      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 71127-0-1
                     Respondent,
       v.                                         DIVISION ONE


FERDI MAI DEGUZMAN,                               UNPUBLISHED OPINION


                     Appellant.                   FILED: January 26, 2015


       Leach, J. — Ferdi DeGuzman appeals the trial court's order denying his

motion to withdraw his plea of guilty to two counts of rape of a child in the second

degree.     DeGuzman alleges that because he misunderstood his potential

sentence to be 120 to 158 days, not months, his plea was involuntary. Because

the record shows that defense counsel and the State properly advised

DeGuzman that he faced a standard range sentence of 120 to 158 months and

that he understood the terms of his plea agreement, we conclude that he made

the guilty plea voluntarily. Therefore, the trial court did not abuse its discretion by

denying DeGuzman's motion to withdraw his plea. We affirm.

                                     Background

       In May 2011, 13-year-old A.Z. told her therapist that her mother's

boyfriend, Ferdi DeGuzman, was sexually molesting her.             A.Z. told a police

detective that beginning when she was 9 or 10 years old, DeGuzman would
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make "motions" as if he were having sex with her and masturbate in front of her.

He eventually began to touch her under her clothes, including touching her

vagina with his hand and mouth.           When the detective interviewed him,

DeGuzman eventually admitted the sexual contact but blamed A.Z., maintaining

that she had initiated it and "made him do things that he didn't want to do."

        The State charged DeGuzman with one count of child molestation in the

first degree and two counts of rape of a child in the second degree. On April 24,

2013, DeGuzman pleaded guilty to two counts of rape of a child. The plea form

DeGuzman signed stated that the standard range sentence for the charged crime

was 120 to 158 months with a maximum term of life in prison and that the

prosecutor recommended an indeterminate sentence of 158 months to life.

        At the plea hearing, the State reviewed the entire plea form with

DeGuzman. DeGuzman answered, "Yes," when the prosecutor asked him if he

had gone over the plea with his attorney and had enough time to consider its

consequences. The prosecutor asked DeGuzman if he understood he could stop

the proceedings at any time if he had a question or needed more time to talk to

his attorney. DeGuzman again answered, "Yes." The prosecutor asked, "Do you

understand that your decision to plead guilty here today is a final one and that

you cannot change your mind in the future?" DeGuzman answered, "Correct,

yes."

        DeGuzman answered affirmatively when the prosecutor asked if he

understood that the standard sentencing range on each count would be 120 to
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158 months, that the maximum term was life in prison, and that if the judge

sentenced him within the standard range, he would not be able to appeal his

sentence.   The prosecutor explained that DeGuzman's plea involved an

indeterminate sentence, defined that term, and asked if he understood.        He

answered, "Yes." The prosecutor explained the terms of the plea agreement,

noting that the State opposed DeGuzman's request for a special sex offender

sentencing alternative (SSOSA).

      After asking DeGuzman if he made his plea "freely and voluntarily," the

prosecutor asked, "Do you understand that we could tear up this plea form right

now and go to trial on this case if that's what you wanted?"         DeGuzman

answered, "Yes." When asked if anyone had attempted to induce him to accept

the plea agreement by threatening him or making any promises beyond the

agreement, he answered, "No." He confirmed he wished to go forward with the

plea. He agreed that he adopted the factual statement in the plea form, which

the prosecutor read into the record.     Three different times during the plea

colloquy, the prosecutor asked if he had any questions, and each time

DeGuzman answered, "No."

      Following the plea colloquy, the trial court noted that the prosecutor

"covered everything on [the court's] checklist" but told DeGuzman, "I do want to

make sure if you have any questions for me or your attorney or even the State

that this is your time to ask before I accept your plea. Do you understand that?"

DeGuzman answered, "Yes, I do, your Honor," and when the court asked if he
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had any questions, he replied, "No, your Honor." The court accepted the guilty

plea, dismissed the child molestation count, and found DeGuzman guilty of two

counts of rape of a child in the second degree.

       On August 7, 2013, DeGuzman filed a motion to withdraw his plea,

alleging that because he had misunderstood his standard range sentence to be

120 to 158 days, not months, his plea was not voluntary.        He contended that

defense counsel coerced the guilty plea and that he was denied effective

assistance because of lack of communication.

