137 Wash. 2d 179 | Wash. | 1999
Lead Opinion
Petitioner State of Washington seeks review of a decision by the Court of Appeals, Division Three, reversing a judgment of the Chelan County Superior Court denying the motion of Respondent Leonardo Oseguera Acevedo to withdraw his plea of “guilty” to possession of cocaine with intent to deliver, ruling that Respondent Os-eguera did not have actual knowledge that community placement was a direct consequence of a plea of “guilty,” rendering his plea involuntary. The appeal of Respondent Oseguera was consolidated with his pro se personal restraint petition, arising from the same incident, in which he claimed ineffective assistance of counsel and illegal search and seizure. This court granted review. We reverse
QUESTIONS PRESENTED
The questions presented in this case are (1) whether the mandatory one-year term of community placement
STATEMENT OF FACTS
On January 18, 1995, Chelan County Sheriffs Deputy Brent R. Patterson
On January 23, 1995, Respondent Oseguera was charged by information filed in the Chelan County Superior Court with the crime of unlawful possession of a controlled substance—cocaine with intent to deliver in violation of RCW 69.50.401.
On March 8, 1995, Respondent Oseguera, represented by his court-appointed counsel, David S. Delong,
Ordinarily a defendant becomes aware of the mandatory community placement requirement prior to pleading “guilty” from the “statement of defendant on plea of guilty” which CrR 4.2(g) requires to include the following language where applicable:
In addition to confinement, the judge will sentence me to community placement for at least 1 year. During the period of community placement, I will be under the supervision of the Department of Corrections, and I will have restrictions placed on my activities.[21]
In this case, the plea form signed by Respondent Oseg-uera and submitted to the trial court did not include the statement that one consequence of conviction for a drug related offense was community placement for at least one year.
During the hearing, prior to acceptance of Respondent’s guilty plea, Judge Wardell engaged in the following exchange with Respondent:
THE COURT: And you understand the Court does not have to follow the prosecutor’s recommendation for a sentence? . . .
RESPONDENT: Yes.
THE COURT: [Y]ou understand the Court can either go above the range or below the range if there are substantial reasons to do so.
*186 RESPONDENT: It depends on what the Judge wants.
THE COURT: Right. Okay. And do you understand that when you get out of prison you would be supervised by the Department of Corrections if you remain in the country, and you would have to do what the Department of Corrections tells you? Do you understand that?
RESPONDENT: Yes. He came to talk to me.[23]
THE COURT: Do you also understand that if you are not a citizen of the United States, this offense is reason to have you deported and to also exclude you from coming back to the United States. Do you understand that?
RESPONDENT: Yes, I understand that, too.
THE COURT: And do you understand, . . . that if you are deported it is a federal crime for you to return to the United States?
RESPONDENT: If they deport me, I won’t come back here.
THE COURT: Okay. And . . . it is stated in here that you are not admitting guilt, but you are making this plea in order to take the State’s offer. ... Is that your statement?
RESPONDENT: Well, yes.
THE COURT: Do you understand at the time of sentencing the Court does not treat you any differently than someone who admits guilt. Do you understand that?
RESPONDENT: Yes. . . .
THE COURT: To the charge of possession of cocaine with intent to deliver, . . . how do you plead, guilty or not guilty?
RESPONDENT: Well, yes, I plead guilty. . . .
THE COURT: Do you plead guilty freely and voluntarily? RESPONDENT: Yes.
THE COURT: Has anybody threatened you to have you plead guilty?
*187 RESPONDENT: No.
THE COURT: All right. This Court will accept [Respondent Oseguera’s] plea of guilty as being freely and voluntarily made. He knows the consequences of that plea. He knows he’s facing substantial time in prison. And there’s a factual basis for the plea.
THE COURT: [Respondent Oseguera], Mr. [Victor] Gonzalez read to you the Statement on Plea of Guilty.[24] Did you understand what he read to you?
RESPONDENT: Yes.
THE COURT: Do you have any questions about your plea of guilty?
RESPONDENT: No.
THE COURT: All right. Okay. Then I’ll accept the plea, and I’ll dismiss the other charges.[25]
Respondent Oseguera wrote three letters to the trial court requesting new court-appointed counsel.
The only reason I pled that way is because I felt overwhelmed. Mr. Delong told me that I should plead guilty as . . . he didn’t feel like he had enough experience to be of any real help to me in this case.[29]
At the April 24, 1995 sentencing hearing, the Honorable Ted W. Small addressed the requests of Respondent Oseg-uera for new counsel and withdrawal of his plea of guilty.
