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IN THE COURT OF APPEALS OF THE STATE OF WASHING TY

DIVISION II

STATE OF WASHINGTON, No. 42495 -9 -II

Respondent,

MA,

JASON LEE MARTIN, UNPUBLISHED OPINION

QUINN- BRINTNALL, J. — On February 9, 2011, the State charged Jason Martin with two

counts of first degree child rape and one count of first degree child molestation for allegedly

sexually assaulting his daughter, T.M. RCW 9A. 073,.44. 083 Pursuant to an Alfordlln re Barr

plea,' Martin pleaded guilty on July 22, 2011, to two counts of first degree abandonment of a

dependent person. RCW 9A. 060(42. 1). After colloquy with Martin and discussion with defense

counsel and the State, the trial court accepted Martin's guilty plea. Martin now appeals his

judgment and sentence arguing that (1) his plea was not made knowingly, voluntarily, and

intelligently; (2) the State's actions deprived him of effective assistance of counsel; and (3) the

court abused its discretion in imposing a sentencing condition prohibiting Martin from having

contact with minors. We affirm.

North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.. Ed. 2d 162 (1970); In re Barr, 102

Wn.2d 265, 684 P.2d 712 (1984).
No. 42495 -9 -II

FACTS

BACKGROUND

On September 21, 2010, Child Protective Services (CPS) placed Martin's children,

seven - year -old twins E.M. and T.M., into protective custody to live with their maternal

grandmother. Once in protective custody, the grandmother reported that the children had

disclosed ongoing abuse and neglect. T.M. disclosed that Martin had got into bed with her while

wearing only his underwear and that while she could not remember any touching, she had blood

in her urine the next day. Both children reported that Martin "slapped and hit them, locked

them in their rooms and left them home alone" and E.M. disclosed that Martin purposely burned

him twice with cigarettes. Clerk's Papers (CP) at 3.

A social worker met with the twins on December 2, 2010. E.M. showed the social

worker burn marks he said he received from Martin'scigarettes. T.M. showed the social worker

marks on her legs she attributed to abuse by Martin and told the social worker that Martin had

touched her bottom with his hand." CP at 3. The children took part in a forensic interview on

December 22. T.M. disclosed that Martin "got on. top of her and put his front part inside her

front part and it hurt very bad" and that she did not know that grownups had pubic hair until she

peeked under -the covers and saw Martin's body. CP at 3. E.M. disclosed that he was unsure

whether the cigarette burns he received were accidental or because Martin was mad.

2

The record is unclear but it appears that the children made .these disclosures to their maternal

grandmother who then reported them to CPS.

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No. 42495 -9 -II

Police contacted Martin on February 7, 2011. Martin denied all wrongdoing and claimed

that the allegations of abuse were the product of coaching by the children'sgrandmother.

PROCEDURE

The State initially charged Martin with two counts of first degree child rape and one

count of first degree child molestation, all naming T.M. as the alleged victim. RCW 9A. 073, 44.

083. Pursuant to Martin entering an Alford/In re Barr plea, the State amended the charges to

two counts of first degree abandonment of a dependent person (one count each for E.M. and

T.M.). RCW 9A. 060(42. 1). Martin pleaded guilty to the abandonment charges on July 22,

2011.

At the plea proceeding, Martin's attorney explained the defense'stheory that the abuse

allegations "were the result of fabrication" by Martin's mother -in -law who was fighting for

custody of the children because of her concern over . Martin's (and her daughter's) ongoing

substance abuse issues. Report of Proceedings (RP) at 3. Nevertheless, Martin's attorney asked

the court to accept the amended charges.

Following the court's acceptance of the amended charges, Martin's attorney explained

that

I have gone over the Statement of Defendant on Plea of Guilty with Mr. Martin.

We have talked about the case at length. I have reviewed the discovery. Mr.

Martin has reviewed the discovery. I have not conducted the interview of the

children or of Mr. Martin's mother- in=law, as I indicated earlier, due to the way

negotiations have gone.

I have talked to Mr. Martin about trial. I have talked to him about in

general other cases and the evidence that I have had in those cases, what the jury

has done. I talked to him about the constitutional rights that he would be giving

3 A person is guilty of first degree abandonment of a dependent person if (1) the person is the

parent of a child (2) who the person recklessly abandons (3) causing the child to suffer great

bodily harm. RCW 9A. 060(42. l).

