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                                                                                    FILED 

                                                                                  OCT 22,2015

I                                                                         In the Office of the Clerk of Court
                                                                        W A State Court of Appeals, Division III




              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                 DIVISION THREE 


     STATE OF WASHINGTON,                            )          No. 32666-7-111
                                                     )
                           Respondent,               )
                                                     )
                   v.                                )          UNPUBLISHED OPINION
                                                     )
     PAUL CHARLES HOLLAND,                           )

                                                     )

                           Appellant.                )


            BROWN, A.C.J. -     Paul Charles Holland appeals his conviction for criminal

     mischief while armed. He contends the trial court erred in denying his motion to

     withdraw his guilty plea because it was involuntary due to anxiety and physical distress.

     Finding no abuse of trial court discretion, we affirm.

                                             FACTS

            The State of Washington charged Mr. Holland with one count of felony

     harassment-threat to kill; the standard range sentence if convicted is 22 to 29 months

     incarceration. Before trial, the parties failed to resolve the matter.

            At trial during jury deliberations, the jury sent a note to the trial court, stating:

     H[w]e cannot come to a unanimous decision." Clerk's Papers (CP) at 86. While the trial
No. 32666-7-III
State v. Holland


court and counsel discussed a response to the note, defense counsel requested the trial

court excuse Mr. Holland to use the men's room because he was feeling ill. Mr. Holland

explained, "I'm okay. I just don't want to get sick." Report of Proceedings (RP) at 260­

61. The trial court granted Mr. Holland's request to leave the courtroom, if needed. The

record does not show if Mr. Holland removed himself from any of the proceedings.

       While the trial court and counsel continued to confer about the first jury note, the

court received a second note asking how much time elapsed between a 911 call and when

sheriff deputies arrived at the scene. Counsel and the trial court agreed that the court

would inform the jury that it received all the evidence and no further response could be

made. With approval of both counsel, the court directed the jury to continue

deliberations.

       The jury later reached a verdict. When the trial court informed the parties of a

verdict, defense counsel advised the court the case had been resolved:

              Your Honor, following the initial questions of the jurors, the State
       and Mr. Holland and I started discussing a potential resolution of this case
       recognizing that the jurors initially indicated that they were hung and they
       didn't know which way to go in terms of proceeding forward. So we have
       resolved this case. We'd ask the Court to consider that and permit Mr.
       Holland to enter a plea. It would be an unranked felony. He has agreed to
       do four months in Grant County Jail. The State is in agreement ...

RP at 270.



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No. 32666-7-III
State v. Holland


       After reciting the agreement by counsel, Mr. Holland stated, "Thank you, sir." Id.

The trial court replied, "All right. 1 haven't --." Mr. Holland interrupted: "No. No. I'm

just saying thank you. Thank you, sir." RP at 272-73. The trial court expressed interest

in not wasting jurors' time in light of the eleventh hour plea deal and the need for time. to

complete paperwork to confmn the plea and proposed bringing in the jury, polling the

jurors, but not announcing the verdict to the attorneys or Mr. Holland.

       The State agreed; however, Mr. Holland said "no." Id. at 276. The trial court

continued, "So then we proceed with the guilty plea, and then 1 would hold onto the

verdict until, 1 guess, sentencing. But, 1 mean, that's up to the parties to agree to." Id. at

277. The State again agreed to the trial court's proposal. Mr. Holland stated, "I

understand." Id. The court then reiterated, "You're not going to know what the verdict

is." Id. Mr. Holland replied: "I understand. It's fair." Id. When the court repeated that

the verdict would not be announced before the guilty plea, Mr. Holland said, "Thank you,

sir." RP at 277-78. Defense counsel stated he and Mr. Holland agreed to the trial court's

proposal "because we want to effectuate that guilty plea." RP at 277.

       Trial counsel prepared paperwork to enter a guilty plea, while the trial court,

outside the presence of Mr. Holland and the attorneys, received the verdict, but did not

announce the verdict. The court polled the jury and advised the parties it would not file


                                               3

No. 32666-7-II1
State v. Holland


the verdict until after acceptance of the guilty plea.

       The trial court accepted Mr. Holland's plea. Defense counsel assured the court he

had reviewed the plea paperwork with Mr. Holland and they were ready to proceed. The

trial court confmned with Mr. Holland that he had reviewed the entire statement of

defendant on plea of guilty. The trial court confmned Mr. Holland agreed to the process

of delaying filing of the verdict until acceptance of the guilty plea. Mr. Holland again

answered that he understood.

       The following colloquy then occurred:

              COURT: Do you need any more time to read this, Mr. Holland?
              MR. HOLLAND: No sir.
              COURT: Do you need any more time to talk to your attorney?
              MR. HOLLAND: No. sir.
              COURT: Has anyone made any threats or promises to get you to
       enter a guilty plea?
              MR. HOLLAND: Not at all, sir.
              COURT: Are you confused about anything in this case?
              MR. HOLLAND: No.
              COURT: No?
              MR. HOLLAND: No, sir.
              COURT: Okay. And do you have any questions about your case at
       all?
              MR. HOLLAND: No, sir.
              COURT: And you understood everything you read on this Plea of
       Guilty?
              MR. HOLLAND: Yes, sir. Yes, sir. Yes, sir.

