon Morgan. Morgan had been arrested on May 23, 2006, on unrelated outstanding warrants and indicated at that time that he had information regarding a recent home invasion robbery somewhere in Hoquiam. When police interviewed Morgan following the discovery of the Bishop homicide, Morgan told police that Gannon and April Hensley came to his residence earlier in the week of May 22, 2006, while Chuck Daggett was present. Gannon said that he had robbed the "gold guy" that Daggett had told him about and that he "put the guy down." CP at 132. Morgan said that Gannon had zip-lock bags full of jewels, gold jewelry, costume jewelry, and other items.
Police also interviewed Daggett, who corroborated Morgan's description of Gannon's visit to Morgan's apartment. Daggett also recalled that Hensley was upset and crying during the visit. Gannon told Daggett that he obtained the items from the "[g]old [g]uy" and that Gannon told the "[g]old [g]uy" to stay on the floor but he wouldn't. CP at 133. When Gannon started to tell Daggett what he had done, Hensley told Gannon to shut up. Daggett admitted that he was acquainted with Vernon Bishop, and that for the past two years Daggett had sold items to Bishop, acting as a middleman for individuals who wanted to sell stolen property. Daggett also said that a week prior to the discovery of the Bishop homicide, he had sold some coins to Bishop on behalf of Gannon.
Police then arrested and interviewed April Hensley. Hensley told police that Daggett had told her and Gannon that there was a lot of money, gold, and jewelry at the Bishop residence and that it would be a good place to rob. She admitted to police that she and Gannon went to the Bishop residence to rob it. She told officers that she waited at a nearby YMCA while Gannon went to the Bishop residence. After a few minutes she went to the Bishop residence where Gannon gave her a pair of gloves and told her to put them on. She stated that there was blood everywhere. An old man was on the floor mumbling with blood all over his head. An old lady was lying in the hallway with blood all over her. Gannon was rummaging through the cabinets collecting jewelry and other items. Hensley admitted taking wristwatches, rings, and necklaces and removing a ring from Maxine Bishop as she lay in the hallway. When Hensley was arrested, she was wearing a jacket stuffed with jewelry that she admitted was her share of the stolen goods. Bishop family members subsequently identified some of the items as coming from the Bishop residence.
Police then arrested Gannon, who had in his possession several jewelry items, some in small baggies labeled in the same manner as those found at the scene of the homicide. Gannon admitted that he had gone to the Bishop residence, but claimed that he went there to make a deal on a ring and that no one was hurt.
On June 15, 2006, the State filed an information charging Gannon with two counts of first degree felony murder, one count of first degree burglary, and two counts of first degree robbery. On June 15, Gannon appeared in court and was served with a copy of the charging information.
The court also read each charge to Gannon and he acknowledged that he understood them. On June 26, 2006, Gannon was arraigned, and the trial court again read each of the charges to him. Defense counsel acknowledged that the court had properly informed Gannon of the charges and entered a plea of not guilty to each of the five counts.
On October 26, 2006, April Hensley pleaded guilty to reduced charges of two counts of first degree manslaughter and one count of residential burglary. In exchange for the reduced charges, she agreed to testify against Gannon at his trial.
Upon preparing for trial, Gannon's attorney, David Hatch, told Gannon that if the jury believed Hensley, Gannon was "in deep trouble." RP (Apr. 4, 2007) at 108. Hatch discussed the possibility of a plea agreement that, in part, included Gannon getting married in the county jail. Gannon additionally wanted assurances from the State that he could have extended family visits, but Hatch was not able to secure such assurances. Gannon decided to plead guilty anyway.
On March 5, 2007, Gannon appeared at a hearing to change his plea pursuant to a written plea agreement with the State. Defense counsel acknowledged that he had gone through and discussed the plea agreement and statement of defendant on plea of guilty with Gannon, and that he was confident that Gannon was making a knowing, intelligent, and voluntary plea of guilty. In a colloquy with the court, Gannon acknowledged as much, and verified that he understood the rights he was waiving. Gannon then pleaded guilty to counts 1 and 2. The court incorporated the State's probable cause statement and April Hensley's statement on plea of guilty into the record as part of the factual basis for Gannon's plea. Gannon acknowledged that those statements were true. The court then accepted Gannon's guilty plea.
