Opinion
No. 39828-1-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 08-1-02786-6, Susan Serko, J., entered September 25, 2009.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Worswick, A.C.J., and Armstrong, J.
Vincent Sterling appeals the trial court's failure to hold an evidentiary hearing before denying his request to withdraw his guilty pleas to one count of first degree robbery with a firearm enhancement and one count of second degree unlawful possession of a firearm. Finding that the claim is meritless, we affirm.
FACTS
On June 12, 2008, at 10:15 pm, Sterling and Phillip Justin Davis approached J. Hall and demanded his belongings while displaying a "cocked" shotgun. Clerk's Papers (CP) at 3. Sterling and Davis took Hall's backpack and about $20 in cash and fled to a nearby car where Cassie Munoz-Ramirez and Danielle Westing were waiting for them. The four drove away.
The record presented for review does not contain the victim's full name.
Based on Hall's description, Pierce County deputy sheriffs located the car a few minutes after the robbery. The deputies detained Munoz-Ramirez and Westing. Sterling and Davis fled on foot. The deputies subsequently located Sterling, who Hall identified as one of the males who had robbed him.
The State charged Sterling with first degree robbery with a firearm enhancement and second degree unlawful possession of a firearm. Between July 22, 2008, and May 4, 2009, the trial court granted seven agreed continuances; each time Sterling, the attorneys, and the judge signed the continuance order.
On June 25, 2009, the day his trial was set to begin, Sterling pleaded guilty to the charges. As a condition of the guilty plea, the State agreed not to charge Sterling with a June 6, 2008, burglary.
At the plea hearing, Sterling's attorney stated that Sterling understood the charges against him, understood the rights he was waving by pleading guilty, and assured the trial court that Sterling was "intelligently and voluntarily" entering the plea. Report of Proceedings (RP) at 4. The trial court asked Sterling a number of questions to determine whether Sterling understood the consequences of pleading guilty and the rights he would waive in entering the plea. During this colloquy, the trial court specifically addressed Sterling's understanding of the standard range sentence for the crimes to which he was entering the plea, as well as the sentencing enhancement relating to the firearm.
Sterling's own statement regarding the crimes to which he entered the guilty plea was that "[o]n June 12, 2008, in Pierce County, Washington, [he] took personal property from J. Hall in his presence, with intent to steal, by displaying a firearm [and] threatening to use it. [He] was under 18 years of age." RP at 9. After the colloquy, the trial court was satisfied that Sterling decided to enter a guilty plea "freely, voluntarily and intelligently" and that Sterling understood the rights he was giving up and the consequences of his plea. RP at 9. The trial court accepted his guilty plea to the charged crimes. Because the parties entered the plea agreement on the day of trial, the State asked that sentencing be set over to give them time to notify the victim. The trial court scheduled sentencing for July 20, 2009.
Before sentencing, Sterling filed two pro se motions to withdraw his guilty plea. Sterling argued that (1) his counsel was ineffective, (2) the parties were mistaken about the standard range sentence, (3) the prosecutor and defense attorney coerced him into accepting the plea agreement, and (4) he was caught off guard when his defense attorney told him that, if he went to trial, he would "`go down in flames.'" CP at 19. On July 20, the trial court scheduled a hearing for August 4 on Sterling's motions to withdraw his plea and his additional motion for new counsel. The trial court also scheduled Sterling's sentencing for August 20. When a new defense attorney assumed Sterling's representation, the matter was set over to September 25.
The filed dates are not decipherable on the copy in the record. Sterling dated the first motion June 28, 2009, and the second motion July 7, 2009.
On September 25, Sterling's new counsel argued that Sterling should be able to withdraw his guilty plea because (1) he had not been advised of his options or what was going on with his case, (2) Sterling's former counsel never came to visit him in jail, and (3) his former counsel coerced Sterling into pleading guilty by telling him he did not really have another choice. The State responded that Sterling had no legal basis warranting a withdrawal of his guilty plea.
Following argument, the trial court stated that it had read Sterling's handwritten pro se motions, the materials submitted by his new counsel, and the plea colloquy. The trial court stated that Sterling's first attorney had advised Sterling that he would "do worse if he went to trial," which the trial court felt was a defense attorney's responsibility if he believes it is true. RP at 27-28. The trial court concluded that it did not "see anything in this record that would allow the plea to be withdrawn" and denied the motion. RP at 28. The trial court then proceeded to sentence Sterling.
Sterling asserts on appeal that the trial court was required to hold an evidentiary hearing on his motion, thus, entitling him to a new hearing on his motion to withdraw his plea.
ANALYSIS
Sterling's only argument is that the trial court was required to hold an evidentiary hearing before denying his motion to withdraw his guilty plea and that the trial court's failure to do so entitles him to remand for such a hearing.
The parties' briefs belabor the standards applicable to a trial court's substantive ruling on a motion to withdraw a plea. But Sterling does not address the merits of the trial court's ruling on his motion, i.e., its denial of his motion, but only its failure to grant him an evidentiary hearing before making its ruling. Therefore, we only briefly discuss the standards applicable to the trial court's decision to deny Sterling's motion. RAP 12.1.
Standard of Review
Sterling argues that the trial court committed error, but we review a trial court's decision on a motion to withdraw a plea for abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). "A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons." State v. Hudson, 150 Wn. App. 646, 652, 208 P.3d 1236 (2009).
