Opinion
No. 31289-1-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-04925-9. Judgment or order under review. Date filed: 01/14/2004. Judge signing: Hon. Bryan E. Chushcoff.
Counsel for Appellant(s), John Henry Browne, Law Offices of John Henry Browne PS, 2100 Exchange Bldg, Seattle, WA 98104-1578.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Bao Sheng Zhao entered a guilty plea to two counts of conspiracy to commit indecent liberties with forcible compulsion and to one count of second degree assault. Zhao now appeals the trial court's denial of his motion to withdraw his guilty plea. He asserts that his plea was not voluntary, knowing, or intelligent, and that it resulted from ineffective assistance of counsel. Finding no error, we affirm.
FACTS
Zhao came to the United States in May 2002. He did not read or speak English, but communicated exclusively in Mandarin Chinese. Zhao worked as a cook at King's Seafood Buffet in Tacoma.
On October 28, 2002, the Pierce County prosecutor charged Zhao with two counts of first degree child molestation. The charges stemmed from two separate instances where Zhao allegedly molested two different victims. Both instances allegedly took place in the restroom at King's Seafood Buffet.
Because Zhao spoke only Mandarin Chinese, an interpreter was required for all of his communication with counsel and the court. Mandarin Chinese is not a court-certified language, but there is a state certification process.
Gail Yu, an attorney, followed Zhao's case. She was counsel, secretary, and a board member for the Organization of Chinese Americans (OCA). Although Yu was not a state-certified Mandarin Chinese interpreter, she spoke fluent Mandarin Chinese and volunteered to interpret during Zhao's meetings with Freeby. Yu's primary role was as an interpreter, but she also did minor things for Zhao, such as measure him for a suit for trial and provide him with a book to read while he was incarcerated. Alice Yeh, another OCA member, also helped interpret for Freeby and Zhao.
The State initially offered Zhao a plea as charged with a Special Sex Offender Sentencing Alternative (SSOSA) recommendation. When Zhao refused this offer, Freeby continued to negotiate with the State. He specifically expressed concern that Zhao would be subject to review by the Indeterminate Sentencing Review Board if he pleaded guilty as charged and did not receive the SSOSA.
On July 30, 2003, the State offered to recommend a 68-month sentence if Zhao pleaded guilty to two counts of conspiracy to commit indecent liberties with forcible compulsion and one count of second degree assault. Freeby and Yu talked to Zhao for approximately one and one-half hours on July 30. They discussed the elements of both the original and the amended charges. Following that discussion, Zhao decided to plead guilty.
Former RCW 9A.44.100(1) (2001) states:
A person is guilty of indecent liberties when he or she knowingly causes another person who is not his or her spouse to have sexual contact with him or her or another
(a) By forcible compulsion.
RCW 9A.28.040(1) states:
A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement. Former RCW 9A.36.021(1) (2001) states:
A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
. . . .
(e) With intent to commit a felony, assaults another.
Freeby prepared the statement of defendant on plea of guilty the morning of August 4. At that time, Freeby again discussed the offer with Zhao and went over Zhao's statement of guilt while Yu interpreted.
On August 5, Zhao entered a guilty plea to two counts of conspiracy to commit indecent liberties with forcible compulsion and one count of second degree assault. Gigi Ball interpreted during the plea hearing.
The relevant dialogue from the plea hearing is as follows:
THE COURT: Mr. Zhao, have you gone over a statement of defendant on plea of guilty, this document, with Mr. Freeby?
THE DEFENDANT: Yes.
THE COURT: And it was read to you by an interpreter; is that correct?
THE DEFENDANT: Yes.
THE COURT: And so you understand you're now charged in the amended information in Count I with the crime of conspiracy to commit indecent liberties by forcible compulsion, in Count II with the crime of conspiracy to commit indecent liberties by forcible compulsion, and in Count III with the crime of assault in the second degree? Do you understand that?
THE DEFENDANT: Yes.
. . . .
THE COURT: At paragraph 4 (b) of the statement of defendant on plea of guilty, here and here, it sets forth the elements of these three charges.
