Appeal from Superior Court of King County. Docket No: 94-1-02487-2. Date filed: 10/04/95. Judge signing: Hon. Arthur E. Piehler.
PER CURIAM. Michael Soetaert appeals the denial of his motion to withdraw his Alford plea to one count of second degree theft, contending that the trial court erred in denying his motion without permitting him to testify as to the factual basis for the motion. Because Soetaert was effectively denied a hearing on his motion to withdraw the plea, leaving an insufficient record to permit appellate review of the merits of his motion, we remand for a new hearing.
Soetaert entered an Alford plea to the charge of second degree theft, and was sentenced within the standard range and ordered to pay restitution.
Five months later, Soetaert moved to withdraw his plea, citing CrR 4.2(f) and State v. Stowe, 71 Wash. App. 182, 858 P.2d 267 (1993). At the hearing on the motion, defense counsel contended that Soetaert should be permitted to withdraw his plea in order to correct a manifest inJustice because the attorney who represented Soetaert at the plea hearing had not informed him that a theft conviction would adversely affect his planned teaching career.
The Judge interrupted defense counsel, stating, "Well, I have to hear from his attorney. I am not just going to take what Mr. Soetaert says." Report of Proceedings at 4. At defense counsel's request to make a record, the Judge permitted Soetaert to take the stand.
When asked by defense counsel what effect the conviction had had on his career goals, Soetaert stated, unresponsively, that he had had a minimal amount of time to interact with the attorney who had represented him at the plea hearing. The Judge interrupted, stating, "No. I am not going to hear that." Report of Proceedings at 5. Soetaert complained that he had been cut off, to which the Judge replied, "I don't need to hear anymore from you right now" and recited a portion of the transcript of the plea hearing at which Soetaert indicated that he had had all the time he had wanted to talk to his attorney regarding his plea and its consequences.
A Discussion ensued between Soetaert and the Judge about whether Soetaert had been cut off from speaking at the plea hearing and about whether errors in the probable cause certificate or Soetaert's assertion at the plea hearing that he was innocent were relevant to the motion for withdrawal of Soetaert's Alford plea. When Soetaert interrupted the Judge's explanation of the court's role in a motion to withdraw a plea, the Judge terminated the hearing and denied the motion:
THE DEFENDANT: Seems you're more interested in form than you are interested in Justice.
THE COURT: All right. The motion will be denied.
Report of Proceedings at 7.
Soetaert contends that the court's abrupt termination of the hearing denied him both the right to a fully-informed decision on the motion to withdraw his plea and the ability to make the requisite record for appellate review of the decision to deny the motion. Although we sympathize with the trial Judge's loss of patience with Soetaert, who was both unresponsive in answering his attorney's question and disrespectful to the court, the record supports Soetaert's contention.
When a defendant moves to withdraw a plea on the ground that he was denied effective assistance of counsel, he must show that his counsel's performance fell below an objective standard of reasonableness and that he was prejudiced thereby. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). "In the plea bargaining context, effective assistance of counsel means that counsel actually and substantially assisted his client in deciding whether to plead guilty." State v. Cameron, 30 Wash. App. 229, 232, 633 P.2d 901, review denied, 96 Wash. 2d 1023 (1981) (citing Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974)). Although defense counsel has no obligation to inform the defendant of all possible collateral consequences of a guilty plea, counsel's performance is deficient if counsel affirmatively misinforms the defendant of the collateral consequences of the plea. State v. Stowe, 71 Wash. App. at 187.
From a colloquy between the Judge and Soetaert's attorney at the hearing on the motion, it appears that counsel may have been contending that Soetaert's situation, although not on all fours with that of the defendant in Stowe, is sufficiently similar, based on the nature of the pre-plea communications between Soetaert and his prior counsel with respect to Soetaert's planned teaching career, to justify extending the reasoning of Stowe to Soetaert's motion to withdraw his plea. Additionally, the contention may have been that Soetaert was not sufficiently informed of the consequences of the plea upon his teaching career make a voluntary and intelligent choice. See, e.g., In re Montoya, 109 Wash. 2d 270, 280, 744 P.2d 340 (1987) (an Alford plea is valid when it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant).
A defendant may plead guilty and thereby consent to the imposition of a prison sentence even if he is unwilling or unable to admit participation in the acts constituting the crime. North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). If such a defendant later learns of a previously unknown serious consequence of that plea, which would have changed his calculations about the costs and benefits of standing trial, it may be manifestly unjust to hold the defendant to his earlier plea. Stowe, 71 Wash. App. at 188 (citing United States v. Russell, 222 U.S. App. D.C. 313, 686 F.2d 35, 40 (D.C. Cir. 1982)). Trial courts are, therefore, required to exercise extreme care at a plea hearing where an Alford plea is entered to ensure that the ...