No. 58656-4-I.The Court of Appeals of Washington, Division One.
January 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-11693-1, Michael Hayden, J., entered July 18, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
Dion Johnson appeals the trial court’s denial of his motion to withdraw his guilty plea to second degree assault. Because the trial court did not abuse its discretion in determining that post-plea recantations by two witnesses who had been expected to recant at trial did not constitute newly discovered evidence, and because Johnson fails to establish that he received ineffective assistance of counsel, we affirm.
FACTS
On October 22, 2005, Tamara Brown called 911 from Harborview Medical Center and reported that Dion Johnson had hit her friend Denise Hunter in the face at Vito’s nightclub in Seattle. On October 26, police tape-recorded Brown’s statement describing an altercation between Hunter and Johnson, her former boyfriend and the father of her child. Johnson attempted to get Hunter to go outside with him but Hunter refused and pulled away. Brown then saw Johnson punch Hunter with his closed right fist, in the left side of her face. When Hunter fell to the ground, Johnson punched her again in the nose and ran out of the club. Brown reported that Hunter’s left eye immediately began to swell shut, dripping tears of blood. Brown helped Hunter to the car and drove her to Harborview.
At Harborview, Dr. Sarah Ahrens treated Hunter, concluding that she sustained injuries consistent with being punched in the face, including a fractured nose and significant bruising. Hunter told Dr. Ahrens that her “baby’s daddy” had assaulted her and that it was not the first time he had done so. At a follow-up visit to Harborview, Hunter identified Johnson by name, but then refused to provide police with a written statement.
On October 27, Seattle Police Detective Verhoff interviewed Hunter. Verhoff observed that Hunter’s nose was slightly crooked, her left eye was bruised and completely swollen shut, and she had trouble opening her right eye. Hunter described a history of reported and unreported domestic violence with Johnson during their five year relationship, including assaults as well as a reported robbery incident. Hunter stated that when she refused to talk to him, Johnson grabbed her arm. She pulled away and he made threatening comments. Johnson then punched her in the left side of the face. She could not remember what happened immediately after the blow, but regained consciousness as Brown took her to the car and then to Harborview. She experienced severe pain in her eye and nose and stated that her eye continued bleeding for over five hours.
Detective Verhoff received a call on October 31 from Hunter, who reported that Johnson called her the previous morning and told her that he was out on bail, accused her of telling the police and his probation officer about the incident, and said that he was going to look for her friend.
The State charged Johnson with first degree assault and felony violation of a no contact order. Prior to trial, Hunter refused to cooperate with the State or the defense and indicated that she would not voluntarily come to court. At a joint interview, Hunter refused to discuss the incident. The State obtained a material witness warrant for Hunter and police arrested her on April 2, 2006, the day before trial. The State’s trial memorandum notes Hunter’s lack of cooperation in the prosecution since November 2005 and states, “[Hunter] now claims that she fell down, and does not remember the defendant being there or assaulting her.”[1]
During a pretrial hearing on April 3, the trial court granted the State’s motion to present evidence of prior domestic violence incidents between Johnson and Hunter in the event Hunter persisted with her recantation at trial. In particular, the State intended to question her regarding two incidents in 2002 and one in 2005 where she originally reported Johnson’s acts of domestic violence against her and then recanted or refused to cooperate with the prosecution. The parties also discussed Brown’s lack of cooperation with either party pending trial and the trial court granted the State’s motion to use the transcript of the 911 call to refresh Brown’s memory in the event she testified that she did not remember reporting the incident or to impeach her if she denied reporting the incident.
Following the noon break, Johnson entered an Alford[2] plea to second degree assault. On May 22, 2006, Johnson moved to withdraw his plea under CrR 4.2(f) based on newly discovered evidence. At a hearing on May 26, Johnson’s attorney described conversations he had with Hunter and Brown after Johnson pleaded guilty. He reported that Hunter said she did not see Johnson hit her, that she had sustained a broken nose a year and half earlier when she was “jumped” in Kansas City, and that Brown did not see Johnson hit her either, but had lied about it to keep Johnson and Hunter apart. Defense counsel also reported that Brown told him that she did not see who hit Hunter, but only saw Hunter on the ground.
Noting that Hunter’s recantation was not newly discovered, the trial court continued the hearing for more information on defense efforts to interview Brown before entering the plea, as well as additional briefing on newly discovered evidence involving recanting witnesses. At a June 15 hearing, defense counsel presented no additional information or briefing. The trial court found that the recantations were not newly discovered evidence and denied the motion to withdraw the guilty plea.
On July 12, Johnson appeared with an additional attorney with affidavits signed by Hunter and Brown containing statements consistent with the first attorney’s claims. The new attorney planned to file a motion to withdraw the plea but learned at the hearing that the trial court had already considered such a motion. The trial court noted that it had considered the recantations at the previous hearing as if supported by affidavits but denied the motion because the recantations were known or could have been expected at the time of the plea and were significant factors in the negotiations and eventual plea. The trial court also noted that it did not consider the recantations to be particularly reliable given the facts and circumstances of the case.
Johnson appeals.
ANALYSIS
Under CrR 4.2(f), a court must permit withdrawal of a guilty plea whenever necessary to correct a “manifest injustice,” i.e., one that is “obvious, directly observable, overt, not obscure.”[3] We review a trial court’s denial of a motion to withdraw a guilty plea for abuse of discretion.[4]
Johnson contends he has suffered a manifest injustice because (1) the newly discovered evidence of Hunter’s and Brown’s recantations substantially changed the factual basis for his plea; and (2) he received ineffective assistance of counsel.
