Opinion
No. 51504-7-I, Consolidated with No. 51580-2-I, 51505-5-I, and 52028-8-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-1-00429-1. Judgment or order under review. Date filed: 11/21/2002. Judge signing: Hon. Ronald X Castleberry.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Lonnie J. Huber (Appearing Pro Se), Washington Correction Center, Unit R-1, Cell #g-10, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Constance Mary Crawley, Prosecutors Office, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
A "well nigh irrefutable" presumption of voluntariness arises when a defendant admits he read, understood, and signed a guilty plea and a trial court orally inquires about the voluntariness of the plea. Because Lonnie Huber has failed to overcome that presumption, and because his other claims regarding his plea lack merit, we affirm his convictions. We reverse and remand for resentencing, however, under the State Supreme Court's recent decision in State v. Hughes.
State v. Branch, 129 Wn.2d 635, 642 n. 2, 919 P.2d 1228 (1996) (quoting State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982)).
___ Wn.2d ___, 110 P.3d 192 (2005).
FACTS
In 2002, the State charged Huber with second degree assault with a deadly weapon, failure to register as a sex offender, first degree unlawful possession of a firearm, and possession of a stolen firearm. Huber's appointed counsel informed him by letter that he could receive a standard range sentence of 234 to 320 months if convicted on all four charges. Counsel explained that there was no defense to the failure to register charge, and that `we may win or we may lose the other cases. Nothing can be guaranteed [.]' Counsel further explained that even if a jury acquitted Huber of second degree assault, he would be found guilty of third degree assault, a lesser included offense, because `resisting even an unlawful arrest will satisfy the elements of custodial assault.'
Counsel then outlined the State's proposed plea bargain. The State offered to reduce the charges to third degree assault without a deadly weapon and second degree unlawful possession of a firearm. The standard range for these offenses would be 51 to 60 months. The State would recommend that they run concurrent with any probation violations. If the judge imposed the low end of the range, 51 months, Huber would only serve 36 months with good time credit.
Following negotiations between Huber, his counsel, and the prosecutor, Huber entered guilty pleas to failure to register as a sex offender, second degree unlawful possession of a firearm, and custodial assault. The firearm and assault pleas were entered pursuant to North Carolina v. Alford. In the plea agreement, the State agreed to recommend concurrent standard range sentences resulting in a total of 60 months confinement. At the conclusion of the plea hearing, the prosecutor told the court that Huber wanted to be released to attend the birth of his child. Because Huber was well aware that he would be subject to an exceptional sentence of `about 15 years' if he did not show up for sentencing, the prosecutor did not oppose his release. The court deferred ruling on the request. One week later, Huber sought and received a 48-hour release order.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
When the parties appeared for sentencing, the prosecutor told the court that Huber had violated his conditions of release. Within 24 hours of his release, Huber allegedly attempted to rob a heroin dealer. When he did not return to the jail at the time specified in the release order, police went to his residence and found him hiding in the crawl space. Once in custody, Huber said he had overdosed on heroin. The officers took him to the hospital, where he was admitted for treatment. He then escaped from the hospital. When police found him, an altercation ensued and resulted in serious injuries to two officers.
Based on Huber's violation of the release order, the prosecutor recommended consecutive, high end standard range sentences on each offense, for a total of 180 months. Neither defense counsel nor Huber objected to this recommendation. Huber admitted during allocution that he intentionally failed to return to jail at the time specified in the release order. The court found that `[b]ecause of the defendant's failure to return as promised, the prosecuting attorney's office is released from that plea agreement.' Citing Huber's offender score and the multiple offense policy, the court imposed an exceptional, concurrent sentence of 51 months on the failure to register charge, and consecutive standard range sentences of 60 and 51 months on the firearm and assault charges, for a total of 111 months.
Huber separately appealed each conviction. While his appeals were pending, Huber, acting pro se, filed a `Motion to Withdraw Plea of Guilty' in the superior court. The superior court transferred the motion to this court for consideration as a personal restraint petition. We consolidated the petition with Huber's direct appeals. Huber subsequently filed a `Motion For Evidentiary Hearing,' which a commissioner of this court referred for consideration with the merits of the appeal and personal restraint petition.
DECISION
Huber contends the exceptional sentences are invalid under Blakely v. Washington because the basis for the sentences that the standard range sentence was clearly too lenient given his prior and current offenses was not submitted to a jury. This contention is supported by the State Supreme Court's recent decision in State v. Hughes. Accordingly, we reverse the sentences and remanded for resentencing.
___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We note the State has not argued here that Blakely does not apply to exceptional sentences imposed by running standard range sentences consecutively.
