~U~T~FAPPEALS ~1V I STATE OF WASHt~N~4 

### ZOI9J1JL—I ANIO:2

STATE OFWASHINGTON No. 79708-5-I DIVISION ONE ORDER DENYING MOTION FOR RECONSIDERATION, WITHDRAWING OPINION, AND SUBSTITUTING OPINION
The appellant Michael P. Haxton, filed a motion for reconsideration ofthe opinion filed on April 15, 2019. The respondent, the State ofWashington, hasfiled
a response. The court has determined thatsaid motion should be denied and that the opinion filed on April 15, 2019 shall bewithdrawn and a substitute unpublished opinion befiled. Nowtherefore, it is hereby ORDEREDthatthe motion for reconsideration is denied; it isfurther ORDEREDthatthe opinion filed on April 15, 2019 iswithdrawn and a substitute unpublished opinion shall befiled.



# CL~Ae IN THE COURT OFAPPEALS OFTHE THE STATE OFWASHINGTON, 

### )

Respondent,
v. 

### ) MICHAEL PAUL HAXTON, 

### )

Appellant.FILED 7/1/2019 CourtofAppeals Division I State ofWashington

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON THE STATE OFWASHINGTON, 

### ) No, 79708-5-I

Respondent, 

### ) DIVISION ONE
v. 

### ) UNPUBLISHED OPINION MICHAEL PAUL HAXTON,

Appellant. 

### )

__________________________________ FILED: July 1, 2019 HAZELRIGG-HERNANDEZ, J.

— Michael P. Haxton pled guiltyto one count of attempted rape of a child in the second degree. He seeks reversal, arguing that he should have been allowed towithdraw his guilty plea underCrR 4.2(f) because he was affirmatively misinformed ofthe maximum sentence that he faced attrial byhisassigned counsel. In astatementofadditional groundsforreview, heargues that counsel was ineffective atthe hearing on the motion to withdraw because he failed to introduce certain evidence. Because Haxton has not carried his burden to show manifest injustice resulted from the plea and cannotshow prejudice from counsel’s performance, we affirm. FACTS On September 7, 2016, Michael P. Haxton began communicating with a woman who he believed was the motherofthree young children ages 6, 11, and 12. He indicated that he was interested in participating in sexual acts with theNo. 79708-5-1/2

children and described specific acts that he planned to carry out. He said that he wanted to meet the children and that he would bring gifts including candy, nail polish, a stuffed animal, and a ball. Haxton came to the address thatthe woman had told him was her residence and was placed underarrest. He had candy, nail polish, astuffed animal, and a ball in his car. Haxton was charged with two counts ofattempted rape ofa child in thefirstdegree and one count ofattempted rape of
a child in the second degree. At the change of plea hearing on June 5, 2017, the court asked Haxton if he had gone over the statement of defendant on plea of guilty, prosecutor’s statement of criminal history, and offender score sheet with his attorney, Robert Quillian. Haxton responded that he had. The court informed Haxton that the standard sentencing range would be 58.5 months to 76.5 months to life imprisonment and he indicated he understood. He also indicated the he understood that the other two charges would be dismissed if the plea was accepted. The court clarified thatthe State was recommending a sentence of60 months to life imprisonment on the remaining count and Haxton indicated that he understood. Haxton then entered an Alford1 plea ofguiltyto count 3, attempted rape of
a child in the second degree. The court asked if he was making the plea freely and voluntarily and Haxton responded that he was. The court noted that he had theassistance ofcounsel and had made afree and voluntarypleaofguiltyto count 3, then found Haxton guiltyas charged. The Statethen movedto dismissthe other

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
-2-No. 79708-5-1/3

two counts and the courtgranted the motion. The statementofdefendanton plea ofguiltytosexoffense, which includedthestandard sentence range of58.5to76.5 months to life for count three and the prosecutor’s sentence recommendation of 60 monthsto life, was signed by Haxton and filed the same day. The prosecutor’s statement of criminal history and attached offender score sheet, also signed by Haxton and filed the same day, showed an offender score of 0 and circled the corresponding handwritten sentence range of“58.5—76.5.” On July 17, 2017, Haxton filed a prose motion to withdraw his pleawith no attached briefing. Quillian withdrew as Haxton’s counsel on July 31, 2017. His second attorney, A. Christian Cabrera, filed a motion to withdraw the guilty plea and supporting memorandum on October 17, 2017. This motion argued that Haxton should be allowed to withdraw his plea ofguilty because itwas necessary to correct a manifest injustice. Specifically, Haxton claimed that he had been denied effective assistance ofcounsel because hisfirstattorney, Quillian, failed to give him adequate legal advice, failed to inform him ofthe sentence he faced at trial, failed to properly investigate his case, and coerced him into pleading guilty. Therefore, Haxton argued that he did not enter the guilty plea knowingly, voluntarily, and intelligentlyand he should be permitted to withdrawthe plea. Haxton filed another pro se motion to withdraw the plea on October 25, 2017, on the grounds that he had received ineffective assistance of counsel and the plea was not voluntary because Quillian had subjected him to extreme levels of duress. In an attached handwritten affidavit, Haxton stated that Quillian had miscalculated his offenderscore and told him that hewould be sentenced to 20to

