Opinion
No. 29238-6-II.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 00-1-04175-8. Judgment or order under review. Date filed: 07/19/2002. Judge signing: Hon. Frederick Fleming.
Counsel for Appellant(s), George Paul Jr Trejo, Trejo Law Offices Inc, 701 N 1st St. Ste 103, Yakima, WA 98901-2296.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Lew Arthur Florence appeals the denial of his motion to withdraw his Alford/Newton plea to second degree murder, second degree assault, and second degree burglary. He also appeals his sentence. Florence argues that he received ineffective assistance of counsel and that the trial court abused its discretion in denying his motion to withdraw his plea and in not applying mitigating sentencing factors. We affirm.
Under an Alford plea, a defendant may take advantage of a plea agreement without acknowledging guilt. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Washington adopted the Alford holding in State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
FACTS Undisputed Facts
On September 3, 2000, Florence, accompanied by Scott Warner and Bremner Abelson, drove a pickup truck to an apartment Joshua Kizer shared with Clinton Frymire. After the three arrived, Kizer sat on the living room couch and Frymire and his girlfriend, Julie Choats-Sparks, occupied the back bedroom.
An altercation ensued when Warner approached Frymire in the bedroom. Warner fled from the bedroom and one of the three visitors fired at Frymire, hitting him in both arms. Frymire returned fire, shooting and killing Warner as he attempted to flee.
Frymire varyingly asserts that he was fired on first and that he and the other shooter began firing at the same time.
Abelson was shot in the back of the leg and Florence was hit three times, once in the leg, once in the arm, and once in the side. The three visitors left the apartment by climbing over the balcony. Abelson and Florence drove away in the pickup truck.
When the police arrived, they found Warner's body. He was wearing a wig and lying facedown. They also found an empty, recently fired, Glock 9mm semi-automatic pistol next to him. They found items from Choat-Sparks' purse on the apartment stairway landing. They found Kizer lying on the apartment floor, who was later pronounced dead from a gunshot wound to the chest.
The State's Theory
The State asserts that Florence, Bremner, and Warner went to the apartment intending to rob Frymire, a known drug dealer. Warner, wearing the wig, went to the bedroom armed with a tazer and told Frymire to give him money and drugs. The State also asserts that Choat-Sparks slammed the door, giving Frymire time to load the Ruger pistol that he kept under the mattress.
When the robbers saw the gun and heard a round being chambered, they fled toward the living room. When Frymire reached the living room, he saw a person rise from a crouched position in the corner by the couch. Kizer remained seated on the couch with the crouching person to his right. The crouched figure fired `about 10 shots' at Frymire. Clerk's Papers (CP) at 23. Based on the shots' angles, the State theorizes that it was one of these shots that hit and killed Kizer. The crouching figure fired the Glock found beside Warner.
The probable cause declaration notes that `[d]etectives will check with the Medical Examiner to determine if a bullet was recovered from Kizer's body. If so that bullet will be compared with rounds fired from both the assailant's and Frymire's weapons.' Respondent's Brief at 10. The record contains no comparison.
After fleeing, Florence and Abelson drove to Tacoma General Hospital. A security guard saw the two men discard a purse or wallet as they exited their truck and saw them enter the hospital where staff treated them for gunshot wounds. The wallet belonged to Choat-Sparks.
The police found a tazer in the pickup and another in the apartment. If the matter had gone to trial, the State anticipated offering testimony from Krissie Shaw, Warner's girl friend, and Dawn Howitz, Abelson's girlfriend.
Florence's Theory
Florence counters that he, Abelson, and Warner went to the apartment to buy drugs from Frymire. Florence stated that the three purchased drugs from Frymire and that they sat in the living room with Kizer. The four consumed drugs while Frymire and his girl friend remained in the bedroom. Warner went to the bedroom to complain to Frymire about the drug quality and returned, yelling, `He's got a gun.' Appellant's Brief at 4.
Florence admitted that he crouched as guns discharged, but he claimed at the time he offered his plea, he told the trial court that he did not have a gun. As part of his argument to withdraw his guilty plea, Florence asserted that he `was not the shooter.' Appellant's Br. at 32. At his sentencing, Florence denied that he killed Kizer.
At one point in his brief, Florence admits that Kizer was `struck by one of the bullets fired from Florence's weapon.' Appellant's Br. at 5. Florence acknowledges that the gun in fact belonged to him, but he may be asserting that someone else used his gun.
The record does not support this assertion.
The Alford/Newton Plea
On January 25, 2002, Florence entered his Alford/Newton plea to second degree murder, second degree assault, and second degree burglary. The trial court did not have the court file at the plea hearing, but all present agreed to proceed. The State handed the court a copy of the information with an attached declaration of probable cause filed September 5, 2000. The court also had a copy of the amended information.
