STATE v. SANCHEZ-CRUZ, 25237-6-II (Wash.App. 6-15-2001)

No. 25237-6-II.The Court of Appeals of Washington, Division Two.
Filed: June 15, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Lewis County, No. 99-1-00275-4, Hon. H John J. Hall, September 29, 1999, Judgment or order under review.

Counsel for Appellant(s), Robert M. Quillian, Attorney At Law, 2633a Parkmont Lane SW, Olympia, WA 98502.

Counsel for Respondent(s), J. A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr 001, 360 N.W. North St, Chehalis, WA 98532-1900.

J. ROBIN HUNT, A.C.J.

Salvador Pastor Sanchez-Cruz appeals four guilty-plea convictions for delivery of cocaine. He contends that the trial court erred in denying his motion to withdraw his guilty pleas because they were involuntary and entered without the benefit of effective assistance of counsel. Finding no abuse of discretion in the court’s denial of Sanchez-Cruz’s motion, we affirm.

Facts
The State charged Sanchez-Cruz with four counts of delivery of cocaine on four separate occasions. Court-appointed counsel, Wade Samuelson, represented Sanchez-Cruz at the plea hearing on May 18, 1999. Judith Aguillar, a court certified Spanish interpreter, was also present.

In open court Sanchez-Cruz signed a Statement of Defendant on Plea of Guilty. This statement indicated that Sanchez-Cruz had completed the 11th grade. It also contained the terms of his plea agreement with the State.[1]

As part of the plea bargain, Sanchez-Cruz agreed to testify truthfully in a co-defendant’s case and to take a polygraph examination. In return, he would be allowed to withdraw his pleas of guilty on two counts and the State would recommend a 48-month sentence. In the event that Sanchez-Cruz failed to comply with these terms, the State would recommend 120 months.

The court asked Sanchez-Cruz if he understood the charges and their elements, the maximum possible sentence, and the constitutional rights he waived by pleading guilty; Sanchez-Cruz replied `Yes.’ The court also asked:

Q Have you reviewed the agreement with Ms. Aguilllar?
A Yes.
Q Do you feel that you fully understand the agreement?
A The whole thing, yes.
. . . .
Q Do you have any questions about anything we have covered so far?
A None.

Report of Proceedings (May 18, 1999) at 6. Sanchez-Cruz then pleaded guilty to all four counts. He responded `No’ when the court asked if anyone had threatened harm or forced him to plead guilty. The court found that Sanchez-Cruz’s pleas of guilty were freely and voluntarily made with a full understanding of the charges and the consequences.

On June 20, 1999, prior to sentencing, Sanchez-Cruz wrote the court requesting a new attorney. His letter stated, in part:

I believe to the best of my first hand knowledge that Mr. Samuelson is prejudice[d] against the Mexican race.
Also, Mr. Samuelson has `Threatened’ me by stating that, `I have to’ take a lie detector test or else I will be sentenced to additional time in the Department of Corrections.

Clerk’s Papers at 16-17. The court apparently granted this request because Michael Ferrell replaced Samuelson as Sanchez-Cruz’s counsel.

Sanchez-Cruz then moved to withdraw his pleas of guilty. In support of his motion, Sanchez-Cruz submitted a written declaration stating that he had pleaded guilty because Samuelson had advised him to do so, that he did not understand the proceedings at the plea hearing, and that Samuelson did not adequately represent him.

On September 28, 1999, the court heard Sanchez-Cruz’s motion; a Spanish interpreter was present. Sanchez-Cruz asserted that a manifest injustice existed because (1) his pleas were involuntary due to his lack of understanding of the consequences of pleading guilty, and (2) he did not receive effective assistance of counsel. Neither party called any witnesses or submitted evidence at the motion hearing.

