Opinion
Nos. 34072-1-II; 34875-6-II.
June 17, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03172-1, Beverly G. Grant, J., entered October 28, 2005, together with a petition for relief for personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Hunt, J.
Alaa Fekry Ahmed Hassan appeals the trial court's denial of his motion to withdraw his guilty plea, arguing that he did not have full knowledge of its deportation consequences. In a personal restraint petition consolidated with his appeal, he raises additional claims of ineffective assistance of counsel, incompetence to enter his plea, and failure to establish a factual basis for his plea. We affirm the trial court and deny the personal restraint petition.
FACTS
On June 28, 2004, the State charged Hassan with domestic violence-related second degree assault, interfering with domestic violence reporting, and unlawful possession of fewer than 40 grams of marijuana. As a result, he was in the Pierce County Detention and Corrections Center on July 2. On that day, he cut his right wrist with the metal end of a pencil. A Pierce County Detention and Corrections Center mental health professional evaluated Hassan and concluded he had "[n]o competency concerns" regarding Hassan and that Hassan understood the charges against him and could assist with his defense. State's Response to PRP, Palmas Affidavit at 2.
On August 17, the State amended the charges against Hassan to one count of domestic violence-related second degree assault. The same day, he pleaded guilty to the offense.
At his plea hearing, through the assistance of interpreter Kamal Abou-Zaki, Hassan indicated to the trial court that he understood why he was in court and that he entered his guilty plea freely and voluntarily. In response to the trial court's inquiry how he pleaded to the amended information, he stated, "I am guilty." Report of Proceedings (RP) (Aug. 17, 2004) at 7. The trial court accepted his guilty plea as entered into freely and voluntarily.
During sentencing, Hassan's wife informed the trial court that she was concerned that he might be bipolar and suicidal, among other issues. She also submitted a victim's impact statement recounting that he had physically abused her and detailing her fear for her safety. Hassan's counsel informed the trial court that Hassan intended to return to Egypt and had no desire to remain in the United States. Hassan did not object to counsel's statements. The trial court sentenced him to six months' jail time, instituted a no-contact order on behalf of his wife, imposed 12 months of post-incarceration community custody, and assessed restitution and other fees.
While Hassan was serving his sentence in Pierce County Jail, Immigration and Customs Enforcement agents interviewed him and communicated their intent to remove him from the United States. On October 26, Hassan received notice that the federal government was initiating deportation proceedings against him based on his second degree assault conviction. On September 12, 2005, the federal immigration court ruled that Hassan could be removed based on his conviction and lack of United States citizenship.
Congress consolidated hearings on deportation and exclusion/inadmissibility into one removal proceeding. Immigration and Naturalization Act § 240.1/(a)(3); see 8 U.S.C. § 1229 (2006). We use the term "deportation" to track the language used in the parties' briefs.
Hassan also appealed the immigration court's decision.
On October 28, 2005, the trial court heard Hassan's motion to withdraw his guilty plea. His counsel testified that she addressed the immigration consequences of Hassan's plea with him before he signed the plea agreement, initially informing him that deportation was possible or probable, and later informing him that deportation was certain. The trial court denied Hassan's motion.
The immigration court stayed deportation proceedings while awaiting the trial court's decision on Hassan's motion to withdraw his guilty plea.
Hassan's counsel testified that she and interpreter Abou-Zaki discussed possible or probable deportation as a consequence of his guilty plea with Hassan and that she might have told him deportation was certain after he entered his plea but she stated that her statement only confirmed what they had already discussed.
Hassan appealed the trial court's denial of his motion to withdraw his guilty plea. On December 9, he completed his sentence and the State restored all of his civil rights lost following his conviction.
On May 23, 2006, Hassan filed a personal restraint petition (PRP) and moved to consolidate his direct appeal and his PRP. We granted the motion for consolidation.
On October 26, we remanded the matter to the trial court for an RAP 9.11 hearing and entry of findings whether the plea hearing interpreter interpreted and translated each word and concept in the plea documents as required by the interpreter's certification and oath. On November 2, the State moved for clarification of our order. We amended our order for the trial court to make findings under RAP 16.12. On November 9, 2007, the trial court entered findings that (1) Hassan was not credible, (2) interpreter Abou-Zaki was credible, and (3) Abou-Zaki interpreted and translated each word and concept in the plea documents as required by the interpreter's certificate and oath. We now address Hassan's consolidated matters on appeal.
