Opinion
No. 39603-3-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Thurston County, No. 08-1-01591-6, Christine A. Pomeroy, J., entered July 15, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Worswick, A.C.J., concurred in by Armstrong and Van Deren, JJ.
Joseph Sullivan pleaded guilty to possession of marijuana with intent to deliver as part of an agreement to cooperate with law enforcement. When he failed to fulfill the agreement, the plea was withdrawn and Sullivan was convicted of three felony charges at a stipulated facts bench trial. Sullivan appeals his conviction for possession of marijuana with intent to deliver, arguing insufficiency of the evidence, an error which the State concedes. He also claims his counsel was ineffective for failing to argue that two of his charges were the same criminal conduct. Additionally he raises numerous arguments in his statement of additional grounds (SAG). We reverse Sullivan's conviction for possession of marijuana for insufficient evidence, affirm the remaining convictions, and remand for sentencing.
RAP 10.10(a).
FACTS
On August 29, 2008, Sullivan was visiting a home when police served a search warrant. The police arrested Sullivan pursuant to an outstanding warrant and searched him incident to arrest, finding a glass pipe with a white residue on it. Officers asked Sullivan whether anything at the house was his, and Sullivan pointed to three duffle bags and a safe. The officers searched the safe and found three plastic bags of methamphetamine and a digital scale. The officers also searched Sullivan's bags, finding another digital scale, empty plastic bags, and glass pipes. In a bedroom, the police found 175 grams of marijuana. There was no evidence connecting Sullivan to the marijuana.
The State charged Sullivan with possession of methamphetamine with intent to deliver and possession of marijuana with intent to deliver. Sullivan entered into a plea agreement with the State on April 21, 2009, which required him to cooperate with a narcotics task force in exchange for a dismissal of the charge of possession of methamphetamine with intent to deliver. The agreement warned Sullivan that if he did not fulfill its terms, he would be charged with possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and bail jumping. On July 15, 2009, the trial court found, in accordance with the stipulation of the parties, that Sullivan had breached the plea agreement. By operation of the agreement, Sullivan's plea was withdrawn, the State filed an amended information, and the parties proceeded to a stipulated facts bench trial. Sullivan was convicted of possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and bail jumping.
ANALYSIS I. Sufficiency of Evidence
Sullivan argues that there was insufficient evidence to support his conviction for possession of marijuana with intent to deliver. The State concedes this point, agreeing that this court should reverse Sullivan's conviction on this count. We accept the State's concession that there is insufficient evidence to support this conviction.
Sullivan initially pleaded guilty to possession of marijuana with intent to deliver under In re Barr, 102 Wn.2d 265, 684 P.2d 712 (1984). Under Barr, a defendant may plead to a lesser offense that he did not commit in order to avoid charges for a greater offense that he did commit. 102 Wn.2d at 269-70. Sullivan's plea was valid under Barr, because by pleading to possession of marijuana with intent to deliver, a class C felony, he avoided being charged with possession of methamphetamine with intent to deliver, a class B felony. RCW 69.50.401(2)(b), (2)(c). But as the parties agree, Barr does not lift the State's burden of proof at a stipulated facts bench trial. There was insufficient evidence in the stipulated facts to support Sullivan's conviction for possession of marijuana with intent to deliver. We reverse this conviction.
II. Same Conduct
Sullivan also argues that he must be resentenced because the charges of possession of marijuana with intent to deliver and possession of methamphetamine with intent to deliver encompass the same criminal conduct. Because we reverse Sullivan's conviction on the marijuana charge, we do not reach this issue.
Statement of Additional Grounds
In his SAG, Sullivan asserts that (1) he entered the plea agreement under duress, (2) his attorney failed to advise him of the consequences of breaching the plea agreement, (3) the stipulated facts bench trial denied him due process, (4) his attorney rendered ineffective assistance of counsel by failing to present a defense, (5) his attorney rendered ineffective assistance by failing to make a motion to suppress, (6) he received insufficient notice of the third amended information, (7) the State breached the plea agreement by not giving him six months to comply, (8) he is not guilty of bail jumping because his attorney told him he did not need to come to court, and (9) he received an unlawful exceptional sentence.
