In Re The Personal Restraint Petition Of Javier Gonzalez-gonzalez ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
July 30, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 51438-9-II
JAVIER GONZALEZ-GONZALEZ, a.k.a.
JAVIER GONZALEZ GONZALEZ
Petitioner. UNPUBLISHED OPINION
LEE, A.C.J. — Javier Gonzalez-Gonzalez seeks relief from personal restraint imposed
following his guilty plea convictions for second degree rape of a child and second degree child
molestation. He argues that his defense attorney provided ineffective assistance of counsel by
failing to (1) adequately investigate his case and the State’s evidence against him, and (2)
adequately communicate with him to allow him to make a knowing, intelligent, and informed
decision about whether to plead guilty. Gonzalez-Gonzalez also asserts that the trial court’s
subsequent denial of an eight week continuance of his sentencing date so that counsel could be
substituted is an extraordinary circumstance justifying relief from judgment. We deny Gonzalez-
Gonzalez’s petition.
No. 51438-9-II
FACTS
A. GUILTY PLEA
Gonzalez-Gonzalez was originally charged with two counts of second degree rape of a
child and four counts of second degree child molestation. Gonzalez-Gonzalez retained counsel to
defend against the charges.
The State provided Gonzalez-Gonzalez’s counsel with 86 pages of discovery, which
included police interviews with the victim and her sisters, statements from the victim’s brother-in-
law regarding incriminating statements Gonzalez-Gonzalez had made to him, a statement from the
victim’s mother that she once found Gonzalez-Gonzalez nude in bed with the victim, and
statements from the victim’s husband that the victim had disclosed the abuse several years earlier.
Gonzalez-Gonzalez’s counsel reviewed the 86 pages of discovery.
Gonzalez-Gonzalez eventually pleaded guilty to one count of second degree rape of a child
and one count of second degree child molestation. Gonzalez-Gonzalez’s guilty plea was
memorialized in a document entitled Statement of Defendant on Plea of Guilty to Sex Offense
(Plea Statement). The Plea Statement shows that Gonzalez-Gonzalez was specifically informed
that the standard sentencing range for the second degree rape of a child charge was between 102
and 136 months and the standard sentencing range for the second degree child molestation charge
was between 31 and 41 months. The Plea Statement also stated that the judge did not have to
follow anyone’s sentencing recommendation. In addition, the Plea Statement provided an
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No. 51438-9-II
explanation of the special sex offender sentencing alternative (SSOSA),1 which Gonzalez-
Gonzalez specifically initialed.
The Plea Statement also included the following statement:
I am Javier Gonzalez-Gonzalez. Between 08/13/2002 and 08/12/2004, in Clark
County, Washington:
(1) I had sexual intercourse with L.G.-M., who was at least twelve years old but
was less than fourteen years old at the time of the sexual intercourse. I was not
married or in a State registered domestic partnership with L.G.-M. Further, L.G.-
M. was at least thirty-six months younger than me at that time. L.G.-M. is my
biological daughter, and we resided in the same home at that time. I used such
position of power and trust to facilitate this crime. This act was part of an ongoing
pattern of sexual abuse of the same victim, and said victim was under 18 years of
age.
(2) I had sexual contact with L.G.-M.; who was at least twelve years old but
was less than fourteen years old at the time of the sexual contact. I was not married
or in [a] State registered domestic partnership with L.G.-M. Further, L.G.-M. was
at least thirty-six months younger than me at the time. L.G.M. is my biological
daughter, and we resided in the same home at that time. I used such position of
power and trust to facilitate this crime. This act was part of an ongoing pattern of
sexual abuse of the same victim, and said victim was under 18 years of age.
Personal Restraint Petition (PRP) at 63 (Appendix D at 9).
In addition, the Plea Statement included Gonzalez-Gonzalez’s assertion that “An
interpreter had previously read to [Gonzalez-Gonzalez] the entire statement above and that
[Gonzalez-Gonzalez] understood it in full.” PRP at 64 (Appendix D at 10). And a certified court
interpreter declared in the Plea Statement that he had interpreted the entire Plea Statement to
Gonzalez-Gonzalez from English to Spanish. Gonzalez-Gonzalez’s attorney also declared in the
1
RCW 9.94A.670.
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No. 51438-9-II
Plea Statement that he had discussed the Plea Statement with Gonzalez-Gonzalez and that he
believed that Gonzalez-Gonzalez fully understood the Plea Statement.
