State v. Horntvedt

• Court: Washington Court of Appeals
• Writing for the Court: Pennell, J.
• Citation: State v. Horntvedt, 539 P.3d 869 (Wash. App. 2023)
• Decision Date: 12 December 2023
• Docket Number: No. 38928-6-III
• Parties: STATE of Washington, Respondent, v. Lance Ray HORNTVEDT, Appellant.

539 P.3d 869

STATE of Washington, Respondent,

v.Lance Ray HORNTVEDT, Appellant.

No. 38928-6-III

Court of Appeals of Washington, Division 3.

Filed December 12, 2023

Andrea Burkhart, Two Arrows, PLLC, 1360 N. Louisiana St. #a-789, Kennewick, WA, 99336-8113, for Appellant.

Frank William Jenny II, Franklin County Prosecuting Attorney's Office, 1016 N 4th Ave., Pasco, WA, 99301-3706, for Respondent.

OPINION PUBLISHED IN PART

Pennell, J.¶1 Lance Ray Homtvedt appeals his convictions for felony sex trafficking, arguing his guilty plea was procured through an improper appeal to racial bias. Mr. Horntvedt is an African American.¹ During plea negotiations, the prosecuting attorney advised Mr. Horntvedt that if he took his case to trial, his jury would "not necessarily be a jury of [his] peers." Clerk's Papers (CP) at 116. Gesturing to herself and Mr. Horntvedt's attorney, both of whom are white, the prosecuting attorney stated, "it'll be a jury of our peers, be a lot of white folks." Id. The trial court observed that the prosecuting attorney's comments were improper, but it nevertheless denied Mr. Horntvedt's motion to withdraw his plea, finding the plea was knowing, voluntary, and intelligent.

¶2 We reverse. The prosecutor's invocation of the possibility of racial bias in order to leverage a guilty plea violated Mr. Horntvedt's right to due process. A plea cannot be deemed voluntary under such circumstances. Rather, Mr. Horntvedt must be afforded the opportunity to withdraw his plea and, if he withdraws it, to proceed to trial.

FACTS

¶3 Mr. Horntvedt faced multiple charges of sex trafficking, attempted sex trafficking, and promoting prostitution in Franklin County, Washington. The charges resulted from a multi-jurisdiction human trafficking investigation. The State intended to seek a 66-year sentence if the case went to trial but offered Mr. Horntvedt a plea agreement specifying a 25-year sentence recommendation.

Plea negotiation meeting

¶4 On March 26, 2021, a meeting occurred at the Franklin County Corrections Center to discuss terms of a plea offer. Attendees included Mr. Horntvedt, the deputy prosecutor, Mr. Horntvedt's attorney, and two corrections deputies. With the exception of Mr. Horntvedt, every person in attendance was white. The meeting was recorded and later transcribed.

¶5 During the meeting, the prosecutor reviewed the proposed plea agreement with Mr. Horntvedt, including the offer of a 25-year sentence to "wrap up" all of his cases. CP at 109. The prosecutor stated:

I'm not here to convince you of anything .... [T]his meeting is not to threaten you, intimidate you, scare you, [or] anything like that .... [J]ust to tell you kind of what you're looking at, ... what the potential could be if the case goes to trial.

Id. at 111.

¶6 As the group continued to discuss the potential for resolution, the subject of the assigned judge and jury composition came up. The prosecutor explained that because of conflicts, only five judges remained in the pool to be assigned to Mr. Horntvedt's case. The prosecutor explained that of the five judges, "two of those judges are women, which might be difficult for you in a case like this where there are six women victims ... but those are things for you to consider as well." Id. at 116.

¶7 The prosecutor then stated:

[T]he jury is picked from [Department of Licensing] records as well as voting records. So the jury that you will get will not necessarily be a jury of your peers, but it'll be a jury of our peers, be a lot of white folks. And I'm not saying that ... to scare you. That's reality. We have very few ... jurors of color that show up or ... respond to our jury summons. That's just the way it is in Franklin County. ... But I just want you to know that, and I'm telling you that straight away so you're clear on that.

Id. When the prosecutor said "your peers," she gestured her hand toward Mr. Horntvedt; when she said "our peers," she gestured toward herself and defense counsel. Rep. of Proc. (RP) (Nov. 17, 2021) at 27, 39.

¶8 Defense counsel added:

[Mr. Horntvedt had] asked me to file a motion to [change] ... venue. The problem I—you know, uh, and—and that's something that your experience will tell you the likelihood of—of having anything moved further than Walla Walla or Yakima is almost nonexistent.

....

And Walla Walla's more Caucasian than—than the [T]ri[-C]ities. And Yakima, I have—honestly have no idea what the—I mean, when I was working there, I ... worked with people of a number of different races, but I don't know what the percentages are.