In the interim, at a hearing on May 8, 1995, Judge Carol A. Wardell also denied Respondent’s request for new court-
You have not set forth sufficient reason for a change of an attorney. . . . There is absolutely no basis to indicate that Mr. Delong has not done a good job for you. . . . The law provides that when you’re appointed an attorney, the Court has to make the decision whether to change the attorney, not you. . . . [T]he Court is familiar with Mr. Delong’s experience, and the Court appoints him based upon that experience.[37]
After the hearing, defense counsel Delong filed a “motion to withdraw guilty plea”
At the second sentencing hearing on May 15, 1995, the Honorable John E. Bridges asked Respondent Oseguera why he wanted to withdraw his plea of guilty.
At sentencing, the Prosecuting Attorney asked the court to sentence Respondent to 87 months in prison and “[c]om-munity placement as provided by law.”
On June 16, 1995, Respondent Oseguera filed a pro se “notice of appeal” to the Court of Appeals.
The Court of Appeals (Judge John A. Schultheis writing, Chief Judge Dennis J. Sweeney dissenting) reversed the trial court and granted the motion of Respondent Oseguera to withdraw his plea of guilty to possession of cocaine with intent to deliver.
[Respondent Oseguera’s] contention that his plea was involuntary is of constitutional magnitude. Because the error, if proven, was reasonably likely to have affected [Respondent Oseguera’s] decision to plead guilty, we find it manifest and accept review.[53]
Finding that no “clear and convincing evidence [existed] that [Respondent Oseguera] explicitly understood that one consequence of his guilty plea was mandatory community placement for one year,”
Petitioner State of Washington then sought review by this court, which was granted on May 8, 1998.
DISCUSSION
Community Placement
Petitioner State of Washington contends Respondent Leonardo Oseguera Acevedo has not raised an issue of manifest constitutional error which may be reviewed for the first time on direct appeal.
Respondent Oseguera offers three counterarguments: (1) his assignment of error is not raised for the first time on appeal, but was in fact raised at trial when he claimed his plea was involuntary; (2) if this court concludes the assignment of error is raised for the first time on appeal, then the Court of Appeals was nevertheless correct in reaching the merits because the issue before this court involves a manifest error affecting a constitutional right of Respondent; and (3) Respondent should have the benefit of the decision of this court in State v. Ross
The Court of Appeals agreed with Respondent Oseguera and granted his motion to withdraw his plea of guilty based upon its interpretation of the decisions of this court in State v. Ross and State v. McFarland.
In State v. Ross, this court held that a mandatory period of community placement is a “direct consequence” of a plea of guilty concerning which the defendant must be informed before entering a voluntary plea of “guilty.”
Petitioner claims the decision of the Court of Appeals conflicts with the decision of this court in State v. McFarland.
The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant’s rights; it is this showing of actual prejudice that makes the error ‘manifest’, allowing appellate review.[68]
This court based its decision in Ross on omission of the community placement requirement from the plea form and the “claim by the defendant that he would not have agreed” to the plea bargain if he had been informed of that requirement.
Neither this record nor [Respondent Oseguera’s] argument shows any likelihood that he would have rejected the plea agreement had community placement been listed as a consequence of his plea. The record here demonstrates, for me, the contrary. ... He was already on community placement for a previous drug possession conviction at the time of this offense .... [H]e has not met his burden of showing that he would not likely have pleaded guilty if he had been warned of the mandatory community placement.
Moreover, it is unlikely that the community placement mandated by . . . RCW 9.94A.120(9)(a) for a drug felony offense would even apply to [Respondent] Oseguera. He was in this country illegally when he committed the crime and will be deported as soon as he is released from prison.[71]
The presentence report of Respondent Oseguera prepared by the Department of Corrections included an oblique reference to community placement as an incident to his sentence:
Because [Respondent Oseguera] has been deported before, it is likely that he will be deported when he is released from prison on this matter. He will not, therefore, serve his community placement[73]
Also, at the time of his arrest for possession of cocaine with intent to deliver, Respondent Oseguera was facing three additional unrelated charges, all of which were dismissed upon his agreement to enter a plea of guilty to the ding offense.
