State of Washington v. Mario Torres , 198 Wash. App. 685 ( 2017 )

I
lI
!
FILED
APRIL 13, 2017
In the Office of the Clerk of Court
l WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33648-4-111
) (consolidated with
Respondent, ) No. 33744-8-111)
)
V. )
)
MARIO TORRES, )
)
Appellant. ) OPINION PUBLISHED IN PART
)
)
In the Matter of the Personal Restraint of )
)
MARIO TORRES, )
)
Petitioner. )
PENNELL, J. - Mario Torres was convicted of a witness tampering charge
involving his minor son. At sentencing, the trial court imposed a five-year no-contact
order between Mr. Torres and his son. Because the no-contact order was imposed
without adequate consideration of Mr. Torres's fundamental right to parent his son, we
remand for reconsideration.
No. 33648-4-111; 33744-8-111
State v. Torres
FACTS
Mario Torres is the father ofM.T. (born 2003) and N.B. (born 2012). N.B. had
been living with his mother, but on the morning of December 22, 2014, he was left in Mr.
Torres's care while N.B.'s mother went shopping. M.T. was also with Mr. Torres at the
time. On December 23, N.B.'s mother and grandmother took him to receive medical care
after he was found unresponsive. N.B. died a few days later. A preliminary investigation
ofN.B.'s injuries suggested his death was a homicide.
Part of law enforcement's investigation into N.B. 's death involved a forensic
interview ofM.T. M.T. originally told the interviewer that N.B. was responsive while in
Mr. Torres's care and ate some "Chicken McNuggets" during this time. Clerk's Papers
(CP) at 8. But M.T. subsequently told the interviewer this was not true. M.T. then related
that he heard a loud bang while Mr. Torres was caring for N.B. and N.B. started loudly
crying. Mr. Torres later told M.T. he had accidentally stepped on N.B. 's leg causing him
to fall and strike the bedpost. M.T. never saw N.B. get up again after this. M.T. told the
interviewer that both his parents approached him at his grandmother's home earlier that
day and told him to make up a story about N.B. eating Chicken McNuggets, and not
mention that N.B. had bumped his head. Mr. Torres allegedly told M.T. to "make up
lies." Id.
2
1
'j
l
No. 33648-4-111; 33744-8-111
State v. Torres
The police talked to Mr. Torres the day after M.T's interview. After being advised
of his Miranda 1 rights, Mr. Torres denied injuring N.B. but admitted N.B. fell and struck
his head on a bedpost. Mr. Torres also admitted he did not want M.T. to talk to the police
and had a private conversation with him to outline what M.T. would say. Mr. Torres
claimed he told M.T. to tell the truth and say Mr. Torres did not cause the injuries to N.B.
He did not offer any specific details on what M.T. was told.
The State charged Mr. Torres with one count of witness tampering under
RCW 9A.72.120(l)(c). The case progressed toward trial and a CrR 3.5 hearing was set
for February 11, 2015. The hearing was not held, but the parties stipulated to a
continuance on February 11 that pushed the CrR 3.5 hearing to February 25 the trial date
out to late March. Mr. Torres ultimately entered an Alford2 plea on February 25. His case
then proceeded directly to sentencing.
During the sentencing colloquy, counsel for the State requested a six-month no-
contact order between Mr. Torres and his son, which would be subject to renewal.
Defense counsel asked the court not to impose a no-contact order, citing the active role
Mr. Torres played in his son's life. The court ultimately imposed a five-year no-contact
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
3
II
I No. 33648-4-111; 33744-8-111
State v. Torres
order, prohibiting Mr. Torres from all contact with M.T. except by written mail that first
must be screened by M.T.'s mother. Mr. Torres also received a sentence of six months
and $1,960 in legal financial obligations (LFOs). 3
ANALYSIS
RCW 9.94A.505(9) authorizes a trial court to impose crime related prohibitions as
sentencing conditions. State v. Warren, 165 Wash. 2d 17, 32, 195 P.3d 940 (2008). 4
Conditions interfering with fundamental rights, such as the right to a parent-child
I
l relationship, must be "sensitively imposed" so they are "reasonably necessary to
accomplish the essential needs of the State and public order." In re Pers. Restraint of
Rainey, 168 Wash. 2d 367, 374, 229 P.3d 686 (2010) (internal quotation marks omitted)
(quoting Warren, 165 Wash. 2d at 32). Although we review a trial court's decision to
impose sentencing conditions for abuse of discretion, discretion is abused if the trial court
employs the wrong legal standard. Rainey, 168 Wash. 2d at 374-75; see also State v. Lord,