The court denied Sanchez-Cruz’s motion and entered the following pertinent findings of fact and conclusions of law:

I. FINDINGS OF FACT

1.3 On May 18, 1999, the defendant was present in court for a change of plea hearing. He was represented during the hearing by his counsel of record, Wade Samuelson. Also present at the hearing was Judith Augilar, the court certified interpreter for Spanish-speaking peoples. During the hearing, a Statement of Defendant on Plea of Guilty, which was signed by the defendant, was filed in open court. The Court verbally advised the defendant of his rights and the rights he was waiving by entering pleas of guilty. The defendant acknowledged his rights and verbally entered pleas of guilty as charged to four (4) counts of Delivery of a Controlled Substance; to wit: Cocaine. The Court accepted the defendant’s pleas of guilty to all four (4) counts of Delivery of a Controlled Substance as charged in the Amended Information.
1.4 During the change of plea hearing, the defendant and State also entered into a separate written plea and sentencing agreement. The agreement required the defendant to cooperate with law enforcement, testify truthfully against a named co-defendant, and undergo polygraph examination.
The agreement was filed with the Court and sealed.
1.5 Subsequent to the plea of guilty, the defendant failed to cooperate with law enforcement when he refused to submit to two polygraph examinations. He first refused to submit to a polygraph examination on June 17, 1999, stating that he needed to have a Spanish-speaking interpreter present. On July 27, 1999, the defendant refused to submit to a second polygraph, despite the presence of a Spanish-speaking interpreter.
. . . .

II. CONCLUSIONS OF LAW

2.1 The defendant’s pleas of guilty to four (4) counts of Delivery of a Controlled Substance were freely and voluntarily made with a full understanding of the nature of the charges against him and the consequences of the pleas to each of the charges.
2.2 The defendant has put forth no facts to support his claim that he received ineffective assistance of counsel. The defendant was represented by counsel during the hearing at which he changed his pleas. The defendant received effective assistance and representation in this matter.
2.3 The defendant failed to show that a withdrawal of his pleas of guilty would be necessary to correct a manifest injustice as required under CrR 4.2(f).
2.4 The defendant’s motion to withdraw his pleas of guilty to four (4) counts of Delivery of a Controlled Substance is denied.
2.5 A preponderance of the evidence exists that the defendant breached the written plea and sentencing agreement with the State by refusing to cooperate with law enforcement and by refusing to submit to a polygraph examination.
2.6 Because of the defendant’s breach of the written plea and sentencing agreement, the State is not bound by the terms of the agreement.

Clerk’s Papers at 11-13.

At the sentencing hearing, Sanchez-Cruz’s offender score was determined to be `9,’ resulting in a standard range of 108 to 120 months on each count. The State recommended 120 months; Sanchez-Cruz’s counsel requested a sentence of 108 months. The court sentenced Sanchez-Cruz to 120 months confinement on each count to run concurrently.

Analysis I. Guilty Pleas
To be valid, a guilty plea must be voluntarily and intelligently made and with full knowledge that certain rights are waived. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). Whether a plea is knowingly, intelligently, and voluntarily made is determined from a totality of the circumstances. Branch, 129 Wn.2d at 642.

CrR 4.2(f) governs a defendant’s motion to withdraw his plea of guilty. Withdrawal is allowed when `necessary to correct a manifest injustice.’ CrR 4.2(f). This is a demanding standard requiring the defendant to demonstrate `an injustice that is obvious, directly observable, overt, not obscure.’ State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Four nonexclusive criteria exist for determining whether a manifest injustice exists: “(1) denial of effective counsel, (2) plea . . . not ratified by the defendant . . . (3) plea was involuntary, (4) plea agreement was not kept by the prosecution.” State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting Taylor, 83 Wn.2d at 597). We review a trial court’s decision on a CrR 4.2(f) motion for an abuse of discretion. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000).

