Opinion
No. 64238-3-I.
Filed: September 27, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05714-0, Jeffrey M. Ramsdell, J., entered September 22, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Schindler, JJ.
To show prejudice from defense counsel's inadequate factual investigation, a defendant seeking to withdraw a guilty plea must identify specific evidence that would have caused him to change his plea. Emory Berube contends that his trial counsel's failure to investigate led him to plead guilty to assault in the second degree. He fails to identify the evidence that would have likely led him to choose to stand trial and, thus, fails to demonstrate prejudice. His claim of ineffective assistance of counsel is unavailing. We affirm the trial court's denial of his motion to withdraw his plea.
FACTS
Seattle Police Detective James Cooper set forth the underlying allegations against Emory in his certification for determination of probable cause. On July 12, 2008, Emory approached Tanisha Barquet and her female friend outside a restaurant, accused Barquet of being involved in his friend's shooting a month earlier, and threatened her. He called his brother Ivory, who arrived shortly thereafter. Ivory also threatened her, walked to a nearby car, and returned with what appeared to be a gun. Barquet and her friend got into their car and left.
Because Emory Berube and his brother Ivory Berube were co-defendants in their joint trial, and because both were alleged to have played a role in the underlying shooting, we refer to each by their first name in this opinion to avoid confusion.
Later that night, Ivory approached Barquet outside a lounge, and twice fired a gun at her. The first bullet struck Barquet's ear and grazed her neck. The second bullet struck her in the leg as she ran away from the shooter. She hid in a yard nearby. Police officers found her unconscious. After being treated for her injuries, she identified Emory and Ivory from photomontages, and identified Ivory as the shooter.
The police obtained security video from the lounge showing the street near the shooting. The video's image quality was poor, but showed Barquet arriving with another woman. Two men in a larger group yelled at them. One of the men, who wore glasses, made a motion as though he was racking a pistol, then pointed his hand toward Barquet. He appeared to speak to a second man in the group. The group dispersed and Barquet's friend went into the lounge. The second man yelled at Barquet. The man in glasses walked down the sidewalk out of the camera's view; Barquet walked to the same area. The second man ran toward Barquet, but abruptly stopped. The security guards in the video flinched and ran into the lounge. Barquet ran across the street, away from the man in glasses. He chased her, pointing an object at her back. He then ran away. The second man followed.
The video showed that police officers arrived shortly thereafter. They did not initially go to where Barquet was hiding. When no officers were present, three or four men who were previously with the shooter crossed the street and entered the yard, then exited the yard and examined the sidewalk. Soon thereafter, Seattle Police and Fire Department units found Barquet.
Officers later learned that the men were attempting to trace the blood trail Barquet left as she ran.
A witness later told police that both Berube brothers argued with Barquet in front of the lounge that night. He described Ivory's clothing; it matched the clothing of the man in the video who appeared to be the shooter.
Emory was arrested five days later. When he was arrested, police found heroin and cocaine on his person. Emory was read his Miranda rights, waived them, and gave an audio-and videotaped statement to police. He admitted he was at the restaurant and the lounge, and was in the street near the lounge during the shooting. He was charged with assault in the first degree, unlawful possession of a firearm, and two counts of possession of a controlled substance.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On March 3, 2009, Emory requested substitution of counsel, arguing that his attorney had visited him twice, had not interviewed witnesses, and had done no work on the case. The court denied his motion. At a pre-trial hearing on April 9, 2009, he renewed his motion, alleging that he had no contact with counsel since the March hearing, and that he provided counsel with a list of witnesses who would testify that he was not present during the shooting. He stated that his counsel had not contacted the witnesses, even though some were allegedly incarcerated and easy to find. The trial court again denied his motion.
Emory's and Ivory's cases were joined for a jury trial, which began on April 9, 2009. On the second day of trial, Emory and the State entered a plea agreement. Pursuant to the agreement, the State reduced the assault charge to assault in the second degree, and dropped the unlawful possession of a firearm charge. The State agreed to recommend a sentence of 84 months for the assault charge and 24 months each for the cocaine and heroin possession charges, all to run concurrently.
The cocaine and heroin possession charges remained unchanged.
Emory entered an Alford plea to the assault charge, and agreed to plead guilty to possessing the heroin and cocaine. In his plea, Emory stated:
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
I have reviewed the police reports and the evidence, including the video from [the lounge], with my attorney. I believe that there is a substantial likelihood that I would be found guilty if I proceeded to trial. My actions and interactions with the victim and the shooter are demonstrated on the video.
Prior to sentencing, Emory obtained a new attorney and moved to withdraw his plea to the assault charge. He argued that his previous counsel failed to interview witnesses, failed to retain an investigator, and failed to review the State's evidence with him.
