State Of Washington v. Anthony Craig Lee ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ;I NO. 69892-3-1 o
Respondent, ] DIVISION ONE
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ANTHONY C. LEE, \ UNPUBLISHED OPINION
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Appellant. FILED: June 9, 2014 CO
Lau, J. —Anthony Lee challenges the trial court's order denying a motion to
withdraw his guilty plea to one count of criminal solicitation to deliver cocaine. He
alleges his plea was involuntary because the court pressured him to accept the plea
offer and never advised him that his right to appeal the suppression ruling was waived
on a plea of guilty. Because Lee fails to overcome the heavy burden that his plea was
voluntary and his pro se statement of additional grounds lacks merit, we affirm.
FACTS
On March 21, 2012, Seattle Police Officer P.J. Fox and Department of
Corrections (DOC) Community Corrections Officer (CCO) Lisa Tavarez were patrolling
a high drug trafficking area in downtown Seattle when they observed approximately
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eight to twelve people standing in line at the driver's side of a parked car. Officer Fox
recognized several of the people as known drug users. Anthony Lee was sitting in the
back seat of the car with the window partially rolled down. While verifying Lee's identity,
Officer Fox ordered Lee to place his hands on the headrest in front of him. Lee ignored
Officer Fox's command and repeatedly moved his hands to his ankle area. Concerned
that Lee was reaching for a weapon, Officer Fox ordered Lee out of the car. He
arrested Lee after a pat-down search revealed a baggie of rock cocaine in Lee's sock.
Lee admitted he intended to sell the cocaine, but the officers interrupted the sale.
The State initially charged Lee with possession of cocaine but later amended the
charge to possession with intent to manufacture or deliver cocaine. Lee unsuccessfully
moved pretrial to suppress the cocaine pursuant to CrR 3.6.1 Lee complained about his
attorney, the proceeding's unfairness, and the State's expired plea offer to simple
possession. In response, the court asked the State about the offer. The deputy
prosecutor explained that the offer had expired the previous week, but "if defense
counsel were to approach me wanting to plead, that's something I could take up."
Report of Proceedings (RP) (Oct. 16, 2012) at 202. The court responded, "Then maybe
we should have him and you discuss it." RP (Oct. 16, 2012) at 202. Lee told the court,
"Thank you. That's all I'm saying." RP (Oct. 16, 2012) at 202. The court told the
deputy prosecutor, "If it was a fair offer a week ago... it's a fair offer today. I'm not telling
him to take the offer. I'm not telling you you have to put it on the table." RP (Oct. 16,
2012) at 202. Lee responded, "Exactly. That's all I'm saying." RP (Oct. 16, 2012) at
203. The court continued:
He also moved unsuccessfully to suppress his statements under CrR 3.5
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I want to make sure the defendant knows what his options are and knows
what could go wrong and what the worst-case scenario is as opposed to
the best-case, that he's had the opportunity to talk to [defense counsel]
about the risks and that he's made an intelligent decision to either take or
forego the offer.
RP (Oct. 16, 2012) at 203-04. After further discussion about the plea offer and the
court's suppression ruling, the court continued:
So under those facts it's still a case of a small amount of cocaine
apparently found on you. It would appear to me that it's still a case that
probably ought to be resolved, but I can't make them put an offer on the
table and I can't make you take the offer nor can I even try to persuade
you to take the offer. Because if I try to twist your arm, get you to take the
offer and you do and you goes [sic] up on appeal, then you'll say rightly I
was coerced by the judge into accepting the offer. And the Court of
Appeals would say that's true. And I can't make the State put the offer on
the table. All I can suggest to the State is let's be reasonable, it was a
good offer before, it's not a lot to say it's a bad offer today.
