Opinion
No. 19928-9-II
Filed: December 31, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 95-1-00558-6 Judgment or order under review Date filed: 09/06/1995
Counsel for Appellant(s), Scott Daniel Berry (Appearing Pro Se), #725996, 1830 Eagle Crest Way, Clallam Bay, WA 98326-9723.
Suzan L. Clark (Appearing Pro Se), Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), Philip A. Meyers, Attorney at Law, P.O. Box 5000, Vancouver, WA 98666-5000.
In this consolidated personal restraint petition and direct appeal, Scott Berry challenges his 1995 guilty plea to first degree premeditated murder, claiming ineffective assistance of counsel and unreasonable appellate delay. Berry did not file the documents necessary for the trial court to assign him appellate counsel, and his case sat inactive on appeal for five years after he filed his notice of appeal. In 2000, the clerk of this court discovered the languishing appeal and notified Berry and the Clark County Superior Court. The trial court appointed counsel who revived Berry's direct appeal, and Berry filed a Personal Restraint Petition (PRP), which we consolidated with his direct appeal. Having now reviewed Berry's direct and collateral challenges, we affirm.
FACTS
Scott Berry and six other people were charged by information on March 30, 1995, with conspiracy to commit first degree murder, first degree murder, and first degree felony murder. The charges stemmed from the death by gunshot and/or beating of Kenneth Jones, an acquaintance of all of the defendants, in June 1994. Jones' partially decomposed body was discovered on June 30. Jones was believed to have been killed within the preceding week, between June 23 and June 30.
Berry initially asserted accident or self-defense, claiming that Jones came at him with a cocked gun. According to Berry, the gun accidentally discharged when he wrestled it away from Jones, accidentally shooting Jones in the back of the head. Nevertheless, Berry entered an Alford-Newton plea to the first degree premeditated murder charge (count II) on July 14, 1995. In exchange, the State agreed to dismiss the conspiracy and felony murder charges.
North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1976).
Change of Plea Hearing
Before accepting Berry's plea, the trial court held a hearing to establish that the State's evidence, if believed by the jury, was sufficient to support a conviction. Because there were alternative theories on the cause of Jones' death (beating versus gunshot wound), the trial judge thoroughly analyzed the evidence supporting each theory. The prosecutor summarized the testimony that the State would present if the case went to trial. In support of its theory that Jones died as a result of being beaten, certain of Berry's co-defendants would testify that they either witnessed him beating Jones in the shed with a baseball bat or saw him in the shed at the time of the beating.
Three doctors would provide testimony as to Jones' death. The prosecutor explained that Don Phillips, the Clark County Coroner, will testify that on June 30th at approximately 3:05 P.M. pronounced — that he pronounced Kenny Jones dead.
Dr. Hamilton will testify, the Clark County Coroner, that on July 5th, 1994, he performed an autopsy on Kenny Jones. Dr. Hamilton will further indicate in his testimony that he determined the cause of death to be death by gunshot wound to the back of the head.
Dr. Cliff Nelson will testify that he is the Clark County Medical Examiner. He will testify that given the historical facts presented to law enforcement . . . that Kenny Jones could have possibly died as a result of a closed-head injury.
Report of Proceedings (RP) (7/14/95) at 14-15.
Four days after Berry pleaded guilty, prosecutor Dennis Hunter filed a memorandum in response to allegations made by Berry's co-defendants that Hunter had pressured coroner Dr. Archie Hamilton into changing his assessment of the cause of Jones' death. It is clear from the plea hearing transcripts that Hamilton viewed the cause of death to be a gunshot wound to the back of Jones' head. According to the Hunter's memorandum, Hamilton initially believed that Jones had been beaten, changed his assessment, and then told Hunter (after Hunter expressed his chagrin over the alleged change) that he (Hamilton) has consistently said there was no evidence Jones had been beaten:
The record before us does not contain the coroner's reports or the transcripts of the hearing held in response to the co-defendants' allegations. Berry apparently made an unsuccessful attempt to obtain the coroner reports in connection with his PRP, but neither he nor his counsel followed through on this request. The judge at the plea hearing makes reference to "yesterday's hearing," but the record gives no further information about this hearing. At oral argument, the State admitted that neither Berry nor his trial counsel participated in or were parties to the co-defendants' hearing. See also footnote 7.
