State v. DeClue

239 P.3d 377, 157 Wash. App. 787
Court of Appeals of Washington·Decided September 21, 2010·No. 38156-7-II, 38376-4-II·Published·Cited by 16 cases

Opinion

239 P.3d 377 (2010)

STATE of Washington, Respondent,
v.
Thomas W. DeCLUE, Appellant.

Nos. 38156-7-II, 38376-4-II.

Court of Appeals of Washington, Division 2.

September 21, 2010.

James Smith, Cowlitz County Hall of Justice, Kelso, WA, for Respondent.

*378 Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant.

PART PUBLISHED OPINION

ARMSTRONG, P.J.

¶ 1 Thomas DeClue pleaded guilty to second degree manslaughter and first degree unlawful possession of a firearm. He later moved to withdraw the plea, claiming that he was incompetent when he pleaded guilty due to numerous prescription medications he was taking at that time. The trial court denied the motion and DeClue appeals, arguing (1) the trial court erred by denying the motion without first holding a formal competency hearing under RCW 10.77.060 and (2) his counsel ineffectively represented him by failing to investigate whether his medications rendered him incompetent to enter the plea. Finding no reversible error, we affirm.

FACTS

¶ 2 On July 1, 2006, DeClue shot and killed Richard Shelburg. The State charged DeClue with first degree murder and first degree unlawful possession of a firearm, but amended the information to second degree manslaughter and first degree unlawful possession of a firearm as part of a plea agreement. The trial court accepted DeClue's Alford plea[1] and sentenced him to an exceptional sentence of 120 months. In March 2008, DeClue moved to withdraw his guilty plea, contending that he was under the influence of multiple medications while incarcerated in the Cowlitz County Jail and, consequently, was unable to knowingly, voluntarily, and intelligently waive his constitutional rights.[2] The trial court ruled that DeClue's motion and affidavit "reaches the standards such that an evidentiary hearing is ... required." Report of Proceedings (RP) (May 8, 2008) at 12.

¶ 3 At the evidentiary hearing, a nurse from the Cowlitz County Jail, Sally Andrew, testified that DeClue took several different medications at different times throughout his time in the jail, including: Vicodin, a narcotic pain reliever, Tramadol, a non-narcotic pain reliever, BuSpar, an anti-anxiety medication, Seroquel, an anti-psychotic medication, Skelaxin and Robaxin, muscle relaxers, and Sudafed, a nasal decongestant. Andrew testified that Vicodin, BuSpar, Skelaxin, and Seroquel cause drowsiness and sleepiness. She also testified that DeClue never appeared to be intoxicated or impaired by the medications.

¶ 4 DeClue testified that the medications made him feel "like a zombie" and impaired his ability to process information. RP (June 26, 2008) at 17, 21. He stated that when he entered his plea, he did not fully understand the consequences of his decision. Bonita Worden, DeClue's niece, testified that she visited her uncle weekly at the jail and he "seemed tired all the time, in a daze," and would forget what he was saying mid-sentence. RP (June 26, 2008) at 72-73. Kevin Robinson, an inmate at the jail, testified that DeClue had difficulty concentrating on activities like reading and card games and would lose his train of thought in the middle of conversations. Taylor Conley, another inmate, testified that DeClue was drowsy and lethargic when on medication, spent a lot of time sleeping, and had a very short attention span.

¶ 5 James Morgan, DeClue's attorney at his plea hearing, testified that he was aware DeClue was experiencing problems with pain management and depression but DeClue never appeared incompetent to him. According to Morgan, "[DeClue] was always very sharp. I mean, he was astute. He was paying very close attention to his case. He was a fairly intelligent individual who I had no problems communicating [with]." RP (June 26, 2008) at 39. Morgan also testified that he and DeClue extensively discussed the pros and *379 cons of his case and that DeClue participated in formulating the terms of the plea agreement that the State ultimately accepted.

¶ 6 The trial court denied DeClue's motion to withdraw his plea, ruling that it did not find anything in the record or the evidence offered by DeClue to support his assertion that he was incompetent when he pleaded guilty. The trial judge had reviewed a videotape of the plea hearing and clearly remembered the plea colloquy with DeClue. The judge found that DeClue appeared to be lucid at that time and did not appear to be affected by the medications he was taking. The judge also relied on Andrew's testimony that DeClue never seemed incapacitated by the medications, and Morgan's testimony that DeClue was very involved in his case and helped formulate the terms of the plea agreement.

ANALYSIS

Competency Hearing

¶ 7 We will reverse a trial court's ruling on a motion to withdraw a guilty plea only for an abuse of discretion. State v. Marshall, 144 Wash.2d 266, 280, 27 P.3d 192 (2001). A trial court must allow a defendant to withdraw a guilty plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f); Marshall, 144 Wash.2d at 280-81, 27 P.3d 192. A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) counsel was ineffective; or (4) the plea agreement was not kept. Marshall, 144 Wash.2d at 281, 27 P.3d 192. The injustice must be "obvious, directly observable, overt, [and] not obscure." State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699 (1974). The defendant's burden when seeking to withdraw a plea is demanding because ample safeguards exist to protect the defendant's rights before the trial court accepts the plea. Taylor, 83 Wash.2d at 596-97, 521 P.2d 699.

¶ 8 A defendant's claim that he lacked competence to plead guilty is equivalent to claiming the plea was not voluntary. Marshall, 144 Wash.2d at 281, 27 P.3d 192. A person is "incompetent" if he "lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect." RCW 10.77.010(15). A formal competency hearing under RCW 10.77.060 is required "whenever a legitimate question of competency arises." Marshall, 144 Wash.2d at 279, 27 P.3d 192. These procedures are mandatory, not merely directory. In re Pers. Restraint of Fleming, 142 Wash.2d 853, 863, 16 P.3d 610 (2001).

¶ 9 If a defendant supports his motion to withdraw a guilty plea with substantial evidence of incompetency, the trial court must either grant the motion or hold a formal competency

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State v. DeClue, 239 P.3d 377, 157 Wash. App. 787 (Wash. Ct. App. 2010).

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