Opinion
41819-3-II
01-29-2013
STATE OF WASHINGTON, Respondent, v. JESUS ESCOBAR, Appellant.
UNPUBLISHED OPINION
Judge C. C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21(c).
Jesus Escobar appeals the trial court's denial of his CrR 7.8 motion to withdraw his guilty plea based on his counsel's ineffective assistance. We affirm because he does not show defective assistance.
FACTS
I. Underlying Burglary Allegations
Escobar's ex-girlfriend, Tracy Kepner, lived in the same house as William Gill. Escobar and Kepner have a child. Escobar had been concerned about the drug use at Kepner's home so he contacted the police and filed a report.
A few months later, Escobar had telephoned Kepner's house demanding to talk to Kepner. When Gill told Escobar that Kepner was not there, Escobar became irate and told Gill he would be at the home in a few minutes. Gill became afraid and called 911. As soon as he made the call, Gill heard Escobar drive onto his property. When Escobar came into the house, Gill told him that he was talking to the police. Escobar ran toward Gill and pushed him, he tried to rip the telephone cord out of the wall, and then searched the house for Kepner and their child.
While Escobar was searching the house, Gill plugged the telephone back in and called 911 again. Escobar came back into the room, grabbing Gill and ripping the telephone cord out of the wall before kicking the bottom of the front door, shattering the glass as he left and drove away.
Responding to Gill's 911 telephone call, police arrived and found Gill "shook up" from the encounter. Clerk's Papers (CP) at 5. The officer observed the telephone cord "split at the end exposing the wires, " noting that it was "consistent with being ripped from the [tele]phone jack." CP at 5. The officer also observed shattered glass on the ground from the door. Kepner returned home and told police that she had asked Escobar to move out because of his drinking and that he no longer had a key or any personal belongings at her house. Gill told police that he thought Escobar had a good working relationship with Kepner and his daughter but that this was the first time Escobar had returned since he moved out of the house.
II. Procedural Facts
The State charged Escobar with second degree burglary and a special allegation of domestic violence. After determining that Escobar needed an interpreter, the trial court reset the arraignment. At the reset arraignment, with an interpreter present, Escobar pleaded not guilty. Shortly thereafter, the State made a plea agreement with Escobar and Escobar changed his plea. The trial court verified with Escobar that: (1) the interpreter had translated the plea agreement, (2) his attorney had explained the agreement, and (3) Escobar had signed the agreement. Escobar's attorney noted that if this case had gone to trial, he would have disputed some of the facts and he would have highlighted the enmity between Escobar and Gill. But because the charge would be first degree burglary if the case went to trial, he recommended that Escobar accept the plea agreement. The trial court found a factual basis for Escobar's plea and also found it "to be knowingly, intelligently, and voluntarily made." CP at 17. The trial court imposed the recommended one-month sentence, with credit for time served, which time Escobar had already fulfilled.
The trial court asked, "And have you also had these explained to you?" CP at 70. It is unclear whether this question refers to Escobar's attorney or to the translator, who affirmed to the trial court that he reviewed the plea agreement and the guilty plea with Escobar.
Escobar denied pushing Gill, ripping the telephone cord, and shattering the glass in the door.
Escobar had previously reported drug use at Kepner's and Gill's house to the police, who arrested Gill, the only person present when police responded.
It is undisputed that had Escobar proceeded to trial, the charge would have been first degree burglary; however, the State did not amend the charging information.
Five years later, Escobar moved to withdraw his guilty plea. Despite RCW 10.73.090's one-year time limitation on a collateral attack, the trial court determined that Escobar "made a substantial showing that his motion is timely, and that he is entitled to the relief sought" and ordered a show cause hearing. CP at 165. At the hearing, the trial court found Escobar's motion timely because the court had not advised him of the time limitation at sentencing. See State v. Golden, 112 Wn.App. 68, 47 P.3d 587 (2002). On the merits, Escobar argued that the trial court should permit his guilty plea withdrawal because his counsel had deficiently represented him by advising him to plead guilty without spending sufficient time on the case and without sufficient investigation. Specifically, Escobar argued that the primary witnesses against him had committed recent thefts, were not trustworthy, and Gill was a biased witness.
