State v. Zhao
| Decision Date | 29 June 2006 |
| Docket Number | No. 76822-6.,76822-6. |
| Citation | 137 P.3d 835,157 Wn.2d 188 |
| Parties | STATE of Washington, Respondent, v. Bao Sheng ZHAO, Appellant. |
| Court | Washington Supreme Court |
John Henry Browne, Law Offices of John Henry Browne PS, Rita Joan Griffith, Attorney at Law, Seattle, for Petitioner/Appellant.
Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, for Appellee/Respondent.
Mark A. Larranaga, Walsh & Larranaga, Seattle, for Amicus Curiae (Wash. Ass'n of Criminal Defense Lawyers).
¶ 1 Bao Sheng Zhao was originally charged with two counts of first degree child molestation. In order to take advantage of a plea bargain, Zhao pleaded guilty to two counts of conspiracy to commit indecent liberties and one count of second degree assault, even though there was no coconspirator. He now claims that he should be allowed to withdraw his plea because there was no factual basis for the conspiracy charges, and that his plea was not knowing, intelligent, or voluntary. We hold that a defendant may plead guilty to amended charges for which there is no factual basis, so long as there exists a factual basis for the original charges and the defendant's plea to the amended charges is knowing, intelligent, and voluntary. Zhao also claims that his counsel's decision not to interview the victims rendered his plea invalid, but because the issue was not raised at the trial court and the record is insufficient to evaluate this claim, we decline to address it. We affirm the Court of Appeals.
¶ 2 Zhao was born and raised in China, and he speaks only Mandarin Chinese. Report of Proceedings (RP) at 9.1 He came to the United States in May 2002 and began working as a cook at a restaurant in Tacoma. In October 2002, Zhao was charged with two counts of child molestation in the first degree based on two separate incidents that occurred in the restaurant's bathroom. Five-year-old K.C. reported that he was molested in the bathroom on August 24, 2002. K.C.'s mother said that she allowed the defendant to keep an eye on K.C. in the bathroom while she paid for the family's meal. Zhao was also accused of molesting six-year-old J.R. on October 16, 2002 while his family was dining in the restaurant.
¶ 3 K.C. told a child interviewer that the person who had touched him was a black man with tattoos and earrings. But he also told the interviewer that the man did not speak English, and K.C.'s mother later identified Zhao as the cook who had gone into the bathroom with her son. J.R. identified Zhao as his perpetrator.
¶ 4 The Organization of Chinese Americans (OCA) hired Robert Freeby to represent Zhao. At all times Zhao and Freeby communicated through one of three Mandarin interpreters: Gail Yu and Alice Yeh, both provided by the OCA, and Gigi Ball, a court-provided interpreter. The prosecutor offered to recommend a special sex offender sentence alternative (SSOSA) if Zhao would plead guilty as charged. Zhao rejected this offer. The prosecutor then offered to amend the charges to two counts of conspiracy to commit indecent liberties and one count of second degree assault, with a sentencing recommendation of 68 months. This offer avoided indeterminate sentencing that, at worst, could have resulted in life in prison. Zhao, while not admitting guilt, took advantage of the State's plea bargain and entered an Alford/Newton plea of guilty to the amended charges.2
¶ 5 On August 4, 2003, the day before the plea, Zhao, Freeby, and Yu reviewed the statement on the plea of guilty. Yu read the statement line-by-line and Freeby frequently interrupted to confirm that Zhao understood. They reviewed the amended charges and their elements, and Freeby explained again that the charges were the result of a compromise. Freeby reviewed every aspect of the plea, including the factual basis for the Alford/Newton plea.