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No. 42495 -9 -II

up. I have talked to him about the psychosexual evaluation and follow -up

treatment, as well as the alcohol and drug evaluation and treatment the State is

requiring or recommending. I have talked to him about all of the information that

is in the plea statement. I have talked to him about his appellate rights and his one

year time limit on collateral attack. I believe that I have answered all of his

questions. I believe he's making this plea knowingly, intelligently and

voluntarily.

RP at 6 -7.

Next, the trial court had a colloquy with Martin concerning the plea agreement. Martin

indicated that he understood the amended charges, the consequences of his guilty plea, and the

potential length of his sentence. In addition, the court read into the record Martin's addendum to

the plea, stating in part,

I do not admit that I committed the acts that constitute these crimes, but I have

reviewed, the evidence with my attorney and believe there is a substantial

likelihood I would be convicted of the more serious charges if I proceeded to trial.

I am pleading guilty in order to take advantage of the State's offer. I understand

the Court must find a factual basis for my plea of guilty. I acknowledge there is a

factual basis for the charges in the Original Information that is set forth in the

Declaration for Determination of Probable Cause.... I recognize that I am

entering a plea of guilty to a crime that I, in fact, did not commit. My attorney

has discussed with me all of the elements of the original charges and the elements

of the amended charges, and I understand them all. There is a factual basis for the

original charges. I understand the prosecution would be unable to prove the

amended charges at trial, but I see pleading guilty to the amended charges as

being beneficial to me because it will allow me to avoid the risk of conviction on

the charges I would face at trial. Based upon a review of the alternatives before

me, I have decided to plead guilty to a crime I did not commit in order to take

advantage of the State's offer. I understand the consequences of this plea

agreement, and I am making a voluntarily [sic] and informed choice to enter into

it."

RP at 12 -13.

After concluding that the probable cause declaration provided a sufficient factual basis to

support a conviction on the crimes charged in the original information, the trial court accepted

Martin's guilty plea and the parties proceeded to sentencing. The State recommended that

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No. 42495 -9 -II

Martin be treated as a first -time offender, receive credit for time served (164 days) with no

further incarceration, 24 months of community custody, participation in psychosexual and drug

and alcohol evaluations, no contact with both E.M. and T.M., and no contact with minors. After

noting that the reduction in charges "shocks the conscience," the trial court accepted the State's

recommendation, stating that it had to "rely on the judgment of the attorneys who have been

working and living with this case for an extended period of time." RP at 23. Accordingly, the

trial court sentenced Martin as a first -time offender to 164 days confinement (of time served) and

24 months of community custody. Martin now timely appeals.

DISCUSSION

MARTIN'sGUILTY PLEA

Martin contends that his Alford/Inre Barr plea was not made knowingly and intelligently

because the State conditioned the plea on prohibiting Martin's attorney from interviewing E.M.,

T.M., and their maternal grandmother and, in result, he lacked the "information needed to make

an intelligent choice among the alternative courses of action." Br. of Appellant at 9. Because

the record before us reflects that Martin entered his plea knowingly, voluntarily, and

intelligently, and because Martin was fully aware that his plea was conditioned on counsel not

interviewing the alleged victims when he chose to accept the State's plea offer, we disagree.

4 RCW 9. 650(94A. 2) and (3) provide that under a "first -time offender waiver," the trial court

may "waive the imposition of a sentence within the standard sentence range and impose a

sentence which may include up to ninety days of confinement" and "impose up to six months of

community custody unless treatment is ordered, in which case the period of community custody

shall not exceed one year." Because the trial court imposed a 164 -day sentence to insure that

Martin received full credit for the time he was already incarcerated before entry of his plea, and

because Martin does not challenge the length of his community custody provision, we will not

disturb these portions of his judgment and sentence.

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No. 42495 -9 -II

We review de novo the circumstances under which a guilty plea was made. Young v.

Konz, 91 Wn.2d 532, 536, 588 P.2d 1360 (1979). "Due process requires that a defendant'sguilty

plea be knowing, voluntary, and intelligent." In re Pers. Restraint ofIsadore, 151 Wn.2d 294,

297, 88 P.3d 390 (2004). A court must allow a defendant to withdraw a guilty plea whenever

necessary to correct a manifest injustice. State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699

1974). A manifest injustice is one "that is obvious, directly observable, overt, not obscure."

Taylor, 83 Wn.2d at 596. Our courts recognize four nonexclusive indicia of per se manifest

injustice: (1) ineffective assistance of counsel, (2) a defendant'sfailure to ratify the guilty plea,

3) an involuntary plea, or (4) the State's breach of the plea agreement. Taylor, 83 Wn.2d at 597.