The State responded that, even assuming that Escobar's declarations were true, Escobar did not present evidence to overcome the presumption of counsel's competent performance in recommending that he accept the plea agreement because physical evidence supported Gill's version of the facts, and because Escobar would have faced a first degree burglary charge. The trial court asked Escobar what evidence supported his argument when the prior defense attorney was now deceased, therefore no declaration supported the argument other than Escobar's word. Escobar responded that current counsel had filed a declaration, stating that there was no evidence in Escobar's file that prior counsel had conducted any investigation.
The trial court found that insufficient evidence supported Escobar's ineffective legal representation argument and denied his motion to withdraw his guilty plea. Escobar appeals.
ANALYSIS
Escobar argues that the trial court erroneously: (1) required that he support his motion with something more than his own testimony, when (a) he did not base his claim on involuntariness and (b) the State had the burden at the show cause hearing; and (2) found that counsel's assistance was not deficient despite not investigating Kepner and Gill. The State responds that the trial court properly found that Escobar failed to establish his claim that counsel ineffectively assisted him. We agree with the State.
I. Motion to Withdraw Plea
A. Standard of Review
We review the trial court's decision to deny a motion to withdraw a guilty plea for abuse of discretion. State v. A.N.J., 168 Wn.2d 91, 106, 225 P.3d 956 (2010). The trial court abuses its discretion when it bases its decisions on untenable or unreasonable grounds. State v. Martinez, 161 Wn.App. 436, 440, 253 P.3d 445, review denied, 172 Wn.2d 1011 (2011). After the trial court enters judgment, CrR 7.8 governs a motion to withdraw a plea. CrR 4.2(f). Under CrR 7.8(b)(5), the court may grant relief from judgment for "'[a]ny other reason justifying relief from the operation of the judgment.'" Martinez, 161 Wn.App. at 441 (quoting CrR 7.8(b)(5)). Counsel's ineffective assistance justifies relief because counsel's faulty advice can render a defendant's guilty plea involuntary or unintelligent. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015 (2011). Although we review the denial of a motion to withdraw a plea for abuse of discretion, we review claims of counsel's ineffective assistance de novo because those claims present mixed questions of law and fact. A.N.J., 168 Wn.2d at 109.
B. Burden of Proof
Escobar makes two arguments related to the burden of proof: that his burden is lower because of the nature of his claim and that the trial court erroneously placed the burden of proof on him.
First, Escobar argues that when a defendant moves to withdraw a plea because of counsel's ineffective assistance, the defendant's burden is lower than when a defendant moves to withdraw a plea because it was involuntary. Based on this argument, Escobar argues that the trial court should have granted his motion based on his own testimony. Escobar is mistaken.
Although the court tailors its analysis to fit the specifics of a claim, the defendant's ultimate burden on a motion to withdraw a guilty plea is always to show a "core concern[]" regarding whether he made the plea voluntarily, knowingly, and intelligently. A.N.J., 168 Wn.2d at 107. In the context of a plea agreement, the reviewing court analyzes counsel's assistance to determine if counsel's inadequate advice rendered the defendant's plea unknowing, involuntary, or unintelligent. Sandoval, 171 Wn.2d at 169. Therefore, whether Escobar bases his guilty plea challenge on coercion claims or ineffective assistance claims, the ultimate issue is still whether Escobar entered his plea agreement knowingly, voluntarily, and intelligently. Sandoval, 171 Wn.2d at 169. Further, the defendant has the burden to show counsel's ineffective assistance and to overcome the strong presumption of competence. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We reject Escobar's argument that based on the nature of his claim (i.e., ineffective assistance rather than coercion), the trial court erred by requiring more than his own testimony to support his guilty plea challenge.
Next, Escobar argues that because his hearing was a show cause hearing, the trial court should have required the State to show that Escobar's counsel gave effective assistance. Escobar further argues that because the State had the burden, the trial court erred by asking him for supporting evidence other than his own declaration. Although Escobar correctly notes that the State had the burden in the show cause hearing, he overlooks that the trial court properly required the State to show why Escobar's counsel gave effective assistance and the State met that burden.
Here, Escobar's CrR 7.8 motion addressed two issues: timeliness and counsel's ineffective assistance. In granting the hearing, the trial court determined that Escobar "made a substantial showing that his motion is timely, and that he is entitled to the relief sought." CP at 165. At that hearing, Escobar prevailed on the timeliness issue and the parties turned to the merits. The State responded that assuming the truth of Escobar's declaration, Escobar's counsel did not need to investigate Kepner and Gill before competently recommending that Escobar accept the plea agreement because: (1) Escobar admitted to large portions of the events, (2) physical evidence supported Gill's version of the facts, and (3) Escobar would have faced a first degree burglary charge in contrast to a sentence for time served. The State thus argued that Escobar could not overcome the presumption of counsel's competent performance. Only after the State persuasively responded to Escobar's argument, while assuming the truth of Escobar's declaration, did the trial court ask Escobar whether he had other supportive evidence. Thus, we reject Escobar's argument that the trial court erroneously required him to bear the burden in the show cause hearing.
C. Effective Assistance
Escobar primarily argues that the trial court erroneously found that his counsel gave effective assistance despite his counsel's failure to investigate Kepner and Gill. In passing, Escobar also argues that his counsel gave deficient performance by: (1) advising him that it would take months to be ready for trial and (2) failing to bring an interpreter to their meeting in the jail. The State responds that the trial court properly found that Escobar failed to establish ineffective assistance of counsel. We agree with the State.
Counsel's effective assistance includes sufficient investigation to evaluate the likelihood of a conviction so that the defendant can make a meaningful decision about whether to plead guilty. A.N.J., 168 Wn.2d at 111-12. The degree and extent of investigation that counsel must conduct varies depending on the issues and facts of each case. A.N.J., 168 Wn.2d at 111. Escobar bears the burden of showing that (1) his counsel's performance fell below an objective standard of reasonableness and (2) his counsel's poor work prejudiced him. McFarland, 127 Wn.2d at 334-35. Because Escobar challenges his guilty plea on a claim that counsel rendered ineffective assistance, we analyze the prejudice prong for the effect on the outcome of the plea process. State v. Garcia, 57 Wn.App. 927, 932-33, 791 P.2d 244, review denied, 115 Wn.2d 1010 (1990). Because Escobar argues that his counsel failed to investigate sufficiently, the second prong requires that Escobar show a reasonable probability that, but for counsel's failure to investigate potentially exculpatory evidence, his counsel would have made a different plea recommendation. Garcia, 57 Wn.App. at 933. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 866, 16 P.3d 610 (2001).
Escobar argues that his counsel's representation fell below the objective standard because if he had investigated, he would have discovered that the only eyewitness, Gill, was "a drug addict and a thief, and the corroborating witness [Kepner] was also a thief." Reply Br. of Appellant at 1. Escobar's argument presumes, without analysis, the admissibility of this evidence.
Regarding Gill's purported drug conviction, Escobar overlooks that drug convictions are not crimes of "'dishonesty or false statement.'" State v. Hardy, 133 Wn.2d 701, 707, 946 P.2d 1175 (1997) (quoting ER 609(a)(2)). Thus, evidence of Gill's drug use is admissible for impeachment only where a reasonable inference exists that Gill was under the drug's influence either during the event or when testifying. State v. Tigano, 63 Wn.App. 336, 344, 818 P.2d 1369 (1991). Here, there is no inference that Gill was under a drug's influence during the relevant times. To the extent that Escobar argues that this evidence was admissible to show Gill's bias, the record shows that Escobar's counsel was already aware of the "enmity" between Gill and Escobar, yet that knowledge did not change his plea recommendation. Thus, regarding further investigation of Gill's alleged drug use or drug convictions, we reject Escobar's argument that his counsel's performance was objectively deficient.
