Opinion
No. 29075-8-II, Consolidated with No. 30013-3-II.
Filed: March 30, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 00-1-01666-1. Judgment or order under review. Date filed: 06/17/2002. Judge signing: Hon. Anna M Laurie.
Counsel for Appellant(s), Robert Craig Jacobs (Appearing Pro Se), Stafford Creek Correction Center, #840049, 191 Constantine Way, Aberdeen, WA 98520.
Randy Wallace Loun, Loun Tyner, 509 4th St. Ste 6, Bremerton, WA 98337-1401.
Allen M Ressler, Attorney at Law, Penthouse Ste, 821 2nd Ave, Seattle, WA 98104-1578.
Timothy Rolland Tesh, Attorney at Law, 821 2nd Ave Ste 2200, Seattle, WA 98104-1592.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecuto's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Robert C. Jacobs appeals his exceptional sentence and the trial court's denial of his request to vacate two controlled-substances guilty-plea convictions. We have consolidated his related personal restraint petition with his appeal.
Jacobs argues that the trial court erred in denying his newly substituted counsel's request for a continuance to prepare for sentencing. We agree and remand for resentencing. We also affirm the trial court's denial of Jacobs' motion to vacate his guilty plea and to deny his personal restraint petition.
FACTS
While on bail pending trial for two other drug-related offenses, Jacobs was arrested for delivery of a controlled substance, possession with intent to deliver a controlled substance, possession of a firearm, and possession of an explosive device.
Throughout the proceedings below, Jacobs retained several different attorneys and was granted numerous continuances.
Jacobs was granted four substitutions of counsel and was represented by at least five separate attorneys throughout the proceedings in all three cause numbers.
There were at least 20 continuances in the three cause numbers.
I. Guilty Pleas
Jacobs pleaded guilty to (1) two counts of delivery of methamphetamine and possession with intent to deliver methamphetamine under one cause number, and (2) possession of methamphetamine in two other cause numbers. He filled out and signed a Statement of Defendant on Plea of Guilty, in which he acknowledged that he was entering his guilty pleas freely and voluntarily, and that he understood (1) the charges against him; (2) that the State would recommend a sentence of 46-61 months on each count; and (3) that if he were convicted of new crimes before sentencing on these charges, the State could recommend a higher sentence. Jacobs described in his own words his actions that made him guilty of the crimes. Jacobs also agreed to waive any double jeopardy claims relating to the separate civil forfeiture of $12,000 (of the approximately $31,000) seized from his home during the execution of a search warrant.
Cause number 01-1-01154-3. The instant appeal involves only this one case.
Cause numbers 00-1-01666-1 and 01-1-00571-3.
Before accepting Jacobs' guilty pleas in the three cause numbers, the trial court questioned him to verify that he was pleading guilty voluntarily:
Jacobs' attorney and the prosecuting attorney signed the First Amended Plea Agreement in cause number 01-1-01154-3. This plea agreement was not, however, also signed by Jacobs or the trial court. This agreement stated that Jacobs agreed (1) to forfeit all seized property as outlined in the stipulated settlement in cause number 01-2-02743-5; (2) to waive any double jeopardy claims related to the forfeiture action; and (3) that if he committed any new crimes pending sentencing, he, but not the State, would still be bound by the agreement. Jacobs acknowledged:
I enter into this agreement freely and voluntarily. No one has threatened me or any other person to cause me to enter into this agreement. My attorney has explained the above paragraphs to me and we have fully discussed them. I understand them all, and understand that I waive substantial rights by entering into this agreement. Clerk's Papers (CP) at 37.
Court: Okay sir. I am looking over a statement of defendant on plea of guilty; two cases of 00-1-01666-1 and 01-1-00571-3. I see that you and your lawyer have both signed these forms. Do you understand everything on these forms?
Jacobs: I believe so, Your Honor.
Court: You believe so or you do?
Jacobs: I didn't read them all thoroughly but I trust my lawyer. There has been some kind of pressure on this decision this morning and I didn't read them all the way through.
Steinborn: Your Honor, I have gone over them and read them. I think what he means is I told him what they said. I don't think there's any questions. If he's got some questions I guess he will ask us.
. . . .
Court: When Mr. Steinborn explained these forms to you, is there anything that you didn't understand?
Jacobs: No, sir.
Court: You understand your rights, that you have the right to a speedy and public trial in Kitsap County?
Jacobs: Yes, sir.
. . . .