During his plea colloquy with the trial court, Gonzalez-Gonzalez acknowledged that he
understood the nature of the charges against him and the consequences he would face if he pleaded
guilty. Gonzalez-Gonzalez also affirmatively answered that he understood that he would give up
several constitutional rights by entering a guilty plea, including the right to remain silent, the
presumption of innocence, the right to question witnesses who testify against him, the right to
bring forth witnesses on his behalf, and the right to an appeal. The trial court then engaged in the
following colloquy:
[The Court:] Knowing all these rights are being waived and the
consequences you face, do you still wish to plead guilty to both [of] these charges?
Defendant: Yes.
The Court: Okay. Are you making this plea of guilty freely and
voluntarily?
Defendant: Yes.
The Court: Has anyone made any threats against you or any promises to
you to force you to plead guilty?
Defendant: No.
PRP at 226 (Verbatim Report of Proceedings (VRP) (Aug. 1, 2014) at 10).
The trial court also reviewed Gonzalez-Gonzalez’s above discussed statement regarding
the facts of his conduct in the Plea Statement. Gonzalez-Gonzalez affirmed that his statement was
true and that he had signed the written Plea Statement. The trial court accepted Gonzalez-
Gonzalez’s guilty plea, finding that it was knowingly, intelligently, and voluntarily made.
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No. 51438-9-II
B. MOTION FOR SUBSTITUTE COUNSEL AND SENTENCING
After the entry of his guilty plea, but prior to sentencing, Gonzalez-Gonzalez filed a pro se
motion asking to discharge his trial counsel and substitute another attorney, Nicole T. Dalton, to
represent him.2 Gonzalez-Gonzalez filed a declaration in support of his motion in which he
claimed that his trial counsel had “rarely used a certified interpreter to communicate with [him]
outside of court, other than to read through some papers.” PRP at 106 (Appendix G at 2).
Gonzalez-Gonzalez also asserted that he did not “believe” that the plea offer was read to him and
claimed that he did not understand the full implications or consequences of the plea agreement.
PRP at 106 (Appendix G at 2). Gonzalez-Gonzalez did not identify any specific consequences or
implications of his guilty plea that he allegedly did not understand. Gonzalez-Gonzalez also asked
for an eight week continuance of his sentencing date in order to allow Dalton time to review his
case. The trial court addressed Gonzalez-Gonzalez’s motion at a hearing in which Dalton and
his trial counsel were present. Dalton informed the court that she was not prepared to enter a notice
of appearance in the case unless the trial court granted a “significant continuance” so that she could
“come up to speed” on the case. PRP at 249 (VRP (Dec. 23, 2014) at 33).
The trial court granted a four week continuance. Dalton informed the court that four weeks
was not enough time for her to fully investigate the case, and she did not substitute as counsel at
that time. The trial court informed Gonzalez-Gonzalez that the court would consider a motion to
2
Gonzalez-Gonzalez drafted his pro se motion with the help of Dalton and a certified Spanish
court interpreter.
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No. 51438-9-II
change his plea if there was a motion filed prior to the sentencing date. There is no record that
such a motion was filed.
Gonzalez-Gonzalez proceeded to sentencing with his previously retained trial counsel. The
trial court sentenced Gonzalez-Gonzalez to a term of confinement of 136 months on the second
degree rape of a child conviction and a concurrent term of 41 months on the second degree child
molestation conviction, resulting in a total confinement term of 136 months.
C. MOTION TO WITHDRAW GUILTY PLEA
Within one year after entry of his judgment and sentence, Gonzalez-Gonzalez retained
Dalton as counsel and filed a motion to withdraw his guilty plea and vacate his judgment and
sentence pursuant to CrR 7.8.3 The sole support for this motion was the attached declarations of
Dalton and Jose DeLeon, a hired defense investigator who reviewed the State’s case and assessed
whether Gonzalez-Gonzalez’s trial counsel had conducted adequate investigation.
In her declaration, Dalton asserted that Gonzalez-Gonzalez’s trial counsel failed to obtain
the services of a professional investigator, failed to transcribe the video recording of the victim
interview, and inappropriately used leading questions in his interview of the victim. Dalton
concluded, based on her review of the recorded interview of the victim, that trial counsel had
rendered “an ineffective approach that falls short of appropriate investigative technique.” PRP at
157 (Declaration of Dalton at page 2).
