Opinion
No. 31013-9-II
Filed: November 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-02929-1. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Calvin Norman Rouse, Jr. appeals his conviction of second degree murder, claiming that the trial court abused its discretion in denying his motion to withdraw his guilty plea. Because Rouse fails to demonstrate a manifest injustice, we find no abuse of discretion and affirm.
Facts
Unless otherwise noted, we derived facts from the Declaration for Determination of Probable Cause filed with the original information.
On October 18, 2001, Cassidy Moen and Gary Wilson were staying in room 24 at the Travel Inn in Tacoma. During the evening, Moen purchased cocaine from Jeanette Murry, who was staying in room 30 with Elijah Stroman and Todd Dow. At about 12:45 a.m. on October 19, Moen called Murry wanting to buy more rock cocaine. Murry went to room 24, sold them several rocks, and commented about the large amount of cash that Wilson had left lying on the dresser. Murry agreed to return later with additional cocaine.
Wilson apparently had recently returned from working on a fishing boat in Alaska and was spending his earnings on cocaine and prostitution.
Upon returning to her room, Murry spoke with Rouse and Stroman. Stroman then told Dow to pack their belongings and wait for them in the car. Murry went to Moen's room with Rouse and Stroman following. Stroman was holding a gun. Rouse and Stroman proceeded to beat Wilson with the gun and their fists to wrest away his wallet. During the altercation, Stroman's gun fell to the floor and Murry picked it up and shot Wilson. The three fled to Dow's waiting car. Stroman explained to Dow that a drug deal had gone bad and he threatened to kill Dow's family unless Dow kept quiet.
Murry pleaded guilty to second degree murder. Stroman was convicted by a jury of first degree murder. Ultimately, Rouse agreed to plead guilty in exchange for an amended charge of second degree murder with a deadly weapon enhancement. But at the sentencing hearing, he asked to withdraw his plea, claiming ineffective assistance of trial counsel. The court denied his motion. It then imposed a high-end, standard range sentence of 316 months' incarceration plus 24 additional months as a sentence enhancement for the deadly weapon.
Discussion
Rouse claims on appeal that the trial court erred in denying his motion to withdraw his guilty plea and, at the least, should have held an evidentiary hearing as to his claims. Rouse's declaration in support of his motion consisted of the following:
From arraignent [sic] which was 7-3-02 until the present time I worried about my case because I never could confer with my attorny [sic] whom is Leslie E. Tolzin. I only seen Mr. Tolzin when it was time to sign waiver of speedy trial. Mr. Tolzin and Mr. McCann is friends. One of my supporters were in the court room when Mr. Tolzin and Mr. McCann went outside to discuss another plea. Ms. Belin overheard them speaking about golf. Mr. Tolzin never conduct a investigation of my witnesses. I wanted to assist in my case but never given the chance due to lack of reputation. From the way this case were handle from beginning to the end it seem more like Mr. Tolzin work more with the prosecutor side than mine that is a conflict of interest. I put all trust in Mr. Tolzin at the time of arraigment [sic].
Clerk's Papers (CP) at 69. Attached to this declaration and motion, Rouse set out the reasons in support of his motion:
I would like to withdraw my plea form [sic] guilty to not guilty for the reasons set fourth [sic]:
Mr. Tolzin was appointed by DAC. I was arraigment [sic] 7-3-02 to repersent [sic] me on this date he ask me to sign away waive of speedy trial because he need more time to repersent [sic] on my case. From that date I only seen him was just to sign waivers on until 8-25-03. I felt like he was avoiding me because I never had reach him maybe twice his secretary will tell me that he is over to the jail. I gave her messags [sic] to get in touch with me and he never did in this said year. I never knew what a waiver was, at the arraigmeat [sic] time. The guilty partes [sic] you have I want to prove my innocents [sic] by having a trial by jury.
Lastly, I feel as though I'd been railroad [sic]; and on justice scale lean more on the states [sic] side.
CP at 70. In denying the motion, the trial court explained:
What you have done is, you have brought up what we call generalizations, as opposed to specific facts in the case. Because as you know, up until this point in time, you have been in court every time with your attorney. I have gone over the waivers with you, as well as your attorney did, that is, the waivers of speedy trial. These types of allegations under the law do not amount to what we call a prima facie showing of either lack of assistance of counsel or other irregularities at this point in time.
Based on the declaration that Mr. Rouse submitted with his motion, I find that we don't have a sufficient meritorious basis for him to withdraw his plea at this time.
Report of Proceedings (RP) at 47.
We review a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966); State v. Hurt, 107 Wn. App. 816, 822, 27 P.3d 1276 (2001).
Rouse filed his motion under CrR 4.2(f), which states that `[t]he court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.' A `manifest injustice' is `an injustice that is obvious, directly observable, overt, not obscure.' State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974).
