No. 59074-0-I.The Court of Appeals of Washington, Division One.
May 5, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-08846-8, James D. Cayce, J., entered September 25, 2006.
Remanded by unpublished per curiam opinion.
PER CURIAM.
The court convicted Avelino Reyes-Montes of one count of felony telephone harassment and three counts of gross misdemeanor telephone harassment. Reyes-Montes asserts that he was deprived of his constitutional right to the effective assistance of counsel because his attorney did not pursue a motion for specific performance of the plea agreement. He also contends that the trial court’s findings do not address an essential element of the offense of telephone harassment. Reyes-Montes cannot establish prejudice and his claim of ineffective assistance fails. However, because the trial court’s findings and conclusions do not clearly address an essential element of telephone harassment, we remand.
FACTS
Avelino Reyes-Montes entered the United States illegally and moved to Washington in 2001. In 2002, Reyes-Montes met Gloria Defond in an English class and the two became friends. About two months later, Defond introduced Reyes-Montes to her family, including her 13-year-old daughter, G.P.P. G.P.P. began skipping school to spend time with Reyes-Montes. When G.P.P.’s school informed Defond that G.P.P. had been skipping school, Defond confronted her. G.P.P. lied and told Defond that she had gone out with a girlfriend. But because Defond overheard G.P.P. talking on the telephone with Reyes-Montes several times, Defond suspected that Reyes-Montes was taking G.P.P. out of school. When the school told Defond that Reyes-Montes had been taking G.P.P. out of school, pretending to be her uncle, Defond obtained an anti-harassment order against him. Defond also moved with her family to Federal Way.
In October 2003, Defond received a telephone call from Reyes-Montes at her home. Defond told Reyes-Montes not to call her house again. Reyes-Montes began threatening Defond, telling her that he had a relationship with G.P.P. and was going to “come for her.” Defond hung up the telephone and called the police.
That same month, Reyes-Montes also called Defond’s friend, Martha Fuentes. Reyes-Montes told Fuentes that if she did not let him talk to G.P.P., Fuentes’s sons might have an “accident.” Fuentes was very frightened by the call and contacted the police.
Between October 2003 and May 2004, Reyes-Montes called Defond four to six times a week. Reyes-Montes threatened Defond by saying he was going to take G.P.P. to Mexico, by asking what kind of flowers she would like at her funeral, and by describing the clothes she was wearing. Reyes-Montes also told Defond that if she kept calling the police, he would kill her son. Defond told him to stop calling her, changed her phone number, and continued to contact the police after Reyes-Montes called. The police informed Defond they had to wait until something happened in order to take action.
In July 2004, Reyes-Montes was charged with one count of felony harassment for threatening to kill Defond. The State later amended the charge to felony telephone harassment, Count I, and added three counts of gross misdemeanor telephone harassment, Counts II-IV. Count II alleges Reyes-Montes called Defond on October 7, 2003, with intent to harass, intimidate, or torment. Count III alleges Reyes-Montes called Fuentes on October 16, 2003, with intent to harass, intimidate, or torment. Count IV alleges Reyes-Montes repeatedly called Defond between May 14 and December 31, 2004, using obscene language and threatening to inflict injury on Defond, any member of her family, or her property.
Reyes-Montes and the State entered into a plea agreement. ReyesMontes agreed to plead guilty to Counts II and III and the State agreed to dismiss Counts I and IV. The parties signed a “Statement of Defendant on Plea of Guilty (Misdemeanor),” and submitted it to the court on May 2, 2006. The prosecutor extensively questioned Reyes-Montes about the plea agreement and asked twice whether he understood that the maximum sentence was one year in jail and a $5,000 fine. Reyes-Montes answered that he understood. The judge also asked Reyes-Montes whether he understood that the court had the authority to impose any sentence to the maximum and stated, “it appears in this case you and the State have agreed that the maximum is 360 days in jail and a $5,000 fine; is that correct?” Reyes-Montes answered, “Yes.” The court accepted Reyes-Montes’s guilty plea. The written plea agreement stated the maximum term as “12 months” for each count.
At the sentencing hearing on March 3, the prosecutor reiterated the State’s recommendation of “twelve months in jail on each count.” The court noted that the third page of the statement of the defendant listed the maximum sentence as “360 days” instead of 365 days. The prosecutor stated, “I believe that was a typographical error, your Honor. The math is 365 days.” Defense counsel stated that the lower number was entered for the purpose of avoiding problems with Reyes-Montes immigration status. The prosecutor asked the court to either change the stated maximum term to 365 days or set aside the plea agreement. The trial court continued the sentencing hearing.
