Opinion
No. 35000-9-II.
November 6, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01009-6, Craddock D. Verser and Sally F. Olsen, JJ., entered May 19, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Penoyar, J.
Israel Vianzon Magtanong appeals from a denial of his motion to withdraw his plea of guilty to delivery of methamphetamine and possession of a controlled substance with intent to deliver. We affirm.
FACTS
On June 15, 2004, Bremerton law enforcement used a confidential informant (CI) to make an undercover purchase of methamphetamine from Israel Magtanong. The police did not see the transaction, but the CI identified Magtanong as the person from whom he purchased the drugs. Eight days later, the police made a similar purchase using the same informant. At this transaction, a different person delivered the drugs; he was immediately arrested and he identified Magtanong as the source of the methamphetamine.
The State charged Magtanong with delivery of methamphetamine and possession of a controlled substance with intent to deliver. The Ness firm was appointed as counsel on June 24, 2004. But because Magtanong wished to proceed in drug court, the trial court permitted the Ness firm to withdraw as counsel on September 3, 2004. Jacob Murphy substituted as Magtanong's counsel and the Crawford firm was appointed on October 14, 2004.
The case proceeded to trial as the State filed its witness list and Mantanong filed his motion to suppress. But before the trial court held a CrR 3.6 hearing, Magtanong pleaded guilty as charged. The State never disclosed the CI's identity. The trial court sentenced Magtanong to 15 months on both counts to run concurrently.
After learning that Murphy and the Crawford firm represented the CI in a separate matter at the same time it was representing him in this matter, Magtanong moved to withdraw his guilty plea. Magnatong claims that his attorney's conflict of interest denied him effective assistance of counsel. He insists that he identified the CI to his attorney. But at an evidentiary hearing, Murphy testified that he did not remember Magtanong identifying the CI. Moreover, Murphy testified that he did not remember representing the CI, even though the record reflected that he appeared on the CI's behalf in a probation hearing. Murphy did admit that he did not conduct a conflicts check, but he could not be certain whether his office had conducted one. The trial court denied Magtanong's request to withdraw the guilty plea.
ANALYSIS Magtanong asserts that the trial court should have granted his motion to withdraw his guilty plea because a conflict of interest existed when Murphy, his assigned public defender, failed to conduct a conflicts check. Magtanong contends that Murphy simultaneously represented the same CI used against him in a separate matter that was directly adverse to him. In a statement of additional grounds (SAG), Magtanong also claims that he received ineffective assistance of counsel because his appointed counsel (1) was overworked and had little time to adequately prepare for his defense and (2) failed to warn him that pleading guilty to delivery of methamphetamine would result in his deportation. I. Motion to Withdraw Guilty Plea We review the trial court's ruling on a motion to withdraw a guilty plea for an abuse of discretion. State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006) (citing State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001)). A trial court must allow withdrawal of a guilty plea when necessary to correct a manifest injustice. CrR 4.2(f); Marshall, 144 Wn.2d at 280-81. A manifest injustice exists if: (1) the defendant was denied effective assistance of counsel, (2) the defendant did not authorize the plea, (3) the plea was involuntary, or (4) the prosecution violated the plea agreement. Marshall, 144 Wn.2d at 281. Magtanong argues that he was denied effective assistance of counsel because Murphy concurrently represented the CI in an additional, unrelated matter.A. Effective Assistance of Counsel
The Sixth Amendment provides criminal defendants the right to effective assistance of counsel, free from conflict of interest. State v. Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003); State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996). We review challenges to effective assistance of counsel de novo. White, 80 Wn. App. at 410. An attorney's conflict of interest creates reversible error without a showing of actual prejudice if "'a defendant shows an actual conflict of interest adversely affecting his lawyer's performance.'" White, 80 Wn. App. at 411 (quoting In re Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983)); see also Dhaliwal, 150 Wn.2d at 571. Magtanong asserts that the actual conflict rule applies here.In determining whether an actual conflict of interest deprived a defendant of effective assistance of counsel, we engage in a two-prong inquiry asking: (1) whether there was an actual conflict, and if so, (2) whether the conflict adversely affected the performance of the defendant's attorney. White, 80 Wn. App. at 411.