Emory acknowledged that he read the certification for determination of probable cause "about a thousand times," and was aware of the allegations against him. He also acknowledged that he had seen the security video in October 2008 with the defense attorney representing him at that time, and knew its contents at the time of his plea. Defense counsel conceded he did not know of any specific evidence the additional witnesses would provide that would have led Emory to change his plea.
Emory successfully moved to have the attorney who initially represented him withdraw as counsel, prior to the appointment of the attorney representing him at the time of trial.
Emory's trial counsel's timesheets indicated he had spent approximately 36 hours reviewing the case file, meeting with Emory, and preparing for trial. Counsel acknowledged that he had not contacted Barquet before trial, and that he did not attempt to contact the other individuals. He explained that few witnesses came forward at the scene, and based on his analysis of the case, he concluded that there "were not any other interviews that needed to be done." Regarding the individuals in custody, he explained that Emory provided no names or contact information. He also acknowledged that he did not retain an investigator and did not review the security video with Emory.
The trial court denied Emory's motion to withdraw his plea, finding that he failed to demonstrate any prejudice. The trial court found that Emory made a reasoned choice to plead guilty. The court emphasized that Emory presented no evidence or testimony that, if discovered prior to the plea, would have changed counsel's advice to plead guilty to assault in the second degree.
The court imposed the recommended sentence of 84 months for the assault and 24 months each for cocaine and heroin possession charges, all to run concurrently. If convicted as originally charged, Emory would have faced a standard range sentence of 300 to 378 months. Ivory was convicted after trial and was sentenced to 378 months of confinement.
ANALYSIS
Motion to Withdraw the Plea
Emory appeals from the trial court's denial of his motion to withdraw his guilty plea, contending that he received ineffective assistance of counsel. We disagree.
An Alford plea is valid if it "`represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" In assessing whether a plea is voluntary and intelligent, the court must ascertain that the defendant possessed sufficient information about the facts to understand the law in relation to the facts and appreciate the nature of the charge against him. Once the court accepts the guilty plea, it must allow the defendant to withdraw the guilty plea if necessary to correct a manifest injustice. This is a demanding standard, justified by the safeguards protecting the defendant at the time the plea is entered. Ineffective assistance of counsel constitutes a manifest injustice.
In re Montoya, 109 Wn.2d 270, 280, 744 P.2d 340 (1987) (quoting Alford, 400 U.S. at 31); In re Clements, 125 Wn. App. 634, 645, 106 P.3d 244 (2005).
In re Hews, 108 Wn.2d 579, 592, 741 P.2d 983 (1987); Clements, 125 Wn. App. at 645.
State v. A.N.J., 168 Wn.2d 91, 106-107, 225 P.3d 956 (2010); State v. Taylor, 83 Wn.2d 594, 595, 521 P.2d 699 (1974); CrR 4.2(f).
State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996); Clements, 125 Wn. App. at 640.
State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001).
Ineffective Assistance of Counsel
Emory argues that his trial counsel was ineffective for failing to adequately investigate the factual circumstances surrounding the assault. We disagree.
In order to establish ineffective assistance of counsel, a defendant must demonstrate both that counsel's representation fell below an objective standard of reasonableness, and that prejudice resulted. "Judicial scrutiny of counsel's performance must be highly deferential." To show prejudice, "a defendant challenging a guilty plea must show that 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."
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Strickland, 466 U.S. at 689.
In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
This case is readily distinguishable from the case on which Emory primarily relies, State v. A.N.J. A.N.J. involved a juvenile defendant who pleaded guilty to first degree child molestation. In that case, defense counsel met with his client for a total of about 55 minutes prior to the plea hearing, did not carefully review the plea agreement, and did not contact any witnesses, request any discovery, or file any motions. Counsel in A.N.J. also misled his client about the consequences of his plea, indicating that the juvenile sex offender registration requirement would elapse. Because A.N.J. involved a juvenile defendant and a child victim, the issues of false confessions by children and the fallibility of child testimony were relevant areas of inquiry defense counsel failed to investigate. A.N.J. also involved a public defender contract that was "dysfunctional" for requiring payment of investigators and experts to come out of defense counsel's fee.
168 Wn.2d 91, 225 P.3d 956 (2010).
A.N.J., 168 Wn.2d at 100-102.
A.N.J., 168 Wn.2d at 103.
A.N.J., 168 Wn.2d at 110-111.
A.N.J., 168 Wn.2d at 112.
While the A.N.J. court identified a number of specific failures that led to identifiable prejudice to A.N.J., Emory makes no such showing here. The only relevant aspect of A.N.J. to the facts of this case is the adequacy of the investigation prior to the plea hearing. Emory's trial counsel indicated that he spent approximately 36 hours reviewing the case file, meeting with Emory, and preparing for trial. Counsel was familiar with the allegations, and based on his analysis of the case, concluded that there "were not any other interviews that needed to be done." The record does not demonstrate that counsel's performance, in the circumstances of this case, was unreasonable.