Respondent Oseguera has not claimed, nor even suggested, he would have insisted upon going to trial if he had been fully informed of the community placement requirement. The focus in this case is not on the adequacy of the record, but on the significance of the facts shown by the record. The record to a limited extent supports the conclusion of the Court of Appeals. It is true Respondent was not fully informed of the community placement requirement. However, the record also supports a conclusion this requirement was not a “material” part of the plea bargain, even though it was not clearly stated in Respondent Oseguera’s sentence.
In this case, Respondent Oseguera is an undocumented alien from Mexico who has once been deported, returned to this country illegally, and will most likely be deported again upon his release from prison. He will not likely ever be available to serve a term of community placement. The reference to community placement in Ross that it produces a “definite, immediate and automatic effect on a defendant’s range of punishment” simply does not apply.
Petitioner next claims the record is not sufficient for appellate review of the issue of Respondent Oseguera’s withdrawal of his plea of guilty:
[T]he record relevant to what the defendant knew at the time of his guilty plea relative to community placement is obviously incomplete. . . . [TJhere are facts in the record*197 indicating the defendant would have known of such requirement .... [and] there is other material evidence which could be presented on this issue.[78]
Petitioner attempts to distinguish Ross by arguing that Respondent Oseguera was adequately advised of the community placement requirement. That argument is not persuasive. The trial court alluded to community placement at the March 8, 1995 plea hearing by stating that Respondent Oseguera “would be supervised by the Department of Corrections, . . . and [Respondent] would have to do what the Department of Corrections tells [him]” upon his release from prison if he remains in the country.
In an attempt to prove Respondent Oseguera entered his plea with knowledge of its “direct consequences,” Petitioner, through a motion to supplement the record,
Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, a defendant who enters a plea of guilty must satisfy a two-part test established by the United States Supreme Court in Strickland v. Washington
A defendant must first show that defense counsel’s performance was deficient.
The court may begin its review of a defendant’s claim with an examination of either part of the two-part test.
Respondent Oseguera claims defense counsel David S. Delong committed several errors constituting ineffective assistance which resulted in Respondent being “forced to ple[a]d guilty against his wishes.”
Respondent Oseguera contends he demanded a jury trial on the drug charge and implies his counsel’s inaction
Respondent argues the failure of defense counsel Delong
Respondent has not established that defense counsel David S. Delong engaged in any deficient performance in his case, nor has Respondent established that prejudice resulted from his plea agreement.
Illegal Search and Seizure
In the personal restraint petition of Respondent Oseguera, he claims Sheriffs Deputy Brent R. Patterson subjected him to a “Terry stop”
SUMMARY AND CONCLUSIONS
A mandatory period of community placement is a “direct consequence” of a plea of guilty concerning which a defendant must be informed before entering the plea. Ordinarily a defendant will learn of the mandatory community place
A review of the record is required to determine the materiality of the omission and statement by the defendant and to determine whether actual knowledge of the mandatory term of community placement was a “direct consequence” of the defendant’s plea of guilty.
To determine the materiality of a direct consequence of a plea of guilty, the significance of the facts shown by the record must be examined. If the mandatory community placement produces a “definite, immediate and automatic effect on a defendant’s range of punishment,” the term of community placement will be considered a true direct consequence of a defendant’s plea of guilty. If the term of community placement is found “not definite, not immediate and having no automatic effect on a defendant’s range of punishment,” the mandatory term of community placement is not a direct consequence of the defendant’s plea of guilty and the defendant’s plea should be considered voluntary.
In this case, Respondent Oseguera was not provided direct information that a specific period of community placement would result from his plea of guilty to possession of cocaine with intent to deliver. However, under the facts in this case, the expected deportation of Respondent Oseguera after his release from prison leads to the conclusion that his term of community placement was not a “material factor” and not a “direct consequence” of his plea of guilty.
The plea of guilty of Respondent Oseguera was voluntary and not the product of a manifest constitutional error
Respondent Oseguera has not shown that defense counsel David S. Delong engaged in any deficient performance in representing him in this case, nor has Respondent established that prejudice resulted from his plea of guilty. Respondent has not met the burden of establishing “prejudice” under the Strickland test. His claim of ineffective assistance of counsel is without merit.
Respondent Oseguera’s claim that Sheriffs Deputy Brent R. Patterson did not have probable cause to arrest him is without merit. Deputy Patterson had probable cause to stop Respondent because of his reasonable belief, confirmed by the dispatch operator, that Respondent was driving while his license was suspended. The search of Respondent’s person was incident to a valid arrest on the outstanding felony warrant for forgery which was discovered through communication with the dispatch operator. None of the claims in Respondent Oseguera’s personal restraint petition has merit.