An actual conflict exists when a defense attorney owes a duty to another party whose interests are adverse to those of the defendant. State v. Byrd, 30 Wn. App. 794, 798, 638 P.2d 601 (1981). Washington's Rules of Professional Conduct (RPC) prohibit an attorney from representing a client if the attorney's duties to another are materially limited. RPC 1.7(b). But this rule "does not embody the constitutional standard for effective assistance of counsel on appeal." White, 80 Wn. App. at 412-13. Even if an attorney commits a technical violation of RPC 1.7(b), there must be some indication that he is actively representing conflicting interests before an actual conflict exists. White, 80 Wn. App. at 412; see also Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
Thus, Magtanong must point to specific instances in the record that suggest an actual conflict or impairment of his interest and instances suggesting that his lawyer's performance was adversely affected. See State v. Graham, 78 Wn. App. 44, 55, 896 P.2d 704 (1995). Magtanong has failed to show that an actual conflict of interest exists.
During the hearing on Magtanong's motion to withdraw guilty plea, Murphy testified that he did not recall representing the CI or any conversations they may have had. Nor did he recall whether Magtanong relayed the CI's name. In fact, Murphy asserted that he did not learn the CI's name until the afternoon of the evidentiary hearing. Although Murphy acknowledged appearing on the CI's behalf for a probation violation status hearing, that was his only contact with the CI.
Magtanong argues that Murphy's representation of the CI, no matter how brief, amounts to a manifest injustice requiring the court to allow him to withdraw his guilty plea. Magtanong relies on State v. Santacruz-Hernandez, 109 Wn. App. 328, 40 P.3d 672 (2001), review denied, 146 Wn.2d 1019 (2002), for the proposition that simultaneous representation of a defendant and a CI amounts to a conflict of interest. But that case did not turn on whether there was a conflict of interest between the representation of the defendant and CI. Instead, the holding of the case was based on the trial court's failure to inquire into the nature of the conflict after defense counsel brought it to the court's attention. Santacruz-Hernandez, 109 Wn. App. at 330.
This case is unlike Santacruz-Hernandez. Here, neither Murphy nor the trial court learned of the potential conflict until 10 months after Magtanong was sentenced. In Santacruz-Hernandez, the defense attorney requested a 24-hour continuance because she needed to ascertain whether her perceived conflict of interest would prevent adequate representation of the defendant. Santacruz-Hernandez, 109 Wn. App. at 333. But Murphy was unaware of any potential conflict and therefore did not materially limit his representation of Magtanong as RPC 1.7(b) required.
Magtanong cites nothing from the record to prove that Murphy had an actual conflict that adversely affected him. We have already held that an ethical violation is not proof of an adverse impact. White, 80 Wn. App. at 412. Murphy's representation of Magtanong did not amount to ineffective assistance of counsel; there was no manifest injustice during the trial court phase of Magtanong's case. Absent a manifest injustice, the trial court is not obligated to grant a defendant's motion to withdraw a plea. We hold that the trial court did not abuse its discretion when it denied Magtanong's motion to withdraw his guilty plea.
II. Ineffective Assistance of Counsel
In his SAG, Magtanong argues that he received ineffective assistance of counsel because: (1) Murphy was overworked and failed to contact the witnesses he provided on his behalf, and (2) he was not advised that pleading guilty to delivery of methamphetamine would result in his deportation. But the record DOes not reveal what the witnesses would have testified to or what advice, if any, his attorney gave regarding his plea decision and possible deportation. Therefore, the record is inadequate for us to determine whether counsel's performance fell below an objective standard of reasonableness as to constitute deficient representation. See In re Personal Restraint of Waggy, 111 Wn. App. 511, 518, 45 P.3d 1103 (2002) (appellate courts will not consider evidence outside the trial record); Byrd, 30 Wn. App. at 800 (a personal restraint petition is the appropriate procedure to raise a claim of ineffective assistance of counsel on appeal based on matters outside the record); RAP 10.10(c). Thus, these claims fail.
We do note, however, that deportation proceedings that occur subsequent to the entry of a guilty plea are merely a collateral consequence of that plea. See State v. Martinez-Lazo, 100 Wn. App. 869, 876, 999 P.2d 1275, review denied, 142 Wn.2d 1003 (2000); State v. Ward, 123 Wn.2d 488, 512-13, 869 P.2d 1062 (1994); State v. Malik, 37 Wn. App. 414, 416, 680 P.2d 770 (1984). Accordingly, Magtanong need not have been advised of the possibility of deportation. See Martinez-Lazo, 100 Wn. App. at 878; Ward, 123 Wn.2d at 512; Malik, 37 Wn. App. at 416-17.
Affirmed.
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.
HOUGHTON, CJ. and PENOYAR, J., concur.