State Of Washington v. Michael P. Haxton ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 79708-5-I
Respondent, ) DIVISION ONE
v. ) UNPUBLISHED OPINION
MICHAEL PAUL HAXTON, )
Appellant. )
) FILED: April 15, 2019
HAzELRIGG-HERNANDEz, J. — Michael P. Haxton pled guilty to one count of
attempted rape of a child in the second degree. He seeks reversal, arguing that
he should have been allowed to withdraw his guilty plea under CrR 4.2(f) because
he was affirmatively misinformed of the maximum sentence that he faced at trial
by his assigned counsel. In a Statement of Additional Grounds for Review, he
argues that counsel was ineffective at the hearing on the motion to withdraw
because he failed to introduce certain evidence. Because Haxton has not carried
his burden to show manifest injustice resulted from the plea and cannot show
prejudice from counsel’s performance, we affirm.
FACTS
On September 7, 2016, Michael P. Haxton began communicating with a
woman who he believed was the mother of three young children ages 6, 11, and
12. He indicated that he was interested in participating in sexual acts with the
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children and described specific acts that he planned to carry out. He said that he
wanted to meet the children and that he would bring gifts including candy, nail
polish, a stuffed animal, and a ball. Haxton came to the address that the woman
had told him was her residence and was placed under arrest. He had candy, nail
polish, a stuffed animal, and a ball in his car. Haxton was charged with two counts
of attempted rape of a child in the first degree and one count of attempted rape of
a child in the second degree.
At the change of plea hearing on June 5, 2017, the court asked Haxton if
he had gone over the Statement of Defendant on Plea of Guilty, prosecutor’s
statement of criminal history, and offender score sheet with his attorney, Robert
Quillian. Haxton responded that he had. The court informed Haxton that the
standard sentencing range would be 58.5 months to 76.5 months to life
imprisonment and he indicated he understood. He also indicated the he
understood that the other two charges would be dismissed if the plea was
accepted. The court clarified that the State was recommending a sentence of 60
months to life imprisonment on the remaining count and Haxton indicated that he
understood.
Haxton then entered an Alford1 plea of guilty to Count 3, attempted rape of
a child in the second degree. The court asked if he was making the plea freely
and voluntarily and Haxton responded that he was. The court noted that he had
the assistance of counsel and had made a free and voluntary plea of guilty to Count
3, then found Haxton guilty as charged. The State then moved to dismiss the other
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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two counts and the court granted the motion. The Statement of Defendant on Plea
of Guilty to Sex Offense, which included the standard sentence range of 58.5 to
76.5 months to life for count three and the prosecutor’s sentence recommendation
of 60 months to life, was signed by Haxton and filed the same day. The
Prosecutor’s Statement of Criminal History and attached offender score sheet, also
signed by Haxton and filed the same day, showed an offender score of 0 and
circled the corresponding handwritten sentence range of “58.5—76.5.”
On July 17, 2017, Haxton filed a pro se motion to withdraw his plea with no
attached briefing. Quillian withdrew as Haxton’s counsel on July 31, 2017. His
second attorney, A. Christian Cabrera, filed a motion to withdraw the guilty plea
and supporting memorandum on October 17, 2017. This motion argued that
Haxton should be allowed to withdraw his plea of guilty because it was necessary
to correct a manifest injustice. Specifically, Haxton claimed that he had been
denied effective assistance of counsel because his first attorney, Quillian, failed to
give him adequate legal advice, failed to inform him of the sentence he faced at
trial, failed to properly investigate his case, and coerced him into pleading guilty.
Therefore, Haxton argued that he did not enter the guilty plea knowingly,
voluntarily, and intelligently and he should be permitted to withdraw the plea.
Haxton filed another pro se motion to withdraw the plea on October 25,
2017, on the grounds that he had received ineffective assistance of counsel and
the plea was not voluntary because Quillian had subjected him to extreme levels
of duress. In an attached handwritten affidavit, Haxton stated that Quillian had
miscalculated his offender score and told him that he would be sentenced to 20 to
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22 years in prison if he was convicted on all counts. Haxton also alleged that
Quillian refused to investigate the “mechanism that was created within the Net
Nanny operation that allows officers to systematically frame certain individuals.”
