Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 16, 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. 29403-0-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
JOSE FRANCISCO GONZALEZ, JR.,                   )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J. ? Jose F. Gonzalez, Jr., appeals the trial court's decision to deny his 

motion to withdraw his guilty plea to first degree identity theft and first degree theft.  He 

contends his plea was involuntary and he received ineffective assistance of counsel.  

He raises multiple concerns in his Statement of Additional Grounds for Review (SAG).  

We affirm.    

                                            FACTS

       Mr. Gonzalez committed 22 felonies by age 32, apparently to support a drug 

habit.  In April 2009, Mr. Gonzalez was under community custody supervision when he 

was charged with first degree identity theft and first degree theft.  The information 

alleged aggravating circumstances pursuant to RCW 9.94A.535(2)(c), based on  

No. 29403-0-III
State v. Gonzalez  

"multiple current offenses" and Mr. Gonzalez's high offender score.  Clerk's Papers

(CP) at 2.  The State provided a letter to the defendant giving notice that it was not 

making any offer and intended to recommend a 10-year sentence.   

       On June 18, 2009, after Mr. Gonzalez elected to accept an informant contract for 

more favorable State sentencing recommendations, he pleaded guilty to both charges.  

The standard plea statement form recited he had received a copy of the information, 

listed the standard sentence ranges for the charges (43 to 47 months for identity theft 

charge and 63 to 84 months for theft), and, noteworthy here, it specified:  

       The judge does not have to follow anyone's recommendation as to 
       sentence.  The judge must impose a sentence within the standard range 
       unless there is a finding of substantial and compelling reasons not to do 
       so.  I understand the following regarding exceptional sentences:  
       . . . . 
       (ii)  The judge may impose an exceptional sentence above the standard
           range if I am being sentenced for more than one crime and I have an
           offender score of more than nine.
       . . . . 
       (iv) The judge may also impose an exceptional sentence above the standard
           range if the State has given notice that it will seek an exceptional sentence,
           the notice states aggravating circumstances upon which the requested
           sentence will be based, and facts supporting an exceptional sentence are
           proven beyond a reasonable doubt to a unanimous jury, to a judge if I waive
           a jury, or by stipulated facts.

CP at 13.  

       Mr. Gonzalez was then released on his personal recognizance to fulfill his 

informant contract, but less than one month later his release and contract were revoked 

when he was charged with a driving offense.  Sentencing was delayed to investigate 

his ultimately unsuccessful drug offender sentencing alternative (DOSA) request and 

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No. 29403-0-III
State v. Gonzalez  

accommodate attorney changes from Shelly Ajax to Dan Arnold and finally to Richard 

Johnston.  Mr. Gonzalez, by Mr. Arnold, asked to withdraw his guilty plea; Mr. Johnston 

represented him at the hearing. 

       On June 25, 2010, the court heard the plea-withdrawal motion.  Mr. Gonzalez 

testified he signed the informant contract, but had not reviewed it with his attorney.  He

testified Ms. Ajax had discussed the plea statement with him.  Ms. Ajax testified she 

had thoroughly reviewed both the informant contract and the guilty plea with Mr. 

Gonzalez and had relayed to Mr. Gonzalez the State's 10-year sentencing 

recommendation, as well as the standard ranges.  She related that shortly before the 

date of the plea, she went to the jail and reviewed with Mr. Gonzalez the terms of the 

contract and the terms of the plea agreement.  Mr. Gonzalez was to consider the 

consequences of the contract and if he wanted to proceed, he would sign the 

agreement in court.  

       The trial court found Mr. Gonzalez voluntarily, knowingly, and freely pleaded 

guilty to one count of first degree identity theft and one count of first degree theft.  The 

trial court further concluded that Ms. Ajax had reviewed the informant contract with Mr. 

Gonzalez and he understood its terms before he signed it.  The trial court denied Mr. 

Gonzalez's motion to withdraw his guilty plea.  

       On September 23, 2010, the trial court granted the State's exceptional 

sentencing request of 120 months.  Mr. Gonzalez appealed.