In exchange for Gannon's guilty plea to counts 1 and 2, the State had agreed to drop the remaining counts, to dismiss a separate case involving drug and unlawful possession of firearm charges, and to permit Gannon to get married while in custody at the Grays Harbor County Jail.
Immediately after the court accepted Gannon's plea, a cell phone rang interrupting the proceedings. The phone was in the possession of Barbara Bryson, Gannon's fianc É e. The judge asked that the phone be turned off, it was, and the proceedings continued with defense counsel handing up an order dismissing other charges pursuant to the plea agreement. While this was happening, Bryson got Gannon's attention and "motioned [to him] not to do this." CP at 84. Gannon then asked the court if he could change his plea. Gannon was emotional and the court granted a five-minute recess for him to compose himself and talk with his attorney. During the recess, defense counsel talked with Bryson out of the courtroom. When Bryson returned to the courtroom, she told Gannon that she had been wrong, the plea agreement was a good deal, and that he should take it. When proceedings resumed, Gannon indicated that he wanted to plead guilty. The court engaged Gannon in another colloquy to make sure that Gannon did in fact want to plead guilty. Gannon again pleaded guilty to counts 1 and 2, the court accepted the pleas, and adjourned the proceedings.
Pursuant to the plea agreement, on March 9, 2007, Gannon and Bryson were married at the Grays Harbor County Jail. On March 12, the court received a letter from Barbara Bryson-Gannon asking that Gannon be allowed to withdraw his plea. The court held a hearing that day at which Gannon verified that he wanted to file a motion to withdraw his guilty plea. The court appointed separate counsel for purposes of the withdrawal motion.
The hearing on Gannon's motion to withdraw plea was held on April 4, 2007, at which Gannon, Barbara Bryson-Gannon, and Hatch testified. Gannon acknowledged that Hatch had gone through the plea documents with him and that he understood his rights. But Gannon also testified that Hatch told him that the plea agreement was a "done deal," that Gannon could not change his mind, and that the press was there recording the entire event. RP (Apr. 4, 2007) at 62. He also said that he had lied to the court at his guilty plea hearing, stating that while he understood his rights, he was innocent and that "the law needs to stand back up and go do their job instead of convicting the wrong person." RP (Apr. 4, 2007) at 63. On cross-examination, Gannon admitted that Hatch never told him that he had to plead guilty, nor did Hatch threaten Gannon or promise him anything to make him plead guilty.
Hatch testified after Gannon waived his attorney-client privilege and after Hatch was permitted to withdraw as Gannon's counsel.
Barbara Bryson-Gannon testified that she was crying and upset when she talked with Hatch during the recess at Gannon's guilty plea hearing. She said that Hatch directed her to write Gannon a note saying that she had panicked, that Gannon had to go through with the plea agreement, that the press was there, and that "it was too late." RP (Apr. 4, 2007) at 84.
Hatch testified that because of the media coverage of the guilty plea hearing he had practical concerns about going forward with trial if Gannon changed his plea. He said, however, that he never told Gannon that he had to plead guilty, or that he could not change his plea. Hatch also testified that at Gannon's direction he spoke with Bryson during the recess about why she was signaling Gannon not to plead guilty. Hatch said that he understood Bryson was concerned that Gannon's decision to plead guilty involved getting married to her rather than the merits of his case. Bryson believed that she was the plea deal, and she did not want Gannon to plead guilty just for her. Hatch acknowledged that he asked Bryson to write Gannon a note and instructed her to include several points. He indicated that he did so because time was short and she was having trouble focusing. When Hatch and Bryson returned to the courtroom, Hatch gave Bryson's note to Gannon, and Bryson also spoke with Gannon encouraging him to take the plea, which he did.
After hearing the testimony, the trial court denied Gannon's motion to withdraw his plea. The court found Hatch's testimony was credible, Gannon and Barbara's testimony was not credible, Gannon's guilty plea was voluntary and was made after he was fully informed of its consequences, and that Gannon failed to show any manifest injustice warranting withdrawal of the guilty plea.
On April 16, 2007, the trial court sentenced Gannon to 868 months' confinement. Gannon filed a timely notice of appeal challenging the trial court's denial of his motion to withdraw his guilty plea.
