Opinion
C089920
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. SCOTT MCLAUGHLIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CR002453)
Defendant Scott McLaughlin appeals the denial of his motion to withdraw his guilty plea. He argues he did not intelligently and knowingly waive his rights because he was incorrectly advised he was eligible for probation. Defendant claims this was prejudicial because he expressed a willingness to go to trial. We affirm the judgment, concluding there was no reasonable probability defendant would not have pleaded guilty had he been correctly advised.
BACKGROUND
Defendant was charged with 18 counts and several special allegations related to sexual assault and exploitation of five young men and teenage boys. On the day set for trial, defendant pleaded guilty to five of the counts: sodomy by force of a minor victim 14 years or older (Pen. Code, § 286, subd. (c)(2)(C)), assault with the intent to commit a felony (§ 220, subd. (a)(1)), lewd act upon a child under 14 years old (§ 288, subd. (b)(1)), sodomy by force (§ 286, subd. (c)(2)(A)), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)).
Undesignated statutory references are to the Penal Code.
Defendant initialed and signed a plea form pleading guilty to these five crimes and acknowledging his waiver of rights. Defendant also checked a box indicating he understood he "will not be granted probation unless the court finds at the time of sentencing that this is an unusual case where the interests of justice would be best served by granting probation." He did not check a box stating he understood he was "not eligible for probation." At the plea hearing, the court confirmed defendant intended to plead guilty to each of the five counts, understood his rights, and understood his maximum sentence was 30 years 10 months. Defendant entered the pleas and the remaining counts and special allegations were dismissed.
Two months later, and prior to sentencing, defendant filed a motion to withdraw his plea. Defendant argued he had a weakened emotional state when he pleaded, he was not advised of his probation ineligibility, and the prosecutor failed to provide exculpatory evidence for one of the victims. Defendant filed a supporting declaration stating: "At the time of my plea, I was advised that probation was a legal possibility, although I was also advised that it was extremely unlikely. [¶] . . . [¶] . . . I believe the only rational decision to have made in my case was to go to trial and face my accusers." Defendant's counsel also filed a supporting declaration stating, "I advised defendant that as far as I knew he was eligible for probation, although it was extremely unlikely that the court would grant probation on these charges."
The court denied defendant's motion. It found no evidence defendant was in a weakened state, the exculpatory evidence claim was insufficient to support withdrawal, and there was no evidence defendant relied on probation eligibility in deciding to plead guilty. The court also noted defendant did not request probation and neither defendant's declaration nor his counsel's declaration indicated defendant would not have pleaded guilty if he was told he was not eligible for probation.
The court sentenced defendant to the maximum sentence on each of the five counts for a total sentence of 30 years 10 months in state prison.
DISCUSSION
Defendant contends his waiver was not knowingly and voluntarily made because he believed he was eligible for probation. He also claims he suffered ineffective assistance of counsel when his attorney counseled him he could be eligible for probation. Defendant asserts he was prejudiced by these errors because he was "intent on showing the problems with his accusers' testimony." The People argue the court did not abuse its discretion because there is no evidence defendant was likely to not have pleaded guilty if he knew he was ineligible for probation. The People's argument is more persuasive.
A change of plea must be voluntary and intelligent, with a defendant being advised of his or her constitutional rights, and of the direct consequences of the conviction. (People v. Farwell (2018) 5 Cal.5th 295, 301; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Probation ineligibility is a direct consequence requiring proper advisement. (People v. Caban (1983) 148 Cal.App.3d 706, 710-711 (Caban).)
Section 1018 permits a defendant to move to withdraw his or her plea for good cause at any time before judgment is entered. (§ 1018.) To establish good cause, a defendant must show by clear and convincing evidence that his or her plea was the result of mistake, ignorance, or any other factor overcoming the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) "A defendant seeking to withdraw a plea based on the failure to advise on the direct consequences of a conviction must show actual ignorance of those consequences. [Citation.] The defendant also must show prejudice in the form of a reasonable probability that he or she would not have entered the plea had a proper advisement been given." (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) The reasonable probability standard applies regardless of the source of the misadvisement. (Hill v. Lockhart (1985) 474 U.S. 52, 58-59 ["the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial"]; In re Moser (1993) 6 Cal.4th 342, 352 [applying reasonable probability standard to the "trial court's misadvisement"].)
A trial court's decision to grant or deny a defendant's motion to withdraw his or her plea is reviewed for abuse of discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.) "Discretion is abused only when ' ". . . the court exceeds the bounds of reason, all of the circumstances before it being considered." ' " (People v. McDonough (1961) 198 Cal.App.2d 84, 90.) The reviewing court must adopt the trial court's factual findings if they are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
There is no dispute defendant was misadvised regarding his ineligibility for probation. Defendant's plea included violations of section 286, subdivisions (c)(2)(A) and (c)(2)(C), which rendered him ineligible for probation. (§ 1203.065, subd. (a).) Defendant did not check on his plea form he understood he was ineligible for probation, instead indicating he understood probation was possible depending on the interests of justice analysis. Defendant and his counsel also declared he was advised probation was "extremely unlikely," but not that he was automatically ineligible. The trial court recognized this as a mistake. The People do not dispute this was error, instead arguing lack of prejudice. Defendant's plea was therefore not voluntarily given because he was misadvised of his probation eligibility, a direct consequence of his plea.
The dispositive question is whether defendant established he was prejudiced—is it reasonably probable defendant would not have pleaded guilty had he been correctly advised of his probation ineligibility? The trial court found defendant did not establish prejudice. We conclude this finding was not an abuse of discretion.
The trial court's decision and the parties' arguments rely on Caban, supra, 148 Cal.App.3d 706. There, the defendant requested probation and had been misadvised he was eligible for probation if he admitted a gun use allegation. At the change of plea hearing, he also contested the use allegation, explaining he displayed the gun in his waistband. (Id. at pp. 711-712.) The defendant admitted the allegation only after the trial court represented this display of a gun was sufficient for use under the relevant statute. (Id. at p. 712 & fn. 7.) The appellate court found it reasonably probable the defendant, had he been properly advised on probation eligibility, "would have denied such use and allowed a jury to determine whether his display of the gun was sufficient 'use.' " (Id. at p. 712.)
Caban also relies on the defendant being a good candidate for probation. The trial court here relied on this factor to distinguish the present case, noting the probation report found defendant was not a good candidate for probation even if he was eligible. We agree with defendant that this factor is not relevant because the probation report was filed after defendant pleaded guilty, so it could have no bearing on what he knew when he pleaded guilty.
The present case is materially distinguishable from Caban. Here, defendant presented no evidence, let alone clear and convincing evidence, that he relied on the possibility of probation when deciding to plead guilty. Unlike Caban, defendant never asked for probation nor did he indicate before pleading guilty that he contested the merits of the pleaded charges. Though defendant was told probation was possible, like Caban, defendant was told it "was extremely unlikely." Defendant therefore knew it was extremely likely he would not get probation if he pleaded guilty. Defendant was facing a minimum of 80 years if convicted on all counts, and possibly multiple life sentences. Instead, as a result of the plea, his sentence was limited to at most 30 years 10 months. There is no reasonable probability the extreme unlikelihood of probation motivated his plea. Instead, as the trial court found, it was far more likely defendant's decision was based on the disparity of the probable consequences of proceeding to trial and the terms of the proposed plea bargain. (See People v. Breslin (2012) 205 Cal.App.4th 1409, 1421.) This finding was not an abuse of discretion.
Defendant's declaration statement, "I believe the only rational decision to have made in my case was to go to trial and face my accusers," is insufficient. Without any other independent corroborating evidence, such self-serving statements made after the fact cannot "sustain the defendant's burden of proof as to prejudice." (People v. Vivar (2019) 43 Cal.App.5th 216, 230, review granted Mar. 25, 2020, S260270.)
Defendant was therefore not prejudiced by the misadvisement of his probation eligibility. And because defendant was not prejudiced, his ineffective assistance of counsel claim must also fail.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
MAURO, J.