20IUUN 16 AH 9^5
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69802-8-1 Respondent, v. DIVISION ONE
JOHN WESLEY JACKSON, JR., UNPUBLISHED OPINION
Appellant. FILED: June 16, 2014
Leach, J. — John Jackson Jr. appeals the trial court's denial of his motion
to withdraw his guilty plea. He claims that his trial counsel did not provide
effective assistance during plea negotiations because the attorney failed to
inform Jackson of the State's burden to disprove his self-defense claim. He also
claims that his sentence for attempted assault in the first degree exceeds the
statutory maximum. In a statement of additional grounds, he further claims that
the court had no basis to impose an exceptional sentence, that the court
sentenced him twice on one cause number and improperly imposed consecutive
sentences, and that the court violated his right to a speedy trial. Because we
accept the State's concession that the imposed period of community custody,
when combined with Jackson's imposed term of incarceration, exceeds the
statutory maximum sentence for attempted assault in the first degree, we remand
to the trial court either to amend the community custody term or to resentence No. 69802-8-1 / 2
Jackson on the attempted assault conviction consistent with RCW 9.94A.701(9).
Because Jackson's remaining claims are meritless, we otherwise affirm.
Background
Jackson rented two rooms in a building that Anthony Narancic managed.1
After Jackson moved out of the building in September 2011, Narancic retained
his security deposit. Narancic received several threatening telephone calls from
Jackson, demanding that Narancic return his security deposit.
On October 4, 2011, Jackson offered another tenant money to call him
when Narancic appeared on the property. After this tenant called, Jackson
rushed into Narancic's office and beat him over the head with a metal club or
pipe. Vincent Pettie rushed into the office and held down Narancic while Jackson
continued to beat Narancic and told Narancic that he would kill him. As Jackson
and Pettie drove away, Jackson yelled, "I'm a gangster" and "I'll fucking kill you."
When police arrested Jackson, he stated that he and Narancic got into a
"tussle" and that "[i]t was a fair fight." Jackson denied assaulting Narancic with a
pipe.
The State charged Jackson with assault in the first degree. Before trial,
Jackson told the court that he intended to raise a self-defense claim.
1 Jackson stipulated that the court could consider the facts contained in the certification for determination of probable cause and the prosecutor's summary for purposes of the sentencing hearing. After Jackson filed the motion to withdraw his guilty plea, the trial prosecutor submitted a declaration to the court detailing the State's anticipated evidence at trial. No. 69802-8-1 / 3
The parties reached a plea agreement on the third day of trial. Jackson
agreed to plead guilty to attempted assault in the first degree and felony
harassment. The parties agreed that the prosecutor would recommend an
exceptional sentence above the standard range of 120 months on the assault
count, the statutory maximum, and 60 months on the harassment count, to run
consecutively. The prosecutor would also recommend 36 months of community
custody on the assault count.
Before sentencing, Jackson moved to withdraw his guilty plea, alleging
ineffective assistance of counsel. The court continued the sentencing date and
allowed Jackson's attorney, Daniel Felker, to withdraw based on a potential
conflict of interest.
After the court appointed new counsel, Jackson moved to withdraw his
guilty plea based upon ineffective assistance of counsel. He argued,
Despite being placed on notice that Mr. Jackson would assert a self-defense claim at trial, neither the state nor the court inquired of Mr. Jackson during his plea colloquy whether he understood what rights he was giving up relative to the defense of self-defense. At no point was Mr. Jackson asked if he was aware of what he would need to prove for a successful self-defense claim, or that the state would have the burden of disproving his claim of self-defense beyond a reasonable doubt at trial.
Jackson claimed, "If [Felker] had told me about the laws of self-defense, and the
state's burdens, I would have not pled guilty but would have continued the trial
and testified."