Strickland, 466 U.S. at 689.
Emory acknowledged that he was entirely familiar with all of the evidence in the certification, having read it "a thousand times," and had seen the security video with his previous counsel. He knew the essence of the State's case. He even admitted seeing Barquet at the restaurant and at the lounge, and being present at the time of the shooting. Emory was able to understand the law in relation to the facts and appreciate the nature of the charge against him.
Moreover, Emory is unable to point to any specific evidence that counsel would have discovered that would lead him to make a different plea recommendation, or would lead Emory to forego the benefits of the plea deal to risk trial on the greater charge. Thus, he cannot demonstrate prejudice and his claim fails.
First, Emory demonstrates no specific prejudice from counsel's alleged failure to interview Barquet. Emory and his counsel both already knew the gravamen of her allegations from the certification. By admitting that he was present at both the restaurant and outside the lounge at the time of the shooting, Emory largely corroborated her identification of him.
Second, Emory demonstrates no specific prejudice from counsel's alleged failure to review the security video with him. He admitted he had reviewed the video with his prior counsel, and knew its contents. He does not explain what a more thorough evaluation of the video would reveal, much less how any evidence discovered thereby would create any likelihood that he would have decided not to plead guilty.
Third, Emory demonstrates no specific prejudice from counsel's alleged failure to interview other witnesses. To demonstrate prejudice, Emory must show not only that the testimony would have been favorable, but also that the witnesses would have testified at trial. He has not explained how the potential testimony would have changed counsel's plea recommendation, or his own decision to accept the State's offer. Emory's contention that these witnesses' testimony would have aided his defense is merely speculative and does not satisfy the Strickland prejudice requirement. Emory also did not present evidence that these individuals were available to testify, or would testify.
Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (denying ineffective assistance of counsel claim based on lack of preparation for failure to call witnesses when no affidavits were submitted to support petitioner's assertion as to what testimony would have been provided); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (rejecting claim of ineffective assistance based on counsels' failure to call a witness who would have taken responsibility for a gun found in defendant's possession because, inter alia, "[t]here is no evidence in the record which establishes that Washington would testify in [petitioner's] trial").
Harden, 846 F.2d at 1231-32; Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (speculation about what a witness would have said if called to testify does not establish prejudice).
Emory next argues that his counsel failed to investigate a possible defense, citing Dando v. Yukins, and Thomas v. Lockhart. The defendant in Dando was allowed to withdraw a no-contest plea after defense counsel failed to raise the defense of duress and her boyfriend threatened to kill her before she participated in robberies. The defendant in Thomas was allowed to withdraw a guilty plea after defense counsel failed to investigate alibi witnesses and the defendant's history of serious mental health problems, misinformed the defendant about the burden of proof, and claimed trial would be futile because of racial prejudice and that he felt "funny" representing the defendant, a black man accused of raping a white woman. The critical difference between Dando and Thomas and this case is that, in those cases, the defendants clearly established prejudice resulting from counsel's actions. In this case, by contrast, Emory failed to demonstrate prejudice.
461 F.3d 791 (6th Cir. 2006).
738 F.2d 304 (8th Cir. 1984).
Dando, 461 F.3d at 794-803.
Thomas, 738 F.2d at 308-310.
Finally, Emory urges this court to conclude that his counsel's performance was prejudicial per se. The Strickland standard applies to claims of ineffective assistance of counsel at the plea hearing stage. The exception is when "the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time." These circumstances occur when counsel entirely fails "`to subject the prosecution's case to meaningful adversarial testing.'" To justify the presumption of prejudice based on an attorney's failure to test the prosecutor's case, "the attorney's failure must be complete."
Wright v. Van Patten, 552 U.S. 120, 124, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008).
Wright, 552 U.S. at 125.
In re Pers. Restraint of Davis, 152 Wn.2d 647, 675, 101 P.3d 1 (2004) (quoting United States v. Cronic, 466 U.S. 648, 659-61, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)).
Bell v. Cone, 535 U.S. 685, 696-97, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).
This case does not present circumstances justifying such a presumption. Emory received a substantially lighter sentence for the reduced assault charge than he faced if convicted as charged at trial. The State also dismissed a weapon possession charge in exchange for his plea. The results of the plea agreement were tremendously advantageous to Emory. At the plea hearing, Emory indicated that he went through the certification and the evidence with counsel, was adequately apprised of the nature of the State's evidence, and was aware of the consequences and benefits inherent to the plea offer. Emory's claim that defense counsel did no factual investigation is inaccurate. Counsel indicated that he spent a substantial amount of time reviewing the certification, and also spoke with Emory about his case. Counsel's conduct in this case did not constitute the type of "complete" failure that negates the need for an inquiry into actual prejudice.
Bell, 535 U.S. at 696-97.
We affirm.
WE CONCUR: