      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 77443-3-I
                       Respondent,
       v.                                        DIVISION ONE

JEFFREY ALLEN COOK,                              UNPUBLISHED OPINION

                       Appellant.                FILED: April 22, 2019


       LEACH, J.   —   Jeffrey Allen Cook appeals his conviction for communication

with a minor for immoral purposes~       He challenges the constitutionality of his

Alford1 plea, claiming that the inadequate medical care he received in jail to treat

his neurological condition amounted to coercion making his plea involuntary. But

Cook does not show that the jail provided inadequate care. We affirm.

                                    BACKGROUND

       In May 2017, Cook followed a 12-year-old girl into the employee-only

section of a store. There he told her that he would take off her pants and grab




       1North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
No. 77443-3-I I 2


her “pussy.”2 The State charged him with felony communication with a minor for

immoral purposes. The court held him on $50,000 bail.

       Cook has a traumatic brain injury and experiences related symptoms.

While in jail, he experienced ongoing seizures. Cook twice asked the trial court

to release him from pretrial confinement.      He claimed that the jail could not

adequately address his medical issues. He submitted X-rays as evidence of his

brain injury.   His trial counsel stated that Cook had received only pain and

seizure medications in jail and his condition was worsening. And his counsel

stated that he had an appointment with a physician at the University of

Washington (UW) that was delayed because he was in jail.

       The court heard from Pascal Herzer, a representative of the King County

jail. Herzer told the court that he gave Cook’s X-rays to Dr. Benjamin Sanders,

the medical director of the Jail Health Services (JHS) division of the King County

jail. Sanders told Herzer that JHS was aware of Cook’s medical issues, was able

to treat Cook as needed, and could refer and transport him to a specialized

physician if necessary. Herzer stated, “[T]here is certainly no evidence that has

been provided to us that Jail Health is not able to appropriately treat whatever

medical condition is being alleged.”

       The court denied both of Cook’s release requests.         After the second

denial, Cook stated, “I’ll take [the prosecutor’s] deal. Let me get out of here.” In


       2  These facts are from the certification for determination of probable
cause, which Cook stipulated the trial court could use as the factual basis for his
guilty plea.

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No. 77443-3-I I 3


September 2017, Cook entered an Alford plea. He denied guilt but agreed that

the State had substantial evidence upon which a trier of fact could find him guilty

of an amended charge of misdemeanor communication with a minor for immoral

purposes. The State recommended a suspended sentence of 364 days on the

condition that Cook serve 6 months in jail. Cook affirmed on the record that he

had consulted with his attorney, understood the charge against him and the

rights he was giving up, understood that the court could impose any sentence up

to the statutory maximum, and was pleading guilty freely and voluntarily. Cook’s

trial counsel stated that he and Cook had spent “an immense amount of time”

having “infinite discussions” about the plea agreement. His counsel stated that

Cook was aware of the rights he was giving up and was “confident” that his plea

was knowing, intelligent, and voluntary.            The trial court then engaged in a

colloquy with Cook and found that he was “knowingly, willingly, and voluntarily

entering th[e] guilty plea.”

       Cook requested a lenient sentence because of his medical issues. His

trial counsel stated that Cook’s childhood trauma, his use of the wrong

medication, and his being “in and out of hospitals,” made his medical care

“probably greater than what.   .   .   the jail can [handle].” Cook told the court that the

week of the incident, he was in the UW’s emergency room for seizures.                   He

stated that an MRI (magnetic resonance imaging) he had received a year earlier

showed damage to his prefrontal cortex. And he stated that a neurologist at UW

believed that a stroke may have damaged his frontal lobes. Cook also presented


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No. 77443-3-1/4


testimony from social worker Matthew Diamond who worked with Cook at the

Downtown Emergency Service Center.            Diamond testified that before Cook’s

incarceration, Cook had an appointment “to get the proper diagnosis and start

seeking the correct medical attention that he needs for his issues.” Diamond

stated that Cook needed to see a neurologist.

      The trial court declined to follow either party’s recommendation.          It

sentenced Cook to 364 days in jail. Cook appealed. He also asked the court to

reconsider the length of his sentence, asserting that his complex medical history

and the jail’s inability to provide him the necessary medical care meant “further

incarceration can create long range medical issues for when he is finally

released.” The court denied this request.

      Three months after sentencing, Cook made a pro se oral request to

overturn his conviction because he felt the jail’s inadequate medical care coerced

him into pleading guilty. He labeled his request a “writ of habeas corpus” and a

“motion to seal.”   He stated that he received no medical care besides his

antiseizure medication until he had been in jail 55 or 56 days. He claimed that he

was not able to see his neurologist until he had been in jail for 129 days. He also

stated that he had “not received the health care that [he] feel[s] is necessary to

protect [his] health” because the doctors he had seen while incarcerated were

not seeing “the blood flow issues” in his brain that one of his previous doctors

had observed.




