Opinion
No. 31812-1-II.
May 23, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-05435-8, Sergio Armijo, J., entered May 27, 2004.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.
Counsel for Respondent(s), Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J.; Houghton, J., dissenting.
James Earl Flemming appeals the trial court's denial of his motion to withdraw his guilty plea to one count of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine. He argues that his plea was involuntary because he was not advised that correctional authorities would take a DNA sample; his counsel was ineffective for failing to advise him of the DNA sample and failing to investigate the basis of Flemming's motion to withdraw his plea; and the trial court erred in not independently inquiring about whether his plea was voluntary. Finally, Flemming contends that (1) Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), rendered Washington's sentencing guidelines unconstitutional, and (2) his offender score was improperly calculated. We have recently held that Blakely does not require the State to prove Flemming's community placement status to a jury beyond a reasonable doubt. Because Flemming knowingly, intelligently, and voluntarily entered his guilty plea, we affirm.
FACTS
James Earl Flemming pleaded guilty to one count of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine in violation of RCW 69.50.401(2)(b) and RCW 69.50.440. At the plea hearing, Flemming's counsel stated that he had explained the guilty plea form to Flemming and that in his opinion, Flemming was knowingly, intelligently, and voluntarily entering his plea. The judge asked Flemming if he had gone over the papers with counsel; if he had any questions about entering the guilty plea; if he understood that he was waiving certain constitutional rights set out in the plea form; and if he understood that the judge would sentence him. The judge also asked Flemming if he agreed to waive his rights and enter the guilty plea freely and voluntarily. After Flemming answered yes to each question, the court accepted the guilty plea.
The plea form set out the rights that Flemming waived by pleading guilty. The form also included a number of paragraphs relating to specific crimes, with the instruction, `IF ANY OF THE FOLLOWING PARAGRAPHS DO NOT APPLY, THEY SHOULD BE STRICKEN AND INITIALED BY THE DEFENDANT AND THE JUDGE.' Clerk's Papers (CP) at 17. The following paragraph was stricken: `If this crime involves a sex offense or a violent offense, I will be required to provide a sample of my blood for purpose of DNA identification analysis.' CP at 17. The plea form did not state that Flemming would have to submit a biological sample for DNA analysis or pay the accompanying $100 fee.
CrR 4.2(g) requires a guilty plea to be a written statement that substantially complies with the form set forth in that court rule. In the 2004 Washington Court Rules — applicable here the CrR 4.2(g) form explains that, for offenses committed on or after July 1, 2002, the defendant will be required to give a biological sample for DNA identification analysis. CrR 4.2(g)(6)(1). The paragraph further explains that the defendant will be required to pay a $100 DNA collection fee. CrR 4.2(g)(6)(1). The plea form Flemming used appears to be an old form, modeled from CrR 4.2(g) in the 2001 Washington Court Rules. RCW 43.43.754, effective July 1, 2002, requires that `[e]very adult . . . convicted of a felony . . . have a biological sample collected for purposes of DNA identification analysis.'
A month later, Flemming wrote to the trial court asking to withdraw his plea because he mistakenly thought he would be transferred to federal court for a probation violation hearing before the sentencing hearing in this case. In the letter, he also claimed he was `tricked' into a plea when the prosecutor and his attorney told him that a Drug Offender Sentencing Alternative (DOSA) sentence was an option for him. CP at 22. Flemming's counsel moved for and obtained a continuance to `discuss this matter in more detail with the defendant.' CP at 24.
At the sentencing hearing, Flemming's counsel reminded the court of Flemming's desire to withdraw his guilty plea. Counsel then stated, `However, I've received no additional information that I think would warrant doing that,' and then advised the court that Flemming was ready to be sentenced. Report of Proceedings (RP) (May 11, 2004) at 4. In recommending a sentence, Flemming's counsel again stated that, `Flemming was focused on his concept that he wanted to withdraw his guilty plea, but with that in mind . . . we are asking for DOSA.' RP (May 11, 2004) at 4. When the judge then asked Flemming to comment, he said,
The information that my attorney was waiting for to withdraw my plea is — does exist and is valid. You know, I'm willing to accept my responsibility, per se. And, you know, for the record, I asked my attorney to withdraw because, I mean, some of those points that were in that paperwork I didn't exactly understand. But I accept my responsibility, over and above that.
