State v. Ortiz

• Decision Date: 15 June 2020
• Docket Number: No. 81363-3-I,81363-3-I
• Parties: STATE OF WASHINGTON, Respondent, v. JUAN ORTIZ, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. JUAN ORTIZ, Appellant.

No. 81363-3-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

June 15, 2020

UNPUBLISHED OPINION

ANDRUS, A.C.J. — After pleading guilty to first degree murder and second degree assault, Juan Ortiz challenges the validity of his plea agreement, contends his guilty plea was involuntary, and argues the trial court abused its discretion in refusing to continue his sentencing hearing to give him time to move to withdraw the plea. In a consolidated personal restraint petition, Ortiz contends he received ineffective assistance of counsel.

We conclude Ortiz's plea agreement did not restrict the trial court's discretion to consider his youth as required by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). We further conclude that Ortiz understood he was forgoing the right to request an exceptional sentence, that the court did not abuse its discretion in refusing to grant a fifth continuance of the sentencing hearing, and that Ortiz has not demonstrated ineffective assistance of counsel. We therefore affirm Ortiz's conviction and sentence and deny his personal restraint petition.

FACTS

In 2010, the State charged Ortiz with first degree murder, first degree assault, and first degree unlawful possession of a firearm. CP 1-2. The State alleged that Dean Salavea was at Juan Zuniga's residence with Zuniga when Ortiz and Naitaalii Toleafoa¹ arrived. Within seconds of their arrival, four to five gun shots rang out. A witness saw Ortiz leave Zuniga's home through the front door, carrying a handgun. Ortiz was 17 years old.

Police responded to the home on May 12, 2010, and found Zuniga dead. He had several gunshot wounds, including what appeared to be an execution-style wound to the back of the head.² Salavea had tried to run, but he succumbed to at least one gunshot wound to the back, which ultimately rendered him paraplegic.

Ortiz fled to Mexico. Over six years later, on August 30, 2016, Ortiz was arrested in Mexico. He was extradited to Pierce County and arraigned on April 5, 2017.

On February 13, 2018, Ortiz entered an Alford³ plea to first degree murder, with a firearm sentencing enhancement, and second degree assault. The plea included a provision relating to the parties' sentencing recommendations: "Statewill recommend high end sentence and defense will recommend low end sentence."

The court reviewed the probable cause declaration and Ortiz's plea statement and found the facts alleged, if proven, would support the charges. After conducting an in-depth colloquy with Ortiz regarding the terms of the plea agreement, the court accepted the guilty plea, finding it was voluntary and made with an understanding of its direct and collateral consequences. The court scheduled Ortiz's sentencing hearing for February 23, 2018.

Defense counsel subsequently requested, and the court granted, four continuances of the sentencing date, to allow further professional evaluation of Ortiz's intellectual capacity. On June 12, 2018, Ortiz—apparently, without consulting with his counsel—noted a motion to withdraw his guilty plea. The court set a hearing on the motion for June 18, 2018, a week before the June 25, 2018 sentencing date. Before the June 18 hearing, Ortiz requested to strike the hearing. No pleadings related to the motion were ever filed.

At the outset of the June 25 sentencing hearing, Ortiz informed his counsel that he again wanted to withdraw his guilty plea. Counsel asked the court to continue the sentencing hearing yet again so he could consult with Ortiz on the request. Counsel indicated some of the reports on Ortiz's intellectual capacity could have spurred Ortiz's desire to withdraw his plea, but without revealing attorney client privileged communications, he could not discuss the matter further at that time. The court asked counsel if the report implicated a lack of intellectual capacity, which could render Ortiz's guilty plea invalid. Counsel assured the courtthat was not the case, stating he would have brought a formal motion if that was a concern. The court denied the continuance, and Ortiz's sentencing hearing proceeded.

At sentencing, the State recommended a high-end sentence based on Ortiz's criminal history and the underlying seriousness of the crimes. As allowed by the plea agreement, defense counsel argued the Houston-Sconiers factors justified a sentence at the low end of the sentencing range. In support of that recommendation, counsel presented evidence of Ortiz's troubled youth, including intellectual disabilities impairing his development and bullying leading to his protection by gang members, one of whom was his older brother.