I received an unscreened telephone call from Dr. Hamilton on my direct line. Without introduction or any preliminaries, Dr. Hamilton started off by saying, "Denny, I've been telling people for nine months that there's no evidence this guy was beaten . . . " At that point I cut Dr. Hamilton off and said, "Doctor, the problem I have with that is that what you're saying is complete[ly] inconsistent with what you told me in March." Dr. Hamilton told me that he did not recall any conversation with me in March. I told Dr. Hamilton that I recalled speaking to him while I had two detectives in my office and remembered specifically him saying the words "They kicked the living shit out of him." Dr. Hamilton again said that he recalled no such conversation. At that point, I hung up the telephone.
Clerk's Papers (CP) at 63 (emphasis added).
Sentence and Procedural History on Appeal
Berry was sentenced on September 6, 1995. He received a standard range sentence of 291.5 months confinement and at the time he filed his petition was serving that sentence at Clallam Bay Corrections Center. He filed a notice of appeal with this court on September 18, 1995. That same day he filed an affidavit "in support of motion for indigency" with Clark County Superior Court. This court received this document 10 days later.
On October 11, 1995, this court sent a letter warning Berry that his appeal was not perfected because this court had not yet received a filing fee or order of indigency. As a result, the letter warned, the appeal would be placed on the commissioners' motion docket and dismissed without oral argument unless a fee or order of indigency was filed by November 8, 1995. Additionally, the letter explained that there was no affidavit filed attesting to service of the notice of appeal on opposing counsel and, in order to perfect the appeal, such affidavit must also be filed by November 8, 1995.
The letter was sent to Berry's trial counsel, Irving L. Dane, the prosecutor below, the Clark County clerk, and, presumably, Berry.
Berry's trial counsel responded to the letter, explaining that he did not file the appeal, that Berry never asked him to appeal, and that he planned no further action on Berry's behalf.
Again, on October 26, 2000, our Clerk sent another letter explaining the same procedural deficiencies as noted in the earlier letter of October 11, 1995. This time Berry responded, filing a motion to proceed in forma pauperis and a personal restraint petition. We consolidated Berry's direct appeal and PRP for review.
ANALYSIS
Ineffective Assistance of Counsel
(1) Standard of Review
In both the appeal and the PRP, Berry claims that his trial counsel was ineffective for allowing him to plead guilty to first degree murder. Effective assistance of counsel, of course, is guaranteed by both U.S. Constitution amendment VI and Washington Constitution, article I, section 22 (amendment X). State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To establish ineffective assistance of counsel, the claimant must show (1) deficient performance and (2) resulting prejudice. Hendrickson, 129 Wn.2d at 77-78 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Performance of counsel is deficient when it falls "below an objective standard of reasonableness" under prevailing professional norms. In re Personal Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (citing Strickland, 466 U.S. at 687-88), cert. denied, 506 U.S. 568 (1992). To demonstrate that his counsel's performance fell below prevailing professional norms, the defendant must also show that there were no legitimate strategic or tactical reasons for the challenged attorney conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). We strongly presume that a defendant received effective representation. Hendrickson, 129 Wn.2d at 77.
Berry asserts that the subsequent disbarment of Berry's defense counsel negates this presumption. We disagree. That defense counsel was disbarred does not create a presumption that he was incapacitated and rendering ineffective assistance to his clients at all times previous.
The Strickland test applies to claims of ineffective assistance of counsel in the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L .Ed.2d 203 (1985); State v. Stowe, 71 Wn. App. 182, 186, 858 P.2d 267 (1993). During plea bargaining, defense counsel has a duty to assist the defendant "actually and substantially" in determining whether to plead guilty. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)). To prove ineffective assistance of counsel in the context of a guilty plea, the defendant must show that his counsel failed to "actually and substantially [assist] his client in deciding whether to plead guilty," Osborne, 102 Wn.2d at 99 (quoting Cameron, 30 Wn. App. at 232), and that, but for counsel's failure to adequately advise him, he would not have pleaded guilty. Hill, 474 U.S. at 59; In re Personal Restraint of Peters, 50 Wn. App. 702, 708, 750 P.2d 643 (1988). The reviewing appellate court must indulge a strong presumption that counsel's performance was within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689; Peters, 50 Wn. App. at 704.
