Opinion
No. 22734-1-III
Filed: May 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No. 97-1-01723-3. Judgment or order under review. Date filed: 01/12/2004. Judge signing: Hon. Robert N Jr Hackett.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St Rm 211, Yakima, WA 98901-2639.
In 1999, Jose Rosales pleaded guilty to first degree assault while armed with a firearm. Five years later, Mr. Rosales filed a petition for writ of habeas corpus seeking to withdraw his plea, arguing that the plea was equivocal and lacked a factual basis, and that he was denied effective assistance of counsel. On appeal, Mr. Rosales challenges the superior court's decision to deny his petition. In his brief, Mr. Rosales fails to discuss the one-year limitation on collateral attacks to criminal convictions set forth in RCW 10.73.090, or to reconfigure his arguments to fit within the exceptions to this provision. We affirm the order denying Mr. Rosales's petition for writ of habeas corpus.
FACTS
In January 1999, Jose Rosales was charged by amended information with first degree assault while armed with a firearm.
Plea Hearing. At the plea hearing, defense counsel acknowledged that he had received a copy of the amended information; Mr. Rosales acknowledged defense counsel had read the amended information to him and that he understood the charges. When the court reread the charges to Mr. Rosales, he acknowledged that he understood them. Mr. Rosales also acknowledged that he had reviewed the plea form with defense counsel and that defense counsel had answered all of his questions about the information in the plea form.
After this inquiry, the court asked Mr. Rosales to enter a plea. Mr. Rosales informed the court that he was pleading guilty and that his plea was freely and voluntarily given. Mr. Rosales also acknowledged that he understood the standard range, the firearm enhancement, and the period of community placement. The court informed Mr. Rosales that the standard range was 111 months to 147 months, plus 60 months. The statement of defendant on plea of guilty states that the standard range was from 111 months to 147 months, plus 60 months, to be served consecutively for the firearm enhancement.
The statement of defendant also contains Mr. Rosales's written statement in support of the plea. This statement reads as follows:
[On] October 14, 1997 in Yakima County, Washington I fired a firearm in a manner that I believed was in self defense, with the intent to inflict great bodily harm upon human beings I believed were gang members. I understand that I am waiving self defense for purposes of guilt but not for sentencing.
Clerk's Papers (CP) at 144. At the hearing, Mr. Rosales acknowledged that this was his statement.
The State then set forth its set of facts to support the plea. A local attorney, Jeff Kreutz, and the victim, Alberto Escamilla, would have testified at trial. Mr. Escamilla was leaving his high school for lunch when a fight broke out and he was struck by a bullet. Mr. Kreutz was in the area and observed someone firing the firearm that wounded Mr. Escamilla. Mr. Kreutz later identified Mr. Rosales as the shooter from a photomontage.
After hearing the State's recitation of facts, the court concluded the written statement and the oral recitation of facts supported the elements of the crime. The court then accepted the plea of guilty.
Mr. Rosales was 16 years old at the time of the incident and 17 years of age at the time of the plea hearing. At the conclusion of the sentencing hearing, Mr. Rosales was sentenced to the bottom of the standard range, 111 months, plus 60 months for the firearm enhancement.
Writ of Habeas Corpus. The judgment and sentence was entered on January 13, 1999. Five years later, on January 12, 2004, Mr. Rosales filed a petition for writ of habeas corpus requesting that his plea of guilty be vacated because the evidence was insufficient, the plea was equivocal, and he had received ineffective assistance of counsel.
In support of his petition, Mr. Rosales submitted the affidavits of his mother and his sister. His mother stated in her affidavit that defense counsel told her that it would be in her son's best interest to plead guilty because then he would be sentenced to 7 or 8 years and would be out in only a few years. Defense counsel also told her that the State would agree to a mitigated sentence because the shooting was accidental. In her affidavit, Mr. Rosales's sister stated that she heard defense counsel give this advice to her mother and that, based on this advice, her mother told her brother to plead guilty.
The court denied the petition for habeas corpus. Mr. Rosales appeals.
ANALYSIS
Mr. Rosales filed a petition for habeas corpus requesting that the court vacate the guilty plea he entered in 1999. In his brief, Mr. Rosales maintains that this court should apply the analysis set forth in CrR 4.2(d) and (f) when determining whether the plea should be vacated. CrR 4.2(d) instructs the court regarding the acceptance of guilty pleas and it states:
The court shall not accept a plea of guilty, without first determining that it was made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
Under CrR 4.2(f), which governs the withdrawal of guilty pleas, a court shall allow a defendant to withdraw the defendants plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.
Based on these provisions, Mr. Rosales asserts that the trial court erred by accepting his guilty plea because it was not voluntary and lacked a factual basis. Additionally, Mr. Rosales argues that his plea must be vacated because he received ineffective assistance of counsel.