The State first charged Florence with first degree murder, first degree assault, and first degree robbery. The State later amended the information to charging second degree murder, second degree assault, and second degree robbery.
The judge questioned Florence on the record to determine whether Florence entered his plea knowingly, voluntarily, and intelligently. Florence indicated that he understood the charges, the sentencing ranges, the plea's significance, and that no promises or threats had been made to him concerning the plea. At the time of the plea, and during the time leading up to it, attorney Bryan Hershman represented Florence.
On July 19, 2002, Florence sought to withdraw his guilty plea through new counsel, George Trejo. He argued (1) that an insufficient factual basis supported the plea; (2) that even if sufficient facts existed, the State did not meet the Alford/Newton plea standards; or, failing the first two arguments, (3) Florence received ineffective assistance of counsel. Florence's original trial counsel, Hershman, testified. The trial court also recalled that although it did not have the full court file when taking the plea, it reviewed both the amended and original information and the subjoined declaration of probable cause. The trial court denied Florence's request to withdraw his plea.
Hershman detailed his pretrial preparation, including reviewing the State's 500 pages of discovery and preparing a 34-page outline, interviewing witnesses, and meeting with Florence 10-15 times. Hershman estimated that he worked 100-200 hours on the case.
Sentencing
At sentencing, Florence requested a downward departure arguing (1) that `the victim was initiator, provoker, aggressor of the incident' and (2) self-defense, based on Frymire shooting at Florence. Report of Proceedings (RP) at 56. The trial court sentenced Florence within the standa range to 324 months on count I (second degree murder) and 70 months on each of the other two charges, to run concurrently. The standard range, given Florence's criminal history, was 257-357 months.
Florence refers to Frymire as the victim. Although Frymire was the charged assault victim, Kizer was the murder victim and arguably the burglary victim. Kizer was not the aggressor, and Florence does not allege otherwise.
Florence appeals.
ANALYSIS Ineffective Assistance of Counsel
Florence also asserts that Hershman created a conflict of interest by bringing Florence into a meeting with Abelson before they pleaded guilty. But he does not provide briefing on this issue. We need not consider arguments that are not developed in the briefs and we decline to do so here. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); RAP 10.3(a)(5).
Florence first contends that he received ineffective assistance of counsel. He argues that trial counsel told him that his case was a `guaranteed loser' and, thus, deprived him of his right to proceed to trial. Appellant's Br. at 23. In support of his argument, Florence cites advisory American Bar Association guidelines stating, inter alia, that decisions about what plea to enter, whether to waive jury trial, and whether to testify are to be made by the client. He also argues that his counsel did not adequately communicate with him.
Hershman denies making this statement.
To demonstrate ineffective assistance of counsel, a defendant must show that counsel's deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel fails to meet an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice results when, but for the deficient performance, the outcome would have differed. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
We presume counsel's effective performance. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). And trial counsel's conduct comprising a legitimate trial strategy cannot form the basis for a claim of ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Nothing in the record indicates that Florence did not want to enter the plea. He stated in open court that he voluntarily entered the plea absent promises or threats and he signed the plea agreement. Hershman testified that he did not force Florence to take the plea and that he was ready to take the case to trial. Hershman also testified that he discussed the plea options with Florence several times.
Florence also asserts that `infrequent and poor quality of communication between the counsel and his client' resulted in a denial of effective assistance of counsel. Appellant's Br. at 13. Florence cites several federal cases where the attorney client relationship had deteriorated to such a degree that the court found ineffective assistance of counsel. Here, Hershman testified that he and Florence never had an argument or even a `cross word.' Report of Proceedings (RP) at 22. Hershman also testified that he had represented Florence before on another matter and knew his family socially. Hershman estimated making 10-15 jail visits. Hershman also indicated there were `numerous contacts' in the two weeks before the plea. RP at 32.
Nothing in this record indicates that Hershman and Florence had infrequent or poor communication. Moreover, Hershman's conduct indicates to the contrary. He provided effective assistance in reviewing the State's evidence, interviewing witnesses, and outlining the strength of the State's case to Florence. Florence's claims based on ineffective assistance of counsel fail.
In its oral ruling, the court cited Florence's extensive criminal record as an indication that Florence was familiar with plea agreements and therefore unlikely to have been led astray during the negotiation. The court indicated it was comfortable with the entry of the plea and the representation on both sides. The court further noted Hershman's professional reputation as a highly experienced, competent, and thorough attorney who was willing to go to trial. The court concluded that Hershman arranged the best possible plea agreement for Florence.
Plea Withdrawal
Florence next contends that the trial court abused its discretion in denying his motion to withdraw his plea. He asserts that an insufficient factual basis supported the plea and that his trial counsel coerced him to enter it involuntarily.
