State Of Washington, V Qualagine Apero Hudson

Filed
Washington State
Court of Appeals
Division Two
October 16, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49322-5-II
Respondent,
v. UNPUBLISHED OPINION
QUALAGINE APERO HUDSON,
Appellant.
MAXA, C.J. – Qualagine Hudson appeals the trial court’s ruling after an evidentiary
hearing that Hudson breached his plea agreement with the State regarding multiple charges
arising from his involvement in an automobile theft ring. We hold that (1) the State provided
sufficient evidence that Hudson breached his plea agreement by violating the law after executing
the agreement, and (2) Hudson did not receive ineffective assistance of counsel at the evidentiary
hearing. However, we hold that the trial court erred in failing to conduct a resentencing hearing
before it entered Hudson’s judgment and sentence.
Accordingly, we affirm the trial court’s ruling that Hudson breached his plea agreement,
but we vacate the trial court’s judgment and sentence and remand for the trial court to conduct a
sentencing hearing and to resentence Hudson.
FACTS
Plea Agreement
In February 2012, the State charged Hudson in Pierce County with 11 counts arising from
his involvement in an automobile theft ring: four counts of trafficking in stolen property in the
No. 49322-5-II
first degree, three counts of theft of a motor vehicle, two counts of attempted theft of a motor
vehicle, one count of leading organized crime, and one count of conspiracy to commit theft of a
motor vehicle.
In July 2012, Hudson entered into a plea agreement and contract with the State in which
he agreed to plead guilty to all 11 counts. The plea agreement stated that Hudson would comply
with numerous conditions, including that he must not “violate any municipal, county, state, or
federal law.” Clerk’s Papers (CP) at 84. If Hudson completely performed under the agreement,
the State agreed to move to vacate all charges except a single count of attempted theft of a motor
vehicle and to proceed to sentencing on that count alone.
Based on the plea agreement, Hudson pleaded guilty to all charges in July 2012. He then
was released from custody.
Alleged Violation of Plea Agreement
In October 2012, the King County Sheriff’s Office developed probable cause to arrest
Hudson regarding the theft and attempted trafficking of a stolen 1957 automobile valued at
$100,000. Hudson was arrested on October 31.
In November, the State filed a motion in Pierce County for a bench warrant based on an
allegation that Hudson had breached the plea agreement. The State indicated that it had received
information that Hudson had been charged in King County with felonies related to the theft and
attempted sale of a vintage automobile. The trial court issued the bench warrant. Hudson was
apprehended and held in custody pending being sentenced on his guilty pleas. However, the
State did not charge Hudson in King County for the vintage automobile theft at that time.
In June 2014 (following multiple continuances), Hudson came before the trial court for
sentencing on his July 2012 guilty pleas. The court denied Hudson’s request for an evidentiary
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hearing to determine whether he had violated the plea agreement. Instead, the court decided to
proceed to sentencing and imposed a sentence of 149 months for the leading organized crime
count. After he was sentenced, Hudson filed a motion to withdraw his guilty plea or for specific
performance of the plea agreement.
Hudson appealed his sentence, asserting that due process required an evidentiary hearing
on the issue of breach of his plea agreement before a sentence could be entered. State v. Hudson,
No. 73938-7-I, (Wash. Ct. App. Dec. 28, 2015) (unpublished),
http://www.courts.wa.gov/opinions/pdf/739387.pdf. In December 2015, Division One of this
court held that Hudson was entitled to an evidentiary hearing, vacated Hudson’s judgment and
sentence, and remanded to the trial court. Id. at 8, 10.
In October 2015, while the appeal was pending, the State finally had charged Hudson in
King County for the October 2012 vintage automobile theft. Hudson pleaded guilty in
November 2015 to second degree taking a vehicle without permission and was sentenced in
March 2016.
