State Of Washington v. Richard Leffler ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
January 23, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49788-3-II
Respondent, Consolidated with:
v. No. 50575-4-II
RICHARD K. LEFFLER,
UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — A jury returned a verdict finding Richard Leffler guilty of bail
jumping but could not reach a verdict on the remaining charge of possession of a stolen vehicle.
Leffler later pleaded guilty to third degree possession of stolen property in exchange for the State
dropping the possession of a stolen vehicle charge. Leffler appeals from the sentence imposed
following his convictions, contending that the trial court erred by failing to consider his
indigence when imposing discretionary legal financial obligations. In a consolidated appeal,
Leffler also contends that the trial court erred by denying his CrR 7.8 motion to withdraw his
guilty plea. Additionally, in his Statement of Additional Grounds (SAG) for Review Leffler
raises several ineffective assistance of counsel claims, all of which either lack merit or rely on
matters outside the record. We affirm Leffler’s convictions, but we reverse the imposition of
LFOs and remand to the trial court to reconsider their imposition in light of recent legislative
amendments.
No. 49788-3-II
Cons. 50575-4-II
FACTS
On September 7, 2016, the State charged Leffler by amended information with
possession of a stolen vehicle and bail jumping. The matter proceeded to a jury trial. The jury
returned a verdict finding Leffler guilty of bail jumping but could not reach a verdict on the
possession of a stolen vehicle charge.
Following a mistrial on the possession of a stolen vehicle charge, Leffler agreed to plead
guilty to third degree possession of stolen property. Leffler’s statement of defendant on plea of
guilty form stated that he was maintaining his innocence but was entering an Alford1 plea
because “I believe a jury would convict me if it were to believe the State’s evidence and I
therefore wish to take advantage of the State’s offer.” Clerk’s Papers at 35.
Leffler’s defense counsel stated the following to the trial court:
Mr. Leffler has no problem understanding, reading or writing the English language.
He obtained his GED. I’m confident that he understands what he’s doing and the
rights he’s giving up, as well as the benefit of this plea bargain.
3 Report of Proceedings (RP) at 430. The trial court confirmed with Leffler that he had signed
the guilty plea form after having adequate time to review it with his defense counsel. The trial
court also confirmed with Leffler that he understood the elements of third degree possession of
stolen property and the sentencing consequences of pleading guilty to that charge. Leffler stated
that he was freely and voluntarily pleading guilty, absent any threats, and absent any promises
apart from those expressed in the plea agreement. The trial court accepted Leffler’s guilty plea,
finding that it was knowingly and voluntarily made and had a factual basis in support.
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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At sentencing, the State requested the trial court to impose legal financial obligations
consisting of a $500 victim assessment, a $200 criminal filing fee, a $976 sheriff service fee, a
$250 jury demand fee, a $600 court appointed attorney fee, and a $100 DNA collection fee. The
trial court asked Leffler if there was anything preventing him from being able to work and pay
his fines, to which Leffler responded, “No.” 3 RP at 446. The trial court then stated its finding
that “Leffler has the ability to meet his legal financial obligations” and imposed the legal
financial obligations requested by the State. 3 RP at 446. Leffler filed a notice of appeal from
his bail jumping conviction and from the sentence imposed following his convictions for bail
jumping and third degree possession of stolen property.
While his appeal was pending, Leffler moved to withdraw his guilty plea. Leffler’s
withdrawal motion claimed that he had received ineffective assistance of counsel at his trial, but
the motion did not explain how the alleged ineffective assistance related to his decision to plead
guilty. The following exchange took place at the plea withdrawal hearing:
[Trial court]: Okay, but I’m told that that trial ended up in a hung jury
and then you pled guilty. Your motion is to withdraw the guilty plea.
[Leffler]: Right.
[Trial court]: What is it about the guilty plea—that’s what the Court’s—
you’re asking—
[Leffler]: Well, I’m not guilty of the crime at all. I mean, I didn’t
know that—
[Trial court]: So—
[Leffler]: —this thing was stolen, and I felt pressured because I got
such a bad trial, a bad representation. He even appealed and said it was from, you
know, ineffective assistance of counsel. I don’t know what was going on there,
but even—I reminded him, I don’t know how many times, to make sure he got
these things entered so that they would be, you know, available at the trial. And
I didn’t find out until I was on the stand that these things hadn’t—he never entered
them, you know, so therefore, I couldn’t show the jury. I couldn’t say anything
because my attorney never entered these things that were—should have been
entered, you know, at the omnibus and that he didn’t do it. He didn’t enter—he
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didn’t get my witnesses, he didn’t get nothing done, you know, and so I mean I
was—it was anything but a fair trial.
