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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71748-1-1
Respondent,
DIVISION ONE
v.
ALVIN WALKER, UNPUBLISHED OPINION
Appellant. FILED: February 8. 2016
Spearman, C.J. —Alvin Walker appeals the denial of his motion to withdraw his
guilty plea. He argues that his plea was not knowing, intelligent, and voluntary. He also
asserts that he received ineffective assistance of counsel because his attorneys had a
conflict of interest. Finding no error, we affirm.
FACTS
Walker was convicted by a jury of second degree assault, felony harassment,
and second degree rape. The trial court imposed standard range sentences for the
assault and harassment charges and an indeterminate term of 159 months to life on the
rape charge. This court affirmed Walker's conviction.
Fernanda Torres, an attorney with the Innocence Project Northwest, filed a CrR
7.8(b)(5) motion for relief from judgment on Walker's behalf. The motion asserted that
the performance of Walker's trial counsel was deficient because the attorney (1) failed
to request a material witness warrant to secure the testimony of a potential defense
witness and (2) failed to review medical records that supported Walker's defense. About
a week before the motion hearing, Torres and her co-counsel David Allen decided to
No. 71748-1-1/2
strike the part of the motion concerning the potential witness. In Torres's opinion, the
amended motion was significantly weaker than the original motion. Torres informed
Walker of the amendment and told him that she did not expect to prevail on the CrR 7.8
motion. Walker authorized Torres to attempt to negotiate a settlement with the State.
The day before the motion hearing, the State offered a plea of assault in the first
degree and rape in the third degree, which would result in a determinate sentence of
138 months. Torres discussed the offer with Walker for about two hours that morning. A
large part of their discussion concerned the difference between a determinate sentence,
under which Walker was certain to be released at the end of his term, and an
indeterminate sentence, under which Walker could serve life in prison if the
indeterminate sentence review board found that he was likely to reoffend. Torres and
Allen met with Walker again that afternoon. Walker authorized them to accept the offer
and Torres prepared the plea documents.
On the morning of the motion hearing, Torres reviewed the documents with
Walker, which included a straight plea to the assault charge and an Alford plea1 to the
sex offense. A document titled "Exhibit A" was attached to both pleas. Exhibit A included
statements addressing Walker's right to claim ineffective assistance of counsel and
expressing satisfaction with his attorneys:
Pursuant to this plea agreement, I agree to waive any appeal of my
conviction or imposition of a standard range sentence on the
amended charges. . . . I understand this does not include a waiver to
a claim of ineffective assistance of counsel. I am satisfied with the
representation and counsel I have received from my attorneys,
Fernanda Torres and David Allen. I also understand that by pleading
1 Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a defendant
may, under some circumstances, enter a guilty plea withoutadmitting his guilt. Washington adopted the
Alford holding in State v. Newton. 87 Wn.2d 363, 552 P.2d 682 (1976).
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No. 71748-1-1/3
guilty to these charges, I am agreeing to the dismissal of my CrR
7.8(b) motion.
Clerk's Papers (CP) at 366. (Emphasis added.).
Following her meeting with Walker, Torres reviewed the plea paperwork with the
State. The State objected to the sentence in Exhibit A that stated "I understand this
does not include a waiver to a claim of ineffective assistance of counsel." CP at 406.
Torres blacked out that sentence. Torres met with Walker again and Walker signed the
plea documents.
At the plea colloquy, Walker stated that he understood the plea, adopted the
factual statements as his own, and was not acting in response to threats or promises.
He stated that he agreed with Exhibit A and did not need more time to consult with his
lawyer. After finding that Walker's decision was knowing, intelligent, and voluntary, the
court accepted his guilty plea.
Later that same day, Walker sent a letter to the trial court asking to withdraw his
plea. After the court appointed new counsel, Walker argued that the plea was not
voluntary because of the short time he had to consider the offer and because his
attorneys exaggerated the possibility that he would spend life in prison under his
indeterminate sentence. He argued that the plea was not knowing because he did not
understand the rights he relinquished in Exhibit A. He also argued that the sentence in
Exhibit A that asserted his satisfaction with the representation he received from his
attorneys demonstrated that his attorneys had a conflict of interest.
At the hearing on Walker's motion to withdraw his guilty plea, Torres testified to
her meetings with Walker during plea negotiations. She stated that she reviewed Exhibit
A with Walker after striking the sentence concerning Walker's right to claim ineffective
No. 71748-1-1/4
assistance of counsel and explained to him that striking the sentence had no effect.
