State Of Washington v. Terry Lane Hollis

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 77386-1-1 consolidated with
) No. 77387-9-1
Respondent, ) No. 77388-7-1 C=t
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TERRY LANE HOLLIS, )
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) FILED: June 3, 2019
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MANN, A.C.J — Terry Hollis entered a plea agreement to resolve multiple felony
charges, but then moved to withdraw the plea agreement claiming his two attorneys
were ineffective. After the trial court appointed new counsel and held an evidentiary
hearing, the court denied Hollis's motion to withdraw his plea. On appeal, Hollis
contends that the trial court's denial was in error. We affirm.
The State charged Hollis with numerous criminal offenses in three separate
cases. On September 29, 2015, Hollis broke into a residence and stole two guns. The
State charged Hollis with residential burglary, first degree unlawful possession of a
firearm, two counts of theft of a firearm, and first degree theft.1
1 No. 16-1-00983-9 SEA.
No. 77386-1-1/2
On October 21, 2015, Hollis pawned a television that his brother stole during a
burglary on September 30, 2015. The State charged Hollis with first degree trafficking
in stolen property.2
While investigating the September 2015 burglaries, the Bellevue Police
Department got a court order to track Hollis's car using its Global Positioning System
(GPS). The GPS tracker placed Hollis's car near the scene of an armed robbery of a
pawn shop on February 19, 2019. The State arrested and charged Hollis with first
degree robbery and first degree trafficking in stolen property.3
Initially, the court appointed Matt Hartman to represent Hollis on all three cases.
Hollis later hired private counsel, Gene Piculell, to represent him on the first degree
robbery case. Hartman continued to represent Hollis in the other two cases.
Hollis faced 35 years in prison if convicted of all the charges in the residential
burglary case.4 The first degree robbery charge would be a second strike offense.
Because of the severity of the charges and lengthy sentencing exposure, Hollis entered
a global plea agreement resolving all three cases. Hollis pleaded guilty to first degree
trafficking in stolen property, first degree robbery, residential burglary, and theft of a
firearm. The State and Hollis agreed to a total sentence of 145 months. In exchange,
the State agreed to dismiss a count of first degree trafficking in stolen property, first
degree unlawful possession of a firearm, theft of a firearm, and first degree theft. The
State also agreed not to add additional counts of first degree unlawful possession of a
firearm and theft of a firearm. The United States Attorney's Office also agreed to
2 No. 16-1-00181-1 SEA.
3 No. 16-1-00681-3 SEA.
4 No. 16-1-00983-9 SEA.
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"forego prosecution of federal charges related to" the three cases charged by the King
County Prosecuting Attorney.
Before sentencing, Hollis informed the trial court that he wanted to withdraw his
pleas because he felt rushed, scared, and wanted more time and help understanding
his discovery. The trial court appointed new counsel, Emily Gause, who filed a motion
to withdraw the plea agreement. Hollis claimed that his counsel was ineffective,
rendering his plea involuntary.
The trial court held an evidentiary hearing, taking testimony from Hartman,
Piculell, and Hollis. The trial court denied Hollis's motion, finding portions of Hollis's
testimony not credible, and concluded that Hollis's counsel was effective, his plea was
voluntary, and no manifest injustice would result. Hollis appeals.
II.
A denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion.
State v. A.N.J., 168 Wash. 2d 91, 106, 225 P.3d 956 (2010). A court shall allow a
defendant to withdraw a guilty plea "whenever it appears that the withdrawal is
necessary to correct a manifest injustice." CrR 4.2(f). "[A]n involuntary plea is an
indicator of 'manifest injustice." State v. Osborne, 102 Wash. 2d 87, 97, 684 P.2d 683
(1984). A defendant can also show manifest injustice if he received ineffective
assistance of counsel before entering a guilty plea. A.N.J., 168 Wash. 2d at 109.
Ineffective assistance of counsel claims present a mixed question of law and fact and
are reviewed de novo. A.N.J., 168 Wash. 2d at 109.
To demonstrate ineffective assistance of counsel, the defendant must show "(1)
that his counsel's performance fell below an objective standard of reasonableness and,
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if so,(2) that counsel's poor work prejudiced him." A.N.J., 168 Wash. 2d at 109. There is
a strong presumption that counsel's performance was reasonable. In re Pers. Restraint
of Caldellis, 187 Wash. 2d 127, 141, 385 P.3d 135 (2016). If the alleged deficiency can be
characterized as a legitimate trial strategy or tactic, then counsel was not deficient.