THE DEFENDANT: Yes.
THE COURT: The elements of the offenses are the things that the state has to prove in order to convict you of these charges. Do you understand the elements of these three charges?
THE DEFENDANT: Yes.
. . . .
THE COURT: So as I understand it, Mr. Zhao, for you to be pleading guilty here, at least the following three things have occurred: (1) You've gone over the evidence in this case with Mr. Freeby. (2) After doing that, you believe there is a substantial likelihood you would be convicted and found guilty if this case proceeded to trial. (3) Having all that in mind, you want to take advantage of the plea bargain offer the state is making to you, and that is why you are pleading guilty. Are all three of those things true?
THE DEFENDANT: Yes.
Report of Proceedings (RP) (Aug. 5, 2003) at 5-7.
In addition to ensuring that counsel had discussed the plea agreement and the amended charges with Zhao, the court also went over the maximum fines and standard ranges for these offenses. When asked whether he had any questions, Zhao replied that he did not.
On August 8, Zhao spoke with Freeby and asserted that he did not understand the guilty plea because he was unable to communicate with his interpreter. It is unclear whether Zhao asserts that he had difficulty understanding interpreter Yu, Yeh, or Ball.
Zhao moved to withdraw his guilty plea on October 2, 2003. The court conducted a two-day hearing on the motion. Zhao was represented by new counsel and a new interpreter, Steven Strausz.
Strausz stated that he 'speak[s] Mandarin Chinese, which is not a court-certified language, but [he] would be more than happy to help [the court] in this case.' RP (Nov. 20, 2003 morning session) at 4. The court asked Zhao whether he was 'having any difficulty communicating with [Strausz].' To which Zhao replied, 'No.' RP (Nov. 20, 2003 morning session) at 8. The court did not ask any further questions regarding Strausz's ability to interpret for Zhao.
Zhao acknowledged that his counsel told him that one of the charges against him was conspiracy, but asserted that no one ever told him what conspiracy meant. He also stated that he was not aware that he pleaded guilty to second degree assault. He further stated that he did not remember going over the statement of defendant on plea of guilty before making his plea, and that the statement was not translated into Chinese. But he acknowledged initialing that document prior to entering his plea, and he later acknowledged that he spent half an hour reviewing the document with his attorney and the interpreter.
Zhao recalled that before making the plea, his attorney and interpreter Yu discussed the plea agreement with him. He stated, '[W]e were going to discuss the contents of [the statement of defendant on plea of guilty], and at that time the interpreter was talking to me and told me that
I should listen to what the lawyer had to say because the lawyer knew more about this document than I did, and therefore I felt obligated to go with their opinion.' Report of Proceedings (RP) (Nov. 20, 2003 morning session) at 13.
Zhao testified that he did not know that the original charge against him was child molestation, that he did not see the original or amended information prior to the plea hearing, and that the charges were not translated, orally or in writing, into Chinese. Zhao also testified that he asked Freeby why he should plead guilty when there were only two original charges, but three charges appeared on the plea agreement.
Zhao asserted that he did not understand numerous other aspects of the court proceedings, such as the role of the jury, the constitutional rights he gave up by pleading guilty, the presumption of innocence, the State's burden of proof, and a Newton plea. He also claimed that he had not seen any of the evidence against him, including the police reports and witness statements. But he testified that he had been told that one of the victims described his assailant as a black male with a tattoo and an earring.
State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
One of the child victims told police that the perpetrator was a tall black male with tattoos and an earring. The child's mother identified Zhao as the person who had been in the restroom with her son. It is undisputed that Zhao is an Asian male with no tattoos or earrings. Freeby did not interview the child victim because Pierce County Prosecutor's Special Assault Unit policy eliminates the plea bargaining option where defense counsel interviews a child victim of a sexual crime. Br. of Appellant at 14.
Zhao claimed that his attorney was 'pressing' him to plead guilty and that he did not ask the court questions because he was afraid to raise them. He said that as a result, he felt he had to plead guilty. Zhao also stated that he had difficulty communicating with Yu.