Torres also stated that the sentence in Exhibit A expressing Walker's satisfaction with
representation was intended to make it more difficult for Walker to prevail on a claim of
ineffective assistance of counsel. Torres stated that she did not believe the sentence
had any practical effect. She also stated that, in retrospect, she should have stricken the
expression of satisfaction when she struck the sentence concerning Walker's right to
claim ineffective assistance of counsel.
The trial court considered Torres's testimony, Walker's declaration, the briefing of
both parties, and the recording of the plea hearing. The court denied Walker's motion to
withdraw his guilty plea because it found that he failed to demonstrate a manifest
injustice. Walker appeals.
DISCUSSION
Walker argues that the trial court erred in denying his motion to withdraw his
guilty plea. A trial court's decision on a motion to withdraw a guilty plea is reviewed for
abuse of discretion. State v. Lamb. 175 Wn.2d 121, 127, 285 P.3d 27 (2012) (citing ]n
re Pers. Restraint of Cadwallader. 155 Wn.2d 867, 879-80, 123 P.3d 456 (2005)). A trial
court abuses its discretion if its decision "is manifestly unreasonable or based upon
untenable grounds or reasons " State v. Powell, 126 Wn.2d 244, 258, 893 P.3d 615
(1995). To prevail in a motion to withdraw a guilty plea, a defendant must establish that
withdrawal of the plea is necessary to correct a manifest injustice. CrR 4.2(f); State v.
Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). A manifest injustice may be found if
the defendant did not receive effective assistance of counsel, the plea was not ratified
No. 71748-1-1/5
by the defendant, the plea was involuntary, or the prosecution breached the plea
agreement. Taylor, 83 Wn.2d at 597. Walker claims that a manifest injustice exists in
this case because his plea was involuntary and because he received ineffective
assistance of counsel. We address each claim in turn.
A "strong presumption" of voluntariness arises when a defendant has admitted to
reading, understanding, and signing a plea form. State v. Smith, 134 Wn.2d 849, 852,
953 P.2d 810 (1998). A defendant's statement on the record that he is entering the plea
voluntarily is "'highly persuasive.'" State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683
(1984) (quoting State v. Frederick, 100 Wn.2d 550, 556, 674 P.2d 136 (1983)). A "bare
allegation" of coercion in a defendant's affidavit is not sufficient to overcome such
"highly persuasive" evidence, jd. The timing of a defendant's motion to withdraw a guilty
plea may be considered, but is only given weight if the motion is made promptly after
the discovery of previously unknown consequences or information. State v. A.N.J., 168
Wn.2d 91, 107, 225 P.3d 956 (2010).
Walker argues that his plea was involuntary because his attorneys improperly
pressured him to plead guilty and because he did not knowingly and intelligently enter
the plea. He first asserts that Torres and Allen coerced his decision to plead guilty by
misrepresenting his chances of prevailing on the CrR 7.8 motion, equating his
indeterminate sentence with life in prison, and by failing to allow him sufficient time to
consider the plea offer. Walker contends that the fact that he asked the court to
withdraw his guilty plea within hours of the plea hearing also supports the conclusion
that the plea must be set aside to correct a manifest injustice.
No. 71748-1-1/6
In reaching its decision, the trial court considered Walker's statements on the
record that he understood the plea, did not need more time, and was entering the plea
voluntarily. The court considered the timing of Walker's request and the statements in
his declaration. The court heard Torres's testimony and considered the length of time
that Walker had to review the plea offer, the number and duration of meetings with his
attorneys, and the topics discussed during those meetings. The court found Walker had
not shown that his decision to plead guilty was coerced. It further found that although
Walker's request to withdraw the plea occurred within hours of the plea hearing, that
fact was entitled to no weight because the request was not based on previously
unknown consequences or information.
Walker also argues that his decision to plead guilty was not knowing and
intelligent because he did not understand the effect of the change to Exhibit A. He
challenges the portion of Finding of Fact number six that states, "Torres reviewed
exhibit A with Walker after the waiver language was stricken and explained to him that
the stricken language did not change the rights he was waiving. .. ." CP at 406. Walker
contends that when Torres reviewed Exhibit A with him the document included the
sentence: "I understand this does not include a waiver to a claim of ineffective
assistance of counsel." jd. He asserts that striking the sentence affected his rights on
appeal, Torres did not explain the significance of the change, and he thus waived a right
unknowingly. Walker's argument fails because the deleted sentence did not change
Walker's rights or the consequences of his plea. The sentence merely stated that
Walker understood that he had the right to claim ineffective assistance of counsel.
Deleting the sentence did not waive the right.