___ Wn.2d ___, 110 P.3d 192 (2005).
In a pro se `Statement of Additional Grounds for Review' and pleadings filed with his consolidated personal restraint petition, Huber raises various challenges to his guilty pleas. For the reasons set forth below, we conclude his challenges lack merit.
The pleadings include a `Motion to Withdraw Plea of Guilty,' `Motion For Vacation of Judgment,' and `Motion for Evidentiary Hearing.'
Noncompliance with CrR 4.2. Huber contends the superior court failed to comply with CrR 4.2 when it accepted his pleas. Even assuming he can raise this contention for the first time on appeal, the record does not support it. Huber claims the court failed to adequately establish the voluntariness of his plea, and failed to make the nature of, and reasons for, the plea agreement a part of the record as required by CrR 4.2(d) and (e).
See State v. Zumwalt, 79 Wn. App. 124, 128-29, 901 P.2d 319 (1995) (finding CrR 4.2 claim was adequately preserved and was thus not raised for first time on appeal); State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996) (procedural requirements of CrR 4.2 are not constitutionally mandated and noncompliance with the rule does not itself result in a constitutional violation).
Huber's counsel told the court at the plea hearing that she had discussed all of the plea paperwork with him. The court asked Huber if he had read each of his statements on plea of guilty and if he was `doing the plea freely and voluntarily' in each cause number. Huber answered `yes' to both questions. Huber's counsel told the court that she had gone over all the plea paperwork with him and that he had no questions about the rights he was waiving. Huber's statements on plea of guilty recited those rights and stated that his pleas were voluntary and that his plea was not the result of promises other than those set forth in the agreements or threats. The court sufficiently established the voluntariness of the pleas.
The nature of, and reasons for, the plea agreement were also sufficiently established by written plea agreements attached to Huber's statements on plea of guilty. Huber correctly notes that the parties' discussion regarding his temporary release was not mentioned at the plea hearing or in the plea documents. But even assuming this discussion was part of the plea agreement, Huber cannot complain about its omission from the record when he affirmatively stated in his written plea statements that there had been `no promises of any kind to cause me to enter this plea except as set forth in this statement.'
Moreover, Huber fails to demonstrate any prejudice. He argues that making the release discussion part of the plea record would have resulted in the court rejecting the pleas as coerced or equivocal. But a plea is not coerced or equivocal merely because it is motivated by an inducement offered by the State. A plea is coerced only if the defendant's will is overborne. There is no evidence that Huber's will was overborne. Nor is there any indication, other than the fact that two of the pleas were Alford pleas, that Huber's pleas were equivocal. Alford pleas are inherently equivocal because the defendant does not admit guilt. That equivocation does not render an otherwise voluntary and intelligent Alford plea invalid. Breach of Plea Agreement. Huber contends the State breached the plea agreement and he is therefore entitled to his choice of remedies. He claims the prosecutor promised that if he pled guilty, he would immediately have his bail reduced or be released on personal recognizance . He contends the State breached that promise when it failed to secure his release or bail reduction on the day he entered his pleas.
Because the parties' discussion regarding Huber's temporary release is not part of the record in his direct appeals, this argument can be raised only in Huber's personal restraint petition. Therefore, he has the burden of demonstrating constitutional error resulting in actual and substantial prejudice, or nonconsitutional error resulting in a complete miscarriage of justice. In re Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990).
State v. Williams, 117 Wn. App. 390, 401-02, 71 P.3d 686 (2003), rev. denied, 151 Wn.2d 1011 (2004) (desire to help a loved one does not, standing alone, render a guilty plea invalid).
Williams, 117 Wn. App. at 398.
State v. Hubbard, 106 Wn. App. 149, 155-56, 22 P.3d 296, rev. denied, 145 Wn.2d 1004 (2001).
Hubbard, 106 Wn. App. at 155-56.
As noted above, however, Huber swore in his plea statements below that, other than as set forth in the plea statement, no promises had been made to cause him to enter his plea. His signatures on his plea statements are `strong evidence' that there was no promise of release. To overcome that evidence, Huber must provide more than self-serving allegations. He has not done so. Other than Huber's self-serving statements, there is no evidence in this record that anyone promised him he would be released or have his bail reduced if he pled guilty. Therefore, this claim fails. Huber also contends the prosecutor breached the plea agreement when she recommended exceptional sentences on all three charges. He correctly points out that, under the plea agreement, she was obligated to recommend standard range sentences on all three charges. Although he concedes that his violation of the release conditions relieved the prosecutor of her obligation to recommend a standard range sentence on the assault, he contends she was not relieved of her agreements on the other charges because the release order he violated only recited the assault cause number.
See Branch, 129 Wn.2d at 642.
See State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984).
