STATE v. HOPKINS, 30573-9-II (Wash.App. 7-27-2004)

No. 30573-9-IIThe Court of Appeals of Washington, Division Two.
Filed: July 27, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Skamania County. Docket No: 02-1-00003-5. Judgment or order under review. Date filed: 06/26/2003. Judge signing: Hon. E. Thompson Reynolds.

Counsel for Appellant(s), R.A. Lewis, Attorney at Law, 430 N.E. Everett St, Camas, WA 98607-2115.

Counsel for Respondent(s), Randall Charles Krog, Law Office of Randall Charles Krog, PO Box 102, Stevenson, WA 98648.

QUINN-BRINTNALL, C.J.

On March 28, 2002, Matthew S. Hopkins, pleaded guilty to one count of first degree rape of a child. Hopkins later moved to withdraw his plea and now appeals the trial court’s denial of his motion. Hopkins contends that the trial court abused its discretion in refusing to allow withdrawal of his plea because he believed that he would be serving his sentence at a juvenile, rather than an adult, facility and that his plea was involuntary.[1] Because the trial court did not abuse its discretion when it refused to allow Hopkins to withdraw his plea, we affirm.

FACTS
On January 17, 2002, 17-year-old[2] Hopkins was charged in Skamania County Superior Court with one count of first degree rape of a child, a violation of RCW 9A.44.073(1).[3] At the time, Hopkins was incarcerated at Naselle Youth Camp,[4] where he was serving a sentence for an unrelated felony. He was transferred to the Skamania County Jail, and made his first court appearance on the new charge on January 31, with appointed counsel. On February 21, 2002, the State filed an amended information, this time charging Hopkins with two counts of first degree rape of a child.

Hopkins entered into a plea agreement with the State and on March 28, 2002, he pleaded guilty to one count of first degree rape of a child. In exchange for Hopkins’s plea, the State agreed to dismiss the second charge and to recommend a sentence of confinement of 140 months, the middle of the standard range. At the plea hearing, the trial court reviewed with Hopkins his written statement on plea of guilty. The court then determined that Hopkins’s guilty plea was being made knowingly, voluntarily, and intelligently.

The trial court ordered a presentence investigation. In preparing his presentence investigation report, Robert J. Story of the Department of Corrections (DOC) met with Hopkins in jail on a number of occasions. Story’s investigation revealed that Hopkins had completed only part of 10th grade, read at a third grade level, and had an IQ of 76, `[w]hich placed him in the borderline range of intellectually functioning.’ Report of Proceedings (RP) at 26. The investigation also revealed that Hopkins had been diagnosed with attention deficit hyperactivity disorder as well as other emotional and mental problems.

On April 11, 2002, the trial court accepted the State’s recommendation and sentenced Hopkins to 140 months in prison. Then, on August 12, September 13, and November 5, 2002, Hopkins wrote letters to the trial court indicating a desire to withdraw his guilty plea. The first letter does not mention any reason for the desired withdrawal. The second letter mentions that Hopkins would like his sentence to be one year instead of 140 months so that he can see his seriously ill father. The third letter indicates that Hopkins would like to withdraw his plea but again does not mention a reason for withdrawal.

In December of 2002, Hopkins, through his new attorney, filed a motion for relief from judgment seeking the court’s permission to withdraw his guilty plea.[5] In this motion, Hopkins claimed for the first time that at the time he pleaded guilty, he believed that he would be sentenced as a juvenile, rather than an adult, and that accepting his guilty plea with this misunderstanding was a manifest injustice.[6] The court held an evidentiary hearing on May 15, 2003. At that hearing, Hopkins testified that, at the time he entered his guilty plea, he believed that he would be sentenced as a juvenile. But Story, the DOC employee who had conducted Hopkins’s presentence investigation, testified that he had met with Hopkins a number of times in jail and discussed with him prison life and the programs available in prison. He testified that Hopkins never indicated any confusion about going to a juvenile facility rather than prison.

The trial court entered an order and findings and conclusions denying Hopkins’s motion for relief from judgment on June 26, 2003. Hopkins appeals.

ANALYSIS
We review a trial court’s decision on a CrR 7.8(b) motion for relief from judgment for abuse of discretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996). The same standard governs our review of a trial court’s decision on a motion to withdraw a guilty plea. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000); State v. Padilla, 84 Wn. App. 523, 525, 928 P.2d 1141, review denied, 132 Wn.2d 1002
(1997). Abuse occurs when the trial court’s discretion is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

We will invalidate a guilty plea based on either of two different inquiries: `[First, w]as the plea valid when initially entered?[7] . . . [Second, e]ven if it was, should it now be set aside? If the plea was not valid when entered, the trial court must set it aside.’ State v. McDermond, 112 Wn. App. 239, 243, 47 P.3d 600 (2002) (citing State v. Taylor, 83 Wn.2d 594, 521 P.2d 669 (1974)).[8] Here, Hopkins concedes `[t]he State . . . met the burden of proving the validity of the initial guilty plea.’ Br. of Appellant at 7.

Thus, we turn our inquiry to CrR 4.2(f), which states:

The court shall allow a defendant to withdraw the defendants [sic] plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice. . . . If the motion for withdrawal is made after judgment, it shall be governed by CrR 7.8.[9]

See S.M., 100 Wn. App. at 408. CrR 4.2(f) imposes a high manifest injustice standard on a defendant who seeks to withdraw a guilty plea.[10] Taylor, 83 Wn.2d at 596. A `manifest injustice’ is `an injustice that is obvious, directly observable, overt, not obscure.’ Taylor, 83 Wn.2d at 596. Washington courts have found four nonexclusive instances of `manifest injustice:’ (1) denial of effective counsel, (2) plea was not ratified by the defendant or one authorized by him to do so, (3) plea was involuntary, (4) plea agreement was not kept by the prosecution. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001); Taylor, 83 Wn.2d at 597; S.M., 100 Wn. App. at 409. While the State bears the burden of proving the validity of a guilty plea, a defendant bears the burden of proving a manifest injustice has occurred. McDermond, 112 Wn. App. at 243 n. 10 (citing State v. Oseguera Acevedo, 137 Wn.2d 179, 193, 970 P.2d 299 (1999)).

Here, because Hopkins concedes that the trial court employed the proper procedural safeguards in accepting his guilty plea, he must show that in spite of these safeguards, his plea was involuntary, resulting in a manifest injustice. Hopkins has not met this burden.

Hopkins discussed prison life with Story, the DOC representative, during his many visits to Hopkins in jail. And Hopkins did not mention the mistaken belief that he would be sentenced as a juvenile until he obtained new counsel. The trial court stated, `None of the letters indicated that he desired to withdraw his guilty plea because of a belief that he was to be sentenced to a juvenile institution.’ Clerk’s Papers (CP) at 37.

Hopkins does not challenge these findings on appeal, so we consider them to be verities. See State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313
(1994). Because the record shows that Hopkins did not articulate any mistaken belief until long after he entered his guilty plea, we find that the trial court reasonably concluded that Hopkins’s plea was entered voluntarily and therefore did not result in `manifest injustice.’ The trial court did not abuse its discretion in denying Hopkins’s motion for relief from judgment.

We affirm.

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.

MORGAN, J. and HUNT, J., concur.