Caldellis, 187 Wash. 2d at 141.
When analyzing prejudice related to effective assistance of counsel during plea
negotiations, the focus is on "whether counsel's constitutionally ineffective performance
affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985). "[T]he defendant must show that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at 58.
We review challenged factual findings for substantial evidence. State v. Hill, 123
Wash. 2d 641, 647, 870 P.2d 313(1994). Substantial evidence exists when the record
contains sufficient evidence to persuade a "fair-minded, rational person, that the
declared premise is true." In re Pers. Restraint of Davis, 152 Wash. 2d 647, 679-80, 101
P.3d 1 (2004). "The party challenging a factual finding bears the burden of proving that
it is not supported by substantial evidence." Davis, 152 Wash. 2d at 680. "A trial court's
credibility determination cannot be reviewed on appeal, even to the extent there may be
other reasonable interpretations of the evidence." Davis, 152 Wash. 2d at 680.
A.
Hollis first contends that Piculell was ineffective for failing to interview witnesses.
We disagree. Hollis has not explained which witnesses Piculell should have
interviewed. Piculell represented Hollis on the first degree robbery case. The probable
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cause to charge Hollis with first degree robbery was based on circumstantial evidence.
A GPS tracker on Hollis's car showed his vehicle parked near the pawn shop while it
was being robbed. No witnesses were identified in the probable cause statement.
Hollis cannot show that Piculell's performance was deficient without explaining
the witnesses that Piculell should have interviewed and how those interviews would
have affected Hollis's decision to plead guilty. Therefore, Hollis's claim of ineffective
assistance of counsel fails.
B.
Hollis next argues that both of his counsels' performances fell below an objective
standard of reasonableness because they failed to research the relevant law on
suppressing search warrants. We agree that only Piculell's performance was deficient,
but conclude that Hollis was not prejudiced by his counsel's deficiency.
It is reasonable conduct for an attorney to research the relevant law. State v.
Kvllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009). In the context of plea agreements,
the analysis depends in large part on whether the added research "would have led
counsel to change his recommendation as to the plea." See Hill, 474 U.S. at 59
(discussing the standard in the context of discovering exculpatory evidence). "Mhese
predictions of the outcome at a possible trial, where necessary, should be made
objectively, without regard for the 'idiosyncrasies of the particular decisionmaker." Hill,
474 U.S. at 60 (quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)).
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1.
First we address Piculell's representation. Counsel must, at the very least,
"evaluate the evidence against the accused and the likelihood of a conviction if the case
proceeds to trial so that the defendant can make a meaningful decision as to whether or
not to plead guilty." A.N.J., 168 Wash. 2d at 111-12.
During the evidentiary hearing, the State asked Piculell if he "[saw] any legal
basis to challenge those search warrants when [he] reviewed them." Piculell replied:
I did not review them in detail for that; absolutely did not. I was aware of
the conclusion, and communicated that to Mr. Hollis. 1 did—I did not
parcel out that search warrant; urn, I did not research that search warrant;
urn, I did not ask him about any of the involved parties, or [confidential
informants]—anything associated with that search warrant.
Piculell explained that the reason he did not research the relevant law relating to
suppressing the warrants was because when Hollis retained him, the focus was
negotiating a plea agreement.
Before recommending a defendant enter a plea agreement, a defense attorney
must evaluate the evidence against the accused to accurately assess the plea
agreement in relation to the charges. A.N.J., 168 Wash. 2d at 111-12. This requires, at
the very least, a cursory review of the validity of the search warrants that the State used
to obtain the evidence.
Here, the evidence was circumstantial and stemmed from the court order for a
GPS tracker. Piculell explained that he did not review the warrants for any legal basis
to challenge them; thus his ability to assess the plea agreement and negotiate on behalf
of his client was impaired. It was not reasonable for Piculell to rely on Hollis's desire to
enter a plea agreement without assessing the validity of the warrants before negotiating
with the State.
