No. 27036-6-II.The Court of Appeals of Washington, Division Two.
Filed: May 17, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 001019256, Hon. James R. Orlando, February 9, 2001, Judgment or order under review.
Counsel for Appellant(s), Rebecca W. Bouchey, Attorney At Law, P.O. Box 1401, Mercer Island, WA 98040.
Counsel for Respondent(s), John C. Hillman, Pierce Co. Deputy Pros. Atty., 930 Tacoma Ave S Rm 946, Tacoma, WA 98402.
ELAINE M. HOUGHTON, J.
Deke Kip Dietrich pleaded guilty to two counts of first degree child rape for sexually assaulting his daughters HO and HE. He received an exceptional 480-month sentence. Dietrich claims on appeal that the trial court erred (1) in denying his post-plea motion to substitute counsel, (2) in denying his motion to withdraw his guilty plea, and (3) by imposing an exceptional sentence based on evidence relating to incidents outside the charged period. He also claims that he received ineffective assistance of counsel. We find no error or abuse of discretion and affirm.
Facts
On October 26, 1999, 13-year-old HO told her mother that Dietrich had been molesting her and her younger sister HE. He engaged in a consistent pattern of sexual abuse of both sisters over an eight-year period, which began when they were four and five years old.
On November 9, 2000, the State filed an amended information charging Dietrich with five counts of first degree child rape, one count of second degree child rape, and one count of third degree child molestation.[1]
On November 14, the court held a CrR 3.5 hearing and ruled that Dietrich’s post-Miranda statements to police were admissible.[2]
Immediately after this ruling, defense counsel announced that Dietrich wished to plead guilty to counts I and IV, which alleged first degree child rape of HE and HO, respectively, during the period between December 1997 and December 1999.
The court asked Dietrich a lengthy series of questions to ensure that the plea was voluntary and that he understood the consequences and the rights he waived by pleading guilty. It informed Dietrich that the offenses carried a maximum penalty of life imprisonment, that the standard range for each offense was 120 to 160 months’ confinement and that it did not have to follow either party’s sentence recommendation. The court accepted Dietrich’s plea, finding that it was knowingly, intelligently, and voluntarily made and that there was a factual basis for the plea.
On the State’s motion, the court dismissed without prejudice the remaining counts. The State indicated its intent to seek an exceptional sentence. Sentencing was set for a later date. On January 11, 2001, the community corrections officer completed a presentence investigation report and recommended a 240-month exceptional sentence.
On February 9, 2001, Dietrich, acting pro se, moved to withdraw his guilty plea. He claimed that his court-appointed attorney was not representing his best interests, that he did not trust him, and that his attorney had lied to him more than once. Dietrich asked the court to appoint another attorney to represent him.
At the February 9 hearing, defense counsel joined in Dietrich’s request to substitute counsel. Counsel contended that his continued representation would create a conflict of interest because of the allegation that he had lied to him and Dietrich’s stated intent to file a bar complaint. The State objected, arguing that substitution of counsel would delay the proceedings to the victims’ detriment. The court denied the request to substitute counsel.
In support of the motion to withdraw his guilty plea, Dietrich testified that he had understood 240 months’ confinement to be the maximum sentence and that upon learning of the possibility of an exceptional 480-month sentence, he felt he had been `railroaded.’ The court denied the motion, ruling that Dietrich had not shown a manifest injustice to require withdrawal of his plea.[3]
Over defense objection, the court held an evidentiary hearing during which HO and HE testified about Dietrich’s sexual abuse. He began abusing HO when she was four or five years old, engaging in oral sex with her about once or twice a week. When HE turned four, Dietrich had HO teach her how to give him a `blow job.’ Over the next eight years, Dietrich engaged in multiple and frequent sexual acts with them, which included penile-vaginal intercourse.
As recommended by the State, the court imposed an exceptional sentence of 480 months’ confinement based on four aggravating factors: (1) multiple acts of rape involving both victims; (2) multiple victims; (3) Dietrich’s abuse of his position of trust; and (4) he `caused his daughters to abuse their position of trust between each other as siblings.’ Clerk’s Papers (CP) at 73. Dietrich now appeals.
Analysis I. Motion to Substitute Counsel
Dietrich claims that the trial court erred by denying his request to substitute counsel. He argues that his court-appointed attorney had a conflict of interest which barred his continued representation.
