Opinion
40898-8-II 40905-4-II
01-24-2012
STATE OF WASHINGTON, Respondent, v. ROBERT THEODORE RUDE, JR., Appellant. STATE OF WASHINGTON, Respondent, v. ROBERT THEODORE RUDE, JR., Appellant.
UNPUBLISHED OPINION
Hunt, J.
Robert Theodore Rude, Jr. appeals his guilty plea convictions for five counts of second degree identity theft, five counts of unlawful possession of payment instruments, and one count of first degree robbery. He argues that we should allow him to withdraw his guilty pleas because (1) he was merely a passenger in a vehicle stopped for a traffic violation; (2) a police officer unconstitutionally seized him when the officer asked Rude to identify himself; (3) he did not knowingly, intelligently, and voluntarily enter his guilty pleas or waive his right to appeal because his trial counsel provided ineffective assistance in failing to move to suppress evidence obtained as a result of Rude's illegal seizure and search; and (4) the record does not reflect that Rude was ever told he could move to suppress such evidence. In his Statement of Additional Grounds (SAG), Rude argues that his trial counsel did not advise him about his legal rights and he did not understand that he could move to suppress this evidence. We affirm.
FACTS
Rude entered into a plea agreement with the State, disposing of his charges from two cause numbers arising from two separate criminal incidents on different dates, Pierce County Cause No. 09-1-04544-7 and Pierce County Cause No. 09-1-05358-0. On May 13, 2010, he pleaded guilty to five counts of identity theft, five counts of unlawful possession of payment instruments (UPPI), and one count of first degree robbery. As part of the joint plea agreement, Rude stipulated to the State's probable cause determinations for each incident to establish a factual basis for the pleas.
Rude's multiple identity theft and UPPI charges were based on a single criminal incident on August 6, 2007.
Rude's robbery charge was based on a different criminal incident, on October 19, 2009.
Rude also signed a separate written Statement of Defendant on Plea of Guilty for each cause number. Paragraph 11 of each guilty plea statement began with the phrase, "The judge has asked me to state what I did in my own words that makes me guilty of this crime"; under this paragraph on each guilty plea statement, Rude made an additional statement, partially admitting his guilt and describing his crimes for each cause number, independent of his earlier probable cause stipulations. Clerk's Papers (CP) (Cause No. 09-1-05358-0) at 9; CP (Cause No. 09-1-04544-7) at 13.
In his Alford guilty plea statement for the robbery charge, Cause No. 09-1-05358-0, Rude explained:
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
On [October 19, 2009], in Tacoma, Pierce County, Washington, I stole a portable GPS device from inside James Evanger's car. Mr. Evanger saw my theft and confronted me. I got into my vehicle and drove away. Mr. Evanger was near the car as I was trying to leave. *Mr. Evanger says he [was] struck by the car and was injured. That injury was inflicted during my efforts to retain his property and/or overcome his resistance to my taking it.* I do not agree with [the] part [of this statement marked with an asterisk], but I have reviewed the evidence with my lawyer and believe it [is] significantly likely a jury would find it true so I agree the court should find the element of bodily injury and agree to that finding to take advantage of the State's offer in this case.CP (Cause No. 09-1-05358-0) at 9 (emphasis added). Similarly, in paragraph 11 of his guilty plea statement for the identity theft and UPPI charges, Cause No. 09-1-04544-7, Rude provided the following additional description of his criminal acts:
On the 6th day of [August] 2007 in Pierce County[, ] Washington[, ] I did unlawfully possess bankchecks and ID[s] without the owners['] consent. The checks and IDs were in the names of the 5 victims listed in the information, and I intended to use the IDs and checks to commit forgery and/or fraud and/or other crimes, but I did not have these items [in my possession] long enough to formulate any specific plan.CP (Cause No. 09-1-04544-7) at 13. Rude initialed each statement in open court with his trial counsel present and acknowledged that each was a "true" and "correct" statement of what had happened, which he adopted as his own. Verbatim Report of Proceedings (VRP) (May 13, 2010) at 11, 19.
