Opinion
No. 28908-3-II, Consolidated with No. 30268-3-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 01-1-00341-1. Judgment or order under review. Date filed: 05/28/2002. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Jerry L. Warfield appeals the trial court's denial of a motion to withdraw his guilty pleas to three counts of forgery and three counts of theft. He argues that his plea was involuntary because he entered it with the understanding that the prosecutor would recommend a standard range sentence. In a related argument, he maintains that his counsel was ineffective for advising him that the prosecutor would make such a recommendation. We find no error and, therefore, affirm.
FACTS
The State charged Jerry L. Warfield with three counts of forgery and three counts of second degree theft in violation of RCW 9A.60.020(1), 9A.56.020(1)(a) and/or (b), and 9A.56.040(1)(a).
On May 28, 2002, the case came before the trial court for a change of plea hearing. The section of Warfield's statement on plea of guilty containing the prosecutor's recommendation stated, `No commitment to range.' Clerk's Papers (CP) at 26. But the words `standard range sentence' had been crossed out. CP at 26.
At the change of plea hearing, the court and Warfield had the following colloquy:
THE COURT: The matter before the court is Cause Number 01-00341-1, State of Washington versus Jerry Warfield. This matter is actually on today for jury trial, however the defense has contacted the court and indicated that there was an intended change of plea, or plea of guilty, rather, to the Amended Information that was filed with the court today.
Your name is Jerry Warfield?
WARFIELD: Yes sir.
. . .
THE COURT: I have been handed a Statement of Defendant on Plea of Guilty. Have you had an opportunity to go over this form in its' [sic] entirety?
WARFIELD: Yes.
. . .
THE COURT: Now, each of these cases is a Class C felony, punishable by five years in prison and/or Ten Thousand Dollars in fine. They each carry with it a community custody range of nine to eighteen months, and apparently, given your personal offender score as reflected in the left hand margin of the Sub-section Six, you are looking at a twenty-two to twenty-nine month standard range sentence. Is that your understanding?
WARFIELD: Yes Sir.
THE COURT: Now, of course, if your offender score were different than what it is represented, your standard range would vary, or could vary, and that would just be a re-calculation or re-application of the standard range, right?
WARFIELD: Yes.
THE COURT: And, of course, if the court were to accept your plea and impose twenty-nine months per count, they would be presumed to run at the same time because you are being found guilty on all at the same time and the sentence will be at the same time. Twenty-nine months — you would simply go do your twenty-nine months, right?
WARFIELD: Yes, Sir.
THE COURT: On the other hand, if you plead guilty and the judge says, nah, as far as I'm concerned given where we are at, this shouldn't be a twenty-nine month sentence, it should be an exceptional sentence — forty-eight months. You have the right to appeal that because that is not a presumptively correct sentence. Do you understand that?
WARFIELD: Yes, Sir.
THE COURT: And I am not telling you necessarily that that is what I am going to do but I need to be sure that you understand that if that were to occur, you would have the right to an appeal.
The indication is that with respect to an agreement with the prosecutor that they are not committing to a specific statement with respect to the range of sentence, but they will indicate community custody, all the standard exceptions. Counsel, was there any other agreement reached between the parties, anything that the State is foregoing, or any specific recommendation?
. . .
THE COURT: Very well. Are you prepared at this time to enter a plea?
WARFIELD: Yes, Sir.
Report of Proceedings (RP) (May 28, 2002) at 3-7.
Warfield pleaded guilty as charged. After the State presented the factual basis for the guilty pleas, the court asked Warfield whether he had been threatened or offered anything that the court had not been told about. The court then asked Warfield if `your plea is being made freely and voluntarily,' and Warfield answered that it was. RP (May 28, 2002) at 14. The court found the facts sufficient to support the pleas, accepted them, and found Warfield guilty. Later the same day, the court sentenced Warfield to an exceptional sentence of 48 months based on an offender score of 21. At the sentencing hearing, Warfield moved to withdraw his guilty plea, contending that his counsel told him if he pled guilty to the charges, the prosecutor would recommend a standard range 29-month sentence. Warfield's counsel disputed this contention.
