IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70927-5-1
Respondent,
v. DIVISION ONE
ERVIN ALEXANDER COX, UNPUBLISHED OPINION
Appellant. FILED: March 9, 2015
Leach, J. — Ervin Cox appeals the trial court's decision denying his
motion to withdraw an Alford1 plea to two counts of child molestation in the
second degree. He claims that ineffective assistance of counsel caused him to
accept the plea offer and that the trial court abused its discretion by denying him
an evidentiary hearing on the issue. He specifically identifies his counsel's failure
to interview accusing witnesses before advising him about the offer and
challenges the State's policy of withdrawing plea offers to defendants who do so
in sexual assault cases. We conclude that Cox's counsel acted reasonably when
he failed to interview those witnesses in light of the State's policy because
defense counsel had adequate information to evaluate the State's case and had
sufficient contact with Cox. Thus, Cox's counsel provided him effective
assistance, and the trial court did not err in denying Cox's motion to withdraw his
1 North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d
162(1970).
No. 70927-5-1 / 2
Alford plea. Because the record before the trial court provided it with sufficient
information to resolve Cox's motion, the trial court acted within its discretion
when it denied Cox's request for an evidentiary hearing. We affirm.
Background
In November 2012, adults A.L. and S.D. accused Ervin Cox of sexual
molestation when they were minors. Cox's wife is A.L.'s mother and S.D.'s
grandmother.
A.L. reported that the contact happened once between 2006 and 2007.
On July 2, 2009, Cox reported to police that A.L., then 15 years old, had run
away from home. Police contacted A.L., and she reported that when she was 12
she woke up one night and Cox was in bed next to her and had his hand down
her pants. She asked what he was doing, and Cox responded that he thought
she was his wife. A.L. told her mother, who did not believe her. When they
returned A.L. home, the police told A.L.'s mother about the allegation, who yelled
at the officer, "She's lying!"
A.L. ran away again five days later. When police contacted her, she again
reported the sexual abuse. Police returned her home, and she became violent
and asked, "What else am I supposed to do? It's either this, or what? I start
cutting myself? I'm so depressed and I can't do anything about it!" Cox told the
detective that A.L. fabricated the story. When A.L. failed to appear for an
interview, the State did not file charges against Cox.
No. 70927-5-1 / 3
On October 23, 2012, police learned that S.D. reported to his high school
counselor that Cox had sexually molested him on several occasions when he
was 13 to 14 years old. S.D. sobbed during the interview with the detective. He
reported that the abuse included Cox performing oral sex on and masturbating
S.D., attempting anal penetration, and having S.D. masturbate Cox. S.D. first
told his roommate and cousin, and each witness reported that he was distraught
and crying when he recounted the abuse.
Interviewed again by the police, A.L. repeated her earlier allegations,
described that she and her cousin slept in the same bed as Cox, and she woke
up to find Cox rubbing her vagina under her underpants.
Cox confirmed that he had slept next to A.L. in the same bed as her
cousin but denied all allegations of sexual abuse. Cox's wife reported to the
police that she did not believe A.L. or S.D. The State charged Cox with two
counts of child molestation in the second degree.
The State made a written plea offer to Cox, offering a standard range 36-
month recommended sentence in exchange for the defendant pleading guilty as
charged. The State informed his counsel that if he did not accept the offer, it
would add charges that could result in minimum sentence of 210-280 months
and a maximum of life. Pursuant to an office policy, if defense counsel
interviewed witnesses in a sexual assault case, the State would not engage in
plea negotiations. The State told defense counsel that S.D. was a compelling
witness.
No. 70927-5-1 / 4
Cox and the State entered into an Alford plea agreement, where Cox
denied guilt but agreed that the State had substantial evidence upon which a trier
of fact could find guilt. On April 30, 2013, the court questioned Cox about his
understanding of the plea and accepted the plea agreement.
