Appeal from Superior Court of Snohomish County. Docket No: 94-1-01316-0. Date filed: 06/27/95. Judge signing: Hon. Anita L. Farris.
PER CURIAM. -- Roger Mathison challenges the trial court's denial of his motion to withdraw his plea, claiming that his plea was entered without his consent and that his counsel's failure to pursue an Alford *fn1 plea was ineffective assistance. Additionally, Appellant challenges the community service condition that he submit to polygraph examinations when the scope of the examination is undefined. We affirm the trial court's ruling on the motion to withdraw the plea because Appellant did not meet his burden of proving that a manifest inJustice occurred. We remand the judgment and sentence for modification of the polygraph examination condition.
Mathison was charged with a total of 10 sex offenses against three separate child victims. *fn2 Mathison was initially represented by a public defender who discussed Mathison's situation with him and explained options at the time, including an Alford plea. Mathison then retained private counsel who interviewed all major witnesses, met with Mathison, and discussed the legal issues and implications of the case. Counsel advised Mathison that, given the likelihood the State would successfully join all three causes for trial, it was in his best interest to resume plea negotiations. Counsel recommended against seeking an Alford plea because the court would inspect affidavits for probable cause to determine whether the plea was grounded in fact and would likely impose an exceptional sentence based on the information contained in the affidavits. See RCW 9.94A.390(2)(g) *fn3 (authorizing a sentence outside the standard range when "the offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time"). Mathison authorized his counsel to seek a straight plea. Following negotiations, Mathison pleaded guilty to one count of rape of a child in the first degree and two counts of child molestation in the first degree.
Before sentencing, Mathison entered a motion to withdraw his guilty plea, claiming ineffective assistance of counsel and that his plea had been made without his consent. The trial court denied the motion, finding that the plea was made voluntarily, knowingly, and without threats or promises apart from the plea agreement. Mathison was sentenced to a standard range sentence of 240 months followed by two years of community supervision during which he must submit to polygraph tests at the direction of the community corrections officer. Mathison appeals the denial of the motion to withdraw his plea and the portion of the sentence requiring him to submit to polygraph tests.
I. TRIAL COURT COMMITTED NO ERROR DENYING APPELLANT'S
MOTION TO WITHDRAW HIS GUILTY PLEA.
A. Appellant Made His Plea Voluntarily. Appellant argues that his guilty plea should be withdrawn to correct a manifest inJustice which occurred when his counsel forced him to enter a straight plea. Appellant maintains that his counsel failed to explore the possibility of an Alford plea and placed pressure on him to sign the straight plea. Mathison argues that, although counsel had "a well-founded, strategic reason for recommending against the Alford plea," his counsel wrongly made the decision to pursue a straight plea without his consent.
The court must allow a guilty plea to be withdrawn whenever it appears withdrawal is necessary to correct a manifest inJustice. CrR 4.2(f) A manifest inJustice is one that is obvious, directly observable, overt, and not obscure. State v. Zumwalt, 79 Wash. App. 124, 128, 901 P.2d 319 (1995) (quoting State v. Saas, 118 Wash. 2d 37, 42, 820 P.2d 505 (1991); State v. Taylor, 83 Wash. 2d 594, 596, 521 P.2d 699 (1974)). This places a demanding burden on a defendant, but CrR 4.2(d)(e) and (g) are designed to insure a defendant's rights are protected before a plea is entered. Taylor, 83 Wash. 2d at 596. Before accepting a guilty plea, the trial court must determine there is a factual basis for the plea, and that the plea was made voluntarily, competently, and with an understanding of the consequences. Taylor, 83 Wash. 2d at 596. Once the court determines these conditions have been met, it can accept the plea. Having met the comprehensive protective requirements to accept the guilty plea, "trial courts should exercise greater caution in setting aside a guilty plea . . . ." Taylor, 83 Wash. 2d at 597.
Mathison claims that he did not wish to plead guilty but wanted to enter an Alford plea before, during, and after the plea hearing. The trial court was unconvinced. The court found:
Mathison understood what [his counsel] told him, understood the strategy, understood he could do an Alford plea if he wished to do so, and by doing that, could maintain his innocence.
More importantly, at all times, Mr. Mathison knew that there was nothing his attorney could do to force him to plead guilty. . . .There is no suggestion here that he in any way believed that he had to say he was guilty or had to enter a plea of guilty, only that he very well understood if he did not do that, he would be going to trial on ten counts and/or pleading to ten counts, rather than three, and there would not be an agreed recommendation and that the State would seek an exceptional sentence.
Additionally, the court found that Mathison was competent at the time he made his plea. The court read the factual basis for each charge to him aloud and he admitted each one without hesitation and pleaded guilty to each one. He was further advised of his right to go to trial and understood that by entering the plea, he was waiving certain rights.
Having found that Mathison entered his plea voluntarily, and that a factual basis existed to support his guilty plea, the trial court found no manifest inJustice and denied his motion. The record entirely supports this Conclusion and the court's underlying findings.
B. Counsel's Assistance Was Not Ineffective. Mathison nevertheless argues that his counsel's failure to negotiate an Alford plea constituted deficient performance that prejudiced the outcome of the plea proceedings. He further argues that the outcome of the plea hearing would have been different if he ...