Court: You understand that you are giving up all of these rights by pleading guilty?
Jacobs: Yes, sir.
Report of Proceedings (RP) (Jan. 22, 2002) at 5-7, attached to Pro Se Br.
The trial court then questioned Jacobs about his understanding of his guilty plea in cause number 01-1-01154-3, the subject of this appeal: Court: Mr. Jacobs, again I asked you a series of questions before I took a guilty plea in the other two charges and nothing has changed since then?
Jacobs: No, sir.
Court: And you are pleading guilty to unlawful delivery of methamphetamine, Count I; Count II, possession of methamphetamine with intent to manufacture/deliver; is that accurate?
Jacobs: Yes, sir.
Court: To those charges how do you plead.
Jacobs: Guilty.
Court: Is that plea being made freely?
Jacobs: Yes, sir.
Court: And voluntarily?
Jacobs: Yes, it is.
Court: I'll accept the plea and [begin] sentencing. . . .
. . . .
Steinborn: For the record, Your Honor, that DOSA recommendation is the heart of what makes this plea bargain.
'DOSA' refers to an alternative sentence for drug offenders under RCW 9.94A.660. This statute authorizes courts to impose substance abuse treatment and a reduced sentence for drug offenders who meet statutorily-defined criteria.
Court: I understand, but the Court does not have to accept it.
Steinborn: Yes.
Court: Do you understand that, Mr. Jacobs?
Jacobs: Yes, sir.
RP (Jan. 22, 2002) at 18-20, attached to Pro Se Br.
II. Breach of Plea Agreement
While free on bail pending sentencing in the above cause numbers, Jacobs was arrested for possession of methamphetamine with intent to deliver. Following a hearing, the trial court found that Jacobs had breached his plea agreement such that he was held to his guilty plea, but the State was released from its obligations to recommend a DOSA sentence.
Jacobs argued only that the State should be held to the plea agreement terms; he did not challenge the validity of the plea agreement itself. Instead, he used the plea agreement in his presentence statement to argue (1) for a DOSA sentence alternative, as stated in the plea agreement; and (2) that the State's request for an exceptional sentence violated the plea agreement.
III. Motion to Withdraw Guilty Pleas
Two months later, Jacobs moved to withdraw his guilty pleas in all three cause numbers. He argued for the first time that he had not entered his pleas intelligently and voluntarily because (1) he had not read the plea agreements; (2) his counsel had failed to provide information necessary for him to make an informed and intelligent decision about whether to plead guilty; and (3) he was not aware of all the direct consequences of the pleas. He also argued that the third plea agreement, cause number 01-1-01154-3, the subject of this appeal, was invalid because he had not reviewed it, and neither he nor the trial court had signed it.
The trial court considered whether Jacobs' failure to sign the third plea agreement in cause number 01-1-01154-3 rendered it invalid, ruled that it did not, and denied Jacobs' motion to withdraw his guilty pleas.
IV. Sentencing
On the day scheduled for sentencing, Jacobs' counsel, Peter Connick, requested that he be allowed to withdraw and that Michael Morrison be allowed to substitute as Jacobs' attorney. Noting its frustration with the many delays and substitutions of defense counsel thus far, the trial court initially denied both requests because Morrison was not present to represent Jacobs at the sentencing.
The trial court then sentenced Jacobs on two of the three cause numbers. Before sentencing Jacobs on the third cause number, however, the trial court (1) noted that neither Jacobs nor the court had signed the third plea agreement; and (2) granted a one-week continuance to allow counsel to brief that issue.
Cause numbers 00-1-01666-1 and 01-1-00571-3.
When sentencing resumed a week later, Connick and Morrison both appeared and Connick renewed Jacobs' request that Morrison be substituted as counsel. The trial court asked Morrison if he was prepared to proceed with sentencing. Morrison advised the court that he was not prepared, and he requested a continuance. The court said it would allow substitution if it did not delay the sentencing, and continued the sentencing until Friday afternoon of that same week so that counsel could brief the issue of Jacobs' failure to sign the plea agreement.
But Morrison advised the court that he was unavailable that day and would be gone on vacation until July 10th. The court considered revoking its order allowing substitution of counsel and tried to coordinate another day that week for the hearing. Morrison indicated that he could be there on Wednesday. The prosecutor preferred that the sentencing take place immediately and stated that there was no need for a continuance.
Ultimately, however, Morrison was unable to schedule a new sentencing time that week that fit the trial court's calendar.