Discussion
Essential Elements of Felony Murder
Gannon first contends that his plea was not voluntary. He argues that for a plea to be voluntary, the record must show he was informed of the critical elements of the offense with which he was charged. He specifically argues that his plea of guilty to the two counts of felony murder was invalid because he was not informed of the mens rea and other elements of the predicate offenses upon which each felony murder charge was based. We disagree.
For the first time, Gannon challenges the sufficiency of the information. His argument hinges on the fact that the felony murder counts do not list the elements of the predicate felony offenses. An information sufficiently charges a crime if it apprises accused persons of the accusations against them with reasonable certainty. State v. Bryant, 65 Wn. App. 428, 438, 828 P.2d 1121, review denied, 119 Wn.2d 1015 (1992). The focus is whether all essential elements of an alleged crime have been included in the charging document. Bryant, 65 Wn. App. at 438. In the felony murder context, while the underlying crime is an element of felony murder, the defendant is not actually charged with the underlying crime. Rather, the underlying crime functions as a substitute for the mental state that the State would otherwise be required to prove. Bryant, 65 Wn. App. at 438. Relevant here, "Washington courts have long held that the elements of the underlying felony are not elements of the crime of felony murder." Bryant, 65 Wn. App. at 438 (citing State v. Anderson, 10 Wn.2d 167, 180, 116 P.2d 346 (1941); State v. Ryan, 192 Wash. 160, 164-65, 73 P.2d 735 (1937); State v. Fillpot, 51 Wash. 223, 228, 98 P. 659 (1908)). Accordingly, the elements of the underlying felony "need not be pleaded." Bryant, 65 Wn. App. at 438. See also State v. Medlock, 86 Wn. App. 89, 101, 935 P.2d 693, review denied, 133 Wn.2d 1012 (1997) (elements of underlying felony are not elements of the crime of felony murder).
Gannon relies on State v. Gamble, 154 Wn.2d 457, 466, 114 P.3d 646 (2005), and State v. Osborne, 102 Wn.2d 87, 684 P.2d 683 (1984), in arguing that the elements of the predicate felony are essential elements of which he was not informed. Neither case assists him. In Gamble, the court addressed the requirements for a lesser-included offense instruction; specifically, whether manslaughter is a lesser-included offense of felony murder. Gamble, 154 Wn.2d at 462. In that context, the court compared the elements of manslaughter and felony murder (i.e., the legal prong of the lesser-included offense test articulated in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). See Gamble, 154 Wn.2d at 463. Gamble is simply too factually different to be helpful here.
Nevertheless, Gannon relies on Gamble's parenthetical citation to State v. Wanrow, 91 Wn.2d 301, 311, 588 P.2d 1320 (1978), for the proposition that "elements of the predicate felony are `necessary' elements of felony murder." See Gamble, 154 Wn.2d at 466 (citing Wanrow, 91 Wn.2d at 311). But that does not mean that such elements must be separately listed in the information charging felony murder, and Wanrow does not so hold. See Wanrow, 91 Wn.2d at 311. Osborne also does not require a different result. There, the court held that due process requires that a defendant be apprised of the "nature of the offense" in order for a guilty plea to be accepted as knowing, intelligent, and voluntary. Osborne, 102 Wn.2d at 92-93. At a minimum, the defendant would need to be aware of the acts and the requisite state of mind in which they must be performed to constitute a crime. Osborne, 102 Wn.2d at 93. "The state of mind necessary to prove a felony murder is the same state of mind necessary to prove the underlying felony." Osborne, 102 Wn.2d at 93. In Osborne, the prosecutor read the information charging second degree felony murder to the petitioner at the plea hearing. Like the felony murder counts at issue here, the information identified the predicate felony, but did not list the elements thereof. See Osborne, 102 Wn.2d at 94. The Osborne court held that the petitioners were "made sufficiently aware of the nature of the charge against them." Osborne, 102 Wn.2d at 95. This was because (1) the record showed that the petitioners were aware of the State's evidence against them, (2) the common understanding of the listed predicate felony of "assault" included knowing and purposeful conduct, and (3) the petitioners demonstrated that they understood the significance of the element of knowledge by reference to a contemplated defense that the victim's injuries had resulted from an accidental fall. Osborne, 102 Wn.2d at 94-95.
In Wanrow, the court rejected petitioner's argument that the felony murder rule presumed an intent to kill: "The intent necessary to prove the felony-murder is the intent necessary to prove the underlying felony. That intent must be proved by the State as a necessary element of the crime, and the question whether it was present is presented to the jury." Wanrow, 91 Wn.2d at 311.