The sixth amendment right to counsel includes the right to assistance of counsel free from conflicts of interest. State v. Davis, 141 Wn.2d 798, 860-61, 10 P.3d 977 (2000). There is no denial of effective assistance of counsel unless an actual conflict exists. State v. White, 80 Wn. App. 406, 411-12, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996). See also RPC 1.7(b). The mere possibility of a conflict of interest is insufficient to impugn a criminal conviction. Davis, 141 Wn.2d at 861; see also State v. Martinez, 53 Wn. App. 709, 715-16, 770 P.2d 646, review denied, 112 Wn.2d 1026 (1989) (defendant must demonstrate that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance). We review for an abuse of discretion the court’s decision regarding appointment of substitute counsel. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991).
Here, the alleged conflict of interest stemmed from Dietrich’s dissatisfaction with his attorney. He complained that his attorney had lied to him, but he did not provide any evidentiary support except his testimony that he could not recollect his attorney advising him that an exceptional sentence was possible. The trial court correctly rejected this allegation as unfounded. As the court noted, Dietrich’s statement of guilty plea explicitly stated that the maximum penalty was life imprisonment, and during the plea proceedings a recess was taken in order for Dietrich to review the statement with his attorney. Thus, Dietrich’s allegation of inadequate advisement on the sentencing consequences was unsubstantiated.
Contrary to Dietrich’s assertion, the trial court’s inquiry adequately addressed his conflict claim. A trial court need not initiate an inquiry into a possible conflict of interest unless (1) the court knows of an actual conflict or (2) the court reasonably should know of a conflict. Davis, 141 Wn.2d at 861. Here, the court gave him the opportunity to testify and explain the bases for his dissatisfaction with counsel; no more was required.
The alleged conflict was no more than Dietrich’s general dissatisfaction with counsel’s representation. The general loss of confidence or trust in counsel’s representation is insufficient to require substitution of counsel. State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). See, e.g., State v. Sinclair, 46 Wn. App. 433, 436, 730 P.2d 742 (1986) (defendant’s failure to articulate any reason for counsel’s replacement, except for a vague account of how counsel had lied and general discomfort with her representation), review denied, 108 Wn.2d 1006 (1987).
Further, the threat of a bar complaint against defense counsel did not create an actual conflict. In State v. Stark, 48 Wn. App. 245, 738 P.2d 684, review denied, 109 Wn.2d 1003 (1987), Division One rejected the defendant’s suggestion to adopt a rule requiring the appointment of counsel whenever the defendant wishes to argue counsel’s ineffectiveness. Stark, 48 Wn. App. at 253.[4] The Stark court observed that `if a defendant could force the appointment of substitute counsel simply by expressing a desire to raise a claim of ineffective assistance of counsel, then the defendant could do so whenever he wished, for whatever reason.’ Stark, 48 Wn. App. at 253 (citing Sinclair, 46 Wn. App. 436-37).
Here, the threat of a bar complaint and Dietrich’s unsupported allegations that his counsel lied did not constitute an actual conflict of interest requiring substitute counsel. The court did not abuse its discretion in denying his motion.
II. Motion to Withdraw Guilty Plea
We review the court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192
(2001). A trial court must allow withdrawal of a guilty plea when necessary to correct a manifest injustice. CrR 4.2(f); Marshall, 144 Wn.2d at 280-81. A manifest injustice exists if: (1) the defendant was denied effective assistance of counsel, (2) the defendant did not authorize the plea, (3) the plea was involuntary, or (4) the prosecution violated the plea agreement. Marshall, 144 Wn.2d at 281. The defendant has the burden of showing manifest injustice, and this requirement is demanding because ample safeguards exist to ensure that a defendant’s guilty plea is voluntary and that he understands the consequences. State v. Taylor, 83 Wn.2d 594, 596-97, 521 P.2d 699 (1974).
Here, Dietrich maintains that his plea was involuntary because his attorney did not adequately explain the possibility of an exceptional sentence. His argument fails. As the trial court noted, the record refutes his assertion that he was not aware of the sentencing consequences, including the possibility of an exceptional sentence, at the time of plea entry. The guilty plea statement explicitly stated that each offense carried a maximum sentence of life imprisonment with a standard range of 120 to 160 months’ confinement. His signature on the guilty plea statement is `strong evidence’ that his plea was voluntary. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). Additionally, defense counsel told the court that he had reviewed the guilty plea statement with Dietrich and had told him `he could be subject to the maximum under law, if the court felt that was appropriate.’ Report of Proceedings (RP) at 63. A recess was taken during the plea colloquy so that Dietrich could review the statement again with his attorney, and the court expressly told Dietrich it could sentence him up to life imprisonment. Thus, ample evidence shows that Dietrich received full advisement of the possible sentencing consequences from his attorney and from the court. He fails to show that his plea was involuntary on this basis.