Cox sent a letter to the judge the next day, asking to withdraw his plea
because he felt threatened and confused. He filed several pro se motions
attempting to withdraw the plea. The trial court allowed Cox's attorney to
withdraw and appointed a second attorney to assist Cox in filing a formal request
to withdraw his plea. Cox's newly appointed defense counsel filed a motion to
withdraw the plea based on previous defense counsel's ineffective assistance.
Cox supported the motion with his declaration, in which he claimed his
previous counsel failed to investigate, did not interview witnesses, did not spend
adequate time with Cox, and did not obtain computers that Cox claimed
contained exculpatory evidence. Cox recalled only one "Professional Visit" from
counsel, as well as a brief meeting before a court hearing and a video
conference on another occasion to discuss the plea. Cox stated that although
defense counsel read the plea agreement to Cox and discussed the allegations
against Cox with him, he coerced Cox by telling Cox that he was going to get
convicted and that Cox faced an inordinate amount of time in prison. Defense
counsel did not interview A.L. or S.D.
The trial court denied both Cox's motion to withdraw his guilty plea and his
request for an evidentiary hearing on the motion. The parties agreed previous
No. 70927-5-1 / 5
counsel had not interviewed accusing witnesses A.L. and S.D. Given the State's
policy of withdrawing a plea offer if a defendant interviews witnesses, the trial
court deemed this reasonable. The trial court found that the computers
contained incriminating rather than exculpatory evidence. The trial court
determined that Cox did not receive ineffective assistance of counsel and denied
the motion. Cox appeals.
Analysis
Cox first argues that he received ineffective assistance of counsel
because his trial attorney failed to adequately investigate his case and this
caused him to agree to an ill-advised Alford plea. As a result, Cox claims that the
trial court improperly denied his motion to withdraw his plea. Though generally
we review a trial court's denial of a defendant's motion to withdraw a guilty plea
for abuse of discretion, because Cox rests his challenge on an ineffective
assistance of counsel claim, we review de novo.2
The federal and state constitutions guarantee criminal defendants
reasonably effective assistance of counsel at every critical stage of a criminal
proceeding.3 Effective assistance requires that defense counsel assist a
defendant in making an informed decision about whether to plead guilty or go to
trial.4 A defendant must voluntarily enter into a guilty plea and "must make
2 See State v.A.N.J., 168Wn.2d91, 109, 225 P.3d 956 (2010).
3 U.S. Const, amend. VI; Wash. Const, art. I, § 22; Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State
v. Heddrick. 166 Wn.2d 898, 909, 215 P.3d 201 (2009).
4A.N.J., 168Wn.2dat111.
No. 70927-5-1 / 6
related waivers 'knowing[ly], intelligently], [and] with sufficient awareness of the
relevant circumstances and likely consequences.'"5 We strongly presume
counsel effectively represented a defendant.6 To prove counsel provided
ineffective assistance, a defendant must show
"(1) defense counsel's representation was deficient, La, it fell below
an objective standard of reasonableness based on consideration of
all the circumstances; and (2) defense counsel's deficient
representation prejudiced the defendant, Le^, there is a reasonable
probability that, except for counsel's unprofessional errors, the
result of the proceeding would have been different."171
Failure to show either defeats the claim.8 A defendant shows deficient
performance by pointing to absence of legitimate strategic or tactical reasons in
the record supporting counsel's challenged conduct.9
To allow a defendant to make a meaningful decision about a plea, at
minimum counsel must reasonably evaluate the State's evidence and the
likelihood of the defendant's conviction at a trial.10 "[T]he failure to investigate, at
least when coupled with other defects, can amount to ineffective assistance of
counsel."11 The issues and facts of each case dictate the degree and extent of
5 United States v. Ruiz. 536 U.S. 622, 628, 122 S. Ct. 2450, 153 L. Ed. 2d
586 (2002) (alterations in original) (quoting Brady v. United States, 397 U.S. 742,
748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)).
6 State v. Emery. 174 Wn.2d 741, 755, 278 P.3d 653 (2012).
7 State v. Brousseau. 172 Wn.2d 331, 352, 259 P.3d 209 (2011) (quoting
State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).