No. 71748-1-1/7
Walker's assertion that Torres did not explain the effect of deleting the sentence
is not supported by the record. Afinding of fact is upheld on appeal if it is supported by
substantial evidence. A.N.J., 168 Wn.2d at 107. Walker argues that Torres stated that
she did not specifically remember explaining the amendment to Exhibit A and that she
only said she "would have" explained it. Brief of Appellant at 19-20. But Torres
consistently and repeatedly stated that she explained the sentence concerning the right
to bring a claim of ineffective assistance of counsel and that removing the sentence had
no effect. Although she frequently used the conditional tense, her testimony as a whole
does not express uncertainty. Torres did not specifically remember explaining the
sentence expressing Walker's satisfaction with counsel, but she did remember
explaining the sentence concerning his right to claim ineffective assistance of counsel.
We conclude that substantial evidence supports the trial court's finding that Torres
explained the amendment to Exhibit A.
The trial court considered all evidence before it and based its ruling on the
correct legal standard. Walker's statements at the plea colloquy and Torres's testimony
support the conclusion that his decision to enter the plea was knowing, intelligent and
voluntary. The denial of Walker's motion is thus not "manifestly unreasonable or based
upon untenable grounds . . . ." Powell, 126 Wn.2d at 258. The trial court did not abuse
its discretion.
Walker next argues that Exhibit A demonstrates that he received ineffective
assistance of counsel because Torres and Allen had a conflict of interest. We review a
claim of ineffective assistance of counsel de novo. In re Pers. Restraint of Gomez, 180
Wn.2d 337, 347-48, 325 P.3d 142 (2014). A conflict of interest is not a per se violation
No. 71748-1-1/8
of the right to effective assistance of counsel. Id A defendant must show both that
counsel actively represented conflicting interests and that the conflict adversely affected
counsel's performance, jd. at 348-49 (citing Cuvler v. Sullivan, 446 U.S. 335, 350, 100
S. Ct. 1708, 64 L. Ed. 2d 333 (1980)). To establish that a conflict existed and negatively
impacted performance, the defendant must point to "specific instances in the record"
State v. Graham, 78 Wn. App. 44, 55, 896 P.2d 704 (1995) (citing State v. Martinez. 53
Wn. App. 709, 715, 770 P.2d 646 (1989)). Review of counsel's performance is highly
deferential. Gomez. 180 Wn.2d at 348 (citing Strickland v. Washington, 466 U.S. 668,
689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Walker argues that Torres and Allen violated the rules of professional conduct
(RPCs) regarding conflicts of interest and prospective limitations on liability. The RPCs
"do not 'embody the constitutional standard for effective assistance of counsel,'" but
they do serve as guidelines "for determining what is reasonable." Gomez, 180 Wn.2d. at
349 (quoting State v. White, 80 Wn. App. 406, 412-13, 907 P.2d 310 (1995)). Under
RPC 1.7(2), a concurrent conflict of interests exists if "there is a significant risk that the
representation ofone or more clients will be materially limited ... by a personal interest
of the lawyer." Under RPC 1.8(h), "a lawyer shall not... make an agreement
prospectively limiting the lawyer's liability to a client for malpractice unless permitted by
law and the client is independently represented by a lawyer in making the agreement."
Walker argues that the expression of satisfaction in Exhibit Ademonstrates that
his attorneys improperly sought to protect their personal interests. Walker asserts that
Torres's and Allen's interest in insulating themselves adversely affected their
performance because they provided inaccurate and misleading advice and allowed him
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No. 71748-1-1/9
insufficient time to consider the plea. He also contends that, by including the statement
that he was satisfied with their performance in the plea documents, Torres and Allen
effectively required him to waive his right to claim ineffective assistance of counsel as
part of his plea bargain.
We reject his argument because, while the expression of satisfaction is evidence
that Walker's attorneys sought to protect themselves from allegations of ineffective
assistance, Walker does not show that this interest amounts to a conflict that adversely
affected performance. Walker's assertion that Torres and Allen gave him inaccurate and
misleading information is a bare allegation, unsupported by "specific instances in the
record." Graham, 78 Wn. App. at 55. Walker makes no argument as to how his
attorneys' self interest caused the allegedly deficient performance. Walker also fails to
show that the expression of satisfaction prevented him from claiming ineffective
assistance of counsel or amounted to a prospective limitation on liability in violation of
RPC 1.8(h).
The expression ofsatisfaction served no purpose and, as Torres stated, it would
have been wiser not to include it in the plea documents. But the sentence does not
establish that Walker's attorneys had a conflict of interest that adversely affected their
representation or that they entered into an improper prospective limitation of liability. We
hold that the trial court did not err in denying Walker's motion to withdraw his guilty plea
based on ineffective assistance of counsel.
No. 71748-1-1/10
Affirmed.
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WE CONCUR:
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