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State v. Serrano

The Court of Appeals of Washington, Division Two
Aug 14, 2007
140 Wn. App. 1009 (Wash. Ct. App. 2007)

Opinion

No. 34419-0-II.

August 14, 2007.

Appeal from a judgment of the Superior Court for Thurston County, No. 03-1-01091-3, Gary Tabor, J., entered February 17, 2006.


Affirmed by unpublished opinion per Penoyar, J., concurred in by Armstrong and Hunt, JJ.


The State charged Oscar Serrano by information with one count of child molestation, five counts of child rape, and one count of attempted child molestation. In order to take advantage of a plea bargain, Serrano pleaded guilty to four counts of second degree assault with sexual motivation. On appeal, he claims that he should be allowed to withdraw his plea because: (1) he received ineffective assistance of counsel, and (2) his plea was not knowing, voluntary, and intelligent because he did not have an interpreter and did not understand the sentencing consequences. Serrano's arguments are without merit, and we affirm the trial court's denial of his motion to withdraw his plea.

FACTS

Serrano was born in El Salvador and came to the United States in 1986. As a teenager, he lived in Los Angeles and attended high school through the middle of his senior year. He also attended community college in Oregon to obtain his General Education Development diploma (GED).

Serrano married Rebecca Klingman in 1995, and the couple separated in 2001 (the divorce was not final until 2003). In 2003, Serrano's former stepdaughter, ALK, disclosed to a teacher that Serrano had been touching her inappropriately since she was seven years old. Lacey Police Department Detective Barnes investigated the claims, and Serrano was charged with three counts of first degree child molestation and four counts of first degree child rape in June 2003. The charges were later amended to include one count of first degree child molestation, five counts of first degree child rape, and one count of attempted first degree child molestation.

On January 9, 2004, the charges were amended again to reflect a plea agreement, and Serrano pleaded guilty to four counts of second degree assault with sexual motivation. In his statement of defendant on plea of guilty (Statement), Serrano wrote the following:

After conferring w[ith] my attorney and reviewing discovery through my attorney and speaking w[ith] my investigator I feel if I went to trial there is a substantial liklihood [sic] I would be found guilty, I am innocent but I wish to take advantage of the State's offer.

Clerk's Papers (CP) at 19. During his plea hearing, Serrano affirmed that he reviewed the Statement with his lawyer, Richard Woodrow, and that he wished to plead guilty. The court then explained its calculation of his offender score and asked Serrano if he was aware of the standard range (63 to 84 months); Serrano stated that he was.

The Court: [T]he maximum sentence would be up to life imprisonment and/or a $50,000 fine. Are you aware of that maximum sentence potential?

[Serrano]: I was told that I'm going to do three and a half years.

The Court: Well, that's not the issue right now. A judge decides what your sentence would be and I'll talk to you about that in a moment, but do you understand that there is a maximum possible sentence of up to life imprisonment for these offenses?

[Serrano]: Yes.

The Court: Okay. Now, the prosecuting attorney in this case has stated that they would recommend 72 months in prison, that you be on lifetime community custody . . . and have no contact with the alleged victim for life. . . . Is that what you understand the State is going to recommend?

[Serrano]: Yes.

Report of Proceedings (RP) (Jan. 9, 2004) at 5-6.

The State then interrupted to clarify the sentencing structure for Serrano, noting that the three-and-a-half years that Serrano was referring to was likely a calculation of the minimum sentence minus good time. The prosecutor also stressed to Serrano that the Indeterminate Sentencing Review Board (ISRB) made all decisions regarding good time. The court then informed Serrano that it would impose a minimum sentence (within the range of 63-84 months) as well as a maximum sentence (life), and Serrano affirmed that he understood the sentencing.

At the close of that hearing, Serrano entered an Alford plea, and the court ordered preparation of a presentence investigation and set a sentencing date.

Under an Alford plea, a defendant may take advantage of a plea agreement without acknowledging guilt. North Carolina v. Alford, 400 U.S. 25, 36, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The Washington Supreme Court adopted Alford in State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1976).

During the course of the presentence investigation, the State discovered that Serrano had an immigration hold — following his release from custody, he would be turned over to the United States Citizenship and Immigration Services (USCIS) for deportation. This hold prohibited the court from considering a Special Sex Offender Sentencing Alterative (SSOSA) option.

Woodrow withdrew as Serrano's counsel near the end of February 2004. At that hearing, Serrano waived his right to be sentenced within 40 days of his plea, stating that he wanted to take the matter to trial.

