State Of Washington v. Julrar Jacob S. Golveo

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68959-2-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JULRAR JACOB GOLEVO,
Appellant. FILED: July 29, 2013
Appelwick, J. — Withdrawal of a guilty plea on the basis of ineffective
:rassistance of counsel requires a showing of deficient performance and prejudice.
~|Faitgre to allege or prove prejudice is fatal to a claim of ineffective assistance of
-^.T^GOLwreel. When prejudice is not alleged, it is not error to deny a motion for an
~j±evii§ntiary hearing prior to dismissal. We affirm.
oG* ° FACTS
On July 8, 2009, Charles Osborne and Jay Ott stole a car belonging to
Julmar Golveo. After returning the car, Osborne and Ott agreed to meet Julmar
at a Walmart in South Everett on July 10 to resolve his demands for
compensation. At the Walmart, Julmar Golveo, Julrar Golveo, Julvic Golveo,
Jacob Vance, and Altan Od Nyam-Ochir attacked Osborne and Ott with bats and
sticks. They hit Ott with a bat on the head, back, and arms until he ran away.
Vance stomped on Osborne as Osborne lay on the ground and others hit him
with a bat and stabbed him with a stick.
No. 68959-2-1/2
Osborne suffered hemorrhaging on his brain, multiple broken bones in his
face, severe eye damage, and a compression fracture of his spine. Osborne was
in a coma for several days, remained hospitalized for over a month, and was
blind in one eye as a result of the incident. Ott received stitches for a head
wound.
Several witnesses, including Ott, identified Julrar Golveo to police as one
of the men who attacked Osborne and Ott. Police arrested Vance on July 22.
Vance admitted to participating in the assault and described Julrar Golveo's
participation. According to Vance, Julrar Golveo punched Osborne in the head
and later admitted to Vance that he had used brass knuckles on Osborne.
On June 8, 2010, the State charged Julrar Golveo (hereinafter "Golveo")
with one count of first degree assault against Osborne. On February 4, 2011, the
State amended the information to add a deadly weapon enhancement to the
initial charge, as well as a charge of second degree assault while armed with a
deadly weapon against Ott.
On March 16, 2011, Golveo entered a guilty plea to an amended
information charging attempted first degree assault against Osborne.
In June 2011, prior to sentencing, Golveo, represented by new counsel,
filed a motion to withdraw his plea, claiming he received ineffective assistance of
counsel, because his attorney was inexperienced and failed to conduct an
independent investigation of the State's case. The State responded with a
No. 68959-2-1/3
declaration of Golveo's prior counsel. Golveo served prior counsel with
interrogatories and a subpoena.
At a hearing on his motion to withdraw his plea, Golveo requested an
evidentiary hearing to explore counsel's level of experience and competence, in
light of counsel's failure to respond to the interrogatories and opposition to the
subpoena. Finding that (1) there was no dispute as to the extent of counsel's
investigation before the plea hearing; and (2) Golveo had not alleged that
counsel provided misinformation prior to the entry of the plea, the trial court
denied his request for an evidentiary hearing. Following argument, the trial court
denied the motion to withdraw the plea. Given Golveo's failure to make any
showing of prejudice, the trial court rejected his claim of ineffective assistance of
counsel.
Golveo appeals.
DECISION
Under CrR 4.2(f), a defendant must be allowed to withdraw a guilty plea
"whenever it appears that the withdrawal is necessary to correct a manifest
injustice." The defendant bears the burden of proving a manifest injustice. State
v. Ross, 129 Wn.2d. 279, 283-84, 916 P.2d 405 (1996). A "manifest injustice" is
one that is "obvious, directly observable, overt, not obscure." State v. Taylor, 83
Wn.2d 594, 596, 521 P.2d 699 (1974). We review a superior court's denial of a
motion to withdraw a guilty plea for an abuse of discretion. State v. S.M., 100
Wn. App. 401, 409, 996 P.2d 1111 (2000).
No. 68959-2-1/4
Denial of effective counsel is one way to establish a manifest injustice.
State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). To establish
ineffective assistance of counsel, a defendant must prove that the attorney's
performance fell below an objective standard of reasonableness and that the
deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We strongly presume effective
representation. State v. McFarland. 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
When a defendant challenges his or her guilty plea on the basis of
ineffective assistance of counsel, he or she must show with reasonable
probability that, but for counsel's deficient performance, he or she would not have
pleaded guilty and would have proceeded to trial. State v. Garcia, 57 Wn. App.
927, 933, 791 P.2d 244 (1990). "Generally, this is shown by demonstrating to
the court some legal or factual matter which was not discovered by counsel or
conveyed to the defendant himself before entry of the plea of guilty." \&
Golveo contends that the trial court denied his right to due process by
refusing to hold an evidentiary hearing to allow him to inquire into counsel's
specific investigation of this case and general level of experience in representing
criminal defendants. But, Golveo failed to allege any prejudice resulting from
counsel's alleged failure to investigate and lack of experience. Courts are not
required to address both components of a claim of ineffective assistance of
counsel if the defendant makes an insufficient showing on one. Strickland, 466
U.S. at 697. Because Golveo did not identify any prejudice resulting from
No. 68959-2-1/5
counsel's alleged deficiencies, the trial court did not abuse its discretion by
refusing to hold an evidentiary hearing to address the extent of the alleged
deficiencies. See Garcia. 57 Wn. App. at 935 (where existing record is adequate
to dispose of claim of ineffective assistance of counsel, evidentiary hearing is
unnecessary).
Relying on State v. A.N.J., 168 Wn.2d 91, 225 P.3d 956 (2010), Golveo
nonetheless claims that he is entitled to a presumption of prejudice. He is
incorrect. In A.N.J., defense counsel representing a 12 year old defendant on a
charge of first degree child molestation made no discovery requests, did not
speak to the investigating officer, and failed to speak to witnesses who may have
been able to testify that the 5 year old victim had been abused by others, id. at
100-01. But, the court specifically held that counsel's performance was deficient
and A.N.J, was prejudiced based on the fact that counsel misinformed A.N.J, of
the consequences of his plea. JcLat 119.
Here, it is undisputed that defense counsel reviewed over 800 pages of
discovery, including transcripts of detailed witness interviews, met with Golveo
several times to discuss the case and review the discovery, reviewed the State's
plea offer with Golveo, and recommended continuing the case until he had
completed his scheduled witness interviews. Golveo did not allege that counsel
misinformed him of, or failed to discover, any legal or factual matter material to
the case prior to the entry of the plea. Under these circumstances, the trial court
correctly determined that Golveo failed to establish ineffective assistance of
No. 68959-2-1/6
counsel. A.N.J, does not require a different result. A manifest injustice was not
shown. Denial of the motion to withdraw the plea was appropriate.
Affirmed.
WE CONCUR:
. ,wO0. ry C**^.