We review a trial court's decision to deny 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 court abuses its discretion when it exercises it on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
A court may only accept a plea when there is a factual basis for it and it is entered knowingly, voluntarily, and intelligently. CrR 4.2(d); State v. McDermond, 112 Wn. App. 239, 243-44, 47 P.3d 600 (2002). CrR 4.2(d) `creates an obligation on the part of the trial court to be independently satisfied of the voluntariness and factual basis for the plea.' State v. Ford, 125 Wn.2d 919, 924, 891 P.2d 712 (1995).
Here, Florence contends that he entered an invalid plea because (a) it lacked a factual basis; (b) his trial counsel coerced him into entering it; and (c) he lacked knowledge of the elements of his crimes.
Factual Basis
Florence argues that because the `court file was not in the courtroom,' the trial court had no factual basis to support the plea. Appellant's Br. at 35.
A plea meets its factual basis requirement when sufficient evidence supports guilt. State v. Sass, 118 Wn.2d 37, 43, 820 P.2d 505 (1991). This factual basis may be established from any reliable source in the record. State v. Osborne, 102 Wn.2d 87, 95, 684 P.2d 683 (1984). A certificate (or declaration) of probable cause in the record at the time of the plea satisfies the factual basis requirement for acceptance of a guilty plea. State v. Arnold, 81 Wn. App. 379, 384, 914 P.2d 762, review denied, 130 Wn.2d 1003 (1996). A prosecutor's factual statement also satisfies the requirement. Saas, 118 Wn.2d at 43-44; Osborne, 102 Wn.2d at 95.
The record indicates that the trial court did not have a complete file when it took the plea. But we disagree with Florence that the court did not find a factual basis for the plea. Here, the State filed a declaration of probable cause on September 5, 2000. The trial court reviewed it when it took the plea.
At the plea hearing, the State presented the court with a copy of the amended information and a handwritten factual statement supporting it. The State also handed the court a copy of the original information with its attached declaration of probable cause. And later the trial court recalled that it reviewed the amended and original informations and the declaration of probable cause to ascertain whether facts supported the plea. Finally, the trial court signed the plea indicating that that it found `the defendant's plea of guilty to be knowingly, intelligently, and voluntarily made. Defendant [understood] the charges and the consequences of the plea. There is a factual basis for the plea.' CP at 42. Florence's argument fails.
Coerced Plea
Florence further argues that trial counsel coerced him into entering his Alford/Newton plea and that the plea was therefore involuntary and invalid. Florence asserts that trial counsel `told him to plead guilty, since he had nothing going for him in his life, and he was guaranteed to spend the rest of his life in prison.' Appellant's Br. at 36.
At the withdrawal of plea hearing, trial counsel Hershman testified about `guarantees.' In response to questioning, he explained:
I'm quite confident if I was ever asked an opinion on this case, or any other, I wouldn't have said guaranteed loser. That's not something I would say. As much as I can't guarantee somebody a victory, I can't guarantee somebody a loss. . . . Did he tell me he didn't want to plead, he wanted to go to trial and was absolutely emphatic about it? I have utterly no recall of that. I don't know how I'd force him to do to the contrary, for starters.
RP at 33-34. Regarding Hershman telling Florence that he had little in his life, Hershman was asked:
Do you recall making a statement to him to the effect that where are you going with your life? If I came over to prison in 20 years, you'll be happy that I'm there to get you out. Let me put it to you frankly, Lew, you don't have anything going on in your life now. Your life isn't going anywhere. You are a criminal. You'll end up dead in or in prison anyway, at least this way you'll get out in 20 years?
RP at 34. Hershman responded:
That's taken absolutely out of context. . . . In response to various things he had said to me. . . . That conversation did not take place anywhere near the time of the entry of plea. And Mr. Florence and I were discussing at that time not the plea, but Lew and I know each other and we were talking about his life. And it was not meant in a sarcastic fashion. It was what his hopes and dreams were at the time. That had nothing to do with the plea process.
RP at 34-35.
A defendant must present some evidence of involuntariness beyond his own self-serving allegations. Osborne, 102 Wn.2d at 97. Where a defendant completes a written statement on a guilty plea and acknowledges that he or she has read and understood it and that its contents are true, `the written statement provides prima facie verification of the plea's voluntariness.' State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982) (citing In re Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980); State v. Ridgley, 28 Wn. App. 351, 623 P.2d 717 (1981)). When the judge further engages the defendant in a colloquy and is himself or herself assured on the record that the plea was voluntary, `the presumption of voluntariness is well nigh irrefutable.' Perez, 33 Wn. App. at 262. Here, Florence told the court that he pleaded freely and voluntarily and that no one had made any threats or promises to cause him to change his plea. He also filled out a written statement on his plea and acknowledged that he understood the statement and that its contents were true. The only entry on the record supporting his claim that Hershman coerced him is Hershman's qualified agreement with the statement above. But this statement does not rise to the level of coercion and does not render Florence's plea involuntary.
