                                                                                                                  FILED
                                                                                                      COURT OF APPEALS
                                                                                                          DIVI"'31ON 11

                                                                                                    2015 JUIL- - 7    AM 8: h8
IN THE COURT OF APPEALS OF THE STATE OF WASHILNGTON
                                                                                                     STM OFn;IASFIINGTON

                                              DIVISION II                                            19   Y\ --- A'
                                                                                                                  D




  STATE OF WASHINGTON,                                       No. 46514 -1 - II


                   Respondent,


            V.                                               UNPUBLISHED OPINION


  JOEL P. REESMAN,


                   Appellant.




         MAXA, J. —      Joel Reesman appeals the trial court' s dismissal of his motion to withdraw


 his guilty plea, arguing that CrR 7. 8( c)( 2) required the trial court to either transfer his motion to

 this court as a personal restraint petition (PRP) or hold a hearing on the factual basis of his

 motion.    The State   concedes   that the trial court did not comply   with   CrR 7. 8(   c).   We accept the


 State' s concession. In addition, Reesman presents multiple assertions of error in his statement of

 additional grounds ( SAG).      Because several of the SAG assertions do not pertain to the order


 Reesman appeals, they are outside our scope of review and we do not consider them. We hold

 that the remainder of Reesman' s arguments are meritless.


         We reverse the trial court' s order denying Reesman' s motion to withdraw his guilty plea

 and remand for proceedings consistent with this opinion.


                                                    FACTS


           In January 2007, Reesman was charged with possession of a machine gun or short -

 barreled   shotgun or rifle,   two   counts of unlawful possession of   a firearm,   and    possession      of
46514 -1 - II



methamphetamine with a firearm enhancement under cause number 07- 1- 00090- 9 ( Case 1).


Reesman' s charge for possession of methamphetamine with a firearm enhancement was a third -


strike charge, meaning it carried the penalty of life in prison without the possibility of parole. In

June 2007, Reesman also was charged with unlawful possession of methamphetamine under


cause number 07- 1- 01092- 1 ( Case 2).


          On March 12, 2008, Reesman.waived his right to a jury trial for the charges brought

against   him in Case 1.   After a bench trial, the judge found Reesman guilty on each charge. The

trial court sentenced Reesman to life in prison. Reesman apparently appealed this judgment

and/ or conviction, but the record does not show when or how the appeal was resolved.


          On March 20, 2008, Reesman pled guilty to possession of methamphetamine in Case 2.

Reesman was sentenced to a standard range of 12 to 24 months in confinement for the offense,


which ran currently with Reesman' s sentence of life in prison.

          In December 2013, Reesman filed a PRP with our Supreme Court to withdraw his guilty

plea in Case 2, asserting in part that his attorney threatened to shoot and kill him in private and in

open court.     In March 2014,   our   Supreme Court denied Reesman'   s other claims,'   but transferred


Reesman' s motion to withdraw his guilty plea to the trial court for determination. Reesman was

appointed counsel.




          In June 2014, Reesman' s counsel submitted an email to the trial court stating that the

alleged threat occurred in Case 1, and that the motion to withdraw Reesman' s guilty plea

pertained to Case 2. The trial court reviewed the record and email representations by counsel,




 1 Reesman also made a motion to modify the acting commissioner' s ruling, motion for
 appointment of counsel, motion to order the Clark County sheriff to investigate, and motion to
join by nexus, which all were denied.
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46514 -1 - II




and it dismissed Reesman' s PRP with prejudice. The trial court did not conduct a hearing on the

issue.


            Reesman appeals.


                                                  ANALYSIS


A.          MOTION TO WITHDRAW GUILTY PLEA


            Reesman argues that the trial court' s order denying his motion to withdraw his guilty plea

should be vacated and the case remanded because the trial court failed to comply with CrR 7. 8' s

requirements. The State concedes that the trial court erred. We accept the State' s concession.


            If a motion to withdraw a plea is made after the judgment, it is governed by CrR 7. 8( b).

In   re   Pers. Restraint of Stockwell, 179 Wn. 2d 588, 595, 602, 316 P. 3d 1007 ( 2014). CrR 7. 8( c)


establishes the procedure for addressing CrR 7. 8( b) motions:

             2) Transfer to Court ofAppeals. The court shall transfer a motion filed by a
            defendant to the Court of Appeals for consideration as a personal restraint petition
            unless the court determines that the motion is not barred by RCW 10. 73. 090 and
            either (i) the defendant has made a substantial showing that he or she is entitled to
            relief or ( ii) resolution of the motion will require a factual hearing.

             3) Order to Show Cause. If the court does not transfer the motion to the Court of
            Appeals, it shall enter an order fixing a time and place for hearing and directing
            the adverse party to appear and show cause why the relief asked for should not be
            granted.




Accordingly, the trial court may rule on the merits of a CrR 7. 8( c) motion only when the motion

is timely filed and either ( a) the defendant makes a substantial showing that he is entitled to

relief, or (b) the motion cannot be resolved without a factual hearing. State v. Smith, 144 Wn.

App. 860, 863,         184 P. 3d 666 ( 2008). If these prerequisites are absent, the trial court must


transfer a timely petition to the Court of Appeals for consideration as a PRP. Id.

            Here, the trial court did not find that the motion was timely filed, that Reesman made a

substantial showing that he was entitled to relief, or that the motion could not be resolved

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46514 -1 - II




without a factual hearing. Nevertheless, the trial court denied Reesman' s motion to withdraw his

guilty   plea on     the   merits.   Under CrR 7. 8(      c)(   2),   the trial court did not have the authority to decide

the motion on the merits. Accordingly, the trial court erred.

          We vacate the trial court' s order and remand to the trial court to enter an order complying

with CrR 7. 8( c).


B..       SAG ASSERTIONS


          1.     Claims Outside the Scope of Review


          Reesman asserts several claims in his SAG challenging the conduct of his defense

counsel, the prosecutor, and the trial court in Case 1. 2 RAP 10. 10( a) states that in a criminal case

on direct appeal " the defendant may file a pro se statement of additional grounds for review to

identify and discuss those matters related to the decision under review that the defendant

believes have not been adequately addressed by the brief filed by the defendant' s counsel."

 Emphasis       added.)      We decline to address the claims relating to Case 1 because they are outside

the scope of this court' s review of Reesman' s challenge of his post -conviction PRP motion to


withdraw his guilty plea in Case 2.




z Reesman argues that ( 1) his attorney coerced him into waiving his right to a jury trial by
threatening     to    shoot   him,   which    the trial   court allowed; (     2) his attorney obstructed justice and
committed       the   crime of assault when         he threatened to         shoot   Reesman; ( 3) defense counsel, the

prosecutor, and the trial court denied Reesman due process of law and a fair trial by allowing his
defense    counsel     to threaten to       shoot   Reesman in         open court; (   4) the trial court erred in failing to
                                          into Reesman'                   competency to             trial; ( 5) the trial court
sua sponte order an           inquiry                      s mental                         stand


obstructed justice and was an " actor" in Reesman' s assault when it allowed Reesman' s attorney
to threaten to       shoot    him; ( 5)
                              his guilty plea was not knowing, intelligent, or voluntary due to
mental illness; and (6) his jury waiver and guilty plea were unconstitutional in light of the
alleged threat to shoot Reesman. SAG at 4.


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46514 -1 - II



         2.     Ineffective Assistance of Counsel


         Reesman argues that his defense counsel provided ineffective assistance because he

collaborated with the trial court when he emailed the trial court. We disagree.

         To prevail on his ineffective assistance of counsel claim, Reesman must show that ( 1) his


attorney' s performance was deficient, and ( 2) that deficiency was prejudicial. State v. Grier, 171

Wn.2d 17, 32- 33, 246 P. 3d 1260 ( 2011).                    An attorney' s performance is deficient if it falls below

an objective standard of reasonableness.                     Id.   at   33.   Such deficient performance is prejudicial if


there is a reasonable probability that the result of the proceedings would have been different in

its absence. Id. at 34.


