State v. SM

• Decision Date: 14 April 2000
• Docket Number: No. 23458-1-II.,23458-1-II.
• Citation: 996 P.2d 1111,100 Wash.App. 401
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. S.M., Appellant.

996 P.2d 1111

100 Wash.App. 401

STATE of Washington, Respondent, v. S.M., Appellant.

No. 23458-1-II.

Court of Appeals of Washington, Division 2.

April 14, 2000.

Melanie Paige Romo, Cowlitz Co. Pros. Atty., Longview, for Respondent.

Brady R. Johnson, Seattle, for Appellant.

SEINFELD, J.

S.M. pleaded guilty as charged to committing three counts of first degree child rape. He later moved to withdraw his plea, arguing ineffective assistance of counsel. Because S.M.'s attorney delegated the task of advising S.M. to his wife/legal assistant and because her advice was both incomplete and misleading, we agree with S.M.'s contentions and, thus, reverse and remand.

FACTS

On December 4, 1996, the State charged S.M. with three counts of rape of a child in the first degree.¹ The State alleged that in the spring of 1994, when S.M. was 12 years old, he had sexual intercourse with his then 9-year-old brother. The Cowlitz County Juvenile Court appointed counsel for S.M.

On December 9, S.M., accompanied by his mother and by a school counselor friend, went to appointed counsel's office where they met with counsel's wife who also worked as his legal assistant. At the end of this meeting, S.M. signed a statement of juvenile on plea of guilty, which stated: "In Cowlitz County in the Spring of 1994, I had sexual contact with my Brother who is age 10 in 1994. It happened three times."

Eight days later, on December 17, S.M. appeared before the juvenile court for entry of his guilty plea. His only contact with appointed counsel before entry of the plea was a brief meeting immediately before the court hearing. Counsel did not discuss the substance of the plea; he merely explained the hearing procedure.

At the hearing, the prosecutor informed the court that the charges involved anal intercourse with S.M.'s brother. After the court asked trial counsel a few brief questions about the ages of the victim and the defendant when the offenses occurred, the court read the charges. The charges stated that S.M. had engaged in sexual intercourse with a John Doe on three separate occasions. Thereafter, the following colloquy took place:

Judge: First of all, do you know what the word sexual intercourse means?

[S.M.]: Yes, sir.

Judge: And do you know who John Doe is?

[S.M.]: Yes, sir.

Judge: All right. As to count one how do you plea [sic]? [S.M.]: Guilty.

Judge: As to count two how do you plea [sic]?

[S.M.]: Guilty.

Judge: And as to count three?

[S.M.]: Guilty.

Clerk's Papers at 22.

The juvenile court's only other question of S.M. related to the impact of transferring jurisdiction to Clark County, where S.M. resided. The court then accepted S.M.'s plea.

In February 1998, after retaining new counsel, S.M. moved to withdraw his guilty plea. He claimed that he was not guilty of the offense charged in the information and that the plea was entered without effective assistance of counsel and without an understanding of the effect of the plea or its direct consequences.

In support of his motion, S.M. included his own affidavit and one from his mother. They both stated that appointed counsel was not present when S.M. signed the plea form; that no one had reviewed the plea form with S.M or discussed other options; that S.M. was affirmatively misinformed that he would not have to register as a sex offender if he pleaded guilty; and that S.M. would not have pleaded guilty if he had known he would have to register or that there were other options.

At a subsequent hearing on the motion, the legal assistant testified as to what she told S.M., his mother, and the counselor during her meeting with them. She said that she reviewed the police report and the information, explained the charges, and described the trial process as follows:

I explain to them that he can go to a trial and that at a trial his brother would be called [by] the prosecutor to testify as to what he had said occurred, and that other people might be called to testify, you know, you sometimes call the police officers, the person that the information that was disclosed to, and that he had the right to have people testify, too, and he can testify and tell the judge that — his side of the story, if he — if he didn't believe that he did what his brother had accused of him, then he could tell the judge his side of the story and the judge would listen to the witnesses and listen to both sides and then decide whether or not he believed one side more than he believed the other side. And then the judge would make his decision.

Report of Proceedings at 30.