Evidentiary Hearing
The trial court conducted an evidentiary hearing in July 2016. In support of its contention
that Hudson breached the plea agreement, the State marked as exhibits a police incident report
describing Hudson’s October 2012 arrest and the March 2016 King County judgment and
sentence. The court admitted these exhibits, and Hudson stated that he had no objection.
The State also informed the court that detectives were present in court to testify that
Hudson did not comply with other agreement requirements in addition to violating the law. But
those detectives were not called to testify at the hearing.
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No. 49322-5-II
The trial court reviewed the plea agreement and contract, but the court did not mark it as
an exhibit or formally admit it into evidence. However, the plea agreement had been filed with
the clerk’s office in May 2015 and therefore was part of the court file. Hudson did not object to
the court reviewing the agreement.
After reviewing the exhibits and plea agreement, the trial court questioned whether
Hudson wanted to contest the breach of the plea agreement because “this is pretty
straightforward.” Report of Proceedings (RP) at 6. The court stated, “It’s clear that the crime
that he was convicted of occurred . . . after the date of the agreement which precluded him from
engaging in criminal activity.” RP at 6-7. Defense counsel stated, “Understood, Your Honor”
and asked to consult with Hudson. RP at 7.
Hudson then requested to testify to make a record. Defense counsel stated that Hudson
wanted to “address his performance on [the] contract which he believes is relevant to this issue.”
RP at 8. The trial court placed Hudson under oath. The court then stated, “So, Mr. Hudson, I’ve
had a chance to review the contract. The contract is clear. . . . There’s evidence that you
breached the contract. You breached the agreement. Under contract law, when you breach an
agreement you excuse the other party’s performance.” RP at 8-9.
Hudson testified that after the charges in King County were filed “I just told [defense
counsel] I want to skip the hearing and possibly go straight to sentencing . . . maybe addressing
some mitigating circumstances as far [as] the sentencing is concerned.” RP at 9. He stated, “It’s
kind of washed after I was arrested but, at the same time, I had explanations and reasons why
things went the way they did.” RP at 10. Hudson further testified that he had continued to assist
law enforcement after his arrest in King County, including the possibility of testifying in a
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murder case. He concluded, “I don’t want to be here . . . pushing something that the Court said
was already a dead issue.” RP at 11.
The trial court orally denied Hudson’s motion to withdraw his guilty plea based on the
evidence presented at the hearing. Several months later, in December 2016, the court entered a
judgment and sentence that reflected the same sentence and terms as the June 2014 judgment and
sentence. The court did not conduct a new sentencing hearing. Hudson objected to entry of the
judgment and sentence without a formal sentencing hearing, which he asserted the appellate
court’s holding in his first appeal required.
The trial court subsequently entered findings of fact and conclusions of law regarding the
July 2016 evidentiary hearing. The court found that the plea agreement required Hudson to
maintain law abiding behavior and that after his release he was charged and convicted in King
County of theft of a vintage automobile. The court also found that at the hearing Hudson
admitted that he had violated the conditions of his plea agreement in three ways, including
pleading guilty to a crime. The court concluded that Hudson had breached the plea agreement by
committing a felony after being released from custody to perform the requirements under the
plea agreement.
Hudson appeals the trial court’s ruling that he breached his plea agreement and his
sentence.
ANALYSIS
A. SUFFICIENCY OF EVIDENCE – BREACH OF A PLEA AGREEMENT
Hudson argues that the State did not present sufficient evidence to support the trial
court’s factual findings and to prove that he breached the plea agreement because (1) the two
exhibits the State introduced into evidence constituted hearsay, (2) the plea agreement was not
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No. 49322-5-II
admitted into evidence, and (3) the doctrine of laches precluded the court from considering his
King County conviction. We reject these arguments.1
1. Legal Principles
A plea agreement is a contract between the defendant and the state. In re Pers. Restraint
of Lord, 152 Wash. 2d 182, 188, 94 P.3d 952 (2004). Because a plea agreement involves a
defendant’s fundamental rights, due process requires the state to adhere to the agreement. Id. at
189. However, the state may rescind a plea agreement if the defendant breaches it. State v.
Townsend, 2 Wash. App. 2d 434, 438, 409 P.3d 1094 (2018).
