No. 60852-5-I.The Court of Appeals of Washington, Division One.
January 12, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02354-9, Mary Yu, J., entered November 19, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
PER CURIAM.
Eugene Arnold, Jr. pleaded guilty and was sentenced to one count of malicious mischief in the second degree. Relying on State v. Mendoza, 157 Wn.2d 582, 141 P.3d 49 (2006), Arnold asserts that his lawyer provided ineffective assistance of counsel by failing to argue in his motion to withdraw his guilty plea and at sentencing that he was misinformed about community custody. Because there were legitimate strategic or tactical reasons not to argue that Arnold was misinformed about community custody, he cannot establish ineffective assistance of counsel, and we affirm.
The State charged Arnold with one count of malicious mischief in the first degree — domestic violence, a class B felony.[1] The court set bail at $100,000.
Arnold’s lawyer, Lea Reed, negotiated a plea agreement with the State on his behalf. In the Felony Plea Agreement, the State agreed to reduce the charge to malicious mischief in the second degree — domestic violence, a class C felony, [2] to not file additional charges, and to release Arnold pending sentencing. The Felony Plea Agreement incorporates by reference the State’s Sentence Recommendation. The State recommended that Arnold be given credit for time served, have no contact with the victims, and pay restitution and court costs. A term of community custody is not a part of the State’s sentencing recommendation.
At the plea hearing on March 19, 2007, Arnold signed the Felony Plea Agreement and provided the court with his “Statement of Defendant on Plea of Guilty to Felony Non-Sex Offense” (Statement on Plea of Guilty). The Statement on Plea of Guilty reiterates the State’s sentencing recommendation of credit for time served, no contact with the victims, payment of restitution and court costs, and release pending sentencing. In a separate paragraph, the Statement on Plea of Guilty form also states that the judge will impose community custody:
In addition to confinement, the judge will sentence me to a period of community supervision, community placement or community custody. . . . For crimes committed on or after July 1, 2000, the judge will sentence me to the community custody range which is from 9 months to 12 months. . . .[3]
At the beginning of the plea hearing, Arnold’s attorney told the court that “I’ve gone over the paperwork in its entirety including the trial rights he’s giving up here today by pleading guilty.” Arnold’s attorney also told the court that the State had agreed to release Arnold pending sentencing. During the colloquy with the court, Arnold admitted that he “did knowingly and maliciously cause physical damage in excess of $250, to the property of Milton Arnold, by ramming my car into his car.” The court also reviewed the State’s sentencing recommendation with Arnold. Arnold acknowledged that he understood the State’s sentencing recommendation of credit for time served, no contact with the victims, restitution and court costs, and release pending sentencing. Arnold told the court that he had read and reviewed the plea agreement and the Statement on Plea of Guilty with his attorney and wanted to plead guilty to the amended information of malicious mischief in the second degree. The court accepted Arnold’s plea as knowing, intelligent and voluntary.
After entry of the guilty plea, Reed withdrew and Jeannette Jameson was appointed to represent Arnold. Before sentencing, Arnold filed a motion to withdraw his guilty plea. Arnold argued that his previous lawyer had a conflict of interest and that his plea was not knowing, intelligent, and voluntary. In support of the motion to withdraw his guilty plea, Arnold and his spouse submitted declarations. Arnold stated in his declaration that his previous attorney, Reed, did not review the plea agreement with him, that he signed the plea agreement and the Statement on Plea of Guilty in court without reading them, and that Reed told him the State had agreed to reduce the charge to a misdemeanor not a felony. “After I got into court, Lea Reed handed me a bunch of different papers to sign and I guess that one of them was the plea form but the pages were all flipped over so all I ever saw was the page that I was signing in court. I didn’t have the chance to read any of the papers I was signing in court I just trusted Lea Reed as my attorney and signed where she pointed out that I was supposed to sign.”