In addition, Rude's written guilty plea statements each contained a separate paragraph 5, which began with the following sentence in large font and bold letters: "I Understand I Have the Following Important Rights, and I Give Them All Up by Pleading Guilty." CP (Cause No. 09-1-04544-7) at 7; CP (Cause No. 09-1-05358-0) at 3. In signing his guilty plea statement for the identity theft and UPPI charges in Cause No. 09-1-04544-7, Rude acknowledged that he understood he was giving up important constitutional rights, including his right to a jury trial and "[t]he right to appeal a finding of guilt after a trial as well as other pretrial motions such as time for trial challenges and suppression issues." CP (Cause No. 09-1-04544-7) at 7 (emphasis added). By signing the guilty plea statement, Rude also acknowledged that he was entering his plea "freely and voluntarily"; that his attorney had previously read him the entire guilty plea statement and had explained it to him; and that he had independently read the entire document himself and understood it in full. CP (Cause No. 09-1-04544-7) at 13.
Rude followed an identical process in pleading guilty to the robbery charge in Cause No. 09-1-05358-0, acknowledging and signing the same waiver of rights. This statement also included an acknowledgment that Rude understood he was waiving his "right to appeal . . . suppression issues"; that he was making his guilty plea "freely and voluntarily"; that he had reviewed the entire guilty plea statement, both with his attorney and on his own; and that he understood the document in full. CP (Cause No. 09-1-05358-0) at 3 (emphasis added), 9.
The trial court then reviewed with Rude his written guilty plea statements and asked a series of questions to confirm that he had reviewed each entire document with his trial counsel and that he understood the rights he was giving up by entering guilty pleas. Based on Rude's answers to these questions, the trial court found that Rude had made his guilty pleas "knowingly, intelligently, and voluntarily, " and it accepted them. VRP (May 13, 2010) at 20.
The trial court engaged in the following colloquy with Rude:
COURT: Holding up the Statement of Defendant on Plea of Guilty . . . [D]id you have an opportunity to go through the entire plea form with your counsel, Mr. Dippolito?
RUDE: Yes, Your Honor.
COURT: Was it, again, a combination of you reading it as well as Mr. Dippolito reading it to you?
RUDE: Yes.
COURT: Do you feel you understood the plea form in its entirety?
RUDE: Yes, Your Honor.
COURT: If you had any questions, was Mr. Dippolito able to answer those questions for you?
RUDE: Yes . . .
COURT: [Do you] understand . . . what you are pleading guilty to today?
RUDE: Yes, Your Honor.
. . .
COURT: Regarding the rights that you're giving up, . . . they are on paragraph 5 on page
2 of the plea form. Did you have a chance to go through those with Mr. Dippolito on this case?
RUDE: Yes.
COURT: Mr. Rude, the rights you are giving up are [the] right to a trial, right to remain silent, right to hear and question witnesses . . . as well as your right to appeal[.] [Y]ou are willing to give up all [of] those rights to plead guilty on this case?
RUDE: Yes, Your Honor.VRP (May 13, 2010) at 14-16, 17 (emphasis added). The trial court went through an identical colloquy with Rude before accepting his guilty plea for the robbery charge, which included Rude's oral acknowledgement that he understood he was waiving his right to "appeal" by entering his guilty plea. VRP (May 13, 2010) at 10.
At sentencing, in accordance with the plea agreement, (1) the State recommended a low-end standard range sentence for Rude's robbery conviction and high-end standard range sentences for his identity theft and UPPI convictions, all to run concurrently; and (2) Rude's trial counsel requested an exceptional sentence below the standard range for the robbery conviction. VRP (June 4, 2010) at 6, 9, 20. Following the State's recommendation, the trial court sentenced Rude to 129 months of confinement and 18 months community custody for the robbery, 57 months of confinement and 12 months community custody for each identity theft, and 29 months of confinement and 12 months community custody for each UPPI, all to run concurrently.