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No. 29403-0-III
State v. Gonzalez  

                                          ANALYSIS

                                A.  Motion to Withdraw Plea

       The issue is whether the trial court erred in denying Mr. Gonzalez's motion to 

withdraw his guilty plea.  Mr. Gonzalez contends his plea was involuntary and thus, a 

manifest injustice.  

       We review a trial court's decision on a motion to withdraw a guilty plea for abuse 

of discretion.  State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001).  A trial court 

abuses its discretion when it adopts a position which is manifestly unreasonable or 

based on untenable grounds or reasons.  State v. Valdobinos, 122 Wn.2d 270, 279, 

858 P.2d 199 (1993) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 

(1971)).  Due process requires a guilty plea be "knowing, voluntary, and intelligent."  In 

re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004) (citing Boykin v. 

Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)).  Accordingly, 

before accepting a plea of guilty, a court must first determine "that it is made 

voluntarily, competently and with an understanding of the nature of the charges and the 

consequences of the plea." CrR 4.2(d).  

       A trial court "shall allow a defendant to withdraw the defendant's plea of guilty 

whenever it appears that the withdrawal is necessary to correct a manifest injustice."  

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No. 29403-0-III
State v. Gonzalez  

CrR 4.2(f).  A manifest injustice is "an injustice that is obvious, directly observable, 

overt, not obscure."  State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984).  Our 

Supreme Court has recognized that an involuntary plea amounts to manifest injustice.  

State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006).  "When a defendant 

completes a plea statement and admits to reading, understanding, and signing it, it 

creates a strong presumption that the plea is voluntary."  State v. Smith, 134 Wn.2d 

849, 852, 953 P.2d 810 (1998).  

       Mr. Gonzalez completed and signed the plea statement and acknowledged on 

the record that he had read it and understood it.  Nonetheless, he contends his plea 

was involuntary because he was unaware that the sentencing lengths described in the 

plea form were tentative to the extent he was "not apprised of a direct consequence of 

his plea." Br. of Appellant at 6.  He argues the court did not tell him "the State could 

change its recommendation based on the aggravated nature of the case." Br. of 

Appellant at 8.  

       First, the plea contained no recommendation from the State.  Second, the record

shows the State indicated from the beginning it would recommend that Mr. Gonzalez be 

sentenced to 10 years.  Ms. Ajax testified she relayed that information to Mr. Gonzalez 

before he entered the informant contract.  The trial court, after fact-finding, accepted 

Ms. Ajax's position, not that offered by Mr. Gonzalez.  We accept trial court fact-

findings supported by substantial evidence, as here.  Third, the plea statement properly 

explained the judge could impose an exceptional sentence if the plea was for more 

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No. 29403-0-III
State v. Gonzalez  

than one crime and Mr. Gonzalez had an offender score higher than nine; that was the 

case here.  Mr. Gonzalez does not dispute those facts.  Mr. Gonzalez signed the plea 

statement and admitted, even at the motion hearing to withdraw his plea, that he had 

reviewed it with his attorney.  And the original information listed the aggravating 

circumstances.   

       Given all, we reject Mr. Gonzalez's contention that he was misinformed about 

the potential sentencing length.  Thus, Mr. Gonzalez fails to establish a manifest 

injustice.  Therefore, the trial court did not abuse its discretion in denying Mr. 

Gonzalez's motion.

                            B.  Ineffective Assistance of Counsel

       The issue is whether trial counsel was ineffective for failing to assist Mr. 

Gonzalez in deciding whether to plead guilty.  Mr. Gonzalez contends his attorney's 

failure to "adequately inform him" of the consequences of the informant contract 

prejudiced him because he would not have pleaded guilty "if he knew the State could 

ask for 120 months." Br. of Appellant at 11.

       We review a challenge to effective assistance of counsel de novo.  State v. 