I. Voluntariness of Plea
Sullivan argues in his SAG that his original guilty plea in April of 2009 was not voluntary or intelligent because it was entered under duress and because his attorney did not advise him of the consequences of breaching the plea agreement. "`Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent.'" In re Pers. Restraint of Bradley, 165 Wn.2d 934, 939, 205 P.2d 123 (2009) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004)). "If a defendant is not apprised of a direct consequence of his plea, the plea is considered involuntary." Bradley, 165 Wn.2d at 939.
Sullivan makes no argument supporting his claim that he entered the plea under duress. "Without argument or authority to support it, an assignment of error is waived." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). We consequently do not consider the issue of duress.
Sullivan also asserts that counsel misrepresented the consequences of disobeying the plea agreement by leading Sullivan to believe that he would receive a sentence of 18 months if he breached the agreement, and by failing to inform him of the stipulated facts bench trial. Nothing in the record shows that Sullivan was uninformed of the plea agreement's consequences. In fact, the record suggests the opposite. Sullivan signed a "statement of defendant," which stated that his attorney had explained the guilty plea and plea agreement. Sullivan also signed the plea agreement, which informed him that if he failed to comply he would be tried by stipulated facts bench trial for all three counts. The plea agreement listed the three counts as possession of methamphetamine with intent to deliver (count I), possession of marijuana with intent to deliver (count II), and bail jumping (count III). When Sullivan gave his plea, the court questioned Sullivan to ensure that the plea was knowing and voluntary. The record before us contains no evidence that Sullivan's attorney misled him or failed to inform him. This court does not consider assignments of error pertaining to matters outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Because they lack foundation in the record, we do not consider Sullivan's claims on this issue. If there is evidence supporting Sullivan's claims, the appropriate vehicle is a personal restraint petition.
See RAP 16.3.
II. Due Process
Sullivan next argues that the trial court violated his due process rights by trying him by stipulated facts bench trial instead of by jury trial after his plea was withdrawn. "Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court." CrR 6.1(a). Because the right to a jury trial is constitutional, the waiver of the right must be `knowingly, intelligently and voluntarily made.' State v. Vasquez, 109 Wn. App. 310, 319, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002) (quoting State v. Bugai, 30 Wn. App. 156, 157, 632 P.2d 917 (1981)). Our review of the validity of a jury trial waiver is de novo. Vasquez, 109 Wn. App. at 319. The State bears the burden of establishing the validity of a jury trial waiver. State v. Hos, 154 Wn. App. 238, 249, 225 P.3d 389 (2010).
The State has met its burden here. The record shows that Sullivan voluntarily signed documents indicating that he understood the consequences of his plea and the agreement and stated as much in open court. Without contradictory evidence in the record, we find that Sullivan validly waived his right to a jury trial and his claim on this point fails.
III. Ineffective Assistance
Sullivan also argues that his attorney rendered ineffective assistance of counsel by failing to present a defense to the marijuana charge. Because we reverse Sullivan's marijuana conviction based on insufficient evidence, we do not reach this issue.
Sullivan further argues for the first time on appeal that his attorney rendered ineffective assistance of counsel by failing to move to suppress the evidence underlying his convictions. Under RAP 2.5(a), parties generally may not raise claims for the first time on appeal. But appellants may raise claims for the first time on appeal if the errors claimed constitute manifest error affecting a constitutional right. RAP 2.5(a)(3). A claim of ineffective assistance is a constitutional claim that may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
Sullivan claims that his attorney rendered ineffective assistance of counsel by failing to have the evidence against him suppressed. But in his plea agreement, Sullivan agreed to a stipulated facts bench trial based on the police report. To establish ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defendant. Kyllo, 166 Wn.2d at 856, 862. "When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient." Kyllo, 166 Wn.2d at 863. Both the decision to waive a jury trial and the decision to stipulate to facts are matters of trial strategy. State v. Ashue, 145 Wn. App. 492, 506, 188 P.3d 522 (2008). Here, in order to secure a plea agreement for Sullivan, defense counsel agreed to a stipulated facts bench trial in the event of breach, and did not preserve the issue of suppression of evidence. This can be viewed as a legitimate strategy because in exchange for Sullivan's plea agreement, the prosecutor agreed to dismiss one charge (possession of methamphetamine with intent to deliver) and forbear filing another (bail jumping). The fact that Sullivan later decided not to comply with the agreement does not retroactively render counsel's performance deficient. Because Sullivan has failed to show deficient performance, his ineffective assistance claim fails.