Rude's written guilty plea statement also informed him that the trial court did not have an obligation to accept his request for an exceptional sentence for the robbery charge or to adopt the State's recommended low-end sentence for the charge.
Rude filed notices of appeal in both Cause No. 09-1-04544-7 and Cause No. 09-1-05358-0. We consolidated them on appeal.
ANALYSIS
I. No Showing of Basis for Withdrawal of Guilty Pleas
Rude argues that we should allow him to withdraw his guilty pleas because the evidence against him was unconstitutionally seized; he did not knowingly, intelligently, and voluntarily plead guilty and waive his right to appeal because his trial counsel failed to move to suppress this evidence; and the record does not show that his counsel ever advised him that such suppression issue existed. The State responds that Rude did not receive ineffective assistance of counsel and that, when Rude knowingly, intelligently, and voluntarily pled guilty, he waived his right to appeal any potential suppression issue. We agree with the State.
In pleading guilty and signing two statements of defendant on plea of guilty, Rude admitted to his guilt and expressly waived his right to a jury trial and his right to appeal any "suppression issues." See State v. Smith, 134 Wn.2d 849, 852-53, 953 P.2d 810 (1998). Where, as here, a defendant has completed a written guilty plea statement in compliance with CrR 4.2(g) and admitted that he has read it, that he understands it, and that its contents are true, the written statement provides "prima facie verification" of the plea's voluntariness. State v. Perez, 33 Wn.App. 258, 261, 654 P.2d 708 (1982). Furthermore, where, as here, a trial judge goes on to inquire orally of the defendant and satisfies himself on the record that various criteria of voluntariness exist, the presumption of voluntariness is "well nigh irrefutable." Perez, 33 Wn.App. at 262.
CP (Cause No. 09-1-04544-7) at 7; CP (Cause No. 09-1-05358-0) at 3.
The record supports the trial court's finding that Rude pled guilty knowingly, intelligently, and voluntarily. Rude completed and signed two written statements of defendant on plea of guilty that met the requirements of CrR 4.2(g)-one for Cause No. 09-1-04544-7 and one for Cause No. 09-1-05358-0. Both guilty plea statements, standing alone, provide sufficient prima facie verification that Rude entered his guilty pleas voluntarily and understood the rights that he waived by entering such pleas. In addition, both guilty plea statements specifically informed Rude-under a heading with bold letters-that by pleading guilty, he was waiving his right to appeal any "suppression issues." By signing his guilty plea statements, Rude also acknowledged that (1) he entered his guilty pleas "freely and voluntarily, " (2) he had reviewed the full guilty plea statements with his trial counsel, and (3) he had read them and understood them in their entireties. Rude's additional statement that he had "reviewed the evidence with [his] lawyer" in his guilty plea statement for the robbery charge also supports the trial court's finding that Rude had been advised by counsel and that he intelligently entered his guilty pleas.
CP (Cause No. 09-1-04544-7) at 7; CP (Cause No. 09-1-05358-0) at 3.
CP (Cause No. 09-1-04544-7) at 13; CP (Cause No. 09-1-05358-0) at 9.
CP (Cause No. 09-1-05358-0) at 9.
Furthermore, before accepting Rude's guilty pleas, the trial court questioned Rude in open court and asked him a series of questions to confirm that he had, in fact, reviewed both guilty plea statements in their entireties with counsel, that he understood them, and that he was making his pleas knowingly, intelligently, and voluntarily. During his colloquy with the trial court, Rude again acknowledged that he had reviewed the entire guilty plea statements with his trial counsel, that he had the opportunity to ask his counsel questions, and that he understood that he was waiving his right to "appeal."
