State Of Washington v. Joel P. Reesman ( 2015 )

FILED
COURT OF APPEALS
DIVI"'31ON 11
2015 JUIL- - 7 AM 8: h8
IN THE COURT OF APPEALS OF THE STATE OF WASHILNGTON
STM OFn;IASFIINGTON
DIVISION II 19 Y\ --- A'
D
STATE OF WASHINGTON, No. 46514 -1 - II
Respondent,
V. UNPUBLISHED OPINION
JOEL P. REESMAN,
Appellant.
MAXA, J. — Joel Reesman appeals the trial court' s dismissal of his motion to withdraw
his guilty plea, arguing that CrR 7. 8( c)( 2) required the trial court to either transfer his motion to
this court as a personal restraint petition (PRP) or hold a hearing on the factual basis of his
motion. The State concedes that the trial court did not comply with CrR 7. 8( c). We accept the
State' s concession. In addition, Reesman presents multiple assertions of error in his statement of
additional grounds ( SAG). Because several of the SAG assertions do not pertain to the order
Reesman appeals, they are outside our scope of review and we do not consider them. We hold
that the remainder of Reesman' s arguments are meritless.
We reverse the trial court' s order denying Reesman' s motion to withdraw his guilty plea
and remand for proceedings consistent with this opinion.
FACTS
In January 2007, Reesman was charged with possession of a machine gun or short -
barreled shotgun or rifle, two counts of unlawful possession of a firearm, and possession of
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methamphetamine with a firearm enhancement under cause number 07- 1- 00090- 9 ( Case 1).
Reesman' s charge for possession of methamphetamine with a firearm enhancement was a third -
strike charge, meaning it carried the penalty of life in prison without the possibility of parole. In
June 2007, Reesman also was charged with unlawful possession of methamphetamine under
cause number 07- 1- 01092- 1 ( Case 2).
On March 12, 2008, Reesman.waived his right to a jury trial for the charges brought
against him in Case 1. After a bench trial, the judge found Reesman guilty on each charge. The
trial court sentenced Reesman to life in prison. Reesman apparently appealed this judgment
and/ or conviction, but the record does not show when or how the appeal was resolved.
On March 20, 2008, Reesman pled guilty to possession of methamphetamine in Case 2.
Reesman was sentenced to a standard range of 12 to 24 months in confinement for the offense,
which ran currently with Reesman' s sentence of life in prison.
In December 2013, Reesman filed a PRP with our Supreme Court to withdraw his guilty
plea in Case 2, asserting in part that his attorney threatened to shoot and kill him in private and in
open court. In March 2014, our Supreme Court denied Reesman' s other claims,' but transferred
Reesman' s motion to withdraw his guilty plea to the trial court for determination. Reesman was
appointed counsel.
In June 2014, Reesman' s counsel submitted an email to the trial court stating that the
alleged threat occurred in Case 1, and that the motion to withdraw Reesman' s guilty plea
pertained to Case 2. The trial court reviewed the record and email representations by counsel,
1 Reesman also made a motion to modify the acting commissioner' s ruling, motion for
appointment of counsel, motion to order the Clark County sheriff to investigate, and motion to
join by nexus, which all were denied.
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and it dismissed Reesman' s PRP with prejudice. The trial court did not conduct a hearing on the
issue.
Reesman appeals.
ANALYSIS
A. MOTION TO WITHDRAW GUILTY PLEA
Reesman argues that the trial court' s order denying his motion to withdraw his guilty plea
should be vacated and the case remanded because the trial court failed to comply with CrR 7. 8' s
requirements. The State concedes that the trial court erred. We accept the State' s concession.
If a motion to withdraw a plea is made after the judgment, it is governed by CrR 7. 8( b).
In re Pers. Restraint of Stockwell, 179 Wash. 2d 588, 595, 602, 316 P.3d 1007 ( 2014). CrR 7. 8( c)
establishes the procedure for addressing CrR 7. 8( b) motions:
2) Transfer to Court ofAppeals. The court shall transfer a motion filed by a
defendant to the Court of Appeals for consideration as a personal restraint petition
unless the court determines that the motion is not barred by RCW 10. 73. 090 and
either (i) the defendant has made a substantial showing that he or she is entitled to
relief or ( ii) resolution of the motion will require a factual hearing.
3) Order to Show Cause. If the court does not transfer the motion to the Court of
Appeals, it shall enter an order fixing a time and place for hearing and directing
the adverse party to appear and show cause why the relief asked for should not be
granted.
Accordingly, the trial court may rule on the merits of a CrR 7. 8( c) motion only when the motion
is timely filed and either ( a) the defendant makes a substantial showing that he is entitled to
relief, or (b) the motion cannot be resolved without a factual hearing. State v. Smith, 144 Wn.
App. 860, 863, 184 P.3d 666 ( 2008). If these prerequisites are absent, the trial court must
transfer a timely petition to the Court of Appeals for consideration as a PRP. Id.
Here, the trial court did not find that the motion was timely filed, that Reesman made a
substantial showing that he was entitled to relief, or that the motion could not be resolved
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without a factual hearing. Nevertheless, the trial court denied Reesman' s motion to withdraw his
guilty plea on the merits. Under CrR 7. 8( c)( 2), the trial court did not have the authority to decide
the motion on the merits. Accordingly, the trial court erred.
We vacate the trial court' s order and remand to the trial court to enter an order complying
with CrR 7. 8( c).