8 Emery. 174 Wn.2d at 755.
9 Emery. 174 Wn.2d at 755 (quoting McFarland. 127 Wn.2d at 336).
10 A.N.J.. 168 Wn.2d at 111-12.
11A.N.J.. 168Wn.2dat110.
No. 70927-5-1 / 7
investigation required by counsel under the Sixth Amendment and article 22.12
As the Supreme Court of the United States has noted,
[W]here the alleged error of counsel is a failure to investigate or
discover potentially exculpatory evidence, the determination
whether the error "prejudiced" the defendant by causing him to
plead guilty rather than go to trial will depend on the likelihood that
discovery of the evidence would have led counsel to change his
recommendation as to the plea.[13]
Cox argues that the prosecution's policy of prohibiting the defense's
interview of complaining witnesses to obtain a favorable plea bargain resulted in
defense counsel's inability to properly advise his client about the risks of trial.
Cox argues that the State devised a situation that "prohibits effective assistance
of counsel in a case where the only evidence is the accuser's accusation and
counsel is not permitted to speak to the accuser before advising his client on
whether to plead guilty."
The State defends its policy. An ineffective assistance of counsel claim
must be based on defense counsel's ineffective assistance; third parties cannot
deprive a defendant of effective assistance of counsel.14 The Supreme Court
has held that prosecutors may condition a plea agreement on defendant's waiver
of the right to receive impeachment discovery materials, concluding,
[T]he Constitution does not require the prosecutor to share all
useful information with the defendant. . . . [T]he law ordinarily
considers a waiver knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would
12A.N.J.. 168Wn.2dat111.
13 Hill v. Lockhart. 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985).
14 State v. Greiff. 141 Wn.2d 910, 925, 10 P.3d 390 (2000).
No. 70927-5-1 / 8
likely apply in general in the circumstances—even though the
defendant may not know the specific detailed consequences of
invoking it.[15]
In State v. Moen.16 the Washington Supreme Court considered a state
policy of refusing to plea bargain with any defendant who demanded the identity
of a confidential informant. The court held that this policy did not violate due
process because the State had a legitimate reason for protecting that
information. The court noted the U.S. Supreme Court's distinction between a
prosecutor's policy that might deter a defendant from exercising a legal right and
a prosecutor's action taken in retaliation for exercising a right.17 Where the
State's plea bargain policy deters a defendant from exercising a constitutional
right but does not retaliate against the defendant for doing so, it does not violate
due process.18
In State v. Shelmidine,19 Division Two of this court concluded that where a
plea offer did not preclude defense counsel from reasonably evaluating the
State's evidence and each party received some benefit from the plea, a policy to
withdraw a plea offer if a defendant seeks the identity of a confidential informant
does not infringe on a defendant's right to effective assistance of counsel. The
defendant receives the benefit of a more lenient sentence, and the State receives
the benefit of protecting a confidential informant.20
15 Ruiz. 536 U.S. at 628 (citation omitted).
16 150 Wn.2d 221, 231, 76 P.3d 721 (2003).
17 Moen, 150 Wn.2d at 231 (citing Bordenkircher v. Haves. 434 U.S. 357,
363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978)).
18 Moen, 150Wn.2dat231.
19166Wn. App. 107, 115-16, 269 P.3d 362 (2012).