Huber's claim that his plea was involuntary because he would not have entered into the plea had he known the prosecutor could not guarantee his release as promised fails for the same reasons.
Huber's argument overlooks the fact that the prosecutor's promises were part of a package deal involving all three charges. Although Huber signed separate plea statements and `plea agreements' on each charge, it is clear from the record, including Huber's own statements, that the parties negotiated a package deal. At both the plea and sentencing hearings, the prosecutor stated that Huber understood that any violation of the conditions of release would result in her recommending an exceptional sentence on all counts totaling 15 years. Neither defense counsel nor Huber disputed that statement or argued that the `plea agreement' was something other than a package deal. Thus, Huber's violation of the release order undermined the entire agreement and released the prosecutor from her promised recommendations on all charges.
This conclusion is supported by Huber's own statements. Reply to Response to Personal Restraint Petition at 13-14.
Accordingly, the prosecutor did not breach the plea agreement when she recommended exceptional sentences on all counts.
Involuntary Pleas. Huber contends his pleas were not knowingly, intelligently, and voluntarily entered. When, as here, a defendant completes a plea statement and admits to reading, understanding, and signing it, there is a strong presumption that the plea is voluntary. Coupled with the trial court's oral inquiry into the voluntariness of the plea, the signed plea form gives rise to a presumption of voluntariness that is "well nigh irrefutable." To overcome that presumption, Huber must provide objective proof of involuntariness; self-serving allegations are insufficient.
State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
Branch, 129 Wn.2d at 642 n. 2 (quoting State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982)).
See Osborne, 102 Wn.2d at 97.
Based on statements allegedly made by the prosecutor and/or others present during the plea negotiations, Huber claims he pled guilty believing, among other things, that he would be convicted regardless of the evidence at trial, that he would be convicted because of his prior criminal history, that if he asked for reduced bail without the prosecutor's support his bail would be increased, that it did not matter that someone else had admitted ownership of the firearm he was accused of possessing, that the only way he could be released was to plead guilty, and that the prosecutor would oppose his release if he did not plead guilty. These bare allegations are generally uncorroborated and, in any case, do not establish grounds for finding Huber's pleas involuntary. Two of the allegations warrant further discussion, however.
Huber's allegation that the prosecutor threatened to oppose any request for release if he did not plead guilty is supported by corroborating evidence. That allegation is unavailing, however, because `a prosecutor may offer `hardball' choices to a defendant . . . so long as the choices are realistically based upon evidence and options known to both sides.' Huber's allegation that he was told he would be convicted at trial `regardless of the evidence' is based on a misreading of the record. In a letter to Huber, defense counsel expressed her opinion that even if a jury acquitted Huber of second degree assault, `you will still be found guilty of Assault 3 (lesser included) because resisting even an unlawful arrest will satisfy the elements of custodial assault.' This opinion did not amount to a statement that Huber would be convicted regardless of the evidence. To the contrary, the letter made it clear that Huber might win or lose and that `[n]othing can be guaranteed [.]'
State v. Lee, 69 Wn. App. 31, 36, 847 P.2d 25 (1993); Williams, 117 Wn. App. at 400.
Factual Basis For Plea. Huber argues that there was an inadequate factual basis for his guilty plea on the unlawful possession of a firearm charge. Assuming, again, that Huber can raise this violation of CrR 4.2 for the first time on appeal, the claim lacks merit.
CrR 4.2 (d) requires the court taking a plea to be `satisfied that there is a factual basis for the plea.'
To obtain relief from his plea, Huber must demonstrate a manifest injustice, i.e., an injustice that is "obvious, directly observable, overt, not obscure." Examples of a manifest injustice include denial of effective assistance of counsel and an involuntary plea. An inadequate factual basis may affect the voluntariness of a plea, but it is not necessarily fatal to a plea's validity. `[T]he establishment of a factual basis is not an independent constitutional requirement, and is constitutionally significant only insofar as it relates to the defendant's understanding of his or her plea.' Thus, to demonstrate a manifest injustice, Huber must demonstrate more than a deficiency in the factual basis for his plea; he must demonstrate that the alleged deficiency affected his understanding of the plea. He has not made that showing.
Osborne, 102 Wn.2d at 97 (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)).
State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991).
See In re Hews, 108 Wn.2d 579, 741 P.2d 983 (1987).
In re Barr, 102 Wn.2d 265, 269, 684 P.2d 712 (1984).
In re Hews, 108 Wn.2d at 591-92.
See Branch, 129 Wn.2d at 641.
