Opinion
No. 35577-9-II.
January 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02271-0, Katherine M. Stolz, J., entered October 11, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Richard Allen Napier appeals his conviction of one count of unlawful possession of methamphetamine. He argues that his guilty plea was not knowing and voluntary because the trial court did not inform him of a direct consequence of his plea that he could receive a consecutive sentence. He also contends that he received ineffective assistance of counsel. We affirm.
FACTS
In October 2006, Napier pleaded guilty to one count of unlawful possession of a controlled substance, methamphetamine in Pierce County. At the time he entered his plea, he was already serving time on a 60-month sentence for a separate King County offense; he had approximately 32 months remaining on that sentence. In the plea agreement, the State recommended that the trial court run the sentence for the Pierce County offense concurrent with the King County sentence.
Napier's signed plea agreement averred that he understood the consequences of his guilty plea, including the maximum sentence for his crime and that the State was recommending a concurrent sentence. It also stated that: he made his plea voluntarily; no promises were made to cause him to enter into the plea except as set forth in the agreement; his counsel had fully explained all paragraphs to him; if he had questions about the agreement, he understood that he could and needed to ask the trial court when he entered his plea; and the trial court did not have to follow anyone's recommendation as to the sentence.
Defense counsel also signed the plea agreement stating: "I have read and discussed this statement with the defendant and believe that the defendant is competent and fully understands the statement."; and by the trial court stating in part: "I find the defendant's plea of guilty to be knowingly, intelligently, and voluntarily made. Defendant understands the charges and the consequences of the plea." Clerk's Papers at 5.
At the plea hearing, defense counsel told the trial court that she had reviewed the plea agreement with Napier and that he understood the standard range of punishment and maximum term. She stated that she told Napier that the State's recommendation was "just a recommendation," not binding on the trial court, and that she believed his plea to be knowing, voluntary, and intelligent. Report of Proceedings (RP) at 4.
The trial court also confirmed Napier's understanding of the maximum sentence and the State's sentencing recommendation and that nothing compelled the court to follow that recommendation, but that it could sentence him to any sentence within the standard range. It also confirmed that no one made him promises to ensure that he signed the plea agreement. The trial court then accepted his guilty plea.
Defense counsel next explained to the trial court why Napier requested that it follow the State's recommendation to run the Pierce County and King County sentences concurrently. Following her explanation, the trial court asked Napier if he had anything he wished to say and Napier replied, "No." RP at 9.
The trial court then sentenced Napier to 24 months to run consecutive to his King County sentence. In imposing the consecutive sentence, the court relied on Napier's two offenses being committed in different counties and his extensive criminal history that included 33 prior felonies.
After the trial court imposed the sentence, a colloquy ensued during which Napier claimed defense counsel had lied to him and told him that the sentences would run concurrently. He then asked the trial court to allow him to withdraw his plea. The trial court declined to do so and Napier appeals.
ANALYSIS Involuntary Plea
Napier first contends that he did not enter a knowing and voluntary guilty plea in violation of his due process rights because the trial court did not inform him that he could receive a consecutive sentence. Thus, he argues that he pleaded guilty based on a material misunderstanding that he could receive only a concurrent sentence.
We review constitutional challenges de novo. State v. Jones, 159 Wn.2d 231, 237, 149 P.3d 636 (2006), cert. denied, 127 S. Ct. 2066 (2007). On review, the record of the plea hearing must affirmatively disclose that a defendant entered a guilty plea knowingly and voluntarily with a full understanding of the consequences of the plea. CrR 4.2(d); Wood v. Morris, 87 Wn.2d 501, 503, 554 P.2d 1032 (1976). Where a defendant admits to reading, understanding, and signing his plea agreement, it creates a strong presumption that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
Here, the trial court reviewed Napier's signed plea agreement. The agreement set forth the maximum sentence on his crime (12 to 24 months, plus 9 to 12 months' community custody) and the State's recommendation that the trial court run the Pierce County sentence concurrent with the King County sentence. The only discussion of concurrent sentencing in the plea agreement is in the context of its being a recommendation. Nowhere in the agreement does it state otherwise.
Moreover, immediately following the State's recommendation is a provision setting forth that the trial court need not follow that recommendation. The agreement also averred that defense counsel fully explained the agreement to Napier and that he fully understood it. The signed valid plea agreement is thus controlling evidence that Napier understood that the imposition of a concurrent sentence was a recommendation not binding on the trial court.
The transcript of the plea hearing discloses the same understanding. Defense counsel stated that she discussed the agreement with Napier and that he understood the State's recommendation did not bind the trial court. Likewise, the trial court explained that it need not follow the State's recommendation and Napier verbally confirmed his understanding of this fact.
The record shows that the trial court ensured that Napier understood that concurrent sentencing was only a recommendation, correctly stated the law, and made no affirmative misstatements. It had full discretion under RCW 9.94A.589(3) to impose a consecutive sentence and it exercised that discretion properly by expressly stating that it would impose a consecutive sentence and providing a basis for its decision.
RCW 9.94A.589(3) provides in part: "[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court . . . subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively."
Napier also argues that the sentencing proceedings make clear that he did not know he could receive a consecutive sentence. A review of the record discloses otherwise.
