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No. 56786-1-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-13000-6, Christopher A. Washington, J., entered August 24, 2005.
Counsel for Appellant(s), David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Counsel for Respondent(s), Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA, 98104-2385.
Affirmed by unpublished per curiam opinion.
Claiming ineffective assistance of counsel, Michael Johnson challenges the trial court's decision to deny his motion to withdraw his Alford plea to first degree rape, second degree rape, and felony harassment. Johnson also contends the community custody condition prohibiting him from viewing or possessing pornography is unconstitutional. We affirm.
FACTS
In July, 2004, W.G. was a prostitute and was homeless. W.G. was walking on the street in Kent, in the early morning, when an African American man stopped his van, approached her, and offered to "help her out." The man drove W.G. to a secluded parking lot and told her to get into the back of the van. When W.G. said she wanted to leave, the man grabbed her by the throat and started to choke her. He told W.G. she had three seconds to take her pants off or he would get his gun. He said no one would miss a homeless girl. Because she feared for her life, W.G. took off her clothes. The man repeatedly raped her anally. Afterwards, he drove to a nearby grocery store and let W.G. go and warned her not to tell anyone what had happened. As the man drove away, W.G. wrote down the license plate number.
W.G. reported the rape to the Kent Police. She gave the police the license plate number and described the man as a black male about six feet tall and 160 pounds. The license plate number matched a 1998 silver Plymouth Voyager registered to Michael Johnson. At approximately 5:00 a.m., Kent police went to Johnson's apartment. The police found the Plymouth Voyager in the parking lot. The hood was still warm. The police arrested Johnson and escorted him outside to the police car. In the parking lot, W.G. positively identified Johnson as the man who raped her.
Forensic testing matched Johnson's DNA to the DNA swab obtained from W.G. during the sexual assault examination. The probability of a randomly selected match for the DNA was in 4,600. The probability of a randomly selected match for the DNA from W.G.'s shorts was 1 in 38,000.
North Carolina v. Alford, 400 U.S. 25, 27, L. Ed. 2d 162, 91 S. Ct. 160 (1970).
On July 23, 2004, the State charged Johnson with first degree rape of W.G. in violation of RCW 9A.44.040(1)(a). The attorneys from the Society of Counsel Representing Accused Persons (SCRAP) were assigned to represent Johnson. The trial was scheduled for November 8, 2004.
RCW 9A.44.040 states:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
(b) Kidnaps the victim; or
(c) Inflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious; or
(d) Feloniously enters into the building or vehicle where the victim is situated.
After receiving the Kent police bulletin about the rape of W.G., Tacoma police contacted Kent police regarding a similar rape under investigation. On June 19, 2004, around 2:00 a.m., an African American man picked up T.B. in Tacoma. T.B. was a prostitute. After stopping at a Bank of America ATM machine in Fife, the man drove T.B. to the secluded driveway of a church. He told T.B. to get into the back of the van. When T.B. demanded payment, he grabbed her by the throat and started to choke her. The man told T.B. to take off her clothes and said he had knives and guns in the van. After instructing T.B. to perform oral sex, he put on a condom and forcefully raped T.B. While the man was getting dressed, T.B. escaped and reported the rape to police. She described the man as a black male about 5'7" to 5'8" tall and 160 pounds.
An ATM photograph showed a male wearing a light colored baseball hat with a "D" embroidered on the front and a short sleeve collared shirt with a plaid design. T.B. identified the man in the ATM photograph as the man who raped her. Forensic DNA testing matched Johnson's DNA to the sperm taken from the condom he left in T.B.'s shirt pocket. The estimated probability of a randomly selected match was 1 in 10 quadrillion.
Based on the two rapes, Tacoma police obtained a search warrant for Johnson's residence. Tacoma police recovered a number of items depicted in the ATM photograph — a plaid shirt, a baseball hat with the embroidered "D", and a pair of shoes. Johnson's wife told police that the ATM photograph looked like her husband.
In mid-October, the State extended a plea offer to Johnson that included resolution of the Tacoma rape. Johnson met with his attorney on multiple occasions to review the discovery and discuss whether to accept the State's offer. Other attorneys from SCRAP also met with Johnson to discuss the plea and the risks associated with proceeding to trial. Johnson insisted on rejecting the plea and proceeding to trial.
On October 29, 2004, the court granted Johnson's request to continue the trial and set a new trial date of January 17, 2005. On December 16, 2004, W.G. was arrested on a material witness warrant and held in custody pending the trial.
On January 20, 2005, Johnson requested another continuance of the trial. The State expressed concern about continuing to hold W.G. in custody on the material issue warrant. The court scheduled the trial to begin on January 26, 2005.