The burden is on the defendant to show a manifest injustice. State v. Osborne, 102 Wn.2d 87,

97, 684 P.2d 683 (1984).

A written plea statement is prima facie evidence that .the plea is voluntary, when the

defendant acknowledges reading and understanding the written statement and that the contents of

the statement are true. State v. Perez, 33 Wn. App. 258, 261, 654 P.2d 708 (1982). And when

the trial court has inquired into the voluntariness of the plea on the record, the presumption of

voluntariness is "well nigh irrefutable." Perez, 33 Wn. App. at 262.

Here, Martin signed a written plea statement indicating that he was informed ofthe direct

consequences of his plea and that the plea was made in a knowing, intelligent, and voluntary

manner. The trial court inquired at length into the voluntariness of the written plea agreement on

the record and found that Martin entered into the plea voluntarily. During the plea colloquy,

Martin's defense counsel indicated that he and Martin "talked about the case at length," that both

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No. 42495 -9 -II

he and Martin reviewed the discovery, and that he believed Martin was making the plea in a

knowing, intelligent, and voluntary manner. RP at 6. Moreover, the court read Martin's entire

plea addendum into the record, including a portion stating, "`I understand the consequences of

this plea agreement, and I am making a voluntary and informed choice to enter into it. CP at

35. Martin confirmed that this statement was true, that he signed it, and that he adopted the

statement as his own.

Under these circumstances, the evidence is "well nigh irrefutable" that Martin's plea was

made knowingly, voluntarily, and intelligently. Perez, 33 Wn. App. at 262. Martin has failed to

allege coercion, mistake, or even misunderstanding. Instead, he asserts that because the

prosecutor's office conditioned the plea bargain on prohibiting Martin's counsel from

interviewing the victims and their grandmother, the plea was not made intelligently. This

argument is not well taken.

Martin was present and represented by counsel during the plea proceeding. Accordingly,

he was aware that the prosecutor's office conditioned the plea bargain on his counsel not

interviewing the alleged victims. Despite this, Martin still entered `a voluntary guilty plea "to

take advantage of the State's offer" and "avoid the risk of conviction on the charges" he would

face at trial. CP at 35.

Criminal defendants do not have a constitutional right to plea bargains. State v. Yates,

161 Wn.2d 714, 741, 1,68 P.3d 359 (2007), cent. denied, 554 U.S. 922 (2008). A plea bargain is

a contract. State v. Mollichi, 132 Wn.2d 80, 91, 936 P.2d 408 (1997). "[B]oth sides to the

agreement must perceive an advantage to entering the bargain." State v. Moen, 150 Wn.2d 221,

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No. 42495 -9 -II

230, 76 P.3d 721 (2003). "[ A] condition insisted on by the State that requires a defendant to give

up a constitutional right does not, by itself, violate due process.... The theoretical basis for all

plea bargaining is that defendants will agree to waive their constitutional rights." Moen, 150

Wn.2d at 230 -31. As the Moen court explained, it is important to distinguish between policies

where the prosecutor's actions might deter a defendant from exercising a

legal right ... and

cases where the prosecutor'saction was in retaliation for exercising a right, which violates due

process." 150 Wn.2d at 231.

The policy at issue here — protecting young victims of abuse from being confronted and

questioned by those - who have harmed them —is not a retaliatory policy. Martin's own attorney

recognized this at the plea proceedings:

We have not yet done an interview of either of the two children or of Mr.

Martin's mother -in -law. That was part of the negotiations. We don't know what

those interviews would have produced. Having done many of these interviews,

though, as gentle as I try to be, it is very tough on especially minor children.

RP at 3.

This policy does not run afoul of the state or federal constitutions' due process

protections and Martin was aware of the condition when he agreed to the plea. Accordingly, we

discern no manifest injustice "that is obvious, directly observable, overt, not obscure" from the

circumstances under which Martin entered a guilty plea. Taylor, 83 Wn.2d at 596. Martin has

failed to establish that his plea was not made voluntarily, knowingly, and intelligently.

INEFFECTIVE ASSISTANCE

Martin alleges ineffective assistance of counsel for the same reason that he argues his

plea was not made knowingly: that the prosecutor's office conditioned his plea on his defense

counsel not interviewing the victims or their grandmother. Because the State's plea bargain

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No. 42495 -9 -II

limiting access to potential witnesses did not preclude defense counsel from providing effective

assistance, and the record reflects that Martin's counsel performed both reasonably and

competently, we reject this argument.