¶ 6 On August 5, 2003, before the plea hearing, Freeby and Zhao reviewed the plea again, this time using Ball as the interpreter. At the hearing, Freeby waived a formal reading of the amended information. Significantly, Freeby stipulated "that the court can rely on the original affidavit of probable cause insofar as it satisfies the elements of the new charges, and of course the court can also rely on the case of In re [Personal Restraint of] Barr, [102 Wash.2d 265, 684 P.2d 712 (1984)] for the basis of accepting the amended information as well." RP (Aug. 5, 2003) at 3.3 During the plea hearing the court asked whether Zhao understood his own statement on the plea of guilty, that he was now charged with two counts of conspiracy to commit indecent liberties by forcible compulsion and one count of assault in the second degree, the maximum and standard range penalties for each charge, that his statement set forth the elements of the charges, that the elements were the things the State would have to prove in a trial, and that the statement set forth the rights that Zhao relinquished with his guilty plea. Zhao affirmed that he understood each of these things. The judge then confirmed that Zhao had reviewed the evidence with Freeby, that he believed there was a substantial likelihood that he would be found guilty, and that having all of that in mind, Zhao wanted to take advantage of the plea bargain offered by the State. Finally, the trial judge confirmed that the plea was not the result of threats or promises. Zhao pleaded guilty to each count. The trial court found:
that there is a factual basis for the plea to this charge and/or to a more serious charge based upon the reading of the declaration for determination of probable cause dated October 28th, 2002 . . . . The court finds further that the defendant understands the nature of the charge and the consequences of the plea, and that it is a knowing, voluntary, and intelligent plea, and the court finds all of that as to each of these three counts.
RP (Aug. 5, 2003) (emphasis added).
¶ 7 On August 7, 2003, Freeby was told by the president of the OCA that Zhao wished to withdraw his plea and obtain new counsel. After conferring with his client, Freeby moved to withdraw. Zhao's new attorney then filed a motion to withdraw the plea. Zhao's new counsel argued that Zhao did not understand the information provided to him at the time he pleaded guilty, and he was not informed of the facts underlying the charges against him. In a declaration, Zhao alleged that Freeby had instructed him to answer "yes" to all of the judge's questions because if he did not, he would be sentenced to life in prison. Clerk's Papers (CP) at 30. Zhao also alleged that Freeby told him he had no option but to plead guilty. Id. He claimed he was never informed of the underlying facts, including the fact that one of the victims had described the perpetrator as a black man. Zhao asserted he would not have agreed to the plea bargain had he understood the underlying facts or the consequences.
¶ 8 The trial judge conducted a two-day hearing on the motion to withdraw, using an entirely new interpreter. At the hearing Zhao's new counsel argued that "despite all of the amazing efforts" on Freeby's part, Zhao did not make a knowing, intelligent and voluntary plea. RP at 143. He argued that while Barr allows a compromise plea so long as there are sufficient facts to support the original charge, after our decisions in In re Personal Restraint of Hews (Hews II), 108 Wash.2d 579, 741 P.2d 983 (1987) and In re Personal Restraint of Thompson, 141 Wash.2d 712, 10 P.3d 380 (2000), the court must engage the defendant in a colloquy regarding the lack of factual basis for the amended charge in order to have a valid plea.
¶ 9 At the hearing, Freeby testified on behalf of the State. He explained that at each meeting he and Zhao communicated through an interpreter. Freeby frequently confirmed Zhao's understanding by asking Zhao whether he understood and by making Zhao relate relevant concepts back to him. While there were times when concepts had to be explained more than once, Freeby reported that he and Zhao did not have difficulty communicating through the interpreters.4 The interpreters read to Zhao the entire discovery (including police reports, a transcript of the interview with K.C., and charging information) verbatim. Freeby and Zhao also discussed in detail K.C.'s identification of the perpetrator as a black male with tattoos and earrings, and this was taken into account when they weighed the strength of the case. Freeby reported talking to Zhao about the possibility of interviewing the child witnesses. He explained to Zhao that the prosecutor's office had a written policy that "if you interview an alleged victim in a sexual misconduct case, that all deals are off and the State is not going to make any kind of recommendation for any kind of SSOSA, if that's a potential resolution in the case." RP at 91. Freeby testified that he had not interviewed the victims because of this policy.
¶ 10 Freeby testified further that when Zhao questioned the conspiracy charges and asserted that he was not guilty of conspiracy, Freeby explained that the offer was a result of a compromise and that the attorneys wanted to use the amended charges to avoid indeterminate review and achieve a particular sentence. Significantly, Freeby testified that he believed "Zhao could enter a guilty plea to charges that he technically didn't commit under the premise of pleading to those charges pursuant to a plea bargain," and that "the court had the authority to accept that based on [Barr]." Id. at 110. Freeby specifically testified that he had explained to Zhao that he was pleading guilty to charges for which there was no factual basis. A defense investigator and the translators confirmed Freeby's account of his meetings with Zhao.
¶ 11 At the hearing Zhao testified that no one ever told him what conspiracy meant, that Yu was unclear in her interpretation, and that she told him to do what his...
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