The testimony at the hearing on Arnold’s motion to withdraw his guilty plea established that Arnold had two goals — he wanted to be released from jail and he did not want to plead guilty to a felony. Arnold’s former attorney, Reed, also testified that Arnold’s “biggest issue” was that “he wanted to get out of jail,” and that Arnold did not want to plead guilty to a felony. However, when faced with the choice of staying in jail pending trial or accepting the State’s offer to plead guilty to a felony with a sentence recommendation of credit for the time he already served and immediate release, Reed said that Arnold told her “to set it for a plea because they were going to release him pending sentencing.” Arnold’s spouse, Towanda Arnold, also testified that Arnold wanted to get out of jail and how important it was for him to get out of jail. In addition, Towanda Arnold said that Reed told her that she was negotiating an agreement for Arnold to plead guilty to a misdemeanor.
At the hearing, Arnold testified that he told Reed that he did not want to jeopardize his chance of going to school by pleading guilty to a felony and he did not realize he was pleading guilty to a felony until half way through the plea hearing. Arnold also testified that he did not read or review the Statement on Plea of Guilty or the Plea Agreement and that he was never given a copy of these documents. Relying in large part on the videotaped recording of the plea hearing and the court’s colloquy with Arnold, the court denied Arnold’s motion to withdraw his plea.
At sentencing, the prosecutor followed the sentencing recommendation in the Plea Agreement of credit for time served, no contact with the victims, restitution, and court costs. Consistent with the Plea Agreement, the prosecutor also stated “[t]here is no community custody on this offense.” The defense joined in the State’s sentencing recommendation, but asked the court to not impose a no contact order as to two of the victims. The court followed the joint recommendation of credit for time served but agreed to the defense request to not impose a no contact order. In the judgment and sentence, “N/A” is written next to the paragraph for community custody.
Relying on Mendoza, 157 Wn.2d at 582, Arnold contends for the first time on appeal that his lawyer provided ineffective assistance of counsel by failing to argue that he was misinformed in his Statement on Plea of Guilty that the court would sentence him to community custody as part of his motion to withdraw his guilty plea and at sentencing.
A defendant’s decision to plead guilty must be knowing, intelligent, and voluntary. Mendoza, 157 Wn.2d at 587. A plea that is based on misinformation about the direct consequences of the plea, may be involuntary. Mendoza, 157 Wn.2d at 591. Community custody is a direct consequence of a plea. State v. Ross, 129 Wn.2d 279, 280, 916 P.2d 405
(1996).
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either prong, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). When reviewing a claim of ineffective assistance of counsel, there is a strong presumption that counsel’s representation was effective and competent. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
To establish deficient performance, a defendant has the “heavy burden of showing that his attorney `made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.'” State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339
(1992) (quoting Strickland, 466 U.S. at 687)). A defendant may meet this burden by establishing that given all the facts and circumstances, his lawyer’s conduct failed to meet an objective standard of reasonableness.State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). On direct appeal, the defendant must show ineffective assistance of counsel based on the record below. McFarland, 127 Wn.2d at 335.[4]
A claim for ineffective assistance of counsel cannot be based on conduct that can be fairly characterized as legitimate trial strategy or tactics. McFarland, 127 Wn.2d at 334-35. And if “`the actions of counsel complained of go to the theory of the case,'” a defendant cannot establish deficient performance. State v. Garrnett, 124 Wn.2d 504, 520, 881 P.2d 185 639 P.2d 737 (1994) (quoting State v. Renfro, 96 Wn.2d 902, 909, (1980)). While an attorney generally decides strategy, defendants have considerable control over their defense. State v. Cross, 156 Wn.2d 580, 606, (2006).
Here, there were legitimate strategic or tactical reasons for Arnold’s lawyer to not argue that he was misinformed about community custody. Arnold testified unequivocally that he did not review or read either the Plea Agreement or the Statement on Plea of Guilty. Any argument that Arnold was misled by the community custody provisions in either the Plea Agreement or the Statement on Plea of Guilty would have contradicted his testimony in support of the motion to withdraw his guilty plea. Because Arnold cannot establish that his lawyer provided ineffective assistance of counsel, we affirm.[5]