3
CrR 7.8 provides several bases upon which a trial court may relieve a party from final judgment.
Gonzalez-Gonzalez’s motion was based on CrR 7.8(b)(5), which provides relief for “[a]ny other
reason justifying relief from the operation of the judgment.”
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No. 51438-9-II
In his declaration, DeLeon asserted several times that Gonzalez-Gonzalez had “indicated
generally” that he did not understand much of what his prior attorney said to him. PRP at 207
(Declaration of DeLeon at 3). DeLeon also claimed that Gonzalez-Gonzalez had “indicate[d]”
that his trial counsel had failed to explain what legal terms meant or the possible implications of
entering into a plea agreement. PRP at 208 (Declaration of DeLeon at page 4).
DeLeon also asserted that trial counsel had failed to interview various witnesses that
Gonzalez-Gonzalez had mentioned would be able to testify on his behalf. DeLeon interviewed
these witnesses and summarized the information he learned from them in his declaration. DeLeon
claimed that some witnesses could have testified that Gonzalez-Gonzalez was not living in
Vancouver, Washington during the time of the alleged offenses. Other witnesses would have
testified to a possible blackmail attempt by Gonzalez-Gonzalez’s former wife. One witness was
willing to testify that the child victim “would not have put herself in [a] situation to be molested.”
PRP at 213 (Declaration of DeLeon at 9). None of the potential witnesses referenced in DeLeon’s
declaration provided a supporting declaration.
DeLeon also criticized trial counsel for solely interviewing the child victim, rather than all
of the State’s witnesses. He further criticized trial counsel’s method of interviewing the victim.
DeLeon concluded that the prior investigation in Gonzalez-Gonzalez’s case was inadequate and
opined that had trial counsel conducted a thorough investigation, Gonzalez-Gonzalez would have
been provided “important additional facts to aid in his defense,” and that his trial counsel would
have had “more tools to work with” during the plea bargaining process. Declaration of DeLeon at
page 10.
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No. 51438-9-II
The prosecutor assigned to respond to Gonzalez-Gonzalez’s CrR 7.8 motion submitted a
responsive declaration detailing his interview with Gonzalez-Gonzalez’s trial counsel. Gonzalez-
Gonzalez’s trial counsel had reviewed the State’s discovery, met with Gonzalez-Gonzalez between
10 and 15 times, spent two days reviewing the plea agreement with him with the aid of an
interpreter, and interviewed the child victim. Counsel explained that he solely interviewed the
child victim because he feared that conducting any further interviews of the State’s witnesses
would result in the State rescinding its plea offer of reducing multiple counts of rape of a child and
child molestation to only one count on each crime. Trial counsel also spoke with several of
Gonzalez-Gonzalez’s family members, but they were not present during any of the alleged
incidents.
The trial court determined that Gonzalez-Gonzalez’s motion to withdraw plea was not time
barred, but that Gonzalez-Gonzalez had not made a substantial showing that he was entitled to
relief or that an evidentiary hearing was necessary to resolve his motion on the merits.
Accordingly, the trial court transferred Gonzalez-Gonzalez’s motion to this court as a personal
restraint petition (PRP) in accordance with CrR 7.8(c)(2).4
4
Under CrR 7.8(c)(2),
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.
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No. 51438-9-II
ANALYSIS
A. LEGAL PRINCIPLES
“Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner
must meet a high standard before this court will disturb an otherwise settled judgment.” In re Pers.
Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011) (citing In re Cook, 114 Wn.2d
802, 810-12, 792 P.2d 506 (1990)). To be entitled to relief on a PRP, a petitioner must show (1)
actual and substantial prejudice by a constitutional error, or (2) “a fundamental defect of a
nonconstitutional nature that inherently resulted in a complete miscarriage of justice.” In re Pers.
Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013).
In reviewing a PRP, we have three available options: (1) deny the petition, (2) grant the
petition, or (3) transfer the petition to the superior court for a reference hearing. In re Pers.
Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013); In re Pers. Restraint of Schreiber, 189
Wn. App. 110, 113, 357 P.3d 668 (2015). A reference hearing is appropriate where the petitioner
makes the required prima facie showing, but we are unable to determine the merits of the petition
solely on the record. Yates, 177 Wn.2d at 18.
