State Of Washington v. Kelsey T. Phillips ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
April 20, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53938-1-II
(Consolidated with 53948-9-II)
Respondent,
v.
KELSEY TYRELL PHILLIPS, UNPUBLISHED OPINION
Appellant.
SUTTON, A.C.J. — Kelsey Tyrell Phillips appeals the denial of his motion to withdraw his
guilty pleas to two separate sets of charges. He argues that (1) his guilty pleas were not knowing,
intelligent, and voluntary because he was misadvised about the maximum penalties for his
offenses, and (2) the trial court abused its discretion in denying his pre-sentence motion to
withdraw his guilty pleas based on ineffective assistance of counsel. Because Phillips was properly
advised of the statutory sentencing maximum for his offenses and the trial court did not abuse its
discretion when it concluded that Phillips’s counsel’s representation was not deficient, we affirm.
FACTS
I. CRIMES AND ORIGINAL CHARGES
On December 8, 2016, Juan and Edgardo Arroyo were at a gas station when they observed
a station wagon pursuing a red sedan through the parking lot. The Arroyos followed the vehicles.
When they saw the station wagon blocking the red sedan from leaving a parking lot, Edgardo
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Arroyo got out of his vehicle and asked if everything was alright. The driver of the station wagon
got out of the vehicle, shot Edgardo Arroyo, and fled the scene in the station wagon.
Officers later located the station wagon and detained Shamille Bullard. According to the
statement of probable cause, Bullard initially “denied knowing anything about the shooting.”
Clerk’s Papers (CP) at 95. But he later asserted that he knew who had done the shooting despite
maintaining that he (Bullard) was not present during the shooting. Finally, Bullard admitted that
he, Phillips, and Demetrius Crawford had been in the station wagon and stated that Phillips shot
Edgardo Arroyo.
On January 8, 2017, Bullard, Crawford, Phillips, and Tatiana Isaacs-Jackson were involved
in a retaliatory shooting incident that occurred at an apartment complex. The four were in a car,
and at least one of them shot into another vehicle containing four people. According to the
statement of probable cause, after his arrest Bullard initially denied being present at the time of
the shooting, but he later admitted he was there and implicated Crawford and Phillips as the
shooters.
On January 25, the State charged Phillips with drive-by shooting and four counts of first
degree assault based on the January 8, 2017 incident (the retaliatory shooting charges).1 Sunni Ko
was appointed as Phillips’s counsel.
1
Pierce County Superior Court cause number 17-1-00338-9.
2
No. 53938-1-II
(Consol. with 53948-9-II)
On March 10, the State charged Phillips with attempted second degree murder, first degree
assault, and drive-by shooting based on the December 8, 2016 incident (the Arroyo shooting
charges).2 Phillips retained Ko as counsel in this case. Just over a year later, at the State’s request,
the trial court dismissed the Arroyo shooting charges without prejudice to allow for additional
investigation.
II. GUILTY PLEAS
A. PLEAS TO RETALIATORY SHOOTING CHARGES
On April 3, 2018, the State amended the retaliatory shooting charges, and Phillips pled
guilty to first degree assault with a deadly weapon sentencing enhancement and two counts of
second degree assault, one with a deadly weapon sentencing enhancement.3 The plea statement
advised Phillips of the standard sentencing ranges and statutory maximums for each offense. The
plea statement also advised Phillips of the limited circumstances under which the trial court could
impose an exceptional sentence outside the standard range should the court decide not to follow
the parties’ sentencing recommendation. Phillips signed the plea statement, which included a
statement asserting that Ko had “discussed” the plea statement with him and that he understood it.
CP at 18.
During the plea colloquy, the trial court confirmed that Phillips had reviewed the plea
documents with his counsel, that his counsel had answered all of his questions about the plea, and
2
Pierce County Superior Court cause number 17-1-00980-8.
3
In the same plea statement, Phillips also pled guilty to separate, unrelated charge of second degree
retail theft. Phillips does not raise any issues related to that part of the plea.