-3-No. 79708-5-1/4

22 years in prison if he was convicted on all counts. Haxton also alleged that Quillian refused to investigate the “mechanism that was created within the Net Nanny operation that allows officers to systematically frame certain individuals.” Haxton alleged that Quillian failed to investigate his reports of “tampering with multiple pieces of evidence in an obvious manner, obvious instances of perjury, and the introduction offraudulent document [sic] in court.” Haxton claimed that Quillian “constantly laughed at [him] for [his] fantasies in practicallyevery meeting [they] ever had,”subjected him to a competencyevaluation “to intimidate [him] and to damage [his] credibility,” and lied to him repeatedly. In a subsequent letterto the court, Haxton alleged thatthe motion filed by Cabrerawas insufficientand did not accurately reflect his arguments as to whythe court should permitthe plea to be withdrawn. Cabrera was permitted to withdraw as Haxton’s counsel after advising the court ofa breakdown in communication. On December 18, 2017, the court held a hearing on the motion at which Haxton was represented by histhird attorney, Kevin Griffin. Griffin asked the court to find that a manifest injustice occurred or resulted when Haxton entered a plea ofguilty because he had not received effective assistance ofcounsel and the plea
was not madevoluntarily. Haxton testifiedthatthe prospectoffacing over20years in prison if he was convicted of all three counts at trial was “a big factor” in his decision to plead guilty. He testified that he would have felt differently aboutthe plea offer if he had known he was actuallyfacing 10 to 13.5 years if convicted of all three counts attrial “because ofthefactthat it’s an indeterminate sentence and that if[he] did not pass the indeterminate sentencing review once with the State’s

-4-No. 79708-5-115

deal, it would be ten years, which is

. . . in the range ofthe sentence if [he] had gone to trial.” He also testified that he did not feel that his plea was voluntary because he felt that he had no other option but to plead guilty. Haxton testified that he had never seen the written plea offer before but he ‘knew what the plea deal was.” Haxton said that he asked Quillian to hire an investigator to examine a discrepancy between the advertisement in the discovery packet and the one to which he had responded. He felt that this was crucial to his defense strategy. However, Haxton said that Quillian refused to hire an investigator, claiming that there was not time to conductthe investigation before the deadline to accept the plea offer. Hetestified thatQuillian told him thatthe State could withdrawthe plea offer if Haxton asked forsubstitute counsel. Thetrial courtdenied Haxton’s motion towithdraw his guiltyplea. The court noted that ‘[i]twould have been nice to have Mr. Quillian’s testimony here today, butthe Courtwas leftwith only Mr. Haxton.” In its verbal ruling, the court noted: The Court is skeptical that Mr. Quillian would have missed the range having been provided with the plea offer by the State. I am not prepared to makeafinding thathedid not. I am not preparedto make afinding whetherhe did orhe didn’t makethat representation. Ithink there are reasons to question both the recollection and the motivations of Mr. Haxton in his testimonytoday but notsufficientto disregard everything Mr. Haxton said. Mr. Haxton hastestified about otheraspects in awaythatdoes not indicate this is afabrication, but even without making afinding as towhether Mr. Quillian did ordidn’t make that representation, the Court concludes that there has been an insufficient showing that Mr. Haxton would not have pled guilty if he had been told 13 years instead of20. Again, that is based both onthe Court’sevaluation of Exhibit2, thetestimonyfrom Mr. Haxton, as well as the delta between 13 years and 60 months, all in the context of course ofwhether or notthe bar of manifest injustice has been reached.