In order to establish a prima facie showing that a reference hearing is warranted, a petitioner
must present “‘the facts underlying the claim of unlawful restraint and the evidence available to
support the factual allegations.’” Id. (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-
86, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992)). “Bald assertions and conclusory
allegations” are inadequate to justify a reference hearing. Rice, 118 Wn.2d at 886. If the
petitioner’s allegations are based on matters outside of the existing record, he must show that he
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No. 51438-9-II
has competent, admissible evidence to support such allegations. Id. If the evidence is based on
knowledge that is in the possession of others, the petitioner must present affidavits of those
witnesses or else other corroborative evidence. Id. Factual allegations must be based on more
than speculation, conjecture, or inadmissible hearsay. Id.B. INEFFECTIVE ASSISTANCE OF COUNSEL
Gonzalez-Gonzalez argues that he was provided ineffective assistance of counsel because
his trial counsel failed to (1) conduct an adequate investigation of witnesses and (2) communicate
with Gonzalez-Gonzalez in a language he could understand. We disagree.
1. Legal Principles
Ineffective assistance of counsel is a constitutional error, rooted in the Sixth Amendment
to the United States Constitution and article I, section 22 of the Washington Constitution. State v.
Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct. 153 (2014). To obtain
collateral relief in a PRP raising an ineffective assistance of counsel claim, the petitioner must
show that (1) defense counsel’s representation was deficient and (2) counsel’s deficient
representation prejudiced the defense. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 846-
47, 280 P.3d 1102 (2012) (holding that a petitioner who meets the prejudice standard under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) necessarily
meets the burden of proving actual and substantial for purposes of collateral relief).
Counsel’s performance is deficient if it “falls ‘below an objective standard of
reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland, 466 U.S. at 688). We engage in a
strong presumption that counsel’s performance was reasonable. State v. Kyllo, 166 Wn.2d 856,
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No. 51438-9-II
862, 215 P.3d 177 (2009). A defendant may overcome this presumption by showing that “‘there
is no conceivable legitimate tactic explaining counsel’s performance.’” Grier, 171 Wn.2d at 33(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
To establish prejudice in the plea process, a petitioner must show a reasonable probability
that, but for counsel’s deficient performance, he would not have pleaded guilty and would have
insisted on going to trial. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 254, 172 P.3d 335(2007). A bare assertion that the petitioner would not have pleaded guilty had he known all of the
consequences of entering a plea is insufficient to establish prejudice. Id.
2. Failure to Conduct Adequate Investigation
Gonzalez-Gonzalez argues that his trial counsel failed to conduct adequate investigation
into his case and the State’s evidence against him. Specifically, Gonzalez-Gonzalez contends that
his attorney should have interviewed other State witnesses aside from the victim and investigated
the potential defense witnesses that Gonzalez-Gonzalez had suggested to counsel.
“Effective assistance of counsel includes assisting the defendant in making an informed
decision as to whether to plead guilty or to proceed to trial.” State v. A.N.J., 168 Wn.2d 91, 111-
12, 225 P.3d 956 (2010). Counsel has a duty to conduct reasonable investigation guided by
prevailing professional norms. Elmore, 162 Wn.2d at 252. However, “[t]he degree and extent of
investigation required will vary depending upon the issues and facts of each case.” A.N.J., 168
Wn.2d at 111. “In any ineffectiveness claim, a particular decision not to investigate must be
directly assessed for reasonableness, giving great deference to counsel’s judgments.” Elmore, 162
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No. 51438-9-II
Wn.2d at 252. And we evaluate a claim of ineffective assistance based on a duty to investigate in
light of the strength of the State’s case. Id. at 253.
a. Interviewing State’s witnesses
Gonzalez-Gonzalez claims that his trial counsel rendered deficient performance by only
interviewing the child victim, rather than all of the State’s witnesses. Relying on A.N.J., Gonzalez-
Gonzalez argues counsel’s limited investigation prevented him from making an informed decision
as to whether to accept the guilty plea or proceed to trial.
In A.N.J., our Supreme Court held that counsel’s performance fell below an objective
standard of reasonableness where counsel conducted little investigation or research into the case,
made no discovery requests, filed no motions, and had spent approximately 5 to 10 minutes
discussing the plea offer with his juvenile client prior to entry of the plea. 168 Wn.2d at 100-01.
