Opinion
No. 30138-5-II
Filed: November 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No: 00-1-00215-6. Judgment or order under review. Date filed: 02/14/2003. Judge signing: Hon. George Lamont Wood.
Counsel for Appellant(s), Sherryl A. Jones, Attorney at Law, PO Box 1869, Port Townsend, WA 98368-0058.
Counsel for Respondent(s), Cheryl Taylor, Attorney at Law, 1115 S Cedar St, Port Angeles, WA 98362-7512.
Steven Henderson appeals the trial court's denial of his motion to withdraw his guilty plea on one count of second degree escape, arguing that his plea was involuntary because of coercion by correction officers. Finding no error, we affirm.
FACTS A. Escape Charge
The State charged Henderson and another prison inmate with first degree escape from the Clallam Bay Corrections Center on December 29, 1999. At the time of the State's escape charge, Henderson was serving a sentence for a first degree murder conviction. A corrections officer saw Henderson running outside a prison fence, and officers later discovered evidence of 'extensive planning' for the escape attempt that included putting dummies in beds, tools, and a ladder. Resp't Clerk's Papers (Resp't CP) at 53.
B. Trial Court Proceedings Before Plea
Henderson pleaded not guilty to the escape charge and the court granted his request to proceed pro se with standby counsel. Henderson asserted a necessity defense based on allegations of threats and abuse by correction officers.
Throughout his case, Henderson filed numerous motions and requests for relief in the trial court. Between August 9 and August 31, 2000, he filed nine motions. Between September 13, 2000, and January 25, 2001, he filed 13 motions. Many of these motions concerned his dissatisfaction with access to legal materials and other information to prepare his defense. On August 14, 2000, the court granted Henderson's request to use the prison library and other research support and to conference with his codefendant. Some motions also related to his assertions that the charge should be dismissed, for example, on August 31, 2000, Henderson filed a motion to suppress statements that he had made to the Clallam County Sheriff on December 29, 1999. He alleged that correctional officers in the Intensive Management Unit at Clallam Bay told him that they were instructed to physically force Henderson to talk to the sheriff and that he related to the sheriff that he was under threat of physical harm and was scared. He further alleges that he was not given Miranda warnings until he had been interviewed for about 10 minutes.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On September 13, 2000, Henderson filed numerous motions, such as: a motion for a temporary restraining order against a corrections officer for interfering with Henderson and his legal materials; a motion to dismiss the charges, alleging that his Sixth Amendment right to counsel was denied during investigation of this matter, a motion asserting that CrR 8.3(b) should be invoked by the court to dismiss this matter; and in the furtherance of justice due to his lack of access to materials, documents, mail, library privileges, and other means of effectively representing himself, even after the court ordered Clallam Bay Corrections Center to provide specific resources and services.
The court held a CrR 3.5 hearing on October 3, 2000. The court found that Henderson's statements to police soon after his attempted escape were admissible and that he knowingly, intelligently, and voluntarily waived his right to counsel during his questioning. Henderson also examined the witnesses about whether he had been given Miranda warnings. But the court found that Henderson 'agreed to speak with the detectives' and that he 'was not promised anything, threatened or coerced into making a statement.' Appellant's Clerk's Papers (Appellant's CP) at 202-03.
Henderson does not challenge the trial court's findings and conclusions under CrR 3.5. Thus, these determinations are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
A day before the CrR 3.5 hearing, Henderson filed a discovery motion that requested disclosure of documents related to his defense. On October 5, 2000, Henderson filed an additional motion to dismiss the charges against him based on problems obtaining legal materials and access to the prison library. On October 19, the court held a hearing to address these motions. The court emphasized to Henderson the importance of specific discovery requests relevant to his defense and discussed the access to legal materials with a corrections officer present at the hearing.
C. Trial Court Proceedings Near Plea
On December 8 and 12, 2000, the court received numerous motions, affidavits, and a prison inmate letter that alleged misconduct by corrections officers. Henderson filed four affidavits from inmates to support his motions, which included a new motion to dismiss the charges. The majority of these affidavits discussed the inmates' grievances with corrections officers that did not involve Henderson. One inmate filed a letter with the court that Henderson did not incorporate into his motions. Henderson's affidavit alleged correction officers were unduly pressuring and coercing him to abandon representing himself at trial.
On January 4, 2001, the court held a hearing to address Henderson's outstanding motions. The court sought a response from the State before deciding on Henderson's allegations of coercion by correction officers. The court also discussed at length Henderson's discovery issues and witness testimony at trial.