20 Shelmidine. 166 Wn. App. at 115-16.
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No. 70927-5-1 / 9
Cox attempts to distinguish Shelmidine. He contends that the State gave
Shelmidine's counsel all important information except the confidential informant's
identity and thus counsel had sufficient information to provide effective
assistance.21 But Cox wrongly assumes that interviews with the accusing
witnesses provided the only avenue for Cox's counsel to evaluate the evidence in
the State's case. The record shows that Cox and his counsel reviewed the
State's discovery. And Cox's position as A.L.'s and S.D.'s stepfather and step-
grandfather, respectively, and his history of videotaping them placed him in a
unique position to know them well and share with his counsel information that
could help counsel evaluate the accusing witnesses. Indeed, the record shows
he was very active in his own defense. While the State's policy may have the
effect of limiting defense counsel's ability to pursue one aspect of investigation,
the policy did not prevent Cox's counsel from gathering ample information about
the State's case or the accusing witnesses.22
Moreover, the State in this case explained it adopted its policy not to plea
bargain with a defendant who interviews an accusing witness in a sexual assault
case to protect witnesses alleging such crimes—a legitimate state interest. And
21 See Shelmidine. 166 Wn. App. at 113-14.
22 Cox compares the policy to one a district court found unconstitutional in
Wilbur v. City of Mount Vernon. 989 F. Supp. 2d 1122 (W.D. Wash. 2013). But in
that case, a systemic overburdening of public defenders resulted in counsels'
failure to meet the client in a confidential setting and an inability to understand
their clients' goals or whether defenses or mitigating circumstances required
investigation. Wilbur. 989 F. Supp. 2d at 1131-32. Where the record shows
Cox's counsel had knowledge of Cox's case and met with him at least three
times in private settings, Cox's analogy to Wilbur is misplaced.
No. 70927-5-1/10
in entering into the plea agreement, Cox received the benefit of a significantly
lighter sentence, and the State received the benefit of protecting its accusing
witnesses. The State's policy does not violate due process under the
circumstances of this case.
Cox acknowledges that counsel was not constitutionally obligated to
interview his accusing witnesses but cites to several cases emphasizing the
value of doing this. Cox likens his case to State v. A.N.J.23 In that case, counsel
failed to reach witnesses who could have undermined the accusing witness's
story and never followed up with an interview.24 The Washington Supreme Court
found counsel's assistance ineffective where defendant's counsel also did not
make requests for discovery, failed to file motions, only spent 5 to 10 minutes
with the minor defendant and his parents at pretrial conference, misinformed
A.N.J, of the consequences of his plea, and failed to adequately inform A.N.J, of
the charges against him.25 Interviews do permit counsel to evaluate how a
witness will present at trial.26 And defense counsel's failure to pursue available
corroborating evidence with adequate pretrial investigation may constitute
constitutionally deficient performance in some cases.27 A defendant "must show
a reasonable likelihood that the investigation would have produced useful
information not already known to defendant's trial counsel."28 And in evaluating
23 168 Wn.2d 91, 225 P.3d 956 (2010).
24A.N.J.. 168Wn.2d at 100-01.
25 A.N.J.. 168 Wn.2d at 100-02, 120.
26 Lord v. Wood. 184 F.3d 1083, 1095 (9th Cir. 1999).
27 In re Pers. Restraint of Davis, 152 Wn.2d 647, 739, 101 P.3d 1 (2004).
28 Davis. 152Wn.2dat739.
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No. 70927-5-1/11
prejudice to the defendant, "'ineffective assistance claims based on a duty to
investigate must be considered in light of the strength of the government's
case.'"29
The record reveals that Cox's counsel provided him effective assistance.
Cox asserts that the defense counsel rarely met with Cox, failed to investigate,
and failed to conduct interviews with witnesses or victims, thus failing to assess
the State's case. He further finds fault with counsel's failure to investigate Cox's
claims that A.L. and S.D. lied about the sexual abuse because they wanted to
kick him out of his home and take his job. But defense counsel had knowledge
of facts in the record and the State's affidavit of probable cause. Counsel knew
that Cox had admitted to sleeping in the same bed as A.L. and that A.L. had
given consistent versions of the events to detectives on two occasions more than
three years apart. Counsel also knew that S.D. had cried when he told his
roommate and cousin of the abuse. S.D. also sobbed during the detective's
interview when providing details of the abuse. This information, combined with
the State's well-known and stated policy to withhold plea agreements when
defense counsel interviews accusing sexual assault witnesses, could reasonably
have allowed counsel to conclude that interviews with A.L. and S.D. were
unnecessary to evaluate the case and advise Cox in a decision to take the plea
or go to trial.