Felker submitted two declarations about his representation. Felker stated
that "in an initial meeting at the King County Jail, Mr. Jackson described his No. 69802-8-1/4
participation in the incident, indicating that he acted in self defense." He also
stated,
1. Over the course of my representation of Mr. Jackson and prior to the trial date and subsequent plea in this matter, I discussed the defense of self-defense with Mr. Jackson. We discussed his right to testify and I was aware of the likely substance of Mr. Jackson's testimony if he decided to testify at trial. 2. I reviewed the entire discovery, visited the scene of the crime and interviewed many of the State's witnesses. I had two different investigators assigned, who worked many hours on the case. I was familiar with the facts of the case and the evidence that the State would likely present. Approximately a month before trial, after I had interviewed the victim and the State's witnesses and conducted an independent investigation and evaluation of the case, Mr. Jackson asked me for my opinion on the strength of his possible defense. Based upon everything I knew, including what Mr. Jackson discussed with me, I told him that he had "a really tough case," as I did not think Mr. Jackson could avoid conviction by raising self- defense. I believed that the State could prove that Mr. Jackson had not acted in self-defense. I advised Mr. Jackson that if the prosecutor was willing to make a reasonable plea offer that he should consider it. 3. On the third day of trial, when Mr. Jackson announced to me and the State that he wanted to plead guilty to an offer of 180 months, which had been discussed with [the prosecutor] the previous day. The parties then engaged in formal plea negotiations for the first time. Based on my evaluation of the strength of the State's case, taking into consideration Mr. Jackson's proffered defense of self- defense and my knowledge of his intended testimony, I believe that Mr. Jackson's plea was in his best interests and would save him many years in prison.
After a hearing, the trial court denied Jackson's motion to withdraw his
guilty plea. The court entered the following findings of fact:
2. The court finds the statements contained in the October 31, 2012 and December 7, 2012 declarations of trial counsel, Daniel Felker, credible. 3. The court does not find credible the statements of the defendant on October 5, 2012, in court and does not find credible the statements contained in the declaration of the defendant regarding his meetings and discussions with Mr. Felker.
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4. The court finds that the State would have presented evidence showing that the defendant (and his co-defendant) showed up at the victim's work with a weapon in hand; that the defendant attacked and repeatedly assaulted the victim with the weapon; that the defendant had made prior threats against the victim; that the defendant had offered money to another tenant if that tenant would let the defendant know when the victim arrived at work; and that as the defendant was leaving, he threatened to kill the victim, yelling, "I'm a gangster, I'll kill you." 5. The defendant has never identified any evidence that he acted in self-defense. Attorney Felker credibly represented that the defendant could not have successfully claimed that he acted in self- defense. 6. There was substantial evidence that the defendant did not act in self-defense and was the first aggressor. 7. The court finds that Mr. Felker discussed self-defense with the defendant, discussed the defendant's potential testimony with the defendant, and conveyed to the defendant that while he could assert self-defense, the State would easily disprove that assertion. While Mr. Felker may not have used the exact verb[i]age of a "shifting burden of proof," Mr. Felker did convey to the defendant that he would not be successful in escaping conviction by claiming self-defense. The defendant has not established that this advice was unreasonable.
The court concluded that Felker's advice to Jackson to accept the plea offer was
"objectively reasonable," that Felker's representation was not deficient, that
Jackson demonstrated no prejudice from Felker's allegedly deficient
performance, that Jackson's plea was "constitutionally valid," and that "a manifest
injustice has not been committed."
The court imposed the agreed-upon exceptional sentence of 120 months
of confinement on the assault count and 60 months of confinement on the
harassment count, to run consecutively. The court also imposed 36 months of
community custody on the assault count.
Jackson appeals. No. 69802-8-1 / 6
Analysis
Jackson challenges the trial court's denial of his motion to withdraw his
guilty pleas, claiming that his pleas "were involuntary and the product of
ineffective assistance of counsel." He alleges that his attorney had a duty to
inform him before he entered his guilty pleas that once he presented some
evidence of self-defense, the burden of proof shifted to the State to disprove this
defense beyond a reasonable doubt.