Again noting multiple delays and Morrison's lack of preparation to argue the motion to withdraw Jacobs' guilty plea, the trial court affirmed substitution of counsel, denied the continuance, and advised the parties that sentencing would proceed that day as scheduled. The court again asked Morrison if he was prepared to proceed that day on the issue of Jacobs' failure to sign the plea agreement. Morrison said that he was not. The court stated that it appreciated that Morrison was not prepared, but said it did not wish to continue the sentencing any longer in light of all of the delays that had already occurred.
The court reaffirmed substitution of counsel and advised the parties that the case would proceed to sentencing that day. At this point, former defense counsel, Connick, was still present in the courtroom. The court then excused Connick and began Jacobs' sentencing hearing with new counsel Morrison.
The presentence report (PSI), which Morrison had not previously read, recommended an exceptional sentence above the standard range. The trial court gave Morrison time to read the report, but Morrison was still unprepared to proceed with the sentencing at that point. When the court asked for clarification of the crime facts, Morrison replied: 'I'm telling you, your Honor, I'm not prepared. I'm not familiar with all the facts. I'm just going by what's —.' RP (June 24, 2002) at 40.
The relevant portion of the transcript reads as follows:
Mr. Morrison: Well, I guess I'm going to need to review the P.S.I. I haven't received that, either. Again, your Honor, I'm not prepared to go forward on this matter. And I'd like to speak to the detective and find out what the basis of his statements are going to be today.
The Court: You'll be able to. Whether you received a copy of the P.S.I. or not, there's one in the court file and there was one provided to defense counsel. I'll hand this down to you, Mr. Morrison, so that you can certainly review the original, which was filed on May 2nd. RP (Mar. 24, 2002) at 40.
The trial court then allowed the detective to testify about the quantity of methamphetamine found at Jacobs' residence. Walter Delano, who had prepared the presentence report, testified about Jacobs' longtime drug dealing, the sophistication of the drug transactions, and the quantity of drugs. Thereafter, Morrison argued to the court that a DOSA sentence was warranted, despite this testimony.
The trial court ruled that (1) the plea agreement bound Jacobs, even without his and the court's signatures; (2) the amount of methamphetamine in Jacobs' possession made him ineligible for DOSA; and (3) an exceptional sentence was warranted. It then imposed consecutive exceptional sentences on each of the two counts in the third cause number.
ANALYSIS I. Sentencing Right to Counsel
The State does not dispute Jacobs' argument that his counsel was unprepared to proceed to sentencing. Rather, the State argues that Jacobs' motion for continuance was untimely because it came the day of the rescheduled sentencing hearing.
We review a trial court's grant or denial of a motion for a continuance for abuse of discretion. See State v. Williams, 84 Wn.2d 853, 855, 529 P.2d 1088 (1975). A defendant is entitled to effective assistance of counsel at sentencing, which here means having counsel who was prepared to proceed. State v. Bandura, 85 Wn. App. 87, 97, 931 P.2d 174, review denied, 132 Wn.2d 1004 (1997). A trial court's decision to grant or to deny a requested continuance may not impinge on this right to counsel. Bandura, 85 Wn. App. at 97.
Here, the trial court had two options that would have insured Jacobs' right to effective assistance of counsel at sentencing: (1) It could have denied Jacobs' request for substitution of counsel and proceeded to sentencing as scheduled, with Connick remaining as Jacobs' attorney; or (2) having granted substitution of counsel, the trial court could have given new counsel a continuance to allow time to prepare. The trial court could not, however, both allow substitution of unprepared counsel and then deny a continuance to allow counsel sufficient time to prepare. Giving new counsel time that day to read the presentence report was not sufficient to enable counsel to prepare adequately here.
Bandura is on point. On the day of sentencing, the trial court allowed withdrawal of the defendant's counsel, but it denied Bandura's request for a continuance so that his new attorney could familiarize himself with the case. Bandura, 85 Wn. App. at 91. Instead, the trial court required Bandura to represent himself at sentencing. Bandura, 85 Wn. App. at 91. Holding this procedure violated Bandura's constitutional right to counsel, we noted,
This is not to say that a trial court must delay a previously scheduled trial or hearing whenever a defendant demands new counsel. If a demand for new counsel is untimely, or otherwise unwarranted, the court has discretion (a) to require that present counsel remain and that the case proceed as scheduled or (b) to relieve present counsel and postpone further proceedings until new counsel can appear. When a critical stage of the proceeding is upcoming, however, the court cannot relieve present counsel and require a non-waiving defendant to proceed without counsel.