       At the September 2013 hearing on his motion to withdraw the guilty plea,

DeGuzman testified that his former defense counsel pressured him to take the

plea deal, that he was "just scared" to tell his attorney he didn't want to plead

guilty, and that he thought his plea would result in a sentence of "124 to 148

days." He also testified that he "thought [the sentence] was going to be six to

eight months" in prison.   In support of his argument that he misunderstood his

potential   sentence,   DeGuzman       offered    audiotapes   of   jail   telephone

conversations with his girlfriend, A.Z.'s mother, in which the couple discusses

plans to be together the following summer.

       DeGuzman acknowledged, however, that when his counsel talked to him

about his potential sentence, "[S]he would say it in years," and that he thought

she had said that if he lost at trial his sentence could be 13 to 17 years.1 He also



       1 DeGuzman appears also to testify on redirect that he understood that the
court could sentence him to 13 to 17 years even with a plea deal.
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testified that in early discussions, his attorney urged him to take a plea deal that

would entail a seven- or eight-year sentence. And he did not dispute the State's

observation that over the course of more than a year of representation, he never

complained about any problem communicating with his attorney.

      Though he testified on direct examination that he had "never been in this

kind of circumstantial position before," DeGuzman conceded during cross-

examination that in 2001 and 2004, he pleaded guilty to felony crimes and signed

similar plea forms.   He conceded that the State had asked him if he had any

questions and that he had answered, "No." He acknowledged understanding that

the trial court has discretion in sentencing and might not grant his request for a

SSOSA.


      The trial court denied DeGuzman's motion to withdraw his guilty plea:

      If we allowed a defendant to withdraw a plea based simply on the
      kind of testimony that Mr. DeGuzman has offered, almost no plea
      would stand. And I simply don't find his statements credible and I
      don't find them persuasive, and . . . in many instances they're
      contradictory.

The court opined that DeGuzman's telephone statements to A.Z.'s mother

showed not that DeGuzman misunderstood his sentence but rather that "he's


trying to diminish what he's done and he's trying to diminish the seriousness of

his crime and he's also trying to diminish the consequence that he could be in jail

for over a decade."    The court also noted its own impressions from the plea

hearing:

      And I appreciate the fact that I'm the judge that's reviewing this
      request because, you know, obviously, I was the judge that saw Mr.


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No. 71127-0-1/6


       DeGuzman the day that I accepted his plea. He did not appear to
       me in the slightest to be someone that was under coercion, that
       was in fear of his attorney, that didn't think that he could proceed to
       trial.

       On November 1, 2013, the trial court denied DeGuzman's request for a

SSOSA, imposing a sentence of 144 months.           DeGuzman appeals the court's

denial of his motion to withdraw his guilty plea.

                                      Analysis

       "Due process requires an affirmative showing that a defendant entered a

guilty plea intelligently and voluntarily."2 The defendant must understand the

nature of the charges and the direct consequences of a guilty plea, which include

sentencing consequences.3 CrR 4.2(f) allows a defendant to withdraw a plea of

guilty "whenever it appears that the withdrawal is necessary to correct a manifest

injustice." A manifest injustice occurs where a plea is involuntary.4 Generally,

the defendant bears the burden of proving a manifest injustice, which our

Supreme Court defines as "'obvious, directly observable, overt, not obscure.'"5 A

strong public interest supports enforcement of voluntary and intelligent plea



      2 State v. Ross. 129 Wn.2d 279, 284, 916 P.2d 405 (1996): State v.
Robinson. 172 Wn.2d 783, 794, 263 P.3d 1233 (2011); U.S. Const, amend. XIV,
§1; Wash. Const, art. I, §3.
       3 Ross. 129 Wn.2d at 284 (quoting CrR 4.2(d)); State v. Barton. 93 Wn.2d
301, 305, 609 P.2d 1353 (1980).
       4 State v. Quv Dinh Nguyen. 179 Wn. App. 271, 282, 319 P.3d 53 (2013),
review denied. 181 Wn.2d 1006 (2014); Ross. 129 Wn.2d at 284. Other
circumstances which may constitute a manifest injustice under CrR 4.2(f) are
ineffective assistance of counsel, the defendant's failure to ratify a plea, or the
prosecution's breach of a plea agreement. Quv Dinh Nguyen. 179 Wn. App. at
282.
       5 Ross. 129 Wn.2d at 283-84 (internal quotation marks omitted) (quoting
State v. Saas. 118 Wn.2d 37, 42, 820 P.2d 505 (1991)).
No. 71127-0-1/7