The defense filed a motion to specifically enforce the plea agreement. Reyes-Montes argued that because the plea agreement was based on mutual mistake about the standard range of the sentence, he could choose to enforce the plea agreement or withdraw the plea. In the alternative, Reyes-Montes argued that if the court refused to specifically enforce the plea agreement, he must be allowed to withdraw his plea.
On May 12, the prosecutor stated that he thought the inclusion of 360 days was a scrivener’s error and, consequently, Reyes-Montes was only entitled to an opportunity to withdraw the guilty plea, not specific performance. In response, defense counsel agreed that specific performance was not available and stated Reyes-Montes wanted to withdraw his plea. Defense counsel also stated that even if Reyes-Montes could choose specific performance, he would still want to withdraw the plea.
After a bench trial, the court entered findings of fact and conclusions of law, finding Reyes-Montes guilty of all four counts. Reyes-Montes appeals.
ANALYSIS
Ineffective Assistance
Reyes-Montes claims that he received ineffective assistance of counsel when his lawyer failed to zealously pursue a motion for specific performance of the plea agreement. Under both the federal and state constitutions, a defendant is guaranteed the right to effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22; In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004); see also Strickland v. Washington, 466 U.S. 668, 684-686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Courts engage in the strong presumption that assistance was effective at the trial level; therefore the defendant carries a heavy burden to prove otherwise. In re Davis, 152 Wn.2d at 673; State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003).
To establish an ineffective assistance claim, the defendant must show (1) that counsel’s performance was deficient and (2) that this deficiency prejudiced the defense. Strickland, 466 U.S. 668, 687. Prejudice occurs if there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different. In re Davis, 152 Wn.2d at 672-673; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 695. A court need not continue its analysis if the defendant fails to satisfy either part of Page 6 the test, and when a claim can be more easily resolved on the basis of a lack of prejudice, the court should do so. In re Davis, 152 Wn.2d at 673.
Reyes-Montes asserts that he was prejudiced by his attorney’s decision not to pursue the motion to specifically enforce the plea agreement. He claims that, had his attorney pursued the motion, the trial court would have granted specific performance because public policy supports enforcement of pleas and because the prosecutor failed to correct the error prior to the entry of the plea. Reyes-Montes, however, was not prejudiced because even if he had the choice of specific performance, he still would have chosen to withdraw his plea.
At the May 12, 2006 hearing, when the court asked defense counsel if “the defendant, even if he had a choice, still [wanted] to withdraw the plea?” his attorney replied, “Yes.” On appeal, Reyes-Montes does not argue that his attorney misrepresented his position. And below, when the court questioned Reyes-Montes about his decision to withdraw his plea, Reyes-Montes said that he was withdrawing the plea “because the prosecutor wasn’t true to his word . . . immigration had nothing to do with this.” Reyes-Montes also stated that he did not want to plead guilty “because I’m not guilty.”
Based on Reyes-Montes’s position below, even if defense counsel had pursued the motion for specific performance and the court had granted it, Reyes-Montes would have still chosen to withdraw his entire plea. The outcome would not have been different and Reyes-Montes cannot establish prejudice. His claim of ineffective assistance of counsel fails.
Findings of Fact and Conclusions of Law
Reyes-Montes also claims that the trial court’s findings do not contain the necessary findings related to an essential element of the offense of telephone harassment — the intent to harass when the telephone call was initiated. Reyes-Montes asks this court to remand for entry of findings on the element of intent that are consistent with the evidence.
At the conclusion of a bench trial, the trial court is required to enter findings of fact and conclusions of law. CrR 6.1(d). These findings should include the ultimate facts necessary for each element of the crime. State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995). Failure to do so requires remand for entry of these findings and conclusions. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
The State contends that this court should follow Redmond v. Burkhart, 99 Wn. App. 21, 991 P.2d 717 (2000) and find the trial court’s findings sufficient. The Washington Supreme Court, however, recently overturned Burkhart and held that the “crime of telephone harassment requires proof that the defendant formed the intent to harass the victim at the time the defendant initiates the call to the victim.” State v. Lilyblad, 163 Wn.2d 1, 13, 177 P.3d 686 (2008). Because the trial court’s findings and conclusions do not clearly address the essential element of intent to harass at the initiation of the telephone call, we remand for entry of findings consistent with the evidence.