RP (Oct. 16, 2012) at 210. Lee responded, "That's all I'm asking." RP (Oct. 16, 2012)
at 210. The court addressed the State, "Counsel, whatever the current offer is needs -
if there's one needs to be conveyed to him. That's all I want. Ifthe State says there's
no offer, you know, I can't make you put an offer on the table." RP (Oct. 16, 2012) at
211. Lee responded, "But be fair." RP (Oct. 16, 2012) at 211. The court told Lee:
I don't know if you're inclined to take an offer or consider an offer or even
want another offer. A lot of times we get to the stage of trial and the
defense says, you know, I'm going to win this case, frankly, I don't care
about an offer. That's up to you.
RP (Oct. 16, 2012) at 212. Lee responded, "Yeah. I mean, just like you said, at least, I
got a choice . . . ." RP (Oct. 16, 2012) at 212. The trial court suggested to the deputy
prosecutor, "So, if it would be productive to go down, talk to your office and say, you
know, what offer is appropriate to put on the table now. If not, then we'll go pick a jury."
RP(Oct. 16, 2012) at 212-13.
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After a brief recess, the State offered to allow Lee to plead guilty to one count of
solicitation to deliver cocaine. The deputy prosecutor explained the standard range
sentence, the offender score calculation, and its sentence recommendation. The court
also explained the State's plea offer to Lee, including the standard range for the
charged offense.
Lee continued to express confusion and dissatisfaction with the court's ruling on
his suppression motion. The court responded with an extended explanation of the
suppression ruling and further discussion about the offender score calculation for the
charged offense and the plea offer offense.2 The court continued:
Let me tell you, Mr. Lee, my concern, it's always something I have to be
concerned about is that frequently things go wrong, a conviction comes
up, things go badly and then the defendant says, Judge, can I go back in
time and do a redo and I go back and take what I turned down, and the
answer is no, you can't.
And then it will go up on appeal and your argument to the Court of
Appeals is, well, I didn't take it because I didn't know. Well, it's my job to
make sure you know, you understand, and that if you say no to this offer
you're doing it understanding the consequences, the potential
consequences.
RP (Oct. 16, 2012) at 225. The court then acknowledged that jurors were waiting.3 The
deputy prosecutor stated, "And so it's clear for the defendant, the [new] offer will remain
open until 4:00 p.m. so that there's a clear time." RP (Oct. 16, 2012) at 235. After
another brief recess, Lee accepted the plea.
2As to the court's extensive explanation to Lee, his attorney said, "Your Honor,
it's unusual that we have this level of discussion with the bench." Lee agreed, "It is." RP
(Oct. 16, 2012) at 224.
3By this time, jurors had been waiting for two days.
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At sentencing, Lee moved to withdraw his plea. He argued that his plea was
not voluntary because (1) he had unspecified mental health issues, (2) he did not
have enough time to consider the offer before voir dire was scheduled to begin, and
(3) defense counsel was ineffective. The court denied Lee's motion. Lee appeals.
DISCUSSION
Involuntary Plea
Due process requires a defendant's guilty plea to be made knowingly,
intelligently, and voluntarily. State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49(2006). "Whether a plea is knowingly, intelligently, and voluntarily made is determined
from a totality of the circumstances." State v. Branch, 129 Wn.2d 635, 642, 919 P.2d
1228 (1996). A court must allow a defendant to withdraw a guilty plea as necessary to
correct a manifest injustice. CrR 4.2(f). A manifest injustice occurs when a defendant's
plea was involuntary. State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991).
Lee argues that his plea was rendered involuntary by the court's intervention in
plea negotiations. He claims that the court's recommendation that the State renew its
plea offer and its statement that "frequently things go wrong" at trial pressured him into
accepting the plea.
A defendant challenging the voluntariness of his plea bears a heavy burden to
show that the plea was coerced. State v. Frederick, 100 Wn.2d 550, 558, 674 P.2d 136(1983), overruled on other grounds by Thompson v. Dep't of Licensing, 138 Wn.2d 783,
982 P.2d 601 (1999). The task is especially difficult "where there are other apparent
reasons for pleading guilty, such as a generous plea bargain or virtually incontestable
evidence of guilt." Frederick, 100 Wn.2d at 558. When a defendant signs a written plea
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statement, acknowledges that he has read and understood it, and then participates in
an extensive colloquy with the court, the presumption of voluntariness is "well nigh
irrefutable." State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982). However,
when a trial court pressures or coerces a defendant, that influence may render the guilty
plea involuntary. State v. Wakefield, 130 Wn.2d 464, 473, 925 P.2d 183 (1996). "Trial
judges are to refrain from offering defendants any advice, direct or implied, about the
wisdom of pleading guilty." State v. Watson, 159 Wn.2d 162, 165, 149 P.3d 360 (2006).