See Osborne, 102 Wn.2d 87 (holding that bare allegations in a defendant's affidavit that he was coerced into pleading guilty by his wife, who threatened suicide if he did not so plead, were not sufficient to show coercion after the defendant specifically stated several times that his plea was voluntary on the record).
Involuntary Plea
A defendant must be aware of the nature of the offenses to which he is pleading guilty for the plea to be voluntary. State v. McCollum, 88 Wn. App. 977, 983, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999). Notice of every element of the crimes charged is not required for a plea to be voluntary, but notice of the `critical elements' of the offense is required. State v. Rigsby, 49 Wn. App. 912, 914-15, 747 P.2d 472 (1987). Further, `a defendant, in fairness, should be formally advised of the elements before the plea is accepted.' Rigsby, 49 Wn. App. at 914 (citing 2 W. LaFave J. Israel, Criminal Procedure sec. 20.4 (1984) (quoting 3 ABA Standards for Criminal Justice sec. 14.1-4(a)(i) (2d ed. 1980))). An information that notifies a defendant of the nature of the crime and charges he is pleading guilty to creates a presumption that the plea is voluntary, knowing, and intelligent. In the Matter of the Personal Restraint of Ness, 70 Wn. App. 817, 821, 855 P.2d 1191 (1993), review denied, 123 Wn.2d 1009 (1994).
Here, the statement of defendant on plea of guilty correctly listed the elements of each charge. Florence signed the statement. Florence also asserted in court that he had reviewed the statement with his attorney; that he understood the statement; and that he read, wrote, and understood English. Florence was informed of the nature of the offenses charged and of the critical elements of those offenses. His argument that the trial court abused its discretion in denying his motion to withdraw his plea fails.
Manifest Injustice
Florence further contends that the trial court abused its discretion in denying his motion to withdraw his plea because there was a manifest injustice due to counsel's ineffective assistance.
CrR 4.2(f) governs withdrawal of a guilty plea and provides that `[t]he 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.' Our Supreme Court adopted four indicia, any of which is a ground to establish a `manifest injustice' under CrR 4.2(f): "(1) [D]enial of effective counsel, (2) plea . . . not ratified by the defendant or one authorized [by him] to do so, (3) plea was involuntary, (4) plea agreement was not kept by the prosecution." State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974) (quoting Washington Proposed Rules of Criminal Procedure, at 50 (1971). The defendant bears the burden of establishing a manifest injustice when seeking to overturn a plea after it was validly entered. McDermond, 112 Wn. App. at 243 (citing State v. Acevedo, 137 Wn.2d 179, 193, 970 P.2d 299 (1999)).
As the State notes, Florence cites several federal cases and the Federal Rules of Criminal Procedure to advance the idea that `[o]verall, a Court should grant a motion to withdraw [a] guilty plea prior to sentencing upon a defendant's showing of his `fair and just reason' in support thereof.' Appellant's Br. at 28. Because Washington law on the withdrawal of guilty pleas (and Alford/Newton pleas particularly) is well established, we do not consider the federal law.
As discussed above, Florence was afforded effective assistance of counsel by Hershman. There was no manifest injustice here.
Standard Range Sentence
Finally, Florence contends that the trial court erred in imposing its standard range sentence. He asserts that the trial court should have imposed an exceptional sentence downward.
Generally, we do not review a standard range sentence. RCW 9.94A.585(1). When the sentencing court declines to impose an exceptional sentence downward, we review whether the court denied the request on an impermissible basis. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998). Such impermissible bases include refusing to do so under any circumstance or a categorical denial based on the type of crime committed, or based on the defendant's race, sex, or religion. Garcia-Martinez, 88 Wn. App. at 330. A sentencing court that considers the facts and finds no basis for an exceptional sentence has exercised its discretion, and the defendant is barred from appealing that ruling. Garcia-Martinez, 88 Wn. App. at 330.
Here, the trial court heard argument for a downward departure based on two grounds: (1) that the victim was an initiator, provoker, aggressor of the incident; and (2) self-defense. The trial court sentenced Florence within the standard range, noting:
As stated earlier, Florence refers to the victim Frymire not the murder victim Kizer. And Florence had no self-defense defense claim, complete or otherwise, against Kizer, who was completely uninvolved even by Florence's admission.
I'm going to follow the recommendation of the state, not that the presentence report writer wants you to or recommended that you be sentenced to the high end of the range, which is 357, because of your criminal history, and I can appreciate that, but also there was an agreement that you entered into, in my mind, freely and intelligently, knowingly, and you were cutting the best deal that you could get and you relied on that. And so on the other end I'll go along with it.
RP at 71. The trial court did not decline to deviate downward from the standard range based on an impermissible ground and Florence's argument fails.
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 pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J. and HUNT, C.J., concur.