STATE v. GISVOLD, 49357-4-I (Wash.App. 6-2-2003)

No. 49357-4-IThe Court of Appeals of Washington, Division One.
Filed: June 2, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Whatcom County Docket No: 00-1-00411-0 Judgment or order under review Date filed: 09/20/2001

Counsel for Appellant(s), Michael John Tario, Tario Associates PS, 119 N Commercial St. Fl 10, Bellingham, WA 98225-4446.

Counsel for Respondent(s), Craig D. Chambers, Attorney at Law, Whatcom Co Prosecutor, 311 Grand Ave Fl 5, Bellingham, WA 98225-4048.

Laura D. Hayes, Attorney at Law, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.

GROSSE, J.

A trial court must allow a defendant to withdraw his or her plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice. A defendant has the difficult burden of proving the existence of a manifest injustice. Here, Gisvold fails to sustain that burden after entering a guilty plea to delivery of cocaine.

The trial court did not abuse its discretion in denying Gisvold’s motion to withdraw his plea. We affirm.

FACTS
In October and November of 1999, Gisvold sold cocaine to a confidential informant. He was charged in April 2000 with two counts of delivery of cocaine. After he was arrested he hired attorney Richard Kimberly who agreed to represent him for a flat fee of $2,500. Gisvold told counsel that he had never sold drugs before and he had no criminal history. He stated the only reason he agreed to sell the cocaine to the confidential informant was because the informant made repeated demands and pressured him into selling it. Gisvold indicated he felt `entrapped’ by the informant.

Gisvold alleged that despite his repeated claims of innocence on the grounds of entrapment, coercion, and threats, his counsel did virtually nothing to investigate his case or prepare for trial. Gisvold refused to plead guilty and initially insisted on going to trial. After various continuances Gisvold’s case was called on February 12, 2001. Gisvold claimed his attorney failed to interview any defense witnesses or prepare for trial by that date. Gisvold asserted that his counsel informed him that he had not taken a drug case to trial in over 10 years and there was virtually no chance that Gisvold would be acquitted. His counsel told him he would likely face two to three years in prison if he went to trial on both charges. He also allegedly told Gisvold that if he agreed to plead guilty to one of the counts he would probably be entitled to receive a drug offender sentencing alternative (DOSA)[1] and that he would only serve 12 months in prison.

Gisvold pleaded guilty. At the hearing the trial court made specific inquiries regarding whether Gisvold read the `Statement of Defendant on a Plea of Guilty’ before signing it, if he understood the plea, and if he had been advised that the standard range for the offense was 21 to 27 months.

The court also asked Gisvold if he understood that he would serve a minimum of 12 months in prison if he sought a DOSA. After Gisvold indicated he understood what he was facing by entering the plea, the trial court asked for his plea, to which he responded `guilty.’ The trial court found him guilty of the offense of unlawful delivery of cocaine and continued the date of sentencing to enable Gisvold to apply for a DOSA. Shortly thereafter Gisvold sought new counsel and filed a motion to withdraw his guilty plea based on ineffective assistance of counsel. He asserted that his guilty plea was not intelligently, knowingly, freely, or voluntarily given. Further, Gisvold claimed that his former counsel failed to inform him of testing irregularities in the drug testing laboratory and that a motion to suppress should have been filed. Besides briefing, Gisvold filed an affidavit from his mother who was present the day of the plea, and his own affidavit explaining how he felt unduly pressured into the plea.

The deputy prosecuting attorney in charge of Gisvold’s case, Craig Chambers, filed an affidavit indicating that the two drug transactions were conducted under the surveillance of law enforcement and the second transaction was recorded by wire. The deputy prosecuting attorney indicated that he spoke with Gisvold’s counsel on several occasions regarding the charges. He indicated that Gisvold’s former counsel discussed plea negotiations as well as the possibility of going to trial.

The deputy prosecuting attorney indicated that he was told by Gisvold’s former counsel that Gisvold alleged the confidential informant was a member of the Russian mafia and that he was entrapped into selling the cocaine, or at least sold it under duress. As a result of that conversation, a copy of the transcript of the wire was given to defense counsel, which in the prosecuting attorney’s opinion established the weakness of any entrapment claim. After hearing, Gisvold’s motion to withdraw was denied and a DOSA sentence of 12 months was imposed. Gisvold appeals.