Withdrawal of Guilty Plea
After a trial court accepts a guilty plea, it shall allow withdrawal of the plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f); State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). A manifest injustice is "`obvious, directly observable, overt, [and] not obscure.'" State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). The defendant bears the burden of demonstrating a manifest injustice. Osborne, 102 Wn.2d at 97. A defendant can prove a manifest injustice by showing that (1) the defendant received ineffective assistance of counsel, (2) the plea was not voluntary, (3) the prosecution did not honor the plea agreement, or (4) the defendant did not ratify the plea. Taylor, 83 Wn.2d at 597; State v. Paul, 103 Wn. App. 487, 494, 12 P.3d 1036 (2000). "A written statement on plea of guilty in compliance with CrR 4.2(g) provides prima facie verification of its constitutionality, and when the written plea is supported by a court's oral inquiry on the record, `the presumption of voluntariness is well nigh irrefutable.'" State v. Davis, 125 Wn. App. 59, 68, 104 P.3d 11 (2004) (quoting State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982)).
Sterling argues that the trial court was required to hold an evidentiary hearing before denying his motion to withdraw his guilty plea because he made the motion before sentencing. Sterling provides no authority that supports his argument. We find nothing in CrR 4.2 requiring a trial court to hold an evidentiary hearing before deciding a motion to withdraw a guilty plea. Additionally, Sterling's reliance on Davis, State v. Teshome, 122 Wn. App. 705, 94 P.3d 1004 (2004), State v. Williams, 117 Wn. App. 390, 71 P.3d 686 (2003), and State v. Smith, 74 Wn. App. 844, 875 P.2d 1249 (1994) is misplaced.
In Davis, Division One of this court held that the trial court erred in not considering Davis's CrR 4.2(f) motion to withdraw his guilty plea. 125 Wn. App. at 68. But, unlike Davis, where the trial court did not consider Davis's motion, here, the trial court considered Sterling's motion on the merits before denying it. Because the trial court properly held a hearing on the merits of Sterling's motion, Davis is not applicable to Sterling's contention that an evidentiary hearing is required on a motion to withdraw a plea before sentencing.
Nor does Teshome support Sterling's argument. Teshome wanted to withdraw her plea based on the incompetence of her interpreter. Teshome, 122 Wn. App. at 708. Before the hearing on her motion to withdraw her plea, a different interpreter translated Teshome's plea hearing from the recorded transcript. Teshome, 122 Wn. App. at 709. Because Teshome's argument put the plea colloquy in issue, the trial court reviewed the English translation of the plea colloquy in preparation for the hearing on her withdrawal motion. Teshome, 122 Wn. App. at 711-13, 715. The trial court also allowed Teshome to testify but "then stated that `the Court disregards defendant's testimony, and considers only [the statement of defendant on plea of guilty and the bilingual transcript of the plea hearing]' in reaching its decision on defendant's motion." Teshome, 122 Wn. App. at 715 (alteration in original). On appeal, Division One stated that it "would have preferred the trial court allow the State to present all its evidence, including the testimony of Teshome's former attorney. But given her English language skills and the trial court's determination of credibility, Teshome has not met her burden of proof to show manifest injustice." Teshome, 122 Wn. App. at 717. Thus, Teshome does not dictate that a full evidentiary hearing is necessary before a trial court can deny a motion to withdraw a plea.
At the hearing on the motion to withdraw the plea in Williams, "the [trial] court informed Williams that it had reviewed his four-page statement and offered him the opportunity to add anything further to the record," which he declined to do. 117 Wn. App. at 397. The trial court found "no manifest injustice that would necessitate withdrawal of the plea [and] denied Williams' motion to withdraw." Williams, 117 Wn. App. at 397. Division One of this court affirmed the trial court. Williams, 117 Wn. App. at 392.
Finally, in Smith, Smith argued that his "pleas were involuntary and, in one instance, entered without an understanding of the nature of the charge." 74 Wn. App. at 845. Smith specifically alleged that his attorney had provided erroneous information that "resulted in undue pressure to enter guilty pleas." Smith, 74 Wn. App. at 850. The trial court held a hearing at which "[t]he attorney who represented Smith when he entered the pleas testified." Smith, 74 Wn. App. at 851. Smith did not testify. Smith, 74 Wn. App. at 851. On appeal, no issue was raised regarding whether an evidentiary hearing was required and, thus, we did not address that issue and Smith does not advance Sterling's claim.
Here, Sterling offered no specific allegation that put at issue the trial court's colloquy or the validity of his plea. He filed no affidavit or declaration in support of his withdrawal motion. Nor did Sterling ask to present additional evidence to the trial court. And even on appeal, Sterling has not identified any additional evidence he wished to offer the trial court nor has he suggested how any evidence adduced at an evidentiary hearing would have demonstrated that a manifest injustice necessitated withdrawal of his pleas to the charges.
The trial court held a hearing on the merits of Sterling's motion to withdraw his plea and allowed both parties to present their arguments. Before reaching its decision, the trial court asked Sterling if he had anything else to add, which he did not. The trial court rendered its decision only after considering all of the evidence and arguments before it. In doing so, it did not abuse its discretion and Sterling's claim 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.
WORSWICK, A.C.J. and ARMSTRONG, J., concur.