RP at 285-86.


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No. 32666-7-111
State v. Holland


      During the colloquy, the court questioned Mr. Holland about his stomach ailment:

             THE COURT: Also, I know that while you were waiting for the
      verdict from the jury, you expressed some discomfort, maybe some stomach
      pain. Is that what you had?
             THE DEFENDANT: Yes, sir. 

             THE COURT: Okay. And was that over some anxiety over this 

      case?
             THE DEFENDANT: Yes, sir.
             THE COURT: Has that affected your ability to understand these -­
             THE DEFENDANT: No, sir. It hasn't affected my ability -­
             THE COURT: Okay. It hasn't -­
             THE DEFENDANT: -- ahead of time. Sorry.
             THE COURT: Has it affected your ability to understand this guilty
      plea?
             THE DEFENDANT: No, sir, it hasn't.
             THE COURT: Has it affected your ability to talk to your attorney
      and understand what your attorney is advising you?
             THE DEFENDANT: No, sir, it hasn't.
             THE COURT: Or to understand what I'm saying?
             THE DEFENDANT: No, sir, it hasn't.
             THE COURT: Do you understand once you plead guilty it's final?
      You can't ask for a trial or ask for relief consistent with any verdict the jury
      may have reached. Do you understand that?
             THE DEFENDANT: (Nodding)

             THE COURT: Okay. And you understand by pleading guilty you're
      giving up your right, first of all, to wait for the jury verdict? Do you
      understand that?
             THE DEFENDANT: Yes, sir.

                THE COURT: All right. Do you have any final questions about this
      case? 

                THE DEFENDANT: Me? 

                THE COURT: Yeah. 

                THE DEFENDANT: No, sir. 


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No. 32666-7-111
State v. Holland


              THE COURT: Are you ready to enter your plea?
              THE DEFENDANT: Yes, sir.
              THE COURT: Okay. Any confusion about what we're doing here?
              THE DEFENDANT: No.
              THE COURT: All right. To the charge of felony criminal mischief
       while armed, how do you plead?
              THE DEFENDANT: Guilty.
              THE COURT: Okay. I'll accept your guilty plea. This is an In Re
       Barr plea. There is a basis to accept the plea.

RP at 291-95.

       After accepting the plea, the court disclosed the jury's not guilty verdict. Mr.

Holland responded, "The system works.", and added, "I'm an idiot, but the system does

work. I'm a coward. 1 should have never took the - I'm a coward." RP at 296. He then

thanked the judge and defense counsel.

       Before sentencing, Mr. Holland moved to withdraw his guilty plea, asserting the

wait for the verdict had upset his stomach and that he felt sick the entire time the jury

deliberated. He claimed the "only way 1 was going to get away from the courthouse and

surrounding area was to accept the plea. 1 know 1 told the judge that 1 had enough time to

think about the matter, but all 1 kept thinking was that 1 needed to take the deal and tell

the judge what he wanted to hear so that 1 could get out of the courthouse."

CP at 105. The trial court denied the motion, explaining Mr. Holland had understood the

plea process.


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     No. 32666-7-111 

     State v. Holland 



 i          During sentencing, Mr. Holland commented that he regretted hearing the verdict
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     and that the court should have followed the jury's verdict. The court sentenced Mr. 



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   Holland to 4 months with 15 days converted to 120 hours of community service. 


                                             ANALYSIS

            The issue is whether the trial court erred in denying Mr. Holland's motion to
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I    withdraw his plea. Mr. Holland contends his guilty plea was involuntary because his wait
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     for the jury verdict caused his stomach to ache and he felt ill during the entirety of the
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     jury deliberations. He argues the State unfairly engaged in "subtle coercion" by


Ii   negotiating a plea agreement after the parties learned that the jury was having difficulty

     reaching a verdict. Br. of Appellant's at 7. The State responds, "This is a case of buyer's
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~    remorse, not manifest injustice." Br. ofResp't at 7.

I           Withdrawal ofa guilty plea is governed by erR 4.2(t), which permits a guilty plea

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     to be withdrawn solely when "it appears that the withdrawal is necessary to correct a
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1    manifest injustice." A manifest injustice is defmed as an injustice that is "obvious, directly
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i!   observable, overt, not obscure." State v. Taylor, 83 Wn.2d 594,596,521 P.2d 699
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I    (1974). This standard is demanding because a defendant's written plea statement is prima
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I    facie evidence that the plea is voluntary when the defendant acknowledges reading and
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.,   understanding the statement and that the contents ofthe statement are true. State v. Perez,


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    No. 32666-7-II1
    State v. Holland


    33 Wn. App. 258, 261, 654 P.2d 708 (1982).

           Washington law recognizes at least four instances when a guilty plea constitutes a

    manifest injustice: (1) denial of effective counsel, (2) a plea not ratified by the defendant

    or one not authorized by him, (3) a plea was involuntary, and (4) a plea agreement was

    not kept by the prosecution. Taylor, 83 Wn.2d at 597. Mr. Holland argues

    involuntariness.