Bandura, 85 Wn. App. at 97 (footnotes omitted).
Although the trial court here did not require Jacobs to proceed to sentencing without counsel, as was the case in Bandura, it did require him to proceed with counsel who was not prepared. Applying our Bandura rationale here, if the trial court was determined to proceed with sentencing as scheduled, then it should have exercised its discretion to deny Jacobs' request for substitution of counsel. The trial court's denial of a continuance to newly substituted counsel who was unprepared left Jacobs without the assistance of effective counsel. See State v. Jury, 19 Wn. App. 256, 264, 576 P.2d 1302 (unprepared counsel does not render effective assistance of counsel), review denied, 90 Wn.2d 1006 (1978).
Jacobs argues that the following portions of the sentencing proceedings would have differed had his counsel been prepared: (1) witnesses would have been called to testify about the amount of drugs recovered and whether Jacobs knew or intended to possess that quantity of drugs; (2) a real-facts objection would have been made; (3) it would have been brought to the court's attention that two of the factors supporting an exceptional sentence were actually the same; (4) the sophistication issue would have been argued; and (5) an argument would have been made explaining that the penalties for Jacobs' other convictions were already factored into the standard range. He argues that, therefore, the sentencing decision might have differed.
The record shows that newly substituted counsel was not prepared to proceed immediately with sentencing in the following ways: (1) He did not brief or research the issue of whether an unsigned guilty plea is valid. (2) He was not prepared for the actual sentencing issues. (3) He was not aware that a presentence investigation had been requested. (4) Regarding DOSA, he did not review, in advance, the presentence investigation report, and he did not have a chance to call witnesses or interview the reporting detective sufficiently far in advance of the sentencing to be able to prepare adequately. (5) He was not familiar with all of the facts.
As in Bandura, we vacate Jacobs' sentence and remand for resentencing. Accordingly, we need not address Jacobs' additional arguments that the trial court should not have imposed an exceptional sentence.
II. Withdrawal of Guilty Plea
Jacobs next argues that he should have been allowed to withdraw his guilty plea because he did not read, sign, or agree to the terms of the agreement. He also argues in his Pro Se Supplemental Brief that his plea was involuntary.
We review a trial court's decision not to allow withdrawal of a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). A trial court must allow withdrawal of a guilty plea when necessary to correct a manifest injustice that is 'obvious, directly observable, overt, [and] not obscure.' State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996), quoting State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991). A manifest injustice may occur where the plea was not voluntarily made. State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974). We determine whether a plea is knowingly, intelligently, and voluntarily made from the 'totality of the circumstances.' Branch, 129 Wn.2d at 642.
The record does not support Jacobs' assertions that (1) his plea was not voluntarily and intelligently made; (2) his plea was coerced; and (3) he did not read and understand the terms of the agreement. On the contrary, the record shows that Jacobs (1) signed and filed a Statement of Defendant on Plea of Guilty and filed his plea agreement signed by his attorney and the prosecutor, but not by Jacobs or the court; (2) responded affirmatively when the trial court asked whether he had read and understood the plea agreement and the rights that he was relinquishing; and (3) indicated to the trial court that he was entering into the plea agreement voluntarily.
Applying the Supreme Court's rationale in Branch, Jacobs' failure to sign the plea agreement is of little consequence here. A defendant's signature on the plea agreement is a technical requirement that provides a presumption of voluntariness. But it is not constitutionally mandated, and its absence does not 'necessarily vitiate the plea's voluntariness.' Branch, 129 Wn.2d at 642. The verbatim report of the plea proceedings reflect the court's thorough questioning and Jacobs' unequivocal answers about his volition and understanding of the consequences of pleading guilty. Furthermore, Jacobs' signature does appear on his Statement of Defendant on Plea of Guilty, which also bears the judge's signature.
Jacobs' signature does appear on his First Amended Plea Agreement in Cause No. 01-1-00571-3, which plea was entered contemporaneously with his plea in the instant cause number.
The totality of the circumstances shows that Jacobs' plea was knowing, intelligent, and voluntary. Thus, the trial court did not err in denying Jacobs' motion to withdraw his guilty plea and in holding Jacobs to the terms of his plea agreement.