DISCUSSION
Gisvold claims the trial court erred in denying the motion to withdraw his guilty plea. It has long been held that we will not reverse a trial court’s order on a defense motion to withdraw a guilty plea absent an abuse of discretion.[2] Under CrR 4.2(f), a trial court must allow a guilty plea to be withdrawn whenever it appears withdrawal is necessary to correct a manifest injustice. CrR 4.2(d) instructs the trial court not to accept a guilty plea `without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea’ and without being satisfied that there is a factual basis for the plea. This rule imposes a difficult and exacting standard on the defendant to demonstrate the existence of a manifest injustice.[3] The injustice must be `obvious, directly observable, overt, [and] not obscure.’[4] The defendant’s burden is demanding because ample safeguards exist to protect the defendant’s rights before the court accepts the plea. `A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept.’[5] Whether a plea is knowingly, intelligently, and voluntarily made is determined from the totality of the circumstances.[6] As indicated above, one of the indicia of manifest injustice is the denial of effective assistance of counsel.[7]
But, [w]hen a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges that he or she has read it and understands it and that its contents are true, the written statement provides prima facie verification of the plea’s voluntariness. When the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.[8]

Here, Gisvold does not contend that he misunderstood the terms of the plea agreement and thus cannot claim that his plea was not knowingly and intelligently made. Rather, he relies solely on the allegation that his plea was involuntary due to his former defense counsel’s incompetent representation. He argues he did not receive effective assistance of counsel as his former defense counsel allegedly coerced him into the plea; failed to investigate the case properly; failed to advise him of and/or failed to file a suppression motion pertaining to irregularities in the state crime laboratory that tested and identified the cocaine that Gisvold sold; was unprepared to go to trial; and overall fell below an objective standard of reasonableness based on the consideration of the entire circumstances. The test set forth in Strickland v. Washington[9]
applies to claims of ineffective assistance of counsel in the plea process.[10] To determine whether Gisvold received effective assistance of counsel, we examine whether: (1) counsel’s performance was deficient, and (2) the deficiency prejudiced the defendant.[11] In order to overcome the strong presumption that counsel’s representation was effective, a defendant must demonstrate both prongs of the test. A reviewing court is not required to address both prongs of the test if the defendant makes an insufficient showing on either prong.[12]

Here, the circumstances of the crime and the plea bargain offered by the State amply support counsel’s recommendation that Gisvold plead guilty.

The focus is not on determining whether counsel was prepared for trial, but whether the preparation was sufficient to `actually and substantially assist’ his client in deciding whether to plead guilty.[13]
The State had a tape recording of one of Gisvold’s two drug transactions. And despite the substantial nature of the State’s evidence, the State offered to drop one count and recommend a DOSA sentence. Gisvold offers nothing to support a claim that his former defense counsel failed to actually and substantially assist him in determining whether to accept the plea. He did not offer any affidavits from witnesses who were not contacted by defense counsel. He did not present an affidavit from his former defense counsel. While Gisvold alleges his former counsel failed to interview witnesses, he fails to set forth any additional evidence that could have been discovered had his former counsel interviewed them. Gisvold fails to demonstrate that his former counsel’s conduct or omission constituted deficient conduct. He further fails to demonstrate that he was prejudiced by any alleged deficiency other than by conclusory assertions that he would not have pleaded guilty. Gisvold also argues that former counsel was ineffective in failing to suggest or make a motion to suppress the evidence of the cocaine on the basis of a recent mishandling of evidence at the state crime lab. But this claim relates to a trial matter. As Gisvold pleaded guilty, he waived the contention for purposes of appeal. Once he pleaded guilty, he waived the right to effective assistance except as it related to the voluntariness of the plea.[14] Even if Gisvold were allowed to make this challenge, he must show that the trial court would likely have granted the motion had one been pursued.[15] Here there is no evidence in the record to suggest that a motion to suppress would have been granted. Gisvold asserts that his former counsel was deficient in failing to consider an entrapment defense. But Gisvold fails to describe facts supporting how such a defense would have possibly been successful. Further, the deputy prosecuting attorney stated in his affidavit that he and Gisvold’s former defense counsel discussed the entrapment defense and that he allowed defense counsel to review the transcript of the taped drug buy. There is no evidence that Gisvold’s former defense counsel failed to consider an entrapment defense. Gisvold argues he was coerced and forced to plead guilty because of his fears that his attorney’s representation would be deficient. But Gisvold does not provide any evidence how his will was overborne, except by his self-serving statements. To the contrary, the trial court noted that Gisvold read and signed the written guilty plea statement and he admitted in open court that he delivered cocaine to a confidential informant. While a decision to plead guilty may be unpalatable and a difficult choice, it does not render the plea involuntary.[16] Finally, Gisvold maintains that his former defense counsel’s representation violated RPC 1.2(a) in that his counsel failed to assist him in reaching an informed plea decision. This theory was not raised or argued at the trial court level and will not be considered on appeal.[17] Gisvold fails to meet his burden of proof that the trial court abused its discretion in denying his motion to withdraw his guilty plea. The decision of the trial court is affirmed.

APPELWICK and BAKER, JJ., concur.