If the state alleges that a defendant has breached a plea agreement and seeks to rescind
that agreement, due process requires that the trial court conduct an evidentiary hearing at which
the defendant can contest the state’s allegation. Id. at 439. The defendant must have an
opportunity to call witnesses and present other evidence. Id. At the hearing, the state must prove
a defendant’s breach by a preponderance of the evidence. Id. at 438.
When a plea agreement requires that the defendant commit no violations of the law while
awaiting sentencing, the defendant’s subsequent felony conviction is conclusive proof that he or
she has breached the plea agreement. See id. at 439-40.
2. Hearsay Exhibits
Hudson argues that the State failed to present sufficient evidence that he breached the
plea agreement by relying solely on the police incident report and the King County judgment and
sentence, which he claims constituted hearsay. We decline to consider this argument.
1
Hudson also argues that the trial court misconstrued his statements to the court and therefore
sufficient evidence did not support the trial court’s finding that he admitted that he breached the
plea agreement. Because the evidence is sufficient to establish that Hudson breached the plea
agreement even without this finding, we do not address this argument.
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No. 49322-5-II
Hudson did not object in the trial court to admission of these exhibits. Under RAP
2.5(a), we may refuse to review any claim of error not raised in the trial court. One exception is
when the claim involves a manifest constitutional error. RAP 2.5(a)(3). However, Hudson
merely argues that the exhibits were hearsay, which does not involve a constitutional right.
Accordingly, we decline to consider Hudson’s hearsay argument.
3. Consideration of Plea Agreement
Hudson argues that the State failed to present sufficient evidence that he breached the
plea agreement because the trial court did not enter the plea agreement into evidence. He claims
that because the plea agreement was not admitted into evidence, there was no evidence that his
King County conviction violated the plea agreement. We disagree.
Hudson is correct that the plea agreement was not formally admitted into evidence.
However, several factors show that the trial court properly considered the plea agreement as
evidence at the evidentiary hearing.
First, the plea agreement was in the court file. And Hudson did not object when the trial
court stated during the evidentiary hearing that it had reviewed a copy of the plea agreement.
Second, the State quoted the condition in the plea agreement that “the defendant must not
violate any municipal, county, state, or federal law.” RP at 4. Hudson did not object to or
challenge the State’s use of the plea agreement at the hearing.
Third, when the trial court stated that the plea agreement precluded Hudson from
engaging in criminal activity, defense counsel stated that he understood. Hudson did not
challenge that statement as referring to matters outside the record.
In addition, Hudson cannot challenge the trial court’s consideration of the plea agreement
for the first time on appeal. The trial court entered a specific finding of fact that the plea
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No. 49322-5-II
agreement included a requirement that Hudson “maintain law abiding behavior.” CP at 133.
Hudson did not assign error to or otherwise challenge that finding on appeal. Unchallenged
findings are verities on appeal. See State v. Chambers, 197 Wash. App. 96, 124, 387 P.3d 1108
(2016), review denied, 188 Wash. 2d 1010 (2017) (unchallenged findings after a suppression
hearing).
In State v. Nelson, the trial court considered hearsay reports that were not formally
admitted into evidence in a suspended sentence revocation hearing. 103 Wash. 2d 760, 762, 697
P.2d 579 (1985). The appellate court noted that the defendant did not object to the failure to
introduce the reports into evidence or their use at the hearing. Id. at 766. As a result, the court
stated that the defendant waived any right of confrontation or cross examination regarding the
reports. Id. Nelson supports the conclusion that Hudson cannot challenge for the first time on
appeal the trial court’s consideration of the plea agreement.