However, unlike in A.N.J., this is not a case where counsel failed to conduct little to no
investigation. Gonzalez-Gonzalez’s trial counsel met with Gonzalez-Gonzalez between 10 and 15
times; spent two days reviewing the Plea Statement with him with the aid of an interpreter; and
interviewed the child victim. Trial counsel also spoke with several of Gonzalez-Gonzalez’s family
members, but they were not present during any of the alleged incidents. Gonzalez-Gonzalez’s trial
counsel further explained that he did not schedule other in person interviews with State witnesses
out of fear that the State would rescind its plea offer. Thus, Gonzalez-Gonzalez fails to show no
conceivable legitimate tactic explaining why trial counsel only interviewed the child victim in his
case. He, therefore, fails to show counsel’s performance fell below an objective standard of
reasonableness.
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No. 51438-9-II
Gonzalez-Gonzalez also fails to establish prejudice based on his trial counsel’s failure to
conduct in person interviews of the other State witnesses. Gonzalez-Gonzalez claims that the
general lack of investigation in his case denied him the ability to make an informed decision about
whether to plead guilty. However, Gonzalez-Gonzalez makes no effort to explain what
information would have been revealed upon further investigation of the State’s witnesses or how
this information would have influenced his decision to accept a guilty plea. Therefore, he fails to
show a reasonable probability that, but for his attorney’s failure to interview the other State
witnesses, he would not have pleaded guilty and would have insisted on going to trial. Because
Gonzalez-Gonzalez fails to show either deficient performance or prejudice, his ineffective
assistance of counsel claim on this basis fails.
b. Interviewing defense witnesses
Gonzalez-Gonzalez also claims that trial counsel was ineffective in failing to investigate
his suggested defense witnesses. Gonzalez-Gonzalez claims that he had provided counsel with the
names of several defense witnesses who could have testified “in relation to the time frame of
events.” PRP at 172 (Motion to Withdraw Plea and Vacate Judgment and Sentence CrR 7.8 and
Supporting Memorandum of Law (Motion to Withdraw Plea) at 37). Presumably, Gonzalez-
Gonzalez refers to the summarized witness interviews contained in DeLeon’s report. However,
DeLeon’s affidavit summarizing his interviews with potential defense witnesses is insufficient.
See Rice, 118 Wn.2d at 886 (“If the petitioner’s evidence is based on knowledge in the possession
of others, he may not simply state what he thinks those others would say, but must present their
affidavits or other corroborative evidence.”).
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No. 51438-9-II
Further, even if the potential witnesses referenced by DeLeon could have testified to the
information in DeLeon’s declaration, Gonzalez-Gonzalez cannot show prejudice. Gonzalez-
Gonzalez informed trial counsel of these “helpful defense witnesses.” PRP at 172 (Motion to
Withdraw Plea at 37). Thus, he already knew the information that they could provide and he fails
to show a reasonable probability that he would not have pleaded guilty had his counsel investigated
these witnesses and confirmed information that Gonzalez-Gonzalez already knew. Gonzalez-
Gonzalez’s ineffective assistance of counsel claim on this basis fails.
3. Failure to Adequately Communicate with Gonzalez-Gonzalez
Next, Gonzalez-Gonzalez argues that his trial counsel failed to communicate with him in
a language that he could understand. We are not persuaded by this argument.
The record shows that trial counsel spent two days reviewing the Plea Statement with
Gonzalez- Gonzalez with the aid of an interpreter. And the court certified interpreter signed a
declaration stating that he had interpreted the entire Plea Statement for Gonzalez-Gonzalez from
English to Spanish. Also, Gonzalez-Gonzalez asserted in the Plea Statement that an interpreter
had read the entire Plea Statement to him and that he “understood it in full.” PRP at 64 (Appendix
D at 10).Accordingly, we are not persuaded by Gonzalez-Gonzalez’s argument that his trial
counsel failed to communicate the plea in a language that he could understand.5
5
Gonzalez-Gonzalez also cites to a number of federal cases, guidance from the California State
Bar’s Standing Committee on Professional Responsibility, a Utah State Bar Ethics Advisory
Opinion, and a formal opinion from the Association of the Bar of the City of New York Committee
on Professional and Judicial Ethics to argue that his attorney should have more properly assessed
his own Spanish speaking skills. None of these authorities are binding on this court. They are
also irrelevant given that Gonzalez-Gonzalez’s attorney did not rely on his own mastery of the
Spanish language to review the plea agreement with Gonzalez-Gonzalez. Counsel used a court
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No. 51438-9-II
Gonzalez-Gonzalez further argues that his uncontroverted testimony establishes a prima
facie showing that his trouble communicating with counsel rendered his guilty plea not knowing,
intelligent, and voluntary. Specifically, Gonzalez-Gonzalez refers to his conversation with
DeLeon in which he “indicated generally” that he did not understand much of what his trial counsel
said to him and his declaration in support of his motion to substitute counsel in which he claimed
that he did not understand the full implications or consequences of the plea agreement. PRP at
207 (Declaration of DeLeon at 3). We again are not persuaded by Gonzalez-Gonzalez’s argument.