We reverse the decision of the Court of Appeals which reversed the judgment of the Chelan County Superior Court which denied the motion of Respondent Leonardo Oseg-uera Acevedo to withdraw his plea of guilty to possession of cocaine with intent to deliver. We also dismiss Respondent Oseguera’s personal restraint petition.
Guy, C.J., Talmadge, J., and Dollivee, J. Peo Tem., concur.
The name of Respondent Oseguera was indicated in the caption to one of his cases before the Court of Appeals as Leonardo Acevado Oseguera. The spelling of his name is varied. His actual surname is Oseguera, followed by his mother’s maiden name, which is Acevedo. He is appropriately addressed as Mr. Oseguera. State v. Oseguera, 88 Wn. App. 232, 234, 945 P.2d 225 (1997).
Persons convicted of certain classes of serious offenses must, in addition to other terms of sentence, serve mandatory community placement of one year for crimes committed after July 1, 1988. RCW 9.94A.120(9)(a). “Community placement” means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release. Community placement may consist of community custody entirely, postrelease supervision entirely, or a combination of the two. RCW 9.94A.030(5).
Clerk’s Papers at 49, 111.
Id.
Id. at 111.
Id. at 49.
Id.
Id.
Oseguera, ,88 Wn. App. at 234.
Id.
Clerk’s Papers at 49.
Id.
Oseguera, 88 Wn. App. at 234.
Clerk’s Papers at 114-15.
M at 110.
Id. at 105-09.
Id. at 39.
Id. at 32. The forgery charge against Respondent Oseguera related to a Social Security card.
Id. at 32-33.
Id. at 36-37. The actual standard range of the sentence for Respondent Oseguera was not determined by the court at the March 8,1995 hearing because his criminal history had not then been confirmed. The court rescheduled sentencing for April 24, 1995.
21CrR 4.2(g)(6)(k) (emphasis added).
Clerk’s Papers at 105-09.
23Id. at 38 (emphasis added). The record does not indicate who actually came to talk to Respondent Oseguera. The court did not ask him the meaning of his response nor did the court tell him the length of time he was required to serve in community placement for at least one year.
24Id. at 109. Respondent Oseguera’s native language is Spanish. A certified interpreter, Victor Gonzalez, translated the statement of defendant on plea of guilty from English to Spanish.
25Id. at 37-41. A certified court interpreter provided translation from English to Spanish for Respondent Oseguera at the March 8, 1995 hearing.
Id. at 6-8. The letters from Respondent Oseguera were dated January 24, 1995, March 3, 1995 and March 24, 1995. The letters were written in the English language and not in Spanish.
Id. Respondent’s first request for new counsel, dated January 24, 1995, was made the same day defense counsel David S. Delong filed Respondent’s Notice of Appearance and Plea of Not Guilty. Id. at 10. The Court of Appeals mentioned that Mr. Delong had represented Respondent on at least one prior occasion. Oseguera, 88 Wn. App. at 235 n.2. In his March 3, 1995 letter, Respondent renewed his claim of dissatisfaction with Mr. Delong and stated “I don’t think he is fair with me.” Clerk’s Papers, at 58. In his March 24, 1995 letter, Respondent stated “I feel that if [Mr.] Delong thought he had experience enough to be elected [a] judge; that his telling me that he didn’t have experience enough to be of help to me was a lie.” Id. at 56.
Id. at 7.
29Id.
Id. at 5-15.
Id. at 10-11.
Id. at 47.
Id. The March 3, 1995 letter stated Respondent was “not willing to take [the] offer” but “is willing to plead to less time.” Id. However, the State did not offer a sentence below the standard range.
Id. at 11.
Id. at 12-14. Judge Small continued the sentencing hearing to allow production of the transcript of the March 8, 1995 hearing and to give defense counsel Delong and Respondent Oseguera an opportunity to review it before the second sentencing hearing.
Verbatiin Report of Proceedings on May 8, 1995 before Judge Wardell filed on March 25, 1996. Because the transcript of the March 8, 1995 hearing had not arrived, Judge Wardell continued Respondent’s request to withdraw his plea of guilty and requested that he file a written motion to withdraw his plea of guilty, although Respondent made an oral request to withdraw his plea at the March 8, 1995 hearing.
37Id. at 5-7.
