In re Yim, No. 67183-4
| Citation | 989 P.2d 512,139 Wash.2d 581 |
| Decision Date | 02 December 1999 |
| Docket Number | No. 67183-4, No. 67214-8. |
| Court | United States State Supreme Court of Washington |
| Parties | In re the Personal Restraints of Andrew YIM and Deng Samphao, Petitioners. State of Washington, Respondent, v. Donald Maynard Yokley and Penny Gay Yokley, Petitioners. |
Frederick O. Frohmader, Tacoma, Allen, Hansen & Maybrown, Todd Maybrown, Seattle, Charles Williams, Silverdale, for Petitioners.
Norm Maleng, King County Prosecutor, Charles W. Lind, James Whisman, Deputies, King County Prosecutor, Seattle, for Respondent.
Andrew Yim and Deng Samphao each pleaded guilty to several violations of a provision of the Washington State explosives act, RCW 70.74 (Explosives Act). They later moved to withdraw their pleas, contending that the items they possessed and sold without a license were "fireworks," and, therefore, exempted from the Explosives Act. The Court of Appeals, considering their motions as personal restraint petitions, denied their request for relief. Yim and Samphao then petitioned this court for review and we granted it.
Donald and Penny Yokley were similarly charged with several violations of the Explosives Act. Before trial, they moved to suppress evidence seized from their home pursuant to a search warrant, alleging that the affidavit in support of the warrant did not establish probable cause for issuance of a warrant. The Yokleys also moved to dismiss all of the charges against them on the grounds that the items they possessed and sold were fireworks and thus exempted from the Explosives Act. The trial court granted their motions and entered orders suppressing evidence and dismissing the charges against them. The State appealed to the Court of Appeals, which reversed the trial court's orders. The Yokleys petitioned this court for review and we granted their request and consolidated their appeal with that of Yim and Samphao's. We affirm the Court of Appeals in both cases.
In 1996, the King County police seized more than 40,000 "M-80s," nearly 200 tennis balls filled with "flash powder," and materials for manufacturing those devices from Andrew Yim and Deng Samphao. The State thereafter charged Yim and Samphao with several violations of the Explosives Act.1 Yim ultimately pleaded guilty to three violations2 of RCW 70.74.022 and Samphao pleaded guilty to two charges that he violated the same statute. Yim and Samphao were each sentenced to less than 60 months in prison. Almost a year later, they sought to withdraw their guilty pleas, alleging that the items they admitted manufacturing, possessing, and selling were "fireworks" and, therefore, exempt from the Explosives Act.
The superior court, pursuant to CrR 7.8(c)(2), transferred Yim and Samphao's motions to the Court of Appeals to be considered as personal restraint petitions (PRPs).3 The Court of Appeals denied Yim and Samphao's petitions, concluding that they failed to show that their pleas were invalid or that their attorneys were deficient.4 Yim and Samphao petitioned this court for review and we granted their petition, and, as previously noted, consolidated the case with State v. Yokley, No. 39782-6-I (Wash.Ct.App. July 27, 1998).
Also in 1996, the King County Police Department received information that Donald Yokley was manufacturing and selling explosive devices known as "M-80s," "M-100s," and "M-250s." This led to an undercover police officer buying a large amount of such items from Yokley at the Northgate Mall. Police officers then arrested Yokley and obtained a warrant to search the home he shared with his wife, Penny, as well as their two vehicles. In the home, the officers found what they allege were explosive devices. Yokley was then charged individually with two violations of the Explosives Act (counts I and II). The State also charged Donald Yokley and Penny Yokley with two additional counts (III and IV) based on the seizure from their residence of explosive devices described as "M-250s" and "`tennis ball bombs.'" Clerk's Papers (CP) at 3.