Similarly here, Gannon was aware of the evidence against him. At his plea hearing, he admitted that the probable cause statement and April Hensley's statement on plea of guilty that implicated him were true. Also, the common understanding of burglary and/or robbery, the predicate felonies listed in counts 1 and 2, embraces intentional conduct. Moreover, prior to accepting the plea deal, Gannon maintained that he had gone to Bishop's home to "`make a deal'" on a ring, and that "no on[e] [had been] hurt." See CP at 134. As in Osborne, this explanation demonstrated an understanding of the gravamen of the charges that Gannon faced, including the intentional conduct encompassed in the predicate offenses. Osborne does not require a different result.
The common understanding of "burglary" is "[t]he crime of breaking into and entering a building with intention to steal." See Webster's II New College Dictionary 148 (2001). The common understanding of "robbery" is "[a]n act or instance of illegally taking another's property by the use of intimidation or violent force." See Webster's II, at 958.
Gamble, Wanrow, Osborne, Medlock, and Bryant all indicate that, at trial, the State must prove the elements of the predicate felony to prove the offense of felony murder. See Gamble, 154 Wn.2d at 466; Wanrow, 91 Wn.2d at 311 (intent necessary to prove felony murder is the intent necessary to prove the underlying felony, and State must prove that intent as a necessary element of the crime); Osborne, 102 Wn.2d at 93 (State could prove underlying assault by alternative means); Medlock, 86 Wn. App. at 101 (predicate felony is a substitute for the mental state which the prosecution would otherwise be obligated to establish); Bryant, 65 Wn. App. at 438 n. 11 (at trial, State must prove elements of underlying felony beyond a reasonable doubt). Nevertheless, as to the sufficiency of the information charging felony murder, the charges do not have to set forth the elements of the predicate felonies. Medlock, 86 Wn. App. at 101-02. Bryant, 65 Wn. App. at 438. Accordingly, the information here was sufficient.
The State also argues that Gannon cannot be heard to complain that he was not informed of the mental element of the predicate felonies because he was additionally charged in the original information with one count of first degree burglary (count 3), and two counts of first degree robbery (counts 4 and 5), with those separate counts listing the elements of the respective offenses, including the required mens rea. The State is correct. Count 3 charged Gannon with first degree burglary, alleging that Gannon or an accomplice "with intent to commit a crime against a person or property therein" entered or remained unlawfully in the residence of Vernon and Maxine Bishop, and while there, or in immediate flight therefrom, did assault Vernon and Maxine Bishop.
Count 4 charged Gannon with first degree robbery, alleging that he or an accomplice "with intent to deprive, did unlawfully take personal property from the person of Maxine Bishop or in her presence against her will by the use or threatened use of immediate force, violence or fear of injury to Maxine Bishop" and that in the course of the commission of said crime "did inflict bodily injury on Maxine Bishop." CP at 3. Count 5 was identical to count 4, except that it named the victim as Vernon Bishop. Both count 4 and count 5 clearly specify the intent to deprive element of robbery. Count 3 clearly set out the mental element of unlawful entry with intent to commit a crime together with an assault.
As noted, the trial court read Gannon the entire information on two occasions: at his June 15, 2006, preliminary appearance, and at his June 26, 2006, arraignment. He acknowledged that he understood the charges on the first occasion and defense counsel acknowledged that the court had properly informed Gannon of the charges against him on the latter occasion, at which time the defense entered a separate plea of not guilty to each of the five counts. Under these circumstances, Gannon was clearly informed of the elements of the predicate felonies. In re Pers. Restraint of Montoya, 109 Wn.2d 270, 278-79, 744 P.2d 340 (1987) (where defendant knew the contents of information, which described the acts and state of mind constituting the crime charged, he was given adequate notice of the elements of the crime).
