Opinion
No. 50970-5-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-00796-8. Judgment or order under review. Date filed: 07/22/2002. Judge signing: Hon. Joseph Thibodeau.
Counsel for Appellant(s), John Rodney Crowley, Crowley Leen LLP, 601 Union St. Ste 4610, Seattle, WA 98101-4050.
Counsel for Respondent(s), Charles Franklin Blackman, c/o Snohomish County Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Dennis Gieselman contends the criminal case against him should have been dismissed, or that he should have been allowed to withdraw his guilty plea to possession of methamphetamine, because he was forced by the State's mismanagement to choose between his right to a speedy trial and counsel who was prepared to go to trial. We disagree and affirm.
On April 22, 2001, a state trooper stopped Gieselman for erratic driving and discovered his license was suspended. The trooper arrested Gieselman and searched his car, finding, among other things, a scale with a white powder residue that field tested positive for methamphetamine. Gieselman admitted the scale was his and explained that he used it to measure methamphetamine for his own personal use. On April 24, 2001, the State charged Gieselman with one count of possession of methamphetamine; he was arraigned on April 25. On April 26, the State sent the scale to the crime laboratory for an analysis of the residue.
About a week prior to the trial date, the prosecutor received a laboratory report that unexpectedly identified the residue as cocaine. The prosecutor notified Gieselman's counsel and indicated the information would be amended. The prosecutor amended the charge and the court arraigned Gieselman on the new charge on June 29, a Friday. The matter was set for trial on the following Monday, July 2. On the morning of July 2, the crime laboratory informed the prosecutor that it had made a typographical error on its report and that the substance on the scale was indeed methamphetamine. Immediately prior to trial, the prosecutor again moved to amend the information to charge possession of methamphetamine.
The lab technician apparently discovered the error while reviewing the report in preparation for his testimony. The prosecutor obtained the lab technician's notes, and the notes of the reviewing technician, and both showed that the substance was methamphetamine. The record does not show how the error occurred but there is no evidence that it was anything other than a typographical error. There is no allegation that the laboratory or the prosecutor acted in bad faith.
Gieselman and defense counsel discussed the matter for about three hours. Defense counsel recommended the Gieselman change his plea to guilty and he reluctantly agreed. Gieselman signed a guilty plea agreement and the court conducted a plea colloquy on the record before accepting the plea.
Gieselman thereafter filed a motion to withdraw his plea. On September 11, 2001, the court denied the motion and entered a judgment and sentence. Gieselman did not appeal.
On May 8, 2002, Gieselman filed a motion under CrR 7.8(b)(1), (4), and (5) and CrR 8.3(b) to either dismiss the case or reconsider the denial of his motion to withdraw his guilty plea. The court denied this motion orally on July 22, 2002, and Gieselman appealed. On September 4, 2002, the court entered a written order denying the motion.
Gieselman contends he was rushed into a decision on July 2 by the prosecutor's amendment of the information. He maintains that he was forced by the State's mismanagement to choose between waiving his speedy trial rights by requesting a continuance or going to trial with counsel who was not prepared to meet the amended charge.
It is not clear from the record exactly when Gieselman's speedy trial period would have expired but there is no argument that it expired before July 2.
CrR 8.3(b) allows a court to "dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial." Dismissal under CrR 8.3(b) is an extraordinary remedy to be used only in truly egregious cases. The rule has two requirements: (1) misconduct by the State, including but not limited to "simple mismanagement"; (2) "prejudice affecting the defendant's right to a fair trial." The defendant has the burden of showing both elements. The defendant may not rely on speculation and must show actual prejudice. We review the trial court's decision on a motion to dismiss under CrR 8.3(b) under a manifest abuse of discretion standard. It is clear from the record that there is no evidence of bad faith or deliberate interference with Gieselman's rights. Nevertheless, misconduct may include "simple mismanagement." The conduct of the crime lab employees is attributable to the State. We will therefore assume that Gieselman has made a sufficient showing on the first part of the test.
State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003).
State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997).
State v. Michielli, 132 Wn.2d at 239-40.
State v. Rohrich, 149 Wn.2d 647, 657-58, 71 P.3d 638 (2003).
State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003).
State v. Michielli, 132 Wn.2d at 239.
State v. Woods, 143 Wn.2d 561, 583, 23 P.3d 1046 (2001).
However, he has failed to show actual prejudice. Gieselman maintains that his counsel was not prepared to go to trial on the amended charge of possession of methamphetamine, but there is no support for this contention in the record. Gieselman admitted using the scale to measure methamphetamine for his own use and knew on April 24, 2001, that he was charged with possession of that substance. Gieselman's defense was that someone else used the scale to measure a diet drug, that the residue was not methamphetamine, and that his possession was unwitting. When the lab report came back positive for cocaine, Gieselman's defense possibilities expanded, but he was still left with essentially the same options. When the lab report was corrected, Gieselman was simply back to where he had been ever since the information was filed. The State neither injected new information into the case nor added additional charges. Counsel did not indicate she was unprepared to try the case and did not request a continuance. Gieselman and his counsel had approximately three hours to discuss the case after the amendment. There is simply no evidence of actual prejudice. The trial court accordingly did not abuse its discretion in denying the motion to dismiss under CrR 8.3(b).
Gieselman also moved under CrR 7.8 to reconsider the denial of his motion to withdraw his guilty plea. We review a trial court's decision on a CrR 7.8(b) motion for an abuse of discretion.
While we question whether CrR 7.8 may be used in this manner to seek reconsideration of the earlier decision denying the motion to withdraw and thereafter support an appeal when the first decision was not appealed, See, PRP of Becker, 143 Wn.2d 491, 496-98, 20 P.3d 409 (2000), neither side raised this issue in the trial court and it addressed the question on the merits. We also address the issue on the merits.
State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996).
A defendant should be allowed to withdraw a guilty plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice." The rule imposes a "demanding standard." The defendant bears the burden of showing a manifest injustice. The trial court's denial of a motion to withdraw a guilty plea is also reviewed under an abuse of discretion standard.
CrR 4.2(f).
PRP of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999).
State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996).
State v. Jamison, 105 Wn. App. 572, 589-90, 20 P.3d 1010 (2001).
Gieselman entered his guilty plea after a full colloquy with the court in which he stated that his plea was voluntary. A defendant who seeks to retract such an admission bears a heavy burden. The mere fact that the alternatives may be unpalatable and that the choice may be difficult does not render a plea involuntary.
State v. Frederick, 100 Wn.2d 550, 558, 674 P.2d 136 (1983), overruled in part on other grounds by Thompson v. State, Dept. of Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999).
State v. Butler, 17 Wn. App. 666, 672, 564 P.2d 828 (1977).
Gieselman had adequate time to discuss the matter with his counsel after the State's amendment. As discussed, there is no evidence in the record that counsel was not prepared to defend against the amended charge. Gieselman admitted on the record that his plea was voluntary. While Gieselman may certainly have been disappointed, particularly after thinking over the weekend that he might have a winning defense to a charge of cocaine possession, that shows only that he was faced with the unpalatable alternative of going to trial on the original charge or pleading guilty. These circumstances do not render his plea involuntary or show that withdrawal of the plea is necessary to correct a manifest injustice. The trial court did not abuse its discretion in denying Gieselman's motion to reconsider the denial of his motion to withdraw his guilty plea.
Affirmed.
BECKER J. and AGID J., concur.