¶1 Michael John Reise seeks relief from personal restraint to withdraw his straight guilty plea to second degree murder due to newly discovered evidence of a witness. We hold that under the general rule, a defendant pleading guilty (not by a Newton
¶2 On October 26, 2004, after an earlier physical altercation, Reise shot and killed Austin Hardison at the Bailey’s Motor Inn. At the time, Reise managed the restaurant affiliated with the motel. After shooting Hardison, Reise left the scene and did not contact the police. He discarded the gun and the coat he had been wearing. When the police contacted him, Reise initially denied any dispute with Hardison. In a second statement, he admitted the dispute but denied using a gun. In a third statement, he admitted the shooting but claimed he acted in self-defense. Specifically, Reise said that he intended to detain Hardison for assaulting him earlier but shot Hardison when Hardison advanced on him brandishing a club or walking stick, refusing to stop even though Reise was displaying a gun. Various witnesses saw or heard parts of the earlier fight and the fatal confrontation. Toxicology reports revealed Hardison was under the influence of drugs. There was also evidence that he was visiting the motel in an effort to obtain drugs. Witnesses reported that Reise was under the influence of alcohol.
¶3 The State initially charged Reise with first degree premeditated murder with a firearm enhancement. Reise hired a lawyer, James Dixon, to represent him. After negotiations, Reise pleaded guilty to second degree intentional murder with no firearm enhancement. In doing so, Reise did not deny factual guilt in a Newton guilty plea; instead he admitted facts matching the elements of the crime charged, stating, “On October 26, 2004, in Thurston County, Washington, I intentionally shot, and caused the death of, AUSTIN G. HARDISON.” State’s Resp. to Pers. Restraint Pet. (App. C at 6 (Statement of Def. on Plea of Guilty)).
¶4 Both the guilty plea form and the sentencing court told Reise that the court was not bound by the agreed 156-month sentencing recommendation but could instead
¶5 At sentencing, both parties indicated that the uncertainty surrounding Reise’s potential self-defense claim led them to settle. Though it believed Reise’s postshooting actions disproved self-defense, the State indicated it could not definitively establish Hardison’s precise actions immediately before Reise shot him. Reise’s lawyer, Dixon, indicated that he and his investigator had interviewed all witnesses in the police reports as well as additional witnesses. He told the court that many of the witnesses were under the influence of drugs or alcohol at the time of the shooting and that they provided conflicting versions of events. Dixon further indicated that Reise had a viable self-defense claim but that it was badly hindered by his postshooting actions. The sentencing court imposed a 180-month sentence, above the agreed recommendation but within the standard range. Reise did not appeal. But he later filed this personal restraint petition (PRP) on March 10, 2006.
¶6 In his PRP, Reise contended that newly discovered evidence, a witness declaration supporting his self-defense claim, requires withdrawal of his guilty plea. He also sought to withdraw his guilty plea, alleging that he pleaded guilty involuntarily and his lawyer ineffectively represented him. We determined that the issue of whether Reise’s straight guilty plea barred his newly discovered evidence claim was not a frivolous one. Accordingly, we referred Reise’s petition to a panel of judges for a determination on the merits. We also appointed an attorney to represent Reise on appeal.
ANALYSIS
Personal Restraint Petition Standards
¶7 When, as here, a personal restraint petitioner has or could have sought previous judicial review, we will not
¶8 A personal restraint petitioner must state “with particularity facts which, if proven, would entitle him to relief.” In re Rice,
Newly Discovered Evidence
¶9 Reise seeks withdrawal of his guilty plea and a new trial based on newly discovered evidence. He relies on the written certificate of Kenneth Gillaspie, which recites that Gillaspie lived and worked at the motel, observed Hardison advance on Reise with a club, and observed Reise shoot
¶10 To obtain relief in a personal restraint petition based on newly discovered evidence under RAP 16.4(c)(3), Reise must satisfy the traditional five-factor test for obtaining a new trial based on newly discovered evidence. See In re Pers. Restraint of Lord,
that the evidence (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.
State v. Williams,
¶11 Factors one through three and factor five presume or require that the challenged conviction was the result of a trial, not a guilty plea. The factors are difficult, if not impossible, to apply when the moving party pleaded guilty instead of standing trial. And there are few published appellate decisions analyzing a newly discovered evidence claim as a basis to vacate or withdraw a straight guilty
¶12 A valid plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government’s legal power to prosecute regardless of factual guilt. See Menna v. New York,
¶13 In Washington, a defendant pleading guilty specifically waives the presumption of innocence, the right to remain silent, and the right to force the State to prove guilt beyond a reasonable doubt at a trial. CrR 4.2(g)(5)(e). A guilty plea also waives the right to test the State’s trial evidence by cross-examining State witnesses or presenting defense witnesses. CrR 4.2(g)(5)(d). Accordingly, Reise waived all of these rights, both in writing and during a colloquy with the superior court.