III. Remaining Pro Se Issues A. Double Jeopardy/Due Process
In his pro se brief, Jacobs argues double jeopardy and due process violations in that (1) the $32,164 seized from his home was not shown to have been 'used to facilitate illegal drug processing and distribution' as required under RCW 69.50.505; (2) a civil forfeiture proceeding was never conducted; and (3) the State's failure to prove a nexus between the money and the drugs caused him to receive essentially two punishments a monetary penalty and confinement. We disagree.
Pro Se Br. 14.
The record shows that in a separate civil forfeiture action, Jacobs entered into a stipulation with the State and agreed to forfeit $12,000 of the $32,164 seized from his home during the execution of a search warrant for evidence of illegal drug dealing. As part of his guilty plea bargain, Jacobs agreed to forfeit the $12,000 that was the subject of the stipulated civil agreement and 'to waive any double jeopardy claims the Defendant may have available as a result of any current or prior forfeiture action.' CP at 35, 36. Consistent with his plea agreement, Jacobs made no double jeopardy or due process arguments to the trial court below.
Cause number 01-2-02743-5. The remainder of the property was to be returned to Jacobs.
On the contrary, Jacobs expressly waived any double jeopardy argument with respect to the civilly forfeited $12,000. In his signed Statement on Plea of Guilty, Jacobs referenced the 'plea agreement.' Although the plea agreement bore only the attorneys' signatures, not Jacobs', the plea agreement expressly waived 'any double jeopardy claims' Jacobs might have 'as a result of any . . . forfeiture action.' CP at 36. The plea agreement also referenced the same stipulated settlement concerning the forfeited money that was cited in Jacobs' signed statement on plea of guilty. And in the Stipulated Settlement, which was signed by Jacobs, the judge, and the attorneys, Jacobs agreed to forfeit $12,000 in cash in return for the State's agreement to return to Jacobs the remaining $20,000 in cash and seized items (unless determined to have been stolen).
Jacobs thus waived any double jeopardy argument that he may have had with respect to the seized currency.
B. Right to Confront Accuser
Jacobs also argues that he was denied the opportunity to confront Erica Dryden, the confidential informant. But he fails to show either that he was entitled to confront her, or how his inability to confront her prejudiced him.
Dryden testified at the CrR 3.6 hearing of co-defendant Standish. She never testified against Jacobs because he pleaded guilty, thereby waiving his right to a CrR 3.6 hearing and a trial.
C. Counsel
Jacobs next argues that he was denied his right to counsel because (1) he was separated from his attorney during a CrR 3.6 hearing; and (2) the trial court refused to allow him to substitute counsel at sentencing.
Jacobs' first argument fails because, as we noted above, Jacobs pleaded guilty and, therefore, did not have a CrR 3.6 hearing. He had no right to be present and represented by counsel during co-defendant Standish's CrR 3.6 hearing.
Jacobs' second argument also fails. Although the trial court refused his request to substitute counsel at the sentencing on the cause numbers unrelated to this appeal, the trial court did allow Jacobs to substitute counsel at the rescheduled sentencing hearing on the cause number that is the subject of this appeal.
00-1-01666-1 and 01-1-00571-3.
Jacobs further argues that he was denied effective assistance of counsel because his attorneys allegedly failed him in several ways. To prove ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Prejudice occurs if, but for the deficient performance, the outcome would have been different. In re Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). There is great judicial deference to counsel's performance and our analysis begins with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689-90; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
As for Morrison's lack of preparation at sentencing, we have remedied this deficiency by ordering resentencing. But other than this single circumstance, Jacobs does not explain how his counsel's alleged failures otherwise prejudiced the outcome of his case. Thus, Jacobs has failed to establish ineffective assistance of counsel.
In his personal restraint petition, Jacobs contends that his attorneys failed to interview witnesses, and failed to investigate his claims, among other things. But the record does not support these allegations.
D. Prosecutorial Misconduct
Jacobs also argues that the prosecutor engaged in misconduct when he failed to notify attorney Ressler, had criminal lawyer Jeff Steinborn sign in place of Ressler, had guilty plea judge sign, by-passed a hearing scheduled on January 25, 2002, and worked a 'deal' . . . to have Jacobs give up $1,254.00 and $12,000.00 in 'rental receipts' for DOSA and a pair of guilty pleas. Pro Se Br. at 30-31.
We have previously addressed in this opinion Jacobs' argument that he 'was separated from counsel and never given 3.6 hearing while attorney Jeff Steinborn became a spectator at the 3.6 hearing held only for State v. Standish.' Pro Se Br. at 30-31.