We review the denial of a motion to withdraw a guilty plea for abuse of
discretion.2 A trial court abuses its discretion when its decision is based upon
untenable grounds or reasons.3
Due process requires that a defendant's guilty plea be knowing, voluntary,
and intelligent.4 For a plea to be valid, "the accused must be apprised of the
nature of the charge."5
The court must allow a defendant to withdraw a guilty plea when
necessary to correct a manifest injustice.6 Denial of effective counsel constitutes
2 State v. Pugh, 153 Wn. App. 569, 576, 222 P.3d 821 (2009) (citing State v. Marshall. 144 Wn.2d 266, 280, 27 P.3d 192 (2001)). 3 Pugh, 153 Wn. App. at 576 (citing State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)). 4 In re Pers. Restraint of Montova, 109 Wn.2d 270, 277, 744 P.2d 340 (1987) (citing In re Pers. Restraint of Hews. 108 Wn.2d 579, 590, 741 P.2d 983 (1987); Henderson v. Morgan. 426 U.S. 637, 644-45, 96 S. Ct. 2253, 49 L. Ed. 2d 108(1976)). 5 Montova. 109 Wn.2d at 278 (citing Henderson, 426 U.S. at 645; Hews, 108 Wn.2d at 590; State v. Osborne, 102 Wn.2d 87, 92-93, 684 P.2d 683 (1984); In re Pers. Restraint of Keene. 95 Wn.2d 203, 207, 622 P.2d 360 (1980)). 6 CrR 4.2(f). No. 69802-8-1 / 7
a manifest injustice.7 "In the context of plea bargains, effective assistance of
counsel means that defense counsel actually and substantially assist his client in
deciding whether to plead guilty."8
A defendant challenging a guilty plea on the basis of ineffective
assistance of counsel must show with reasonable probability that but for
counsel's deficient performance, he would not have pleaded guilty and would
have proceeded to trial.9 Where counsel's alleged error is a failure to advise the
defendant of a potential affirmative defense to the crime charged, determining
prejudice depends largely on whether the defense likely would have succeeded
at trial.10 A prediction about a trial's possible outcome "should be made
objectively, without regard for the 'idiosyncrasies of the particular
decisionmaker.'"11 A bare allegation that a defendant would not have pleaded
guilty but for his attorney's allegedly deficient performance does not establish
prejudice.12 A claim of ineffective assistance of counsel fails if the defendant
does not establish both deficient performance and resulting prejudice.13
7 State v. Wakefield. 130 Wn.2d 464, 472, 925 P.2d 183 (1996) (quoting State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)). 8 State v. Hollev, 75 Wn. App. 191, 197, 876 P.2d 973 (1994) (citing State v. Malik, 37 Wn. App. 414, 416, 680 P.2d 770 (1984)). 9 State v. Garcia, 57 Wn. App. 927, 932-33, 791 P.2d 244 (1990) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)). 10 Hi!!, 474 U.S. at 59. 11 HMl, 474 U.S. at 59-60 (quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). 12 In re Pers. Restraint of Peters, 50 Wn. App. 702, 708, 750 P.2d 643 (1988). 13 Strickland, 466 U.S. at 697. No. 69802-8-1 / 8
A person is entitled to act in self-defense when he reasonably believes
that he is about to be injured and uses no more force than necessary to prevent
the offense.14
Jackson attempts to distinguish the two cases the State contends control
the outcome of this case, In re Personal Restraint of Montova15 and State v.
Havdel.16 In Montova, the defendant challenged the validity of his guilty plea on
the basis that he was not adequately apprised of the charge because he was
never informed about the burden of proof on the issue of self-defense.17 The
court explained that self-defense "becomes an issue only if the defendant raises
the defense and presents some credible evidence to support it."18 The defendant
told police that even though he "could not remember exactly what happened," "he
was defending himself."19 The court stated, "Montoya's bare assertion that he
was defending himself is unpersuasive given that he was unable to remember
exactly what happened."20 The court concluded that because no potential
evidence would support a self-defense claim, "the trial court certainly had no
obligation to inform Montoya of the burden of proof on a purely hypothetical
claim."21
14 RCW 9A.16.020(3); State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). 15 109 Wn.2d 270, 744 P.2d 340 (1987). 16 122 Wn. App. 365, 95 P.3d 760 (2004). 17 Montova, 109 Wn.2d at 279. 18 Montova, 109 Wn.2d at 279. 19 Montova, 109 Wn.2d at 279. 20 Montova. 109 Wn.2d at 280. 21 Montova. 109 Wn.2d at 280.