Regarding Gill's theft conviction, Escobar overestimates the scope of this evidence's admissibility. Escobar argues that had his counsel investigated, he would have discovered that Gill was a thief and "could have explored how [Gill] not only engaged in sophisticated acts of deception . . . but that he then lied when confronted by his employer with the evidence." Br. of Appellant at 27. Crimes of theft involve dishonesty and are per se admissible for impeachment purposes under ER 609(a)(2). State v. Ray, 116 Wn.2d 531, 545, 806 P.2d 1220 (1991). But "cross-examination regarding prior convictions is limited to the fact of the conviction, the type of crime, and the punishment." State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996). And "[t]he details of the acts leading to the prior convictions are not admissible." State v. Coles, 28 Wn.App. 563, 573, 625 P.2d 713 (1981).
Here, Escobar's argument that his counsel potentially could have "explored" Gill's prior theft conviction is mistaken. Whether a jury would have found information regarding the facts, type, and punishment of Gill's theft conviction probative to his motivation in making a panicked 911 telephone call, resulting in Escobar's burglary and domestic violence charges, is debatable. Further, the probative value of that evidence diminishes when, as here, physical evidence and police officers' testimony support Gill's version of events. We conclude that Escobar does not show a reasonable probability that, but for counsel's failure to investigate Gill's prior theft conviction, his counsel would have made a different plea recommendation. Garcia, 57 Wn.App. at 933.
Regarding Kepner's theft convictions, Escobar again presumes this evidence's admissibility. Escobar argues that had his counsel investigated, he would have discovered that Kepner was a thief, that she used "sophisticated means" and this would have "seriously undercut" her credibility. Br. of Appellant at 27-28. Escobar acknowledges that when he entered his plea agreement, Kepner had not been convicted of her purported theft charges; he nevertheless argues that this evidence was admissible under ER 608(b). Although ER 608(b) permits evidence of specific instances of conduct to show the witness's character, it limits such evidence to cross examination and specifically provides that impeachment is not provable by extrinsic evidence. ER 608(b).
ER 608(b) provides:
Here, it is unlikely that Kepner would have waived her Fifth Amendment privilege and incriminated herself about her pending theft charges. Additionally, the probative value of Kepner's theft charges to an argument that she fabricated information supporting Escobar's burglary and domestic violence charges is tenuous. Further, the probative value of that evidence diminishes when, as here, physical evidence and police officers' testimony support Kepner's version of events. Thus, we conclude that Escobar does not show a reasonable probability that, but for counsel's failure to investigate Kepner's theft charges, his counsel would have made a different plea recommendation. Garcia, 57 Wn.App. at 933.
In sum, Escobar's argument that his counsel's representation fell below the objective standard because he failed to investigate evidence that Gill and Kepner were "questionable people with criminal histories" is unpersuasive. Br. of Appellant at 30. The sufficient degree and extent of counsel's investigation varies depending on the issues and facts of each case. A.N.J., 168 Wn.2d at 111. Here, Escobar faced two main witnesses and two police officers, who observed corroborative, physical evidence. Had Escobar proceeded to trial, he would have faced first degree burglary charges and prison time instead of a time-served sentence. Although Escobar identifies impeachment evidence of some probative value, that evidence's admissibility or the scope of its admissibility is unclear. We conclude that Escobar shows neither that (1) his counsel's performance fell below an objective standard of reasonableness, nor (2) but for counsel's failure to investigate potentially exculpatory evidence, his counsel would have made a different plea recommendation. McFarland, 127 Wn.2d at 334-35; Garcia, 57 Wn.App. at 933.
Finally, we decline to consider Escobar's passing remarks that his counsel gave deficient performance by: (1) advising him that it would take months to be ready for trial and (2) failing to bring an interpreter to their jailhouse meeting. Escobar implies, but does not explain or support, why it would be inaccurate or inappropriate for months to pass before his trial. Further, this criticism conflicts with his primary argument that his counsel deficiently performed by failing to take the time to investigate. Next, Escobar generally derides the lack of an interpreter at the jailhouse meeting, but he does not explain why he later affirmed to the trial court, with an interpreter present, that the interpreter had translated the plea agreement and that his attorney had explained it to him. Further, his own declaration regarding the jailhouse meeting states that his attorney summarized the police report but does not say that he did not understand the information. We generally will not consider claims not supported by citation to authority, references to the record, or meaningful analysis. RAP 10.3(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Hunt, J., Johanson, A.C.J.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.