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In re Miniken

March 31, 1997

IN RE THE PERSONAL RESTRAINT PETITION OF: DONALD W. MINIKEN, PETITIONER.


PER CURIAM. In this personal restraint petition, Donald Miniken challenges his 1990 convictions and exceptional sentences for 2 counts of first degree kidnapping and 1 count of first degree attempted extortion. We agree that Miniken's right to an appeal was denied. Because the issues in the appeal were fully briefed by counsel, we reinstate the appeal, accelerate review, and affirm the trial court's order denying Miniken's motion to withdraw his guilty pleas. The remaining issues in Miniken's petition are without merit.

The facts underlying Miniken's convictions are set forth in detail in his direct appeal and will be included here only when necessary to respond to his arguments. See State v. Miniken, No. 28048-1-I (December 19, 1994), unpublished decision noted at 76 Wash. App. 1046 (Miniken I). On July 18, 1990, Miniken was charged with 1 count of first degree kidnapping for the 1987 abduction of Vincent Mullally (count 1, the Mullally count) and with 1 count of first degree kidnapping and 1 count of attempted extortion for the 1988 abduction of John Farrell (counts 2 and 3, the Farrell counts). After the trial court denied his motion to sever the kidnapping counts, Miniken pleaded guilty to the Farrell counts; a jury subsequently found Miniken guilty of kidnapping Mullally as charged in count 1. Miniken was then sentenced to concurrent exceptional terms of 186 months on the kidnapping counts and 60 months on the attempted extortion count.

On March 21, 1991, Miniken filed a notice of appeal, challenging his conviction on count 1 and his exceptional sentences on all 3 counts. In February 1993, while the appeal was still pending, Miniken filed this personal restraint petition challenging his guilty pleas on counts 2 and 3. The personal restraint petition was then consolidated with the direct appeal.

Simultaneously with the personal restraint petition, Miniken filed a motion in the trial court to withdraw his guilty pleas to counts 2 and 3. On June 10, 1993, the trial court denied the motion and entered findings of fact and Conclusions of law in support of that decision. On August 30, 1993, Miniken filed an "amended" notice of appeal from the order denying the motion to withdraw his guilty plea. He subsequently submitted an "Appellant's Supplemental Opening Brief," arguing that the evidence failed to support the trial court's findings.

On December 19, 1994, this court affirmed Miniken's convictions. The court dismissed the consolidated personal restraint petition as untimely under RCW 10.73.090; the court also ruled that the "amended" notice of appeal from the order denying Miniken's motion to withdraw his guilty pleas was untimely and therefore declined to consider that appeal. The Supreme Court subsequently remanded the personal restraint petition to this court for consideration, but otherwise denied Miniken's petition for review. Following remand, Miniken supplemented the personal restraint petition with additional grounds for relief.

We first consider the arguments raised in Miniken's original petition, which was consolidated with his direct appeal. In order to obtain collateral relief by means of a personal restraint petition, Miniken must demonstrate either an error of constitutional magnitude that gives rise to actual prejudice or a nonconstitutional error that inherently results in a "complete miscarriage of Justice." In re Cook, 114 Wash. 2d 802, 813, 792 P.2d 506 (1990). Miniken bears the burden of establishing, by a preponderance of the evidence, that he was prejudiced by the alleged errors. Cook, 114 Wash. 2d at 814; In re Hews, 99 Wash. 2d 80, 89, 660 P.2d 263 (1983).

Miniken argues that he was denied effective assistance of counsel in conjunction with his guilty pleas on counts 2 and 3 (the Farrell counts) because trial counsel coerced him into pleading guilty on these counts after the trial court denied his motion to sever the kidnapping counts. In order to establish that he was denied effective assistance of counsel, Miniken must make two independent showings: (1) that trial counsel's performance was deficient; and (2) that he was prejudiced by counsel's deficient performance. In re Jeffries, 110 Wash. 2d 326, 331, 752 P.2d 1338 (1988); Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "In satisfying the prejudice prong, a defendant challenging a guilty plea must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." In re Riley, 122 Wash. 2d 772, 780-81, 863 P.2d 554 (1993) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).

Among other things, Miniken alleges that trial counsel: promised him he would be acquitted if he paid $75,000; enlisted the aid of his mother and ex-wife in pressuring him to plead guilty to counts 2 and 3 by misrepresenting to them the sentence he would receive and advising them that they would save $25,000 by not going to trial on these charges; disclosed to the prosecution, without his permission and without sufficient investigation as to the consequences, the identity of Mike Patricelli, who, Miniken maintains, committed the Mullally kidnapping; failed to attempt any plea negotiations on counts 2 and 3; told him that the trial Judge would be "very upset" if Miniken went to trial on all counts and would most likely give Miniken "the highest sentence possible"; and failed to explain the consequences of a guilty plea to counts 2 and 3, including the possibility of an exceptional sentence.

To the extent they are relevant, these factual allegations were resolved by the trial court in denying Miniken's motion to withdraw his guilty plea, and they will be discussed in conjunction with that decision. We note, however, that the record of Miniken's guilty plea belies any contention that his guilty pleas were somehow not knowing or voluntary.

Miniken's Statement of Defendant on Plea of Guilty establishes that he was informed of the maximum sentence for each crime and the standard range. The document noted that the State's sentencing recommendation was "unknown" and that the sentencing court was not bound by the State's recommendation and could go outside the standard range. When questioned in court, Miniken stated that he had reviewed the plea form with counsel and had read and understood everything. Miniken repeatedly acknowledged that he understood the rights he was waiving by pleading guilty, including the right to have the State prove each element at trial, and expressly denied that there had been any promises or threats that were not contained in the plea document. Miniken also acknowledged his understanding that the State was not making a sentence recommendation at this time and several times stated that he had no questions.

Miniken's conclusory allegations about improper coercion and pressure are insufficient to undermine the overwhelming evidence that his guilty pleas on counts 2 and 3 were knowing and voluntary:

When a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges that he or she has read it and understands it and that its contents are true, the written statement provides prima facie verification of the plea's voluntariness. When the Judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.

State v. Branch, 129 Wash. 2d 635, 642 n.2, 919 P.2d 1228 (1996) (quoting State v. Perez, 33 Wash. App. 258, 261-62, 654 P.2d 708 (1982)).

Miniken's arguments repeatedly fail to address or even acknowledge the strength of the evidence against him, including his confessions to all 3 of the charges. Under the circumstances, nothing in the record suggests that the guilty pleas were anything other than a reasonable tactical decision, made after the trial court's denial of the severance motion, to make the best of a bleak situation and keep the highly prejudicial facts of the Farrell counts from the jury in the Mullally trial, the count on which Miniken had the best chance of prevailing.

Miniken next alleges that trial counsel was deficient for failing to seek interlocutory review of the trial court's severance decision. Miniken fails, however, to make any showing that this omission ...


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