In Taylor, the Supreme Court discussed four indicia, any one of which may independently establish a manifest injustice: (1) the defendant received ineffective assistance of counsel; (2) the defendant did not ratify the plea; (3) the plea was involuntary; and (4) the prosecution did not honor the plea. While the State bears the burden of proving the validity of a guilty plea, the defendant bears the burden of proving that a manifest injustice has occurred. State v. McDermond, 112 Wn. App. 239, 243 n. 10, 47 P.3d 600 (2002) (citing State v. Oseguera Acevedo, 137 Wn.2d 179, 193, 970 P.2d 299 (1999)).
Rouse claims ineffective assistance of counsel and an involuntary plea. To show ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient; and (2) 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. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). `In a plea bargain context, `effective assistance of counsel' merely requires that counsel `actually and substantially [assist] his client in deciding whether to plead guilty.'' State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)); see also Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (the Strickland test applies to claims of ineffective assistance of counsel in the plea process).
The defendant must demonstrate with reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. State v. Garcia, 57 Wn. App. 927, 933, 791 P.2d 244 (1990). We presume that counsel properly represented the defendant. Strickland, 466 U.S. at 689; State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citations omitted).
Rouse characterizes his declaration as unrefuted and argues that the State cannot show from the existing record that he received effective assistance of counsel. But this claim has no merit because it was Rouse's burden to show ineffective assistance. Bald generalizations that counsel did not keep him informed, failed to return telephone calls, failed to interview witnesses, and appeared to have a conflict of interest are, in themselves, insufficient to demonstrate that counsel did not provide effective representation.
And the record shows that Rouse's counsel was familiar with the witnesses' testimony in Stroman's earlier trial and was aware that a jury could also find Rouse guilty of first degree murder. Counsel explained to the court at the plea hearing,
I want to advise the court that I have discussed with Mr. Rouse thoroughly the evidence in the [S]tate's case, including problems with the [S]tate's case, but also the strength of the [S]tate's case. And as the court can advise the defendant, anytime [sic] you go to trial it is in one sense a gamble. And Mr. Rouse is taking this deal as a part of that understanding. And based upon that, Your Honor, I believe that he is making a knowing and voluntary plea and I would ask the court to accept the plea in this case.
RP at 29-30. The record shows that Rouse had no misgivings about counsel's performance when he entered his plea. The court asked him, `Are you satisfied with the legal advice that Mr. Tolzin has given you?' Rouse responded, `Yes.' RP at 40. Rouse has identified no witness that counsel overlooked nor has he suggested that an overlooked witness would provide any exculpatory evidence. And a discussion between his attorney and the prosecutor about golf does not show a conflict of interest or bias. Rouse's claims are simply unsupported and, thus, he failed to carry his burden to show a manifest injustice.
Rouse also claims that his plea was involuntary. Due process requires that a guilty plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). This court has observed:
When a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges that he or she has read it and understands it and that its contents are true, the written statement provides prima facie verification of the plea's voluntariness. In re Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980); In re Teems, [ 28 Wn. App. 631, 626 P.2d 13 (1981)]; State v. Ridgley, 28 Wn. App. 351, 623 P.2d 717 (1981). When the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.
State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982); see also State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996) (a defendant's signature on the plea agreement is `strong evidence' that the agreement is voluntary). Rouse presents no evidence to refute this presumption.
The trial court had before it Rouse's `STATEMENT OF DEFENDANT ON PLEA OF GUILTY.' CP at 58. This document details the elements of the crime and the charged enhancement and explains the facts in support of the charges. It indicates the standard range sentence and the maximum penalty the court could impose. In it, Rouse averred that the plea was made freely and voluntarily, that no one caused him to enter the plea and no one made any promises, other than in the plea agreement, to cause him to plead guilty. Rouse also averred that he understood the entire agreement, and his attorney averred that his client fully understood the agreement. Finally, the trial court satisfied itself on the record that Rouse understood the entire agreement, that it was entered into voluntarily, and that it was knowingly made. Rouse fails to demonstrate any impropriety in the taking of his plea.
Pro se, Rouse argues that he was prejudiced when his counsel informed the court that the State never charged Dow with participating in the crime. But he fails to show how this prejudiced the court or how it affected his decision to plead guilty. He also claims that the prosecutor tampered with the witnesses because the witnesses were unreliable drug addicts with lengthy criminal histories. But again, he fails to show how the prosecutor tampered with the witnesses or how this affected his decision to plead guilty. He alludes to offers the prosecutor may have made to induce them to testify against him. But again, he fails to show how this prejudiced him or how it affected his decision to plead guilty. Rouse simply fails to make any meritorious claim discernable from the record.
Rouse fails to show that his plea was a manifest injustice. The trial court did not abuse its discretion in denying his motion to withdraw that plea.
We affirm.
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.
MORGAN, A.C.J. and ARMSTRONG, J., Concur.