[Trial court]: Okay. Alright, and then that trial ended up in a—
[Leffler]: You know, and then he told me he was withdrawing as my
attorney as soon as it was over, so I mean I was like, you know—
[Trial court]: Okay.
[Leffler]: I didn’t know what to do, but I sure didn’t want to do that.
RP (June 6, 2017) at 24-25. After the State argued that Leffler had failed to present a legal basis
to withdraw his plea, the exchange continued as follows:
[Leffler]: . . . I’m being punished and forced to take this plea because
my attorney didn’t do his job. I mean, that’s just not right for—to happen. I
mean, he didn’t subpoena witnesses, you know, he didn’t—witnesses that he had
hired just to come do it—I mean, he just failed to get him. And I reminded him,
and he still failed.
[Trial court]: Okay.
[Leffler]: Failed to enter my bill of sale. He failed to—all kinds of
things. I mean, they’re all listed there.
[Trial court]: Alright. Well—
[Leffler]: And I think that there would have been a different outcome
had I been able to present those things. I mean, I’m sure there would have been.
[Trial court]: Okay, so there was a hung jury and then you pled guilty,
and I think what you are telling the Court is that you were forced to take the plea,
that’s your words.
[Leffler]: Pretty much, yeah, because he told me he was withdrawing
as my attorney and there was no other attorneys that were going to be representing
me that we found out prior to [my defense counsel at trial]. And he said he was
stepping down and withdrawing as my attorney right after sentencing, so I mean
....
[Trial court]: Alright, so what the—
[Leffler]: And I asked him to withdraw my plea before sentencing
and he told me he wasn’t going to do it.
RP (June 6, 2017) at 26-27. The trial court denied Leffler’s motion to withdraw his guilty plea.
Leffler appeals from the trial court’s order denying his motion to withdraw his guilty plea.
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ANALYSIS
I. CRR 7.8
Leffler contends that the trial court erred by denying his CrR 7.8 motion to withdraw his
guilty plea to third degree possession of stolen property. We disagree.
We review a trial court’s decision on a motion to withdraw a guilty plea for an abuse of
discretion. State v. Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 (2005). A trial court abuses
its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126
Wn.2d 244, 258, 893 P.2d 615 (1995). Under CrR 4.2(f), a defendant is permitted to withdraw a
guilty plea “whenever it appears that the withdrawal is necessary to correct a manifest injustice.”
CrR 7.8 governs postjudgment motions to withdraw a guilty plea and provides in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud; etc. On motion and upon such terms as are just, the court may relieve a
party from a final judgment, order, or proceeding for the following reasons:
....
(5) Any other reason justifying relief from the operation of the judgment.
Because Leffler moved to withdraw his guilty plea after judgment was entered, he must
meet the requirements for a plea withdrawal under both CrR 4.2(f) and CrR 7.8(b). State v.
Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012). In other words, to succeed on his postjudgment
motion to withdraw his guilty plea, Leffler must demonstrate both (1) that withdrawal of the plea
is necessary to correct a manifest injustice and (2) that relief from the final judgment is justified
by one of the reasons enumerated in CrR 7.8(b).
A manifest injustice allowing a defendant to withdraw a guilty plea is “an injustice that is
obvious, directly observable, overt, [and] not obscure.” State v. Taylor, 83 Wn.2d 594, 596, 521
P.2d 699 (1974) (citing WEBSTER’S THIRD INTERNATIONAL DICTIONARY (1966)). A defendant
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carries a heavy burden in demonstrating a manifest injustice permitting the withdrawal of a
guilty plea, which “burden is justified by the greater safeguards protecting a defendant at the
time [the defendant] enters [his or] her guilty plea.” State v. Wilson, 162 Wn. App. 409, 414,
253 P.3d 1143 (2011). A defendant may meet the burden of demonstrating a manifest injustice
by showing that the plea was involuntary or was entered in violation of the right to effective
assistance of counsel. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).
Here, Leffler asserts that the trial court erred in denying his withdrawal motion because
his plea was not knowing, intelligent, and voluntary and because the plea was secured in
violation of his right to effective assistance of counsel. But Leffler provides no argument,
citations to the record, or legal authority supporting his assertion that his plea was not knowing,
intelligent, and voluntary. Accordingly, we do not further address this claim. See RAP
10.3(a)(6) (appellant’s brief should contain argument in support of issues presented in addition to
citations to legal authority and to the relevant parts of the record); State v. Harris, 164 Wn. App.