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In Havdel, although the defendant indicated that he planned to claim self-
defense if the case proceeded to trial, the court noted, "The statement in the
omnibus order regarding the general nature of Haydel's defense is not
evidence."22 And the facts to which Haydel pleaded established no evidence of
self-defense.23 Accordingly, the court held, "Because Haydel presented no
evidence of self-defense, the State had no obligation to inform Haydel of its
burden of proof on his purely hypothetical claim at the time of the taking of the
plea."24
Jackson contends that he presented evidence of "a plausible self defense
claim" at the time of his plea:
Jackson asserted self defense at the time of arrest. He told the officer "they got into a tussle," that "it was a fair fight," and no pipe was involved. Jackson indicated before trial in his trial memorandum he intended to testify he acted in keeping with this claim of self defense. Defense counsel reiterated during pretrial proceedings the defense was self defense.
These statements are similar to those rejected in Montova and Haydel. Despite
Jackson's argument, these bare assertions would not support a self-defense
claim. Therefore, Jackson's attorney had no obligation to inform him of the
burden of proof for self-defense. Because Jackson fails to establish that
counsel's performance was deficient, we do not address if he suffered prejudice
from counsel's allegedly deficient conduct.
22 Havdel, 122 Wn. App. at 371. 23 Havdel. 122 Wn. App. at 371. 24 Havdel, 122 Wn. App. at 371.
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Jackson also claims that the trial court imposed a sentence that exceeded
the statutory maximum for the assault count. Although he did not raise this
challenge in the trial court, he may raise it for the first time on appeal.25
A court has the power to impose only sentences provided by law.26
"'When a sentence has been imposed for which there is no authority in law, the
trial court has the power and duty to correct the erroneous sentence, when the
error is discovered.'"27
RCW 9.94A.701(9) requires the trial court to reduce a term of community
custody "whenever an offender's standard range term of confinement in
combination with the term of community custody exceeds the statutory maximum
for the crime as provided in RCW 9A.20.021." In State v. Boyd,28 our Supreme
Court held that this statute prohibits a trial court from imposing a term of
community custody that when combined with the term of incarceration, results in
a sentence that exceeds the statutory maximum for the crime.
Jackson received the maximum sentence of 120 months of confinement
for attempted assault in the first degree. The court also imposed 36 months of
community custody on this count.29 The State concedes that when combined
with the imposed term of community custody, Jackson's sentence exceeds the
25 State v. Bahl. 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)). 26 In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). 27 Carle, 93 Wn.2d at 33 (quoting McNutt v. Delmore. 47 Wn.2d 563, 565, 288 P.2d 848 (1955)). 28 174 Wn.2d 470, 473, 275 P.3d 321 (2012). 29 See RCW 9.94A.701(1)(b).
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statutory maximum. Because the sentencing court had no authority to impose
this sentence on the assault count, we remand to the trial court either to amend
the community custody term or to resentence Jackson on the attempted assault
conviction consistent with RCW 9.94A.701(9).
In a statement of additional grounds, Jackson claims, "I was given an
exceptional sentence, on what grounds? I feel that the exceptional sentence was
not legally, or incorrectedly [sic] done." Because Jackson agreed to an
exceptional sentence as part of his plea and he fails to show that this agreement
was invalid, we reject his claim.
Jackson also alleges, "I was sentenced twice on one cause[ ] number and
given consecutive sentences." Because Jackson provides no legal argument
supporting this claim, we decline to address it.30
Finally, Jackson asserts, "I felt that my speedy trial rights were violated,
due to the fact that I informed the judge that I was set to go to trial and he gave
continuances without me agreeing or wa[i]ving my speedy trial rights." Although
the record indicates that the court granted a series of continuances, it provides
no evidence of the reasons that the court granted them. Because consideration
of this issue involves facts not in the record, Jackson may not raise it.31
30 RAP 10.10(c): State v.Calvin. 176 Wn. App. 1, 26, 302 P.3d 509 (2013) (citing State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008)), petition for review filed, No. 89518-0 (Wash. Nov. 12, 2013). 31 Calvin, 176 Wn. App. at 26 (citing Alvarado, 164 Wn.2d at 569).
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Conclusion
Because the imposed period of community custody, when combined with
Jackson's imposed term of incarceration, exceeds the statutory maximum
sentence for attempted assault in the first degree and Jackson shows no other
error, we affirm his convictions and remand to the trial court either to amend the
community custody term or to resentence Jackson on the attempted assault
A// WE CONCUR:
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