ANALYSIS Direct Appeal
Hassan first contends that the trial court erred by denying his motion to withdraw his guilty plea. He asserts that he did not knowingly and voluntarily enter the plea and he received ineffective assistance of counsel.
We review a trial court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). A court abuses its discretion if it bases its decision on manifestly unreasonable or untenable grounds. State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966).
In seeking withdrawal of a guilty plea under CrR 4.2(f), Hassan bore the burden of proving that withdrawal of the plea was necessary to correct a manifest injustice, which includes denial of effective assistance of counsel or a defendant's failure to understand the consequences of his plea. State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996). "Because of the many safeguards surrounding a plea of guilty, the manifest injustice standard is a demanding one." State v. Arnold, 81 Wn. App. 379, 385, 914 P.2d 762.
Here, Hassan signed a plea agreement after defense counsel reviewed the agreement with him with the assistance of interpreter Abou-Zaki. In response to our RAP 16.12 order, the trial court found that Abou-Zaki interpreted and translated each word and concept in the plea documents as the interpreters' certificate and oath required, and that he was credible.
On review, the critical inquiry is whether a defendant was properly informed of the direct consequences of his guilty plea at the time he entered into the plea agreement. A valid, signed plea agreement is direct and controlling evidence that a defendant understood the consequences of his plea at the time he entered into it. See In the Pers. Restraint of Breedlove, 138 Wn.2d 298, 309-10, 979 P.2d 417 (1999) (valid plea agreements are regarded and interpreted as contracts binding parties by the terms and, where "intelligently and voluntarily made, with an understanding of the consequences, are accepted, encouraged and enforced in Washington"); State v. McRae, 96 Wn. App. 298, 303, 979 P.2d 905 (1999) (a plea agreement is an enforceable and binding contract between the defendant and the State).
Hassan's signed plea agreement set forth that, if he was not a United States citizen, "a plea of guilty to an offense punishable as a crime under state laws is grounds for deportation, exclusion from admission to the United States, or denial of naturalization." Clerk's Papers (CP) at 10. It also stated that he made his plea freely and voluntarily, no threatened harm or promises of any kind caused him to enter into the plea, his counsel explained and fully discussed with him all paragraphs contained in the plea agreement, and he understood all paragraphs and had no further questions of the trial court. In colloquy with the trial court, he also affirmatively stated that he understood the plea and entered into it freely and voluntarily.
Hassan's plea agreement correctly apprised him that his guilty plea could subject him to deportation or exclusion and could also impact his ability to naturalize to United States citizenship. His written acknowledgment that he correctly understood the consequences of the valid plea agreement, including those enumerated immigration consequences, is binding on him. Moreover, as noted, on remand the trial court found that the interpreter translated each word and concept of the plea agreement and that he was credible. Hassan's claim that he did not enter his plea knowingly and voluntarily fails.
Hassan also argues that the trial court violated his due process rights by not informing him of the deportation consequences of his plea. He contends that the 1996 amendments to the immigration and naturalization act by way of the antiterrorism and effective death penalty act and the illegal immigration reform and immigration responsibility act effectively converted deportation from a collateral to a direct consequence of a guilty plea by enlarging the definition of aggravated felony and making deportation a virtual certainty. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996). But after AEDPA and IIRIRA, United States Citizenship and Immigration Services still retains inherent prosecutorial discretion in whether to institute deportation proceedings. See Carranza v. INS, 277 F.3d 65, 72 (1st Cir. 2002). Deportation remains a collateral consequence of a guilty plea as a result peculiar to the individual's personal circumstance and wholly independent of the plea court. United States v. Amador-Leal, 276 F.3d 511, 513-17 (9th Cir. 2002); In re Pers. Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999); State v. Jamison, 105 Wn. App. 572, 593, 20 P.3d 1010 (2001); State v. Martinez-Lazo, 100 Wn. App. 869, 877, 999 P.2d 1275 (2000). A trial court's failure to inform a defendant of a collateral consequence does not render a guilty plea constitutionally involuntary, and Hassan's claim fails. Jamison, 105 Wn. App. at 591-92.