In order to prove ineffective assistance of counsel, Martin must show that (1) counsel's

performance fell below an objective standard of reasonableness and (2) counsel's performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

1984); State v. McFarland, 127 Wn.2d 322, 334 -35, 899 P.2d 1251 ( 1995). "Effective

assistance of counsel includes assisting the defendant in making an informed decision as to

whether to plead guilty or to proceed to trial." State v. A. J., N168 Wn.2d 91, 111, 225 P.3d 956

2010) (citing State v. S.M., 100 Wn. App. 401, 413, 996 P.2d 1111 (2000)). Nevertheless, as we

stated above, a "defendant does not have a constitutional right to plea bargain." State v. Wheeler,

95 Wn.2d 799, 804, 631 P.2d 376 (1981).

Martin argues that his attorney could not properly evaluate the merits of the State's plea

bargain because he was not "allowed to engage in sufficient investigation to determine the

strengths and weaknesses of the state's case as it exist[ed] at the time of the plea." Br. of

Appellant at 13. Martin cites State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976), State v.

Ulestad, 127 Wn. App. 209, 111 P.3d 276 (2005), review denied, 156 Wn.2d 1003 (2006), and

A. J., N168 Wn.2d 91, to support this proposition. But none of these cases are on point.

Burri, for instance, involved a case where the prosecutor interfered with the defendant's

alibi witnesses by subpoenaing and interviewing them without defense counsel present then

prohibiting them from speaking with the defense. 87 Wn.2d at 178 -79. Moreover, the defendant

in Burri had pleaded not guilty and was preparing for trial. 87 Wn.2d at 176. Martin's case

involves none of these circumstances. Similarly unhelpful for Martin, Ulestad involved a

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No. 42495 -9 -II

situation where the trial court prevented the defendant from communicating directly with counsel

while counsel interviewed a victim at trial. 127 Wn. App. at 215. Nothing like this situation

exists here and Ulestad is clearly inapposite.

Martin cites A. J. Nfor the proposition that "at the very least, counsel must reasonably

evaluate the evidence against the accused and the likelihood of a conviction if the case proceeds

to trial so that the defendant can make a meaningful decision as to whether or not to plead

guilty." 168 Wn.2d at 111 -12. Here, the record indicates that counsel reviewed the discovery

evidence with Martin — presumably the forensic interviews of E.M. and T.M. and the allegations

themselves— discussed the case (and plea) with Martin at length, and discussed "in general other

cases and the evidence that I have had in those cases, [and] what the jury has done." RP at 6. It

is unclear what more Martin believes would have been revealed from counsel interviewing the .

young children or their grandmother. Nevertheless, this case is clearly distinguishable from

A. J. Nwhere counsel "spent as little as 55 minutes with [the defendant] before the plea hearing,

did no independent investigation, [and] did not carefully review the plea agreement." 168 Wn.2d

at 102.

Unlike Burri, Ulestad, and A. J., Nour recent decision in State v. Shelmidine, 166 Wn.

App. 107, 269 P.3d 362, review denied, 174 Wn.2d 1006 (2012) addressed a highly analogous

situation to the one, currently before us. In Shelmidine, the defendant argued that he was

deprived of effective assistance of counsel because the prosecutor'soffice made its plea offer

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No. 42495 -9 -II

contingent upon the defense not seeking the identity of a confidential informant. 166 Wn. App.

at 109. After evaluating the evidence available to defense counsel, we concluded that "the plea

offer did not preclude defense counsel from reasonably evaluating the evidence against

Shelmidine and the likelihood of a conviction if the case proceeded to trial.... [ T]he State's

plea offer did not preclude Shelmidine's defense counsel from providing effective assistance of

counsel." Shelmidine, 166 Wn. App. at 116.

Here, as already noted, Martin's counsel reviewed the available discovery with Martin

and talked to him "about in general other cases and the evidence that I have had in those cases,

and] what the jury has done." RP at 6. Between the available forensic interviews of E.M. and

T.M., the allegations themselves, and defense counsel's own experiences from taking similar

cases to trial, it is clear that defense counsel had sufficient information to advise Martin and

assist him "in making an informed decision as to whether to plead guilty or to proceed to trial." .

A. J., N168 Wn.2d at 111. Martin himself admitted after reviewing the available evidence that

he believed "there is a substantial likelihood [he] would be convicted of the more serious charges

if [he] proceeded to trial." CP at 35.

Our review of the record confirms that defense counsel provided effective assistance.

Accordingly, we reject Martin'sineffective assistance of counsel claim.