Clerk’s Papers at 43-45.
Id. at 16.
Id.
Id. at 18.
Id. at 16-17.
Id. at 16.
Id. at 17.
Id. at 20. RCW 9.94A.310, .320, .360. Respondent Oseguera’s offender score was fixed at 8, with a standard range of incarceration of 87 to 116 months. One point was added because Respondent committed this offense while he was under community placement attendant to a January 13, 1992 conviction of two counts of delivery of cocaine. Former RCW 9.94A.360(18). The offender score is not contested on appeal. Oseguera, 88 Wn. App. at 236, n.3.
Id. Clerk’s Papers at 24-30. The judgment and sentence described the community placement requirement of RCW 9.94A.120, but did not specifically mention its applicability to Respondent Oseguera or its applicability to drug-related offenses. Id. at 28.
Id. at 22. Because the Notice of Appeal was untimely filed, the matter was set for a motion to dismiss for failure to file a timely notice under RAP 5.2(a). The “Order Denying Court’s Motion to Dismiss for the Untimely Filing of the Notice of Appeal” was filed on August 8, 1995. However, the case was scheduled before a court commissioner on “Court’s Motion to Dismiss for Appellant’s Failure to Pay the Filing fee of $250.00 or to File an Order of Indigency to Obtain an Order of Expenditure of Public Funds” under RAP 15.2. The Court Commissioner’s Ruling on October 17,1995 dismissed Respondent’s appeal. On December 7, 1995, an “Amended Commissioner’s Ruling” was filed stating that Respondent Oseguera was “not at fault for his failure to obtain the order of indigency.” (The Chelan County Superior Court, in a letter dated June 21, 1995 to defense counsel Delong, stated Respondent had filed a notice of appeal without an order of indigency. The court stated that defense counsel ordinarily forwards a motion and affidavit for order of indigency and that blank forms were included for counsel to forward to Respondent Oseguera. Respondent claims Mr. Delong did not forward those forms to him.) The “Order to Proceed In Forma Pauperis” was filed on March 8, 1996.
In re Personal Restraint Petition of: Oseguera Acevado, No 15172-7-III (Wash. Ct. App. Oct. 7, 1997). On March 29, 1996, the cases of State v. Acevado Oseg-
Amended Order of Indigency and Order Appointing Attorney, Chelan County Superior Court, filed on March 17,1996.
Court Commissioner’s Ruling, Court of Appeals, Division III, number 14954-4-III, filed October 30, 1996. In the motion, the State requested an order for the Chelan County Superior Court to take additional evidence on the issue of whether Respondent Oseguera entered a plea of guilty knowing a direct consequence of his plea would be 12 months of community placement.
Notation ruling on motion to supplement record, Court of Appeals, Division III, dated January 28, 1997. The State’s motion to incorporate the judgment and sentence in Chelan County Cause number 91-1-00463-4 referred to Respondent Oseguera’s conviction of unlawful delivery of cocaine on January 13,1992 and his sentence requiring 12 months of community placement. Clerk’s Papers at 119-24.
State v. Oseguera, 88 Wn. App. 232, 234, 945 P.2d 225 (1997).
53Id. at 237.
/d. at 238.
Id.
Pet. for Review at 5-6.
State v. Ross, 129 Wn.2d 279, 916 P.2d 405 (1996).
Supplemental Br. of Resp’t at 4.
State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995).
Ross, 129 Wn.2d at 280.
Pet. for Review at 5-6. (While Respondent Oseguera filed a motion to withdraw his plea of guilty, his claim that he was not advised of the community placement term is indeed made for the first time on appeal.)
ld. Petitioner claims a new trial or hearing should have been granted under CrR 7.8 to allow the trial court to make findings of fact and only then would the Court of Appeals have “been better situated to review the matter.” Pet. For Review at 8.
RAP 2.5(a) provides in part:
The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: ... (3) manifest error affecting a constitutional right.
McFarland, 127 Wn.2d at 333.
Ross, 129 Wn.2d at 287 (citing Wood v. Morris, 87 Wn.2d 501, 507, 511, 554 P.2d 1032 (1976)).
State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)); State v. Moore, 75 Wn. App. 166, 171-72, 876 P.2d 959 (1994).
68McFarland, 127 Wn.2d at 333 (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988); State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992)).