On cross-examination, the legal assistant further testified about her explanation of the trial process:

Q: Okay. Did you explain to him the burden of proof, that he did not have to testify at all and could still be acquitted?

A: I told him that — I explained to him that he could testify to the Court as to what his position was and what occurred that his brother disclosed and his brother would testify and the judge would made a decision as to which of the parties the judge believed was telling — more likely telling the truth.

Q: But did you tell him that he didn't have to testify at all and that his refusal to testify could not be held against him in any way?

A: I told him he didn't have to testify; I don't believe I — I don't know if I told him his refusal would not be held against him.

Q: Now you said —

A: I don't know if I said that or not.[²]

Q: Okay, you've said a number of times that he could testify if he wanted to and that his brother would testify and the judge would make a decision as to who [sic] he believed more —

A: Um-hum.

Q: Did you talk about the burden of proof beyond a reasonable doubt[?]

A: Well, the way I explained it is that the judge would determine, after listening to everybody, which one he believed was more likely telling the truth than the other.

Q: Did you describe the difference between a preponderance of the evidence, which is what that characterization sounds like, and beyond a reasonable doubt?

A: Not as you state it.

Q: At all?

A: Well, I just — I told him that the judge would listen to the information and if he believed that the brother was telling the truth and that it was more likely that what he was telling the truth was correct, rather than what [S.M.] was saying, the judge would — could find that he was guilty. If the judge believed [S.M.'s] position and the witnesses', he could find [S.M.] not to be guilty.

Report of Proceedings at 42-44.

The legal assistant explained that she paraphrased the plea form when she reviewed it with S.M. because "kids don't generally understand all of the legal [ese] that's contained in the plea form." She testified that, although she did not read the form to him word-for-word, it was her "standard practice" to discuss all the information contained in the form with the defendant.

She also explained to S.M. that if the court found him guilty or if he pleaded guilty, he would have to register as a sex offender, but that if he was given the opportunity to participate in the Special Sex Offender Disposition Alternative (SSODA) and successfully completed it, he could go back into court and ask it to discontinue his obligation to register. She said that S.M. stated he knew what he did was wrong and wanted to plead guilty in order to be considered for the SSODA program.

She then told S.M. that his statement on plea of guilty needed to name the county in which the offense occurred, the time period it occurred, what he did, and the name and age of the victim. She testified that when S.M. received the plea form, he "passed through it and signed the — filled in the information that was required and signed" it. She did not review S.M.'s statement after he wrote it, but she opined that the boy understood the charges and the process of pleading guilty.

The school counselor, who was present at the entire meeting between S.M. and the legal assistant, stated that the legal assistant told them that if S.M. successfully completed the SSODA program, he would not have to register as a sex offender, but if he did not, he might have to continue registering for life. The counselor further testified that the legal assistant told S.M. that because he had admitted to the charges, he would have to plead guilty; the counselor did not recall any discussion about the option of going to trial.

Appointed counsel also testified at the hearing. He confirmed that he met with S.M. only once, just before entering the courtroom for the plea hearing, and that he did not review the plea form with S.M., but he merely explained the plea hearing procedure. He also explained that he had reviewed the police report with his legal assistant before her meeting with S.M. and had highlighted the materials he considered "extremely important to be reviewed with the client," including the elements of the crime. He told his legal assistant to find out whether S.M. admitted to doing the things the police report said he did. But he did not give her specific instructions about reviewing the plea form because "she is skilled enough, professional enough, that she knows what she needs to go through."

On cross-examination, appointed counsel acknowledged that although the record contained references to the victim having told false stories about S.M., he did not investigate the charges. Rather, appointed counsel stated: "Once [S.M.] admitted what he had done, his brother's credibility, particularly when [S.M.] confirmed that what the brother had said was true, there was no reason at that point to do it. This is not an adult criminal charge." Appointed counsel also acknowledged that he did not discuss with S.M. the possibility of pleading to a lesser offense, concluding that under the circumstances, "it would be a waste of time and effort to try to negotiate something less."

The trial court denied S.M.'s motion to withdraw his plea, concluding that the plea form he signed adequately explained the rights he was...