At the start of the sentencing hearing, defense counsel stated that she was "asking the [trial] Court to follow the recommendation and run [the Pierce County sentence] concurrent with the King County matter" and explained why she believed a concurrent sentence was appropriate. RP at 8. Immediately after her request, the trial court asked Napier if he wanted to address the court and he replied, "No." RP at 9. If Napier believed the trial court was required to impose concurrent sentences, he could have questioned why his attorney was requesting a concurrent sentence rather than advising the trial court that it must impose a concurrent sentence. He was also compelled to address any questions he had about his plea agreement to the trial court.
Defense counsel also asked the trial court to waive nonmandatory costs, fees, and obligations because Napier was already serving a "fair amount of time in custody" on his other matter. RP at 8. This context highlights that, at this point, defense counsel was addressing matters with the court that were within its discretion.
Of note, Napier immediately objected to the trial court statement that he had 33 felonies. He felt compelled to clarify this issue despite his having already signed a stipulation to his 33-felony criminal history.
But Napier stated no such concern until after the trial court imposed its sentence, at which point a colloquy ensued:
[NAPIER]: Your Honor, it's my understanding that it had to be concurrent.
THE COURT: Well, that was the recommendation; but that's a King County case. It's an entirely separate matter, and I'm not going to run the Pierce County charge concurrent with the King County charge. I'm going to make it consecutive.
THE COURT: Sir, I've just sentenced you. I think you need to be quiet. I don't have to follow the recommendation. I don't have to make this concurrent with another county's charge when you are committing separate felonies and separate felonies, not with your level of criminal history. . . .
[NAPIER]: I want to withdraw my plea. You told me that the case law was on my side.
(Brief pause while [Napier] confers with [Defense] Counsel [off record].)
[DEFENSE COUNSEL]: Because you can appeal it.
[NAPIER]: No. No. No. You told me that the case law was on my side —
[DEFENSE COUNSEL]: I never said that.
[NAPIER]: — and that it would be concurrent.
[DEFENSE COUNSEL]: I also told you, she didn't have to follow the recommendation.
. . . .
THE COURT: Okay. It's not your attorney's fault, sir. You pled guilty, and I have the ability to sentence you to anything within the standard range. That's 12 months plus one day to 24 months. You've got a horrendous criminal history.
[NAPIER]: That's not my point, Your Honor. My attorney told me that the case law was in my favor as far as current and consecutive, that it would be ranked concurrent —
[THE COURT]: Well, I'm not running it concurrent. I'm running it consecutive.
[NAPIER]: Well, then I want to pull my plea.
[THE COURT]: Well, I'm not going to deal with that today.
. . . .
[NAPIER]: You lied to me.
. . . .
[NAPIER]: My lawyer lied to me. (Proceedings concluded.)
RP at 10-12.
Other than Napier's own statements, nothing in this record suggests that defense counsel ever told Napier that the law required the trial court to impose a concurrent sentence. To the contrary, defense counsel's statements show only that she had explained that concurrent sentencing was a recommendation. At most, Napier's statements that his counsel told him the case law was on his side might suggest that she incorrectly predicted the outcome at sentencing. But a wrong prediction of a case outcome insufficiently supports an involuntary plea claim. See Brady v. United States, 397 U.S. 742, 749-51, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).
Although Napier argues that the sentencing record makes clear that he materially misunderstood the sentencing consequences, the record nonetheless supports our conclusion that he understood that the trial court did not have to impose concurrent sentences. His self-serving statements that his attorney lied to him, made after the trial court imposed the sentence, without more, are not sufficient to overcome this conclusion.
Ineffective Assistance of Counsel
Napier also argues that he received ineffective assistance of counsel. He contends that his attorney misinformed him about the application of RCW 9.94A.589(3) by not representing that the trial court had discretion to impose a consecutive sentence. He argues that his counsel's deficient performance prejudiced him because, as he made clear at sentencing, he only pleaded guilty based on his belief that the court was required to impose a concurrent sentence. Further, he argues that counsel erroneously advised him that he could appeal the consecutive nature of his sentence when no such right to appeal from RCW 9.94A.589(3) existed.
We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To establish this claim, a defendant must meet a two-part test demonstrating that counsel's performance was objectively deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. S.M., 100 Wn. App. 401, 409-10, 996 P.2d 1111 (2000). During plea bargaining, defense counsel has a duty to assist the defendant in "actually and substantially" determining whether to plead guilty, aid the defendant in evaluating the evidence against him, and discuss the possible direct consequences of a guilty plea. S.M., 100 Wn. App. at 410-11.
Napier's argument lacks merit because his signed plea agreement states that defense counsel made him no promises when he entered his guilty plea, and his statements at his plea hearing averred the same. This evidence shows that defense counsel did not promise Napier that the trial court would impose a consecutive sentence but that counsel fully and accurately explained the consequences of the agreement. The transcript of the plea and sentencing hearing also discloses that defense counsel fully explained the consequences of the plea; accurately represented that a concurrent sentence was only a recommendation; and believed Napier to be entering his plea knowingly, voluntarily, and intelligently. Napier submits no evidence to the contrary. His self serving statements, made after the trial court sentenced him, are likewise insufficient to establish this claim.
Nor does the record show that Napier's counsel erroneously advised Napier that he could appeal the consecutive nature of his sentence. Her statement that Napier could "appeal it" came directly after she conferred with him off record, so we are unable to determine in what context she made the statement. RP at 11. And as discussed, even if defense counsel did inform Napier that the case law was on his side, this amounts only to an erroneous prediction of an outcome at sentencing, which we do not consider ineffective assistance of counsel. See United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991). Because Napier fails to demonstrate his counsel's deficient performance, his argument fails and we do not reach Strickland's second prong.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, J., concur.