Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                           FEB 14, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           )       No. 29170-7-III
                                               )
                             Respondent,       )
                                               )
                      v.                       )       Division Three
                                               )
ADRIAN BENTURA OZUNA,                          )
                                               )
                             Appellant.        )       UNPUBLISHED OPINION

       Korsmo, J.  --  Adrian Ozuna challenges his guilty pleas, primarily arguing that his 

counsel failed him.  We agree with the trial court that he has not established a manifest 

necessity for withdrawing the pleas and affirm the convictions.

                                            FACTS

       In the midst of jury trial, the parties reached a plea agreement.  Mr. Ozuna pleaded 
guilty to attempting to elude a pursuing police vehicle and entered Alford1 pleas to 

charges of first degree robbery and second degree assault.  The prosecutor dismissed a 

charge of first degree kidnapping as well as the firearm and deadly weapon enhancements 

       1 North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). 

No. 29170-7-III
State v. Ozuna

sought on the robbery, assault, and kidnapping counts. 

       Prior to sentencing, Mr. Ozuna filed a motion to withdraw his guilty plea, arguing 

that his counsel had provided ineffective assistance and had "pressured" him into entering 

the guilty pleas.  He alleged counsel had not visited him in jail, did not provide him with 

discovery prior to trial, failed to call certain witnesses, and did not have his investigator 

seek missing witnesses until trial had commenced.  Substitute counsel appeared to argue 

the motion.

       Trial counsel and his investigator both testified at the hearing.  At the conclusion 

of the hearing, Mr. Ozuna also accused trial counsel of illegal drug use during trial.  The 

trial court denied the motion, finding that counsel had investigated the case and 

negotiated a good plea agreement that his client understood.  The court then imposed the 

recommended low-end sentence of 129 months on the robbery charge and lesser 

concurrent terms on the other two counts.

       Mr. Ozuna then timely appealed to this court.

                                         ANALYSIS

       Mr. Ozuna challenges the denial of his motion to withdraw the pleas and also 

contests the validity of those pleas.  Each argument is addressed in turn.

       Plea Withdrawal.  The plea withdrawal challenge is predicated on a claim that trial 

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No. 29170-7-III
State v. Ozuna

counsel provided ineffective assistance by not adequately preparing for trial and not 

timely investigating the case.  Well settled standards govern review of this argument.

       Effectiveness of counsel is judged by the two prong standard of Strickland v. 

Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).  That test is whether or 

not (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual 

prejudice resulted from counsel's failures.  Id.  Effective assistance in the plea bargain context 

is judged by whether the attorney "actually and substantially assisted his client in deciding 

whether to plead guilty."  State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901, review 

denied, 96 Wn.2d 1023 (1981).  Failure to assist would amount to a violation of the first 

prong of Strickland.  In re Pers. Restraint of Peters, 50 Wn. App. 702, 703-704, 750 P.2d 643 

(1988). There is a strong presumption counsel was competent.  State v. Jamison, 105 Wn. 

App. 572, 590, 20 P.3d 1010, review denied, 144 Wn.2d 1018 (2001). 

       If a defendant was able to show that defense counsel's behavior was defective, he 

would still have to show resulting prejudice.  In the context of a guilty plea, this means that 

the defendant must show he would not have entered the guilty plea but for his counsel's 

ineffectiveness.  Peters, 50 Wn. App. at 708.

       The law governing guilty plea challenges is also well settled.  CrR 4.2(f) permits a 

guilty plea to be withdrawn whenever "necessary to correct a manifest injustice." The 

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No. 29170-7-III
State v. Ozuna

appropriate standard for applying this rule was set out in State v. Taylor, 83 Wn.2d 594, 596, 

521 P.2d 699 (1974), as follows:

       Under CrR 4.2(f), adopted by this court, the trial court shall allow a 
       defendant to withdraw his plea of guilty whenever it appears that 
       withdrawal is (1) necessary to correct a (2) manifest injustice, i.e., an 
       injustice that is obvious, directly observable, overt, not obscure.  Webster's 
       Third New International Dictionary (1966).  Without question, this imposes 
       upon the defendant a demanding standard.

The written statement form itself is sufficient to establish that the plea was voluntary.  State v. 

Lujan, 38 Wn. App. 735, 737, 688 P.2d 548 (1984), review denied, 103 Wn.2d 1014 (1985).

       A trial court's ruling on a motion to withdraw a guilty plea is reviewed for abuse of 

discretion.  State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966).  Discretion is abused 

when it is exercised on untenable grounds or for untenable reasons.  State ex rel. Carroll v. 

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  Discretion also is abused when a court uses 

an incorrect legal standard in making a discretionary decision.  State v. Rundquist, 79 Wn. 

App. 786, 793, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996).

       The first complaint is that counsel did not meet with his client and prepare 

properly for trial.  The short answer to that challenge is that the trial court believed the 

attorney and his investigator rather than Mr. Ozuna concerning the scope of pretrial 

preparation -- counsel did prepare and did consult with his client. The performance at 

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No. 29170-7-III
State v. Ozuna

trial also supports the trial court's conclusion.  Counsel performed strongly enough that 

the prosecutor offered a plea bargain during trial.  The trial court correctly concluded that 

this allegation did not support the ineffective assistance argument.