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that he understood the plea statement. The trial court then advised Phillips of the standard ranges
and statutory maximums for each offense and of the length of the enhancements. When the court
asked him if he “underst[oo]d the sentences,” Phillips responded that he did. Verbatim Report of
Proceedings (VRP) (Apr. 3, 2018) at 9. Phillips also confirmed that he understood that the court
did not have to follow the sentencing recommendation. The court then reviewed the sentencing
recommendation with Phillips and asked Phillips if he had any questions about the
recommendation; Phillips did not have any questions.
The court next reviewed Phillips’s plea statement, and Phillips agreed that it was “a true
and correct statement of what [he] did that [made him] guilty of the three crimes” charged under
that cause number. VRP (Apr. 3, 2018) at 15. The court found a factual basis for the pleas, verified
that no one was forcing or threatening Phillips into entering the pleas, and accepted the guilty
pleas.
B. PLEA TO THE ARROYO SHOOTING CHARGE
More than a month after Phillips pled guilty to the retaliatory shooting charges, but before
Phillips had been sentenced for those convictions, the State filed an amended information for the
Arroyo shooting incident charging Phillips with one count of first degree assault.4 Phillips pled
guilty to the amended charge.
The plea statement for the Arroyo shooting charge advised Phillips of the standard
sentencing range and statutory maximum for the first degree assault charge. The plea statement
4
The State refiled the charge after further investigation, during which it found additional evidence
based on Phillips’s social media postings on Facebook.
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also advised Phillips that the standard range was based on the assumption that he would be
sentenced for the retaliatory shooting convictions and the Arroyo shooting convictions at the same
time. It further stated that Phillips understood that this new charge would increase his offender
scores and standard ranges with respect to the charges to which he had already pled. Additionally,
as in the plea statement for the retaliatory shooting, the plea statement advised Phillips of the
limited circumstances under which the trial court could impose an exceptional sentence outside
the standard range.
During the plea colloquy, the trial court confirmed that Phillips had reviewed the plea
documents with his counsel, that his counsel had answered all of his questions about the plea, and
that he understood the plea statement. The trial court then verified that Phillips understood the
charge, the maximum sentence, the standard range, and that the trial court was not required to
follow the sentencing recommendation.
The court next reviewed the plea statement, and Phillips agreed that this was a true and
correct statement of what he had done that made him guilty. Phillips stated that he was making
his plea freely and voluntarily, that he had not been forced or threatened or promised anything in
return for the plea. The court accepted the guilty plea, finding that there was a factual basis for
the plea, that the plea was “being made freely and voluntarily,” and that Phillips understood his
rights and the consequences of the plea. VRP (May 21, 2018) at 34.
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III. MOTIONS TO WITHDRAW GUILTY PLEAS
Before sentencing, Phillips moved to withdraw his guilty pleas to both sets of charges based
on alleged ineffective assistance of counsel.5 Phillips claimed that Ko had pressured him into
pleading guilty and agreeing to the factual statements in the plea statements and that Ko had failed
to inform him of “exculpatory statements” that she was aware of before he entered his pleas.6 CP
at 24, 118.
In his motions and supporting declarations, Phillips asserted that after he had entered his
guilty pleas, he learned for the first time that some of the co-defendants, victims, and witnesses
had made contradictory or potentially exculpatory statements about his (Phillips’s) involvement in
both incidents. He claimed that he obtained this new information from his mother after he had
entered his pleas. Phillips asserted that had he known about these statements and had he not been
pressured by Ko to accept the factual statements she had drafted, he would not have pled guilty.
At the hearing on the motion, Phillips testified that he wanted to withdraw his pleas because
he had learned about statements “by victims,” co-defendants, and witnesses regarding “what
exactly they said about the case and what actually happened.” VRP (June 18, 2019) at 8-9. Phillips
admitted to having reviewed the probable cause declarations before entering his pleas, but he
asserted that he did not see the complete statements from the police reports until after he entered
his guilty pleas and that he got this additional information from his mother. Phillips also stated
5
Phillips did not move to withdraw his plea to the second degree retail theft.
6
Phillips did not assert that he had been misadvised about the sentencing consequences.
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that he would not have chosen to plead guilty had he known about the statements he discovered
after entering his pleas.