RP (May 11, 2004) at 5. The trial court granted the DOSA. Flemming's counsel had no objection to `adopting all the fines' the prosecutor recommended, which included a $100 DNA database fee. RP (May 11, 2004) at 7. Accordingly, the court sentenced Flemming to 42 months of confinement and 42 months of community custody under DOSA. The court ordered Flemming to provide a biological sample for DNA analysis under RCW 43.43.754.
A month after the sentencing hearing, Flemming moved to withdraw his guilty plea, claiming: (1) there was new evidence `brought forward' to prove his innocence; (2) sentencing was continued so his attorney could `submit the proper motions' and his attorney failed to do so; and (3) counsel told Flemming that `the second cause number . . . would drop off upon pleading guilty [in this case,] which was also untrue.' CP at 56. Later, in his indigency affidavit, Flemming alleged,
Flemming entered a guilty plea in another case at the same time he entered the plea in this case. That plea, although very similar, is not at issue in this appeal.
The second stop was a bad stop but because of the consent in the first stop my attourney [sic] stated that it couldn't be beat. After I plead [sic] out some people came forward to state under oath that my ex-girlfriend put the ephedrine in my trunck [sic] and called the police. The lab results in this case have never come forward so no one is even real sure what was in the trunk.
CP at 61. We have no record of the court's decision on Flemming's motion to withdraw.
ANALYSIS I. Acceptance of Guilty Pleas
Due process requires that a defendant's guilty plea be knowingly, intelligently, and voluntarily entered. 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 Pers. Restraint of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987) (citations omitted). CrR 4.2 provides further safeguards in requiring the trial court to determine, before accepting the plea, that (1) it is voluntarily and competently made with an understanding of the nature of the charge and the consequences of the plea, and that (2) a factual basis exists for the plea. CrR 4.2(d). Here, since Flemming stated the factual basis for the plea on the face of the plea, the question is (1) whether he understood the direct consequences of his plea, and (2) whether the trial court met its duty to ensure that Flemming pleaded voluntarily and competently, with an understanding of the direct consequences of his plea. CrR 4.2(d).
Flemming argues that the trial court should have inquired about the circumstances of his plea at the sentencing hearing because he had raised a question about whether the plea was voluntary in his letter. We disagree. The trial court must ascertain that a guilty plea is voluntary and competently made and that the defendant understands the consequences of the plea before accepting it. State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003) (citing Boykin, 395 U.S. at 242), review denied, 151 Wn.2d 1011 (2004); see CrR 4.2(d). Here, before accepting his plea, the trial court judge asked Flemming (1) if he had gone over all the papers with counsel; (2) if he had any questions as to what he was doing in entering the guilty plea; (3) if he understood he was waiving certain constitutional rights set out in the plea form; (4) if he understood that it was up to the judge to decide the sentence; (5) if he agreed to waive his rights and enter the guilty plea freely and voluntarily; (6) if anybody threatened Flemming to get him to plead guilty; (7) if anybody made any special promises to him outside of the plea agreement; and (8) if the charges were based on his statement of the facts. Flemming answered yes to each question and raised no issue that would alert the trial court that it needed to inquire further.
Flemming's second thoughts about his plea, expressed in his letter before sentencing, are not sufficient to raise any issue as to whether his plea was voluntary. He stated that he expected to be transferred to federal court before the sentencing but he does not claim that the prosecutor promised a transfer or that this was part of any deal. He claimed that he was `tricked' by a promise of a DOSA. But he did not raise this at the plea hearing and, more importantly, the trial court gave him a DOSA. Finally, his statements, unsupported by affidavits, that information in support of withdrawing his plea `does exist and is valid' is insufficient to challenge his plea, given the trial court's careful questioning and Flemming's unequivocal answers before the plea. Once the CrR 4.2 safeguards have been followed, trial courts must exercise great caution in setting aside a guilty plea. State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974). The trial court was not obligated to conduct a further inquiry at the sentencing hearing about whether Flemming's plea was voluntary.