On January 17, 2001, Henderson filed six affidavits from inmates in support of his December 2000 motions that alleged coercion by correction officers. Two affidavits described a correction officer threatening Henderson in his cell. An additional affidavit alleged that this same correction officer threatened him upon learning that he would be called to testify at Henderson's trial.
The next day, January 18, 2001, the State indicated it had reached a plea agreement with Henderson. The plea reduced Henderson's charge to second degree escape with a recommendation of a sentence on the low end of the standard range and recommendation that Henderson be transferred to a different prison. The court asked the codefendant if the plea was agreeable and he replied, '[B]ased on everything that occurred and all the problems, this is the best thing that we can do.' Report of Proceedings (RP) (Jan. 18, 2001) at 2. When the court inquired of Henderson, he replied, 'What he said.' RP at 2. The court then stated, 'You agree?' and he answered, 'Yes.' RP at 2. A hearing to accept a plea and for sentencing was set over about two weeks in order to provide Henderson time to research 'some sentencing issues' regarding the standard range of his sentence. RP at 2.
The next week, the court received affidavits and motions expressing Henderson's desire to go to trial and withdraw his plea because he had been told that he, the codefendant, and his witnesses would not be transferred out of Clallam Bay while an investigation of his allegations was conducted.
D. Henderson's Plea Hearings
The next court hearing occurred on January 29, 2001. Henderson appeared telephonically.
THE COURT: State vs. Steven Henderson and [codefendant]. Do you have any comments first?
[STATE]: I just heard that they didn't want to take the plea offer, so I am ready to go to trial.
THE COURT: Mr. Henderson, what is the situation? Are you going ahead with the plea or trial?
[HENDERSON]: I would like to apologize for my letter and I would like to take the plea, if it is still available.
[STATE]: It is available, if it is done today.
[court discusses scheduling issues]
[HENDERSON]: . . . if you want to wait until Thursday, I'm not going to change my mind again.
RP (Jan. 29, 2001) at 1, 3 (emphasis added).
The next day, January 30, 2001, Henderson entered an Alford plea in open court with the presence of standby counsel. Henderson replied to the court's questions that he had read the plea, understood it, was advised of the plea's consequences, and that he wished to take advantage of the State's plea offer.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (holding that a defendant may plead guilty while disputing the facts alleged by the prosecution). Washington adopted an Alford plea in State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1976).
The court, in relevant part, asked Henderson the following questions:
THE COURT: Other than the State's indication [that] they will amend the charge to one of escape in the second degree, anyone made you any promises in order to get you to change your plea?
[HENDERSON]: No.
THE COURT: Has anyone unfairly threatened you or intimidated you in order to get you to change your plea?
[HENDERSON]: No.
THE COURT: Have you had as much time to discuss this and review this on your own and with your standby counsel as you wish?
[HENDERSON]: Yes.
Copy of the verbatim report of proceedings from the plea hearing on January 30, 2001.
Almost one year later, Henderson filed a motion to withdraw his plea. He asserted that his plea was involuntary because of coercion by corrections officers. After a hearing, the court issued a memorandum opinion that denied Henderson's motion because his allegations and the circumstances leading up to his plea did not satisfy his evidentiary burden to show that his plea was involuntary.
ANALYSIS I. Request to Withdraw Plea
Henderson contends that the trial court erred in denying his motion to withdraw his plea because his plea was involuntary as a result of coercion by correction officers.
A. Standard of Review
We review a trial court's denial of a motion to withdraw a plea for an abuse of discretion. State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003), review denied, 151 Wn.2d 1011 (2004). Abuse occurs only when the trial court's 'decision [is] based on clearly untenable or manifestly unreasonable grounds.' Williams, 117 Wn. App. at 398. Under CrR 4.2(f), '[t]he court shall allow a defendant to withdraw the defendants [sic] plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.' (Emphasis added.) A demonstrated involuntary plea is a manifest injustice that requires withdrawal. Williams, 117 Wn. App. at 398.
We determine a plea's voluntariness by reviewing the relevant circumstances leading up to the plea. Williams, 117 Wn. App. at 398. Once a plea is entered, the defendant bears the burden to show an involuntary plea. State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984); see also State v. McDermond, 112 Wn. App. 239, 243, 47 P.3d 600 (2002). Given the procedural safeguards inherent in plea proceedings, the defendant's burden to demonstrate an involuntary plea is high and 'demanding.' State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974); see also Osborne, 102 Wn.2d at 97 (relying on Taylor).