Becky Durkee, a defense investigator, testified that she met with Zhao, Freeby, and Yu for approximately an hour and a half on July 30. During that time, they 'thoroughly' discussed the evidence against Zhao and 'explained [the plea agreement] in numerous different ways: Diagrams were drawn . . . it was written in his language so he could understand it.' RP (Nov. 20, 2003) at 21. Durkee stated that Freeby discussed the concept of a jury, court proceedings, and the strengths and weaknesses of the case with Zhao.
Durkee also testified that when Zhao said he trusted Freeby and would do what Freeby recommended, Freeby said, 'No, no, no. You know, this is your decision. I'm just telling you what they're offering you. I'm giving you all of the options. You have to decide what's best.' RP (Nov. 20, 2003) at 21. According to Durkee, Zhao then stated, 'You know, you're a good man, I trust what you say and I'm going to take the offer.' RP (Nov. 20, 2003) at 21. Durkee recalled that Zhao asked questions regarding how they came up with 68 months as the agreed sentence.
Yu testified that she and Yeh read every line of the discovery packet verbatim to Zhao, including police reports and witness interviews, 'line by line.' RP (Nov. 20, 2003) at 41. Yu used a Chinese legal dictionary to discuss the elements of the plea, to explain a Newton plea, and to define conspiracy. She testified that she read the plea form verbatim to Zhao. Yu recalled that Zhao asked, 'Conspiracy? Who did I conspire with?' RP (Nov. 20, 2003) at 45.
Yu did not specifically remember going over the amended information that charged Zhao with conspiracy and assault, but she did recall interpreting the statement of defendant on plea of guilty, which contained all the elements of the amended charges.
Freeby testified that he 'would sometimes make [Zhao] communicate back to me what I was talking about and ask him if he understood what I was saying to him and the concepts that I was explaining.' RP (Nov. 21, 2003) at 80. Freeby recalled that all discovery and the original information were read to Zhao. And they thoroughly discussed the issue of the victim identifying the perpetrator as a black man with a tattoo and earrings. Because of the ambiguity in identifying Zhao as the assailant in one of the child molestation counts, Freeby filed a motion to sever the charges. He discussed this with Zhao and told him that even if the charges were severed, there would be a chance that the other charge would come in at each trial. Freeby explained court proceedings, the concept of a jury, and used diagrams to better communicate with Zhao.
Freeby testified that he was 'under the belief that if I did pursue the severance motion, that the State would revoke the offer. In fact I think I filed the severance motion, but didn't pursue it based on that basis.' RP (Nov. 21, 2003) at 132.
Freeby instructed the interpreters that they needed to translate what he said verbatim. But Freeby recalled getting 'frustrated' with Yeh because he felt she was 'talking about a lot more than what [he] asked.' RP (Nov. 21, 2003) at 82-83. Freeby testified that Yeh was 'in effect arguing with Mr. Zhao, because she was trying to reconcile what he was saying in response to [Freeby's] question with what the police reports were saying.' RP (Nov. 21, 2003) at 83.
This and other issues pertaining to the use of non-certified interpreters illustrate the wisdom and best practice of obtaining interpreters through court interpreter services.
Following the July 30 meeting between Freeby, Zhao, and Yu, Freeby prepared the statement of defendant on plea of guilty and read it to Zhao, through interpreter Yu, on August 4. Freeby testified that Zhao was informed of the elements of the new offenses, the 'sentencing ranges . . ., the constitutional rights that he was relinquishing, the community custody ranges, [and] the maximum penalties.' RP (Nov. 21, 2003) at 105. They also discussed the basis for the Newton plea.
Freeby indicated that he 'believed [Zhao] changed his mind [about entering a guilty plea] based on influence from the [OCA].' RP (Nov. 21, 2003) at 116.
The court denied Zhao's motion to withdraw his guilty plea. Zhao filed this timely appeal.
ANALYSIS
Zhao asserts that the trial court erred when it denied his motion to withdraw his guilty plea.
