State v. Flemming, No. 31812-1-II (Wash. App. 5/23/2006)
| Decision Date | 23 May 2006 |
| Docket Number | No. 31812-1-II,31812-1-II |
| Parties | STATE OF WASHINGTON, Respondent, v. JAMES EARL FLEMMING, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Pierce County. Docket No: 03-1-05435-8. Judgment or order under review. Date filed: 05/11/2004. Judge signing: Hon. Sergio Armijo.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.
Counsel for Respondent(s), Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
James Earl Flemming appeals the trial court's denial of his motion to withdraw his guilty plea to one count of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine. He argues that his plea was involuntary because he was not advised that correctional authorities would take a DNA sample; his counsel was ineffective for failing to advise him of the DNA sample and failing to investigate the basis of Flemming's motion to withdraw his plea; and the trial court erred in not independently inquiring about whether his plea was voluntary. Finally, Flemming contends that (1) Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), rendered Washington's sentencing guidelines unconstitutional, and (2) his offender score was improperly calculated. We have recently held that Blakely does not require the State to prove Flemming's community placement status to a jury beyond a reasonable doubt. Because Flemming knowingly, intelligently, and voluntarily entered his guilty plea, we affirm.
James Earl Flemming pleaded guilty to one count of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine in violation of RCW 69.50.401(2)(b) and RCW 69.50.440. At the plea hearing, Flemming's counsel stated that he had explained the guilty plea form to Flemming and that in his opinion, Flemming was knowingly, intelligently, and voluntarily entering his plea. The judge asked Flemming if he had gone over the papers with counsel; if he had any questions about entering the guilty plea; if he understood that he was waiving certain constitutional rights set out in the plea form; and if he understood that the judge would sentence him. The judge also asked Flemming if he agreed to waive his rights and enter the guilty plea freely and voluntarily. After Flemming answered yes to each question, the court accepted the guilty plea.
The plea form set out the rights that Flemming waived by pleading guilty. The form also included a number of paragraphs relating to specific crimes, with the instruction, `IF ANY OF THE FOLLOWING PARAGRAPHS DO NOT APPLY, THEY SHOULD BE STRICKEN AND INITIALED BY THE DEFENDANT AND THE JUDGE.' Clerk's Papers (CP) at 17. The following paragraph was stricken: `If this crime involves a sex offense or a violent offense, I will be required to provide a sample of my blood for purpose of DNA identification analysis.' CP at 17. The plea form did not state that Flemming would have to submit a biological sample for DNA analysis or pay the accompanying $100 fee.1
A month later, Flemming wrote to the trial court asking to withdraw his plea because he mistakenly thought he would be transferred to federal court for a probation violation hearing before the sentencing hearing in this case. In the letter, he also claimed he was `tricked' into a plea when the prosecutor and his attorney told him that a Drug Offender Sentencing Alternative (DOSA) sentence was an option for him. CP at 22. Flemming's counsel moved for and obtained a continuance to `discuss this matter in more detail with the defendant.' CP at 24.
At the sentencing hearing, Flemming's counsel reminded the court of Flemming's desire to withdraw his guilty plea. Counsel then stated, `However, I've received no additional information that I think would warrant doing that,' and then advised the court that Flemming was ready to be sentenced. Report of Proceedings (RP) (May 11, 2004) at 4. In recommending a sentence, Flemming's counsel again stated that, `Flemming was focused on his concept that he wanted to withdraw his guilty plea, but with that in mind . . . we are asking for DOSA.' RP (May 11, 2004) at 4. When the judge then asked Flemming to comment, he said,
The information that my attorney was waiting for to withdraw my plea is — does exist and is valid. You know, I'm willing to accept my responsibility, per se. And, you know, for the record, I asked my attorney to withdraw because, I mean, some of those points that were in that paperwork I didn't exactly understand. But I accept my responsibility, over and above that.