We turn first to Sanchez-Cruz’s claim that a manifest injustice existed because his pleas of guilty were involuntary. He cites State v. Frederick, 100 Wn.2d 550, 674 P.2d 136 (1983), where the Supreme Court held that coercion may render a guilty plea involuntary, regardless of the State’s involvement. 100 Wn.2d at 556. In Frederick, there was evidence that Frederick’s co-defendant threatened to kill him if he did not plead guilty; the court held that this evidence was admissible in a habitual criminal proceeding where Frederick tried to challenge an earlier conviction based on a guilty plea. Frederick, 100 Wn.2d at 553, 558.

In this case, the alleged source of coercion was Samuelson, Sanchez-Cruz’s first court-appointed counsel. In his June 20 letter, Sanchez-Cruz said that Samuelson threatened him by telling him he had to take a polygraph examination or face the possibility of a longer sentence. We reject Sanchez-Cruz’s claim that this statement constituted coercion. Counsel’s statement merely described the terms of the agreement and the possible result in the event of Sanchez-Cruz’s noncompliance.

Sanchez-Cruz also relies on his June 20 letter to support his claim that he did not understand the proceedings or the agreement. He argues, `Had he fully understood those terms, he would have been in no position to question or complain about his duty to take polygraph tests.’ Brief of Appellant at 6. Again, we disagree with Sanchez-Cruz on the import of his letter complaining about his court-appointed counsel. The letter’s stated purpose was to obtain new counsel, which the court granted. The letter does not show, as Sanchez-Cruz asserts, a lack of understanding of the plea agreement or the consequences of pleading guilty.

Sanchez-Cruz further argues that the `fact that [he] required an interpreter at all proceedings is but another factor which militates in favor of his being able to withdraw his guilty pleas.’ Brief of Appellant at 6. To the contrary, the assistance of a court certified interpreter promotes, rather than undermines, confidence that the defendant fully understood the proceedings and documents because they were translated into the language in which he is more proficient. See generally chapter 2.42 RCW (interpreters in legal proceedings).[2] Thus, the assistance of a Spanish interpreter in this case supports the conclusion that Sanchez-Cruz’s pleas of guilty were knowing and intelligent.

Moreover, the defendant’s signature on a plea statement is strong evidence of voluntariness. Branch, 129 Wn.2d at 642. Here, Sanchez-Cruz signed the plea statement in open court; he had `gone over each line’ with the interpreter. Report of Proceedings (May 18, 1999) at 9. The plea hearing record reveals that the court inquired thoroughly into Sanchez-Cruz’s understanding of the nature of the charges, the maximum possible sentence, the rights he waived, and the consequences of pleading guilty. Thus, the transcripts of the plea hearing and the statement of guilty plea demonstrate that he entered knowing, voluntary and intelligent pleas. Sanchez-Cruz’s uncorroborated statements regarding his lack of understanding in the context of this record are insufficient to meet the demanding burden for withdrawal of a guilty plea. See, e.g., State v. Mendez, 56 Wn. App. 458, 784 P.2d 168 (1989).

II. Assistance of Counsel
Sanchez-Cruz also claims that Sameulson did not provide effective representation. `In the plea bargaining context, effective assistance of counsel means that counsel actually and substantially assisted his client in deciding whether to plead guilty.’ State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981) (citation omitted). To prevail on a claim of ineffective assistance of counsel, Sanchez-Cruz must show that Samuelson’s performance fell below an objective standard of reasonableness and that he was prejudiced by the alleged deficient performance. State v. Stowe, 71 Wn. App. 182, 186, 858 P.2d 267
(1993); cf. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He has not done so.

Sanchez-Cruz submitted no evidence at the motion hearing to support his claim. Nor has he shown any deficiency or misadvisement on the part of defense counsel.[3] Instead, he has offered only conclusory allegations. Sanchez-Cruz’s declaration simply asserted that he was unaware of the consequences and pleaded guilty based upon Samuelson’s advice.

The trial court correctly concluded that Sanchez-Cruz received effective representation. Clerk’s Papers at 12. The trial court did not abuse its discretion in denying Sanchez-Cruz’s motion to withdraw his pleas of guilty.

We affirm.[4]

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: HOUGHTON, J., QUINN-BRINTNALL, J.