The Yokleys moved before trial to suppress the evidence found in their home, contending that the affidavit in support of the search warrant failed to establish probable cause for issuance of the warrant because it did not aver that the Yokleys did not have an explosives license. After hearing argument from counsel and testimony regarding the events leading up to and through the search of the Yokleys' home and vehicles, the trial court granted the suppression motion, and concluded, following entry of findings of fact, "that the practical effect of this order is to terminate the prosecution of counts III and IV against Defendants Donald and Penny Yokley." CP at 52.
The Yokleys also moved, prior to trial, to dismiss the charges against them contending that the items that they possessed and sold were "fireworks" and thus exempted from the Explosives Act.5 The trial court, in response to this motion, solicited information from the prosecution and defense counsel regarding the definitions of "fireworks" and "explosives" as they relate to the Washington State Fireworks Law, RCW 70.77 (Fireworks Law) and the Explosives Act. In addition, the court permitted Sid Woodcock, an explosives expert, to testify in order to assist it in formulating a definition of "fireworks." At the conclusion of this hearing, the trial court found that the items that the Yokleys possessed and sold were "fireworks." Accordingly, it granted the Yokleys' motion to dismiss the charges against them on grounds that the items that they possessed and sold were exempt from the Explosives Act. It then entered an order dismissing all of the charges on that basis.
The State appealed the suppression and dismissal orders to Division One of the Court of Appeals. The State argued there that "the trial court erred in invalidating the search warrant" and that "the trial court improperly invaded the province of the jury by holding that the seized devices were `fireworks.' "Br. of Appellant, No. 67214-8, at 28, 36. The Court of Appeals determined that probable cause existed for issuance of the search warrant and that the warrant was, therefore, valid. It also concluded the trial court erred in ruling that the explosive devices in question fell within the "`fireworks' exemption" to the Explosives Act. State v. Yokley, 91 Wash.App. 773, 785, 959 P.2d 694 (1998). Accordingly, it reversed the trial court's suppression and dismissal orders. The Yokleys petitioned this court for review and we granted it and consolidated their appeal with In re Personal Restraints of Yim and Samphao.
Samphao asserts that the Court of Appeals erred in concluding that he could not withdraw his plea of guilty to the two charges that he unlawfully possessed, manufactured, stored, and transported explosive devices in violation of RCW 70.74. He claims that his right to due process would be violated if he is not permitted to withdraw his guilty pleas. In support of this contention, he argues that he was misled as to the consequences of his pleas in that "the Prosecutor, Court and Counsel all represented to [him] that [he] would ... no[t be] deport[ed] absent a 60 month sentence."6 Pet. for Review, No. 67183-4, at 11. Even assuming that Samphao could be deported as a consequence of guilty pleas that resulted in a sentence of less than 60 months in prison, he did not establish that the Court of Appeals erred in holding that he could not withdraw his pleas.
In evaluating Samphao's claim, we note that a deportation proceeding that occurs subsequent to the entry of a guilty plea is merely a collateral consequence of that plea. See State v. Ward, 123 Wash.2d 488, 512-13, 869 P.2d 1062 (1994); State v. Malik, 37 Wash.App. 414, 416, 680 P.2d 770 (1984). Accordingly, Samphao need not have been advised of the possibility of deportation. Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.1976); Ward, 123 Wash.2d at 512, 869 P.2d 1062; Malik, 37 Wash.App. at 416-17, 680 P.2d 770. Samphao's complaint is not, however, that he was not advised of the possibility of deportation. Rather he claims that he was affirmatively misled to believe that he would not be deported. While an affirmative misrepresentation to a defendant regarding the possibility of deportation might constitute a "manifest injustice," and, thus, provide a basis for setting aside a guilty plea, the record demonstrates that there was no such misrepresentation here.
In reaching that determination, we note that when Samphap entered his pleas of guilty the following exchange took place between the trial court, Samphao, Ms. Ramey (Samphao's attorney), and Mr. Thomas (the deputy prosecutor):
In re Personal Restraint of Samphao, Mot. for Emergency Orders, No. 40760-1-I, app. 1, ex. 5, at 14 (emphasis added). Later, at sentencing, the following colloquy took place between Samphao's attorney, the prosecutor, and the...
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