We review a trial court's decision on a motion to withdraw a guilty plea for abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). A trial court abuses its discretion when it adopts a position that is manifestly unreasonable or based on untenable grounds or reasons. State v. Valdobinos, 122 Wn.2d 270, 279, 858 P.2d 199 (1993) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 (1971)). Our 'scope of review is limited to the trial court's exercise of its discretion in deciding the issues that were raised by the motion.' State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002).
Under CrR 4.2(f), a defendant may withdraw a plea of guilty 'whenever it appears that the withdrawal is necessary to correct a manifest injustice.' Zhao bears the burden of showing manifest injustice, which is injustice that is obvious and overt. CrR 4.2(f); State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996).
Manifest injustice can be shown through four nonexclusive criteria and may be apparent when the defendant did not (1) plea voluntarily; (2) ratify the plea; (3) receive effective assistance of counsel; or (4) receive the agreed — to terms of the plea. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). Here, Zhao asserts that he did not enter into the plea agreement knowingly, intelligently, and voluntarily, and that he did not receive effective assistance of counsel.
1. Knowing, Intelligent, and Voluntary Plea
A guilty plea must be knowing, intelligent, and voluntary to satisfy federal and state constitutional due process requirements. U.S. Const. amends. V, XIV; Wash. Const. art. I, sec. 3; Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); In re Personal Restraint of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987). CrR 4.2(d) requires the court to determine that the plea was 'made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.' Wood v. Morris, 87 Wn.2d 501, 508 n. 1, 554 P.2d 1032 (1976) (quoting CrR 4.2). CrR 4.2(d) also requires that there be a factual basis for the plea; however, this requirement has been clarified by case law. See, e.g., In re Personal Restraint of Barr, 102 Wn.2d 265, 269-70, 684 P.2d 712 (1984); In re Personal Restraint of Hews (Hews II), 108 Wn.2d 579, 741 P.2d 983 (1987).
We initially determine whether a plea is knowing, intelligent, and voluntary by examining the record of the plea hearing along with the written plea statement. State v. Branch, 129 Wn.2d 635, 642-43, 919 P.2d 1228 (1996).
When a defendant has read and signed a plea statement, it creates a strong presumption that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). Here, the record of the plea hearing and the plea form itself create a presumption that Zhao knew that the original charges had been amended and the elements of those amended charges, that the State had to prove all the elements of the new charges in order for him to be found guilty at trial, that he was aware of the State's evidence, that he had discussed the plea with his attorney, and that he accepted the State's offer to take advantage of the sentencing consequences of the amended charges.
But Zhao contends that he was not informed of the essential elements of the crimes to which he entered a plea and that he did not understand the factual basis supporting the conspiracy and assault charges. For a plea to be intelligent and voluntary, a defendant must understand the law in relation to the facts. In re Personal Restraint of Keene, 95 Wn.2d 203, 209, 622 P.2d 360 (1980).
Zhao pleaded guilty to two counts of conspiracy to commit indecent liberties with sexual compulsion and to second degree assault, amended from two counts of first degree child molestation. The declaration of probable cause contained factual assertions related to the original charges. Hews II guides our analysis of how Zhao's plea is affected by the lack of a stated factual basis for the amended charges. 108 Wn.2d 591-92.
Hews II clarified that the constitution does not require a factual basis to support a guilty plea. While the existence of a factual basis for a guilty plea is likely to shed light on whether the plea is voluntary, 'the establishment of a factual basis is not an independent constitutional requirement, and is constitutionally significant only insofar as it relates to the defendant's understanding of his or her plea.' Hews II, 108 Wn.2d at 591-92. The defendant must demonstrate more than a deficiency in the factual basis for his plea; he must demonstrate that the deficiency affected his understanding of the plea. Hews II, 108 Wn.2d at 591-92. The question is whether sufficient evidence satisfies Zhao's burden of showing that he did not understand his plea and was therefore actually prejudiced. Hews II, 108 Wn.2d at 594. The trial court must consider the totality of the circumstances surrounding a contested plea. Hews II, 108 Wn.2d at 595.