Here, Lee fails to establish that the court's actions undermined the voluntariness
of his plea. The record shows that the court did not advise Lee to plead guilty. After
Lee voiced his disappointment over a prior plea offer's expiration, the State expressed
willingness to extend a new offer. The court then conducted a lengthy colloquy with Lee
about his options. The court explained that the evidence against Lee was strong
because the State would be permitted to introduce the cocaine found in Lee's sock.
The court compared the sentencing range if Lee was convicted at trial with the
sentencing recommendation the State would make under the plea. The court
emphasized that only Lee could decide whether to accept or reject the offer and that he
should do so after consulting with defense counsel. The court's "frequentlythings go
wrong" comment, in context, was meant to relay the court's own experience that
defendants often express a desire to accept a pretrial plea offer once convicted at trial.
This comment came in response to defense counsel's remark that Lee did not
understand why the State's prior plea offer expired when he chose to take the case to
trial.
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Lee compares his case to Wakefield and Watson. Neither case controls. In
Wakefield, the defendant accepted a plea offer immediately after the court promised a
standard range sentence, but the court later imposed an exceptional sentence.
Wakefield, 130 Wn.2d at 469. Because it was likely the defendant relied on the court's
promise in accepting the plea, the plea was deemed involuntary. Wakefield, 130 Wn.2d
at 475. In Watson, it was held to be "wholly inappropriate" for the court to tell a
defendant, "I really think you should take their offer," but the court's statement did not
affect the voluntariness of the plea because the defendant entered his plea several
months later in front of a different judge. Watson, 159 Wn.2d at 163, 165. Here, the
court neither promised a more lenient sentence, as in Wakefield, nor urged Lee to take
the State's offer, as in Watson.
Lee also argues that his plea was involuntary because he did not understand that
by pleading guilty, he was giving up his right to appeal the court's ruling on his
suppression motion. A defendant may waive his or her constitutional right to appeal,
but the waiver must be made intelligently, voluntarily, and with an understanding of the
consequences. State v. Perkins, 108 Wn.2d 212, 217-18, 737 P.2d 250 (1987).
In State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998), the defendant
acknowledged as part of the plea agreement that he understood he was giving up the
right to appeal. Smith, 134 Wn.2d at 852-53. However, defense counsel told the court
that Smith reserved the right to appeal the court's suppression ruling. Smith, 134
Wn.2d at 852-53. Neither the court nor the State corrected this inaccurate statement.
Smith, 134 Wn.2d at 853. Our Supreme Court determined Smith's plea was involuntary
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because it was questionable whether Smith knowingly, voluntarily, and intelligently
relinquished the right to appeal the suppression ruling. Smith, 134 Wn.2d at 853.
Here, while Lee expressed displeasure over the suppression ruling, the record
shows he pleaded guilty after reviewing the statement on plea of guilty with his attorney.
He signed the plea statement acknowledging that he read and understood its terms.
The written plea statement provided that Lee waived his "right to appeal a determination
of guilt after a trial." During the lengthy plea colloquy, the deputy prosecutor asked Lee
if he understood that he would be giving up this right, and Lee stated that he did. The
court accepted his plea, finding it was knowingly, voluntarily, and intelligently made.
When Lee later made good on his earlier threat to withdraw his plea,4 the court noted
that by pleading guilty, Lee had forfeited the right to appeal the suppression hearing.
Lee argued numerous grounds to support his motion to withdraw the plea below. But
the record shows he never claimed that he did not know or understand that by pleading
guilty, he waived the right to appeal the suppression motion. We are not persuaded by
Lee's involuntary guilty plea claim.