To establish reversible error based on prosecutorial misconduct, a defendant must show misconduct and resulting prejudice. State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985); State v. Henderson, 100 Wn. App. 794, 800, 998 P.2d 907 (2000). Jacobs fails either to show specific instances of prosecutorial misconduct or to explain how he was prejudiced by such conduct. Jacobs' prosecutorial misconduct arguments, therefore, also fail.
IV. Remaining Personal Restraint Petition Issues A. Probable Cause
In his personal restraint petition, Jacobs argues that the police lacked probable cause for his arrest. He asserts that (1) the camera surveillance of his house failed to show prior drug activity; (2) the drugs found in his apartment belonged to Dryden; (3) the magistrate had no way of knowing that the drugs belonged to Jacobs; (4) Jacobs was not present when the drug buy took place; (5) the detective had no personal knowledge of any drugs being purchased from Jacobs; and (6) the police relied on Dryden, who had a criminal record.
The State responds that Jacobs waived any right to appeal these issues when he pled guilty. The State is correct. State v. Hall, 18 Wn. App. 844, 573 P.2d 802 (1977).
B. Police Misconduct
Similarly, Jacobs fails to demonstrate police misconduct. Although he recites a series of facts, some with and some without documentary support, he makes no specific allegations of police misconduct.
C. Search Warrant
Finally, Jacobs argues that there was no probable cause to support the search warrant for his house. Again, the record shows to the contrary.
'An affidavit establishes probable cause to support a search warrant if it sets forth facts sufficient to allow a reasonable person to conclude that there is a probability that the defendant is involved in criminal activity and that evidence of the crime can be found at the place to be searched.' State v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994). We review issuance of a warrant for abuse of discretion. State v. Remboldt, 64 Wn. App. 505, 509, 827 P.2d 282, review denied, 119 Wn.2d 1005, 832 P.2d 488 (1992). We accord great deference to the issuing magistrate and resolve any doubts in favor of the validity of the warrant. State v. Kalakosky, 121 Wn.2d 525, 531, 852 P.2d 1064 (1993).
The magistrate did not have to conclude beyond a reasonable doubt that Jacobs was involved in the drug transaction, as Jacobs contends. All that was necessary was a probability that Jacobs was involved, which the affidavit demonstrates. Olson, 73 Wn. App. at 354. The search warrant was supported by the affidavit of Detective Plumb, which established that (1) a confidential informant entered Jacobs' home and returned with methamphetamine; and (2) police searched the informant before and after the transaction. Jacobs concedes that police obtained the warrant after two years of surveilling his home, and that the confidential informant, Dryden, came to his home and exchanged money for drugs. Although Jacobs maintains that the drugs were not his and that Dryden essentially purchased her own drugs, which she had previously left at his house, the facts alleged in the supporting affidavit established probable cause to support issuance of the search warrant.
Consequently, there is no grave constitutional error justifying review of Jacobs' petition on this issue. Hall, 18 Wn. App. at 847 (a defendant who voluntarily and knowingly waives his right to appeal under the terms of a plea agreement may seek post-conviction relief by way of a personal restraint petition only if he demonstrates that a grave constitutional error occurred.); RAP 16.4(c)(2).
D. Judicial Misconduct
Jacobs argues that two superior court judges acted improperly in his case. He first argues that the trial court improperly substituted counsel without giving Jacobs notice in his civil proceeding (Jacobs v. City of Bremerton, Cause No. 01-2-0274-5). But that civil proceeding is beyond the scope of this appeal and personal restraint petition.
Jacobs next asserts that the sentencing judge should have recused herself because she owned property that needed parking space, located within one block of Jacobs' property. But Jacobs provides no evidence of impropriety or bias, and nothing in the record supports his claims. Therefore, we reject his assertions on this issue.
A mere statement of evidence that the petitioner believes will prove his factual allegations is not sufficient to support review of a personal restraint petition. In re Personal Restraint Petition of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). See also, In re Personal Restraint Petition of Teddington, 116 Wn.2d 761, 776, 808 P.2d 156 (1991) (purely conclusory or speculative allegations raised in a personal restraint petition will not be considered at all).
E. Bail on Appeal
Jacobs argues that the trial court erred in failing to set bail on appeal. This argument establishes no error warranting relief.
We affirm the trial court's denial of Jacobs' motion to vacate his guilty plea, deny his personal restraint petition, vacate his sentence, 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.
MORGAN, J. and QUINN-BRINTNALL, J. concur.