Opinion
No. 24807-1-III.
March 29, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-01559-0, Cameron Mitchell, J., entered December 16, 2005.
Counsel for Appellant(s), Susan Marie Gasch, Gasch Law Office, Spokane, WA.
Counsel for Respondent(s), Andrew Kelvin Miller, Benton County Prosecutors Office, Kennewick, WA.
Julie Elizabeth Long, Benton County Prosecutors Office, Kennewick, WA.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J. Pro Tem.
Michael Saltz pleaded guilty to a charge of felony violation of a protection order. On appeal, Mr. Saltz asserts that his counsel misrepresented the plea agreement and, as a result, he received ineffective assistance of counsel constituting a manifest injustice.
Because this misrepresentation dealt with a collateral consequence of his plea, Mr. Saltz has the burden of showing prejudice. Specifically, Mr. Saltz was required to present objective evidence that he would not have accepted the plea but for his counsel's misrepresentations. Mr. Saltz has presented no objective evidence. Because self-serving statements asserting prejudice are insufficient to establish ineffective assistance of counsel, the trial court did not abuse its discretion in denying Mr. Saltz's motion to withdraw his plea. We affirm.
FACTS
Michael Saltz pleaded guilty to felony violation of a protection order in exchange for the State dropping a charge of residential burglary. Mr. Saltz was sentenced to 22 months' incarceration based on the joint recommendation of his counsel and the State.
Several months later, Mr. Saltz sought to withdraw his plea, claiming that defense counsel had misrepresented some of the consequences of his plea. Specifically, Mr. Saltz asserted that his attorney told him that he would be guaranteed early release and work release as part of his plea bargain. However, the determination regarding early release and work release is discretionary with the Department of Corrections. See RCW 9.94A.728; RCW 72.65.040. The trial court denied the motion.
The trial court entered findings of fact and conclusions of law in support of its denial of Mr. Saltz's motion to withdraw his plea. The court concluded that State v. Conley, 121 Wn. App. 280, 87 P.3d 1221 (2004) was dispositive of the issue, and that any misinformation did not materially affect Mr. Saltz's decision to plead guilty. The court also observed that Mr. Saltz presented no objective evidence to support his assertion that he chose to plead guilty because of counsel's statements concerning early release credits. Based on this lack of evidence, Mr. Saltz's motion to withdraw his guilty plea was denied.
ANALYSIS
Did the trial court err when it denied Mr. Saltz's motion to withdraw his guilty plea?
This court reviews a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Bao Sheng Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006).
A defendant may withdraw his or her plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f). Manifest injustice may be shown by ineffective assistance of counsel, a plea that is not ratified by the defendant, a plea that is involuntary, or a breach of the plea agreement. Zhao, 157 Wn.2d at 197. The standard for demonstrating manifest injustice is a demanding one. Id.
In order to establish ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that this deficiency caused prejudice. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). The first prong requires a showing that counsel's representation fell below an objective standard of reasonableness in light of all of the circumstances. Id. at 865-66. Under the second prong, the defendant must demonstrate that there is a reasonable probability that the defendant would not have pleaded guilty but for counsel's errors. State v. Acevedo, 137 Wn.2d 179, 198-99, 970 P.2d 299 (1999). There is a strong presumption that trial counsel was effective. Id. at 199.
"The traditional rule is that a defendant who is pleading guilty must be informed [by defense counsel] of each direct consequence but need not be informed of each collateral consequence." Conley, 121 Wn. App. at 284. A defendant who is misinformed about a direct consequence of pleading guilty is not required to demonstrate that the information was material to his or her decision to plead guilty. See State v. Mendoza, 157 Wn.2d 582, 589, 141 P.3d 49 (2006). A sentencing consequence is direct when "the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980) (quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973)).
Here, Mr. Saltz contends he was misinformed about early release time and work release, which he claims were among the direct consequences of his plea. Early release and work release are not direct consequences of Mr. Saltz's plea because they are not automatically determined as a matter of right at the time of sentencing. Determinations regarding early release and work release are discretionary with the Department of Corrections and are not a direct consequence of a plea. See Barton, 93 Wn.2d at 305-06; RCW 9.94A.728; RCW 72.65.040.
An affirmative misrepresentation of the collateral consequences of a plea may constitute manifest injustice that provides a basis to withdraw a guilty plea. See In re Pers. Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). An affirmative misrepresentation of the collateral consequences of a guilty plea may be deficient performance. See State v. Stowe, 71 Wn. App. 182, 188, 858 P.2d 267 (1993). But it is not always the case that such misrepresentations are prejudicial. Id. A self-serving statement from the defendant or trial counsel that the misrepresentation was prejudicial is insufficient to establish prejudice. Conley, 121 Wn. App. at 287. There must be objective evidence that corroborates the defendant's claim. Id. The primary question for this court is whether Mr. Saltz was prejudiced by the affirmative misrepresentations made by defense counsel.
Here, there is no evidence beyond Mr. Saltz's claim that this misrepresentation was the basis of his plea. Mr. Saltz has not shown a reasonable probability that he would not have pleaded guilty but for the representations of his counsel. In light of the strong presumption of counsel's effectiveness and the lack of any objective evidence of prejudice, the trial court did not abuse its discretion in denying Mr. Saltz's motion to withdraw his guilty plea.
We affirm.
A majority of the panel has determined 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.
WE CONCUR: Schultheis, A.C.J. Kato, J. Pro Tem.