A petitioner seeking to withdraw a guilty plea “must present some evidence of
involuntariness beyond his self-serving allegations.” In re Det. of Scott, 150 Wn. App. 414, 427,
208 P.3d 1211, review denied, 167 Wn.2d 1014 (2009); see also State v. Osborne, 102 Wn.2d 87,
97, 684 P.2d 683 (1984) (holding that a defendant seeking to withdraw guilty plea must present
some evidence of involuntariness other than his bare, self-serving allegations). “[A] defendant’s
signature on a plea statement is strong evidence of a plea’s voluntariness.” State v. Branch, 129
Wn.2d 635, 642, 919 P.2d 1228 (1996). The trial court’s on-record inquiry of a defendant who
signs a plea statement further strengthens the inference of voluntariness. Scott, 150 Wn. App. at
427.
Here, Gonzalez-Gonzalez’s trial counsel and a certified court interpreter declared that they
had reviewed the Plea Statement in full with Gonzalez-Gonzalez. And Gonzalez-Gonzalez himself
asserted that an interpreter read the entire Plea Statement to him and that he “understood it in full.”
certified Spanish interpreter to review the plea agreement. Gonzalez-Gonzalez acknowledges in
his petition that his attorney never claimed to have translated any of the forms in his case.
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No. 51438-9-II
PRP at 64 (Appendix D at 10). Gonzalez-Gonzalez also signed the Plea Statement, admitting to
the facts underlying the charges against him. During his plea colloquy with the trial court,
Gonzalez-Gonzalez affirmed that this statement was true and that he understood the nature of the
charges against him, the consequences he faced, and the constitutional rights he would surrender
by pleading guilty. He affirmatively answered that his plea was made freely and voluntarily and
that no one had made any promises to force him to plead guilty. Gonzalez-Gonzalez’s subsequent
claim that he generally did not understand much of what his attorney said to him throughout the
plea process is insufficient to overcome the strong evidence here that his plea was made knowingly,
voluntarily, and intelligently. And his bare assertions that he would not have pleaded guilty had
he known all of the consequences of entering a plea is insufficient to establish prejudice. See
Elmore, 162 Wn.2d at 254.
Nonetheless, Gonzalez-Gonzalez contends that a fact finding hearing is warranted because
he has stated with particularity facts which, if proven, would entitle him to relief. However,
Gonzalez-Gonzalez’s sole support for his PRP is Dalton’s and DeLeon’s declarations, which
merely summarize testimony that potential witnesses could offer on his behalf. Gonzalez-
Gonzalez fails to provide the affidavits of those witnesses or any other corroborative evidence.
Because Gonzalez-Gonzalez’s factual allegations must be based on more than speculation,
conjecture, or inadmissible hearsay, this is inadequate to justify ordering a reference hearing.
Gonzalez-Gonzalez also argues that his plea colloquy with the trial court was insufficient.
The only Washington cases he cites to for support involve failure to warn defendants of
immigration consequences of a guilty plea. However, Gonzalez-Gonzalez does not claim he was
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No. 51438-9-II
never advised of potential immigration consequences of entering a guilty plea. He also relies on
federal and out of state cases to argue that a plea colloquy that elicits yes or no responses is
insufficient to show that a plea was made knowingly, voluntarily, and intelligently.6 However, as
explained above, our Supreme Court has held that “[A] defendant’s signature on a plea statement
is strong evidence of a plea’s voluntariness.” Branch, 129 Wn.2d at 642. And the only evidence
Gonzalez-Gonzalez offers to rebut this presumption is his bare assertions that he generally did not
understand what counsel said to him, which is insufficient to establish prejudice. See Elmore, 162
Wn.2d at 254.