161 Wash. 2d 276, 283-84, 165 P.3d 1251 (2007).
At sentencing, the trial court imposed a five-year no-contact order, prohibiting
l 3
Specifically, the trial court imposed a $500 victim assessment, $860 in court
l costs, a $500 fine, and a $100 deoxyribonucleic acid (DNA) collection fee.
4
The Warren court cites to the former RCW 9.94A.505(8) (2001), but the relevant
provision has been recodified as RCW 9.94A.505(9) (LAWs of 2015, ch. 81, § 1).
l 4
No. 33648-4-III; 33744-8-III
State v. Torres
almost all contact between Mr. Torres and his son. In so doing, the court failed to
acknowledge Mr. Torres's fundamental right to parent his child or explain why a five-
year prohibition on all personal contact was reasonably necessary to further the State's
interests. This was error, even under the deferential abuse of discretion standard. Rainey,
168 Wash. 2d at 374-75; State v. Howard, 182 Wash. App. 91, 100-01, 328 P.3d 969 (2014).
While the trial court certainly can impose a no-contact order to advance the State's
fundamental interests in protecting children, it must do so in a nuanced manner that is
sensitive to the changing needs and interests of the parent and child. Rainey, 168 Wash. 2d
at 378.
The State suggests we can infer the reasons for the court's no-contact order from
the record. We disagree. The record before us is scant. The trial judge did not explain
why he decided to impose a no-contact order that was 10 times longer than what was
requested by the State. We are unable to discern the court's likely reasoning from the
limited information presented. It is the trial court's duty to balance the competing
interests impacted by a no-contact order. This is a fact intensive exercise that must, at
first instance, be done in the trial court, not the appellate court.
Because the trial court's decision to impose a no-contact order was not guided by
the analysis required by our case law, we remand for reconsideration of the no-contact
5
No. 33648-4-111; 33744-8-111
State v. Torres
order. On remand, the trial court shall first address whether a no-contact order remains
reasonably necessary in light of the State's interests in protecting M.T. from harm. If it
is, then the court shall endeavor to narrowly tailor the order, both in terms of scope and
duration. When it comes to the order's scope, the court shall consider less restrictive
alternatives, such as supervised visitation, prior to restricting all personal contact between
Mr. Torres and his child. See, e.g., State v. Ancira, 107 Wash. App. 650, 654-55, 27 P.3d
1246 (2001). In addition, the court's order should recognize that "what is reasonably
necessary to protect the State's interests may change over time." Rainey, 168 Wash. 2d at
381. Accordingly, the court shall consider whether the scope of the no-contact order
should change over time. The court shall also reconsider whether the ultimate length of
the no-contact order remains appropriate.
On remand, the trial court should keep in mind that a sentencing proceeding is not
the ideal forum for addressing parenting issues. Ancira, 107 Wash. App. at 655. Our
juvenile and family courts are better equipped to resolve custody questions, including
whether restrictions should be placed on parent-child contact. See chs. 13.34, 26.09,
26.10, 26.26 RCW. Outside the context of the procedural protections provided in
dependency and child custody cases, our legislature has directed that a parent-child no-
l
l
1
,l
l
contact order should not last longer than one year, unless specifically renewed.
l 6
t
No. 33648-4-III; 33744-8-III
State v. Torres
RCW 26.50.060(2). This legislative context should be taken into account when
determining the necessity of a no-contact order on remand.
The panel has determined that only the foregoing portion of this opinion will be
printed in the Washington Appellate Reports and that the remainder having no
precedential value shall be filed for public record pursuant to RCW 2.06.040. It is so
ordered.