II. Motion to Withdraw Plea
We review the trial court's denial of a motion to withdraw a plea for an abuse of discretion. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000) (citing State v. Padilla, 84 Wn. App. 523, 525, 928 P.2d 1141 (1997)). A court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds. State v. Martinez-Lazo, 100 Wn. App. 869, 872, 999 P.2d 1275 (2000) (citing State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966)). `The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.' CrR 4.2(f). A manifest injustice is "an injustice that is obvious, directly observable, overt, [and] not obscure." State v. Smith, 74 Wn. App. 844, 847, 875 P.2d 1249 (1994) (quoting State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)). A manifest injustice exists where counsel is ineffective in guiding the defendant through the plea process. State v. Moon, 108 Wn. App. 59, 62, 29 P.3d 734 (2001). The defendant has the burden of proving a manifest injustice. State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996). An involuntary plea creates a manifest injustice. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004).
1. Involuntary Plea as Basis for a Finding of Manifest Injustice
When a defendant has read and signed a plea statement, a strong presumption exists that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998) (citing State v. Perez, 33 Wn. App. 258, 261, 654 P.2d 708 (1982)). For a plea to be voluntarily made, a defendant must be informed of all direct consequences but not all possible collateral consequences of his plea. Ross, 129 Wn.2d at 284 (citing State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Direct consequences are those that represent a definite, immediate, and largely automatic effect on the range of the defendant's punishment. Barton, 93 Wn.2d at 305 (citing Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir. 1973)). Collateral consequences are sentencing conditions that flow from additional proceedings, not the guilty plea itself, and therefore are not `immediate.' Ross, 129 Wn.2d at 285.
Flemming argues that his plea was not knowing, intelligent, and voluntary because the plea form did not refer to mandatory DNA testing as required by CrR 4.2(g)(6)(1). In addition, Flemming contends that paragraph (o) of the plea form affirmatively misinformed him about the direct consequences of the plea. Paragraph (o) provides: `If this crime involves a sex offense or a violent offense, I will be required to provide a sample of my blood for purpose of DNA identification analysis.' CP at 17. Flemming reasons that the trial court, in striking paragraph (o) from the plea form, represented that DNA testing would not be required.
Flemming did not raise these arguments below in either his letter or motion to withdraw his plea. Generally, we will consider only arguments that a party has first presented to the trial court. State v. Buchanan, 138 Wn.2d 186, 196, 978 P.2d 1070 (1999) (citing Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992)). One exception to this rule is where the argument raises a manifest constitutional error, i.e., one that is truly of constitutional magnitude. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). To the extent Flemming argues that simple failure to follow CrR 4.2(g)(1) was error, the argument is not constitutional and we decline to review it. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).
Flemming argues that requiring him to provide a DNA sample amounts to an unreasonable search and seizure under the federal and state constitutions. He claims that because the guilty plea form did not inform him that he would be giving up his right to be free from unreasonable searches and seizures, his plea was not knowing, intelligent, and voluntary. The State reminds us that our Supreme Court has upheld the validity of a prior version of RCW 43.43.754, the statute requiring DNA testing for convicted felons. See State v. Olivas, 122 Wn.2d 73, 98-99, 856 P.2d 1076 (1993) (finding the statute valid under Fourth Amendment special needs analysis). In addition, Division One has recently upheld the validity of current RCW 43.43.754. State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008 (2005).
As we have discussed, due process requires that a defendant be advised of the direct consequences of his plea. Ross, 129 Wn.2d at 284. A defendant who is not advised of the direct consequences may withdraw his plea even though he cannot show that the consequence was material to his decision to plead. Isadore, 151 Wn.2d at 301-02. But failing to advise a defendant of an indirect consequence does not render a plea involuntary. State v. Yokley, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). The required DNA testing is an indirect consequence of Flemming's plea. Olivas, 122 Wn.2d at 96-97. Thus, Flemming's due process rights have not been compromised and he may not withdraw his guilty plea. See Isadore, 151 Wn.2d at 301.
In his affidavit in support of the motion of withdrawal of guilty plea, Flemming argues that his plea was involuntary because of his `intoxication on the narcotic Saraquil [sic].' CP at 46. But Flemming provided no evidence of his intoxication and nothing in the record from his plea hearing supports the notion. Flemming's bare assertion that he was intoxicated at the plea hearing is insufficient.
III. Ineffective Assistance of Counsel
Flemming also contends that the trial court should have granted his motion to withdraw his guilty plea because his counsel was ineffective. Specifically, he argues that his counsel (1) failed to make sure that he (Flemming) understood the plea paperwork, and (2) failed to take minimal steps to investigate evidence supporting a potential motion for withdrawal of the plea.