At no point did Rude ask the trial court questions or otherwise indicate that his trial counsel had failed to review any portion of his guilty plea statements with him. Nor did Rude indicate that he misunderstood the nature of his charges or any of the consequences of his guilty pleas. Therefore, under Perez and Smith, we hold that the trial record contains sufficient evidence to conclude that Rude "voluntarily" entered his guilty pleas and that, in doing so, he waived his right to appeal any issues relating to suppressing evidence. Accordingly, we do not reach the merits of Rude's suppression arguments.
In addition, as we discuss later in more detail, Rude has not demonstrated any manifest injustice requiring a withdrawal of his guilty pleas. See Perez, 33 Wn.App. at 261 (once the safeguards of CrR 4.2 have been employed, a defendant can withdraw a plea only upon a showing that withdrawal is necessary to avoid a manifest injustice).
II. No Showing of Ineffective Assistance of Counsel
Rude does not contend that he misunderstood the terms of his plea agreement or that he was forced to accept the agreement under duress or against his will. Instead, he argues that we should allow him to withdraw his pleas because (1) his trial counsel failed to advise him of his right to move to suppress illegally seized evidence, thus withholding from him critical information that was necessary to make an informed decision about whether to plead guilty; and (2) therefore, he did not knowingly, intelligently, and voluntarily plead guilty or waive his right to appeal. This argument fails.
Rude makes essentially the same ineffective assistance of counsel argument in his SAG-that his trial counsel did not advise him about his legal rights and that he did not understand he could potentially suppress the evidence obtained from the search of his backpack before he entered his guilty pleas. To the extent that Rude now claims that his guilty plea testimony about having discussed his rights and his guilty pleas with counsel were false or that his trial counsel did not advise him about a specific issue relating to his guilty pleas, such claim would involve facts outside the record, which he can raise in a personal restraint petition, but not by itself on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). For similar reasons, relating to facts outside the record, we do not address the State's alternative argument that the preservation of error and manifest constitutional error doctrines preclude review of Rude's suppression claim.
Under CrR 4.2(f), a court shall allow a defendant to withdraw his guilty plea whenever it appears withdrawal is necessary to correct a "manifest injustice." CrR 4.2(f). Manifest injustice is a "demanding" standard because ample safeguards exist "to protect a defendant's rights before the trial court accepts his plea." State v. DeClue, 157 Wn.App. 787, 792, 239 P.3d 377 (2010) (emphasis added) (citing State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). Nevertheless, manifest injustice may arise where (1) a defendant received ineffective assistance of counsel, (2) the plea was not ratified by the defendant or one authorized by him to do so, (3) the plea was involuntary, or (4) the plea agreement was not kept by the prosecution. State v. McCollum, 88 Wn.App. 977, 981, 947 P.2d 1235 (1997) (citing Taylor, 83 Wn.2d at 597). Rude meets none of these criteria.
We review challenges to effective assistance of counsel de novo. State v. White, 80 Wn.App. 406, 410, 907 P.2d 310 (1995). We begin our inquiry with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To prevail on an ineffective assistance of counsel claim, a defendant must prove that (1) his counsel's performance was deficient and (2) the deficiency prejudiced him. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing Strickland, 466 U.S. at 694). To prove the deficiency prong, the defendant "must show in the record the absence of legitimate strategic or tactical reasons" supporting his counsel's challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995) (emphasis added). To prove prejudice, "the defendant also bears the burden of showing, based on the record developed in the trial court, that the result of the proceeding would have been different but for [his] counsel's deficient representation." McFarland, 127 Wn.2d at 337 (emphasis added).
In the guilty plea context, the defendant must show that his attorney failed to assist him in deciding whether to plead guilty and that, but for his counsel's failure to advise him, he would not have pleaded guilty. McCollum, 88 Wn.App. at 982. Bare allegations that a defendant would not have pleaded guilty are insufficient to show prejudice. In re Pers. Restraint of Peters, 50 Wn.App. 702, 708, 750 P.2d 643 (1988). In addition, where, as here, a defendant's claim is brought on direct appeal, the reviewing court will not consider matters outside the trial record. McFarland, 127 Wn.2d at 335.
