Opinion
No. 25245-1-III.
May 22, 2007.
Appeal from a judgment of the Superior Court for Stevens County, No. 05-1-00186-5, Allen Nielson, J., entered May 9, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis, J., and Kato, J. Pro Tem.
A defendant has the right to be fully informed of the consequences of his plea. This includes the right to be informed of possible defenses. But to withdraw a guilty plea as not intelligently made, the defendant must make some showing of a viable defense. Here, the defendant claimed that he was incapacitated and in the hospital when he was supposed to report to jail. He argues that this fact would have supported a legal defense of "uncontrollable circumstances." But even after he left the hospital, the defendant did not report to jail. And when police attempted to arrest him weeks later, he fled in handcuffs. We conclude that the trial judge did not abuse his discretion by denying the defendant's motion to withdraw his plea. And we affirm the conviction.
FACTS
James Cannon was required to appear at Stevens County Jail to serve a sentence for theft on July 5, 2005. He did not appear.
Mr. Cannon sent a message to the prosecutor's office that he had broken his hip in a bull-riding mishap. Two deputies found him several weeks later. They tried to arrest him. He ran away after being handcuffed.
The State charged him with bail jumping and escape. Mr. Cannon agreed to plead to one count of bail jumping. The court entered judgment and sentenced him on September 13.
During his sentencing hearing, Mr. Cannon said that the reason he did not appear at the jail was that he had broken his hip while bull-riding. He explained that he had kept the prosecutor's office informed of his whereabouts.
Later, Mr. Cannon moved to withdraw his guilty plea. He argued that his broken hip was an "uncontrollable circumstance" and an affirmative defense to bail jumping. Still later he filed exhibits indicating that he was under medical care on July 5, 2005, due to a broken hip.
The court denied his motion to withdraw his guilty plea.
DISCUSSION
Mr. Cannon argues that he had a defense to the charge of bail jumping — "uncontrollable circumstances." And he had a right to be made aware of the defense before he pleaded guilty. "Uncontrollable circumstances" include "a medical condition that requires immediate hospitalization or treatment." RCW 9A.76.010(4). The State responds that the court informed Mr. Cannon of the consequences of his plea. And, moreover, Mr. Cannon was responsible for his own injury because he chose to ride a bull.
We review the court's denial of his motion to withdraw his plea for abuse of discretion. State v. Conley, 121 Wn. App. 280, 284, 87 P.3d 1221 (2004); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). The trial court abuses its discretion if it relies on unsupported facts or applies the wrong legal standard. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
The court should permit a defendant to withdraw his plea to correct a "manifest injustice." State v. Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 (2005). A manifest injustice is "an injustice that is obvious, directly observable, overt, and not obscure." State v. Haydel, 122 Wn. App. 365, 367, 95 P.3d 760 (2004).
Due process requires that a guilty plea be voluntary, knowing, and intelligent. State v. DeRosia, 124 Wn. App. 138, 149, 100 P.3d 331 (2004); Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Whether a plea is voluntary, knowing, and intelligent is determined by the totality of the circumstances. Haydel, 122 Wn. App. at 367; State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). The defendant has the right to know of possible defenses. Haydel, 122 Wn. App. at 370.
In Haydel, the defendant pleaded guilty to one count of attempted first degree assault and the State dropped a deadly weapon allegation. Id. at 368. Mr. Haydel moved to withdraw his guilty plea, claiming that it was not knowingly and intelligently made. The court denied his motion. Id. He made another motion claiming ineffective assistance of counsel, that was denied as well, but the trial court decided sua sponte that the plea was not "knowing" as a matter of law because neither the plea form nor colloquy addressed self-defense. Id. at 369. The trial court said that "`self-defense is an element of assault that must be disproved beyond a reasonable doubt by the State.'" Id. The Court of Appeals concluded that Mr. Haydel had not made any factual showing to support self-defense, and therefore there was no need to advise him of this potential defense. Id.
The court in Haydel relies on a federal case, United States v. Frye. In Frye, the defendant's guilty plea was not knowingly and intelligently made because she did not admit a necessary element — intent to steal. Frye, 738 F.2d at 198-99.
738 F.2d 196 (7th Cir. 1984).
The problem here is the same problem the defendant faced in Haydel. There is no factual showing to support the defense. Mr. Cannon was supposed to report to jail on July 5, 2005. And, while he may have been in the hospital on that day, police apprehended him several weeks later — not in a hospital and not incapacitated. Report of Proceedings (RP) at 13; Clerk's Papers at 1-2. In fact, Mr. Cannon was physically able to run away from his pursuers despite the fact that he was handcuffed. RP at 5. Mr. Cannon must present credible evidence tending to show his theory or defense. Haydel, 122 Wn. App. at 370.
The trial judge here concluded:
[T]he information charges on or about a certain day there in July. And you're saying well on that day I was at a doctor's. But I think we talked a little bit about this at sentencing. The charges were filed in August and so you — even if you weren't able to come on that day, you didn't come for some weeks after that. And I think that would qualify as — that would make up this charge here.
RP at 13.
These are tenable grounds for the trial judge to deny Mr. Cannon's motion to withdraw his guilty plea. We conclude, as the trial judge did, that there is no manifest injustice. And we affirm the decision to deny Mr. Cannon's motion to withdraw his plea.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, J., Kato, J. Pro Tem., Concur