Haxton alleged that Quillian failed to investigate his reports of “tampering with
multiple pieces of evidence in an obvious manner, obvious instances of perjury,
and the introduction of fraudulent document [sic] in court.” Haxton claimed that
Quillian ‘constantly laughed at [him] for [his] fantasies in practically every meeting
[they] ever had,” subjected him to a competency evaluation “to intimidate [him] and
to damage [his] credibility,” and lied to him repeatedly. In a subsequent letter to
the court, Haxton alleged that the motion filed by Cabrera was insufficient and did
not accurately reflect his arguments as to why the court should permit the plea to
be withdrawn. Cabrera was permitted to withdraw as Haxton’s counsel after
advising the court of a breakdown in communication.
On December 18, 2017, the court held a hearing on the motion at which
Haxton was represented by his third attorney, Kevin Griffin. Griffin asked the court
to find that a manifest injustice occurred or resulted when Haxton entered a plea
of guilty because he had not received effective assistance of counsel and the plea
was not made voluntarily. Haxton testified that the prospect of facing over 20 years
in prison if he was convicted of all three counts at trial was “a big factor” in his
decision to plead guilty. He testified that he would have felt differently about the
plea offer if he had known he was actually facing 10 to 13.5 years if convicted at
trial “because of the fact that it’s an indeterminate sentence and that if [he] did not
pass the indeterminate sentencing review once with the State’s deal, it would be
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ten years, which is . . . in the range of the sentence if [he] had gone to trial.” He
also testified that he did not feel that his plea was voluntary because he felt that
he had no other option but to plead guilty. Haxton testified that he had never seen
the written plea offer before but he “knew what the plea deal was.”
Haxton said that he asked Quillian to hire an investigator to examine a
discrepancy between the advertisement in the discovery packet and the one to
which he had responded. He felt that this was crucial to his defense strategy.
However, Haxton said that Quillian refused to hire an investigator, claiming that
there was not time to conduct the investigation before the deadline to accept the
plea offer. He testified that Quillian told him that the State could withdraw the plea
offer if Haxton asked for substitute counsel.
The trial court denied Haxton’s motion to withdraw his guilty plea. The court
noted that “[ut would have been nice to have Mr. Quillian’s testimony here today,
but the Court was left with only Mr. Haxton.” In its verbal ruling, the court noted:
The Court is skeptical that Mr. Quillian would have missed the range
having been provided with the plea offer by the State. I am not
prepared to make a finding that he did not. I am not prepared to make
a finding whether he did or he didn’t make that representation. I think
there are reasons to question both the recollection and the
motivations of Mr. Haxton in his testimony today but not sufficient to
disregard everything Mr. Haxton said. Mr. Haxton has testified about
other aspects in a way that does not indicate this is a fabrication, but
even without making a finding as to whether Mr. Quillian did or didn’t
make that representation, the Court concludes that there has been
an insufficient showing that Mr. Haxton would not have pled guilty if
he had been told 13 years instead of 20. Again, that is based both
on the Court’s evaluation of Exhibit 2, the testimony from Mr. Haxton,
as well as the delta between 13 years and 60 months, all in the
context of course of whether or not the bar of manifest injustice has
been reached.
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The court entered written findings of fact and conclusions of law, including
the following:
16. The defendant has alleged that Mr. Quillian may have provided
him with an incorrect possible sentence range if convicted as
originally charged. The court makes no finding that Mr. Quillian did,
or did not, provide incorrect information. The court is skeptical that
Mr. Quillian would have misrepresented the range given the plea
offer documentation he possessed at the time.
17. Based on the court’s observations of the content and demeanor
of the defendant while testifying, there are reasons to question his
recollection and motivations.
19. The gap between the sentence range that the defendant stated
Mr. Quillian provided him and the actual sentence range is not large
enough to demonstrate that the defendant would not have entered
the guilty plea.
20. There has been an insufficient showing that the defendant would
not have entered the guilty plea with the accurate information,
assuming, without deciding, that the information was incorrect.
Haxton was sentenced to an indeterminate sentence of 60 months to life
imprisonment. He timely appealed.
DISCUSSION
Haxton contends that the court erred in denying his motion to withdraw his
guilty plea because he received ineffective assistance of counsel from Quillian and
his plea was not voluntary. In a Statement of Additional Grounds for Review, he
also contends that he was denied effective assistance of counsel when Griffin
failed to introduce certain evidence at the hearing on the motion. Because he
cannot show a manifest injustice resulted from his plea of guilty or prejudice from
Griffin’s performance, we affirm.