Under the specific circumstances of this case, we hold that Hudson is precluded from
now arguing that the plea agreement was not part of the evidence the trial court properly
considered at the evidentiary hearing.2
4. Laches Claim
Hudson argues that the doctrine of laches prevented the State from relying on his King
County conviction to establish his breach of the plea agreement. He claims that the State
2
Hudson also argues that the trial court erred in finding that his testimony at the evidentiary
hearing amounted to an admission that he had violated the plea agreement. Because we hold that
the trial court properly considered the exhibits and the plea agreement, the evidence was
sufficient to prove that he violated the plea agreement even if Hudson’s own testimony was
disregarded. Therefore, we do not address this argument.
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No. 49322-5-II
improperly waited until 2015 to charge and convict him in order to satisfy the State’s burden at
his 2016 evidentiary hearing in this matter. We hold that laches is inapplicable here.3
Laches is an equitable defense to an action. Newport Yacht Basin Ass’n of Condo.
Owners v. Supreme Nw., Inc., 168 Wash. App. 56, 76, 277 P.3d 18 (2012). Laches involves two
elements: (1) inexcusable delay in commencing an action and (2) prejudice to the other party
because of the delay. Auto. United Trades Org. v. State, 175 Wash. 2d 537, 542, 286 P.3d 377
(2012). Laches is an extraordinary remedy that generally is not applied when the action is filed
within the applicable limitation period. Harmony at Madrona Park Owners’ Ass’n v. Madison
Harmony Dev., Inc., 143 Wash. App. 345, 362, 177 P.3d 755 (2008). The party asserting laches
has the burden of proof. Newport Yacht Basin, 168 Wash. App. at 77.
The main component of laches is not the length of the delay, but the resulting prejudice to
others. Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wash. 2d 840, 849, 991 P.2d 1161
(2000). Application of laches requires some change in a party’s condition that would make a
delay in asserting a claim inequitable. Newport Yacht Basin, 168 Wash. App. at 77.
Here, Hudson did not submit any evidence to support either laches element. Nothing in
the record explains the delay in filing the King County charges, so Hudson cannot establish that
the delay was inexcusable. And Hudson has not shown that the State asserting the charges in
2015 rather than in 2012 prejudiced him. Accordingly, we hold that laches does not preclude the
State from rescinding the plea agreement.
3
Initially, it is unclear whether laches applies in the context of rescinding a plea agreement.
Hudson argues that because plea agreements are contracts, laches should be available as a
defense as in any breach of contract action. But he cites no cases applying laches in a criminal
context. The State does not argue that laches cannot apply as a matter of law. Therefore, we
assume without deciding that laches could apply here.
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No. 49322-5-II
5. Summary
The trial court properly considered the plea agreement provision stating that Hudson
could not violate any law and the evidence that Hudson was convicted of a felony after he
entered into the plea agreement. Hudson’s felony conviction was conclusive proof that he
violated the plea agreement. Townsend, 2 Wash. App. 2d at 439-40. Accordingly, we hold that the
evidence was sufficient for the trial court to conclude that Hudson violated the plea agreement.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Hudson argues that he received ineffective assistance because defense counsel did not
1) object to the entry of the police incident report or King County judgment and sentence at the
evidentiary hearing, 2) contest that Hudson had breached the plea agreement, 3) prevent Hudson
from testifying about mitigating circumstances before the trial court actually ruled on breach, or
4) raise laches as a defense to rescission of the plea agreement. We disagree.
1. Legal Principles
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. Estes, 188 Wash. 2d 450, 457, 395 P.3d 1045 (2017). We review ineffective
assistance of counsel claims de novo. Id.