Generally, newly discovered evidence may justify relief from judgment if it (1) will probably change the outcome of the proceeding; (2) was discovered after the proceeding; (3) could not have been discovered before the proceeding by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.[5] Relief may be denied in the absence of any one factor.[6] But in the context of a motion to withdraw an Alford plea prior to sentencing, the trial court should not necessarily apply this standard strictly.[7]
Relying on State v. D.T.M.,[8] Johnson argues that the trial court was required to grant his motion to withdraw his plea, or to hold a hearing to determine the credibility of the recantations, because the factual basis for his conviction was substantially changed by the recantations. In D.T.M., the defendant’s stepdaughter’s statements that he had molested her provided the sole independent factual basis to support the acceptance of his Alford plea.[9] Days after the plea hearing, the girl told her mother and others that she had fabricated the allegations. In reviewing the trial court’s denial of D.T.M.’s motion to withdraw his plea, this court determined that the out-of-court recantation met all five criteria for newly discovered evidence. In particular, the court noted (1) the recantation would probably change the outcome of the trial since her allegations provided the sole factual basis for the conviction; (2) given the consistency of the child’s statements before the plea, the recantation could not have been discovered with due diligence; (3) a pretrial witness testified about the possibility of recantation by child sexual abuse victims in general, but also testified that the girl had not done so despite pressure from her mother; (4) the recantation, if true, was clearly material; and (5) the evidence was not merely cumulative or impeaching. Because the witness had not recanted in open court, the court remanded the case for a hearing to evaluate the girl’s credibility before determining whether a new trial was required.[10]
Here, the trial court did not consider each factor but determined that the recantations could not be considered newly discovered evidence based on all the facts and circumstances known at the time of the plea. The record supports this determination. Unlike the circumstances in D.T.M., the parties were aware of the significant likelihood of recantation long before Johnson entered his plea. Hunter had refused to cooperate with either the State or the defense for several months before trial, had refused to come to court until arrested on a material witness warrant, and had already recanted her original statement to police. Hunter also had a history of reporting domestic violence incidents with Johnson and then recanting. The parties discussed Hunter’s anticipated recantation at the pretrial hearing and the State obtained rulings on evidence it intended to use to impeach her expected testimony contradicting her original statements to police.
Brown, Hunter’s close friend, also had refused to cooperate with either party before trial. At the pretrial hearing, the State mentioned that it had not obtained a material witness warrant for Brown because she was on electronic home monitoring for another case. The State also had obtained pretrial rulings regarding evidence with which to impeach Brown in anticipation of her expected recantation.
Moreover, independent evidence existed to corroborate Hunter’s and Brown’s original statements to police. The certification of probable cause, which Johnson agreed the plea judge could review, contained Hunter’s statements regarding Johnson’s history of violence, the detective’s description of Hunter’s injuries, and Hunter’s report of Johnson’s threatening telephone call days after the incident. The medical evidence available was also consistent with Hunter’s original statements to police rather than her recanting affidavit claiming to have sustained a broken nose over a year earlier.
Johnson does not argue that the specific details in the post-plea affidavits somehow transform the recantations into newly discovered evidence. Given Hunter’s and Brown’s statements and behavior before the plea, as well as the parties’ extensive discussions of their anticipated recantations at trial, the trial court did not abuse its discretion by concluding that the recantations did not establish a manifest injustice requiring withdrawal of Johnson’s plea.
Johnson also claims that he received ineffective assistance of counsel when his attorney (1) failed to interview Brown before advising him to plead guilty; and (2) failed to obtain affidavits from Hunter and Brown to support his motion to withdraw his plea. To establish ineffective assistance, Johnson must show that counsel’s performance was deficient and that prejudice resulted from the deficiency.[11] Prejudice is established if Johnson shows “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[12] When counsel’s alleged error is the failure to investigate or discover potentially exculpatory evidence, “the assessment of whether the error prejudiced the defendant involves the likelihood that the evidence `would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.'”[13]
Johnson contends that if his attorney had obtained Brown’s statement recanting her earlier report to the police before trial, he would not have advised Johnson to plead guilty and Johnson would have insisted on going to trial. But the record reflects that Johnson and his attorney knew before entering the plea agreement that Brown had been uncooperative with the State as well as the defense, that she was a close friend of Hunter and likely to recant in support of Hunter, and that she would be available for trial because she was on electronic home monitoring. Given these circumstances, Johnson and his attorney presumably considered the possibility that Brown’s substantive testimony at trial would contain some kind of denial of her previous statements to the police. As the trial court determined, there is nothing particularly surprising in Brown’s post plea affidavit that would not have been considered in the plea negotiations.
Similarly, Johnson cannot establish prejudice from his attorney’s failure to obtain affidavits to support his motion to withdraw the plea. When the second attorney produced the affidavits at the sentencing hearing, the trial judge stated that he had considered the statements offered by the first attorney as if they had been supported by affidavits when he denied the motion to withdraw the plea. Thus, Johnson has not demonstrated a manifest injustice based on ineffective assistance of counsel and the trial court properly denied his motion to withdraw his plea.
Affirmed.
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