377, 389 n. 7, 263 P.3d 1276 (2011) (assignment of error waived where appellant failed to
present supporting argument and legal authority).2
Leffler also fails to provide any argument supporting his claim that he had received
ineffective assistance of counsel warranting withdrawal of his guilty plea. Leffler notes that his
2
Moreover, when, as here, a defendant completes a written plea statement and admits to reading,
understanding, and signing it, a strong presumption arises that the plea was voluntary. State v.
Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). And where, as here, the trial court inquired
into the voluntariness of a defendant’s guilty plea on the record, the presumption of voluntariness
is nearly irrefutable. State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982). In the absence
of any argument regarding the voluntariness of his guilty plea, Leffler cannot overcome this
nearly irrefutable presumption that his plea was voluntary.
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CrR 7.8 withdrawal motion was based on “his dissatisfaction with counsel’s failure to introduce
evidence which would have shown he lawfully possessed the item at trial, and witnesses he said
would support that position.” Br. of Appellant at 13. Leffler also notes that he had told the trial
court at the plea withdrawal hearing that his attorney refused to file a plea withdrawal motion
before sentencing and told him that he would terminate representation after sentencing. But
Leffler fails to explain how any of this alleged conduct constituted deficient performance or
resulted in prejudice affecting his decision to plead guilty after a mistrial. See State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (To demonstrate ineffective
assistance of counsel, a defendant must show both deficient performance and resulting
prejudice.). Accordingly, Leffler’s claim on this issue fails to comply with the requirements of
RAP 10.3(a)(6) and we decline to address it further on that basis. See also Harris, 164 Wn. App.
at 389 n. 7.
Leffler appears to argue that the trial court abused its discretion in denying his guilty plea
withdrawal motion because it relied on the wrong legal standard by focusing solely on whether
he had received a good deal by pleading guilty to a lesser charge. This argument lacks merit and
misrepresents the record.
In ruling on Leffler’s withdrawal motion, the trial court stated that it had looked to
whether the plea was knowing, voluntary, and competent. In determining whether the guilty plea
was knowing, voluntary, and competent, the trial court stated it had reviewed the transcript of
Leffler’s guilty plea hearing. The trial court highlighted portions of the guilty plea transcript,
including portions of the transcript in which Leffler affirmed that he had (1) reviewed the guilty
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plea form with his counsel, (2) reviewed the elements of third degree possession of stolen
property with his counsel, and (3) had sufficient time to discuss his case with counsel.
The trial court noted that Leffler’s plea withdrawal arguments focused on claims that
counsel provided ineffective assistance during trial, but that the relevant inquiry involved the
circumstances of the plea agreement. The trial court concluded that Leffler failed to present
information sufficient for it to find that his counsel performed deficiently at trial, reasoning that
Leffler eventually pleaded guilty to a lesser crime than that to which he was originally charged
and tried. The trial court also concluded that Leffler’s claim of ineffective assistance of counsel
at trial did not justify withdraw of his guilty plea because Leffler “actually made a conscious step
by [entering] a plea, and that plea was then addressed by the judge in open court.” RP (June 13,
2017) at 29.
The record belies Leffler’s contention that the trial court focused solely on whether he
received a good plea by pleading guilty to a lesser charge. Rather, the trial court properly
reviewed the circumstances of the plea to determine whether the plea was voluntary and whether
counsel was ineffective in regard to assisting Leffler in deciding whether to plead guilty. See,
e.g., State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997) (To succeed on a claim of
ineffective assistance of counsel in “the context of a guilty plea, the defendant must show that his
counsel failed to ‘actually and substantially [assist] his client in deciding whether to plead
guilty.’”) (alteration in original) ((internal quotations omitted) (quoting State v. Osborne, 102
Wn.2d 87, 99, 684 P.2d 683 (1984))). Accordingly, Leffler’s argument on this issue lacks merit.
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II. LEGAL FINANCIAL OBLIGATIONS
Next, Leffler contends that the trial court erred by imposing discretionary legal financial
obligations despite his indigence. In light of recent statutory amendments, we agree and remand
to the trial court to impose LFOs consistent with the recent legislative amendments.
The legislature recently amended former RCW 10.01.160(3) (2015), and as of June 7,
2018, this statutory provision prohibits a trial court from ordering a defendant to pay costs “if the
defendant at the time of sentencing is indigent as defined in RCW 10.101.010(3)(a) through (c).”