Ross, 129 Wn.2d at 287-88. The court explained in Ross there was “no dispute” that the record contained no evidence defendant was informed of the mandatory term of community placement and that defendant claimed he would not have agreed to it if he had known of its existence. “Defendant’s knowledge of his maximum prison sentence was insufficient to assure his understanding of the direct consequence of community placement. . . . [M]andatory community placement enhanced Defendant’s minimum sentence and altered the standard of punishment applicable.” Id.
Id. at 284 (citing State v. Barton, 93 Wn.2d 301, 304-05, 609 P.2d 1353 (1980) citing State v. Johnston, 17 Wn. App. 486, 564 P.2d 1159, review denied, 89 Wn.2d 1007 (1977)).
71Oseguera, 88 Wn. App. at 238-39, (Sweeney, C.J., dissenting).
Clerk’s Papers at 49-54.
73Id. at 53 (emphasis added). The expected deportation of Respondent Oseguera is the basis for the trial court’s advising Respondent at his March 8, 1995 plea hearing that the Department of Corrections would supervise him “if you remain in the country.”
M at 32-33.
Respondent Oseguera’s personal restraint petition claims ineffective assistance of counsel and illegal search and seizure.
See Ross, 129 Wn.2d at 285.
Id. at 284-85.
78Pet. for Review at 6-7.
Clerk’s Papers at 38.
Id. at 18.
Id. at 24-30.
Id. at 18, 24-30.
Motion to Supplement Record granted by Court of Appeals on January 28, 1997.
Clerk’s Papers at 119-24.
Id. at 122.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722, cert. denied, 479 U.S. 922, 107 S. Ct. 328, 93 L. Ed. 2d 301 (1986).
In re Personal Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993).
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
In re Personal Restraint of Riley, 122 Wn.2d at 780-81 (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
In re Personal Restraint of Riley, 122 Wn.2d at 780-81.
State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995).
Personal Restraint Pet. at 8.
Id. at 5.
Clerk’s Papers at 10-11.
Id. at 11.
Verbatim Report of Proceedings (May 8, 1995) at 5-7.
Personal Restraint Pet. at 5.
Id. at 6. Respondent Oseguera also claims Mr. Delong “did not compose any defense for [him] as to probable cause of a warrantless search.” Id. at 2.
Clerk’s Papers at 47.
State v. Osborne, 102 Wn.2d 87, 99-100, 684 P.2d 683 (1984) (citing State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)).
Id. (This court in Osborne observed that tactics cannot be the basis for a claim of ineffective assistance unless those tactics were considered incompetent by lawyers of ordinary training and skill in the criminal law.)
The Chelan County Superior Court mailed Mr. Delong a letter dated June 21, 1995 informing him of the court’s receipt of Respondent’s Notice of Appeal without an order of indigency.
Personal Restraint Pet. at 6.
Letter to David S. Delong from the Chelan County Superior Court dated June 21, 1995.
Amended Commissioner’s Ruling, Court of Appeals, Division III, filed on December 7, 1995.
Respondent also claims David S. Delong did not pursue a cause of action based on the “warrantless search” of Respondent’s automobile. Personal Restraint Pet. at 2.
State v. Brett, 126 Wn.2d at 198 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Personal restraint pet. at 2; Reply to Prosecuting Attorney’s Resp. to Personal Restraint Pet. at 2.
State v. Glover, 116 Wn.2d 509, 513, 806 P.2d 760 (1991) (citing Terry v. Ohio, 392 U.S. at 16-19, and quoting State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982)).
Clerk’s Papers at 49.
Id.
Id.
State v. White, 129 Wn.2d 105, 112, 915 P.2d 1099 (1996).
Concurrence Opinion
(concurring) — I agree with the majority that Oseguera’s plea of guilty was knowing, intelligent and voluntary and “not the product of a ‘manifest’ constitutional error.” Majority at 198.1 agree with the dissent, however, that the mandatory term of community placement is a “direct consequence” of the plea in this case since Oseguera’s deportation is not a “certainty.” Dissent
“Knowledge of the direct consequences of a guilty plea may be satisfied from the record of the plea hearing or clear and convincing extrinsic evidence.” Ross, 129 Wn.2d at 287 (citing Wood v. Morris, 87 Wh.2d 501, 511, 554 P.2d 1032 (1976)). Here, the record demonstrates Oseguera was informed and aware that community placement was a direct consequence of his plea.