The trial court granted Zhao a hearing and an opportunity to prove actual prejudice. At the hearing, Zhao had the burden of proving that he did not possess the requisite understanding of the law in relation to the facts. Hews II, 108 Wn.2d at 588-89.
During the two day hearing on the circumstances leading to Zhao's plea, Zhao's former attorney, Zhao's interpreter, the defense investigator, and Zhao testified. The trial court found:
The testimony of Mr. Zhao was such that, if believed, his plea should be set aside. . . .
. . . There were some things in Mr. Zhao's own testimony which were inconsistent with some of those claims. . . . [H]e indicated, for instance that he had never seen the original information or the amended information and didn't know what the charges were, . . . [but] he raised a question to Mr. Freeby about How come there's three charges now instead of II [sic] charges? Why would he say that if he didn't know what his charges were? . . . He couldn't say those things unless he did know what those charges were.
RP (Dec. 10, 2003) at 161-162.
The court also found that Zhao was aware 'of the problem with the improper identification by the child, but also the positive identification by the mother.' RP (Dec. 10, 2003) at 166. Comparing Zhao's testimony to that of Yu and Freeby, the court concluded, 'Mr. Zhao is inaccurate' about all of the things that he now claims he was never told. RP (Dec. 10, 2003) at 167. We defer to the trier of fact on issues of witness credibility. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Zhao has failed to show actual prejudice. On the contrary, the evidence indicates that he knew the essential elements of the amended charges, that he had discussed the amended charges and how they related to the facts, and that those facts did not support a finding of guilt on the new charges. Zhao's Newton-Alford plea allowed him to refer to the facts underlying the original charges for a factual basis to receive the benefits of the plea bargain offered by the State. Thus, the trial court did not abuse its discretion in denying Zhao's motion to withdraw his plea.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Alford makes it clear that denial of guilt does not alone invalidate an otherwise voluntary and intelligent plea. Hews II, 108 Wn.2d at 591 (citing Alford, 400 U.S. at 37-38; accord Newton, 87 Wn.2d at 371-73).
2. Effective Assistance of Counsel
The State contends that Zhao did not argue ineffective assistance of counsel in his motion to withdraw his plea under CrR 4.2(f) and cannot now raise this challenge on appeal. Zhao responds that the ineffective assistance claim was part of his motion below.
During the hearing on Zhao's motion, Zhao's new counsel specifically questioned Freeby about his failure to interview the child witness because of the prosecutor's policy of ending plea negotiations if such an interview takes place. However, all of counsel's arguments focused on the voluntariness of Zhao's plea, not on whether Freeby's representation was deficient. In counsel's closing argument he stated:
[I]f there is ever a suggestion that I'm saying Mr. Freeby didn't do a very good job, that would be totally untrue. I think Mr. Freeby did an extraordinary job. . . . However, I think the whole issue in this case, as far as the 'knowing' and 'voluntariness' of the process, . . . the real bottom line is: Did Mr. Zhao understand what he was doing, despite all of the amazing efforts that I think Mr. Freeby and others made.
RP (Dec. 10, 2003) at 142-43.
Zhao's motion to withdraw his plea, closing arguments by both parties, and the judge's oral ruling are all devoid of any discussion of ineffective assistance of counsel. The entire question before the court was whether, as a result of counsel and interpreter efforts, Zhao made a knowing, intelligent, and voluntary plea of guilty.
On appeal, Zhao did not specifically raise the issue of ineffective assistance of counsel in his initial brief; he raised it in the reply brief. Issues raised for the first time in a reply brief are untimely and need not be considered. Fosbre v. State, 70 Wn.2d 578, 424 P.2d 901 (1967). We therefore decline further review of this issue.
Zhao raises three issues in a Statement of Additional Grounds. RAP 10.10. These issues are either sufficiently addressed by counsel's arguments or do not identify any error for our review. RAP 10.10(a) and (c).
We affirm the trial court's denial of Zhao's motion to withdraw his plea and remand for further proceedings.
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, J. and QUINN-BRINTNALL, C.J., Concur.