Prior to this legislative amendment, former RCW 10.01.160(3) prohibited trial courts from
imposing costs on a criminal defendant “unless the defendant is or will be able to pay them.” In
State v. Ramirez, 191 Wn.2d 732, 747-49, 426 P.3d 714 (2018), our Supreme Court held that this
amendment applies prospectively and is applicable to cases pending on direct review and not
final when the amendment was enacted. Because the recently amended version of RCW
10.01.160(3) requires a trial court to make a threshold determination of whether a convicted
defendant is indigent at the time of sentencing before imposing costs, and because the amended
statute applies to Leffler’s sentence, we reverse the imposition of LFOs in this matter and
remand to the trial court to impose LFOs consistent with the recent legislative amendments. 3
III. SAG
Next, Leffler raises a number of ineffective assistance of counsel claims in his SAG, all
of which either lack merit or rely on matters outside the record.
3
We note that the legislature also recently amended former RCW 36.18.020(2)(h) to prohibit
trial courts from imposing a $200 criminal filing fee on defendants who are indigent at the time
of sentencing. LAWS OF 2018, ch. 269, §7.
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The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of
counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To demonstrate
ineffective assistance of counsel, Leffler must show (1) that his counsel’s performance was
deficient and (2) that the deficient performance resulted in prejudice. Grier, 171 Wn.2d at 32-
33. Defense counsel’s performance is deficient if it falls below an objective standard of
reasonableness. Grier, 171 Wn.2d at 33. Prejudice ensues if there is a reasonable probability
that, but for counsel’s purportedly deficient performance, the outcome of the proceeding would
have differed. Grier, 171 Wn.2d at 34. Because both prongs of the ineffective assistance test
must be met, a failure to show either prong will end the inquiry. State v. Davis, 174 Wn. App.
623, 639, 300 P.3d 465 (2013).
There is a strong presumption that defense counsel’s conduct was not deficient. State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). To overcome this presumption, Leffler
must show the absence of any “conceivable legitimate tactic explaining counsel’s performance.”
Reichenbach, 153 Wn.2d at 130. Ineffective assistance of counsel claims present mixed
questions of fact and law that we review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204
P.3d 916 (2009).
A. Bail Jumping
Regarding his bail jumping conviction, Leffler contends that his defense counsel was
ineffective for failing to (1) inform the jury that he was not released by court order, (2) inform
the jury that he was never given bail, (3) inform the jury that he had 30 court appearances, (4)
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inform the jury that he was unaware that he had missed a court appearance, (5) present evidence
that he was unaware that he had missed a court appearance, and (6) inform the jury that defense
counsel was to blame for his missed court appearance.
1. Release by Court Order or Admitted to Bail
Leffler first contends that his defense counsel was ineffective for failing to inform the
jury that he was not released by court order or admitted to bail. We disagree. To convict Leffler
of bail jumping as charged here, the State had to prove beyond a reasonable doubt that he (1) was
held for, charged with, or convicted of a Class B or C felony; (2) was released by court order or
admitted to bail with the requirement of a subsequent personal appearance; and (3) knowingly
failed to appear as required. RCW 9A.76.170; State v. Hart, 195 Wn. App. 449, 456, 381 P.3d
142 (2016), review denied, 187 Wn.2d 1011 (2017). At trial, the State presented a court order
that set Leffler’s conditions of release, which was admitted as exhibit 1. Because this exhibit
purported to show that Leffler was released by court order, defense counsel lacked a factual basis
to argue to the jury that he had not been released by court order. And to the extent that Leffler is
claiming that exhibit 1 fails to demonstrate that he had been released by court order, we cannot
review the claim because he did not designate the exhibit for the record on appeal. Accordingly,
Leffler fails to show his defense counsel performed deficiently by failing to inform the jury that
he had not been released by court order, and his ineffective assistance of counsel claim on this
ground fails.
Additionally, because the State was required to prove either that Leffler was released by
court order or had been admitted to bail, he cannot show deficient performance or resulting
prejudice based on his counsel’s failure to inform the jury that he had not been admitted to bail.
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2. Court Appearances
Next, Leffler contends that his counsel was ineffective for failing to inform the jury that
he had made 30 court appearances. This claim lacks merit as Leffler’s successful court
appearances had no bearing on whether he failed to appear in court as required on July 5, 2016.
3. Knowledge of Missed Court Appearance
Next, Leffler contends that his counsel was ineffective for failing to inform the jury or
present evidence that he was unaware that he had missed a required court appearance. We
disagree. To meet the knowledge element of bail jumping, the State need only prove that a
defendant has been given notice to appear at his required court dates. State v. Cardwell, 155 Wn.