(2) Alleged Inaccurate Advice of Counsel
Berry asserts that his trial counsel told him that Washington does not recognize self-defense or voluntary intoxication as defenses and that, because of this erroneous advice, he decided to plead guilty instead of going to trial. Berry claims that when he filed his notice of appeal, he intended to withdraw his guilty plea, having learned by then that his lawyer's advice about possible defenses was erroneous. But Berry never moved in the superior court to withdraw his plea.
Berry provides this court with nothing to support the assertion that his trial attorney gave him erroneous advice. He does not even attach his own affidavit attesting to this claim. He thus fails to overcome the strong presumption that his trial counsel was effective in his representation. See also RAP 16.7(a)(2)(i) (requiring personal restraint petition to include facts on which claim based and evidence available to support same). Furthermore, the record of Berry's plea hearing belies his claim that he was incorrectly advised about self-defense. Both Berry's counsel and the trial court judge discussed self-defense at the plea hearing and ensured that Berry knowingly waived that possible defense. First, his attorney told the court:
As I indicated, he had told a certain story to the police involving one-on-one shooting of Mr. Jones. There was actually an element in there that might be considered self-defense. We also waive that; would that be correct?
RP (7/14/95) at 10. Berry responded affirmatively to the question. Then the court brought up the issue again:
And, again, as [defense counsel] said, I think in one of your statements that came up during all these 3.5 hearings, one could interpret that you may have had some form of self-defense. Do you understand you waive that?
RP (7/14/95) at 11. Berry responded affirmatively to this question as well.
According to this record, Berry was advised of and waived his possible self-defense claim. There was no ineffective assistance of counsel.
(3) Notification of Prosecutor's Memorandum Berry also claims in his direct appeal that his trial counsel was ineffective when he failed to make Berry aware of Hunter's memorandum, in which Hunter stated that Hamilton claimed that he had been saying for nine months that there was no evidence that Jones had been beaten. Although he does not state it, Berry's argument must be that if his trial counsel had told him about the memorandum, Berry would have moved to withdraw his guilty plea.
Under CrR 4.2, the trial court shall allow the defendant to withdraw his guilty plea whenever it appears withdrawal "is necessary to correct a manifest injustice." CrR 4.2(f). Our Supreme Court has interpreted "manifest injustice" to mean that the injustice must be "obvious, directly observable, overt, not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). The Court explained that this imposes a demanding standard on the defendant. Taylor, 83 Wn.2d at 596.
Berry presents his argument for withdrawing his plea under CrR 7.8, but he should argue under CrR 4.2(f). Hunter's memorandum was filed just four days after Berry pleaded guilty and nearly two months before sentencing.
Berry's theory seems to be the perfect example of the kind of situation to which our courts want the rule not to apply, for here there is no manifest injustice. The gist of Berry's argument can be summed up by the following paragraph from his brief: Use of more than one means to inflict fatal wounds has been found to be evidence of premeditation. State v. Ollens, 107 Wn.2d 848, 733 P.2d 984 (1987)[.] It follows that evidence that the coroner believed that Jones was not beaten would be relevant to the degree of murder the state could prove in this matter.
Br. of Appellant at 5. It appears that Berry is trying to argue that, because Hamilton believed Jones was not beaten — as evidenced by Hunter's memorandum — there was insufficient evidence of premeditation under Ollens because the evidence would have established that Jones was shot, only, not beaten. Therefore, if Berry's counsel had been effective he would have (1) informed Berry of this "new" information and (2) urged him to withdraw his guilty plea.
This argument fails for at least three reasons. First, the Hunter memorandum was not made under oath, and the language that aids Berry's argument is hearsay: Hunter states that Hamilton said he had been telling people for nine months that there was no evidence that Jones had been beaten.
Second, even if Berry had successfully used the Hunter memorandum to establish that Hamilton never believed Jones was beaten, this is just one examiner's opinion. Medical examiner Nelson would have testified that Jones could have died from a closed head injury. And Berry's co-defendants would have testified that they saw Berry beating Jones. Hunter's hearsay statement in his unsworn memorandum would not have necessarily established that Jones was not beaten as well as shot.
