ill i 0 I L-" u IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. ALVIN WALKER, Appellant. No. 71748-1-1 DIVISION ONE

UNPUBLISHED OPINION FILED: February 8. 2016 „!rccD_.; *;;|G:5<

Spearman, C.J. —Alvin Walker appeals the denial of his motion to withdraw his 

### guilty plea. He argues that his plea was not knowing, intelligent, and voluntary. He also asserts that he received ineffective assistance of counsel because his attorneys had a conflict ofinterest. Finding no error, we affirm. FACTS 

### Walkerwas convicted by a jury ofsecond degree assault, felony harassment, 

### and second degree rape. The trial court imposed standard range sentences for the assault and harassment charges and an indeterminate term of 159 months to life on the rape charge. This court affirmed Walker's conviction. 

### Fernanda Torres, an attorney with the Innocence Project Northwest, filed a CrR 

### 7.8(b)(5) motion for relieffromjudgment on Walker'sbehalf. Themotion asserted that the performance of Walker'strial counsel was deficientbecausethe attorney (1)failed to request a material witness warrant to secure the testimony of a potential defense witness and (2)failed to review medical records that supported Walker's defense. About a week before the motion hearing, Torres and her co-counsel David Allen decided toNo. 71748-1-1/2 

### strike the part of the motion concerning the potential witness. In Torres's opinion, the amended motion was significantly weakerthan the original motion. Torres informed 

### Walker ofthe amendment and told himthat she did not expectto prevail on the CrR 7.8 motion. Walker authorized Torres to attempt to negotiate a settlement withthe State. The day before the motion hearing, the State offered a plea ofassault inthe first degree and rape inthe third degree, which would result in a determinate sentence of 138 months. Torres discussed the offer with Walkerfor about two hours that morning. A large part oftheir discussion concerned the difference between a determinate sentence, under which Walker was certain to be released at the end of his term, and an indeterminate sentence, under which Walker could serve life in prison ifthe indeterminate sentence review board found that he was likely to reoffend. Torres and Allen met with Walker again that afternoon. Walker authorized them to accept the offer and Torres prepared the plea documents. On the morning ofthe motion hearing, Torres reviewed the documents with 

### Walker, which included a straight plea to the assault charge and an Alford plea1 to the

sex offense. A document titled "ExhibitA" was attached to both pleas. Exhibit A included 

### statements addressing Walker's right to claim ineffective assistance ofcounsel and expressing satisfaction with his attorneys: Pursuant to this plea agreement, Iagree to waive any appeal of my conviction or imposition of a standard range sentence on the amended charges.
. . . Iunderstand this does not include a waiverto a claim of ineffective assistance of counsel. I am satisfied with the representation and counsel I have received from my attorneys, Fernanda Torres and David Allen. Ialso understand that by pleading

1 Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a defendant may, under some circumstances, enter a guilty plea withoutadmitting hisguilt. Washington adopted the Alford holding in State v. Newton. 87 Wn.2d 363, 552 P.2d 682 (1976). 2No. 71748-1-1/3 

### guilty tothese charges, Iam agreeing to the dismissal of my CrR 7.8(b) motion. 

### Clerk's Papers (CP) at 366. (Emphasis added.). 

### Following her meeting with Walker, Torres reviewed the plea paperwork with the State. The State objected to the sentence in Exhibit Athat stated "I understand this does not include a waiver to a claim of ineffective assistance ofcounsel." CP at 406. 

### Torres blacked out that sentence. Torres met with Walker again and Walker signed the plea documents. 

### Atthe plea colloquy, Walker stated that he understood the plea, adopted the 

### factual statements as his own, and was not acting inresponse to threats or promises. He stated that he agreed with Exhibit A and did not need more time to consult with his lawyer. After finding thatWalker's decision was knowing, intelligent, and voluntary, the court accepted his guilty plea. Later that same day, Walker sent a letterto the trial court asking to withdraw his plea. After the court appointed new counsel, Walker argued that the plea was not voluntary because of the short time he had to consider the offer and because his attorneys exaggerated the possibility that he would spend life in prison under his indeterminate sentence. He argued that the plea was not knowing because he did not understand the rights he relinquished in Exhibit A. He also argued that the sentence in Exhibit A that asserted his satisfaction with the representation he received from his attorneys demonstrated that his attorneys had a conflict of interest. Atthe hearing on Walker's motion to withdraw his guilty plea, Torres testified to her meetings withWalker during plea negotiations. She stated that she reviewed Exhibit A withWalker after striking the sentence concerning Walker's right to claim ineffectiveNo. 71748-1-1/4 

### assistance ofcounsel and explained to him that striking the sentence had no effect. Torres also stated that the sentence in ExhibitAexpressing Walker's satisfaction with representation was intended to make itmore difficult forWalkerto prevail on a claim of ineffective assistance ofcounsel. Torres stated that she did not believe the sentence had any practical effect. She also stated that, in retrospect, she should have stricken the 

### expression ofsatisfaction when she struckthe sentence concerning Walker's right to claim ineffective assistance of counsel. The trial court considered Torres's testimony, Walker's declaration, the briefing of both parties, and the recording ofthe plea hearing. The court denied Walker's motion to withdraw his guilty plea because itfound that he failed to demonstrate a manifest injustice. Walker appeals.