Phillips testified that he learned from police statements or from transcripts from the State’s
or Ko’s interviews that there were some potentially exculpatory statements by the victims in both
cases and other witnesses in both cases suggesting that he was not the shooter in both cases. But
he admitted that some of these statements were in the statements of probable cause that
accompanied the informations, and he was not clear about which interview transcripts he was
referring to.7
Ko, who had withdrawn as Phillips’s counsel when he chose to move to withdraw his pleas,
also testified at the motion hearing. She testified that when she was representing Phillips, she felt
that he had more trust in his mother, so she (Ko) communicated with his mother by email and
copied Phillips on these email communications. Ko stated that she shared the same information
with both Phillips and his mother to ensure that they “were all on the same page about what was
happening.” VRP (June 18, 2019) at 95.
Ko testified that she had received “full sets of discovery in each of [the] cases” and that
she had reviewed this discovery and provided Phillips with a “discovery summary” because
obtaining the redacted discovery that she could provide to Phillips could take up to a year. VRP
(June 18, 2019) at 96-97. Ko shared the discovery summaries for both cases with Phillips and with
his mother as she received the discovery, and she reviewed this information with Phillips. Ko also
7
It is possible that the exhibits Phillips provided at the motion hearing could have clarified which
interviews he was referring to, but these exhibits are not part of the appellate record.
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No. 53938-1-II
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testified that before Phillips entered his guilty pleas, she shared and discussed all transcripts from
defense interviews of the victims and other witnesses, as well as other evidence that might have
been favorable with Phillips and his mother. She stated that this evidence included the information
that Phillips was now asserting was new information. In particular, she testified that she explained
to him that his Facebook postings were the “death knell” in the attempted murder charges despite
the contradictory statements by witnesses which he learned before his plea to that charge. VRP
(June 18, 2019) at 122.
The trial court denied Phillips’s motion to withdraw his guilty pleas and entered the
following written findings of fact and conclusions of law:
FINDINGS OF FACT
....
IV.
Over the course of Ms. Ko’s representation of the defendant [in both cases],
she created summaries of all discovery for the two cases. She provided these
summaries to the defendant and also provided him copies of all transcribed
interviews. She also provided him with excerpts of all relevant Facebook postings.
In addition, she provided letters to the defendant summarizing the discovery and
the strengths and weaknesses of each case. Ms. Ko also repeatedly met with the
defendant to go over the evidence and to assess his various options in each case.
....
IX.
Ms. Ko testified at the hearing on the defendant’s motion to withdraw his
guilty pleas and the court finds her testimony credible.
X.
The defendant testified at the hearing on his motion to withdraw his guilty
pleas and the court finds his testimony not credible.
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XI.
The defendant testified to various items of discovery he claimed Ms. Ko
had not made him aware of before entering his guilty pleas for [the Arroyo shooting
and the retaliatory shooting]. These claims are not credible. Ms. Ko provided all
of this information before the defendant entered his guilty pleas.
XII.
The defendant’s desire to withdraw his guilty pleas is simply “buyer’s
remorse.” He entered his guilty pleas believing doing so was in his best interests.
He made those decisions after Ms. Ko fully provided effective assistance of
counsel. Only after entering those guilty pleas did the defendant come to regret
those decisions and wish to proceed to trial on the matters.
CONCLUSIONS OF LAW
I.
The court denies the defendant’s motion to withdraw his guilty plea for [the
retaliatory shooting charges] that was entered on April 3, 2018 and his guilty plea
for [the Arroyo shooting charges] that was entered on May 21, 2018.
II.
The defendant has not established that he received ineffective assistance of
counsel from Ms. Ko. Ms. Ko’s representation did not fall below an objective
standard of reasonableness. Further, the defendant has not credibly established that
Ms. Ko’s alleged deficiencies prejudiced him, i.e., even if the defendant’s
accusations are true, there is not a reasonable probability that he would not have
entered the guilty pleas.
III.
Because the defendant has not established that he received ineffective
assistance of counsel in making the decision to enter his guilty pleas, he has not
established a manifest injustice that would make it appropriate to permit the
withdrawal of his guilty pleas under CrR 4.2.
CP at 47-52.
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No. 53938-1-II
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Phillips appeals his convictions and the order denying his motion to withdraw his guilty
pleas.
