Opinion
No. 22523-2-III
Filed: March 22, 2005
Appeal from Superior Court of Grant County. Docket No: 98-1-00211-8. Judgment or order under review. Date filed: 09/30/2003. Judge signing: Hon. John Michael Antosz.
Counsel for Appellant(s), Garth Louis Dano, Garth Dano Associates, PO Box 2149, Moses Lake, WA 98837-1740.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, PO Box 37, Ephrata, WA 98823-0037.
On transfer from our Supreme Court, the Grant County Superior Court decided Jason R. Walter was not denied effective assistance of counsel. Mr. Walter appeals, contending the court should have stayed enforcement of the judgment and sentence based on subsequent disciplinary recommendations against his trial attorney. Because the trial court did not abuse its discretion, we affirm.
FACTS
Mr. Walter was charged with attempted second degree burglary and second degree malicious mischief. State v. Walter, noted at 104 Wn. App. 1054, 2001 WL 175535, at *1, review granted, 144 Wn.2d 1010, 29 P.3d 1256 (2001). The charges stemmed from his confessed involvement in a break-in of a television store in Moses Lake on April 17, 1998. Walter, noted at 104 Wn. App. 1054, 2001 WL 175535, at *1. Mr. Walter was convicted as charged. Walter, noted at 104 Wn. App. 1054, 2001 WL 175535, at *2. He appealed, partly arguing he was denied effective assistance of counsel because his attorney failed to move to suppress his statement based upon an unlawful arrest. Walter, noted at 104 Wn. App. 1054, 2001 WL 175535, at *2. Additionally, Mr. Walter filed a personal restraint petition (PRP), alleging that same ground. In an unpublished opinion, this court affirmed his convictions and denied his PRP. Walter, noted at 104 Wn. App. 1054, 2001 WL 175535, at *5.
The Supreme Court denied Mr. Walter's petition for review relating to his appeal, but granted his petition relating to his PRP, and transferred the matter to the superior court for a 'determination on the merits of Mr. Walter's claim that his attorney afforded ineffective assistance by failing to challenge the legality of Mr. Walter's arrest.' State v. Walter, 144 Wn.2d 1010, 29 P.3d 1256 (2001).
At a December 2001 hearing, Sergeant David Sands testified Mr. Walter exited his house before he was arrested. This coincided with Sergeant Sands' prior declaration regarding the details of Mr. Walter's arrest. Another officer at Mr. Walter's home on the morning of the arrest testified Sergeant Sands and Mr. Walter talked outside the residence for a while before the arrest. Thomas Earl, Mr. Walter's original court-appointed attorney, testified Mr. Walter admitted to him his statement was freely and voluntarily given.
At Mr. Walter's request, the court stayed the proceedings, allowing the record to remain open to permit Mr. Walter to testify. In August 2002, Mr. Walter testified, contradicting the testimony of the arresting officers and his prior counsel. He said Sergeant Sands told him, "Step outside. We're going to placed [sic] you under arrest." Report of Proceedings (RP) (August 1, 2002) at 10.
In October 2002, the trial court orally ruled in the State's favor. In May 2003, the court filed findings of fact and conclusions of law, concluding Mr. Walter failed to establish he was afforded ineffective assistance of counsel because a motion to suppress likely would have been denied. The court denied Mr. Walter's PRP.
In June 2003, a Washington State Bar Association (WSBA) hearing officer recommended Mr. Earl's disbarment for matters unrelated to Mr. Walter's case. In August 2003, Mr. Walter moved to stay enforcement of his judgment and sentence, alleging Mr. Earl's disciplinary recommendation as newly discovered evidence. The court denied this request, and his September 2003 motion for reconsideration. This appeal followed.
Mr. Earl was subsequently disbarred in May 2004. Just prior to oral argument, Mr. Walter moved to supplement our record to include hearsay materials suggesting the trial judge might have been called to testify in Mr. Earl's disciplinary proceedings and what the judge might have said in that event. The judge was not called and did not testify. In view of the speculative and hearsay nature of the proffered materials, we deny the motion. Moreover, recusal is within the sound discretion of the trial court. In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 697 (1997).
ANALYSIS
The issue is whether the trial court erred in denying Mr. Walter's motion for a new hearing based upon newly discovered evidence under CrR 7.8(b)(2). Mr. Walter contends the WSBA's hearing officer's recommendation for Mr. Earl's disbarment is relevant, newly discovered evidence requiring a new hearing.
We review a CrR 7.8(b) motion for an abuse of discretion. State v. Littlefair, 112 Wn. App. 749, 772, 51 P.3d 116 (2002), review denied, 149 Wn.2d 1020 (2003). The court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Final judgment relief is available under CrR 7.8(b) where (1) the judgment was obtained by mistake, inadvertence, surprise, excusable neglect or irregularity; (2) there is relevant newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial; (3) the judgment was obtained by fraud, misrepresentation or other misconduct; (4) the judgment is void; or (5) there is any other reason justifying relief. Mr. Walter implicates subsection (2).
The standard applied for a new merits hearing under RAP 16.12 is the same as that applied to a motion for relief of judgment under CrR 7.8 based on newly discovered evidence. Cf. In re Pers. Restraint of Brown, 143 Wn.2d 431, 453, 21 P.3d 687 (2001) ('The standard applied under RAP 16.4(c)(3) for a new sentencing proceeding is the same as that applied to a motion for new trial based upon newly discovered evidence.'); State v. Brand, 65 Wn. App. 166, 176 n. 23, 828 P.2d 1 (1992), rev'd on other grounds, 120 Wn.2d 365, 842 P.2d 470 (1992) (a reference hearing will require review analogous to a CrR 7.6 motion based upon newly discovered evidence).
To obtain relief based on newly discovered evidence, the defendant must prove the evidence: '(1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.' State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). If any one of the above factors is absent, the motion for a new trial is properly denied. Id. When one factor is absent, it is unnecessary to find whether the other factors are present. Id. at 803-04.
Mr. Walter fails to meet his burden for at least three of the above factors. For factor one, Mr. Walter must prove Mr. Earl's recommended disbarment would necessarily change the court's determination on the merits. This he cannot do. Nothing in the hearing officer's findings relates to Mr. Walter's case. Additionally, the trial court relied upon the arresting officer's testimony in addition to Mr. Earl's testimony. The officers' testimony alone is enough to establish the admissibility of Mr. Walter's statement. Thus, a motion to suppress would likely have failed. While Mr. Walter contradicted this testimony, credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Next, Mr. Walter fails to show the disbarment recommendation is material. Mr. Walter's case was not considered in Mr. Earl's disciplinary proceeding. Moreover, the outcome of the merits hearing did not turn on Mr. Earl's testimony since other testimony exists supporting the court's order without Mr. Earl's testimony.
Regarding the fifth factor, Mr. Walter's argument merely seeks to impeach Mr. Earl and is cumulative in effect. For example, during the merits hearing, Mr. Walter introduced a writ of habeas corpus granted in another case based on Mr. Earl's ineffective assistance of counsel in an attempt to attack Mr. Earl's reputation. Further impeachment evidence is impermissible under Macon. Macon, 128 Wn.2d at 800.
In sum, Mr. Walter was not entitled to relief based on newly discovered evidence. The trial court did not abuse its discretion in denying his CrR 7.8(b) request for relief of judgment.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for pubic record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., concur.