App. 41, 47, 226 P.3d 243 (2010), modified on remand on other grounds, 166 Wn. App. 1011(2012). At trial, the State presented evidence that Leffler had signed an order setting a date for
trial at which he was required to attend. This was sufficient proof that Leffler had been given
notice of his requirement to appear, thus meeting the knowledge element of bail jumping.
Evidence that Leffler was unaware that he had missed a required court appearance after the fact
would not negate the State’s evidence that he had received the required notice. Accordingly,
Leffler cannot demonstrate ineffective assistance of counsel on this ground.
4. Counsel Responsible for Leffler’s Missed Appearances
Next, Leffler contends that his counsel was ineffective for failing to inform the jury that
counsel was to blame for his missed court appearance. Because there is nothing in the record
supporting Leffler’s contention that his defense counsel was to blame for his missed court
appearance, we do not address this claim. See McFarland, 127 Wn.2d at 335 (“If a defendant
wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the
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appropriate means of doing so is through a personal restraint petition.”). Because Leffler fails to
demonstrate ineffective assistance of counsel, we affirm his bail jumping conviction.
B. Possession of a Stolen Vehicle
Regarding his possession of a stolen vehicle charge, Leffler contends that his defense
counsel was ineffective for failing to (1) present evidence of his bill of sale for the allegedly
stolen vehicle, (2) subpoena witnesses to testify at trial, (3) demand that the State present
evidence of the vehicle identification number of the allegedly stolen vehicle, (4) demand that the
State present a photograph of the allegedly stolen vehicle, and (5) request reimbursement from
the police for money Leffler had paid for a U-Haul that police subsequently used to deliver the
stolen vehicle to its true owner. Additionally, Leffler contends that (6) his defense counsel was
under the influence of narcotic drugs while representing him and that (7) defense counsel failed
to defend him at trial.
1. Matters Outside the Appellate Record
We cannot address several of Leffler’s claims because they require examination of
matters outside the record on appeal. Regarding his claim that defense counsel failed to present
evidence of his bill of sale, the record does not contain a copy of this alleged evidence.
Regarding his claim that defense counsel failed to subpoena witnesses, Leffler does not identify
any potential witnesses apart from the defense investigator, and the record does not reveal
whether the defense investigator or any other potential witness could provide testimony
beneficial to the defense. Regarding his claim that defense counsel failed to demand
reimbursement from police for Leffler’s expenses, there is nothing in the record to support the
contention that he was owed any reimbursement. Finally, there is nothing in the record to
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support Leffler’s claim that his defense counsel was under the influence of narcotic drugs during
his representation of Leffler. Moreover, Leffler does not explain how any of the above alleged
instances of ineffective assistance of counsel affected his decision to plead guilty to third degree
possession of stolen property following a mistrial on the possession of a stolen vehicle charge.
Accordingly, we do not further address these claims.
2. Demands Regarding the State’s Presentation of Evidence
Next, Leffler contends that his counsel was ineffective for failing to demand that the
State present certain evidence at trial. This claim lacks merit as we can find no authority for the
proposition that defense counsel has authority to direct the State’s presentation of evidence at
trial. Moreover, as with his claims above, Leffler does not explain how defense counsel’s failure
to demand the State present certain evidence at his trial for possession of a stolen vehicle
affected his later decision to plead guilty to third degree possession of stolen property.
3. Failure To Defend
Finally, Leffler contends that his counsel was ineffective for doing “almost nothing” to
defend him against the State’s charges. SAG at 3. This claim also lacks merit. The record
reveals that defense counsel filed several motions before and during trial, including motions for
the expenditure of public funds to hire investigative experts, a CrR 3.6 motion to suppress
evidence, and a motion to dismiss the bail jumping charge after the State rested its case. Defense
counsel also cross-examined the State’s witnesses and presented closing argument focusing on
the State’s lack of evidence that Leffler had known the vehicle he had possessed was stolen.
Because Leffler fails to demonstrate that his counsel was ineffective at trial, let alone
show that such counsel’s conduct at trial related to the circumstances of his guilty plea, we
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affirm his third degree possession of stolen property conviction. In summary, we affirm
Leffler’s convictions but remand to the trial court to impose LFOs consistent with recent
legislative amendments to the LFO statutes.
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.
Worswick, P.J.
We concur:
Melnick, J.
Sutton, J.
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