Opinion
No. 52443-7-I, Consolidated w/ No. 53643-5-I
Filed: October 4, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-07005-8. Judgment or order under review. Date filed: 05/02/2003. Judge signing: Hon. Charles W Mertel.
Counsel for Appellant(s), Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Antonial Monroe appeals from the superior court's denial of his motion to withdraw his Alford plea. He argues that the superior court erred in failing to inquire into the voluntariness of the plea pursuant to CrR 4.2(f) when he moved to withdraw it. Because Monroe cited no grounds to believe that a manifest injustice had occurred, we affirm.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
This case involves two consolidated appeals, Nos. 52443-7 and 53643-5. The briefing appears to involve exclusively the denial of the motion to withdraw the guilty plea, No. 56343-5.
Antonial Monroe was originally charged with one count of unlawful possession of a firearm in the first degree. In January 2003 he entered an Alford plea on an amended charge of unlawful possession of a firearm in the second degree. A sentencing hearing initially was set for March 2003 but the court granted Monroe's motion to continue it to May 2003. Appearing with new counsel, Monroe again moved to continue sentencing in order to obtain an evaluation to support an exceptional sentence downward. The superior court denied the motion.
In light of the denial of the continuance, counsel indicated that Monroe now wished to withdraw his plea. The State opposed the motion, arguing that Monroe had failed to make a `colorful [sic] showing there's some reason the plea is in question.' In support of his motion to withdraw the plea counsel explained that:
there are factual issues if this matter would go to trial. Again, I didn't discuss with Mr. Monroe or do the plea, but just reviewing it, I believe there are factual issues that are in dispute and Mr. Monroe would like to contest them at trial.
Monroe also spoke at the hearing and told the court that all along he had told his attorney that he wanted to withdraw his plea, but that his attorney advised him that he should request a continuance first. The superior court denied Monroe's motion to withdraw the plea without analyzing the CrR 4.2(f) criteria. Monroe faults the superior court for failing to reference any of the CrR 4.2(f) criteria when it denied his motion. CrR 4.2(f) provides for the withdrawal of a guilty plea when a defendant has demonstrated a manifest injustice occurred due to several enumerated circumstances. Those circumstances include: (1) the denial of effective assistance of counsel; (2) the defendant or one authorized by the defendant did not ratify the plea; (3) the plea was involuntary; or (4) the prosecution breached the plea agreement. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001).
The defendant bears the burden of proving manifest injustice, defined as obvious, directly observable, overt, and not obscure. State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996). The only reason given in support of the motion was that Monroe's new counsel thought there would be disputed factual issues if the matter proceeded to trial and that his client now wanted to contest them at trial. On appeal, Monroe now argues that his counsel's brief remarks at sentencing raised the inference that he believed previous counsel had not fully discussed the factual issues or possible defenses and his performance may therefore have been deficient. Monroe failed to establish a manifest injustice under any of the CrR 4.2(f) criteria. He cites no cases in support of his claim that the superior court must inquire into the voluntariness of a plea when a defendant moves to withdraw; that burden exists when the plea is entered. See, State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003), rev. denied, 151 Wn.2d 1011 (2004). As neither Monroe nor his attorney said anything to indicate that the plea was constitutionally infirm, the superior court did not err in denying his motion. We affirm.
KENNEDY, GROSSE and COLEMAN, JJ., Concur.