A defendant's denial of coercion in open court is highly persuasive evidence of a voluntary plea, but not conclusive. Osborne, 102 Wn.2d at 97. But we presume a voluntary plea when the defendant engages in a colloquy with the court where the defendant acknowledges the truth of the plea and that he understands its contents and completes a written statement. See State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982) (emphasizing that a defendant's plea under these circumstances is 'well nigh irrefutable' and 'prima facie verification of the plea's voluntariness'). (citations omitted); see also State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996) (defendant's signature on the plea is 'strong evidence' of valid plea). And a defendant's self-serving affidavits alleging coercion fails to satisfy the high evidentiary burden required to demonstrate a manifest injustice under CrR 4.2(f). Osborne, 102 Wn.2d at 97.
We note initially that Henderson challenges only the voluntariness of his plea. He does not assert incompetency, that his plea misstates the facts, that the State breached the plea agreement, or that he misunderstood the State's amended information. And although his motion to withdraw his plea implies that the prosecutor threatened him in order to get him to plead guilty, his appellate brief does not make this argument and the record does not support such an argument. Accordingly, we evaluate whether Henderson has demonstrated an involuntary plea that requires withdrawal to correct a manifest injustice.
B. Henderson's Plea
The trial court denied Henderson's motion to withdraw his Alford plea in a seven page memorandum. The court stated, '[t]he allegations now made for the withdrawal of his plea were actually raised by the Defendant prior to his plea in a motion filed December 12, 2000. His allegations of coercion, intimidation and threats were identical to the claims and allegations now made in support of his motion to withdraw his plea.' Appellant's CP at 13. The court emphasized that '[t]he procedural history of the case following the filing of his motion of December 12, 2000, has important bearing on the present allegations made by [Henderson].' Appellant's CP at 13. We agree.
As detailed in the previous fact section and discussed in the trial court's memorandum, Henderson filed affidavits from prison inmates alleging retaliation and coercion in December 2000. The court provided the State time to respond to Henderson's allegations at the hearing on January 4, 2001. Henderson filed more affidavits alleging retaliation and coercion in support of additional motions, including a motion to dismiss on January 17, 2001.
At the hearing on January 18, 2001, Henderson indicated that he was interested in the State's plea offer and wanted to research sentencing issues. Soon after the hearing, Henderson filed new motions alleging that he did not want to plead guilty because he feared retaliation as a result of the State's investigation of alleged misconduct at the prison. He also filed numerous motions clearly detailing his rejection of the State's plea and his intent to go to trial. But at the next hearing on January 29, 2001, after the State indicated that it was prepared for trial, Henderson initiated a request for the plea. He promised that he would not change his mind if they had to wait until the next day.
The next day Henderson entered an Alford plea in open court with the assistance of standby counsel and engaged in a colloquy with the court verifying the voluntariness and content of his plea, affirmed his intent to take advantage of the plea offer, and signed the plea. And the plea was advantageous to Henderson by reducing his charge of first degree escape to second degree escape and allowing his transfer to a different prison. Almost a year later, and less than a month before the one year bar of a collateral attack under RCW 10.73.090, Henderson filed a motion to withdraw his plea that contends his plea was the product of correction officer coercion.
Given these circumstances and Henderson's high burden to demonstrate a manifest injustice that requires withdrawal of his plea, we agree with the trial court's conclusion that '[t]he Defendant's actions show clearly that he was exercising his free and voluntary will and that he was not intimidated by the system, the Court, or by the Department of Corrections. He clearly made a conscious, knowing decision to accept a plea offer.' Appellant's CP at 19.
Henderson contends that the trial court ignored circumstances leading up to his plea that demonstrate his plea was involuntary. But almost all of Henderson's motions and attached affidavits alleging coercion contain self-serving or irrelevant allegations and are unpersuasive. The prison inmate affidavits filed December 12, 2000, generally fail to include Henderson and discuss their own personal allegations of retaliation by correction officers. One inmate states that he wants to testify in Henderson's trial so he can find out the truth of a correction officer's allegations against him that involve Henderson, but that a corrections officer harassed him for his decision to testify. Another inmate makes a similar claim. Henderson's appellate brief emphasizes a letter written by an inmate and filed in the court; however, Henderson's motions do not reference this letter, it is not a sworn affidavit, and the author details his own grievances with the prison while making vague references that prison staff harassed Henderson.
Henderson's affidavits filed on January 17, 2001, are also unpersuasive regarding the voluntariness of Henderson's plea. Two inmates state that they witnessed a correction officer enter Henderson's empty cell for about ten minutes. The prisoners' statements do not provide specific information and instead imply that this officer removed legal materials from the cell. Another prisoner states that this same officer verbally threatened him because he agreed to testify in Henderson's trial and that the prison staff would kill him if he testified for Henderson. Finally, two prisoners state that they witnessed this corrections officer say to Henderson, 'I'll kill you fucking punk,' but the officer's statement was unprovoked and the prisoners' statements do not provide further background into how or why the statement occurred. Appellant's CP at 154.