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Motion to Withdraw Plea of Guilty
“Due process requires that a defendant’s guilty plea be knowing, voluntary,
and intelligent.” State v. Mendoza, 157 Wash. 2d 582, 587, 141 P.3d 49 (2006). A
defendant who enters a guilty plea waives a number of important constitutional
rights in doing so, such as the right to a jury trial, the right to confront accusers,
and the privilege against self-incrimination. State v. Branch, 129 Wash. 2d 635, 642,
919 P.2d 1228 (1996) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct.
1709, 23 L. Ed. 2d 274 (1969)). A trial court shall not accept a plea of guilty that is
not made voluntarily, competently, and with an understanding of the nature of the
charge and the consequences of the plea. CrR 4.2(d).
Motions to withdraw a guilty plea are usually reviewed for abuse of
discretion. State v. A.N.J., 168 Wash. 2d 91, 106, 225 P.3d 956 (2010). However,
when the motion is based on ineffective assistance of counsel stemming from
claimed constitutional error, we review the denial de novo. ki. at 109; State v.
Buckman, 190 Wash. 2d 51, 57, 409 P.3d 193 (2018).
Trial courts must allow a defendant to withdraw a guilty plea “whenever it
appears that the withdrawal is necessary to correct a manifest injustice.” CrR
4.2(f). “A manifest injustice’ is ‘an injustice that is obvious, directly observable,
overt, and not obscure.” State v. Saas, 118 Wash. 2d 37, 42, 820 P.2d 505 (1991)
(quoting State v. Taylor, 83 Wash. 2d 594, 596, 521 P.2d 699 (1974)). The
Washington Supreme Court has found that a manifest injustice results where a
defendant was denied effective counsel, the plea was not ratified by the defendant,
the plea was involuntary, or the plea agreement was not kept by the prosecution.
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State v. Wakefield, 130 Wash. 2d 464, 472, 925 P.2d 183 (1996) (citing Saas, 118
Wash. 2d at 42). A defendant who seeks to withdraw a plea of guilty plea bears the
burden to meet the “demanding standard” imposed by CrR 4.2(f). Saas, 118
Wash. 2d at 42 (citing Taylor, 83 Wash. 2d at 596).
A. Voluntariness
Haxton contends that his plea of guilty was invalid because it was based on
affirmative misinformation that he received from Quillian about the consequences
he faced at trial. A plea is knowing and voluntary only when the defendant
understands the consequences of pleading guilty, including possible sentencing
consequences. Buckman, 190 Wash. 2d at 59. A defendant’s signature on a plea
statement is strong prima facie evidence of a plea’s voluntariness. Branch, 129
Wash. 2d at 642, 642 n.2. “When [a] judge goes on to inquire orally of the defendant
and satisfies himself on the record of the existence of the various criteria of
voluntariness, the presumption of voluntariness is well nigh irrefutable.” ki. at 642
n.2 (quoting State v. Perez, 33 Wash. App. 258, 262, 654 P.2d 708 (1982)).
Something more than a defendant’s “bare allegation” is required to overcome this
highly persuasive evidence of voluntariness. State v. Osborne, 102 Wash. 2d 87, 97,
684 P.2d 683 (1984).
A plea of guilty is involuntary when the defendant has received affirmative
misinformation about the sentencing consequences of the plea. See Buckman,
190 Wash. 2d at 59. In State v. Buckman, the Supreme Court concluded that the
defendant’s guilty plea was involuntary because he was misinformed by defense
counsel, the prosecutor, and the judge that he was facing life imprisonment if he
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lost at trial when the actual maximum sentence he faced was 114 months
imprisonment. ~ at 58. The State listed the erroneous maximum sentence on the
plea statement and the court informed the defendant of the incorrect maximum
during the plea colloquy. j4~ at 57. The Supreme Court found that Buckman was
“plainly misinformed” about the maximum sentence he faced at trial. j4. at 59.
Here, Haxton has not proven that he was affirmatively misinformed about
the consequences of his guilty plea. Although he testified at the hearing on the
motion that Quillian told him he faced a maximum sentence of over 20 years if he
went to trial on all three counts, the plea statement that he signed listed the correct
sentencing range of 10 to 13.5 years and he specifically indicated to the court
during the plea colloquy that he understood the sentencing range to be 10 to 13.5
years. The trial court did not find that Quillian had misinformed Haxton and noted
that it had reason to question the credibility of Haxton’s testimony. Haxton has not
presented any more evidence than a “bare allegation” that he was misinformed,
which is not sufficient to carry his burden under CrR 4.2(f).