-5-No. 79708-5-1/6

The court entered written findings offact and conclusions of law, including the following: 16. The defendant has alleged that Mr. Quillian may have provided him with an incorrect possible sentence range if convicted as originally charged. The court makes no finding that Mr. Quillian did, or did not, provide incorrect information. The court is skeptical that Mr. Quillian would have misrepresented the range given the plea offerdocumentation he possessed atthetime. 17. Based on the court’s observations ofthe content and demeanor ofthe defendant while testifying, there are reasons to question his recollection and motivations. 19. The gap between the sentence range thatthe defendant stated Mr. Quillian provided him and the actual sentence range is not large enough to demonstrate that the defendant would not have entered the guilty plea. 20. There has been an insufficientshowing thatthe defendantwould not have entered the guilty plea with the accurate information, assuming, without deciding, thatthe information was incorrect. Haxton was sentenced to an indeterminate sentence of 60 months to life imprisonment. He timelyappealed. DISCUSSION Haxton contends thatthe court erred in denying his motion to withdraw his guiltyplea because he received ineffective assistanceofcounsel from Quillian and his pleawas notvoluntary. In astatementofadditional groundsfor review, he also contendsthat he was denied effective assistance ofcounsel when Griffin failed to introduce certain evidence atthe hearing on the motion. Because he cannotshow
a manifest injustice resulted from his plea of guilty or prejudice from Griffin’s performance, we affirm.

-6-No. 79708-5-U7

Motion toWithdraw Plea ofGuilty “Due process requiresthata defendant’s guilty plea be knowing, voluntary, and intelligent.” State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). A defendant who enters a guilty plea waives a number of important constitutional rights in doing so, such as the right to ajury trial, the right to confront accusers, and the privilege against self-incrimination. Statev. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). Atrial court shall not accept a plea ofguiltythat is not made voluntarily, competently, and with an understanding ofthe nature of the charge and the consequences ofthe plea. CrR 4.2(d). Motions to withdraw a guilty plea are usually reviewed for abuse of discretion. State v. A.N.J., 168 Wn.2d 91, 106, 225 P.3d 956 (2010). However, when the motion is based on ineffective assistance of counsel stemming from claimed constitutional error, we review the denial de novo. k1. at 109; State v. Buckman, 190Wn.2d 51, 57, 409 P.3d 193 (2018). Trial courts must allow a defendant to withdraw a guilty plea “whenever it appears that the withdrawal is necessary to correct a manifest injustice.” CrR 4.2(f). “A ‘manifest injustice’ is ‘an injustice that is obvious, directly observable, overt, and not obscure.” State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). The Washington Supreme Court has found that a manifest injustice results where a defendantwasdenied effective counsel, the pleawas not ratified bythe defendant, the plea was involuntary, orthe plea agreementwas not kept bythe prosecution.

-7-No. 79708-5-1/8

State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996) (citing Saas, 118 Wn.2d at42). A defendantwho seeks to withdraw a plea ofguilty plea bears the burden to meet the “demanding standard” imposed by CrR 4.2(f). Saas, 118 Wn.2d at42 (citing Taylor, 83 Wn.2d at 596). A. Voluntariness Haxton contendsthat his plea ofguiltywas invalid because itwas based on affirmative misinformation that he received from Quillian aboutthe consequences he faced at trial. A plea is knowing and voluntary only when the defendant understands the consequences of pleading guilty, including possible sentencing consequences. Buckman, 190 Wn.2d at 59. A defendant’s signature on a plea statement is strong prima facie evidence of a plea’s voluntariness. Branch, 129 Wn.2d at642, 642 n.2. “When [a]judge goes on to inquire orally ofthe defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption ofvoluntariness is well nigh irrefutable.” Id. at 642 n.2 (quoting State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982)). Something more than a defendant’s “bare allegation” is required to overcome this highly persuasive evidence ofvoluntariness. State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984). A plea ofguilty is involuntary when the defendant has received affirmative misinformation about the sentencing consequences of the plea. See Buckman, 190 Wn.2d at 59. In State v. Buckman, the Supreme Court concluded that the defendant’s guilty plea was involuntary because he was misinformed by defense counsel, the prosecutor, and thejudge that he was facing life imprisonment if he

-8-No. 79708-5-1/9

lost at trial when the actual maximum sentence he faced was 114 months imprisonment. ~ at58. The State listed the erroneous maximum sentence on the plea statement and the court informed the defendant of the incorrect maximum during the plea colloquy. ~ at 57. The Supreme Courtfound that Buckman was ‘plainly misinformed” aboutthe maximum sentence hefaced attrial. k~. at 59. Here, Haxton has not proven that he was affirmatively misinformed about the consequences of his guilty plea. He testified atthe hearing on the motion that Quillian told him hefaced a maximum sentence ofover20 years if he wenttotrial
on all three counts. The record contained evidence that he had repeated this
erroneous maximum range to a competency evaluator four months prior to the entry of the guilty plea. However, unlike Buckman, Haxton was not “plainly misinformed” ofthe maximum sentence he faced attrial bythe court orthe State. The plea statement that he signed did not include the maximum sentence if convicted on all three counts, but listed the correct sentencing range of 58.5 to 76.5 months underthe amended information. Haxton specifically indicated to the court during the plea colloquythat he understood the sentencing range to be 58.5 to 76.5 monthsforthe proposed resolution. Thetrial courtwas not convinced that Quillian had affirmatively misinformed Haxton of the sentencing consequences and noted that it had reason to question the credibility of Haxton’s testimony. Haxton has not presented any more evidence than a “bare allegation”that hewas misinformed, which is not sufficientto carry his burden underCrR 4.2(f).

