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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41217-9-II

                             Respondent,

       v.

JACOB LEON HADLEY,                                         UNPUBLISHED OPINION

                             Appellant.

       Worswick, A.C.J.  --  Jacob L. Hadley appeals his guilty plea convictions of second degree 

murder with a deadly weapon enhancement, second degree assault, and second degree unlawful 

possession of a firearm.  He claims his trial counsel failed to tell him that the decedent's sister 

would testify that Christopher Randon, not Hadley, had committed the murder and that, therefore, 

the trial court erred in denying his motion to withdraw his guilty pleas.  In a statement of 

additional grounds (SAG), Hadley claims that his pleas were involuntary and that defense 

counsel's testimony at Hadley's plea withdrawal hearing exceeded the allowable scope of his 

waiver.  We affirm. 

No.  41217-9-II

                                            FACTS

       A scuffle broke out at a birthday party in Spanaway, Washington, about 1:45 am on 

February 1, 2009, during which John Stratton was shot and killed and Octavier Bushnell was 

wounded.  On March 3, 2010, in a joint plea hearing, Hadley admitted killing Stratton and 

Randon admitted shooting Bushnell.

       The trial court had before it Hadley's 10-page "Statement of Defendant on Plea of Guilty."  

Clerk's Papers (CP) at 9.  The trial court discussed each of the three charges with Hadley, the 

sentencing ranges for each offense, including the deadly weapon sentencing enhancement, and the 

required community custody.  It determined that there was a factual basis for each count and 

satisfied itself that Hadley made his pleas freely, voluntarily, and intelligently with an 

understanding of the rights he was giving up.

       The trial court scheduled Hadley's sentencing for April 23, 2010, but proceeded 

immediately to sentencing Randon so the out-of-town members of Stratton's family would have 

an opportunityto address the court.  During Randon's sentencing hearing, Stratton's sister,

Rachel Stratton, chastised Randon for letting Hadley take the blame for her brother's death when 

she had seen Randon shoot him.

       On April 1, 2010, Hadley obtained new counsel and sought to withdraw his guilty pleas, 

claiming his counsel was ineffective during plea negotiations.  In his declaration in support of his 

motion to withdraw his guilty pleas, Hadley asserted that (1) he never reviewed the discovery nor 

talked about it with his attorney, (2) he was unaware of the conflicting stories witnesses gave 

about what occurred, (3) he never reviewed the witness list, (4) he was stunned when Rachel 

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No.  41217-9-II

Stratton said that she saw Randon shoot her brother, and (5) the plea was put together so quickly 

that he simply acquiesced with his attorney's demand without fully understanding what he was 

doing.

       On July 30, 2010, the trial court held a hearing on the motion to withdraw guilty plea in 

which the trial court allowed the State to examine Gary Clower, Hadley's counsel during the plea 

negotiations.  Clower testified about his representation of Hadley up to and including the plea 

hearing.  He stated that he had three full binders of discovery and he had discussed it all with 

Hadley.  He testified that plea negotiations began in January 2010, and that he discussed every 

offer with Hadley.  He explained that he and Hadley discussed at length that two different firearms 

were involved, that witnesses attributed the nine millimeter semiautomatic handgun to Randon, 

that he, Hadley, admitted to having a .44 caliber handgun, and that the bullet that killed Stratton 

was from a .44.  He said that Rachel Stratton's belief that Randon shot her brother was 

inconsistent with the evidence and that Rachel's description of the assailant was consistent with 

Hadley's appearance, including his clothing and his braces.  After Clower interviewed Rachel 

Stratton, he discussed this interview with Hadley and her likely misidentification.  Clower testified 

that he explained to Hadley that the State's theory of the case was one of accomplice liability and 

thus it "might not matter terribly who shot who if each of them shot somebody" as they would 

both be responsible for each other's actions.