ANALYSIS
I. NOT MISADVISED OF SENTENCING CONSEQUENCES
Phillips argues, for the first time on appeal, that his guilty pleas were not knowing,
voluntary, and intelligent because he was misinformed about the consequences of his guilty pleas.
Even presuming, but not deciding, that we can reach this issue despite Phillips’s failure to raise it
in the trial court,8 this argument fails.
Due process requires that a guilty plea be entered knowingly, voluntarily, and intelligently.
State v. Robinson, 172 Wn.2d 783, 794, 263 P.3d 1233 (2011). Under CrR 4.2(d), a trial court
cannot accept a guilty plea without first determining that the plea was made “voluntarily,
competently and with an understanding of the nature of the charge and the consequences of the
plea.” See also Robinson, 172 Wn.2d at 791-92. The relevant statutory maximum sentence is a
direct consequence of a guilty plea, and failure to properly advise the defendant of the maximum
sentence can invalidate the plea. State v. Weyrich, 163 Wn.2d 554, 557, 182 P.3d 965 (2008) (“A
defendant must be informed of the statutory maximum for a charged crime, as this is a direct
consequence of his guilty plea.”).
Citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
and State v. Knotek, 136 Wn. App. 412, 149 P.3d 676 (2006), Phillips claims that he was
misinformed of the potential sentencing consequences when he was advised of the statutory
8
See RAP 2.5(a).
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No. 53938-1-II
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maximum sentences because he would not be exposed to any sentence beyond the top-end of the
standard sentencing ranges.
Blakely limits the circumstances under which a trial court can impose a sentence above the
standard range. State v. Stubbs, 170 Wn.2d 117, 123 n.5, 240 P.3d 143 (2010). And in Knotek we
held that the direct consequences of the plea included the actual maximum sentence to which the
defendant could be sentenced to under the plea agreement, “not the maximum potential sentence
if she went to trial.” Knotek, 136 Wn. App. at 424 n.8. But Weyrich, which our Supreme Court
issued after Blakely and Knotek, establishes that the statutory maximum for an offense is a direct
consequence of a guilty plea and that a defendant must be accurately advised of the statutory
maximum for a guilty plea to be knowing, intelligent, and voluntary. 163 Wn.2d at 557. Thus,
our conclusion in Knotek that the statutory maximum is not a direct sentencing consequence is not
an accurate statement of the law, and the inclusion of the statutory maximums in the plea
agreements did not misinform Phillips of the potential sentencing consequences.
Additionally, Phillips’s argument was rejected in State v. Kennar, 135 Wn. App. 68, 72,
143 P.3d 326 (2006), and, in light of Weyrich, Kennar is persuasive. In Kennar, Division One of
this court held that “CrR 4.2 requires the trial court to inform a defendant of both the applicable
standard sentence range and the maximum sentence for the charged offense as determined by the
legislature.” Kennar, 135 Wn. App. at 75 (emphasis added). The court, noting that Blakely is a
sentencing case and did not address guilty pleas, held:
Because a defendant’s offender score and standard sentence range are not finally
determined by the court until the time of sentencing, the Sixth Amendment
concerns addressed in Blakely do not apply until that time. Thus, when Kennar
entered his guilty plea, the maximum peril he faced was, in fact, life in prison. He
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was correctly informed of this by the trial court. His plea was knowingly,
intelligently, and voluntarily entered. There was no error.
Kennar, 135 Wn. App. at 76 (footnote omitted).
Consistent with Kennar, the plea statements here advised Phillips that his standard range
sentences and the State’s sentencing recommendations could increase if he were to be “convicted
of any new crimes before sentencing, or if any additional criminal history is discovered.” CP at
11, 103. And Phillips agreed that he could not “change [his] mind if additional criminal history is
discovered even though the standard sentencing range[s] and the prosecuting attorney’s
recommendation[s] increase or a mandatory sentence of life imprisonment without the possibility
of parole is required by law.” CP 11, 103. Because any additional convictions could potentially
increase the sentencing consequences, the statutory maximums for each offense were, as Weyrich
confirms, relevant sentencing consequences even if the statutory maximum did not apply at the
exact time Phillips entered his guilty pleas.
