HUNT, J.
Robert Theodore Rude, Jr. appeals his guilty plea convictions for five counts of second degree identity theft, five counts of unlawful possession of payment instruments, and one count of first degree robbery. He argues that we should allow him to withdraw his guilty pleas because (1) he was merely a passenger in a vehicle stopped for a traffic violation; (2) a police officer unconstitutionally seized him when the officer asked Rude to identify himself; (3) he did not knowingly, intelligently, and voluntarily enter his guilty pleas or waive his right to appeal because his trial counsel provided ineffective assistance in failing to move to suppress evidence obtained as a result of Rude's illegal seizure and search; and (4) the record does not reflect that Rude was ever told he could move to suppress such evidence. In his Statement of Additional Grounds (SAG), Rude argues that his trial counsel did not advise him about his legal rights and he did not understand that he could move to suppress this evidence. We affirm.
Rude entered into a plea agreement with the State, disposing of his charges from two cause numbers arising from two separate criminal incidents on different dates, Pierce County Cause No. 09-1-04544-7
Rude also signed a separate written Statement of Defendant on Plea of Guilty for each cause number. Paragraph 11 of each guilty plea statement began with the phrase, "The judge has asked me to state what I did in my own words that makes me guilty of this crime"; under this paragraph on each guilty plea statement, Rude made an additional statement, partially admitting his guilt and describing his crimes for each cause number, independent of his earlier probable cause stipulations. Clerk's Papers (CP) (Cause No. 09-1-05358-0) at 9; CP (Cause No. 09-1-04544-7) at 13.
In his Alford
CP (Cause No. 09-1-05358-0) at 9 (emphasis added). Similarly, in paragraph 11 of his guilty plea statement for the identity theft and UPPI charges, Cause No. 09-1-04544-7, Rude provided the following additional description of his criminal acts:
CP (Cause No. 09-1-04544-7) at 13. Rude initialed each statement in open court with his trial counsel present and acknowledged that each was a "true" and "correct" statement of what had happened, which he adopted as his own. Verbatim Report of Proceedings (VRP) (May 13, 2010) at 11, 19.
In addition, Rude's written guilty plea statements each contained a separate paragraph 5, which began with the following sentence in large font and bold letters: "
Rude followed an identical process in pleading guilty to the robbery charge in Cause No. 09-1-05358-0, acknowledging and signing the same waiver of rights. This statement also included an acknowledgment that Rude understood he was waiving his "right to appeal . . . suppression issues"; that he was making his guilty plea "freely and voluntarily"; that he had reviewed the entire guilty plea statement, both with his attorney and on his own; and that he understood the document in full. CP (Cause No. 09-1-05358-0) at 3 (emphasis added), 9.
The trial court then reviewed with Rude his written guilty plea statements and asked a series of questions to confirm that he had reviewed each entire document with his trial counsel and that he understood the rights he was giving up by entering guilty pleas.
At sentencing, in accordance with the plea agreement, (1) the State recommended a low-end standard range sentence for Rude's robbery conviction and high-end standard range sentences for his identity theft and UPPI convictions, all to run concurrently; and (2) Rude's trial counsel requested an exceptional sentence below the standard range for the robbery conviction.
Rude appeals.
Rude argues that we should allow him to withdraw his guilty pleas because the evidence against him was unconstitutionally seized; he did not knowingly, intelligently, and voluntarily plead guilty and waive his right to appeal because his trial counsel failed to move to suppress this evidence; and the record does not show that his counsel ever advised him that such suppression issue existed. The State responds that Rude did not receive ineffective assistance of counsel and that, when Rude knowingly, intelligently, and voluntarily pled guilty, he waived his right to appeal any potential suppression issue. We agree with the State.
In pleading guilty and signing two statements of defendant on plea of guilty, Rude admitted to his guilt and expressly waived his right to a jury trial and his right to appeal any "suppression issues."
The record supports the trial court's finding that Rude pled guilty knowingly, intelligently, and voluntarily. Rude completed and signed two written statements of defendant on plea of guilty that met the requirements of CrR 4.2(g)—one for Cause No. 09-1-04544-7 and one for Cause No. 09-1-05358-0. Both guilty plea statements, standing alone, provide sufficient prima facie verification that Rude entered his guilty pleas voluntarily and understood the rights that he waived by entering such pleas. In addition, both guilty plea statements specifically informed Rude—under a heading with bold letters—that by pleading guilty, he was waiving his right to appeal any "suppression issues."
Furthermore, before accepting Rude's guilty pleas, the trial court questioned Rude in open court and asked him a series of questions to confirm that he had, in fact, reviewed both guilty plea statements in their entireties with counsel, that he understood them, and that he was making his pleas knowingly, intelligently, and voluntarily. During his colloquy with the trial court, Rude again acknowledged that he had reviewed the entire guilty plea statements with his trial counsel, that he had the opportunity to ask his counsel questions, and that he understood that he was waiving his right to "appeal."
At no point did Rude ask the trial court questions or otherwise indicate that his trial counsel had failed to review any portion of his guilty plea statements with him. Nor did Rude indicate that he misunderstood the nature of his charges or any of the consequences of his guilty pleas.
