State Of Washington, Respondent/cross App v. Ervin Alexander Cox, Appellant/cross Resp ( 2015 )


Menu:
  •       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    ERVIN ALEXANDER COX,                             UNPUBLISHED OPINION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 Wash. 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 Wash. 2d 741
    , 755, 
    278 P.3d 653
    (2012).
    7 State v. Brousseau. 
    172 Wash. 2d 331
    , 352, 
    259 P.3d 209
    (2011) (quoting
    State v. McFarland. 
    127 Wash. 2d 322
    , 334-35, 
    899 P.2d 1251
    (1995)).
    8 
    Emery. 174 Wash. 2d at 755
    .
    9 
    Emery. 174 Wash. 2d at 755
    (quoting 
    McFarland. 127 Wash. 2d at 336
    ).
    10 
    A.N.J.. 168 Wash. 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 Wash. 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 Wash. 2d 221
    , 231, 
    76 P.3d 721
    (2003).
    17 
    Moen, 150 Wash. 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 Wash. App. at 115-16
    .
    -8-
    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 Wash. 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 Wash. 2d 91
    , 
    225 P.3d 956
    (2010).
    24A.N.J.. 168Wn.2d at 100-01.
    25 
    A.N.J.. 168 Wash. 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 Wash. 2d 647
    , 739, 
    101 P.3d 1
    (2004).
    28 Davis. 152Wn.2dat739.
    •10-
    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 Wash. 2d at 739
    (internal quotation marks omitted) (quoting
    Rios v. Rocha. 
    299 F.3d 796
    , 808-09 (9th Cir. 2002)).
    -11-
    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 Wash. 2d at 106
    (quoting CrR 4.2(f)).
    -12-
    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 Wash. App. 207
    , 210, 
    883 P.2d 936
    (1994).
    32 State v. Garcia. 
    57 Wash. App. 927
    , 935, 
    791 P.2d 244
    (1990).
    -13-
    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
    -14-