29 Davis. 152 Wn.2d at 739 (internal quotation marks omitted) (quoting
Rios v. Rocha. 299 F.3d 796, 808-09 (9th Cir. 2002)).
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No. 70927-5-1/12
In his affidavit, Cox reported that the investigation he advocated for and
that defense counsel failed to conduct would have unearthed exculpatory
evidence on his home computers. But his declaration about computers and
evidence reveals that the computers contain videos recorded by Cox of A.L. and
S.D. engaging in separate sexual encounters. While Cox claims that this gave
them motive to lie, counsel could have reasonably concluded that the evidence
Cox claimed to be valuable was incriminating and thus did not warrant further
investigation by counsel.
We agree with the trial court that defense counsel's decision not to
interview clients was "perfectly reasonable" given the State's policy and that the
evidence on the computers "is not evidence which in any way, shape or form is
exculpatory to Mr. Cox." Thus, we conclude that Cox fails to show how his
counsel acted unreasonably or how counsel's failure to interview accusing
witnesses or investigate prejudiced Cox. Cox has not identified nor does the
record reveal evidence that additional investigation would likely have led counsel
to discover information that would have changed counsel's recommendation to
Cox. The record reveals that defense counsel reasonably evaluated the
evidence against Cox and the likelihood of his conviction, enabling him to readily
assist Cox in making a meaningful decision about pleading guilty.
A court allows withdrawal of a guilty plea if '"necessary to correct a
manifest injustice,'"30 and a defendant may establish manifest injustice by
30 A.N.J.. 168 Wn.2d at 106 (quoting CrR 4.2(f)).
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No. 70927-5-1/13
showing ineffective assistance of counsel. Because Cox does not show
ineffective assistance of counsel or manifest injustice, the court properly denied
his motion to withdraw his guilty plea.
Cox also challenges the trial court's denial of his motion for an evidentiary
hearing. We review a trial court's ruling on a motion for abuse of discretion.31
Where an existing record adequately informs the court about a claim for
ineffective assistance of counsel, a trial court need not hold an evidentiary
hearing to resolve the issue.32
Cox argues that the trial court's failure to conduct an evidentiary hearing
resulted in a ruling that it is never unreasonable for an attorney to fail to
investigate and advise a client to plead guilty. But Cox mischaracterizes the trial
court's ruling. The trial court found that in this case, based on the evidence in the
record, Cox's counsel reasonably chose not to interview accusing witnesses or
investigate information Cox requested. The record showed that counsel
possessed sufficient information to evaluate the State's case and that there was
no likelihood that further investigation would have changed his advice. Because
the record contains sufficient information to evaluate Cox's ineffective assistance
of counsel claim, the trial court properly acted within its discretion when it denied
Cox's motion to hold an evidentiary hearing.
31 Woodruff v. Spence. 76 Wn. App. 207, 210, 883 P.2d 936 (1994).
32 State v. Garcia. 57 Wn. App. 927, 935, 791 P.2d 244 (1990).
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No. 70927-5-1 /14
Conclusion
Because defense counsel had adequate information to evaluate the
State's case, met with Cox several times, and the State had a policy against
offering plea agreements to defendants who interview accusing witnesses in
sexual assault cases, Cox's counsel acted reasonably when he failed to interview
those witnesses. We thus hold that Cox's counsel provided him effective
assistance when advising him to accept the State's plea agreement and that the
trial court did not err in denying Cox's motion to withdraw his Alford plea.
Because the record before the trial court adequately informed the court about
Cox's ineffective assistance of counsel claim and the trial court based its findings
on that record, we conclude that it properly denied Cox's motion to hold an
evidentiary hearing. We affirm.
WE CONCUR:
^•dATM^ PA )L -4v- £Q
en
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State Of Washington, Respondent/cross App v. Ervin Alexander Cox, Appellant/cross Resp
Combined Opinion