¶14 Any defendant, including Reise, who waives these rights and enters a straight guilty plea gives up the right to force the State to prove guilt and to challenge the State’s evidence of guilt — by calling defense witnesses or otherwise. In re Bybee,
¶15 By pleading guilty, a defendant renders irrelevant the question of whether the State could have proved guilt. In re Bybee,
¶16 But a superior court must allow a defendant to withdraw a guilty plea whenever “necessary to correct a manifest injustice.” CrR 4.2(f); State v. Taylor,
¶17 One Washington case has held that a manifest injustice exists when (1) the defendant does not admit facts establishing guilt but instead enters a Newton guilty plea in which the court finds a factual basis for the plea from a source other than the defendant and (2) the newly discovered evidence is a recantation that eliminates the entire factual basis for the guilty plea. D.T.M.,
¶19 But, newly discovered evidence is not a per se manifest injustice requiring withdrawal of a guilty plea. See Ice,
¶20 Reise’s newly discovered evidence claim is barred under the general rule. His guilty plea provides an independent and sufficient factual basis for his conviction, and claims regarding changes to the potential trial evidence are simply irrelevant; the alleged evidence does not destroy Reise’s choice to enter a straight guilty plea.
Ineffective Assistance or Involuntary Guilty Plea
¶21 Reise also seeks to withdraw his guilty plea because he claims he pleaded guilty based on inaccurate advice from his lawyer, Dixon. He claims that Dixon told him that (1) the court would impose the agreed 156-month sentence, (2) he was eligible for 33 percent good time, and (3) he would be eligible for parole after approximately three years. Instead, the sentencing court imposed a 180-month sentence. Further, Reise alleges that he is eligible for only 10 percent good time and there is no parole for his determinate sentence. Reise has submitted certificates or affidavits from himself, his “common law wife,” and his son, all supporting his claims. PRP at App. B. Dixon, in a letter to the Washington State Bar Association, has denied providing the advice at issue.
¶23 A guilty plea is constitutionally involuntary when a defendant is misinformed about a direct consequence of pleading guilty. State v. Mendoza,
¶24 When a defendant or petitioner challenges a guilty plea based on a claim of ineffective assistance of counsel, he or she must meet both prongs of the Strickland v. Washington
¶25 Reise’s first claim, that he was misinformed about the length of his sentence, fails. Even if Dixon inaccurately told Reise that the sentencing court was bound by the 156-month recommendation, the guilty plea statement and the court itself told Reise that the court could impose any sentence within the standard range. He was correctly informed about this consequence before he pleaded guilty. For the same reason, Reise cannot demonstrate prejudice from Dixon’s purported deficient performance.
¶26 The amount of potential good time Reise could earn while serving his sentence is a collateral consequence, as the Department of Corrections, not the sentencing court, awards good time on a discretionary basis, based on eligibility rules and statutes that are subject to change. See Conley,
¶28 Reise thus does not make a prima facie showing that his lawyer misinformed him about two consequences. He does not meet the “ ‘demanding standard’ ” or his burden under the manifest injustice requirement. Taylor,
¶29 Nothing in the record before us shows that the withdrawal of Reise’s guilty plea is necessary to correct a manifest injustice.
Notes
State v. Newton,
While not conceding Reise is entitled to relief, the State does concede that if Gillaspie so testified, his testimony would not be merely cumulative of other potential witnesses nor merely impeachment of other potential testimony.
See In re Pers. Restraint of Crabtree,
As discussed below, D.T.M. granted relief only because the defendant pleaded guilty under Newton and the newly discovered evidence was the sole victim’s recantation, potentially removing the only factual basis for the guilty plea. D. T.M.,
The Crabtree court quoted with approval from a Court of Appeals dismissal order when it rejected a newly discovered evidence challenge to a guilty plea: “ ‘Furthermore, because he pleaded guilty, his argument is without merit.’ ” In re Crabtree,
The four per se indicia of manifest injustice are “ ‘(1) denial 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.’ ” Taylor,
Therefore, we need not decide whether Reise satisfies the five-factor newly-discovered evidence rule.
Because D.T.M. is distinguishable on its facts, we need not decide whether it correctly assigns different consequences and remedies when a defendant pleads guilty without admitting guilt as opposed to when a defendant pleads guilty and admits guilt.
In his second supplemental brief, Reise relies on In re Personal Restraint of Delmarter,
Reise’s primary argument regarding Gillaspie’s testimony is that it is newly discovered and could not have been discovered before he pleaded guilty. In later briefing, Reise appears to briefly argue that his lawyer ineffectively assisted him by failing to interview Gillaspie. This claim contradicts Reise’s primary claim that Gillaspie could not have been discovered, and we decline to consider it.
In a reply to the State’s supplemental response, Reise also argues that Dixon failed to inform him of an offer to plead guilty to manslaughter instead of murder. Reise bases this claim on the sentencing transcript provided by the State. But that transcript instead reveals that Dixon sought a manslaughter offer, that the State was unwilling to ever agree to manslaughter, and that the case settled only when Dixon indicated a willingness to consider offers other than manslaughter.
Ch. 9.94A RCW.