DISCUSSION Walker argues that the trial court erred in denying his motion to withdraw his guilty plea. A trial court's decision on a motion to withdraw a guilty plea is reviewed for abuse of discretion. State v. Lamb. 175 Wn.2d 121, 127, 285 P.3d 27 (2012) (citing ]n

re Pers. Restraint of Cadwallader. 155 Wn.2d 867, 879-80, 123 P.3d 456 (2005)). A trial court abuses its discretion if its decision "is manifestly unreasonable or based upon 

### untenable grounds or reasons " State v. Powell, 126 Wn.2d 244, 258, 893 P.3d 615 (1995). To prevail in a motion to withdraw a guilty plea, a defendant mustestablish that withdrawal ofthe plea is necessary to correct a manifest injustice. CrR 4.2(f); State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). A manifest injustice may be found if the defendant did not receive effective assistance of counsel, the plea was not ratifiedNo. 71748-1-1/5 

### bythe defendant, the plea was involuntary, or the prosecution breached the plea agreement. Taylor, 83 Wn.2d at 597. Walker claims that a manifest injustice exists in this case because his plea was involuntary and because he received ineffective assistance ofcounsel. We address each claim in turn. A "strong presumption" ofvoluntariness arises when a defendant has admitted to reading, understanding, and signing a plea form. State v. Smith, 134 Wn.2d 849, 852, 

### 953 P.2d 810 (1998). Adefendant's statement on the record that he is entering the plea voluntarily is "'highly persuasive.'" State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984) (quoting State v. Frederick, 100 Wn.2d 550, 556, 674 P.2d 136 (1983)). A "bare allegation" ofcoercion in a defendant's affidavit is not sufficient to overcome such "highly persuasive" evidence, jd. The timing of a defendant's motion to withdraw a guilty plea may be considered, but is only given weight ifthe motion is made promptly after the discovery of previously unknown consequences or information. State v. A.N.J., 168 Wn.2d 91, 107, 225 P.3d 956 (2010). Walker argues that his plea was involuntary because his attorneys improperly pressured him to plead guilty and because he did not knowingly and intelligently enter the plea. He first asserts thatTorres and Allen coerced his decision to plead guilty by misrepresenting his chances ofprevailing on the CrR 7.8 motion, equating his indeterminate sentence with life in prison, and by failing to allow him sufficienttime to considerthe plea offer. Walker contends that the fact that he asked the court to 

### withdraw his guilty plea within hours ofthe plea hearing also supports the conclusion thatthe plea must be set aside to correct a manifest injustice.No. 71748-1-1/6 In reaching its decision, the trial court considered Walker's statements on the 

### record that he understood the plea, did notneed more time, and was entering the plea voluntarily. The court considered the timing ofWalker's request and the statements in 

### his declaration. The court heard Torres's testimony and considered the length of time thatWalker had to review the plea offer, the number and duration ofmeetings with his attorneys, and the topics discussed during those meetings. The court found Walker had 

### not shown that his decision to plead guiltywas coerced. Itfurtherfound that although Walker's requestto withdraw the plea occurred within hours ofthe plea hearing, that fact was entitled to no weight because the request was not based on previously unknown consequences or information. Walker also argues that his decision to plead guilty was not knowing and intelligent because he did not understand the effect ofthe change to Exhibit A. He challenges the portion of Finding ofFact number six that states, "Torres reviewed exhibitA with Walker after the waiver language was stricken and explained to him that the stricken language did not change the rights he was waiving.
.. ." CP at406. Walker contends that when Torres reviewed Exhibit A with him the document included the
sentence: "I understand this does not include a waiver to a claim of ineffective assistance ofcounsel." jd. He asserts that striking the sentence affected his rights on 

### appeal, Torres did not explain the significance ofthe change, and he thus waived a right unknowingly. Walker's argumentfails because the deleted sentence did not change 

### Walker's rights or the consequences of his plea. The sentence merely stated that Walker understood that he had the right to claim ineffective assistance ofcounsel. Deleting the sentence did not waive the right.No. 71748-1-1/7 