           We review a trial court's denial ofa defendant's motion to withdraw a guilty plea

    for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118,422 P.2d 312 (1966).

    Overturning the trial court requires a showing the court's exercise of discretion was

    clearly untenable or manifestly unreasonable. Olmstead, 70 Wn.2d at 119.

           We conclude the trial court did not abuse its discretion in denying Mr. Holland's

    motion to withdraw the guilty plea. First, the trial court was free to discount the veracity

    of Mr. Holland's claim that his anxiety interfered in a meaningful decision to enter a

    guilty plea. A trial court need not accept a declaration from the defendant in support of a

    motion to withdraw the guilty plea at face value. Withdrawal of a plea taken with all the

    appropriate safeguards requires more evidence than a mere allegation by the defendant.

    State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984). Second, even if we accept Mr.

    Holland's declaration in support of his motion as accurate, the facts he relates do not


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No. 32666-7-II1
State v. Holland


render his plea involuntary.

       Mr. Holland admitted that he reviewed the plea agreement with his counsel before

entering a guilty plea. When a defendant fills out a written statement on plea of guilty in

compliance with erR 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. In re Detention ojScott, 150 Wn. App. 414, 427, 208 P.3d 1211

(2009).

       Moreover, as detailed above, the trial court meticulously questioned Mr. Holland

concerning his willingness to enter the plea. The trial court twice obtained his consent to

the plea taking process. Mr. Holland agreed he could not renege on the plea agreement if

the jury returned a not guilty verdict. The trial court observed Mr. Holland's demeanor

during the questioning and answering and concluded he voluntarily entered the plea.

When the judge inquires orally of the defendant and satisfies himself on the record of the

existence ofthe various criteria ofvoluntariness, the presumption ofvoluntariness is

nearly irrefutable. State v. Branch, 129 Wn.2d 635,642, 919 P.2d 1228 (1996).

       Anxiety and stress from suspense are inherent in any criminal prosecution.

Physical distress is a likely result. Nevertheless, Mr. Holland's emotional and physical

distress does not negate the voluntariness of his plea. See, e.g., Commonwealth v.



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         No. 32666-7-111 

         State v. Holland 

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         Williams, 71 Mass. App. Ct. 348, 354-355, 881 N.E.2d 1148 (2008) (fmding that a judge
I        may recognize that psychological stress or emotional pressure is inherent in the decision


I        to enter a guilty plea, but this stress does not necessarily render the plea involuntary).

                Finally, Mr. Holland cites State v. Frederick, 100 Wn.2d 550, 674 P.2d 136

         (1983), overruled in part on other grounds by Thompson v. Dep't ofLicensing, 138

         Wn.2d 783, 982 P.2d 601 (1999), for the proposition that coercion may render a guilty
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J        plea involuntary and void. However, Frederick is distinguishable. In that case, evidence

I        showed Mr. Frederick's co-defendant threatened to kill him ifhe did not plead guilty; the
1        court decided this evidence was admissible in a habitual criminal proceeding where Mr.
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         Frederick tried to challenge an earlier conviction based on a guilty plea. Frederick, 100

J        Wn.2d at 553, 558.

I               Here, the alleged source of coercion is the State's offer to plead the case after jury

         deliberations stalled. We reject Mr. Holland's coercion claim. The plea hearing record
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~        shows Mr. Holland made an intelligent and voluntary decision to take a calculated risk.


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         Before entering his guilty plea, Mr. Holland affirmed the verdict could go either way. He

         volunteered that withholding announcement of the verdict until after entry of the plea was

j        fair. The court engaged in a lengthy colloquy with Mr. Holland about his understanding

j        of the agreement, whether he had been given enough time with his attorney to understand

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        No. 32666-7-111
        State v. Holland
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I       everything, and whether he had any questions for the court. Finally, the court inquired

j       into whether any physical discomfort interfered with his ability to understand the plea

{,      agreement. In view of this record, Mr. Holland fails to meet the demanding burden for
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        withdrawal of a guilty plea. We conclude the trial court acted within its discretion in

        denying Mr. Holland's motion to withdraw his guilty plea.
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I              Affinned.
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              A majority of the panel has detennined this opinion will not be printed in the
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J       Washington Appellate Reports, but it will be filed for public record pursuant to RCW

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        2.06.040.

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                                                            ~~~
                                                            Brown, A.C.J.
                                                                                                  

               WE CONCUR:

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I              Lawrence-Berry, J.
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