Almost a year later, Serrano was finally sentenced to 72 months on each of the four counts (second degree assault with sexual motivation), to be served concurrently, and 36-48 months of community custody. A month after sentencing, in March 2005, Serrano filed a motion to proceed pro se, asserting that he was "competent and able to read and understand the English language, [and] is educated and understands the basic rules of Washington State Court rules [sic]." CP at 45. His request was denied; the court was not persuaded that self-representation was in Serrano's best interests.

Serrano's attorney (now Meyer) finally filed a motion to withdraw his guilty plea in April 2005, arguing that Serrano was not accurately advised of the consequences of his plea. Serrano requested an interpreter for the first time during a hearing on that motion, claiming that he was not comfortable without one.

A few months later, Serrano appeared in court without the aid of an interpreter and succeeded in convincing the court to grant him another new lawyer.

The court finally held a hearing on February 6 through 7, 2006, to consider Serrano's motion to withdraw his guilty plea. Serrano requested and was represented by an interpreter at that hearing.

During the hearing, Serrano's ex-wife, Ms. Klingman, testified that, in six years of marriage, Serrano spoke to her and their children in English and "seldomly spoke Spanish." RP (Feb. 6-7, 2006) at 73. She further testified that she and Serrano had no difficulty whatsoever communicating in English.

Through an interpreter, Serrano testified that he did not see the Statement until January 9, 2004, the day he signed it. He also asserted that Woodrow did not explain the form or its contents. According to Serrano, he did not understand that he was giving up the right to go to trial — he believed that he would plead guilty, get out of jail, and then "the worst that could happen is that there would be a trial." RP (Feb. 6-7, 2006) at 95. He did not remember the judge warning him, at the time of his plea, that he would be giving up the right to a trial — "[i]t's a long time ago." RP (Feb. 6-7, 2006) at 98.

At that same hearing, Woodrow testified that Serrano never asked for an interpreter; Woodrow also stated that he never had difficulty communicating in English with Serrano. He also testified that he did go over the Statement with Serrano prior to Serrano entering his plea, and he believed that Serrano understood it.

The trial court denied Serrano's motion to withdraw his plea, finding that (1) Serrano could read and understand the English language; (2) he never requested an interpreter before April 2005; (3) he saw and reviewed the Statement with Woodrow before coming to court two times (once in December 2003, then again in January 2004) to plead guilty; and (4) Serrano was informed of the maximum penalty and sentence range at the plea hearing, and affirmed that he understood he would be sentenced to a maximum term of up to life and a minimum term between 63 and 84 months.

The court then concluded:

1. With regard to his motion to withdraw his guilty pleas, the defendant has the burden to prove that such withdrawal is necessary to correct a manifest injustice. The defendant has not met that burden in this case.

2. On January 9, 2004, the defendant entered his guilty pleas freely, voluntarily, and intelligently, with full knowledge of the direct consequences of his guilty pleas, in order to take advantage of the State's plea offer.

3. Attorney Richard Woodrow provided the defendant effective assistance of counsel both in preparing this case for trial and in advising the defendant with regard to his pleas of guilt.

4. The defendant has failed to show that, but for some erroneous information or lack of information from his attorney, he would have chosen not to plead guilty.

CP at 186-87.

This appeal followed.

ANALYSIS

We will overturn a trial court's denial of a motion to withdraw a plea only for abuse of discretion. State v. Bao Sheng Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006) (citing State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001)). An abuse of discretion exists when a trial court's decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

A defendant may withdraw his or her plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice," but this is a demanding standard. CrR 4.2(f); Bao Sheng Zhao, 157 Wn.2d at 197. Manifest injustice includes instances where "(1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept." Marshall, 144 Wn.2d at 281.

Serrano's argument focuses on the first three examples. He claims that (1) his plea was not ratified because he did not understand the direct consequences of his plea; (2) his plea was not voluntary, knowing, and intelligent because he was denied the aid of an interpreter; and (3) he was denied effective assistance of counsel.

The State responds that substantial evidence (1) supports the trial court's finding that Serrano understood the consequences of his guilty pleas; (2) supports the trial court's findings that Serrano could read and understand the English language and was able to express himself in English, and therefore the lack of interpreter did not render his plea unknowing or unintelligent; and (3) supports the trial court's finding that Woodrow effectively represented Serrano.

I. Understanding the Consequences of a Guilty Plea

For a defendant's guilty plea to be deemed voluntary and valid, the defendant must understand the sentencing consequences of his plea. State v. Bisson, 156 Wn.2d 507, 517, 130 P.3d 820 (2006) (quoting State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988); State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338 (2003)).