The court sentenced Ortiz to the mid-range standard sentence for the first degree murder charge—320 months. With the 60-month firearm enhancement, Ortiz was sentenced to 380 months total confinement,⁴ with a mandatory minimum of 20 years confinement and 36 months of community custody.

Ortiz appeals the denial of his request to continue the sentencing hearing, and in a separate personal restraint petition, claims he received ineffective assistance of counsel.

ANALYSIS

Ortiz argues the trial court abused its discretion by denying his request to continue the sentencing hearing, erred in allowing the plea agreement to limit its sentencing discretion under Houston-Sconiers, and erred in finding the pleaagreement to be knowing and voluntary. In his personal restraint petition, Ortiz argues counsel provided ineffective assistance on multiple grounds. We address each argument in turn.

Motion to Continue Sentencing Hearing

Ortiz argues the trial court abused its discretion by denying his motion to continue sentencing so he could file a motion to withdraw his guilty plea. We review a trial court's decision to deny a motion to continue under an abuse of discretion standard. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). The record does not show the court abused its discretion here.

Courts are statutorily required to hold sentencing hearings within 40 court days of a defendant's conviction, unless good cause is shown to extend the time period for conducting the hearing. RCW 9.94A.500(1); CrR 7.1(a)(1). Here, the trial court had already continued Ortiz's sentencing hearing four times. And at the time defense counsel sought a fifth continuance—with no promise that Ortiz would file a motion to withdraw his guilty plea, given the previously stricken hearing—Ortiz was 4 months post-conviction, well beyond the statutory 40 court days.

Additionally, pre-judgment, courts must allow defendants to withdraw guilty pleas whenever it appears the withdrawal is necessary to correct a "manifest injustice." CrR 4.2(f). "A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) counsel was ineffective; or (4) the plea agreement was not kept." State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010). "The injustice must be 'obvious, directly observable, overt, [and] not obscure.'" Id. (alteration in original) (quoting State v.Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). "The defendant's burden when seeking to withdraw a plea is demanding because ample safeguards exist to protect the defendant's rights before the trial court accepts the plea." Id.

In this case, counsel provided no reason to believe a manifest injustice might exist, even telling the court he did not think anything in the professional evaluations rendered Ortiz's plea involuntary or unknowing. Thus, it was not unreasonable for the court to consider Ortiz's second, last minute request to withdraw his guilty plea as "a manipulation, frankly, of the sentencing procedure." The trial court did not abuse its discretion by denying Ortiz's motion to continue the sentencing hearing.⁵

Validity of Plea Agreement

Next, Ortiz argues his plea agreement is invalid under Houston-Sconiers because it limited the trial court's sentencing discretion and did not allow the court to consider Ortiz's youth at the time the crimes were committed. We reject this argument because the plea agreement did not limit the trial court's sentencing discretion. Furthermore, the record demonstrates the trial court exercised its discretion and considered Ortiz's youth when deciding the appropriate sentence.

In Houston-Sconiers, minor defendants were sentenced to over 30 years without the possibility of parole. 188 Wn.2d at 13. The trial court concluded it could not sentence the defendants to less than 30 years because of the firearmenhancement requirements in the Sentencing Reform Act⁶ (SRA). Id. at 13, 20-21. But our Supreme Court disagreed, holding that

sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant . . . . To the extent our state statutes have been interpreted to bar such discretion with regard to juveniles, they are overruled. Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements.

Id. at 21. The court went on to explain:

[I]n exercising full discretion in juvenile sentencing, the court must consider mitigating circumstances related to the defendant's youth—including age and its "hallmark features," such as the juvenile's "immaturity, impetuosity, and failure to appreciate risks and consequences." It must also consider factors like the nature of the juvenile's surrounding environment and family circumstances, the extent of the juvenile's participation in the crime, and "the way familial and peer pressures may have affected him [or her]." And it must consider how youth impacted any legal defense, along with any factors suggesting that the child might be successfully rehabilitated.

Id. at 23 (second alteration in original) (citations omitted) (quoting Miller v. Alabama, 567 U.S. 460, 477, 132 S. Ct. 2455, 2468, 183 L. Ed....