STATE v. ARISTOTLE MARR, 50395-2-I (Wash.App. 1-12-2004)

No. 50395-2-I.The Court of Appeals of Washington, Division One.
Filed: January 12, 2004. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No. 00-1-06747-6. Judgment or order under review. Date filed: 04/19/2002.

Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Aristotle Marr (Appearing Pro Se), #837827, Mcneil Island Corr. Center, P.O. Box 881800, Steilacoom, WA 98388.

Counsel for Respondent(s), Dennis John McCurdy, Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.

COX, A.C.J.

For the first time Aristotle Marr seeks in this appeal to withdraw his guilty plea for first degree assault. He claims his plea to that charge was involuntary and thus violates due process. Specifically, he claims there is no factual basis in the record for his plea. He further argues that he may withdraw his guilty plea to that one charge while leaving undisturbed the other provisions of his six count negotiated plea agreement. Finally, Marr argues pro se that he is entitled to an evidentiary hearing to contest allegedly material facts in a presentence report respecting his background, the claimed level of violence in one of the crimes charged, and alleged abuse of victims involved in another charged crime.

Because the record of the plea hearing demonstrates there was a factual basis for the plea to the amended charge of first degree assault, we hold that the plea was voluntary and thus constitutionally sufficient. Moreover, the plea agreement is not divisible. Finally, Marr has failed to preserve and we decline to address the pro se arguments he now makes on appeal. We affirm.

Marr and his accomplice, Daniel Delfierro, both of whom were armed with firearms, robbed a branch of Bank of America in June 2000. Both attempted to flee the scene of the crime. Delfierro died of a gunshot wound at the scene after shooting a pursuing police officer.

Marr escaped. He unsuccessfully attempted to carjack a car in an apartment parking lot. He then fled to the nearby residence of Ellen and Richard Germain, where he armed himself with a kitchen knife, threatened and hit Mr. Germain, gagged and bound the couple with a utility cord and duct tape, and attempted to convince Mrs. Germain to drive him to Everett. After some time, Marr made a phone call and asked Mrs. Germain to give directions to their home. Thirty minutes later Marr left their home.

The State charged Marr with six felony counts: robbery 1, assault 1, attempted robbery 2, burglary, and two counts of kidnapping 1.[1] Marr remained a fugitive until he finally surrendered to authorities about seven months after the charges.

In March 2002, Marr entered into a negotiated, written plea agreement. Part of the plea agreement allowed either party to withdraw from it in which event the State was free to refile the original six charges. At the plea hearing, the State, Marr, his counsel, and the judge made a record with respect to the plea agreement and second amended information. Thereafter, Marr pleaded guilty to the charges in that information, and the court accepted his plea. At a subsequent sentencing hearing, the court sentenced Marr to 277 months for first degree assault, which was at the high end of the standard range. The sentences for the other convictions ran concurrently for lesser terms.

Marr’s appeal seeks to withdraw his plea for first degree assault, the longest of his concurrent sentences. Voluntariness of Plea

Relying on CrR 4.2(d) and In re Taylor,[2] Marr argues that the lack of a factual basis for his plea is a claim that he may raise for the first time on appeal. The State correctly responds that CrR 4.2 is a procedural rule that does not set out independent constitutional requirements. We hold that although a failure to adhere to the technical requirements of CrR 4.2 does not itself give rise to a constitutional violation, the record of the plea hearing must show that the plea was voluntarily and intelligently made.

State v. Branch[3] makes clear that the procedural requirements of CrR 4.2 are not constitutionally mandated. Failure to adhere to the technical requirements of CrR 4.2 does not in itself result in a constitutional violation or amount to a manifest injustice.[4]
Nonetheless, our supreme court has made clear that CrR 4.2 requires that the record of the plea hearing show the plea was entered voluntarily and intelligently.[5] Thus, we reach the merits of the claim and review the record of the plea hearing. Marr argues that there was not a sufficient factual basis on the record to support his plea of guilty to first degree assault. We disagree. Where the defendant actually possesses an understanding of the law in relation to the facts such that he or she could make an informed decision regarding whether to plead guilty, there is no constitutional violation.[6] Moreover, a signed plea form provides `prima facie verification of the plea’s voluntariness.’[7]
There is such a signed form here. Additionally, Marr’s plea counsel represented to the court during the plea hearing that he had advised Marr regarding whether his conduct fell within the assault charge. There is a strong presumption that counsel’s representation is effective.[8] While these presumptions may be rebutted,[9] Marr bears the burden of showing that he did not have an adequate understanding of the material facts in relation to the assault charge. He has failed to convincingly demonstrate that he was not properly advised by his counsel with respect to the law and the facts regarding his plea. Further, when reviewing the sufficiency of evidence backing the factual basis of a plea, the trial court need not be convinced beyond a reasonable doubt of the defendant’s guilt.[10] A factual basis for a plea under CrR 4.2(d) exists when there is sufficient evidence in the record for a jury to conclude that the defendant is guilty; proof `beyond a reasonable doubt’ is not required.[11]

The record evidences a sufficient factual basis to support the plea. Marr makes no argument that he did not understand the nature of the charge against him. In fact, in the written `Statement of Defendant on Plea of Guilty,’ Marr listed the elements of the crime as, `assaulting another with a firearm with intent to inflict great bodily harm.’ Marr admitted his involvement in the assault in the written plea statement and in his plea of guilty at his plea hearing.

