State v. McCollum
| Decision Date | 05 December 1997 |
| Docket Number | Nos. 18947-0-I,18949-6-II,s. 18947-0-I |
| Citation | 947 P.2d 1235,88 Wn.App. 977 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Ronald Craig McCOLLUM, Appellant. |
Alan C. Seago, Tacoma, for Appellant.
Kathleen Proctor, Barbara Corey Boutlet, Pierce County Deputy Prosecuting Attorneys, Tacoma, for Respondent.
Ronald Craig McCollum appeals the denial of his motion to withdraw his guilty pleas and the imposition of an exceptional sentence. We affirm, but remand for resentencing with regard to the firearm enhancement.
On April 25, 1994, McCollum pleaded guilty to three counts of delivery of a controlled substance and two counts of possession of a controlled substance with intent to deliver. He had a plea agreement with the State in which he promised to work as an informant for the local police department and plead guilty to all charges against him in return for a sentencing recommendation of 12 months. Upon his release from jail, he failed to make contact with the police department to fulfill his promise under the plea agreement.
After McCollum was re-arrested, he moved to withdraw his guilty pleas. The court denied his motion, finding that he knowingly, voluntarily, and intelligently agreed to plead guilty and that he received effective assistance of counsel. He was sentenced to 132 months for the first count of possession of a controlled substance with intent to deliver (includes 12 months for a firearm enhancement) and 120 months for each of the four remaining offenses, to be served consecutively.
McCollum argues that the sentencing court should have granted his motion to withdraw his guilty plea because he was denied effective assistance of counsel and did not understand the extent of the charges against him or the meaning of the plea agreement when he pleaded guilty. CrR 4.2(f) states that "[t]he court shall allow a defendant to withdraw his plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice." There are four possible indicia of "manifest injustice:" (1) the denial of effective counsel, (2) the plea was not ratified by the defendant or one authorized by him to do so, (3) the plea was involuntary, or (4) the plea agreement was not kept by the prosecution. State v. Taylor, 83 Wash.2d 594, 597, 521 P.2d 699 (1974).
The test for ineffective assistance of counsel is whether (1) the defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant. State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). The Strickland test applies to claims of ineffective assistance of counsel in the plea process. In re Peters, 50 Wash.App. 702, 703, 750 P.2d 643 (1988) (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). In the context of a guilty plea, the defendant must show that his counsel failed to " 'actually and substantially [assist] his client in deciding whether to plead guilty,' " State v. Osborne, 102 Wash.2d 87, 99, 684 P.2d 683 (1984) (quoting State v. Cameron, 30 Wash.App. 229, 232, 633 P.2d 901 (1981)), and that but for counsel's failure to adequately advise him, he would not have pleaded guilty, Hill, at 57-59, 106 S.Ct. at 370; Peters, 50 Wash.App. at 708, 750 P.2d 643. The reviewing appellate court must indulge in a strong presumption that counsel's performance is within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Peters, 50 Wash.App. at 704, 750 P.2d 643.
In this case, McCollum contends that his appointed attorney did not provide effective assistance of counsel because he only met with McCollum twice briefly before trial, did not go over the plea statements with him, and did not conduct an adequate investigation of the charges prior to acquiescing to his decision to plead guilty. McCollum has failed to meet his burden of showing that his attorney failed to adequately advise him of the consequences of the guilty pleas. There is no evidence that the defense attorney's investigation was inadequate given McCollum's early decision to plead guilty, nor that the police search was illegal and evidence would have been suppressed, as McCollum now claims. There is evidence that his appointed attorney did review the police reports and found nothing that triggered a suppression hearing. Furthermore, while McCollum's counsel was not present at the plea hearing to go over the plea statements there, another attorney from the Department of Assigned Counsel was present and stated that she went over the statements with McCollum. The trial court made findings that reflected the following: (1) that defense counsel met with McCollum and that their discussions concerned the facts of the cases and the consequences of a guilty plea; (2) that defense counsel explained to McCollum that he had the right to have a jury trial; (3) that McCollum understood his options and chose voluntarily to enter into a contract with the police department and plead guilty; (4) that defense counsel prepared the statement of defendant on plea of guilty for each count; and (5) that another defense attorney reviewed each statement with McCollum before he signed them. These findings are unchallenged and are verities. Metropolitan Park Dist. v. Griffith, 106 Wash.2d 425, 433, 723 P.2d 1093 (1986). Thus, McCollum has failed to overcome the presumption that his attorney provided reasonable assistance.
