Opinion
42138-1-II
01-23-2013
STATE OF WASHINGTON, Respondent, v. ERIC C. RUSSELL, Appellant.
UNPUBLISHED OPINION
Judge C. C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21(c).
Eric C. Russell appeals his conviction of unlawful possession of a controlled substance (methamphetamine and marijuana), arguing that the trial court erred in denying his motion to withdraw his guilty plea and in ordering him to undergo mental health treatment during his term of community custody. We remand so that the trial court can strike the conditions imposing mental health treatment but otherwise affirm.
Facts
The State initially charged Russell with one count of manufacture of a controlled substance (marijuana) and one count of unlawful possession of a controlled substance (methamphetamine). Pursuant to a plea agreement, the State filed an amended information charging Russell with one count of unlawful possession (marijuana and methamphetamine). The State's sentencing recommendation included first time offender status, 35 days in jail with 30 days converted to alternative sanctions, credit for time served, and standard fines.
At the plea hearing, the trial court engaged in a lengthy colloquy with Russell concerning the amended charge and his decision to plead guilty. Russell assured the court that he understood the charge and its consequences, that his decision was not influenced by threats or coercion, and that his plea was knowing and voluntary. The prosecutor mentioned a pending district court matter concerning a deer carcass found on Russell's property and said he would speak to the district court deputy but could not guarantee its dismissal. Russell reiterated, when questioned, that no threats were influencing his decision to plead guilty. The court accepted his guilty plea to possessing marijuana and his Alford plea to possessing methamphetamine.
In an Alford plea, the defendant concedes that the State's evidence is strong and most likely would result in conviction. N. Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see also State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1970).
At sentencing, Russell asked to withdraw his plea and replace his attorney. The court agreed to continue sentencing so that Russell could obtain new counsel and move to withdraw his plea. The trial court subsequently appointed a new attorney who filed a motion to withdraw the plea, claiming that Russell did not fully understand the proceedings because of the stress involved and his hearing loss and other disabilities. The motion also claimed that Russell's contact with his former attorney was neither meaningful nor productive and that Russell had signed his guilty plea under duress.
The trial court denied the motion to withdraw after reviewing the transcript of the plea hearing. The court found that Russell was represented by competent counsel and that "the court which took the plea was very th[o]rough with making sure the defendant was aware of the plea; the consequences of the plea; the nature of the charges in the plea; the potential and recommended sentences; and the various rights the defendant was giving up by pleading, especially that of a jury trial." Report of Proceeding (RP) at 92. The court found further that Russell "acknowledged being aware of those rights and potential consequences of the change of plea." Clerk's Papers (CP) at 11. The trial court concluded that Russell made a knowing, intelligent and voluntary decision to enter a change of plea and that "[t]he Court had a comprehensive colloquy with the defendant at which time the defendant acknowledged he was aware of the consequences of pleading guilty and the rights the defendant was waiving by pleading guilty." CP at 11-12.
The trial court then imposed a sentence consistent with the State's recommendation. It sentenced Russell as a first-time offender to 30 days in jail with 28 days converted to community service; fines, assessments, and court costs; and 24 months of community custody. At the conclusion of the hearing, the prosecuting attorney stated, "Your Honor, let me ask for a mental health exam as well." RP at 109. The trial court accepted that request and ordered Russell, as a condition of community custody, to have both a chemical dependency and a mental health evaluation and to engage in the recommended treatment.
Russell now appeals the trial court's denial of his motion to withdraw his guilty plea and its imposition of community custody conditions imposing a mental health evaluation and treatment.
ANALYSIS
I. Motion to Withdraw Plea
Russell argues that he was entitled to withdraw his guilty plea because it was involuntary and because the State breached the plea agreement by requesting mental health treatment.
A defendant does not have a constitutional right to withdraw a guilty plea. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). Such a motion is addressed to the sound discretion of the court, and a reviewing court will set aside the trial court's exercise of discretion only upon a clear showing of abuse. Olmsted, 70 Wn.2d at 118.
Under CrR 4.2(f), a court must allow a defendant to withdraw his guilty plea whenever withdrawal is necessary to correct a manifest injustice. State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996). This rule imposes a demanding standard on the defendant to demonstrate "'an injustice that is obvious, directly observable, overt, not obscure.'" Branch, 129 Wn.2d at 64 (quoting State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)). This standard applies to all pleas, including Alford pleas. See State v. Dixon, 38 Wn.App. 74, 76, 683 P.2d 1144 (1984). Courts have found a manifest injustice where a defendant was denied effective counsel, where the defendant did not ratify the plea, where the plea was involuntary, and where the prosecution did not keep the plea agreement. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). Because of the many safeguards surrounding a plea of guilty, the manifest injustice standard is a demanding one. State v. Calvert, 79 Wn.App. 569, 575, 903 P.2d 1003 (1995).
A. Voluntariness of Plea
Russell argues that his guilty plea was involuntary because (1) he had a hard time hearing and understanding what was happening, (2) he had reservations about being found guilty, (3) he did not understand that he had actually pleaded guilty and was not fully competent, and (4) he did not believe that his attorney had adequately explained the case to him.
The trial court is vested with broad discretion in judging a defendant's mental capacity to make a plea of guilty. State v. Osborne, 102 Wn.2d 87, 98, 684 P.2d 683 (1984) (citing State v. Loux, 24 Wn.App. 545, 548, 604 P.2d 177 (1979)). Its determination is made from such considerations as the defendant's demeanor, conduct, personal history, past history, medical and psychiatric reports and the statements of counsel. Osborne, 102 Wn.2d at 98; Loux, 24 Wn.App. at 548. Where incompetency is alleged, the standard is "'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Calvert, 79 Wn.App. at 576 (quoting N. Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). The critical period for determining competency is the time the guilty plea is entered. Osborne, 102 Wn.2d at 98.