On June 4, 2002, Warfield moved to withdraw his guilty plea, arguing he had not been fully informed of the consequences of pleading guilty and that his attorney was ineffective for failing to fully explain the plea to him. Warfield argued:
It should be pretty, pretty open and shut. The plea agreement has been changed since I signed it. When I signed it, it stated one thing. You can read it. It's been scribbled out and something else has been written in. It's a violation of the agreement. I didn't sign that agreement. I signed to a standard range sentence, and that is not what was recommended.
RP (March 28, 2003) at 11.
The matter was set over to obtain a transcript of the plea hearing. At the later hearing, Warfield again argued that he pleaded guilty with the understanding the prosecutor would recommend a standard range sentence. The court denied Warfield's motion to withdraw his plea, citing the May 28, 2002 colloquy.
ANALYSIS
To withdraw a guilty plea, the defendant must establish that it is necessary to correct a manifest injustice. CrR 4.2(f). An injustice is manifest if it is obvious, directly observable, overt, or not obscure. State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). We look at four indicia to show a manifest injustice, (1) ineffective counsel, 2) the defendant's failure to ratify the plea, 3) an involuntary plea, and 4) the prosecution's failure to keep the plea agreement. Taylor, 83 Wn.2d at 597 (quoting Wash. Proposed Rules of Criminal Procedure, p. 50 (1971)). Any one of these non-exclusive indicia establishes manifest injustice. Taylor, 83 Wn.2d at 597.
Warfield argues that his counsel was ineffective for advising him that the State would recommend a standard range sentence.
Criminal defendants have a constitutional right to effective assistance of counsel. U.S. Const. amend VI; Wash. Const. art. I, sec. 22. 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 the context of a guilty plea, counsel must assist the defendant `actually and substantially' in deciding whether to plead guilty. State v. S.M., 100 Wn. App. 401, 410-11, 996 P.2d 1111 (2000) (quoting State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984)).
Counsel's performance is deficient if it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). The defendant is prejudiced if, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re the Pers. Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing In re Pers. Restraint Petition of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992)). Here, Warfield must satisfy us that there is a 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) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). We presume defendants were properly represented. Strickland, 466 U.S. at 688-89; State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
When Warfield first asserted that counsel had told him the State would recommend a standard range sentence, his counsel disagreed. But even if we accept Warfield's assertion, his colloquy with the judge removes any possible prejudice. The court specifically told him that the State was `not committing to a specific statement with respect to the range of sentence.' RP (May 28, 2002) at 6. And the judge asked counsel if there was any other agreement between the parties. Neither counsel said anything about a sentencing recommendation. Finally, the judge asked Warfield if he understood that the court could impose an exceptional sentence and that if so, he could appeal. Warfield said that he did. Accordingly, he cannot show that he was prejudiced by counsel's misrepresentation, if any.
Due Process — Voluntary Plea
Warfield also argues his plea was not entered knowingly, voluntarily, and intelligently because of his belief that the State would recommend a standard range sentence.
`Due process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily.' State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (citing State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980)). In addition, CrR 4.2 requires that the court shall not accept a guilty plea without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. Ross, 129 Wn.2d at 284. A guilty plea is not voluntary if it is induced by or the product of coercive threat, fear, persuasion, promise, or deception. State v. Swindell, 22 Wn. App. 626, 630, 590 P.2d 1292 (1979) (citing Woods v. Rhay, 68 Wn.2d 601, 605, 414 P.2d 601 (1966)).
Again, Warfield's argument fails because of the judge's colloquy with him before he entered his plea. The court fully explained what rights Warfield was giving up by pleading guilty. And the court specifically told Warfield that the State was not committed to any sentencing recommendation and that the court could impose an exceptional sentence. Warfield has not met his burden of demonstrating that his plea was involuntary and therefore a manifest injustice warranting withdrawal. Accordingly, 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.
SEINFELD, P.J. and HOUGHTON, J., concur.