And, finally, Phillips’s claim that the references to the statutory maximums in his plea
statements could have caused him to believe that he could be subject to exceptional sentences of
up to life imprisonment without the sentencing court having to comply with Blakely is not well
taken. Both plea statements expressly advised Phillips of the circumstances under which the trial
court could impose an exceptional sentence, including that proper notice, factual stipulations, or
factual findings were required.
Accordingly, we hold that advising Philips of the statutory maximums for his offenses did
not render his pleas involuntary. Thus, Phillips is not entitled to withdraw his guilty pleas on this
ground.
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II. TRIAL COURT’S DENIAL OF PRE-SENTENCING MOTION TO WITHDRAW PLEAS
Phillips next challenges the trial court’s denial of his motions to withdraw his guilty pleas
based on his claim of ineffective assistance of counsel.9 This argument also fails.
We review a trial court’s decision on a motion to withdraw guilty pleas for an abuse of
discretion. State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012). The trial court abuses its
discretion when its decision “‘is manifestly unreasonable or based upon untenable grounds or
reasons.’” Lamb, 175 Wn.2d at 127 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615(1995)).
Under CrR 4.2(f), “[t]he court shall allow a defendant to withdraw the defendant’s plea of
guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.” A
manifest injustice may arise where a defendant received ineffective assistance of counsel. State v.
McCollum, 88 Wn. App. 977, 981, 947 P.2d 1235 (1997).
To prevail on his ineffective assistance claim, Phillips had to establish that Ko’s
performance was deficient and that this deficient representation prejudiced him. State v. Grier,
171 Wn.2d 17, 32–33, 246 P.3d 1260 (2011); see also Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In the context of a claim of ineffective assistance of
counsel at the plea bargaining stage, this test requires Phillips to show that Ko failed to actually
and substantially assist him in deciding whether to plead guilty. State v. Edwards, 171 Wn. App.
9
He assigns error to the trial court’s denial of his motions to withdraw his guilty pleas and assigns
error to the trial court’s findings of fact IV, IX, X, XI, and XII, and to conclusion of law II.
Although Phillips’s argument does not discuss the alleged ineffective assistance of counsel claim
in the context of the trial court’s ruling, we address this issue as a challenge to the trial court’s
denial of the motion to withdraw the pleas because Phillips has assigned error to that order.
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379, 394, 294 P.3d 708 (2012). Counsel’s representation must include a discussion of the strengths
and weaknesses of a defendant’s case so that the defendant knows what to expect and can make
an informed judgment whether or not to plead guilty. Edwards, 171 Wn. App. at 394.
Phillips argues that the trial court abused its discretion when it denied his motion to
withdraw his guilty pleas because he demonstrated that Ko failed to advise him of multiple
statements “tending to cast doubt on Mr. Phillips’s involvement in either incident.” Br. of
Appellant at 13. Specifically, Phillips points to (1) Bullard’s changing statements, and (2) the
Arroyos’ identification of the shooter as a light skinned male who had been driving the car. But
the trial court found that Ko had provided Phillips with all of the information that he asserted he
had not discovered until after he entered his guilty pleas. And Ko’s testimony that she provided
this information to Phillips before he entered his guilty pleas, which the trial court found credible,
supports that finding. 10, 11
Furthermore, to the extent Phillips is challenging the trial court’s
finding that Ko’s testimony was credible and that Phillips’s testimony was not credible, we do not
review the finder of fact’s credibility determinations. State v. A.X.K., 12 Wn. App. 2d 287, 298,
457 P.3d 1222 (2020). Accordingly, the trial court did not abuse its discretion in denying Phillips’s
motions to withdraw his guilty pleas.
10
We also note that information regarding Bullard’s changing statements related to both sets of
charges was included in the probable cause statements, which Phillips admitted he was aware of
before entering his pleas.
11
Because we hold that the trial court properly determined that Ko’s representation was not
deficient, we do not address prejudice. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996) (if either part of the ineffective assistance of counsel test is not satisfied, we are not required
to address the remaining part of the test).
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Because Phillips was properly advised of the statutory sentencing maximum for his
offenses and the trial court did not abuse its discretion when it concluded that Phillips’s counsel’s
representation was not deficient, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, A.C.J.
We concur:
MAXA, J.
GLASGOW, J.
15