To further ensure Marr’s understanding of the plea agreement, at the plea hearing, the prosecutor verified that Marr `went through 12 plus years of schooling’ to help confirm that `given that level of education you have no difficulties understanding this form or these proceedings.’ Moreover, the prosecutor specifically asked Marr whether he discussed accomplice liability with his attorney and if he understood his accountability for accomplice liability `notwithstanding the fact that you, personally, didn’t shoot at the police officer.’ Marr verified his understanding of the plea form both orally and in writing.[12] The court then verified that Marr understood and adopted his typed and handwritten plea statement `in total as if you had created it yourself.’

The court further stated to Marr that his constitutional rights `don’t belong to your lawyer, they don’t belong to the State. Those are your statutory constitutional rights; do you understand that?’ Marr answered in the affirmative. Marr’s written and oral statements show that he understood the nature of the charge against him and that his plea is voluntary.

Given Marr’s written and oral statements prior to sentencing, we conclude there was a sufficient factual basis in the record to support the charge of and subsequent plea of guilty to assault 1. Marr next contends that his guilty plea to the assault charge was not voluntary because his participation in the charged offense was not established in the record at the time of the plea hearing. We disagree.

In the State’s second amended information, the charge for Assault 1, a firearm enhancement was removed and Daniel Delfierro was added as a participant:

That the defendant ARISTOTLE NAPOLEON MARR DAVID DELFIERO {sic} in King County, Washington, on or about June 22, 2000, with intent to inflict great bodily harm, did assault Officer Wesley Buxton with a firearm and force and means likely to produce great bodily harm or death, to-wit: a semi-automatic pistol.

Because Delfierro shot the officer, Marr’s liability for assault was as an accomplice. To support a charge of first degree assault, an accused, `who is charged with assault in the first or second degree as an accomplice must have known generally that he was facilitating an assault, and need not have known that the principal was going to use deadly force or that the principal was armed.’[13] The grounds to withdraw a plea rest solely on the information contained in the plea agreement and plea statement made by the defendant at the time of the plea. By considering the record alone, a jury could conclude that Marr was an accomplice to assault.

Here, Marr admitted at the hearing that he committed robbery and was armed with a gun. The undisputed facts in the record show his partner was also armed, and used force against a police officer while he and Marr were both fleeing the scene of the robbery. This is not a case where Marr was merely present when they were both fleeing the scene. Rather, the two armed robbers were both engaged in attempting to escape when Delfierro assaulted the police officer by firing at him. Marr acknowledges this in his written plea by stating `the other person shot at a police officer in flight from the crime; I was therefore an accomplice to another assaulting a police officer.’ Also, at the plea hearing, Marr acknowledged that although he personally did not shoot at the police officer, he was still legally accountable as an accomplice to that shooting. Thus, there is sufficient evidence in the record for a plea judge to find a jury could convict Marr of assault in the first degree as an accomplice.

Marr’s attempt to introduce new facts into the record — that he was not present during the assault does not invalidate his plea. If he believed that such facts existed, he certainly could have presented them at any time up to the plea hearing. Instead, he signed the plea agreement that he acknowledged his understanding, and gave every indication that he understood that he was pleading to the facts stated in that agreement and the legal consequences flowing from those facts.

On the basis of the above, we conclude the plea was voluntary.

Indivisibility of the Plea Agreement
Marr next argues that because there was no factual basis for his plea agreement, it is divisible and he may be able to withdraw his guilty plea for his assault charge without disturbing his other pleas. We disagree. A plea agreement is essentially a contract made between a defendant and the State.[14] Under normal contract principles, whether a contract is considered separable or indivisible is dependent upon the intent of the parties.[15] When determining intent, we only look to objective manifestations of intent.[16]

Marr’s plea was similar to the defendant’s plea in State v. Turley.[17]
Here, as in Turley, the record contains sufficient objective indications of intent from which we conclude the plea agreement was meant to be indivisible, without inquiry into the substance of the plea negotiations. Absent objective indications to the contrary in the agreement itself, we will not look behind the agreement to attempt to determine divisibility.[18] Marr negotiated and pleaded to six charges contemporaneously. One document contained the plea to and conditions for all the charges. The trial court accepted his plea to all charges.

Appendix A to the plea agreement further shows the objective intent of the parties. The appendix stated:

The plea agreement between the State of Washington and Aristotle N. Marr is predicated on the following understandings and representations. Both parties agree:
(1) The defendant, his attorney and the State have reviewed the amended information and agree that the defendant is properly scored as an ‘8,’ yielding a sentencing range of 209-277 months on the charge of Assault 1. The agreed-upon range of 209-277 months has been negotiated by both sides and is the basis for the plea agreement. If for any reason this sentencing range proves inaccurate or incorrect, either party is entitled to withdrawal of the plea agreement (and amended information), a decision which would entitle the State to refile the original six charges. The objective manifestations of intent show the plea to all charges was indivisible, and the charge for assault 1 may not be withdrawn individually.

Pro Se Argument
Marr argues that under the former RCW 9.94A.530(2), he is entitled to an evidentiary hearing over a disputed material facts statements in the presentencing report even though he failed to specifically object below to them. We disagree, concluding that he failed to preserve this argument for review.

Washington’s rule on this issue is clear. In a plea hearing, if the defendant does not exercise his right to dispute any of the facts presented, `the facts are deemed acknowledged for the purpose of the sentencing judge’s consideration.’[19] An evidentiary hearing is not required `where the defendant does not specifically object to factual statement made in a presentence report’ and `request an evidentiary hearing to challenge’ them.[20] `Where a statement of material fact is repeatedly asserted without objection and when the trial court, without objection, accepts and reasserts this statement as a factual basis for imposition of its sentence, the defendant will be deemed to have waived the right to dispute that fact on appeal.’[21]

There is no evidence in the record of Marr moving for an evidentiary hearing. As Marr did not properly move for an evidentiary hearing, no hearing was required.

We affirm the judgment and sentence.