There was no allegation of incompetency during the plea hearing from either Russell or his attorney. The trial court engaged in a long colloquy with Russell in accepting his plea. Russell's replies to the court's questions were appropriate and indicated his understanding of the proceedings. He recognized the initial charges he faced and the benefit that the plea bargain represented. Although Russell expressed confusion about his plea during subsequent hearings, there was no evidence of any such confusion at the time he entered his plea.
Nor do we see evidence to support his other claims of involuntariness. To constitute coercion, the pressure from others to enter a guilty plea must be great. See Osborne, 102 Wn.2d at 97 (allegation that defendant's wife threatened to commit suicide if the case went to trial was insufficient to overcome other evidence that plea was voluntary). The guilty plea statement that Russell signed contained a paragraph stating that no one had threatened harm of any kind to persuade him to plead guilty, and Russell assured the trial court at the plea hearing that no one had pressured him into pleading guilty. After denying improper influence in open court, a defendant who later seeks to retract his admission of voluntariness bears a heavy burden in trying to convince a court that his admission was coerced. State v. Frederick, 100 Wn.2d 550, 558, 674 P.2d 136 (1983), overruled on other grounds, Thompson v. State, Dep't of Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999). Russell's self-serving allegations of coercion are not sufficient to show that his plea was involuntary. See Osborne, 102 Wn.2d at 97 (defendant must present some evidence of involuntariness beyond his self-serving allegations).
The record does show that Russell has a hearing problem. In hearings that preceded the plea hearing, he stated that he was hard of hearing and asked the judge to speak up. He did not refer to his hearing loss during the plea hearing, however, and he assured the court that he had no trouble understanding the English language. His responses during the plea hearing were prompt and appropriate and indicated that he was able to hear the court's questions and information concerning his plea.
Although Russell professed in later hearings that he did not understand the plea proceedings, he expressed no lack of understanding during the plea hearing. When, as here, the defendant acknowledges the truth of his written statement on plea of guilty and the judge questions the defendant and satisfies himself on the record that the various criteria of voluntariness exist, the presumption of voluntariness is "well nigh irrefutable." In re Detention of Scott, 150 Wn.App. 414, 427, 208 P.3d 1211 (2009). The trial court did not abuse its discretion in denying Russell's motion to withdraw his guilty plea on the ground that it was involuntary.
B. Breach of Plea
Russell also contends that he is entitled to withdraw his plea because the State breached the plea agreement by requesting mental health treatment. Although Russell did not include this claim in his motion below, we will review it because the issue is one of constitutional magnitude. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997); State v. Van Buren, 101 Wn.App. 206, 211-12, 2 P.3d 991 (2000). A plea agreement binds the State to recommend an agreed-upon sentence to the court, and a defendant's due process rights are violated if the State fails to adhere to the terms of the plea agreement. In re Pers. Restraint of Lord, 152 Wn.2d 182, 189, 94 P.3d 952 (2004).
A plea bargain is confirmed when the defendant enters a guilty plea on the record before the court. State v. Julian, 102 Wn.App. 296, 302-03, 9 P.3d 8551 (2000). The State must then fully comply with the terms of the agreement by making the promised recommendations. Julian, 102 Wn.App. at 303. The test for whether the State's performance of a plea agreement meets constitutional muster is whether the prosecutor contradicts, by word or conduct, the State's recommendation. State v. Talley, 134 Wn.2d 176, 187, 949 P.2d 358 (1998). The State may not undercut the bargain. Sledge, 133 Wn.2d at 840.
Russell's statement on plea of guilty stated that the prosecuting attorney would make the following recommendation: first-time offender status, 35 days in jail with 30 days converted to alternatives, credit for time served, and standard fines. The statement went on to explain that if the judge sentenced Russell as a first-time offender, his sentence could include 90 days' confinement and up to two years of community custody, and it added that the judge could require Russell to undergo treatment. This language complied with the first-time offender statute then in effect. Former RCW 9.94A.650(3)(b) (2008).
The plea agreement did not exclude the possibility of mental health treatment. Consequently, the State did not undercut or contradict the plea bargain by asking the court to impose mental health treatment as well as chemical dependency treatment. This claim of manifest injustice also fails.
II. Mental Health Evaluation and Treatment
Russell argues here that the trial court erred in imposing mental health evaluation and treatment as a condition of his community custody. A sentence condition imposed without statutory authority may be addressed for the first time on appeal. State v. Jones, 118 Wn.App. 199, 204 n.9, 76 P.3d 258 (2003).
The State concedes error. A trial court may order an offender to undergo mental health evaluation and treatment as a condition of community custody only if it complies with certain procedures. State v. Brooks, 142 Wn.App. 842, 851, 176 P.3d 549 (2008). First, the court must find that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025. RCW 9.94B.080; Brooks, 142 Wn.App. at 851. Second, the court must find that this mental health condition was likely to have influenced the offense. RCW 9.94B.080; Brooks, 142 Wn.App. at 851. These findings must be based on a presentence report. RCW 9.94B.080. No such presentence report was filed in this case and the trial court did not make the necessary findings. The court thus erred in imposing mental health evaluation and treatment as a condition of Russell's community custody.
We affirm the defendant's conviction but reverse the community custody conditions imposing mental health evaluation and treatment.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Penoyar, J., Johanson, A.C.J.