In any case, Huber's factual basis claim lacks merit. The factual basis requirement is satisfied so long as there is "sufficient evidence for a jury to conclude that [the defendant] is guilty." Huber contends there was no evidence that he knowingly possessed the gun found in the vehicle he was riding in. The affidavit of probable cause states that officers observed Huber riding in the front passenger seat of a car being driven by Lewis Gentry. Huber was `hunching over forward then looking back' at a following patrol car. Officers later discovered a handgun under the front passenger seat. They also found a list of firearms on Huber's person. The list included a handgun of the same make and model as the one found under Huber's seat. Gentry told police that he saw Huber place a handgun under the seat. This circumstantial evidence provided a factual basis for a jury to find that Huber knowingly possessed the gun.
State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976) (quoting U.S. v. Webb, 433 F.2d 400, 403 (1st Cir. 1970)).
Failure to Hold Evidentiary Hearing. Huber next contends he was denied due process when the court imposed an exceptional sentence without first holding an evidentiary hearing on whether his conduct relieved the State of its obligations under the plea agreement. This contention fails for several reasons.
First, the record shows that the sentencing hearing was also a hearing on Huber's violation of the release conditions. The court expressly asked counsel to recite the events related to Huber's release `for purposes of findings.' The court also heard from Huber. No one contested the fact that Huber failed to return from his furlough as required by the release order. The court then made a `finding based upon the representations that the prosecuting attorney's office is released from their previous plea agreement.' Second, this argument is raised for the first time on appeal, and Huber fails to demonstrate manifest error. Finally, to the extent Huber claims his counsel was ineffective for not disputing his violation of the release conditions or requesting a full-blown evidentiary hearing, he fails to establish either deficient performance or prejudice. Ineffective Assistance of Counsel. Huber argues that he received ineffective assistance of counsel during the plea and sentencing proceedings. A defendant claiming ineffective assistance must show deficient performance and a reasonable probability that, but for counsel's omissions, the result of the proceedings would have been different. In the context of a guilty plea, the defendant must show that counsel failed to assist him in deciding whether to plead guilty and that but for counsel's failure, he would not have pleaded guilty. There is a strong presumption that counsel was effective and made all significant decisions in the exercise of reasonable professional judgment. Because the presumption favors effective representation, the defendant must show that no legitimate tactical reason supports the challenged conduct. Huber contends his counsel lacked `a tactical' reason for advising him to plead guilty. This contention is specious. Given the State's evidence, Huber's criminal history, and the potential sentence he faced if he proceeded to trial, defense counsel had good reasons to recommend a guilty plea.
RAP 2.5(a).
State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 335.
State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997); State v. Garcia, 57 Wn. App. 927, 933, 791 P.2d 244 (1990).
State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995).
State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993).
McFarland, 127 Wn.2d at 336.
Huber asserts that his counsel `apparently failed to interview defense and state's witnesses [.]' At another point, he says she `appears' to have failed to review the police reports. These speculative allegations are insufficient to carry his burden.
Next, Huber contends counsel failed `to weigh the benefits and risks of entering a plea against those of going to trial before advising Mr. Huber to enter a plea.' He alleges his counsel never discussed the strengths and weaknesses of the State's cases with him. This bare allegation is insufficient to overcome the presumption of effective assistance of counsel. Furthermore, Huber fails to establish prejudice. Huber has not carried his burden on this claim.
We note that Huber's Alford pleas indicate he evaluated the evidence against him and concluded that there was a substantial likelihood of conviction. It is also undisputed that defense counsel informed Huber by letter that there were issues for both the prosecution and defense on the assault and firearm charges, and that they could win or lose those cases. Finally, the prosecutor's declaration states that she `spent substantial time discussing with Mr. Huber the merits of the state's cases and reminded Mr. Huber that, should he proceed to trial and testify, some of his prior convictions would likely be admitted.'
Huber claims defense counsel was ineffective for failing to move to suppress evidence on the ground that it was obtained following an unlawful seizure. Huber waived this claim when he pled guilty. He also contends counsel was ineffective for failing to argue at sentencing that his violation of the release order only affected the prosecutor's agreed recommendation on the cause number listed in that order. But as discussed above, the record demonstrates that the plea agreement was a package deal. Thus, Huber's violation of the order released the prosecutor from her agreed recommendations on all charges.
State v. Smith, 87 Wn. App. 293, 296, 941 P.2d 704 (1997); In re Peters, 50 Wn. App. 702, 705, 750 P.2d 643 (1988).
Huber's remaining claims are either inadequately argued or without evidentiary support.
State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (appellate court need not consider claims that are insufficiently argued); State v. Marintorres, 93 Wn App. 442, 452, 969 P.2d 501 (1999) (appellate court need not consider pro se arguments that are conclusory or unsupported).
The convictions are affirmed, but we reverse the sentences and remand for resentencing.
BAKER, ELLINGTON, and BECKER, JJ., Concur.