-9-No. 79708-5-1110 B. IneffectiveAssistance ofQuillian Haxton also argues that the affirmative misrepresentations about the consequences ofhis guilty plea constituted ineffective assistance ofcounsel such that a manifest injustice resulted. The test for ineffective assistance of counsel during the plea process is the same as that detailed in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re Cross, 180 Wn.2d 664, 705, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). A defendant must show both deficient performance by counsel and resulting prejudice in orderto prevail on a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 687. When alleging ineffective assistance of counsel “[un the context of a guilty plea, the defendant must show that counsel failed to substantially assist him in deciding whetherto plead guilty and that butforcounsel’sfailureto properlyadvise him, he would not have pleaded guilty.” Cross, 180 Wn.2d at 705—06 (citing State v. McCollum, 88Wn. App 977, 982, 947 P.2d 1235 (1997)). ‘Effective assistance of counsel includes assisting the defendant in making an informed decision as to whether to plead guilty or to proceed to trial.” A.N.J., 168 Wn.2d at 111. Representation by counsel is presumed effective. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Here, Haxton alleges that he was denied effective assistance of counsel because Quillian affirmatively misinformed him ofthe sentencing range hefaced if convicted at trial. However, as noted above, he has not presented sufficient evidence that he was actually misinformed about the sentencing consequences.

-10-No. 79708-5-Ill 1

Accordingly, he has not shown deficient performance by Quillian and his claim of ineffective assistance ofcounsel fails. Because Haxton was not ableto showthat withdrawal ofhis guilty pleawas necessaryto correcta manifest injustice, the trial courtdid not err in denying his motion. II. Ineffective Assistance ofGriffin In astatementofadditional grounds, Haxton contendsthathisthird defense attorney, Griffin, provided ineffective assistance byfailingto introducecertain items atthe evidentiary hearing on the motion towithdrawthe plea. Specifically, Haxton contends that Griffin should have entered the report of his first competency evaluation and the transcript of a jail call between Haxton and his mother as exhibits in supportof his motion. As noted above, an appellant must show that counsel’s performance was deficient and that hewas prejudiced bythis deficient performance. Strickland, 466 U.S. at687. Again, there is a strong presumption thatcounsel’s performancewas not deficient. McFarland, 127 Wn.2d at 336. An appellant can rebut this presumption if there was no conceivable trial tactic explaining counsel’s performance. Statev. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). A. Competency Evaluation Haxton first contends that Griffin should have introduced the report of his first competency evaluation to support his motion to withdraw the plea. In this report, the evaluator states that Haxton believed the possible penalty if he was convicted at trial of all three charges could be around 20 years. The reportwas created and filed with the court on February 15, 2017. Haxton entered the guilty

-11

-No. 79708-5-1/12

plea on June 5, 2017. The written motion to withdraw the plea submitted by Cabrera stated the defendant relied on the courtfile in support ofthe motion. Becausethe reportwas in thefile and the motion stated that it relied on the file for support, the court was free to consider the contents of the competency evaluation. Griffin’s failure to specifically draw the court’s attention to this document does not appear to rise to the level of deficient performance. Furthermore, Haxton cannot show that he was prejudiced by this decision. It
seems unlikely that the court would have been swayed by evidence that Haxton had stated the erroneous sentencing rangetothe evaluatorfourmonths before he entered the guilty plea. This evidence does not provide proof that he was affirmatively misinformed ofthe accurate sentencing range. Therefore, Haxton’s claim ofineffective assistance ofcounsel on this basisfails. B. Call Transcript Haxton also contends that Griffin was ineffective in failing to introduce the transcript ofa recordedjail call between Haxton and his mother. The transcriptof this call is not part of the record on review. Haxton states in his statement of additional grounds for reviewthat he told his motherduring this call that if he lost attrial hewould be sentenced to 20 to 22 years. He saysthis call occurred before he entered the plea ofguilty butdoes notgive a specificdate. Similarly, Haxton cannot showthat he was prejudiced by counsel’s failure to offerthis evidence as an exhibit in support ofthe motion to withdrawthe plea. This transcript would not have proven that Quillian affirmatively misinformed Haxton ofthe correct sentencing range. The courtwould still have been leftwith

- 12-No. 79708-5-1/13

Haxton’s bare allegations that he had been misinformed. Accordingly, Haxton’s second ineffective assistance claim alsofails. We affirm.

# ~2. WE CONCUR:

A ~A -~ 

# %%s

-13-