On December 22, 2004, Johnson was ordered to submit to a two-week evaluation at Western State Hospital. The Western State Hospital forensic psychological evaluation concluded Johnson was competent to stand trial. On January 20, 2005, the court ruled Johnson was competent to stand trial.
At the omnibus hearing on January 21, Johnson's attorney confirmed that interviews of W.G. and T.B. were scheduled to take place before trial on the Monday and the Tuesday of the following week. The prosecutor provided additional discovery to Johnson and his attorney at the omnibus hearing, including a number of photographs showing W.G.'s injuries.
Immediately after the omnibus hearing, Johnson told his attorney he changed his mind and wanted to accept the State's plea offer. The State agreed to offer Johnson the opportunity to enter a plea to rape in the first degree for W.G., rape in the second degree for T.B., and a single count of felony harassment. The State also agreed to recommend a concurrent sentence on the three counts. But because W.G. was being held on the material witness warrant, the offer expired by the end of the day. Johnson agreed to accept the State's offer.
The plea hearing was held later that same day. The prosecutor arraigned Johnson on the amended information and engaged in a plea colloquy with Johnson on the "Statement of Defendant on Plea of Guilty to a Felony Sex Offense". During the colloquy, the prosecutor confirmed that Johnson did not feel rushed and that Johnson was not concerned about his lawyer's preparation for trial. After the court engaged in additional colloquy with Johnson, the court accepted the plea as knowing, intelligent, and voluntary.
Johnson waived his objection to venue for the Tacoma rape in order to resolve both cases.
Prior to sentencing, Johnson filed a motion to withdraw his plea on two grounds: he did not understand the consequences of an Alford plea or indeterminate sentencing, and he felt rushed into taking the plea. In supplemental briefing, Johnson also alleged trial counsel provided ineffective assistance by failing to conduct an independent investigation.
A hearing on Johnson's motion to withdraw his plea was conducted over the course of four days. The court denied Johnson's motion to withdraw his plea and entered detailed findings of fact and conclusions of law. On August 19, 2005, the court sentenced Johnson to concurrent sentences for 129 months for rape in the first degree, 111 months for rape in the second degree, and four months for felony harassment. As a condition of community custody, Johnson was prohibited from viewing or possessing pornography as defined by his treatment provider.
ANALYSIS
Motion to Withdraw Alford Plea
On appeal, Johnson challenges the trial court's decision to deny his motion to withdraw his guilty plea based on ineffective assistance of counsel. We review a court's decision on a motion to withdraw a guilty plea for abuse of discretion. State v. Padilla, 84 Wn. App. 523, 525, 928 P.2d 1141 (1997). A court abuses its discretion if it is based on untenable grounds or is based on untenable reasons. State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998). The withdrawal of a plea is governed by CrR 4.2(f), which permits a guilty plea to be withdrawn only when "it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f). A "manifest injustice" is one that is "obvious, directly observable, overt, not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). If a defendant receives ineffective assistance of counsel in entering a guilty plea, it results in a manifest injustice. Taylor, 83 Wn.2d at 597; State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991).
To prevail on a claim for ineffective assistance of counsel, Johnson must show his counsel's performance was deficient and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Because Johnson cannot show prejudice, we need not address the deficiency prong. Strickland, 466 U.S. at 697
"In satisfying the prejudice prong, a defendant challenging a guilty plea must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." In re Personal Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993) (citing Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985)).
Johnson claims prejudice based on his counsel's failure to interview W.G. and T.B.; failure to interview the patrons of the bar T.B. went to on the night of the rape; and failure to obtain a DNA expert. When counsel's alleged error is the failure to investigate, "the assessment of whether the error prejudiced the defendant involves the likelihood that the evidence `would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.'" State v. Garcia, 57 Wn. App. 927, 933, 791 P.2d 244 (1990) (quoting Hill, 474 U.S. at 59)).
Bare assertions that a defendant would not have pleaded guilty but for defense counsel's alleged deficiency is not sufficient to establish prejudice. In re Riley, 122 Wn.2d at 782. Here, Johnson makes bar assertions and does not identify what additional investigation would have changed his decision to plead guilty. Nevertheless, we conclude his counsel's decision to delay the interviews of W.G. and T.B. was a strategic decision; the failure to interview bar patrons was inconsequential; and because the non-DNA evidence connecting Johnson to the rape of W.G. and T.B. was overwhelming, a defense DNA expert would not have changed the outcome of the trial.