LFOs
Mr. Torres's final argument on direct appeal is that the trial court failed to conduct
an individualized inquiry prior to imposing LFOs. No objection was raised in the trial
court. Nevertheless, because we are remanding this matter for reconsideration of the no-
contact order, we also remand for an individualized inquiry into whether Mr. Torres has
the ability to pay discretionary LFOs as contemplated by State v. Blazina, 182 Wash. 2d 827,
344 P.3d 680 (2015).
PERSONAL RESTRAINT PETITION
Motion to vacate plea
In his personal restraint petition, Mr. Torres moves to withdraw his guilty plea on
the basis of newly discovered evidence. The "new evidence" is Mr. Torres's recantation
of his own prior statement. This is not the type of evidence that warrants relief. See
7
No. 33648-4-111; 33744-8-111
State v. Torres
CrR 7.8(b)(2). Mr. Torres knew, at the time of his plea, whether his statement prior to
arrest was voluntary and truthful. He had all the information necessary to decide whether
to challenge his statement or proceed with his plea. He chose the latter. While Mr.
Torres may now regret his decision, that is not a basis for upending his plea. In re Pers.
Restraint of Clements, 125 Wash. App. 634, 645-46, 106 P.3d 244 (2005).
Ineffective assistance of counsel
Mr. Torres makes three claims of ineffective assistance of counsel: (1) his attorney
labored under a conflict of interest, (2) failure to investigate the case, and (3) failure to
seek suppression of Mr. Torres's statement to law enforcement. To establish ineffective
assistance of counsel, a defendant must show that counsel's ( 1) performance was
deficient, and (2) the errors were serious enough to prejudice the defendant. State v.
Thomas, 109 Wash. 2d 222, 225-26, 743 P.2d 816 (1987). Mr. Torres has not met this
burden.
The record is insufficient to permit review of Mr. Torres's first two claims. The
criticisms that Mr. Torres lodges against his trial attorney have to do with disagreements
as to case strategy, not a conflict in counsel's duty ofloyalty. In re Pers. Restraint of
Stenson, 142 Wash. 2d 710, 722, 16 P.3d 1 (2001). With respect to counsel's investigation,
Mr. Torres has not submitted sufficient facts to demonstrate that counsel failed to talk to
8
No. 33648-4-111; 33744-8-111
State v. Torres
various witnesses. In re Pers. Restraint ofRice, 118 Wash. 2d 876, 885-86, 828 P .2d 1086
l (1992).
As to the final argument, the record confirms that trial counsel did originally plan
to challenge Mr. Torres's statement to police. Defense counsel twice scheduled a CrR 3.5
hearing, but ultimately the hearing was canceled to permit entry of Mr. Torres's plea.
Successfully challenging a pretrial statement on the basis of police coercion is a difficult
task. Mr. Torres cannot show that the decision to enter a plea in lieu of proceeding with
the suppression hearing was not strategic. State v. McFarland, 73 Wash. App. 57, 71, 867
P.2d 660 (1994).
Allegation of illegal search and seizure
The final argument raised in Mr. Torres's personal restraint petition pertains to an
alleged illegal search. Mr. Torres has the burden to show facts supporting his allegation
in his petition. See In re Pers. Restraint of Yates, 177 Wash. 2d 1, 17-18, 298 P.3d 872
(2013). He has not done so. We therefore reject his arguments.
APPELLATE COSTS
In his opening brief, Mr. Torres requests that we not award costs to the State, in
the event it substantially prevails on appeal. He has also filed a motion to extend time to
file a continued indigency report. The motion to extend time is denied as moot. We grant
9
l
\
---1
I
i
No. 33648-4-III; 33744-8-III
State v. Torres
the request to not award costs regardless of indigency, as Mr. Torres has substantially
prevailed on the issues raised in his direct appeal.
CONCLUSION
Mr. Torres's conviction is affirmed. This matter is remanded for reconsideration
of the no-contact order between Mr. Torres and M.T. and the imposition of discretionary
LFOs.
Pennell, J.
WE CONCUR:
j
10