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No. 77443-3-I / 5


         The trial court framed Cook’s request as a motion for a new trial and

evaluated it under CrR 7.5(a)(5).                This rule permits a new trial when “a

substantial right of the defendant was materially affected” by an “[i]rregularity in

the proceedings of the court.    .   .   or abuse of discretion, by which the defendant

was prevented from having a fair trial.”3 The court defined the issue as whether

Cook made his plea knowingly, intelligently, and voluntarily. Cook agreed that he

was asking for a new trial and agreed with the court’s characterization of the

issue.

         The prosecutor stated that Cook did not submit medical testimony

supporting his claims at the bail hearings and is an intelligent individual who

pleaded guilty voluntarily.     Herzer summarized Sanders’s declaration, which

described the medical care Cook had received in jail.               Before Cook pleaded

guilty, he saw a registered nurse and received a prescription that the jail filled.

After Cook pleaded guilty, he had multiple follow-up appointments with the jail’s

medical clinic and saw a UW neurologist. Sanders reiterated,

         JHS is actively monitoring and treating Mr. Cook’s existing medical
         concerns. If JHS is unable to address Mr. Cook’s concerns within
         the King County Correctional Facility or the Maleng Regional
         Justice Center, JHS is able to refer Mr. Cook to an outside
         provider/specialist as needed.     JHS is unaware of any medical
                                             .   .   .


         concern pertaining to Mr. Cook that it cannot either treat itself or
         refer to an outside provider.

         The trial court denied Cook’s request for a new trial, stating that Cook did

not show a “manifest injustice” had occurred.              It noted that the previous trial

         ~ CrR 7.5(a)(5).


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No. 77443-3-I I 6


judge had found that Cook’s decision to enter his guilty plea was knowing,

intelligent, and voluntary. The court’s written order states, “JHS has listened to

the concerns of the defendant and provided appropriate access to care.”

                                     ANALYSIS

       Cook contends that his guilty plea was involuntary because he pleaded

guilty only to gain access to medical care outside of the jail, which was not

providing him adequate care. We disagree.

       We review a trial court’s denial of a motion for a new trial or to withdraw a

guilty plea for an abuse of discretion.4

       The Fourteenth Amendment’s due process clause requires that a

defendant’s guilty plea be knowing, voluntary, and intelligent.5 CrR 4.2 protects

criminal defendants by mandating that a defendant enter into a guilty plea

voluntarily and by requiring the trial court to ensure that the facts support a plea.

“[T]he record of the plea hearing must affirmatively disclose a guilty plea was

made intelligently and voluntarily, with an understanding of the full consequences

of such a plea.”6      A defendant’s written statement on a plea of guilty in

compliance    with   CrR    4.2(g)   provides    prima   facie   verification   of   its

constitutionality.7 “[W]hen the written plea is supported by a court’s oral inquiry



      ~ State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981); State v.
Wilson, 162Wn. App. 409, 414, 253 P.3d 1143 (2011).
       ~ State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006); Boykin v.
Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
       6Wood v. Morris, 87Wn.2d 501, 502-03, 554 P.2d 1032 (1976).
       7Statev. Davis, 125 Wn. App. 59, 68, 104 P.3d 11(2004).

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No. 77443-3-I I 7


on the record, the presumption of voluntariness is well nigh irrefutable.”8 “[A]

defendant who seeks to later retract his admission of voluntariness will bear a

heavy burden in trying to convince a court or jury that his admission in open court

was coerced.”9

       CrR 4.2(f) governs motions to withdraw guilty pleas before judgment. It

requires the court to allow a defendant to withdraw a plea to correct a “manifest

injustice.”10 CrR 7.8 provides for motions to withdraw guilty pleas after judgment,

such as when an excusable irregularity exists.11 “While correction of a manifest

injustice is a sufficient basis to permit withdrawal of a guilty plea under CrR 4.2(f),

withdrawal of [a] guilty plea [after the judgment was entered] must also meet the

requirements set forth in CrR   7.8.”12


       Here, the trial court improperly cited CrR 7.5, which governs when a court

may grant a defendant a new trial. And although Cook asked to withdraw his

plea after the court entered the judgment, the court held that Cook’s guilty plea

was not a “manifest injustice,” the standard used when a defendant asks to

withdraw his guilty plea before the court has entered the judgment. Regardless,

Cook does not show that his guilty plea was not knowing, intelligent, and

voluntary.



       8  Davis, 125 Wn. App. at 68 (quoting State v. Perez, 33 Wn. App. 258,
262, 654 P.2d 708 (1982)).
      ~ State v. Frederick, 100 Wn.2d 550, 558, 674 P.2d 136 (1983).
       10 CrR 4.2(f).
       11 CrR 7.8(b)(i).
       12 State v. Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012).



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No. 77443-3-I I 8


      Cook signed a written statement on a plea of guilty in compliance with CrR

4.2(g). Both the prosecutor’s and the trial court’s inquiries on the record support

this plea. Although Cook stated that he did not receive the care that he felt he

needed to protect his health, he did not present any evidence showing that the

jail did not or was unable to provide adequate care.      Nor did he present any

medical testimony to support his own testimony, his trial counsel’s statements, or

Diamond’s testimony about his medical issues. He does not show that the trial

court abused its discretion by upholding his plea.

                                  CONCLUSION

      We affirm.



                                                      ~LJ
WE CONCUR:



                    I                                41!f4      4~P        I
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