5

Alternatively, we note that, as in State v. Zhao, 157 Wri.2d 188, 203 n.10, 137 P.3d 835 (2006),

w]e have only very limited information about the Pierce County prosecutor's policy and the

record does not contain a copy of the policy." Accordingly, the record does not reveal sufficient

facts to evaluate the actual or practical consequences of such policy and Martin's ineffective

assistance argument fails on this ground. Zhao, 157 Wn.2d at 203.

6 The trial court clearly considered Martin's counsel effective. In light of counsel'ssuccess in

negotiating a plea that reduced Martin's potential prison time from an indeterminate life sentence

to 164 days of time served (for nonsex crimes), the trial court told Martin that he "should be

thankful for the work he's done in this case." RP at 27.

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No. 42495 -9 -II

SENTENCING CONDITION

Last, Martin argues that he is "entitled to relief from the requirement that he have `no

contact with minors,' apparently for life." Br. of Appellant at 19. Because the crime for which

Martin was convicted involved reckless behavior resulting in great bodily harm to minors, we

conclude that the no- contact provision directly relates to the circumstances of the crime of

conviction and is, therefore, permissible. Moreover, the trial court clearly indicated that it would

retain jurisdiction over this matter and that, in the future, it would reconsider the no- contact

provision. Accordingly, Martin'sconcern that the no- contact order is "apparently for life" lacks

merit.

We review a trial court's imposition of a crime- related prohibition for abuse of discretion.

State v. 4rmendariz, 160 Wn.2d 106, 110, 156 P.3d 201 ( 2007). A trial court abuses its

discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for

untenable reasons. State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981).

RCW 9. 505(94A. 8) states that a sentencing court "may impose and enforce crime - related

prohibitions and affirmative conditions as provided in this chapter." RCW 9. 030(94A. 10)

further elaborates that

c]rime- related prohibition" means an order of a court prohibiting conduct that

directly relates to the circumstances of the crime for which the offender has been

convicted, and shall not be construed to mean orders directing an offender

affirmatively to participate in rehabilitative programs or to otherwise perform

affirmative conduct. However, affirmative acts necessary to monitor compliance

with the order of a court may be required by the department.

Last, RCW 9. 703( b) 94A. 3)(grants the trial court the discretion to order an offender to "[r]efrain

from direct or indirect contact with the victim of the crime or a specified class of individuals" as

a condition of community custody.

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No. 42495 -9 -II

Here, Martin pleaded guilty to two charges of first degree abandonment of a dependent

person. As a result, Martin was convicted of the crime of recklessly abandoning two children in

a manner that resulted in great bodily harm to them. See RCW 9A. 060(42. 1). Martin argues that

it would have been proper for the court to order that [ he] refrain from taking on any

responsibility for providing `basic necessities of life' to any child," instead of an outright

prohibition. Br. of Appellant at 20. But community custody prohibitions need not be "causally

related to the crime," just "directly related." State v. Letourneau, 100 Wn. App. 424, 432, 997

P.2d 436 (2000). In light of Martin'sreckless abandonment of his own children —and the great

bodily harm such abandonment caused —the trial court's sentencing prohibition was both

sensible and directly related to Martin'sconvictions.

In addition, the trial court clearly indicated that it would retain jurisdiction over Martin

and that the no- contact order was open for reconsideration upon Martin successfully undergoing

a psychosexual evaluation:

When [Department of Corrections] cuts loose of their supervision of you, then the

Court's going to see where you are and what we need to do as far as whether you

need to have continual court supervision. .

You are not to have any contact with either of the children. No contact

with minors. If you get this [ psychosexual] evaluation and there is a

determination made that it is safe for you to have contact with minors, we can

address that issue. Until then, I'm going to be on the side of caution and I am

going to impose that condition.

RP at 25 -26.

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No. 42495 -9 -II

The trial court did not abuse its discretion in ordering the no- contact order which is

subject to revision should Martin make such a request and establish that he is safe to be released

from that condition. We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

QUINN- BRINTNALL, J.

We concur:

7 Moreover, as established in Armendariz, "no- contact orders imposed under RCW 9. 505(94A. 8)

may be made effective for a period up to the statutory maximum for the defendant'scrime." 160

Wn.2d at 120. Here, first degree abandonment of a dependent person is a class B felony carrying

a maximum term of 10 years. RCW 9A: 060(42. 3); RCW 9A. 021( b). 20. 1)(Accordingly, the

provision at issue here necessarily expires after 10 years.

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