       As to the plea negotiations, he explained that Hadley's primary concern was the amount of 

time he would have to serve in prison.  He explained that Hadley faced 30 years if he accepted the 

State's first plea offer and significantly more if he went to trial. Clower tried to get the murder 

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No.  41217-9-II

charge reduced to manslaughter but the State would only reduce the charge to second degree 

murder and recommend a reduced sentence of 15 years.  When asked about Hadley's statement in 

his declaration that Rachel Stratton's statements at Randon's sentencing stunned him, Clower

responded, "[T]hat's not accurate at all." Report of Proceedings (RP) at 89.  He said that her 

statements were not a surprise and, in fact, he and Hadley had talked about them before going 

into the plea hearing.  As to Hadley's assertion that he did not have time to think before deciding 

to plea, Clower responded, "As I said, this didn't happen just that afternoon.  This was the end of 

a process that had been going on for probably over a month." RP at 91.  The State then asked, 

"Did he agree to enter a factual statement that he fired the shot that killed John Stratton?" RP at 

92.  Clower responded, "Yes." RP at 92.  The State then asked, "Do you believe he did that with 

full understanding that Rachel Stratton thought Christopher Randon was the gunman?" RP at 92  

Clower responded, "Yes." RP at 92.  Finally, Clower testified that Hadley expressed no 

confusion about his plea and that he knew "full well" what he was doing.  RP at 95.

       The trial court explained that it had reviewed relevant case law, reread the transcripts of 

the plea hearing several times, considered Hadley's declaration, heard Clower's testimony, and 

was satisfied that no manifest injustice occurred.  It then denied the motion and proceeded to 

sentencing, where it followed the State's recommendation of a 178-month standard range 

sentence.  Hadley appeals.

                                           Discussion

                              I.  Motion To Withdraw Guilty Pleas

       A.  Standard of Review

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No.  41217-9-II

       We review a trial court's decision on a motion to withdraw a guilty plea for an abuse of 

discretion.  State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006).  A trial court abuses its 

discretion when its decision rests on clearly untenable grounds or is manifestly unreasonable.  

State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009).

       B.  Manifest Injustice

       CrR 4.2(f), which governs the withdrawal of a guilty plea made before sentencing, provides in 

part: "The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it 

appears that the withdrawal is necessary to correct a manifest injustice."  A"manifest injustice" is "an 

injustice that is obvious, directly observable, overt, not obscure."  State v. Taylor, 83 Wn.2d 594, 596, 

521 P.2d 699 (1974).  In Taylor, the Supreme Court discussed four indicia, any one of which would 

independently establish manifest injustice:  (1) the denial of effective assistance of counsel, (2) the plea 

was not ratified by the defendant, (3) the plea was involuntary, and (4) the plea was not honored by the 

prosecution.  83 Wn.2d at 597 (quoting Criminal Rules Task Force, Washington Proposed Rules of 

Criminal Procedure, CrR 4.2 cmt. at 50 (1971)).  CrR 4.2(f) places a demanding standard on the 

defendant.  Hadley's claims fall under categories (1) and (3) of these indicia.

       1.  Effective Assistance of Counsel

       To establish ineffective assistance of counsel, Hadley must show both deficient 

performance and resulting prejudice.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984). Failing to make either showing is fatal to the claim.  State v. 

Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).  Counsel's performance is deficient if it 

falls below an objective standard of reasonableness based on a consideration of all the 

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No.  41217-9-II

circumstances.  State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997).  We strongly 

presume effective representation.  State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 

(1995).  To prove prejudice, Hadley must show that but for counsel's deficient performance, there 

is a reasonable probability the outcome of the proceedings would have differed. McFarland, 127 

Wn.2d at 335.

       To challenge a guilty plea, we analyze prejudice in terms of whether the attorney's 

performance affected the outcome of the plea process. State v. Garcia, 57 Wn. App. 927, 932-33, 

791 P.2d 244 (1990). "In a plea bargain context, 'effective assistance of counsel' merely requires 

that counsel 'actually and substantially [assist] his client in deciding whether to plead guilty.'"  

State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984) (alteration in original) (quoting State v. 

Cameron, 30 Wn. App. 229, 232, 633 P.2d 901, review denied, 96 Wn.2d 1023 (1981)).