CP at 116-17.

¶9 As Mr. Horntvedt was leaving the meeting, he told one of the corrections officers, " ‘[t]hat's some racist shit right there.’ " RP (Nov. 17, 2021) at 57.

¶10 After the meeting, defense counsel told the prosecutor his client was upset by her comment about Franklin County juries. In response, the prosecutor wrote a letter to defense counsel. In the letter, the prosecutor reiterated the plea offer, then explained:

You have shared that your client was upset at my comment about the makeup of Franklin County juries. Please understand that I shared that solely to make him aware of the fact that, on the whole, our jury panels are not racially diverse and are unfortunately not usually representative of our community in total. This comment was based on my experience of trying nearly sixty jury trials here throughout my career. Nothing was meant to imply that we would be unable to seat a fair jury in Franklin County as it is of course my ethical obligation (and yours) to endeavor to pick jurors who are fair and impartial and free of bias ... I just did not want him to reject the offer and then be surprised with the composition of our typical jury pools.

CP at 101.

Guilty plea

¶11 Soon after, Mr. Horntvedt agreed to plead guilty in accordance with the State's offer. At the April 27, 2021, hearing, the trial court explained the significance of a guilty plea and then asked Mr. Horntvedt if anyone threatened him to get him to plead guilty. Mr. Horntvedt replied, "No." RP (Apr. 27, 2021) at 8. Defense counsel then interjected, "I will just make a brief record that [Mr. Horntvedt] was concerned about a statement that was made out of court, but we discussed that and that's not really a threat. It was just a statement of fact, and we'll leave it at that for now." Id. The court did not inquire into the out-of-court statement.

¶12 The court accepted Mr. Horntvedt's guilty plea and found it was "knowingly, intelligently, and voluntarily made; not the product of fear, coercion, or ignorance." Id. at 19; see also CP at 25. The court ordered the State to prepare a presentence investigation report and continued the case for sentencing.

Motion to withdraw guilty plea

¶13 At the start of the June 2, 2021, sentencing hearing, defense counsel informed the court that Mr. Horntvedt's grandmother wished to play a 60-second excerpt from the recorded remarks made by the prosecutor during the plea negotiation meeting. After the court questioned why it should grant the request, defense counsel explained:

The issue is one that Mr. Horntvedt has struggled with the idea of whether to withdraw his plea based on whether or not he was intimidated into entering this plea. We have reached an agreement that he would move forward with this but that he would play this snippet for your Honor to determine whether or not he was coerced in any way into entering this plea. And yet he has agreed to move forward with this change of plea. So again part of the last-minute issues here we had drafted a motion to withdraw the plea, shared that with the state. Talked until late last night with Mr. Horntvedt. He decided he would prefer to go forward with this today, but he still wants the Court to be aware of the situation during the sentencing as to why, as to part of why he's going forward with this.

RP (June 2, 2021) at 6-7. The court responded, "So he wants the benefit of a motion to withdraw a guilty plea without the risk?" Id. at 7. Defense counsel replied:

I don't think that's quite how I would phrase it. I think he wants to make sure that your Honor is aware of all of this. There is an agreed recommendation, which I am asking you to follow. The state will ask you to follow. It's within the standard sentencing range. It is actually I think the low end of the standard sentencing range, which we will all discuss momentarily.

Id.

¶14 The court asked a few questions about the nature of the recording, then told defense counsel his client had a binary choice: "Your client either wants to adhere to the plea, or he wants to attempt to withdraw it." Id. at 11.

¶15 Defense counsel conferred with Mr. Horntvedt, then informed the court that his client wanted to withdraw the plea. The court stated it would allow the motion to proceed, requested additional briefing on the issue of admissibility of the recording under ER 410, then recessed the hearing.

¶16 Defense counsel later filed a written motion to withdraw the guilty plea on behalf of Mr. Horntvedt. In an accompanying declaration, defense counsel stated:

When Mr. Horntvedt entered into the plea agreement, there was an indication that he entered into the plea agreement freely and voluntarily without coercion .... However, Mr. Horntvedt declared, a few days later, he no longer felt that he entered his plea agreement freely and voluntarily.

CP at 31.

¶17 The hearing resumed a few weeks later. The court decided ER 410 did not prevent it from listening to the recording of the plea negotiation meeting. It determined that both the prosecutor and defense counsel would be witnesses during an evidentiary hearing on the motion and requested successor conflict counsel be appointed for both sides.

Withdrawal of guilty plea evidentiary hearing

¶18 At the November 2021 evidentiary hearing, the court heard testimony from the prosecutor, defense counsel, Mr. Horntvedt, and the two corrections officers who were present at the plea negotiation meeting.

¶19 The prosecutor explained the...