IV. Notice of Amended Information
Sullivan also contends in his SAG that his right to a fair trial was violated by the State's failure to give notice before filing the third amended information, which added the crime of bail jumping. Under CrR 2.1(d), the trial court may permit the State to amend the information at any time if the defendant's substantial rights are not prejudiced. The record shows that Sullivan's substantial rights were not prejudiced because he had ample notice of the additional charge. The plea agreement warned Sullivan that failure to comply with the agreement would result in a stipulated bench trial where he would be charged with the methamphetamine, marijuana, and bail jumping charges. Sullivan signed this agreement. Sullivan did not object to the amended information at trial. Nothing in the record shows that Sullivan lacked notice of the additional charge. The amendment did not prejudice Sullivan's substantial rights and was thus valid under CrR 2.1(d), so his claim on this point fails.
V. State's Compliance with Plea Agreement
Sullivan further asserts in his SAG that the State violated his plea agreement. The State must comply with the terms of a plea bargain agreement. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). The State's breach of a plea bargain generally allows the defendant to withdraw his plea. Puckett v. United States, 556 U.S. ___, 129 S. Ct. 1423, 1430, 173 L.Ed. 2d 266 (2009). Here, the plea agreement required Sullivan to assist with at least three high level drug investigations within six months. The State gave Sullivan only three months before deciding that he had failed to comply. However, the requirement to assist with three cases within six months was not the only condition in the plea agreement. The agreement contained many other provisions, such as requiring Sullivan to divulge all of his knowledge about the possession, sale, and distribution of controlled substances in Washington. It also required Sullivan to provide truthful testimony on the State's request. These additional provisions were not conditioned on a six month time period. The trial court found that Sullivan had failed to comply with "any" of the requirements of the plea agreement. This indicates that Sullivan failed to comply with provisions, such as those outlined above, which required Sullivan's compliance on demand and did not give him a six month time frame. There is nothing in the record to contradict the trial court's findings on this issue. Sullivan's claim on this point fails.
VI. Bail Jumping
Sullivan next argues in his SAG that he was not guilty of bail jumping. RCW 9A.76.170(2) provides that it is an affirmative defense to bail jumping that unavoidable circumstances prevented the defendant from appearing. Sullivan asserts that he had car trouble and was unable to make it to the hearing. Sullivan claims that defense counsel assured him that he would continue the hearing, and Sullivan would not be required to attend. The record contradicts this assertion, however. At sentencing, Sullivan did not mention car troubles or claim that defense counsel told him he would not need to appear. Rather, Sullivan claimed that he had called pretrial services and had not heard back. Sullivan admitted on the record that he was ultimately responsible for not appearing. Because the record does not support Sullivan's claim, his argument on this point fails.
VII. Sentencing
Sullivan finally argues that the trial court "never imposed a determined amount of community custody . . . on the record." SAG at 13. Sullivan claims that his sentence is exceptional on this basis. Sullivan does not contend that his sentence is outside the standard range, nor does he provide authority for the proposition that failure to state the exact sentence on the record creates an exceptional sentence. Here, the trial court imposed sentences within the standard range and sentenced Sullivan to concurrent sentences on each count, which did not create an exceptional sentence. See RCW 9.94A.535. Sullivan's claim on this point fails.
We reverse count II, affirm the remaining convictions, and remand for resentencing.
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.
ARMSTRONG, J. and VAN DEREN, J., concur.