         In June 2014, Reesman' s defense counsel submitted an email to the trial court stating the

following     about       Reesman'         s motion   to   withdraw      his guilty   plea: (   1) Reesman' s motion appeared


to   argue   that   he   wanted       to   withdraw   his guilty        plea entered   in Case 2; ( 2) Reesman pled guilty to


the   offense   in Case 2,          which ran concurrent       to Reesman'         s sentence under    Case 1; (   3) Reesman


based his argument for withdrawing his guilty plea on the basis that his attorney forced him to

waive   his   right      to   a   jury trial; ( 4) Reesman waived his right to a jury trial relating to the charges

in Case 1; and. (5) the purported justification for the withdrawal of Reesman' s guilty plea did not

exist in Case 2. Based on his review of the record, defense counsel wanted to know how the trial

court wanted to proceed.3

         Reesman argues that his counsel' s conduct in emailing the trial court and explaining that

the basis of Reesman' s motion to withdraw his guilty plea was not in accordance with the facts




3 It appears that this email was an ex parte communication with the trial court. We do not
endorse or approve ex parte contacts. Reesman' s argument goes to the substance, not the
circumstances of sending the email. Therefore, we do not address whether sending the email
was appropriate.


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46514- 1- I1




was deficient representation. This argument seems to suggest that defense counsel should have

either deliberately or by silence misrepresented the facts underlying Reesman' s guilty plea in

Case 2. This suggestion is directly contrary to an attorney' s duty of candor to the court, which

obligates an attorney to inform the court of a client' s allegations that the attorney believes to be

false. RPC 3. 3( a)( 2) (" A lawyer   shall not   knowingly ... fail to disclose a material fact to a

tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the

client.").    The failure of defense counsel to misrepresent the facts to the court is not deficient

performance.



        We hold that Reesman' s ineffective assistance of counsel claim fails. 4

         3.     Claim of Trial Court Collaboration


        Reesman argues that the trial court collaborated with Reesman' s defense counsel and


obstructed justice under RCW 9A.72. 110( 1) when it dismissed Reesman' s PRP petition in


violation of his due process rights. Reesman fails to demonstrate the existence of any such

collaboration. Therefore, we hold that this claim fails. State v. McFarland, 127 Wn,2d 322, 335,

899 P. 2d 1251 ( 1995) (   the burden is on the appellant alleging ineffective assistance of counsel to

establish deficient representation based on the record established in the proceedings below).


         4.     Cumulative Error


         Reesman contends that the cumulative error doctrine entitles him to relief because the


combined effect of the alleged errors denied him a fair trial. We disagree.




4 Reesman also argues that his attorney' s email was a conflict of interest, a manifest
constitutional error, and a due process violation. There is no evidence in the record to support
these contentions. We decline to address these claims further. State v. McFarland, 127 Wn.2d
322, 335, 899 P. 2d 1251 ( 1995).
46514 -1 - II




         Under the cumulative error doctrine, the court may reverse a defendant' s conviction

when the combined effect of trial errors effectively denies the defendant his or her right to a fair

trial, even if each error alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P. 3d


646 ( 2006). The defendant bears the burden to show multiple trial errors and that the


accumulated prejudice from those errors affected the outcome of his or her trial. In re Pers.

Restraint of Cross, 180 Wn.2d 664, 690, 327 P. 3d 660 ( 2014). Because Reesman has failed to


show any prejudicial errors affecting his conviction, we hold that Reesman failed to show that

the accumulated prejudice of multiple trial errors affected the outcome of his trial.


         We reverse the trial court' s order denying Reesman' s motion to withdraw his guilty plea

and remand for proceedings consistent with this opinion.


         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.




                                                        MAXA, J.




We concur:


                         M




   V(()RgS      ICK, P. J.



                    a




  MELNICK, J. ;




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