B. Ineffective Assistance of Quillian
Haxton also argues that the affirmative misrepresentations about the
consequences of his guilty plea constituted ineffective assistance of counsel such
that a manifest injustice resulted. The test for ineffective assistance of counsel
during the plea process is the same as that detailed in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re Cross, 180 Wash. 2d
664, 705, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory,
192 Wash. 2d 1, 427 P.3d 621 (2018). A defendant must show both deficient
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performance by counsel and resulting prejudice in order to prevail on a claim of
ineffective assistance of counsel. Strickland, 466 U.S. at 687. When alleging
ineffective assistance of counsel ‘[i]n the context of a guilty plea, the defendant
thust show that counsel failed to substantially assist him in deciding whether to
plead guilty and that but for counsel’s failure to properly advise him, he would not
have pleaded guilty.” Cross, 180 Wash. 2d at 705—06 (citing State v. McCollum, 88
Wn. App 977, 982, 947 R2~’ 1235 (1997)). “Effective assistance of counsel
includes assisting the defendant in making an informed decision as to whether to
plead guilty orto proceed to trial.” A.N.J., 168 Wash. 2d at 111. Representation by
counsel is presumed effective. State v. McFarland, 127 Wash. 2d 322, 336, 899 P.2d
1251 (1995).
Here, Haxton alleges that he was denied effective assistance of counsel
because Quillian affirmatively misinformed him of the sentencing range he faced if
convicted at trial. However, as noted above, he has not presented sufficient
evidence that he was actually misinformed about the sentencing consequences.
Accordingly, he has not shown deficient performance by Quillian and his claim of
ineffective assistance of counsel fails. Because Haxton was not able to show that
withdrawal of his guilty plea was necessary to correct a manifest injustice, the trial
court did not err in denying his motion.
II. Ineffective Assistance of Griffin
In a Statement of Additional Grounds, Haxton contends that his third
defense attorney, Griffin, provided ineffective assistance by failing to introduce
certain items at the evidentiary hearing on the motion to withdraw the plea.
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Specifically, Haxton contends that Griffin should have entered the report of his first
competency evaluation and the transcript of a jail call between Haxton and his
mother as exhibits in support of his motion.
As noted above, an appellant must show that counsel’s performance was
deficient and that he was prejudiced by this deficient performance. Strickland, 466
U.S. at 687. Again, there is a strong presumption that counsel’s performance was
not deficient. McFarland, 127 Wash. 2d at 336. An appellant can rebut this
presumption if there was no conceivable trial tactic explaining counsel’s
performance. State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004).
A. Competency Evaluation
Haxton first contends that Griffin should have introduced the report of his
first competency evaluation to support his motion to withdraw the plea. In this
report, the evaluator states that Haxton believed the possible penalty if he was
convicted at trial of all three charges could be around 20 years. The report was
created and filed with the court on February 15, 2017. Haxton entered the guilty
plea on June 5, 2017. The written motion to withdraw the plea submitted by
Cabrera stated the defendant relied on the court file in support of the motion.
Because the report was in the file and the motion stated that it relied on the
file for support, the court was free to consider the contents of the competency
evaluation. Griffin’s failure to specifically draw the court’s attention to this
document does not appear to rise to the level of deficient performance.
Furthermore, Haxton cannot show that he was prejudiced by this decision. It
seems unlikely that the court would have been swayed by evidence that Haxton
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had stated the erroneous sentencing range to the evaluator four months before he
entered the guilty plea. This evidence does not provide proof that he was
affirmatively misinformed of the accurate sentencing range. Therefore, Haxton’s
claim of ineffective assistance of counsel on this basis fails.
B. Call Transcript
Haxton also contends that Griffin was ineffective in failing to introduce the
transcript of a recorded jail call between Haxton and his mother. The transcript of
this call is not part of the record on review. Haxton states in his Statement of
Additional Grounds for Review that he told his mother during this call that if he lost
at trial he would be sentenced to 20 to 22 years. He says this call occurred before
he entered the plea of guilty but does not give a specific date.
Similarly, Haxton cannot show that he was prejudiced by counsel’s failure
to offer this evidence as an exhibit in support of the motion to withdraw the plea.
This transcript would not have proven that Quillian affirmatively misinformed
Haxton of the correct sentencing range. The court would still have been left with
Haxton’s bare allegations that he had been misinformed. Accordingly, Haxton’s
second ineffective assistance claim also fails.
We affirm.
WE CONCUR:
I _____
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