Opinion
No. 26790-0-II c/w No. 26800-1-II, No 26794-2-II
Filed: July 15, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 00-1-02281-8 Judgment or order under review Date filed: 12/05/2000
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Kevin C. Grice appeals the denial of his motions to withdraw his guilty pleas on three separate offenses. Grice argues that he should have received a competency evaluation before he entered his pleas because he had suffered a near drowning prior to committing the offenses and this near drowning may have caused brain damage and compromised his ability to enter his pleas. He also argues that his trial counsel was ineffective for failing to request a competency evaluation. Finding that Grice failed to present any evidence that his near drowning experience produced any lasting effects, we affirm.
Facts I. Procedural Background
The State originally charged Grice under separate cause numbers with (1) first and second degree unlawful possession of a firearm;(2) forgery and unlawful possession of a controlled substance (methamphetamine); and (3) unlawful possession of a controlled substance (methamphetamine) and third degree driving while his license was suspended or revoked. Pursuant to plea agreements, Grice pleaded guilty to the amended charges of (1) second degree unlawful possession of a firearm; (2) unlawful possession of a controlled substance; and (3) attempted unlawful possession of a controlled substance.
The State alleged that these offenses occurred on May 14, 2000.
The State alleged that these offenses occurred on July 28, 2000.
The State alleged that these offenses occurred on October 9, 2000.
After two separate change of plea hearings, the trial courts accepted Grice's pleas and entered the judgment and sentences. Grice filed separate notices of appeal. Grice, subsequently filed pro se motions to withdraw his pleas with the trial courts, and we stayed his direct appeals pending the trial court decisions on the motions.
Grice's pleas on the unlawful possession of a firearm and unlawful possession of a controlled substance charges were heard by the same court on September 28, 2000. A different court heard Grice's guilty plea on the attempted unlawful possession of a controlled substance charge on December 12, 2000.
Although Grice brought these motions pro se, he received some assistance from the Department of Assigned Counsel during argument at the courts' request.
Grice originally filed three motions with the same court to withdraw his pleas, one motion for each cause number. The first court forwarded the motion on the third conviction to the court that had imposed that sentence.
After hearing argument, the courts denied the motions. We then lifted the stays and consolidated Grice's direct appeals.
II. Change of Plea Hearings and Sentencing
At both change of plea hearings, Grice's counsel told the trial courts that she had reviewed the documents with Grice, that he understood the rights he was waiving by entering the pleas, and that he was entering his pleas voluntarily. Both courts engaged in a colloquy with Grice, during which Grice agreed that (1) he had reviewed and signed the plea documents; (2) he was fully informed of the consequences of entering the guilty pleas; (3) he understood the possible sentencing consequences and that the trial court did not have to follow the agreed to sentencing recommendations; and (4) he was entering his pleas freely and voluntarily.
Grice's trial counsel was the same for all three charges.
In neither proceeding, did Grice mention the near drowning incident or in any way suggest that he was having problems understanding the proceedings.
At his December 5, 2000 sentencing hearing on the unlawful possession of a firearm and unlawful possession of a controlled substance charges, Grice's attorney did inform the court that she had initially had trouble communicating with Grice but that this difficulty seemed to decline once he was incarcerated and, apparently, unable to use drugs:
And I can tell that [sic] you when I originally met Mr. Grice when he was out of custody, we had a lot of problems communicating, a lot of problems with him realizing what his behavior is and his responsibility level in that behavior. And since he has been incarcerated, there has been a change. Mr. Grice and I have come to the point where we are seeing eye-to-eye. He is relating to his own behavior, accepting responsibility for his behavior.
I know that that happens sometimes when people are in custody for long periods of time. I can only hope that that is a permanent change and that part of that is due to lack of drugs. He isn't using drugs. Obviously, he hasn't been for at least 45 days. I think the main thing here is to keep Mr. Grice clean and sober and allow him some leniency with regard to the jail sentence.
Report of Proceedings (RP) (12/5/00) at 7.
At this same hearing, Grice exercised his right to allocution, but he did not mention any potential competency problems. He talked only about his drug addiction.
III. Motions to Withdraw Pleas
In his motions to withdraw his pleas, Grice disclosed that he had suffered a near drowning on March 25, 2000, which may have impaired his brain function. He argued that he should have received a competency evaluation before the trial courts accepted his pleas.
Grice also stated that he felt that he had not been competent to plead guilty and that he had some ongoing memory problems. He further argued that his trial counsel was deficient for failing to disclose his near drowning to the court and for failing to request a competency evaluation.
In support of his motions, Grice submitted medical records related to his hospitalization for the near drowning incident. These documents disclosed that on March 25, 2000, family members had pulled Grice unconscious from a hot tub. The family members resuscitated him, and he was breathing but comatose when the paramedics arrived. He was admitted to the hospital with `hypoxic encephalopathy' secondary to respiratory failure, adult respiratory distress syndrome, and amphetamine abuse. Dr. Clyde Koontz evaluated Grice on March 25, and concluded, `The main determinant of longer term prognosis likely will be the extent of brain injury that is present.' Clerk's Papers (CP)(00-1-02281-8) at 55. A CT exam that same day revealed `no intracranial abnormality.' CP (00-1-02281-8) at 57.