There is no dispute that the King County Prosecutor's policy in rape cases is to terminate all plea negotiations and proceed to trial after the defense interview of the rape victim. The decision to delay interviewing the rape victims until right before trial was a legitimate strategic decision. Once the interviews were complete, a plea offer was no longer available. Because the decision to delay interviewing the rape victims was a strategic decision, it cannot serve as a basis for a claim of ineffective assistance of counsel. State v. Mark, 105 Wn.2d 692, 731, 718 P.2d 407 (1986).
The record also supports the court's conclusion that failing to interview the bar patrons about T.B. was inconsequential. During the hearing on Johnson's motion to withdraw the plea, his trial counsel testified about why interviews of the bar patrons was inconsequential.
The things that I was asking to have investigated were relatively minor in the grand scheme, even if the jury believed best case scenario, if that investigation came out that [T.B.] was completely smashed and she lies all the time, even if the jury heard that and believed it, I think that he would still ultimately be convicted based on the fact that there were two allegations that were very similar that were happening to different people who didn't know each other. And again, compared to what our story was, I didn't think we would win.
In addition, Johnson cannot establish prejudice as a result of his counsel's failure to obtain a defense DNA expert because the other evidence connecting him to the rapes was overwhelming. W.G. took down the license plate number of the man who raped her. The license plate number and the van was registered to Michael Johnson. W.G. positively identified Johnson as the man who raped her. Before raping T.B., Johnson obtained money from an ATM cash machine. The clothing depicted in the ATM photograph matched the items obtained from Johnson's apartment. T.B. identified the man in the ATM photograph and Johnson's wife also positively identified Johnson as the man in the photograph. On this record, Johnson fails to establish prejudice.
Findings of Fact and Conclusions of Law
Johnson also challenges several of the findings of fact and conclusions of law in support of the court's denial of the motion to withdraw his guilty plea. We review the trial court's findings of fact and conclusions of law to determine whether substantial evidence supports the court's challenged findings of fact and in turn, whether those findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); State v. Rodgers, 146 Wn.2d 55, 61, 43 P.3d 1 (2002). Substantial evidence is evidence that is sufficient to persuade a fair-minded, rational person of the truth of the finding. Hill, 123 Wn.2d at 644. The trial court is in the best position to assess the credibility of witnesses, and observe the demeanor of those testifying. Hill, 123 Wn.2d at 646.
Substantial evidence supports the court's finding that the decision to schedule the victim interviews just before trial was a legitimate trial tactic, that lack of a DNA expert did not impact Johnson's decision to plead guilty, and that Johnson's lawyer would have been prepared to go to trial by the trial date. To allow Johnson the opportunity to continue to engage in plea negotiations, the interviews of W.G. and T.B. were scheduled to take place right before trial. Johnson's trial counsel produced time records and testified that she would be prepared by the time of trial. And, as discussed, the decision to not retain a defense DNA expert would not have changed the outcome of the trial. In challenging the court's finding that there is no evidence that W.G. and T.B. had any connection with one another, Johnson argues there might have been a connection. Johnson's argument is based on speculation and unsupported by evidence.
The court's finding that Johnson was not rushed into his plea is also supported by substantial evidence. During the plea colloquy, the prosecutor specifically asked Johnson whether he felt rushed into the plea.
Prosecutor: Mr. Johnson, you were aware, obviously, that Defense Counsel asked for a continuance earlier this week and that was denied. Are you comfortable going forward with this plea today knowing that the continuance was denied and that we have trial next week?
Johnson: Yes.
Prosecutor: Do you feel rushed into this plea?
Johnson: No.
. . .
Prosecutor: Are you okay with the preparation that Counsel went through in anticipation of trial?
Johnson: Yes.
Prosecutor: Okay.
The court was in the best position to assess whether Johnson appeared to be rushed into the plea and concluded he was not. Hill, 123 Wn.2d at 646. Community Custody Condition
Johnson also argues the community custody condition prohibiting him from viewing or possessing pornography is unconstitutionally vague, overbroad, and an excessive delegation of authority. The condition states:
(11) Do not possess or peruse pornographic materials (as defined
by your treatment provider) unless given prior approval by your sexual deviancy treatment specialist and/or Community Corrections Officer.
Johnson argues the term "pornographic materials" is not defined in a way that ordinary people can understand what conduct is prohibited. Johnson also argues that delegating the authority to define "pornographic materials" to the treatment provider is improper and does not cure the vagueness.
A statute is unconstitutionally vague if either "(1) the statute `does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed'; or (2) the statute `does not provide ascertainable standards of guilt to protect against arbitrary enforcement.'" State v. Halstien, 122 Wn.2d 109, 117, 857 P.2d 270 (1993) (quoting Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). The same is true for a vagueness challenge to a sentencing condition. State v. Smith, 130 Wn. App. 721, 726-727, 123 P.3d 896 (2005).