Hassan's claim that the trial court violated RCW 10.40.200(2) (requiring it to determine whether a non-United States citizen defendant pleading guilty was advised of the potential immigration consequences of his plea) also fails. The statute does not require the trial court to make an "explicit oral explanation of deportation possibilities," and we presume that a defendant who signs a plea agreement containing a proper RCW 10.40.200(2) advisement received that advisement; Hassan fails to overcome the presumption because defense counsel testified that she read Hassan the RCW 10.40.200(2) paragraph in his plea agreement and discussed it with him. State v. Cortez, 73 Wn. App. 838, 841, 871 P.2d 660 (1994). Contra State v. Holley, 75 Wn. App. 191, 199, 876 P.2d 973 (1994).
Likewise, we find no merit in Hassan's contention that he received ineffective assistance of counsel. We review ineffective assistance of counsel claims de novo, with a strong presumption that defendant received competent representation. In the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). To establish the claim, Hassan must show that his counsel's deficient performance prejudiced him by demonstrating a reasonable probability that the outcome would have differed but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Pirtle, 136 Wn.2d at 487. "In the context of plea bargains, effective assistance of counsel means that defense counsel actually and substantially assist[s] the client in deciding whether to plead guilty." State v. Holley, 75 Wn. App 191, 197, 876 P.2d 973 (1994). If counsel misrepresents applicable law or a collateral consequence of the plea, it is grounds for withdrawal of the plea. State v. Stowe, 71 Wn. App. 182, 187-89, 858 P.2d 267 (1993).
As already discussed, Hassan's signed plea agreement is valid, correctly states the law, and is controlling evidence that Hassan's counsel fully explained the agreement to him. His counsel also testified that she advised him about the immigration consequences of his plea and that he was not confused about them. Hassan fails to demonstrate counsel's deficient performance.
Personal Restraint Petition
In his PRP, Hassan claims his guilty plea violated his due process and effective assistance of counsel rights. He asserts that he was not competent to enter the plea and did not understand the nature of the charges. He further asserts that the State failed to establish a factual basis for the plea.
A petitioner may collaterally challenge his conviction by raising issues not raised or rejected on direct appeal, including errors of constitutional or nonconstitutional magnitude. In the Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004). We will grant appropriate relief if a petitioner is under a restraint as defined under RAP 16.4(b) and his restraint is unlawful for one or more of the reasons defined in RAP 16.4(c). RAP 16.4(a). A petitioner is under a restraint if he is under a disability resulting from a judgment or sentence in a criminal case. RAP 16.4(b). Hassan's impending deportation and the effect of his guilty plea on his naturalization and admission to the United States are disabilities resulting from a judgment or sentence in a criminal case. See In the Pers. Restraint of Powell, 92 Wn.2d 882, 887-88, 602 P.2d 711 (1979) (construing "disability" for RAP 16.4(b) purposes to include stigma associated with an unlawful conviction). Therefore, he is "restrained" for purposes of our review of his PRP.
A. Competency
Hassan contends that his counsel was ineffective for failing to request a competency hearing and evaluation before entry of his guilty plea, although he cut his wrist in jail. As set forth above, we apply the Strickland test to claims of ineffective assistance of counsel. 466 U.S. at 668, 687.
The due process clause of the Fourteenth Amendment prohibits conviction of a person not competent to stand trial. See Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). A person is competent to stand trial in Washington if he has the capacity to understand the nature of the proceedings against him and can assist in his defense. In the Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). A person incompetent to stand trial may not enter into a plea agreement. Fleming, 142 Wn.2d at 864. A competency hearing is mandatory under Washington law whenever a legitimate question of competency arises. State v. Marshall, 144 Wn.2d 266, 279, 27 P.3d 192 (2001).
After Hassan cut himself, a Pierce County Detention and Corrections Center mental health professional examined Hassan and concluded that he did not have any competency concerns regarding Hassan and that Hassan understood the charges against him and could assist counsel in his defense. Hassan stated that he regretted cutting himself and that it was not something he had ever done before or would ever repeat. Hassan's counsel also attested that she had no reason to doubt his competency during her representation of him. The record demonstrates that Hassan was competent to enter his plea and that defense counsel did not face a legitimate question of his competency. He fails to satisfy the first prong of Strickland.