But this court cannot conduct its inquiry under CrR 4.2 because Mr. Rosales failed to file his motion to withdraw his guilty plea until five years after the judgment was entered. A motion to withdraw a guilty plea must be made within a reasonable time and is subject to time restrictions set forth in RCW 10.73.090, .100, .130, and .140. See CrR 4.2(f); CrR 7.8(b).
RCW 10.73.090 imposes a one-year time limit on petitions for collateral attack, including motions to vacate a judgment and motions to withdraw guilty pleas. This one-year time limitation applies unless the petitioner can prove an exception under RCW 10.73.100. This judgment became final on January 13, 1999. Consequently, we must conduct an inquiry as to the applicability of RCW 10.73.090 and the effect of any exceptions contained in RCW 10.73.100. Applicability of One-Year Time Limitation. The one-year time limit set forth in RCW 10.73.090(1), applies `if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.'
Mr. Rosales makes several arguments applying the standard set forth in CrR 4.2, but these arguments are helpful only if they establish that the judgment and sentence is not valid on its face. We cannot conclude the judgment and sentence here is constitutionally invalid on its face unless a review of the conviction and the documents signed as part of the plea agreement evidence infirmities of a constitutional dimension. See State v. Robinson, 104 Wn. App. 657, 664, 17 P.3d 653 (2001). Hence, the only question we must address is whether the judgment is supported by the plea statement.
Mr. Rosales contends the written plea statement is equivocal. An equivocal plea may evince a lack of understanding of the nature of the charge. See In re Woods, 68 Wn.2d 601, 605, 414 P.2d 601 (1966).
In his written plea statement, Mr. Rosales stated that he `fired a firearm in a manner that I believed was in self defense, with the intent to inflict great bodily harm upon human beings I believed were gang members. I understand that I am waiving self defense for purposes of guilt but not for sentencing.' CP at 144.
Mr. Rosales maintains that the statement concerning `great bodily harm' is a legal conclusion, that the plea statement contains no acknowledgement that he intended to inflict bodily harm, and that nothing in the plea statement relieves the State of its burden of proving the absence of self-defense. He also argues that the factual statement in the plea agreement was equivocal because of statements he made later at sentencing.
First, it is important to keep in mind that this court's inquiry is limited to the documents signed as part of the plea agreement. To determine whether this conviction is valid on its face, we must determine whether the documents support the court's decision to accept the plea. This limited inquiry precludes us from comparing the written plea statement with oral statements made by Mr. Rosales for purposes of sentencing.
Second, a reading of the plea documents does not establish that Mr. Rosales's plea is constitutionally invalid.
Mr. Rosales was convicted of assault in the first degree pursuant to RCW 9A.36.011(1)(a). Under this provision, a person is guilty of the crime of assault in the first degree if, with intent to inflict great bodily harm, the person `[a]ssaults another with a firearm . . . or by any force or means likely to produce great bodily harm or death.' RCW 9A.36.011(1)(a). Far from being equivocal, Mr. Rosales's written statement describes his conduct and expressly waives any claim of self-defense, except for purposes of sentencing. In short, Mr. Rosales states that he believed that he was acting in self-defense, but there is no indication that he also believed that the evidence was insufficient to convict him of the charged crime. Hence, the documents supporting the plea demonstrate that Mr. Rosales entered a guilty plea, and reserved the right to use self-defense for mitigated sentencing. This decision evinces an understanding of the nature of the charge.
Applicability of RCW 10.73.100 Exceptions. Under CrR 4.2(f), a trial court must allow withdrawal of a guilty plea to correct a manifest injustice. For purposes of this rule, a manifest injustice occurs when (1) the defendant has been denied effective assistance of counsel, (2) the defendant did not ratify the plea, (3) the plea was involuntary, or (4) the prosecution breached the plea agreement. State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974)).
However, the inquiry required under CrR 4.2(f) is not the same as that required by RCW 10.73.100 which grants exceptions to the one-year time limit based on (1) newly discovered evidence, (2) a statute that is unconstitutional on its face or as applied to the defendant, (3) double jeopardy, (4) insufficiency of the evidence, (5) a sentence in excess of the court's jurisdiction, or (6) a significant change in the law that is material to the conviction, sentence, or other order.
Mr. Rosales's other arguments do not fall within any of the exceptions to the one-year limitation. His assertions related to the voluntariness of his plea, the factual basis, and whether the plea was equivocal would have been appropriate in a proceeding to withdraw his plea brought within one year after the judgment was entered. His assertion that he received ineffective assistance of counsel would be proper under a CrR 4.2(f) analysis, but does not fit under any exception set forth in RCW 10.73.100. Robinson, 104 Wn. App. at 663.
Moreover, at the least, Mr. Rosales should have been aware of a potential claim of ineffective assistance of counsel immediately after he was sentenced. A timely motion to withdraw his plea would have allowed this claim to be raised. This claim will not be considered five years after the judgment and sentence was entered in a collateral attack under RCW 10.73.100.
We affirm the order denying the petition for writ of habeas corpus.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., concur.