# 201UUL23 tt*5ii

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JAMEL OMARI FIELDS, Appellant. No. 70036-7-1 DIVISION ONE

UNPUBLISHED OPINION FILED: July 28, 2014 Becker, J. — Ineffective assistance ofcounsel is a manifest injustice that 

### justifies the withdrawal of a guilty plea. To establish deficient performance of counsel, a defendant must overcome the presumption that counsel's 

### performance was adequate. Because the defendantdid not overcome that presumption, we affirmthe trialcourt's denial of his motion to withdraw. 

### On February 24, 2012, at 9:35 p.m., FranciscoVillegas was attacked and robbed by a group ofpeoplewhile walking along Second Avenue near University Street indowntown Seattle. Two people who witnessed the attackfrom across 

### the street called the police as itoccurred and reported thatthe group had moved
one block northward toward Union Street. Two bicycle officers who were nearby atthe time arrived at Second and Union almost immediately. They observed a 

### group offive people nearby, one of whom was wearing a black leather jacketwith
a Seahawks logo on it. Hearing thatthe witnesses described thejacketas moreNo. 70036-7-1/2 

### like a NASCARjacket, the officers continueddown towardsUniversity Street. By this time, otherresponding officers had heard from Villegas himself that the 

### person who hit and kickedhim was an African-American male "maybe wearing a Seahawksjacket." The bicycle officers returned to Second and Union and 

### detained the group they had seen previously. The person wearing the Seahawks jacket, an African-American male, was Jamal Fields. Abackpack and phone belonging to Villegas were found on the ground nearby. The bicycle officers detained the group. More officers arrived. Villegas
was broughtto the scene for a show-up identification. Villegas stated he was "absolutely positive" Fields was his attacker and thatthe others were the persons who were with Fields during the assault. Fields, when searched, did not have any property belonging to Villegas. 

### On February 29, 2012, the State charged Fields withone countof robbery inthe firstdegree. At this time, Fields was the defendant in a pending unrelated criminal case. Inthat case, Fields was charged with possession ofcocaine and forgery as a result ofevents thattranspired on October7, 2011. On July 24, 2012, two days into trial on this case, Fields entered into a negotiated global settlement. The State agreed to dismiss the cocaine charge and reduce the first degree robbery charge to second degree robbery in exchange for a guilty plea on both the robbery and forgery charges. Underthe plea agreement, the standard range ofover 70 months was reduced to a range of 22 to 29 months. The State agreed to recommend a low-end sentence of 22 months concurrent with the sentence recommended under the other causeNo. 70036-7-1/3


### number. Fields entered a plea to the robbery charge under North Carolina v. 

### Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Hepleaded guiltyto the forgery charge. The plea agreement stated that "this is partof an indivisible agreement" including both cause numbers. 

### On August 29, 2012, the trial court permitted withdrawal ofcounsel for Fields and instructed the Office ofPublic Defense to appoint new counsel. On December 14, 2012, Fields, represented by new counsel, filed a motion to withdraw his Alford plea. The motion was based on a claim for ineffective assistance ofcounsel. An expert on eyewitness identification had 

### reviewed the evidence and identified concerns that might have been used to undermine ajury's confidence inVillegas' ability to accurately identify Fields. Fields argued that his former attorney had failed to properly evaluatethe evidence identifying him as the robber and performed deficiently by failing to hire
an expert orotherwise challenge the reliability ofcross-racial identification. Fields alleged that he would not have entered the Alford plea if his attorney had told him thatthe weakness ofcross-racial eyewitness identification was a viable defense. On February 8, 2012, the court heard the motion. The State called George Sjursen, the attorney who represented Fields on the robbery charge. Sjursen testified that his trial strategy would have been to attackthe eyewitness identification of Fields by calling witnesses who thoughtthat anotherperson, Gregory Hughes, had committed the robbery:No. 70036-7-1/4 

### Q. When you came into court on the trial, did you feel like you were ready to proceed and attack—and to attack the State's case regarding identification? A. Yes, Ido. A. Well, because, numberone, there were two 

### eyewitnesses thatwere going to be called by the State thatwe 

### interviewed. Ithink actually the day of trial we actually finally got in touch with them and interviewed them that provided a different 

### description. Ithinkthey said specificallythatthey remembered the person wearing a NASCARtypejacket, and the alleged victimsaid thatthejacketwas a Seahawksjacket. And Ifeltthatthis was good information. On top ofthat Ihad subpoenaed—I was able to go back last night and check and Ihad subpoenaed Sirronald Hicks and Ibelieve a Ms. Turner. Ibelieve she went byAngel, Ithink that was the sister. Now, Ms. Turnerdidn't exactly see the incidentbut she did see—I think she did see Mr. Hughes there. And then Mr. Hicks described someone else as doing it. But these people were subpoenaed and Ithink Iprovided both counsel copies. 