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While Piculell's decision not to research the law relating to the suppression of the
search warrant was deficient performance, Hollis fails to establish that there was a
reasonable probability that he would have proceeded to trial had he known that he could
challenge the basis of the search warrant. Hollis cites State v. Hinton, 179 Wash. 2d 862,
319 P.3d 9(2014), as the case that his counsel would have discovered, if he had
conducted research. In Hinton, a police officer obtained the cell phone of a suspected
drug dealer and used it to communicate with Hinton to arrange a drug deal. 179 Wash. 2d
at 870. The Hinton court concluded that "the officer's conduct invaded Hinton's private
affairs" and that Hinton's privacy interest was not extinguished when he sent messages
to a device that was not in his control. 179 Wash. 2d at 870, 873.
Hollis, however, does not explain how Hinton affects the validity of the search
warrant here. Hollis merely asserts that there was standing to challenge the warrant.
Having standing to challenge the warrant is insufficient to show that Hollis would not
have entered the global plea agreement. In Hinton, the officer communicated with the
defendant, posing as the owner of the phone, which the court held invaded Hinton's
privacy interest. Here, the text messages that formed the basis for the GPS tracker
were between Hollis and his brother. The facts are not analogous to Hinton. Therefore,
Hollis has not shown he was prejudiced by his attorney's failure.
2.
Hollis next contends that Hartman incorrectly believed that there was no standing
to challenge the search warrant and was therefore deficient. The evidence
demonstrates that Hartman's performance was not deficient because Hartman
evaluated potential motions to suppress evidence.
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No. 77386-1-1/8
Hartman interviewed the police detective and believed that the detective was not
qualified to testify about cell tower evidence. Hartman sought authorization to hire an
expert to assist him in challenging the admissibility of the evidence. Hartman also
researched the basis for challenging the search warrant and assessed the risk of an
unsuccessful suppression motion. Hartman discussed the cell tower evidence with
Hollis. Hartman also indicated that, if the case proceeded to trial, he would have
challenged the admissibility of evidence, at least to preserve the issue for appeal. No
suppression motions were filed because Hartman began negotiating a plea agreement
with the State and in his experience, filing a motion to suppress would have chilled
,
those negotiations. Therefore, Hartman's performance did not fall below an objective
standard of reasonableness.
3.
Next Hollis contends that neither of his attorneys verified the State's calculation
of Hollis's sentencing exposure, rendering their representation deficient. We disagree.
First, Hollis is not alleging that the State's calculation of his sentencing exposure
was incorrect. Second, Hollis has not cited any authority that it is ineffective assistance
of counsel when an attorney does not double check the State's calculation of a
defendant's sentencing exposure. Furthermore, the record demonstrates that both
attorneys, based on their experience, believed that the sentencing calculation was
correct. Hartman, at first, did not believe the sentencing calculation, but after
researching the issue, realized that the State's calculation was accurate. Therefore,
neither attorneys' performance fell below an objective standard of reasonableness.
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C.
Finally, Hollis contends that his attorneys failed to provide him with copies of the
discovery and thus were deficient. We disagree.
Hollis attempts to attack the trial court's credibility determination, which cannot be
reviewed on appeal. Davis 152 Wash. 2d at 680. First, Hollis testified that he asked
Piculell at every meeting for a copy of the discovery. Piculell testified that Hollis did not
request a copy of the discovery. The trial court found that Piculell's testimony was
credible and therefore this issue is not reviewable on appeal.
Second, Hollis testified that Hartman never went over any discovery, except for a
copy of the certification for determination of probable cause. Hollis claimed that he
asked Hartman for the discovery at every meeting. In contrast, Hartman testified that,
although he did not provide Hollis with a redacted copy of the discovery, he reviewed
the discovery extensively and "in great detail" with Hollis. Hartman testified that Hollis
had asked for the discovery, but Hartman believed the issue was "mooted" when the
plea negotiations began. Hartman testified that, at that point, Hollis never renewed his
interest in a copy of the discovery, and if Hollis had, he would have sought a redacted
version from the State. The trial court did not find Hollis's testimony that he repeatedly
asked Hartman for copies of the discovery credible. Again, this credibility determination
is not reviewable on appeal.
Hollis's only basis for establishing his plea was involuntary was that his counsel
was ineffective. Since we find that neither counsel was ineffective, Hollis has failed to
establish that his plea was involuntary. Hollis's plea did not result in manifest injustice.
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We affirm.
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WE CONCUR:
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