On March 28, Dr. J. Gregory Zoltani entered the following progress note:
IMPRESSION: Anoxic encephalopathy secondary to neardrowning on March 25, 2000, at approximately 1014 hours, still with brainstem function and probably central nervous system diabetes insipidus. In view of the time course at this time and the function that he still apparently does have, this would speak somewhat of a hopeful prognosis, although it is still too early to specifically predict that. We will not make any changes. I would agree with his ongoing care. We will consider an electroencephalogram in the next 24 to 36 hours depending on his clinical changes.
CP (00-1-02281-8) at 70.
Grice's discharge notes show that he had improved with treatment. His responsiveness had increased by March 28, and he was ambulatory on April 2, the day he left the hospital. Grice left the hospital the day before his planned discharge against medical advice.
Analysis I. Withdrawal of Plea
Grice contends that he should have been allowed to withdraw his pleas, been appointed counsel, and received a competency examination to determine if he had suffered any permanent brain damage.
A trial court must allow a defendant to withdraw a guilty plea whenever the defendant shows that withdrawal is necessary to correct a manifest injustice. State v. Marshall, 144 Wn.2d 266, 280-81, 27 P.3d 192 (2001). A manifest injustice exists if: (1) the defendant was denied effective assistance of counsel; (2) the defendant did not ratify the plea; (3) the plea was involuntary; or (4) the prosecution violated the plea agreement. Marshall, 144 Wn.2d at 281. The injustice must be `obvious, directly observable, overt, [and] not obscure.' State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). The defendant's burden is demanding because ample safeguards exist to protect the defendant's rights before the trial court accepts his plea. Taylor, 83 Wn.2d at 596-97. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. Marshall, 144 Wn.2d at 280.
II. Involuntary Plea
Grice first contends that his plea was involuntary because he was mentally incompetent due to a brain injury caused by his near drowning on March 25, 2000.
A defendant is incompetent `if he is incapable of properly appreciating his peril and of rationally assisting in his own defense.' Marshall, 144 Wn.2d at 281. If a defendant supports his motion to withdraw a guilty plea with evidence of his incompetency when the plea was made, the trial court must either grant the motion or hold a formal competency hearing. Marshall, 144 Wn.2d at 281. A competency hearing is required `whenever a legitimate question of competency arises.' Marshall, 144 Wn.2d at 279.
Thus, the question here is whether there was `a legitimate question of competency.' Marshall, 144 Wn.2d at 279. In accepting a guilty plea, the trial court has broad discretion in judging the defendant's mental state. State v. Osborne, 102 Wn.2d 87, 98, 684 P.2d 683 (1984). The court may base its determination on several factors "including the defendant's appearance, demeanor, conduct, personal and family history, past behavior, medial and psychiatric reports, and the statements of counsel." Osborne, 102 Wn.2d at 98 (quoting State v. Loux, 24 Wn. App. 545, 548, 604 P.2d 177 (1979)).
But a defendant's signature on a plea statement is `strong evidence' that the plea was voluntary. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). And when the trial court has orally inquired into the voluntariness of the plea, the presumption of voluntariness is `well nigh irrefutable.' State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982). To overcome the presumption, a defendant must provide objective proof of his incompetence; his mere allegation of incompetence is insufficient. See Osborne, 102 Wn.2d at 97.
Here, Grice supported his motion to withdraw his pleas with evidence showing that he was brought to the hospital after suffering a near drowning on March 25, 2000, and that, at that time, it was unknown whether he suffered any permanent brain damage. The medical records also showed that the degree of damage was uncertain and that Grice had improved before he discharged himself from the hospital.
Grice told one of the courts hearing his motions that his counsel knew of his near drowning prior to the time he entered his pleas. But although Grice's attorney told one sentencing court that she had had trouble communicating with Grice before he was incarcerated, nothing his attorney said to the sentencing court and nothing during the trial court's taking Grice's pleas indicated that she believed Grice was unable to understand the proceedings to assist in his defense due to a brain injury. Further, Grice's counsel was better able to communicate with Grice after he was jailed; this fact suggests that any communication problems were caused by something the incarceration changed, such as his drug use, and not by permanent brain damage.
Although Grice told the courts that he had experienced some memory problems, he did not allege that at the time he entered his pleas he did not fully understand the plea proceedings. Further, there is nothing in the record from the change of plea hearings that suggests Grice did not understand the nature of the proceedings at the time they occurred. The courts taking the pleas questioned Grice about his understanding of the plea, and Grice responded appropriately to those questions without demonstrating any confusion. The courts also gave Grice the opportunity to speak, and Grice did not express any lack of understanding.
Grice has not shown objectively that he did not act competently at the time he entered his pleas. Thus, he has failed to overcome the presumption that his plea was voluntary, and the trial courts did not err in denying his motions to withdraw his pleas on this basis.
III. Ineffective Assistance of Counsel
Grice next contends that he was entitled to withdraw his pleas because he received ineffective assistance of counsel when his trial counsel failed to request a competency evaluation.
To establish ineffective assistance of counsel, Grice must show that (1) his counsel's performance was deficient; and (2) the deficient performance was prejudicial. State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986). We presume that counsel was effective.
Grice contends that his counsel knew or should have known of his near drowning before he entered his pleas and that this knowledge should have prompted her to request a competency evaluation. But even assuming that Grice's counsel knew of the near drowning, there is nothing in the record showing that his counsel had any reason to suspect that the drowning incident had any lasting effect, and, lacking any such suspicion, failure to request a competency evaluation did not amount to deficient performance.
Further, as the record before us does not show that Grice suffered any lasting effects from his near drowning, we cannot conclude that his counsel's failure to request a competency hearing prejudiced Grice.
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.
MORGAN and SEINFELD, JJ., concur.