Dietrich also argues that the court improperly based its decision on his motion being one of several similar motions brought before the court. This argument lacks merit. The court made a passing comment that this was the second sex offense case where the jury had been empaneled, the defendant pleaded guilty and then filed a presentencing motion to withdraw his guilty plea. After making this remark, the court allowed Dietrich to testify about his understanding of the sentencing consequences. We are satisfied that the court denied the motion based on the merits and that its decision was supported by the record showing that Dietrich received full advisement of the sentencing consequences.
Thus, the court correctly found that Dietrich did not establish a manifest injustice to require withdrawal of his plea and, consequently, did not abuse its discretion in denying his motion.
III. Effective Assistance of Counsel
Dietrich claims that he was denied effective assistance of counsel because counsel recommended that he plead guilty `where he did not gain any benefit from the plea.’ Appellant’s Brief at 12. To prevail on a claim of ineffective counsel, the defendant must overcome the strong presumption of effectiveness and show deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-36, 899 P.2d 1251
(1995); State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). We consider the entire record to determine whether the defendant was afforded effective representation and a fair trial. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984).
Although Dietrich asserts that his attorney gave him `bad advice’ by recommending that he plead guilty, the record does not reveal what advice if any his attorney gave him regarding his plea decision. Thus, the record is inadequate for us to determine whether counsel’s recommendation fell below an objective standard of reasonableness as to constitute deficient representation. See McFarland, 127 Wn.2d at 334-35 (deficient performance shown when counsel’s representation `fell below an objective standard of reasonableness based on consideration of all the circumstances’).
The record, however, does show that Dietrich’s decision to plead guilty rested on the willingness to take responsibility for his conduct and concern for his daughters’ well-being. We agree with the State that Dietrich apparently wanted to spare his daughters the trauma of having to testify before a jury in a contested trial. This is evident from his pre-plea statements to police.[5] Also, in the post-plea interview with the community corrections officer, Dietrich explained that he pleaded guilty so his daughters would not `have to go through anything more.’ CP at 45.6 Given his stated reason for pleading guilty, the absence of a plea agreement is immaterial and does not support his contention that counsel’s representation was deficient.
Further, the record shows that defense counsel zealously advocated on Dietrich’s behalf in all the proceedings, from pretrial motions through sentencing. He fails to overcome the presumption of counsel effectiveness. Based on a review of the entire record, we are satisfied that Dietrich was not denied effective assistance of counsel. His claim fails.
IV. Exceptional Sentence
Dietrich claims that the trial court erred by imposing an exceptional sentence but he does not challenge the court’s findings and conclusions. Rather, he argues that the court improperly considered HO’s and HE’s testimony at the evidentiary hearing.
He appears to argue, as he did below, that the court violated the real facts doctrine by allowing HO and HE to testify about incidents that fell outside the charged period and related to the dismissed counts. The real facts doctrine requires the sentencing court to consider only the actual crime of which the defendant has been convicted, the defendant’s criminal history, and the circumstances surrounding the crime. State v. Cannon, 130 Wn.2d 313, 331, 922 P.2d 1293 (1996). But there are exceptions to this rule. One exception is if the offense was part of an ongoing pattern of sexual abuse of the same victim under the age of 18 years manifested by multiple incidents over a prolonged period of time. Former RCW 9.94A.390(2)(g) (2000); State v. Creekmore, 55 Wn. App. 852, 861 n. 1, 783 P.2d 1068 (1989), review denied, 114 Wn.2d 1020 (1990). This exception applies here, where the incidents to which HO and HE testified were part of a pattern of sexual abuse that began at a very young age and continued for some eight years. Thus, the court properly admitted and considered their testimony to impose an exceptional sentence.
We also reject Dietrich’s due process claim. Due process requires that evidence relied upon by a sentencing court be reliable and that the defendant have an opportunity to refute the evidence. Cannon, 130 Wn.2d at 332. Here, the court held an evidentiary hearing as authorized by former RCW 9.94A.370(2) (2000), which protects the defendant from unreliable and inaccurate information. See State v. Handley, 115 Wn.2d 275, 282, 796 P.2d 1266 (1990). Dietrich could have tested the reliability of HO’s and HE’s testimony through cross-examination. But he chose to forego such opportunity by instructing his attorney not to cross-examine them.
Further, Dietrich’s decision to testify or not testify at the evidentiary hearing was his choice to make and, contrary to his assertion, did not violate his constitutional rights against self-incrimination or to present a defense. We decline to further address these constitutional claims absent reasoned argument and citation to legal authority. See RAP 10.3(a)(5); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (declining review of constitutional issues unsupported by reasoned argument).
We find no error in the admission of HO’s and HE’s testimony at the presentencing evidentiary hearing. The court did not err in considering their testimony to impose the 480-month exceptional sentence.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, J., HUNT, C.J.
(1966).