The majority acknowledges that during the plea hearing, prior to the acceptance of Oseguera’s plea, Judge Wardell engaged in the following exchange with Oseguera:
THE COURT: . . . And do you understand that when you get out of prison you would be supervised by the Department of Corrections if you remain in the country, and you would have to do what the Department of Corrections tells you ? Do you understand that?
RESPONDENT: Yes. He came to talk to me.
Majority at 186 (citing Clerk’s Papers at 38). Thus, Oseg-uera was informed as to the condition of community placement before pleading guilty, understood that condition, and acknowledged his understanding to the court at the plea hearing. That is all that is required.
Despite this evidence the majority concludes, as did the Court of Appeals, Oseguera did not understand community placement to be one of the direct consequences of his plea.
I agree the better course is to follow the specific dictates of CrR 4.2(g) because the record would then be clear. However, failing to do so does not necessarily result in “manifest injustice” requiring withdrawal of the plea. Although CrR 4.2 contains numerous procedural safeguards designed to ensure a defendant’s constitutional rights, the rule’s procedural requirements are not constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). “Failure to adhere to the technical requirements of CrR 4.2(g) does not in itself result in a constitutional violation or amount to a manifest injustice.” Branch, 129 Wn.2d at 642.
“Whether a plea is knowingly, intelligently, and voluntarily made is determined from a totality of the circumstances.” Branch, 129 Wn.2d at 642 (citing Wood, 87 Wn.2d at 506). Here, the circumstances confirm Oseguera was fully aware community placement would be a consequence of his plea. Accordingly, Oseguera has not shown manifest injustice requiring withdrawal of the plea. Therefore, I concur.
Durham and Madsen, JJ., concur with Johnson, J.
The State also submitted evidence that Oseguera had previously been found guilty on a drug charge for which he received a prison sentence and one-year community placement. Majority at 197 (citing Clerk’s Papers at 119-24). Indeed, Oseguera was under the supervision of the Department of Corrections and serving community placement at the time of his arrest on the current charge. Majority at 197; see also State v. Oseguera, 88 Wn. App. 232, 238, 945 P.2d 225 (1997). While this evidence, without more, would be insufficient to sustain the validity of the plea, it supports the conclusion that Oseguera understood the nature of the trial court’s question and the specific terms of community placement.
Dissenting Opinion
(dissenting) — The majority concludes that although the sentencing judge did not inform Oseguera that a period of community placement would result from his plea of guilty, the omission was not significant because Oseguera would be deported to Mexico following his release from prison and, therefore, would not have been subject to community placement. Because of this “expected deportation,” the majority concludes, community placement was
If deportation of Oseguera can be said to be a certainty, I would agree with the majority. The record does not, however, support a conclusion that his deportation is inevitable. Significantly, the State has not asserted in its brief or in oral argument that deportation is a foregone conclusion. Indeed, counsel for the State admitted at the hearing before this court that “I don’t think that we can conclude that he [Oseguera] was in fact going to be deported.” Oral argument tape (Sept. 10, 1998). The deputy prosecutor stated, additionally, that “I don’t believe that there is anything in the record that this court can look at to say for sure that this man was going to be deported” or that he will be “subject to the United States’ jurisdiction, not the state of Washington.”
In light of the fact that the record does not support the necessary conclusion that Oseguera will be deported to Mexico upon his release from prison, we should presume, as did the Court of Appeals, that he will not be deported and that mandatory community placement is a direct consequence of his plea.
Sanders, J., concurs with Alexander, J.
The only reference in the record to a possible deportation is in the presentence report forwarded to the sentencing judge. It indicates only that “it is likely that he [Oseguera] will be deported.” Clerk’s Papers at 53.
Although Justice Johnson indicates in his concurring opinion that he agrees with me that the record does not state that Oseguera will be deported to Mexico, he nevertheless determines that Oseguera was sufficiently informed as to the condition of community placement before pleading guilty. See Concurring op. at 204-05. He bases this conclusion on colloquy between the sentencing court and Oseguera, wherein the court informed Oseguera that he would be subject to the supervision of the Department of Corrections (DOC) when he was released from prison. See Concurring op. at 205. In my view, this statement by the sentencing court does not support his conclusion because it assumes that if one is told that they are subject to the supervision by DOC, they would somehow know that they are subject to community placement. Such an assumption is not warranted.
In State v. Ross, this court held that “mandatory community placement constitutes a direct consequence of a guilty plea and failure to so inform a defendant renders that plea invalid.” State v. Ross, 129 Wn.2d 279, 280, 916 E2d 405 (1996).