Opinion
No. 47028-1-I.
Filed: June 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-1-06754-0, Hon. Charles W. Mertel, June 22, 2000, Judgment or order under review.
Counsel for Appellant(s), James F. Leggett, Leggett Kram, 1901 South `I' Street, Tacoma, WA 98405.
Counsel for Respondent(s), Keith P. Scully, 516 3rd Ave, Seattl, WA 98104.
Jaroslaw Kozak appeals the trial court's denial of his motion to withdraw his guilty plea. We conclude that the trial court did not abuse its discretion in rejecting Kozak's motion and affirm.
PROCEDURAL HISTORY
The substantive facts relating to the crimes are not relevant here.
In 1998, Kozak, an undocumented person, was charged by information with one count of first degree burglary, one count of interfering with domestic violence reporting, and one count of taking a motor vehicle without owner's permission. The State later amended the information to include one count of fourth degree assault (domestic violence) and one count of attempted taking a motor vehicle. At the plea hearing, Kozak pleaded guilty to the amended charges.
See RCW 9A.52.020.
See RCW 9A.36.150.
See RCW 9A.56.070.
See RCW 9A.36.041.
See RCW 9A.56.070.
Because Kozak is not a native English speaker, the State asked the court to confirm at the plea hearing that Kozak understands English. Michael Danko, Kozak's trial counsel, replied that `we have never failed to communicate. I've been representing him for over three months. We've never used an interpreter.' Danko stated he had gone over the statement of defendant on plea of guilty `completely [and] he indicated to me that he understood it.' Kozak agreed that Danko had reviewed the form with him and answered any questions before Kozak signed it. That form explains that for non-citizen defendants, `a plea of guilty to an offense punishable as a crime under state law is grounds for deportation[.]' The judge then instructed Kozak to inform him `[i]f there's any point today where I say something you have a question about or you don't quite understand the word or whatever[.]' Kozak replied, `All right.' The court then explained the various implications of a guilty plea, throughout which Kozak continually replied, `I understand.' The court also informed Kozak of the State's sentencing recommendation, which included release pending sentencing `if there is no Immigration and Naturalization hold on you[.]' Kozak replied, `Yes, I do' when the judge asked him if he understood the State's recommendation. The court then asked Kozak numerous questions about whether his plea was voluntary and whether he understood its consequences, to which Kozak replied affirmatively.
Finally, the following exchange took place about the possibility of Kozak being deported as a consequence of his guilty plea:
The Court: . . .
Then at this time, Mr. Kozak, I am going to find — Well, first of all, Mr. Kozak, I almost need to make sure that you understand if you're not a citizen of the United States, pleas of guilty to these charges could affect your status here in the United States; do you understand that? Do you understand you could be deported? Mr. Danko: You understand that [Immigration and Naturalization Service] could take action.
The Defendant: Yes, I understand that.
The court then announced its finding that Kozak had entered into the pleas `freely and voluntarily with full knowledge of the consequences.'
Kozak later filed a motion to withdraw his guilty plea under CrR 4.2(f), contending that he entered the plea `without full knowledge of its direct consequences. Specifically, I did not have knowledge that my decision to accept the states's [sic] offer would establish a foundation and grounds for my deportation.' A hearing was held, and Kozak and Danko offered conflicting testimony about whether Danko had informed Kozak that a guilty plea may result in deportation proceedings against him by the Immigration and Naturalization Service (INS). The court concluded that `it's abundantly clear to this Court, beyond any reasonable doubt in this Court's mind, that you were fully and fairly informed that the consequences of the plea that you were entering would — could result in your deportation.' Kozak appealed.
DISCUSSION
Due process requires a guilty plea to be knowing, intelligent and voluntary. A court shall not accept a plea of guilty without first determining that the plea is made `voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.' A court shall allow the defendant to withdraw the guilty plea `whenever it appears that the withdrawal is necessary to correct a manifest injustice.' This court reviews a trial court's denial of a motion to withdraw a plea for abuse of discretion. Abuse of discretion occurs where the court's decision is based on clearly untenable or manifestly unreasonable grounds.
In re Personal Restraint of Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988).
CrR 4.2(d).
CrR 4.2(f).
State v. Martinez-Lazo, 100 Wn. App. 869, 872, 999 P.2d 1275, review denied, 11 P.3d 827 (2000).
Id.