Hassan also claims that his counsel was ineffective for failing to seek a competency hearing despite statements made by his interpreter and his wife that he was not fit for trial and needed professional mental health services. Neither Hassan's interpreter nor his wife was a trained mental health expert. Further, the binding plea agreement included the interpreter's signed certification under penalty of perjury that Hassan acknowledged his understanding of "both the translation and the subject matter" of the plea agreement. Clerk's Papers at 51.
We also note that even had Hassan's counsel sought a competency review, a mental health professional already found Hassan competent here. Hassan also fails to demonstrate that the outcome would have differed had counsel sought and the trial court ordered a competency review. Strickland, 466 U.S. at 687.
We also reject Hassan's claim that he was not competent to enter his plea because he was taking medication that rendered his mind "blank" or "paralyzed." PRP, Hassan Declaration at 5. As already addressed, our review of the record and mental health professional's assessment demonstrates Hassan's competency, and he fails to present any additional argument or evidence that medication affected his ability to understand the charges against him or assist with his defense.
We also reject Hassan's claim that the trial court should have required a competency review because of the proximity in time between the assault and the wrist-cutting incident. The trial court has broad discretion to assess a defendant's mental capacity to plead guilty based on its direct observation of the defendant and may base that assessment on factors including the defendant's appearance, demeanor, and conduct; his personal and family history; medical and psychiatric evidence; and counsel's statements. State v. Loux, 24 Wn. App. 545, 548, 604 P.2d 177 (1979); see also City of Seattle v. Gordon, 39 Wn. App. 437, 441-42, 693 P.2d 741 (1985). Here, the trial court received no notice that Hassan suffered from a mental health problem affecting his competency, it engaged in a colloquy with Hassan, and Hassan responded to the trial court's questions in a manner suggesting his competency and understanding of the charges against him. The trial court did not abuse its discretion.
B. Other Ineffective Assistance of Counsel Claim
Hassan also contends that his counsel was ineffective for failing to obtain a better plea bargain. His counsel attested that she bargained for a lesser offense but that the State would not agree to her proposals. Hassan fails to demonstrate that his counsel's performance fell below an objective standard of reasonableness. Pirtle, 136 Wn.2d at 487.
As we have already rejected Hassan's claim of ineffective assistance of counsel for his counsel's alleged failure to advise him of the immigration consequences of his plea, we likewise reject the same claim raised in his PRP. In the Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004).
C. Factual Basis for Plea
Finally, Hassan asks us to vacate his guilty plea because the State failed to establish a factual basis for his plea and he did not understand the nature of the charges against him.
We review this alleged due process error under RAP 16.4(c)(2). In the Pers. Restraint of Keene, 95 Wn.2d 203, 205-09, 622 P.2d 360 (1980). A plea is voluntary in the constitutional sense when a defendant has adequate notice and understanding of the charges against him. In the Pers. Restraint of Hews, 108 Wn.2d 579, 590, 741 P.2d 983 (1987).
Again, Hassan's signed plea agreement is binding evidence that he understood the nature of the charges against him and the consequences of his plea. The signed agreement stated, "In Pierce Co., Washington, on 6-27-04, [Hassan] did unlawfully feloniously, under circumstances not amounting to assault [first degree], did intentionally assault [his wife], and thereby recklessly inflict[ed] substantial bodily harm." CP at 44. The agreement also included Hassan's handwritten statement and signature that stated, "On 6-27-04, in Pierce County, Washington, I assaulted [his wife] she had significant injuries." CP at 50. This forms a sufficient factual basis for the plea. As already discussed, Hassan acknowledged his understanding of the plea agreement and that he entered into it knowingly and voluntarily, and the interpreter certified that Hassan understood the agreement. Hassan also informed the trial court that he pleaded guilty to the Amended Information charging second degree assault, which included a declaration of probable cause describing the assault in detail.
RCW 9A.36.021 states in part:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.
The declaration of probable cause was attached to the original information the State filed against Hassan, so we presume he had notice of it at the time the State filed the amended information.
We affirm the trial court and deny the PRP.
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.
Hunt, J., Van Deren, J., concur.