RP (May 11, 2004) at 5. The trial court granted the DOSA. Flemming's counsel had no objection to `adopting all the fines' the prosecutor recommended, which included a $100 DNA database fee. RP (May 11, 2004) at 7. Accordingly, the court sentenced Flemming to 42 months of confinement and 42 months of community custody under DOSA. The court ordered Flemming to provide a biological sample for DNA analysis under RCW 43.43.754.
A month after the sentencing hearing, Flemming moved to withdraw his guilty plea, claiming: (1) there was new evidence `brought forward' to prove his innocence; (2) sentencing was continued so his attorney could `submit the proper motions' and his attorney failed to do so; and (3) counsel told Flemming that `the second cause number . . . would drop off upon pleading guilty {in this case,} which was also untrue.'2 CP at 56. Later, in his indigency affidavit, Flemming alleged,
The second stop was a bad stop but because of the consent in the first stop my attourney {sic} stated that it couldn't be beat. After I plead {sic} out some people came forward to state under oath that my ex-girlfriend put the ephedrine in my trunck {sic} and called the police. The lab results in this case have never come forward so no one is even real sure what was in the trunk.
CP at 61. We have no record of the court's decision on Flemming's motion to withdraw.
Due process requires that a defendant's guilty plea be knowingly, intelligently, and voluntarily entered. U.S. Const. amends. V, XIV; Wash. Const. art. I, sec. 3; Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); In re Pers. Restraint of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987) (citations omitted). CrR 4.2 provides further safeguards in requiring the trial court to determine, before accepting the plea, that (1) it is voluntarily and competently made with an understanding of the nature of the charge and the consequences of the plea, and that (2) a factual basis exists for the plea. CrR 4.2(d). Here, since Flemming stated the factual basis for the plea on the face of the plea, the question is (1) whether he understood the direct consequences of his plea, and (2) whether the trial court met its duty to ensure that Flemming pleaded voluntarily and competently, with an understanding of the direct consequences of his plea. CrR 4.2(d).
Flemming argues that the trial court should have inquired about the circumstances of his plea at the sentencing hearing because he had raised a question about whether the plea was voluntary in his letter. We disagree. The trial court must ascertain that a guilty plea is voluntary and competently made and that the defendant understands the consequences of the plea before accepting it. State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003) (citing Boykin, 395 U.S. at 242), review denied, 151 Wn.2d 1011 (2004); see CrR 4.2(d). Here, before accepting his plea, the trial court judge asked Flemming (1) if he had gone over all the papers with counsel; (2) if he had any questions as to what he was doing in entering the guilty plea; (3) if he understood he was waiving certain constitutional rights set out in the plea form; (4) if he understood that it was up to the judge to decide the sentence; (5) if he agreed to waive his rights and enter the guilty plea freely and voluntarily; (6) if anybody threatened Flemming to get him to plead guilty; (7) if anybody made any special promises to him outside of the plea agreement; and (8) if the charges were based on his statement of the facts. Flemming answered yes to each question and raised no issue that would alert the trial court that it needed to inquire further.
Flemming's second thoughts about his plea, expressed in his letter before sentencing, are not sufficient to raise any issue as to whether his plea was voluntary. He stated that he expected to be transferred to federal court before the sentencing but he does not claim that the prosecutor promised a transfer or that this was part of any deal. He claimed that he was `tricked' by a promise of a DOSA. But he did not raise this at the plea hearing and, more importantly, the trial court gave him a DOSA. Finally, his statements, unsupported by affidavits, that information in support of withdrawing his plea `does exist and is valid' is insufficient to challenge his plea, given the trial court's careful questioning and Flemming's unequivocal answers before the plea. Once the CrR 4.2 safeguards have been followed, trial courts must exercise great caution in setting aside a guilty plea. State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974). The trial court was not obligated to conduct a further inquiry at the sentencing hearing about whether Flemming's plea was voluntary.
We review the trial court's denial of a motion to withdraw a plea for an abuse of discretion. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000) (citing State v. Padilla, 84 Wn. App. 523, 525, 928 P.2d 1141 (1997)). A court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds. State v. Martinez-Lazo, 100 Wn. App. 869, 872, 999 P.2d 1275 (2000) (...
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