Kozak first takes issue with the principle that when a defendant completes the plea form, and admits to reading and understanding it, there is a strong presumption of voluntariness. Kozak urges this court to disregard that presumption and conduct `an independent examination and evaluation of the facts' to determine whether his constitutional rights were violated. Specifically, Kozak draws this court's attention to an INS form that he submitted with his motion to withdraw the guilty plea. The form states that the Seattle Police Department and King County Prosecutor's Office alerted the INS to Kozak's incarceration at the King County jail. Kozak `suggests' that the prosecutor had a duty to inform him and the court of this piece of information. To support his claim, Kozak relies on cases that have discussed the court's and the prosecutor's duty to correct a defendant's mistaken beliefs. But Kozak ignores the fact that he admitted signing and understanding the plea agreement, and that the record demonstrates the trial court did clearly inform him that his guilty plea could have deportation consequences, as RCW 10.40.200(2) requires. Contrary to Kozak's contention, this case does not involve mistaken beliefs on the part of the defendant that the court or the State has a duty to correct.
State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
That section provides: Prior to acceptance of a plea of guilty to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall determine that the defendant has been advised of the following potential consequences of conviction for a defendant who is not a citizen of the United States: Deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. A defendant signing a guilty plea statement containing the advisement required by this subsection shall be presumed to have received the required advisement. . . .
Kozak next claims that at the plea hearing the trial court was required to include in the record the substance of a conversation that took place between Kozak and his counsel when the court asked Kozak whether he understood that a guilty plea could have deportation consequences. But he offers neither argument nor authority to support this contention. Further, the transcript on which Kozak's claim is based is an unofficial transcript typed by an employee at the firm of Kozak's appellate attorney, not the official record of proceedings. In contrast, the official transcript is a part of the record and does not include this conversation between Danko and Kozak. And as the quote from the official transcript set out above reflects, Danko clarified with Kozak out loud that he understood what the court was asking. Further, at the hearing on the motion to withdraw the plea, both Danko and Kozak agreed that they did confer at the plea hearing before Kozak told the judge he understood he could be deported. No legal authority suggests that the court should have investigated the discussion between Kozak and Danko on this issue further.
We do not consider issues without argument or authority. See State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).
Kozak's next two arguments question the evidentiary decisions of the trial judge that conducted the hearing on Kozak's motion to withdraw his guilty plea. First, he claims the trial court erred when it precluded a question because it had been asked and answered while Kozak's attorney was cross-examining Danko. The question was whether Danko knew Kozak's immigration status when he represented him for the guilty plea. Kozak cites ER 607, which states that any `party' may attack the credibility of a witness to suggest that the court's exclusion of the question was improper. But that argument is illogical. A trial court may properly reject evidence even when no objection is made. Danko had already testified that he knew Kozak was not a U.S. citizen but was unaware of his exact immigration status. The evidence Kozak's attorney sought was therefore cumulative, and the trial court acted within its discretion in excluding it.
See, e.g., State v. Frost, 134 Wn. 48, 234 P. 1021 (1925).
See State v. Freeman, 17 Wn. App. 377, 563 P.2d 1283, review denied, 89 Wn.2d 1007 (1977).
Kozak next cites the rules of evidence that govern expert opinions and claims that the court erred by allowing Danko `to testify to what was in the mind and objectives of [Kozak]' over objections from Kozak's counsel, `which provided inaccurate evidence in the record as to whether Mr. Denko [sic] knew or should have known the status of the defendant as an illegal alien.' Kozak offers no grounds for characterizing Danko as an expert witness, nor does he reveal what portion of the record he is talking about. Kozak's argument fails.
In sum, none of these claims even suggest that the trial court abused its discretion in reviewing and denying Kozak's motion to withdraw his guilty plea.
Finally, Kozak makes a vague claim in his brief that he received ineffective assistance of counsel because deportation is a direct consequence of a guilty plea, and Danko allegedly did not inform him of that consequence. We reject this claim as well. In addition to failing to cite the applicable legal standards, Kozak ignores State v. Martinez-Lazo, which held that despite the recent increased harshness of the deportation laws, counsel need not advise a defendant of the possibility of deportation because a deportation proceeding occurring after a guilty plea is only a collateral consequence of that plea. Deportation is a collateral civil action because it is "not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility."
Id. at 876 (citing State v. Holley, 75 Wn. App. 191, 197, 876 P.2d 973 (1994)).
Id. at 877 (quoting Peters, 50 Wn. App. at 704).
Accordingly, the major premise of Kozak's ineffective assistance argument — that deportation is a direct consequence of a guilty plea — is wrong. In addition, Danko presented strong testimony at the hearing on Kozak's motion to withdraw that he did indeed inform Kozak of the potential deportation consequences of his plea. Although Kozak testified to the contrary, credibility determinations are for the trial court, and we will not disturb them on appeal.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Gregory, 80 Wn. App. 516, 520, 910 P.2d 505, review denied, 129 Wn.2d 1009 (1996).
Affirmed.