We presume that counsel's representation fell within the wide range of reasonable professional assistance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To sustain a claim of ineffective assistance of counsel, Flemming must show that: (1) counsel's performance was objectively deficient; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Roberson, 118 Wn. App. 151, 159-60, 74 P.3d 1208 (2003) (quoting Strickland, 466 U.S. at 694). If either element is not satisfied, we do not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (citing State v. Lord, 117 Wn.2d 829, 894, 822 P.2d 177 (1991)). The two-part Strickland test applies to claims of ineffective assistance of counsel arising from plea bargains. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997) (citing In re Peters, 50 Wn. App. 702, 703, 750 P.2d 643 (1988)). In the guilty plea context, the defendant must show that (1) his counsel failed to "actually and substantially [assist] his client in deciding whether to plead guilty," McCollum, 88 Wn. App. at 982 (quoting State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984)), and (2) but for counsel's failure to adequately advise him, he would not have pleaded guilty. McCollum, 88 Wn. App. at 982 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
The duty to `actually and substantially' assist in determining whether to plead guilty includes informing the client about all the direct consequences of a guilty plea. Barton, 93 Wn.2d at 305. At the plea hearing, the following colloquy took place:
THE COURT: And have you in fact had an opportunity to go over all these papers with Counsel?
THE DEFENDANT: Yes, I have.
THE COURT: Any questions about what you are doing here today by entering the guilty [plea]?
THE DEFENDANT: No
RP (March 24, 2004) at 4-5. In the face of this clear record, Flemming's general assertions, unsupported by affidavits, that counsel failed to advise him and failed to investigate are insufficient. See Taylor, 83 Wn.2d at 597-98.
IV. Statement of Additional Grounds
In a statement of additional grounds, Flemming asserts: (1) the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), render the Washington sentencing guidelines unconstitutional; (2) the court incorrectly included his prior federal conspiracy conviction in calculating his sentence without requiring the State to prove its existence and comparability to Washington's conspiracy statute; (3) the addition of one point to his offender score for committing an offense while on community custody is unconstitutional; and (4) the search of his car and home was unconstitutional.
In Blakely, the United States Supreme Court declared the exceptional sentence procedure at issue in that case — a judge independently finding deliberate cruelty and issuing an exceptional sentence based on that finding — unconstitutional. Blakely, 124 S. Ct. at 2535-38. Apprendi stands for the proposition that `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Apprendi, 530 U.S. at 490. Neither case holds that Washington's sentencing guidelines are facially unconstitutional.
Flemming argues that the trial court erred in adding a point to his offender score for a federal conspiracy conviction because the State failed to prove the existence of the conviction and its comparability to Washington's conspiracy statute. Flemming did not raise this issue at his sentencing hearing. Moreover, Flemming stipulated that his criminal history was accurate and that it produced the correct offender score to be used in this case. A defendant who stipulates that his foreign conviction is equivalent to a Washington offense waives a later challenge to his offender score. See State v. Hickman, 116 Wn. App. 902, 907, 68 P.3d 1156 (2003) (citing State v. Hunter, 116 Wn. App. 300, 302, 65 P.3d 371 (2003)). Thus, this argument fails.
Flemming argues that Blakely renders RCW 9.94A.525(17) unconstitutional. RCW 9.94A.525(17) provides, in calculating an offender score: `If the present conviction is for an offense committed while the offender was under community placement, add one point.' Flemming maintains that since Blakely, the State must prove his community placement status to a jury beyond a reasonable doubt. We have recently held that a defendant's community placement status falls within Blakely's criminal history exception; thus, the State need not prove such status to a jury beyond a reasonable doubt. State v. Giles, 2006 Wash. App. LEXIS 830, at *9-11 (2006).
Flemming argues that, `Due to [his] ineffectual counsel, [he] wasn't able to argue the fact of the unconstitutionality of the intrusive K-9 dog sniff,' and a seizure of his money from a bank. Statement of Additional Grounds (SAG) at 10-11. But in voluntarily and knowingly pleading guilty, Flemming waived any challenge to the legality of the search or seizure. Garrison v. Rhay, 75 Wn.2d 98, 101-02, 449 P.2d 92 (1968). He cannot now argue the issue on appeal.
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.
VAN DEREN, A.C.J., concur.
Based on the reasoning set forth in State v. Hochhalter, 131 Wn. App. 506, 128 P.3d 104 (2006), I respectfully dissent from the majority's analysis on community placement. Otherwise, I concur.