       In deciding the adequacy of Clower's representation, the trial court had to weigh Hadley's 

declaration against Clower's testimony.  In denying the motion to withdraw, the trial court noted 

that it had a vivid recollection of the hearing, that it had reviewed the transcripts multiple times, 

and that it had carefully discussed the plea agreement with Hadley.  It also noted that Hadley was 

aware before he entered the pleas that the Stratton family thought the State had charged the 

wrong person.

       Hadley fails to show that counsel's recommendation to accept the plea offer resulted from 

ineffective assistance of counsel.  Hadley's does not question that Clower did extensive discovery, 

interviewed multiple witnesses, and acquired a favorable plea agreement for his client.  Unless 

Hadley can demonstrate otherwise, we must presume that Clower's representation was effective 

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No.  41217-9-II

and that he substantially assisted Hadley in his decision to accept the State's plea offer. 

McFarland, 127 Wn.2d at 334-35. Because Hadley cannot show that counsel's performance was 

inadequate, we need not address prejudice.  State v. Foster, 140 Wn. App. at 273.

       Because Hadley cannot show that Clower's performance was inadequate, he has not met

his burden to show that Clower was ineffective.  Under these circumstances, the trial court did 

not abuse its discretion in finding no manifest injustice based on ineffective assistance of counsel.

       2.  Voluntariness of Pleas

       In his pro se SAG, Hadley claims that his pleas were involuntary.  He focuses on his 

unwillingness to enter a straight plea to the murder charge and instead wanting to enter a Newton

plea.1 He claims that trial counsel should have asked for a continuance instead of telling him this 

was his only choice unless he wanted to risk going to trial.

       We have observed:

       When a defendant fills out a written statement on plea of guilty in compliance with 
       CrR 4.2(g) and acknowledges that he or she has read it and understands it and that 
       its contents are true, the written statement provides prima facie verification of the 
       plea's voluntariness.  When the judge goes on to inquire orally of the defendant 
       and satisfies himself on the record of the existence of the various criteria of 
       voluntariness, the presumption of voluntariness is well nigh irrefutable.

State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982) (citations omitted). Hadley fails

to refute this presumption.

       During the plea hearing, Hadley expressed no concern, misunderstanding, or confusion 

1State v. Newton, 87 Wn.2d 363, 366, 552 P.2d 682 (1976) (adopting North Carolina v. Alford,
400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (a defendant may plead guilty while 
disputing the facts alleged by the prosecution)).

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No.  41217-9-II

about what he was agreeing to do.  During the plea colloquy, the trial court gave Hadley multiple 

opportunities to express any concerns, misunderstandings, or disagreements.  He expressed none 

but instead affirmatively stated that he understood the agreement and was knowingly and 

voluntarily pleading guilty.  During the hearing on Hadley's motion to withdraw his plea, his 

defense attorney testified that he had made Hadley aware of the facts of the case and the 

consequences of his decision to plead guilty or go to trial. Keeping in mind that, as a reviewing 

court, we do not weigh witness credibility, it was the trial court's province, and only its province, 

to judge the conflicting testimony and allegations in deciding the facts and determining whether to 

exercise its discretion and grant or deny the motion.  The trial court did not abuse its discretion in 

finding no manifest injustice based on involuntary pleas.

                                    II. Scope of Testimony

       In his SAG, Hadley also claims that defense counsel's testimony exceeded the scope of his 

waiver of attorney client communications.  He cites one instance in the record where his attorney 

objected to the State's question of Clower because "it goes to the ultimate issue." RP at 92-93.  

The trial court limited the State's question to, "[Did] you ask" Hadley if the statement he was 

entering was true  CP at 93.  Clower responded that he did not remember if he had asked that 

exact question.

       RPC 1.6(b)(5) provides:  "A lawyer to the extent the lawyer reasonably believes necessary

. . . (5) may reveal information relating to the representation of a client . . . to respond to 

allegations in any proceeding concerning the lawyer's representation of the client." Here, the 

questions asked and the answers given pertained to matters related to Clower's representation of 

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No.  41217-9-II

Hadley, which Hadley put in issue when he claimed ineffective assistance of counsel.  We find no 

error.

       We affirm.

       A majorityofthe 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 2.06.040, it 

is so ordered.

                                                               Worswick, A.C. J.
We concur:

Hunt, J.

Quinn-Brintnall, J.

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