A vagueness challenge that does not involve First Amendment rights is evaluated in light of the particular facts of each case. Douglass, 115 Wn.2d at 182 (citing Maynard v. Cartwright, 486 U.S. 356, 361, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988)). In other words, the challenged prohibition must be examined as applied to the defendant's alleged conduct and not hypothetical situations at the periphery of the rule's scope. Douglass, 115 Wn.2d at 181-83.
A facial vagueness challenge is a challenge that the terms of the prohibition "are so loose and obscure that they cannot be clearly applied in any context." Douglass, 115 Wn.2d at 182 n. 7.
Relying on State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005), Johnson attempts to challenge the condition on its face. In Sansone, the terms of Sansone's community placement condition required Sansone "not possess or peruse pornographic materials unless given prior approval by [his] sexual deviancy treatment specialist and/or Community Corrections Officer. Pornographic materials are to be defined by the therapist and/or Community Corrections Officer." Sansone, 127 Wn. App. at 634-635. We concluded that the term "pornography" was unconstitutionally vague. And while acknowledging that sentencing courts have the power to delegate some aspects of community placement to the department of corrections, we concluded the delegation to Sansone's community corrections officer to define pornography was improper and failed to cure the unconstitutionally vague condition. Id. at 639, 642. Our conclusion in Sansone, was based, in part, on United States v. Loy, 237 F.3d 251, 267 (3rd Cir. 2001).
In Loy, the federal court held that a prohibition against possessing "pornography" was unconstitutionally vague. But unlike in Sansone, in that case, the condition had not yet been enforced. The government contended that Loy's challenge to the pornography prohibition should not be addressed prior to an attempt to enforce its terms based on several arguments that implicated both the ripeness doctrine and standing considerations. Loy, 237 F.3d at 256. In rejecting the government's argument and concluding that it was appropriate to reach the merits of the offender's pre-enforcement challenge, the court reasoned that (1) "there are important differences between a probationer on supervised release and a member of the general public"; (2) "persons under conditions of supervised release are presumably more likely to be `prosecuted' for their violations — these conditions are, after all, special `laws' tailored only to them"; and (3) whereas justiciability doctrines such as standing, ripeness, and mootness stem from concerns with allowing "other branches of government to engage in their normal process of lawmaking before invoking the judicial power to stop such efforts", no such concerns are present where the "law" being challenged is created by the judiciary. Loy, 237 F.3d at 260-261.
While in Sansone, we followed Loy to conclude that a prohibition against "pornography" is unconstitutionally vague, we did not reach the issue of whether it is appropriate to address a pre-enforcement challenge. Here, Johnson attempts to challenge the condition prior to its enforcement. Because Johnson presents no reason why we should evaluate his vagueness challenge on its face rather than as applied, we decline to do so.
Relying on State v. Stephenson, 89 Wn. App. 794, 800, 950 P.2d 38 (1998), and State v. Knowles, 91 Wn. App. 367, 372, 957 P.2d 797 (1998), Johnson also argues the condition is overbroad and violates the free speech protections of the First Amendment. A criminal statute that sweeps constitutionally protected free speech activities within its prohibition may be overbroad and violate the First Amendment. Stephenson, 89 Wn. App. at 800. When considering whether a criminal statute is overbroad, courts will consider "(1) whether the challenged statute reaches constitutionally protected speech or expression and (2) whether it proscribes a real and substantial amount of speech." Knowles, 91 Wn. App. at 372.
But Johnson is not challenging the overbreadth of a criminal statute. Rather, Johnson is challenging the condition imposed as part of his community custody sentence. And Johnson does not claim that the court violated the SRA by imposing a condition that does not "reasonably relate to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community." Accordingly, we reject Johnson's overbreadth challenge to his condition.
"`[A] defendant's constitutional rights during community placement are subject to the infringements authorized by the [Sentencing Reform Act] (SRA).'" State v. Riles, 135 Wn. 2d 326, 347, 957 P.2d 655 (1998) (quoting State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996)); State v. Llamas-Villa, 67 Wn. App. 448, 455, 836 P.2d 239 (1992). In sentencing a defendant convicted of rape in the first degree or rape in the second degree, the SRA requires the sentencing court to impose a maximum term consisting of the statutory maximum sentence for the offense. RCW 9.94A.712. The SRA also requires the court to sentence the defendant to community custody under the supervision of the department of corrections for any period of time the defendant is released from total confinement and before the expiration of the maximum sentence. RCW 9.94A.712(5). And as part of the conditions of community custody, the SRA permits the court to order the defendant "to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community. . . ." RCW 9.94A.712(6)(a)(i).
We affirm.
RONALD COX and STEPHEN J DWYER, JJ., concur.