White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).  A defendant possesses the right to 

effective assistance of counsel in criminal proceedings.  Strickland v. Washington, 466 

U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  We presume counsel was 

effective.  State v. McFarland, 127 Wn.2d 322, 335, 889 P.2d 1251 (1995).  To prove 

ineffective assistance of counsel, Mr. Gonzalez must show (1) defense counsel's 

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No. 29403-0-III
State v. Gonzalez  

representation was deficient, falling below an objective standard of reasonableness, 

and (2) the deficient performance prejudiced the defendant.  State v. Sutherby, 165 

Wn.2d 870, 883, 204 P.3d 916 (2009).  In the context of a guilty plea, the defendant 

must show that his attorney failed to assist him in deciding whether to plead guilty, and 

that but for counsel's failure to offer adequate advice, he would have not pleaded guilty.  

State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997). 

       Here, Mr. Gonzalez claims his attorney was deficient because she did not review 

the terms of the informant contract with him before he signed it, but Ms. Ajax testified to 

the contrary.  The trial court believed her testimony.  In any event, Mr. Gonzalez fails to 

show necessary prejudice.  "If an ineffective assistance claim can be resolved on one 

prong of this test, the court need not address the other prong."  State v. Staten, 60 Wn. 

App. 163, 171, 802 P.2d 1384 (1991).  As discussed above, the trial court had the 

sentencing authority to sentence Mr. Gonzalez to 120 months based on the plea 

statement, a sentencing consistent with the State's announced recommendation.  

       Given all, we reject Mr. Gonzalez's ineffective assistance claim.    

                      C.  Statement of Additional Grounds for Review

       Mr. Gonzalez raises multiple concerns in his statement of additional grounds for 

review.  Mainly, Mr. Gonzalez's contentions supplement appellate counsel's adequately

argued plea-withdrawal and ineffective assistance contentions and we will not consider 

them further.  The purpose of SAG is to permit the appellant, "to identify and discuss 

those matters which the defendant/appellant believes have not been adequately 

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No. 29403-0-III
State v. Gonzalez  

addressed by the brief filed by the defendant/appellant's counsel." RAP 10.10(a).  We 

acknowledge Mr. Gonzalez's additional concerns.  

       First, regarding Mr. Gonzalez's concerns about whether the informant contract 

should have been made part of the plea record, it was immaterial to whether Mr. 

Gonzalez voluntarily pleaded guilty.  The plea statement did not mention the informant 

contract for obvious safety and practical reasons.  And Mr. Gonzalez repeatedly 

acknowledged he read and understood the plea statement.  The plea statement alone 

gave the court the authority to sentence Mr. Gonzalez to 120 months.  

       Second, regarding sentencing above the standard range, the court confirmed 

with Mr. Gonzalez that he had read and acknowledged the plea statement.  The plea 

statement explicitly informed Mr. Gonzalez that the court could sentence him above the 

standard range if he was pleading to more than one offense and had an offender score 

higher than nine.  Mr. Gonzalez does not dispute either of those facts.  

       Third, Mr. Gonzalez's claim that Ms. Ajax had a conflict of interest at the time he 

pleaded guilty is not supported in our record.  

       Fourth, regarding the practical workability of the informant contract, Mr. 

Gonzalez broached this subject with the trial court before the trial court found he had 

read and understood the consequences of his plea.  And the informant contract was not 

formally or informally incorporated into the statement on plea of guilty. 

       Fifth, regarding concerns about the interplay of entering the guilty plea/informant 

contract and drug offender sentencing alternative, the evidence does not show that Mr. 

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No. 29403-0-III
State v. Gonzalez  

Gonzalez was currently on a DOSA when he entered the plea here.  In any event, 

DOSA was denied.  

       Sixth, regarding knowledge of the aggravating factors, Mr. Gonzalez confirmed 

on the record that he had read and understood the plea statement.  The plea statement 

explicitly stated he was pleading to the charges in the original information and that he 

had read the information.  The information describes the aggravating factors.  And, Mr. 

Gonzalez does not dispute the aggravating factors.  

       Given all, we find no merit in Mr. Gonzalez's SAG concerns.

       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.

                                                           __________________________
                                                           Brown, J.

WE CONCUR:

_______________________________                            __________________________
Korsmo, A.C.J.                                             Siddoway, J.

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