agreements.6 The trial court has discretion to grant or deny a motion to withdraw

a guilty plea.7

       DeGuzman contends that the trial court abused its discretion in denying

his motion to withdraw his guilty plea.     He argues that because he was not

properly advised of the direct consequences of his guilty plea, he did not enter

the plea voluntarily. We disagree.

       The record shows that DeGuzman's attorney and the State thoroughly

advised DeGuzman of the direct consequences of his guilty plea, including the

relevant standard and maximum sentences. DeGuzman confirmed in open court

that he had had sufficient opportunity to discuss the terms of the agreement with

his attorney and to consider the terms of his plea. He conceded several times

that his attorney explained his potential sentence in terms of years, not days.

       The State reviewed the entire plea form in open court, accurately stating

the standard sentencing range and the fact that the court might not grant the

request for a SSOSA. The State asked DeGuzman three times if he had any

questions, and the trial court likewise asked him if he had any questions for the

court, the State, or his own attorney.     At the end of the plea colloquy, the

prosecutor informed DeGuzman that he could choose to "tear up this plea form

right now and go to trial." DeGuzman denied that anyone had threatened him or

made promises beyond the terms of the agreement.



       6 State v. Walsh. 143Wn.2d 1,6, 17 P.3d 591 (2001).
       7 Robinson. 172 Wn.2d at 791.
No. 71127-0-1/8




      Contrary to his assertion that the        prosecutor's statements about

sentencing were "inconsistent and confusing," the State explained the meaning

of "indeterminate sentence" and clearly stated the standard range, which

DeGuzman confirmed he understood. DeGuzman had experience with the plea

process, having entered guilty pleas to two previous felony charges. In short, the

record contradicts DeGuzman's assertion that he "did not clearly understand the

terms and consequences of the plea agreement."

      DeGuzman cites several cases in support of his argument that his

misunderstanding of sentencing consequences made his plea involuntary. But in

the cases he cites, the defendants' guilty pleas were based on mistakes: a

miscalculated offender score,8 a legal error about the consequences of juvenile

convictions,9 or misinformation about the proper standard range sentence.10

Here, by contrast, the record shows that defense counsel and the State correctly

advised DeGuzman of the sentencing consequences of his plea. DeGuzman's

case is more analogous to State v. Blanks.11 where the defendant argued that

he misunderstood the plea agreement's words, "Defendant can petition for

SSOSA. State will oppose SSOSA," to mean that the agreement contained a

SSOSA recommendation.       In Blanks, the defendant's former defense attorney

testified that "he explained the plea in great detail and that Blanks apparently



      8 State v. Mendoza. 157 Wn.2d 582, 584-85, 141 P.3d 49 (2006).
      9 Robinson. 172 Wn.2d at 785-86.
      10 Walsh. 143 Wn.2d at 3-4, 8-9.
       11 139 Wn. App. 543, 551, 161 P.3d 455 (2007).

                                        -8-
No. 71127-0-1/9




understood that the State would not recommend a SSOSA."12 Division Two of

this court held that the record supported the trial court's finding that Blanks was

not a credible witness and that the case was one of "'buyer's remorse.'"13 Here,

given the detailed plea colloquy, DeGuzman's numerous opportunities to ask

questions or reject the plea, and DeGuzman's own testimony, the record amply

supports the trial court's finding that DeGuzman understood the consequences of

his plea and thus entered it voluntarily. The court did not abuse its discretion in

denying DeGuzman's motion to withdraw his guilty plea.

                                     Conclusion


          Because the record shows that DeGuzman was fully advised of the

consequences of his guilty plea and thus made his plea voluntarily, the trial court

did not abuse its discretion in denying his motion to withdraw the plea. We

affirm.




WE CONCUR:




                                                                                CD
                                                                                cc




          12 Blanks. 139 Wn. App. at 551.
          13 Blanks. 139 Wn. App. at 551.