Gannon replies to this argument relying on State v. Clowes, 104 Wn. App. 935, 18 P.3d 596 (2001), and State v. Gill, 103 Wn. App. 435, 13 P.3d 646 (2000), for the proposition that elements cannot be "plucked out of one count in a charging document and dropped into another." See Clowes, 104 Wn. App. at 942; Gill, 103 Wn. App. at 442. But Clowes and Gill addressed defective informations in which essential elements were "missing" from the counts charged. See Gill, 103 Wn. App. at 442; Clowes, 104 Wn. App. at 942 (charge lacked essential elements when it contained no reference to either the victim's identity or to the underlying domestic violence crime). But here, there are no missing essential elements. As noted above, case law addressing the issue of what elements are required when charging felony murder hold that while the predicate felony is an element of felony murder, "the elements of the underlying felony need not be pleaded." Bryant, 65 Wn. App. at 438. See also Medlock, 86 Wn. App. at 101-02 ("The information [charging felony murder] did not have to set forth the elements of either of the predicate felonies to be sufficient."). Accordingly, we hold that the information charging Gannon with first degree felony murder was sufficient and that under the facts of this case he was sufficiently apprised of the charges against him.
Coercion
Gannon next contends that the court should have permitted him to withdraw his guilty plea because he was unduly coerced by outside pressures. We disagree.
Relying on foreign case law, Gannon argues that the court should liberally allow withdrawal of pleas when there is a "fair and just" reason for doing so. Br. of Appellant at 29. But in Washington, CrR 4.2(f) controls the withdrawal of guilty pleas prior to sentencing. The rule provides that the trial 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." See CrR 4.2(f). See also State v. Saas, 118 Wn.2d 37, 42-43, 820 P.2d 505 (1991 (citing State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Under this rule a "manifest injustice" is "an injustice that is obvious, directly observable, overt, not obscure." Taylor, 83 Wn.2d at 596. CrR 4.2(f) imposes a "demanding standard" on a defendant who seeks to withdraw a guilty plea. Taylor, 83 Wn.2d at 596; Saas, 118 Wn.2d at 42-43. This heavy burden is justified by the greater safeguards protecting a defendant at the time he enters his guilty plea. See Taylor, 83 Wn.2d at 596-97 (discussing the requirements of CrR 4.2(d) (regarding voluntariness), (e) (requirements for plea agreements) and (g) (requirements for statement of defendant on plea of guilty), which are "carefully designed to insure that the defendant's rights have been fully protected before a guilty plea may be accepted"). Accordingly, "trial courts should exercise greater caution in setting aside a guilty plea once the required safeguards have been employed." Taylor, 83 Wn.2d at 597.
Here, Gannon asserts that his guilty plea was coerced, and thus it was not voluntary. See Saas, 118 Wn.2d at 42 (an involuntary plea qualifies as a manifest injustice). However, when a defendant completes a plea statement and admits to reading, understanding, and signing it, this creates a strong presumption that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 854, 953 P.2d 810 (1998). Gannon's claim of coercion contradicts his express assurances to the trial court that he was making the decision to plead guilty without undue force or persuasion. After denying improper influence in open court, a defendant who later seeks to retract his admission of voluntariness bears a heavy burden in trying to convince a court that his admission was coerced. State v. Frederick, 100 Wn.2d 550, 557, 674 P.2d 136 (1983), overruled on other grounds by Thompson v. State Dep't of Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999). A mere allegation by the defendant of coercion will not overcome his "`highly persuasive'" assertions at the guilty plea hearing of voluntariness. See Osborne, 102 Wn.2d at 97 (quoting Frederick, 100 Wn.2d at 557). We will overturn a trial court's denial of a motion to withdraw a plea only for abuse of discretion. State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006).
As noted, Gannon submitted a signed plea agreement to the court, and a statement of defendant on plea of guilty. Gannon acknowledged to the court that his attorney had read these documents to him and that he understood all the information on the forms, which stated in part that no threats had been made to cause him to enter the plea, nor had any promises been made to him other than those listed in the statement. Gannon acknowledged his attorney's statement to the court that he was making a knowing, intelligent, and voluntary decision to plead guilty. See Gannon also acknowledged each of the constitutional rights that he was waiving.
Gannon now contends that the State used his desire for extended family visitation to coerce his guilty plea, but the record does not support that argument. The only offer that the State made was to dismiss all counts except the felony murder counts (counts 1 and 2), to dismiss a separate pending drug case, and to waive jail rules prohibiting weddings in the Grays Harbor County Jail. Gannon raised the issue of extended family visitation during plea negotiations, but the State made no promises or guarantees regarding visitation, and the record indicates Gannon clearly understood that extended family visitation issues were not part of the plea deal. Although he was disappointed that the State would not make any promises regarding visitation, Gannon told his attorney that he still wanted to plead guilty. The record simply does not support Gannon's assertion that he was pressured into pleading guilty by manipulation of the issue of extended family visitation. That issue was simply not part of deal that the State offered to induce his guilty plea.