Statement of Additional Grounds
Lee raises several additional arguments in a pro se statement of additional
grounds. He contends that his arrest constituted an unlawful seizure because CCO
Tavarez did not have the authority to arrest him. But by pleading guilty, Lee waived
4The record shows that while the defense attorney reviewed the plea paperwork
with Lee, Lee told his attorney that if he was later unhappy with the plea deal, he would
move to withdraw the plea of guilty and allege he did not understand the nature of the
plea. Plea negotiations occurred over a three-hour period.
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any challenge to the legality of the search or seizure. State v. Cross, 156 Wn.2d 580,
618, 132P.3d80(2006).
Lee argues that amending the charge from simple possession to possession with
intent to manufacture or deliver constituted prosecutorial vindictiveness.
Prosecutorial vindictiveness occurs when the State charges a defendant with a more
serious crime "in retaliation for a defendant's lawful exercise of a procedural right."
State v. McKenzie. 31 Wn. App. 450, 452, 642 P.2d 760 (1981). But "[a] prosecutor
may increase an initial charge when a fully informed and represented defendant refuses
to plead guilty to a lesser charge." State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d
1222 (1998) (citing United States v. Goodwin. 457 U.S. 368, 378-80, 102 S. Ct. 2485,
73 L. Ed. 2d 74 (1982)). "If the only showing of vindictiveness is the addition before trial
of new charges for which the State believes there is sufficient evidence to support a
conviction, constitutionally impermissible conduct has not been shown." State v. Fryer.
36 Wn. App. 312, 317, 673 P.2d 881 (1983). Because the amended charge was based
on the evidence, not prosecutorial vindictiveness, Lee's claim fails.
Lee claims that the court incorrectly calculated his offender score. He first
argues that two 1998 convictions for delivery of material in lieu of a controlled substance
and possession of cocaine, both class C felonies, should have washed out. Under
RCW 9.94A.525(2)(c), certain class C felony convictions will not be counted in an
offender score if, following release from confinement, the offender spent five
consecutive years in the community without committing any crime that subsequently
results in a conviction. But the State presented evidence at sentencing that Lee was
incarcerated on the 1998 convictions between 1998 and 2004 and was convicted of a
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new crime in 2006. Consequently, Lee's 1998 convictions do not wash out. Lee also
claims the court included a 2009 conviction for possession of cocaine that was
dismissed. A review of the record shows that this conviction was not used in calculating
Lee's offender score.
Lee claims that his plea was involuntary because he was misinformed that the
sentence carried a term of community custody. "A guilty plea is not knowingly made
when it is based on misinformation regarding sentencing consequences." In re Pers.
Restraint of Quinn. 154 Wn. App. 816, 835-36, 226 P.3d 208 (2010) (citing State v.
Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988)). Community custody constitutes
such a sentencing consequence, and misinformation about mandatory community
custody may render a plea involuntary. Mendoza. 157 Wn.2d at 588.
Here, the State correctly informed Lee that community custody would not be
imposed as part of his sentence. However, at sentencing, over the State's objection,
Lee requested a drug offender sentencing alternative (DOSA), in which he would be
permitted to serve half of his sentence in prison while receiving substance abuse
treatment and half on community custody. The court advised Lee that a DOSA carried
a term of community custody:
[LEE]: Yes, I would like to ask for a DOSA, your Honor.
THE COURT: Are you ready to actually do some drug treatment
and to be on community custody in drug treatment?
[LEE]: Yes.
RP (Feb. 6, 2013) at 55-57. Lee's claim that he was misadvised of the sentencing
consequences of his plea finds no support in the record.
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Finally, Lee argues that the court erred in failing to address the merits of his
motion to withdraw his plea and refusing to appoint new defense counsel. These
allegations, unsupported by argument or legal authority, are too conclusory to permit
review. See RAP 10.10(c); State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345(2008) (appellate court will not consider statement of additional grounds for review
unless it informs the court of the nature and occurrence of alleged errors).
We affirm Lee's judgment and sentence.
WE CONCUR:
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