Rude does not contend that he misunderstood the terms of his plea agreement or that he was forced to accept the agreement under duress or against his will. Instead, he argues that we should allow him to withdraw his pleas because (1) his trial counsel failed to advise him of his right to move to suppress illegally seized evidence, thus withholding from him critical information that was necessary to make an informed decision about whether to plead guilty;
Under CrR 4.2(f), a court shall allow a defendant to withdraw his guilty plea whenever it appears withdrawal is necessary to correct a "manifest injustice." CrR 4.2(f). Manifest injustice is a "demanding" standard because ample safeguards exist "to protect a defendant's rights before the trial court accepts his plea." State v. DeClue, 157 Wn.App. 787, 792, 239 P.3d 377 (2010) (emphasis added) (citing State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). Nevertheless, manifest injustice may arise where (1) a defendant received ineffective assistance of counsel, (2) the plea was not ratified by the defendant or one authorized by him to do so, (3) the plea was involuntary, or (4) the plea agreement was not kept by the prosecution. State v. McCollum, 88 Wn.App. 977, 981, 947 P.2d 1235 (1997) (citing Taylor, 83 Wn.2d at 597). Rude meets none of these criteria.
We review challenges to effective assistance of counsel de novo. State v. White, 80 Wn.App. 406, 410, 907 P.2d 310 (1995). We begin our inquiry with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984)). To prevail on an ineffective assistance of counsel claim, a defendant must prove that (1) his counsel's performance was deficient and (2) the deficiency prejudiced him. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing Strickland, 466 U.S. at 694). To prove the deficiency prong, the defendant "must show in the record the absence of legitimate strategic or tactical reasons" supporting his counsel's challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995) (emphasis added). To prove prejudice, "the defendant also bears the burden of showing, based on the record developed in the trial court, that the result of the proceeding would have been different but for [his] counsel's deficient representation." McFarland, 127 Wn.2d at 337 (emphasis added).
In the guilty plea context, the defendant must show that his attorney failed to assist him in deciding whether to plead guilty and that, but for his counsel's failure to advise him, he would not have pleaded guilty. McCollum, 88 Wn. App. at 982. Bare allegations that a defendant would not have pleaded guilty are insufficient to show prejudice. In re Pers. Restraint of Peters, 50 Wn.App. 702, 708, 750 P.2d 643 (1988). In addition, where, as here, a defendant's claim is brought on direct appeal, the reviewing court will not consider matters outside the trial record. McFarland, 127 Wn.2d at 335.
On the record before us, Rude fails to meet the first prong of the test because he does not show that his counsel's performance was deficient. As we note in footnote 12, Rude cannot premise his argument on asserted facts outside the record; therefore, it is outside the scope of this direct appeal whether his trial counsel specifically discussed with him the merits of pursing a motion to suppress specific evidence. We reiterate, however, that Rude specifically acknowledged on the record that he had discussed with his counsel that by pleading guilty, he was waiving suppression issues and the right to appeal.
Furthermore, as with other trial-related strategic decisions,
Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 741, 178 L. Ed. 2d 649 (2011) (citing Lockhart v. Fretwall, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L. Ed. 2d 180 (1993)) (federal habeas, not direct appeal). The record shows that Rude's plea agreement with the State was a two-way bargain: It disposed of his charges for two separate cause numbers, Rude's trial counsel requested an exceptional sentence downward for Rude's robbery charge, and the State agreed to seek a low-end sentence within the standard range if the trial court denied Rude's exceptional sentence. This low-end sentence recommendation from the State was a significant benefit for Rude, who was facing a potential maximum sentence of life imprisonment for first degree robbery;
Also under the plea agreement, the State agreed to recommend that Rude's identity theft and UPPI sentences run concurrently with each other and with his robbery sentence, which ultimately resulted in Rude's serving no additional time for the identity theft and UPPI charges above that which he was serving for the robbery charge. Thus, the record strongly suggests that, for tactical reasons, Rude's counsel likely advised him to accept the State's plea bargain offer and to plead guilty to avoid a life sentence for his robbery conviction and to ensure that Rude received a favorable shorter sentence overall. Based on these facts, Rude has not demonstrated in the record an absence of strategic or tactical reasons for his counsel's conduct. The threshold for proving deficient performance is high, given the deference afforded to decisions of defense counsel in the course of representation. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011); see also State v. Breitung, No. 84580-8, 2011 WL 6824965, at *6, *9 (Wash. Dec. 29, 2011). To overcome the strong presumption that counsel provided reasonable assistance, the defendant must establish an absence of any "`conceivable legitimate tactic explaining counsel's performance.'" Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). Because Rude has failed to meet the first prong of the ineffective assistance of counsel test, we do not address the second, prejudice prong.
We hold that the record contains sufficient evidence to conclude that Rude knowingly, intelligently, and voluntarily entered his guilty pleas. Furthermore, Rude has failed to prove that he received ineffective assistance of counsel, precluding him from entering voluntary guilty pleas or warranting their withdrawal. 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 2.06.040, it is so ordered.
Armstrong, P.J. and Johanson, J., concurs.
VRP (May 13, 2010) at 14-16, 17 (emphasis added). The trial court went through an identical colloquy with Rude before accepting his guilty plea for the robbery charge, which included Rude's oral acknowledgement that he understood he was waiving his right to "appeal" by entering his guilty plea. VRP (May 13, 2010) at 10.