### The courtdenied Fields' motion to withdraw his Alford plea. The court stated that Sjursen performed well in representing Fields and thatwhetheror not to hire an eyewitness identification expertwas a matter ofstrategy. Iam not sure at all that Ieven would have admitted an eyewitness expert, and Ido not believe thatthey're terribly persuasive. Ithink thatthe Supreme Court Justices who have opined on that are absolutely right. So my sense here is that Mr. Fields got a really good defense from a really good defense attorney who fought for him all the way. Following the State's recommendation, the court sentenced Fields to 22 months for the robbery charge and 3 months for forgery, to be served concurrently. On appeal, Fields argues thatthe trial court erred in denying his motion to withdraw because "defense counsel's failure to investigate orchallenge the cross-racial eyewitness identification constituted deficient performance of counsel."No. 70036-7-1/5 

### The State points out that the remedy soughtbyFields—withdrawal of his 

### plea to robbery—is unavailablebecause itwas part of an indivisible global plea agreement. State v.Turlev. 149 Wn.2d 395, 69 P.3d 338 (2003). UnderTurlev.


### a trial courtdoes not have the discretion to permit withdrawal of onlyone plea in
a global agreement. Turlev. 149Wn.2d at 399. The State contends that Fields' 

### appeal should be rejected out of hand because he moved to withdraw only the Alfordplea to the robbery charge. We need not decide whether Fields' failure to 

### move for withdrawal of the entire plea forecloses his appeal because his appeal lacks merit in any event. We review a trial court's denial ofa motion to withdraw for abuse of 

### discretion. State v. Jamison. 105 Wn. App. 572, 589-90, 20 P.3d 1010, review denied, 144Wn.2d 1018 (2001). "The court shall allow a defendantto withdraw the defendant's plea of guiltywheneveritappears thatthe withdrawal is necessary to correct a manifest injustice." CrR 4.2(f). A manifest injustice


### occurs when an attorney renders ineffective assistance ofcounsel while advising
a defendant on a plea bargain. State v. Taylor. 83 Wn.2d 594, 597, 521 P.2d 

### 699 (1974). Claims ofineffective assistance ofcounsel inthe plea bargain context are governed by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hill v. Lockhart. 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). To establish ineffective assistance ofcounsel, a defendant must prove that (1) trial counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudicedNo. 70036-7-1/6
the defendant. Strickland, 466 U.S. at 687. To establish deficient performance, the defendant must overcome the presumption that underthe circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689. To establish prejudice, the defendant must show thatthere is a reasonable probability that, butfor counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. In some cases, making cross-racial bias the focus of a challenge to eyewitness identification can be effective. While our Supreme Court has declined to adopt a general rule requiring instruction on the fallibility ofcrossracial identification, a trial court retains the discretion to give such an instruction. State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013). The trial court acknowledged that "the problems with eyewitness identification that are coming to light often affect people of color." Fields argues thatthe trial court mistakenly assumed that because 

### Villegas, a Hispanic, and Fields, an African-American, were both persons of color, the identification could not have been encumbered by cross-racial fallibility. What the court said was this: 

### This is not as good a case for challenging eyewitness identification as others Ihave seen. Although it is true thatthe identification here is cross-racial, it is also true that Mr.Villegas is a person ofcolor 

### himself. And secondly, this offense took place and the defendant was located literally within minutes—within 15 minutes interms of the identification procedure and soonerthan that interms of finding 

### him right inthe area ofwhere this offense took place wearing distinctive clothing and very near and inthe path of a backpackthat 

### belonged to Mr. Villegas, and that he obviously did know and positively identified as his own. Also the Courttook a very hard look atthe identification 

### procedure in this case. There was no suggestiveness by the officerNo. 70036-7-1/7
who took Mr. Villegas to the scene to make an identification. 

### There's no indication from anything Mr.Villegas said along the way that he was identifying based on clothing or identifying in a hasty way, and there was no reinforcement of his identification by the officer once he made the ID either. Defense counsel stated thatthe court's remark was "disconcerting" inthat crossracial identification can also be unreliable when the individuals who are of different races are both persons ofcolor. The court responded, "I know that. But Iwould point outthat a lot ofcross-racial identification issues have been with white people identifying black people, and that's not this case." On this record, Fields has not overcome the presumption that defense counsel provided effective assistance. It is not necessarily always a sound strategy to bring racial differences into a challenge to eyewitness identification. As the trial court emphasized, Villegas positively identified Fields as his attacker 

### almost immediately afterwards and the specific detail ofthe Seahawksjacket
was highly corroborative. Villegas' backpackwas found near Fields. Friends 

### who Fields had hoped would comeforward and identify Gregory Hughes as the robberdid not respond to counsel's efforts to contactthem, so there was no solid evidence of another suspect. To suggest underthese circumstances that 

### Villegas was mistaken because allAfrican-American males must have looked the
same to him would have posed a substantial risk ofalienating thejury. Defense counsel's duty to reasonably evaluate the evidence againstthe accused does not 

### require the attorney to inform a defendant ofevery possible defense. We conclude that the trial court did not abuse its discretion when it denied Fields' motion to withdraw his guilty plea.No. 70036-7-1/8

Affirmed.

WE CONCUR: 

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