Although the January 17 statements discussed above allege misconduct by the same corrections officer, they alone do not satisfy Henderson's high evidentiary burden of proving that his plea was involuntary. Henderson contends that these statements prove that he was coerced to plead guilty because his witnesses refused to testify for fear of retaliation. But Henderson's list of witnesses included numerous inmates who did not file affidavits. And this alleged occurrence is the only corroborated evidence of a correction officer's threat toward Henderson and it does not mention how or why the threat occurred. Given Henderson's other voluntary actions regarding his plea already discussed, such as his initiation of acceptance of the plea offer on January 29, 2001, despite the State's expectation of a trial, this evidence does not satisfy the high evidentiary burden of a manifest injustice.
We also note that Henderson's allegations of coercion by correction officers are similar to his allegations during the CrR 3.5 hearing, that his statements to police after his attempted escape were the result of police coercion. But the court did not find Henderson's coercion allegations credible. And as previously discussed, this unchallenged fact is a verity on appeal.
II. Discovery Rulings on Henderson's Necessity Defense
Henderson contends that the trial court's discovery rulings relating to his necessity defense materially assisted in breaking his will to plead guilty. But Henderson distorts the record. Henderson's initial discovery request regarding his necessity defense was too broad. As his codefendant stated at the court's hearing on October 19, 2000: '[Our standby counsel] has brought a good point to us that obviously our request is far too broad . . . [my codefendant] and I will make an attempt to refine it.' RP (Oct. 19, 2001) at 28. The court discussed the necessity defense with Henderson and emphasized the burden to prove 'the pressure of circumstance on you, circumstance that you faced which caused you to take the unlawful action.' RP at 12.
The court discussed discovery again on January 4, 2001. Henderson's standby counsel had interviewed the majority of Henderson's witnesses regarding his defense. The court again emphasized that the witness testimony must be 'relevant [to] the duress placed upon the two of you [Henderson and codefendant] and what they know about that duress that was placed upon the two of you.' RP (Jan. 4, 2001) at 35.
Thus, Henderson's argument that the trial court's discovery rulings materially contributed to an involuntary plea is unpersuasive. This is particularly true in the context of a necessity defense where the defendant must substantially prove that he made a bona fide effort to surrender as soon as the asserted threat ended. State v. Niemczyk, 31 Wn. App. 803, 807-08, 644 P.2d 759 (1982). Significantly, everything in the record relates to conduct that occurred after the date of the escape incident, except for one inmate's affidavit that alleges a correction officer verbally abused him for associating with Henderson. But this affidavit alone, which is unclear, does not satisfy Henderson's evidentiary burden to prove necessity.
Finally, Henderson filed a statement of additional grounds for review (SAG) under RAP 10.10(a). Henderson contends in his SAG that the trial court denied him a fair trial and the right to represent himself. But the record demonstrates that the court allowed him to represent himself. For example, the court carefully considered the type of restraints Henderson would wear in order to allow him to effectively represent himself and question witnesses during his trial. The court patiently explained the necessity defense to Henderson and provided a CrR 3.5 hearing where Henderson represented himself. And the court responded to Henderson's complaints regarding access to the library and legal research by expanding its order regarding legal materials. The trial court did not violate Henderson's due process rights. Henderson also asserts that it was error for the court to not hold an evidentiary hearing on his motion to withdraw his plea in January 2003; however, at the court's hearing on his motion, the court gave him the opportunity to argue and Henderson stated, 'I'd just like to base my argument pretty much on what I've stated in my memorandum? And go ahead and leave it at that.' RP (Jan. 17, 2003) at 2-3. And as previously discussed, Henderson's withdrawal motion incorporates affidavits previously filed, and the court reviewed this evidence in its memorandum decision denying the motion. Henderson's additional argument concerns alleged discovery violations that we have previously discussed, but are also unsupported by the record.
In summary, we hold that the trial court did not err in denying Henderson's motion to withdraw his plea. Henderson's arguments that we should reverse the trial court's decision are unpersuasive given Henderson's colloquy with the court at the time of the plea, his signature on the plea in open court with the assistance of standby counsel, and his own request to accept the State's plea after the State was ready for trial. And Henderson's primarily self-serving allegations of coercion by correction officers do not satisfy the high evidentiary burden to demonstrate an involuntary plea.
We affirm.
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.
ARMSTRONG, P.J. and HUNT, J., Concur.