And finally, even if use of the Hunter memorandum could have established that Jones had not been beaten, we disagree with Berry's implied argument that the use of only one means to inflict fatal wounds defeats premeditation. Evidence is sufficient to sustain a conviction if any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
Berry's trial counsel would have fallen below the objective standard of reasonableness if he had failed to inform Berry of any newly discovered evidence that would indeed have aided his case or precedent that would have affected his plea. But the memorandum at issue would not have had either effect. That Hamilton would have testified at trial that Jones was killed by a gunshot wound to the head is clear from the change of plea hearing. Hunter's memorandum at most implies that at some point Hamilton did not believe that Jones had also been beaten. Berry knew there was a discrepancy in the theories of Jones' death, both in the assessments of the coroners and in the proposed testimony of his fellow defendants (who claim Jones was beaten) and Berry (who claims he was not). It was a tactical decision not to have urged withdrawal of Berry's plea in the face of this evidence. A prudent attorney would not promote going to trial on the hopes that this "newly" discovered evidence would defeat premeditation. Berry asserts that the inordinate delay in processing his appeal violates his constitutional right to due process.
Therefore, if his counsel had performed effectively (under Berry's argument), he would have moved to change his plea before sentencing under CrR 4.2(f) (not after sentencing under CrR 7.8). We note that Berry did not express any concerns or dissatisfaction with his plea agreement at sentencing. 6 We also note that Hamilton would testify that the gunshot wound was to the back of Jones' head, thus strengthening the case for premeditation. See Ollens, 107 Wn.2d at 853 (listing the fact that the victim was struck from behind as "a further indication of premeditation").
Berry is correct when he asserts that "[e]xtreme delay in processing an appeal may rise to the level of a due process violation." PRP at 18 (citing Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990), among others). But "not every delay in the appeal of a case, even an inordinate one," implicates an appellant's due process rights. United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.) (quoting Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981)), cert. denied, 498 U.S. 963 (1990).
(4) Significance of Court's Inaction For Five Years To determine whether a delay on appeal amounts to a due process violation and requires dismissal of the charges, we balance four factors: (1) the length of the delay; (2) the reasons for the delay; (3) defendant's assertion of his right to a timely appeal; and (4) the resulting degree of prejudice to the defendant. Antoine, 906 F.2d at 1382 (citing Rheuark, 628 F.2d at 303 n. 8). The primary consideration in evaluating due process standards for a delayed appeal is the degree to which defendant is prejudiced by the delay. State v. Lennon, 94 Wn. App. 573, 578, 976 P.2d 121 (citing United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, 519 U.S. 844 (1996)) (while no one factor is determinative, no due process violation can be established absent a showing of prejudice), review denied, 138 Wn.2d 1014 (1999). Assuming for the sake of argument that Berry's case is appealable, it sat inactive at this court for five years and, by the time of oral argument, nearly seven years passed since Berry filed his notice of appeal; this is an extreme delay. It appears, however, that by failing to pay the filing fee or to file a proper motion and affidavit of indigency, Berry himself is at least partially responsible for the delay. Had the matter proceeded through the normal process of this court, Berry's unperfected appeal would have been dismissed shortly after November 8, 1995. In October of 1995, Berry received notice that his appeal was not properly perfected and that the case was in danger of being deemed abandoned and dismissed. He failed to take the required steps to cure the deficiencies and, in the normal course of things, this court should have dismissed his appeal. Instead, when our Clerk discovered that we had failed to timely dismiss the appeal, he provided Berry another opportunity to cure the deficiencies.
This test adapts a modified version of the four factors laid out by Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), designed in that case to analyze speedy trial issues, to apply to appellate delay. See Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990). Division Three of this court adopted the federal factors addressed in Antoine and Barker in State v. Lennon, 94 Wn. App. 573, 577-78, 976 P.2d 121, review denied, 138 Wn.2d 1014 (1999).
Berry entered a plea of guilty and received a standard range sentence. Moreover, he did not move to withdraw this plea at the trial court level under either CrR 4.2(f) (before sentencing) or CrR 7.8(b) (within one year of sentencing), from which denial he could have appealed. RAP 2.3. Moreover, the record shows that Berry knew the nature of Hamilton's testimony and the disputed cause of death before he entered his plea.
The Ninth Circuit has characterized an eight-and-a-half-year delay as "staggering." See Coe, 922 F.2d at 531.