B.. SAG ASSERTIONS
1. Claims Outside the Scope of Review
Reesman asserts several claims in his SAG challenging the conduct of his defense
counsel, the prosecutor, and the trial court in Case 1. 2 RAP 10. 10( a) states that in a criminal case
on direct appeal " the defendant may file a pro se statement of additional grounds for review to
identify and discuss those matters related to the decision under review that the defendant
believes have not been adequately addressed by the brief filed by the defendant' s counsel."
Emphasis added.) We decline to address the claims relating to Case 1 because they are outside
the scope of this court' s review of Reesman' s challenge of his post -conviction PRP motion to
withdraw his guilty plea in Case 2.
z Reesman argues that ( 1) his attorney coerced him into waiving his right to a jury trial by
threatening to shoot him, which the trial court allowed; ( 2) his attorney obstructed justice and
committed the crime of assault when he threatened to shoot Reesman; ( 3) defense counsel, the
prosecutor, and the trial court denied Reesman due process of law and a fair trial by allowing his
defense counsel to threaten to shoot Reesman in open court; ( 4) the trial court erred in failing to
into Reesman' competency to trial; ( 5) the trial court
sua sponte order an inquiry s mental stand
obstructed justice and was an " actor" in Reesman' s assault when it allowed Reesman' s attorney
to threaten to shoot him; ( 5)
his guilty plea was not knowing, intelligent, or voluntary due to
mental illness; and (6) his jury waiver and guilty plea were unconstitutional in light of the
alleged threat to shoot Reesman. SAG at 4.
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2. Ineffective Assistance of Counsel
Reesman argues that his defense counsel provided ineffective assistance because he
collaborated with the trial court when he emailed the trial court. We disagree.
To prevail on his ineffective assistance of counsel claim, Reesman must show that ( 1) his
attorney' s performance was deficient, and ( 2) that deficiency was prejudicial. State v. Grier, 171
Wash. 2d 17, 32- 33, 246 P.3d 1260 ( 2011). An attorney' s performance is deficient if it falls below
an objective standard of reasonableness. Id. at 33. Such deficient performance is prejudicial if
there is a reasonable probability that the result of the proceedings would have been different in
its absence. Id. at 34.
In June 2014, Reesman' s defense counsel submitted an email to the trial court stating the
following about Reesman' s motion to withdraw his guilty plea: ( 1) Reesman' s motion appeared
to argue that he wanted to withdraw his guilty plea entered in Case 2; ( 2) Reesman pled guilty to
the offense in Case 2, which ran concurrent to Reesman' s sentence under Case 1; ( 3) Reesman
based his argument for withdrawing his guilty plea on the basis that his attorney forced him to
waive his right to a jury trial; ( 4) Reesman waived his right to a jury trial relating to the charges
in Case 1; and. (5) the purported justification for the withdrawal of Reesman' s guilty plea did not
exist in Case 2. Based on his review of the record, defense counsel wanted to know how the trial
court wanted to proceed.3
Reesman argues that his counsel' s conduct in emailing the trial court and explaining that
the basis of Reesman' s motion to withdraw his guilty plea was not in accordance with the facts
3 It appears that this email was an ex parte communication with the trial court. We do not
endorse or approve ex parte contacts. Reesman' s argument goes to the substance, not the
circumstances of sending the email. Therefore, we do not address whether sending the email
was appropriate.
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was deficient representation. This argument seems to suggest that defense counsel should have
either deliberately or by silence misrepresented the facts underlying Reesman' s guilty plea in
Case 2. This suggestion is directly contrary to an attorney' s duty of candor to the court, which
obligates an attorney to inform the court of a client' s allegations that the attorney believes to be
false. RPC 3. 3( a)( 2) (" A lawyer shall not knowingly ... fail to disclose a material fact to a
tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the
client."). The failure of defense counsel to misrepresent the facts to the court is not deficient
performance.
We hold that Reesman' s ineffective assistance of counsel claim fails. 4
3. Claim of Trial Court Collaboration
Reesman argues that the trial court collaborated with Reesman' s defense counsel and
obstructed justice under RCW 9A.72. 110( 1) when it dismissed Reesman' s PRP petition in
violation of his due process rights. Reesman fails to demonstrate the existence of any such
collaboration. Therefore, we hold that this claim fails. State v. McFarland, 127 Wn,2d 322, 335,
899 P.2d 1251 ( 1995) ( the burden is on the appellant alleging ineffective assistance of counsel to
establish deficient representation based on the record established in the proceedings below).
4. Cumulative Error
Reesman contends that the cumulative error doctrine entitles him to relief because the
combined effect of the alleged errors denied him a fair trial. We disagree.
4 Reesman also argues that his attorney' s email was a conflict of interest, a manifest
constitutional error, and a due process violation. There is no evidence in the record to support
these contentions. We decline to address these claims further. State v. McFarland, 127 Wash. 2d
322, 335, 899 P.2d 1251 ( 1995).
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Under the cumulative error doctrine, the court may reverse a defendant' s conviction
when the combined effect of trial errors effectively denies the defendant his or her right to a fair
trial, even if each error alone would be harmless. State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d
646 ( 2006). The defendant bears the burden to show multiple trial errors and that the
accumulated prejudice from those errors affected the outcome of his or her trial. In re Pers.
Restraint of Cross, 180 Wash. 2d 664, 690, 327 P.3d 660 ( 2014). Because Reesman has failed to
show any prejudicial errors affecting his conviction, we hold that Reesman failed to show that
the accumulated prejudice of multiple trial errors affected the outcome of his trial.
We reverse the trial court' s order denying Reesman' s motion to withdraw his guilty plea
and remand for proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
MAXA, J.
We concur:
M
V(()RgS ICK, P. J.
a
MELNICK, J. ;
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