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IN RE: the PERSONAL RESTRAINT Petition of Calvin CLEMENTS, Petitioner.
RULING DENYING REVIEW
¶ 1 Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), Calvin Clements pleaded guilty to residential burglary and fourth degree assault. The charges were based mainly on the report of Mr. Clements's former girlfriend, Amy Pendleton. Ms. Pendleton told police that when she was away one day, Mr. Clements came to her apartment while her children were at home, pounded on the door, entered through a window on which she had recently placed new locks, and removed some of her belongings. Ms. Pendleton knew Mr. Clements was trying to enter the apartment because her 14-year-old son called her as Mr. Clements was pounding on the door. Mr. Clements purportedly came by again after Ms. Pendleton had returned home and grabbed her arm, causing bruising. Ms. Pendleton's son gave police a statement that largely corroborated hers.
¶ 2 After Mr. Clements entered his plea, but before sentencing, Ms. Pendleton contacted defense counsel and claimed that the statement she had given the police was untrue. In a videotaped interview, Ms. Pendleton told counsel that Mr. Clements had permission to enter her apartment, that he had entered through the window on previous occasions, that she had never told him he could not enter that way, and that Mr. Clements had probably not stolen any of her property. Based on this statement, Mr. Clements moved to withdraw his plea. Ms. Pendleton appeared at the hearing but indicated she would assert her right to remain silent if called to testify. The trial court declined to view the videotape but allowed defense counsel to make an oral offer of proof. The court then denied the motion to withdraw the plea and sentenced Mr. Clements to 30 days confinement (converted to community service) and 24 months community custody.
¶ 3 Mr. Clements appealed to Division One of the Court of Appeals, but the appeal was eventually dismissed as abandoned. Mr. Clements then filed a personal restraint petition in the Court of Appeals, challenging the trial court's denial of his motion to withdraw his plea. In a published opinion, a panel of the court denied the petition. In re Clements, 125 Wash.App. 634, 106 P.3d 244 (2005). Mr. Clements now seeks this court's discretionary review. RAP 16.14(c); RAP 13.5.1
¶ 4 Mr. Clements contends, first, that the Court of Appeals applied the wrong standard of review. He argues that, since he entered an Alford plea, the court was required to find that the plea was supported by “strong” evidence independent of the evidence that Ms. Pendleton retracted. But Mr. Clements does not show that the court employed the wrong standard. He relies on the court's statement that, after deleting the recanted evidence from the certificate of probable cause, “the remaining evidence was sufficient to establish a factual basis for [the] plea.” Clements, 125 Wash.App. at 644, 106 P.3d 244. But the court was only recounting what the trial court had evidently concluded. Id. And even if the Court of Appeals held that the remaining evidence was “sufficient,” that is no indication that the court employed the wrong standard of review. Whatever the standard, the evidence must be “sufficient” to meet that standard. A review of the court's opinion shows that the court applied the appropriate standards, examining whether withdrawal was necessary to correct a “manifest injustice,” see CrR 4.2(f), and reviewing the factual basis for the Alford plea with particular care. See Clements, 125 Wash.App. at 640-41, 106 P.3d 244.
¶ 5 Moreover, contrary to Mr. Clements's claim, the Court of Appeals did not simply “agree” with the trial court that “unrecanted” evidence supported the plea. Rather, the court interpreted the trial court's decision as finding Ms. Pendleton's “recantation” unreliable. That, together with the independent evidence, led the court to conclude that Mr. Clements “failed to demonstrate that the trial court abused its discretion” in denying the motion to withdraw the guilty plea, Clements, 125 Wash.App. at 645, 106 P.3d 244. Mr. Clements demonstrates no obvious or probable error in the court's decision.
¶ 6 But Mr. Clements argues that a motion to withdraw an Alford plea, made before sentencing, should always be granted when the plea is based on accusations that are later recanted. He reasons that, because an Alford plea is based on an assessment of the likelihood of conviction, that assessment automatically changes when the sole or primary evidence is recanted, thus mandating withdrawal. In support of his argument, Mr. Clements relies on an Arizona decision, Duran v. Superior Court, 162 Ariz. 206, 782 P.2d 324 (1989). But Mr. Clement's reasoning breaks down when, as here, the trial court finds that the recantation lacks credibility. Mr. Clements offers no reason why a trial court, finding a recantation unreliable, should automatically grant a motion to withdraw an Alford plea. And in declining to follow Duran, a foreign decision, the Court of Appeals clearly did not err or depart from the usual course of proceedings. See Clements, 125 Wash.App. at 645 n. 5, 106 P.3d 244.
¶ 7 Finally, concerning the motion to withdraw, Mr. Clements contends that the trial court should have held an evidentiary hearing on the credibility of Ms. Pendleton's recantation. But Ms. Pendleton announced that she would assert her right to remain silent. Mr. Clements notes that a witness may claim the privilege only as to specific questions, and thus it cannot be known without holding a hearing whether Ms. Pendleton could have testified without incriminating herself. But Ms. Pendleton admitted in her taped statement that she had made a false police report. Mr. Clements does not explain what material question could have been asked of her that would not have triggered her privilege against self-incrimination.
¶ 8 On issues unrelated to the motion to withdraw the plea, Mr. Clements argues that his trial counsel was ineffective in not interviewing certain witnesses. But Mr. Clements does not address the Court of Appeals reasoning in rejecting this argument, much less show that it was wrong.
¶ 9 Mr. Clements also contends that his appellate counsel was ineffective in allowing his direct appeal to be dismissed as abandoned. But Mr. Clements, not his counsel, was responsible for the appeal being dismissed. His appellate attorney timely filed a notice of appeal. Mr. Clements then discharged his attorney, and thereafter he dealt directly with the Court of Appeals. That court granted a number of extensions of time to file an opening brief, the last two to Mr. Clements personally. The final extension came with an explicit warning that the appeal would be dismissed if no brief was filed by the new deadline. What happened was therefore exactly what Mr. Clements knew would happen, and in fact allowed to happen. Mr. Clements demonstrates no ineffective assistance of counsel.2
¶ 10 In sum, Mr. Clements does not show that the Court of Appeals obviously or probably erred or departed from the usual course of proceedings. Accordingly, the motion for discretionary review is denied.
/s/Geoffrey Crooks
GEOFFREY CROOKS, Commissioner
FOOTNOTES
1. The pleading is incorrectly captioned as State v. Clements, and is incorrectly designated as a petition for review.
2. After the Court of Appeals issued its mandate on direct appeal, Mr. Clements, with new counsel, moved to recall the mandate and reinstate the appeal. The Court of Appeals denied the motion, and I denied a motion for discretionary review of the court's decision. No. 73587-5.
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Docket No: No. 77035-2.
Decided: June 22, 2005
Court: Supreme Court of Washington.
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