       The remaining challenge is an argument that counsel did not acquire an 
investigator to begin looking for two potential witnesses until trial had started.2 The 

prosecution had sought to subpoena two of the missing men long before trial, but was 

unable to do so.  The defense likewise had no success.  Mr. Ozuna likens this situation to 

State v. Visitacion, 55 Wn. App. 166, 173-174, 776 P.2d 986 (1989).  There, based on 

their statements to the police, defense counsel did not contact two witnesses to a shooting 

who had identified his client as the shooter.  The prosecution was unable to subpoena the 

two witnesses and they did not testify at trial.  Id. at 167, 172.  In a personal restraint 

petition, the defendant filed statements from the two witnesses that contradicted their 

statements to the police and supported the defendant's theory.  Id. at 172.  The court 

concluded that counsel had performed ineffectively by not contacting the two witnesses 

prior to trial.  Id. at 174.

       Mr. Ozuna argues that as in Visitacion, his counsel's failure to contact the two 

       2 Mr. Ozuna also complains about the failure to call two other witnesses whom 
counsel did interview and decided they would not help the defense case.  This tactical 
decision by counsel does not supply a basis for finding ineffective assistance.  State v. 
Thomas, 109 Wn.2d 222, 230, 743 P.2d 816 (1987).   
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No. 29170-7-III
State v. Ozuna

missing witnesses in this case should likewise result in a determination that counsel was 

ineffective.  Unlike Visitacion, Mr. Ozuna had not provided statements from the two 

missing witnesses that indicate they would have given favorable testimony. Nothing in 

the record suggests that they would have done so.  There also is no basis in this record to 

believe that counsel could have found the two even if he had started looking for them 

earlier than he did.  In short, unlike Visitacion, the two missing witnesses do not establish 

that counsel performed ineffectively here.

       Mr. Ozuna has not established that his counsel failed to live up to the standards of 

the profession.  To the contrary, the record establishes that counsel did help Mr. Ozuna 

decide whether or not to plead guilty.  Counsel therefore performed effectively.  

Cameron, 30 Wn. App. at 232.

       The claim of ineffective assistance of counsel does not establish a manifest 

necessity for withdrawing the guilty plea.  The trial court did not abuse its discretion by 

denying the motion.

       Validity of Plea.  For largely the same reasons that he argued his pleas should have 

been withdrawn, Mr. Ozuna also argues that his pleas were involuntary.  The record 

likewise does not support this argument.

       "Due process requires that a guilty plea be voluntary, knowing, and intelligent."  

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No. 29170-7-III
State v. Ozuna

State v. DeRosia, 124 Wn. App. 138, 149, 100 P.3d 331 (2004). Whether a plea is 

knowingly, intelligently and voluntarily made is determined by the totality of the 

circumstances.  State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). A 

defendant's signature on a plea statement is strong evidence of a plea's voluntariness, and 

a judge's on-record inquiry of a defendant who signs a plea bargain strengthens the 

inference of voluntariness.  Id. at 642-643; Lujan, 38 Wn. App. at 737. The defendant 

must present some evidence of involuntariness beyond his self-serving allegations.  State 

v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984).  

       Agreeing that he was properly advised of the elements of the offenses, Mr. Ozuna 

argues that his counsel did not provide him with adequate information to make a proper 

cost-benefit analysis before pleading guilty and that the matter was made worse when the 

prosecutor only gave two hours for Mr. Ozuna to decide whether to accept the offer or 

not.  Once again, the record does not support Mr. Ozuna.

       It is Mr. Ozuna's burden here to show counsel failed to provide enough 

information to make an intelligent choice.  Id.  That has not been done.  The record does 

reflect that counsel and Mr. Ozuna conferred, and that Mr. Ozuna also conferred with his 

family.  Mr. Ozuna then signed the plea form and engaged in a colloquy with the trial 

court.  If Mr. Ozuna was not given sufficient information to make a decision, he should 

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No. 29170-7-III
State v. Ozuna

have said something at that time.  He did not.  Instead, the record reflects only that he 

conferred with counsel and subsequently pleaded guilty. There is no basis for finding 

that counsel failed to help his client in making the decision to enter the guilty pleas.

       Similarly, the allegation that two hours was insufficient time to weigh the offer 

does not establish coercion.  The case was in the middle of trial and a jury was waiting. 

The prosecutor and the trial judge understandably could not afford to keep the matter an 

open question for long.  Either the trial needed to continue or the pleas needed to enter so 

that the jury could be dismissed.  Mr. Ozuna has not provided any authority suggesting 

that there is some minimal amount of time needed to weigh a plea offer.  Indeed, since 
there is no constitutional right3 to a plea bargain, it is difficult to conclude that there is 

some minimum amount of time necessary to thoughtfully consider a plea offer.

       Mr. Ozuna has not established that his plea was involuntary. 

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                            _________________________________
                                                           Korsmo, J.

       3 State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995).

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WE CONCUR:

______________________________              __________________________________
       Kulik, C.J.                                         Sweeney, J.

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