Nor does the fact that the State permitted Gannon to get married in the county jail suggest coercion. During plea negotiations, Gannon's attorney sought assurances from the State that Gannon would be permitted to get married as soon as possible while in custody, along with guarantees that he would be permitted extended family visits while in prison. The fact that the State permitted Gannon to marry in the jail was a perceived benefit to Gannon in the same manner that a reduced sentence or dismissal of a charge would benefit him. But such inducement simply does not rise to the level of a coercive threat that unduly forced Gannon to involuntarily enter a guilty plea. Cf. State v. Williams, 117 Wn. App. 390, 400, 71 P.3d 686 (2003), review denied, 151 Wn.2d 1011 (2004) (subjective or altruistic reasons for entering a plea are not grounds to set aside the plea).
Finally, Gannon asserts that he was pressured into pleading guilty because of media presence in the courtroom at the time of his guilty plea hearing. Gannon cites to his testimony, Barbara Bryson-Gannon's testimony, and the testimony of his former attorney David Hatch at his plea withdrawal hearing, but none of this testimony indicates coercion.
During the hearing on Gannon's motion to withdraw guilty plea, both Gannon and his wife testified that the media was present at the guilty plea hearing, but neither articulated why or how the presence of a reporter forced or pressured Gannon to plead guilty. They also testified that during a recess, Hatch instructed Barbara Bryson-Gannon to write a note to Gannon supporting his decision to plead guilty and explaining why she had indicated to Gannon in the courtroom not to plead guilty. She said that "[Hatch] told me to write that I panicked and that David had to go through with the agreement and that the press was here and it was too late." RP (Apr. 4, 2007) at 84. She also told Gannon that she loved him and would stand by him no matter what he pleaded. Barbara Bryson-Gannon testified that she was emotional and crying when she talked with Hatch during the recess.
Hatch testified that when he talked with Barbara during the recess, she thought that Gannon was making his decision not on the merits of the case, but based on his decision to marry her. Hatch confirmed that he asked Barbara to write Gannon a note. He explained that she was emotional, and because her written statement was wandering into other matters and time was limited, Hatch instructed her on several things she should say in the note. Hatch testified that he had practical concerns about selecting a jury and going forward with trial in the event Gannon withdrew his guilty plea with the press in the courtroom. But he did not tell Gannon that he had to plead guilty or that he could not change his plea because the media was present. As noted, the trial court found that Hatch's testimony was credible and that Gannon's and Barbara's testimony was not credible.
On this issue, Gannon cites only to Frederick for support. But while Frederick held that coercion by someone other than the State may render a guilty plea involuntary, see Frederick, 100 Wn.2d 556, the case addressed a more traditional circumstance of coercion" a co-defendant's alleged threat to kill the defendant if he did not plead guilty. Frederick, 100 Wn.2d 553. The Frederick court reversed the trial court's determination that the defendant was a habitual offender because the trial court did not permit the defendant to present evidence that one of his prior convictions based on a guilty plea was invalid because his plea was allegedly coerced by a co-defendant. Relevant here, Frederick held as follows:
We emphasize, however, that a defendant who seeks to later retract his admission of voluntariness will bear a heavy burden in trying to convince a court or jury that his admission in open court was coerced. The task will be especially difficult where there are other apparent reasons for pleading guilty, such as a generous plea bargain or virtually incontestable evidence of guilt. Nevertheless, a defendant should not be denied the opportunity to at least present evidence on the issue.
Frederick, 100 Wn.2d 558.
Here, Gannon did present his evidence, but the trial court found that he was "not coerced, threatened or improperly promised anything to secure his plea of guilty." CP at 115. Moreover, given the anticipated evidence, including April Hensley's expected testimony, the State's case against Gannon was overwhelming. Frederick does not require a different
result, and Gannon has failed to show that withdrawal of his guilty plea is necessary to correct a manifest injustice. Therefore, we hold that the trial court did not abuse its discretion in denying Gannon's motion to withdraw his guilty plea.
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.