### Walker's assertion that Torresdid notexplain the effect ofdeleting the sentence 

### is notsupported bythe record. Afinding offact isupheld on appeal ifitissupported by substantial evidence. A.N.J., 168 Wn.2d at 107.Walkerargues that Torres stated that she did not specifically remember explaining the amendment to Exhibit A and that she only said she "would have" explained it. Brief ofAppellant at 19-20. ButTorres 

### consistently and repeatedly stated that she explained the sentence concerning the right to bring a claim of ineffective assistance ofcounsel and that removing the sentence had no effect. Although she frequently used the conditional tense, her testimony as a whole does notexpress uncertainty. Torres did not specifically remember explaining the sentence expressing Walker's satisfaction with counsel, but she did remember explaining the sentence concerning his right to claim ineffective assistance ofcounsel. 

### We conclude that substantial evidence supports the trial court's finding that Torres explained the amendment to Exhibit A. The trial court considered all evidence before itand based its ruling on the correct legal standard. Walker's statements atthe plea colloquy and Torres's testimony support the conclusion that his decision to enterthe plea was knowing, intelligent and voluntary. The denial ofWalker's motion is thus not "manifestly unreasonable or based upon untenable grounds . . . ." Powell, 126 Wn.2d at 258. The trial court did not abuse its discretion. Walker next argues that Exhibit A demonstrates that he received ineffective assistance of counsel because Torres and Allen had a conflict of interest. We review a claim of ineffective assistance ofcounsel de novo. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 347-48, 325 P.3d 142 (2014). A conflict of interest is not a per se violationNo. 71748-1-1/8 

### of the right to effective assistance ofcounsel. Id Adefendant must show both that 

### counsel actively represented conflicting interests and that the conflictadversely affected counsel's performance, jd. at 348-49 (citing Cuvler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)). To establish that a conflictexisted and negatively 

### impacted performance, the defendant must point to "specificinstances in the record" State v. Graham, 78 Wn. App. 44, 55, 896 P.2d 704 (1995) (citingState v. Martinez. 53 

### Wn. App. 709, 715, 770 P.2d 646 (1989)). Review ofcounsel's performance is highly deferential. Gomez. 180 Wn.2d at 348 (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). 

### Walkerargues that Torres and Allen violated the rules of professional conduct 

### (RPCs) regarding conflicts ofinterestandprospective limitations onliability. TheRPCs "do not'embodythe constitutional standardfor effective assistance ofcounsel,'" but 

### they doserve as guidelines "fordetermining what is reasonable." Gomez, 180Wn.2d. at 349 (quoting Statev. White, 80Wn. App. 406, 412-13, 907 P.2d 310(1995)). Under RPC 1.7(2), aconcurrentconflictofinterests exists if"there is a significantriskthatthe 

### representation ofone ormore clientswill bematerially limited
... by apersonal interest ofthe lawyer." Under RPC 1.8(h), "alawyershallnot... make an agreement 

## prospectively limiting thelawyer's liabilityto aclientfor malpractice unless permitted by law and theclient isindependently represented by a lawyerin making theagreement." 

### Walkerargues thattheexpression ofsatisfaction in ExhibitAdemonstrates that 

### his attorneys improperly soughttoprotecttheirpersonal interests. Walkerassertsthat Torres's and Allen's interest in insulating themselves adversely affected their 

## performance becausetheyprovided inaccurate and misleading advice and allowed him

8No. 71748-1-1/9 insufficient time to considerthe plea. He also contends that, by including the statement that he was satisfied with their performance inthe plea documents, Torres and Allen 

### effectively required him to waive his right to claim ineffective assistance ofcounsel as part of his plea bargain. 

### We reject his argument because, while the expression of satisfaction isevidence thatWalker's attorneys soughtto protectthemselves from allegations of ineffective assistance, Walker does not show that this interest amounts to a conflictthat adversely 

### affectedperformance. Walker's assertion that Torres and Allen gave him inaccurate and 

### misleading information is a bare allegation, unsupported by"specific instances in the record." Graham, 78 Wn. App. at 55. Walker makes no argument as to how his 

### attorneys' selfinterestcaused theallegedlydeficientperformance. Walkeralsofails to show that the expression ofsatisfaction preventedhim from claiming ineffective assistance of counsel or amounted to a prospective limitation on liability in violation of RPC 1.8(h). 

### Theexpression ofsatisfaction served no purpose and, as Torres stated, itwould have been wiser not to include it in the plea documents. But the sentence does not 

### establish that Walker's attorneys had a conflictof interest that adverselyaffected their 

## representation orthattheyentered into an improperprospective limitation ofliability. We hold that the trial court did not err in denying Walker's motion to withdraw hisguilty plea based on ineffective assistance of counsel.No. 71748-1-1/10

Affirmed.

WE CONCUR: 

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