Here, the trial court concluded that Serrano had full knowledge of the direct consequences of his guilty pleas. In support of this conclusion, the court found that (1) Serrano considered pleading guilty and seeking a SSOSA in December 2003, and he discussed this option with his mother; (2) Woodrow discussed with Serrano the consequences of pleading guilty and the possible consequences of conviction; (3) Serrano signed the Statement which included the State's plea offer of 72 months as a minimum term; (4) at the plea hearing, Serrano appeared to be paying attention and asked few questions for clarification; (5) Serrano affirmed at the hearing that he understood he would be sentenced to a maximum term up to life and a minimum term within the range of 63-84 months; and (6) when Serrano entered his pleas, he understood that he would not be released afterwards and knew that the charges would not be dismissed.

Factual findings are erroneous where not supported by substantial evidence in the record. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993).

At the hearing on Serrano's motion to withdraw his plea, several people offered testimony regarding Serrano's understanding of the consequences of his plea. Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

Here, the trial court found the testimony from Woodrow and his investigator more credible than the testimony from Serrano and his mother. That testimony provided substantial evidence to support the trial court's findings.

Serrano did state at his plea hearing that he "was told" he was only going to do three-and-a-half years. RP (Jan. 9, 2004) at 6. He did not clarify who told him this until the hearing on his motion to withdraw his plea, when he claimed that Woodrow informed him that, with a SSOSA and time served, his sentence would be three-and-a-half years. Woodrow, on the other hand, testified that he never claimed Serrano would get only three-and-a-half years; instead, Woodrow stated, he informed Serrano that the recommended sentence was 72 months.

Serrano testified that he spoke with other prisoners several times regarding his case. It is quite likely that these discussions involved time off for good behavior, and these conversations were another potential source for his belief that he could serve only three-and-a-half years.

Again, credibility of witnesses is a question for the trier of fact. Camarillo, 115 Wn.2d at 71. Clearly, the trial court found Woodrow's testimony more credible than Serrano's, and that determination is not before us on review. Woodrow's testimony offered substantial evidence that Serrano understood the terms of his plea.

Substantial evidence supports the trial court's findings regarding Serrano's understanding of the consequences of his plea. The trial court did not abuse its discretion in denying Serrano's motion to withdraw his plea.

II. Language Issues

The trial court found that Serrano could read and understand the English language; it also noted that he was able to express himself orally and in writing on legal matters and did so on a number of occasions. Specifically, Serrano affirmed both in person and in his motion to proceed pro se that he understood English. Additionally, his ex-wife testified that she spoke no Spanish, and, in the six years they were married, Serrano spoke to both her and their children only in English.

The trial court obviously found Klingman's testimony credible. Between Klingman's testimony and Serrano's own words in his motion to proceed pro se, there is substantial evidence to support the trial court's finding that Serrano could read and understand the English language.

Therefore, the trial court did not abuse its discretion in denying Serrano's motion to withdraw his plea on these grounds.

III. Effective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a defendant must show: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) the deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). Competency of counsel is determined based on the entire record. McFarland, 127 Wn.2d at 335 (citing State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972)).

Here, the trial court concluded that Woodrow provided effective assistance of counsel both in preparing the case for trial and in advising the defendant with regard to his plea. Moreover, it concluded that Serrano failed to show that, but for some erroneous information or lack of information from Woodrow, he would have chosen not to plead guilty.

On the issue of Woodrow's preparation for trial and advice to the defendant regarding the pleas, the bulk of the evidence offered is testimonial. Woodrow and his investigator testified that Woodrow was amply prepared for trial and had advised Serrano of all of his rights and consequences with regard to the plea. Serrano, on the other hand, testified that Woodrow was not prepared; that he had not interviewed all possible witnesses; and that he did not adequately inform Serrano of the consequences of the plea.

Substantial evidence, in the form of Woodrow's and his investigator's apparently credible testimony, supports the trial court's findings that Woodrow was prepared and kept Serrano informed. Serrano has not shown that Woodrow's counsel was deficient, so we need not reach the question of whether Serrano was prejudiced by his representation. The trial court did not abuse its discretion by denying Serrano's motion to withdraw his plea, on this or any other ground raised.

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, P.J., HUNT, J. concur


Summaries of

State v. Serrano

The Court of Appeals of Washington, Division Two
Aug 14, 2007
140 Wn. App. 1009 (Wash. Ct. App. 2007)
Case details for

State v. Serrano

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. OSCAR ALEXANDER SERRANO, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Aug 14, 2007

Citations

140 Wn. App. 1009 (Wash. Ct. App. 2007)
140 Wash. App. 1009