McCollum also argues that his plea was involuntary because he was unaware of one of the charges against him to which he pleaded guilty. Due process requires a guilty plea to be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); In re Montoya, 109 Wash.2d 270, 277, 744 P.2d 340 (1987). A defendant must be apprised of the nature of the offense before a guilty plea will be accepted as knowing, intelligent, and voluntary. Osborne, 102 Wash.2d at 93, 684 P.2d 683. McCollum was informed of the charges against him. At the plea hearing he was asked with respect to each charge against him what he pleaded. In each case, he pleaded guilty. He also saw the plea statements, one for each information, and was thereby informed of the charges against him. Thus, the plea was not involuntary.
Because McCollum has failed to show that withdrawal of his plea was necessary to correct a manifest injustice, the trial court did not err in denying his motion to withdraw the plea.
McCollum next argues that the sentencing court erred by imposing consecutive sentences. Under the SENTENCING REFORM ACT OF 1981, a trial court must impose a sentence within the standard range unless it finds "substantial and compelling" reasons to justify a departure. RCW 9.94A.120(2), (3). Here, the standard range sentence consists of concurrent sentences; thus, the sentence is an exceptional sentence. State v. Quigg, 72 Wash.App. 828, 845, 866 P.2d 655 (1994). The standard of review for an exceptional sentence is set forth in RCW 9.94A.210(4):
To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
The sentencing court relied on four factors to justify an exceptional sentence: (1) "[t]he current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so," former RCW 9.94A.390(2)(d)(i) (1990); (2) one of the deliveries "involved an ... actual sale or transfer of controlled substances in quantities substantially larger than for personal use," former RCW 9.94A.390(2)(d)(ii) (1990); (3) "[t]he current offense ... occurred over a lengthy period of time," former RCW 9.94A.390(2)(d)(v) (1990); and (4) the offender score of 16 "in conjunction with the multiple current offenses ... warrants an exceptional sentence."
The State contends that McCollum's failure to assign error to the sentencing court's findings of fact in support of the exceptional sentence requires this court to treat the court's findings as verities on appeal. If the appellant does not assign error to the court's factual findings in support of an exceptional sentence, they do become verities on appeal. See, e.g., State v. Alexander, 125 Wash.2d 717, 723, 888 P.2d 1169 (1995); State v. Harmon, 50 Wash.App. 755, 750 P.2d 664 (1988). But it is clear from McCollum's brief that he does challenge the sufficiency of factor two.
The first prong of the test set forth in RCW 9.94A.210(4) requires this court to decide if the factors given by the court are supported by the record. Because this is a factual determination, we must uphold the reasons unless they are clearly erroneous. State v. Allert, 117 Wash.2d 156, 163, 815 P.2d 752 (1991). McCollum argues that factor two is not supported by the record because the amount of methamphetamine sold--4.0 grams--was not in a quantity larger than for personal use. The record contains no information regarding the normal quantity of methamphetamine associated with personal use. His other sales involved quantities of 2.5 and 2.3 grams of methamphetamine. He has offered no support for his claim that 4.0 grams is not a larger quantity than for personal use and has therefore failed to show that the court's reasoning was clearly erroneous. But even if this reason were found to be erroneous, any one of the other three factors could still be used to justify the sentence and thus resentencing is unnecessary. 1
The second prong requires this court to determine, as a matter of law, whether...
To continue reading
Request your trial
-
In re Cross
...to plead guilty and that but for counsel's failure to properly advise him, he would not have pleaded guilty. State v. McCollum, 88 Wash.App. 977, 982, 947 P.2d 1235 (1997). ¶ 80 Here, Cross's claims fail because there is no evidence that Cross would have refused to enter his Alford plea; th......
-
State v. A.N.J.
...unquestionable serious nature ..., it may be manifestly unjust to hold the defendant to his earlier bargain."); State v. McCollum, 88 Wash.App. 977, 982, 947 P.2d 1235 (1997). ¶ 35 The record establishes that Anderson allowed A.N.J. and his parents to have an erroneous understanding that hi......
-
State v. Bourne, 21597-7-II
...its language is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning." State v. McCollum, 88 Wash.App. 977, 988, 947 P.2d 1235 (1997) (citing State v. Lewis, 86 Wash.App. 716, 717-18, 937 P.2d 1325 (1997)). If a statute is ambiguous, the rule of le......
-
State v. Martinez-Lazo
...(1996). The Strickland test applies to claims of ineffective assistance of counsel arising from plea bargains. State v. McCollum, 88 Wash.App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wash.2d 1035, 980 P.2d 1285 Article 36(1)(b) of the Vienna Convention on Consular Relations provi......