On the record before us, Rude fails to meet the first prong of the test because he does not show that his counsel's performance was deficient. As we note in footnote 12, Rude cannot premise his argument on asserted facts outside the record; therefore, it is outside the scope of this direct appeal whether his trial counsel specifically discussed with him the merits of pursing a motion to suppress specific evidence. We reiterate, however, that Rude specifically acknowledged on the record that he had discussed with his counsel that by pleading guilty, he was waiving suppression issues and the right to appeal.
Furthermore, as with other trial-related strategic decisions, whether to enter into a plea bargain with the State is also the subject of defense counsel strategy:
See, e.g., State v. Grier, 171 Wn.2d 17, 30-32, 246 P.3d 1260 (2011) (defense counsel's decision to forgo lesser included offense instructions is part tactic, part objective; although decision involves input from the defendant, decision ultimately rests with counsel); see also State v. Breitung, No. 84580–8, 2011 WL 6824965, at *6 (Wash. Dec. 29, 2011).
Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks. . . .
There are, moreover, special difficulties in evaluating the basis for counsel's judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after trial. In determining how searching and exacting their review must be, [courts] must respect their limited role in determining whether there was a manifest deficiency in light of information then available to counsel.Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 741, 178 L.Ed.2d 649 (2011) (citing Lockhart v. Fretwall, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)) (federal habeas, not direct appeal). The record shows that Rude's plea agreement with the State was a two-way bargain: It disposed of his charges for two separate cause numbers, Rude's trial counsel requested an exceptional sentence downward for Rude's robbery charge, and the State agreed to seek a low-end sentence within the standard range if the trial court denied Rude's exceptional sentence. This low-end sentence recommendation from the State was a significant benefit for Rude, who was facing a potential maximum sentence of life imprisonment for first degree robbery; and, because Rude's offender score was over nine at the time of sentencing, the State could have requested an exceptional sentence above the high end of the standard range if it had not requested life imprisonment. Furthermore, in pleading guilty to the robbery charge, Rude specifically stated that he was pleading guilty in order to take advantage of the State's plea bargain offer.
RCW 9A.56.200(2) (first degree robbery is a class A felony); Former RCW 9A.20.021(1)(a) (2003) (maximum sentence for a class A felony is life imprisonment, or a fine a fine of $50,000).
Also under the plea agreement, the State agreed to recommend that Rude's identity theft and UPPI sentences run concurrently with each other and with his robbery sentence, which ultimately resulted in Rude's serving no additional time for the identity theft and UPPI charges above that which he was serving for the robbery charge. Thus, the record strongly suggests that, for tactical reasons, Rude's counsel likely advised him to accept the State's plea bargain offer and to plead guilty to avoid a life sentence for his robbery conviction and to ensure that Rude received a favorable shorter sentence overall. Based on these facts, Rude has not demonstrated in the record an absence of strategic or tactical reasons for his counsel's conduct. The threshold for proving deficient performance is high, given the deference afforded to decisions of defense counsel in the course of representation. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011); see also State v. Breitung, No. 84580–8, 2011 WL 6824965, at *6, *9 (Wash. Dec. 29, 2011). To overcome the strong presumption that counsel provided reasonable assistance, the defendant must establish an absence of any "'conceivable legitimate tactic explaining counsel's performance.'" Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). Because Rude has failed to meet the first prong of the ineffective assistance of counsel test, we do not address the second, prejudice prong.
We hold that the record contains sufficient evidence to conclude that Rude knowingly, intelligently, and voluntarily entered his guilty pleas. Furthermore, Rude has failed to prove that he received ineffective assistance of counsel, precluding him from entering voluntary guilty pleas or warranting their withdrawal. We affirm.
Because we affirm both of Rude's guilty plea convictions, we do not address the State's alternative argument that if we allow Rude to withdraw his guilty plea in one cause number, he must also withdraw his plea in the other cause number.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Armstrong, P.J. Johanson, J.