To prevail on an ineffective assistance claim, the defendant must show both that (1)
defense counsel’s representation was deficient and (2) the deficient representation prejudiced
him or her. Id. at 457-58. Representation is deficient if, after considering all the circumstances,
it falls below an objective standard of reasonableness. Id. at 458. Prejudice exists if there is a
reasonable probability that, except for counsel’s errors, the result of the proceeding would have
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No. 49322-5-II
been different. Id. It is not enough that ineffective assistance conceivably impacted the case’s
outcome; the defendant must affirmatively show prejudice. Id.
We begin our analysis with a strong presumption that counsel’s performance was
reasonable. Id. To rebut this presumption, the defendant must establish the absence of any
“conceivable legitimate tactic explaining counsel’s performance.” State v. Grier, 171 Wash. 2d 17,
33, 246 P.3d 1260 (2011). If defense counsel’s conduct can be considered to be a legitimate trial
strategy or tactic, counsel’s performance is not deficient. Estes, 188 Wash. 2d at 458.
2. Analysis
Regarding the failure to object to the hearsay exhibits, Hudson cannot demonstrate
prejudice. If defense counsel had objected and the trial court concluded that the exhibits
constituted hearsay, the State easily could have obtained a certified copy of the King County
judgment and sentence and called the officer who prepared the incident report to testify in
person.
Regarding the failure to contest Hudson’s breach of the plea agreement and allowing
Hudson to testify about mitigating circumstances, defense counsel apparently made a strategic
decision to present mitigation evidence rather than to contest the prior conviction in King
County. Given Hudson’s lengthy criminal record and commission of an additional felony while
out on pre-sentencing release, the trial court may have decided to impose a higher sentence than
it did in 2014. Defense counsel evidently determined the best way to avoid this outcome was to
persuade the court that Hudson’s mitigation evidence entitled him to a more lenient sentence. In
any event, contesting Hudson’s breach would have been futile because, as noted above, his
subsequent conviction was conclusive proof of the breach of the plea agreement. Townsend, 2
Wash. App. 2d at 439-40.
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No. 49322-5-II
Regarding the laches argument, as discussed above laches clearly is inapplicable on this
record. Therefore, defense counsel was not deficient in failing to assert that argument.
Accordingly, we reject Hudson’s ineffective assistance of counsel claim.
C. FAILURE TO CONDUCT A RESENTENCING HEARING
In his statement of additional grounds, Hudson asserts that the trial court erred in
imposing the same sentence the court imposed in 2014 without conducting a resentencing
hearing. We agree.
In the first appeal, the appellate court’s holding was that Hudson was entitled to an
evidentiary hearing on whether he breached the plea agreement. Hudson, No. 73938-7-I, slip op.
at 8. In addition, the court expressly stated that resentencing was required on remand. In the
introduction, the court stated that it was vacating Hudson’s judgment and sentence. Id. at 1. In
its conclusion, the court stated, “We vacate the judgment and sentence and remand for
resentencing consistent with this opinion.” Id. at 10 (emphasis added).
The scope of the appellate court’s mandate limits a trial court’s discretion to resentence
on remand. State v. Kilgore, 167 Wash. 2d 28, 42, 216 P.3d 393 (2009). When the appellate
court’s opinion states that the court orders remand for resentencing, the resentencing court has
broad discretion to resentence on all counts. State v. Toney, 149 Wash. App. 787, 792-93, 205
P.3d 944 (2009).
Here, the trial court simply entered a judgment and sentence that was identical to the
2014 judgment and sentence. The trial court failed to follow the appellate court’s directive to
resentence Hudson. And the trial court apparently failed to recognize that it had discretion under
the appellate court’s mandate to impose a different sentence than the court imposed in 2014.
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No. 49322-5-II
Accordingly, the trial court erred in failing to conduct a sentencing hearing and resentence
Hudson.
CONCLUSION
We affirm the trial court’s ruling that Hudson breached his plea agreement, but we vacate
the trial court’s judgment and sentence and remand for the trial court to conduct a sentencing
hearing and resentence Hudson.
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.
MAXA, C.J.
We concur:
BJORGEN, J.
LEE, J.
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