Gonzalez-Gonzalez also argues that his trial counsel’s failure to communicate in a
language he could understand amounted to coercion. This argument fails because, as explained
above, trial counsel reviewed the Plea Statement with Gonzalez-Gonzalez with the aid of an
interpreter in a language Gonzalez-Gonzalez could understand.
C. DENIAL OF AN EIGHT WEEK CONTINUANCE TO ALLOW SUBSTITUTION OF COUNSEL
6
Gonzalez-Gonzalez primarily relies on Miles v. Stainer, 108 F.3d 1109, 1112-13 (9th Cir. 1997)
to argue that monosyllabic responses at a plea colloquy is insufficient to overcome serious doubts
about his mental abilities and his understanding of conversations with counsel outside of court.
However, Miles is readily distinguishable. There, the defendant had lost and regained competency
several times prior to pleading guilty. Id. at 1112. And the defendant’s doctors specifically warned
that the defendant’s competence depended on medication that he routinely refused to take. Id.Under these circumstances, the Miles court held that a plea colloquy consisting of monosyllabic
responses was insufficient to assess the defendant’s complex reasoning and that it was incumbent
upon the trial court to inquire as to whether the defendant had taken his medication before
accepting his guilty plea. Id.Here, Gonzalez-Gonzalez references his “mental abilities” in his petition. PRP at 188
(Motion to Withdraw Plea at 53). However, nothing in the record shows that Gonzalez-Gonzalez
was not competent at the time he pled guilty.
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No. 51438-9-II
Finally, Gonzalez-Gonzalez claims that the trial court’s denial of an eight week
continuance of his sentencing date is an “‘extraordinary circumstance[]’” justifying withdrawal of
his guilty plea under CrR 7.8(b)(5). PRP at 195 (quoting State v. Olivera-Avila, 89 Wn. App. 313,
319, 949 P.2d 854 (1992)). This claim is without merit.
As an initial matter, Gonzalez-Gonzalez appears to argue that the trial court denied his
request to substitute counsel. This is untrue. The trial court never ruled that Gonzalez-Gonzalez
could not substitute Dalton as counsel. Rather, it denied his request for an eight week continuance
to allow Dalton to review his case. And the trial court granted a four week continuance of
Gonzalez-Gonzalez’s sentencing date to allow Dalton time to prepare. The trial court also stated
that it would consider any motion that Gonzalez-Gonzalez filed before the sentencing date.
Under CrR 7.8(b)(5), the court has authority relieve a party from final judgment for “[a]ny
other reason justifying relief from the operation of the judgment.” Relief under CrR 7.8(b)(5) is
confined to extraordinary circumstances that are not covered by the other sections of the rule. State
v. Smith, 159 Wn. App. 694, 700, 247 P.3d 775 (2011). “Extraordinary circumstances include
fundamental and substantial irregularities in the court’s proceedings or irregularities extraneous to
the court’s action.” Id. A final judgment should only be vacated in those limited circumstances
“‘where the interests of justice most urgently require.’” Id. (quoting State v. Shove, 113 Wn.2d
83, 88, 776 P.2d 132 (1989)).
The interests of justice do not urgently require us to vacate Gonzalez-Gonzalez’s judgment
and sentence and allow him to withdraw his guilty plea. The trial court’s denial of an eight week
continuance after Gonzalez-Gonzalez had pled guilty was not a fundamental and substantial
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No. 51438-9-II
irregularity in the court’s proceedings. The request for an eight week continuance of the sentencing
date was made 144 days after Gonzalez-Gonzalez’s guilty plea. Thus, the trial court’s refusal to
continue the sentencing date did not influence Gonzalez-Gonzalez’s decision to enter a guilty plea
because he had already pled guilty. And the denial of a continuance of the sentencing date does
not show that Gonzalez-Gonzalez’s guilty plea was not made knowingly, intelligently, and
voluntarily. We reject Gonzalez-Gonzalez’s claim that the trial court’s denial of an eight week
continuance after he pleaded guilty is an extraordinary circumstance allowing him to withdraw his
guilty plea.
We deny Gonzalez-Gonzalez’s PRP.
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.
Lee, A.C.J.
I concur:
Worswick, J.
Glasgow, J.
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