Berry was copied on the letter and does not claim he never received it.
Berry claims he was diligent in his efforts to appeal, filing "various motions with the trial and appeals court." PRP at 2. Our record shows instead that he filed nothing with this court after his notice of appeal (in September, 1995) until November of 2000, when he filed his PRP.
Three types of prejudice can flow from appellate delay: (1) oppressive incarceration pending appeal; (2) anxiety and concern of the convicted party awaiting the outcome of the appeal; and (3) impairment of the convicted person's grounds for appeal or of the viability of his defense in case of retrial. United States v. Mohawk, 20 F.3d 1480, 1485-86 (9th Cir. 1994) (citing United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993), cert. denied, 510 U.S. 1182 (1994)). The last of these three is the most significant. Mohawk, 20 F.3d at 1486 (quoting Coe, 922 F.2d at 532; Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). If a conviction is proper, the delay causes no oppressive confinement because the defendant "has merely been serving his sentence as mandated by law." Antoine, 906 F.2d at 1382; see also Tucker, 8 F.3d at 676 (explaining that incarceration is not oppressive when an appeal is meritless). Conversely, "incarceration [is] unjustified and thus oppressive" where a defendant's conviction is reversed on the merits on appeal. Coe, 922 F.2d at 532. But even where the appeal is successful, an appellant must distinguish himself from any other prisoner who prevails on appeal in order to demonstrate oppressive incarceration: "If it were otherwise, then prejudice would exist in every case of appellate delay where a prisoner is awarded a new trial." Mohawk, 20 F.3d at 1486. Berry does not distinguish his incarceration from any other prisoner who appeals and has, thus, demonstrated no prejudice arising from the delay in this case for which he is partially responsible.
To establish the second factor, anxiety and concern, an appellant establishes prejudice only if he reasonably experiences these emotions "to such a degree as [to] distinguish his [or her] case from that of any other prisoner awaiting the outcome of an appeal." Mohawk, 20 F.3d at 1486 (quoting Tucker, 8 F.3d at 676). Berry fails to establish this. Indeed, Berry's failure to cure the deficiencies in his appeal in the face of the Clerk's letter advising that his appeal would be dismissed, as well as his failure to submit a brief or otherwise inquire into the status of his appeal, suggest that Berry abandoned his appeal. Even if he did not, there is no evidence that he suffered inordinately from awaiting the outcome of his appeal. Moreover, because the record does not support his claim that his plea was not knowingly and voluntarily entered, Berry has not demonstrated that he suffered undue anxiety or concern regarding the delay in his appeal.
Finally, the last factor requires us to analyze whether the delay impairs Berry's grounds for appeal or affects the viability of his defense in case of retrial. The delay does not affect his appeal: his issues concern the effectiveness of his trial counsel, and he presents no argument as to how the appeal prejudices those meritless arguments.
Berry baldly asserts that "[e]vidence may be lost or compromised, and I may not be able to locate witnesses. As well, memories may erode with the passage of time." PRP at 20. But, he does not specify what evidence may be lost or compromised or which witnesses he would wish to call. Moreover, it should be remembered that Berry and the other co-defendants were not charged until nine months following the discovery of Jones' body, and Berry pleaded guilty a little over a year after Jones was killed. Thus, even at the time initially set for trial, this was not a case where crime scene evidence and witness testimony could have been immediately secured and preserved by the State or the defense. Although the delay in processing Berry's appeal is unfortunate, there is no showing that it was prejudicial. Thus, the delay does not warrant dismissal of the charge against Berry.
(5) Dismissal for Abandonment of Appeal
Finally, the State claims that Berry's direct appeal should be dismissed outright because he did not answer the October 11, 1995 letter from this court that warned of automatic dismissal if no action was taken on the appeal before November 8, 1995.
From the face of the warning letter sent in 1995, it appears this court could have dismissed the appeal outright when the case was discovered "open" in 2000. Our Clerk exercised his discretion and decided to provide Berry with another opportunity to have this court address the merits of his claim. See RAP 18.8 (discretion to enlarge time). And we approve of that decision. Berry's appeal is allowed, the judgment and sentence of the trial court is affirmed in all respects, and Berry's personal restraint petition is denied.
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.
BRIDGEWATER and MORGAN, JJ., concur.