                                                                                            FILED
                                                                              COURT OF APPEALS
                                                                                          DIVISION II

                                                                             2015. M AY - 5      AM 9 26
                                                                             STATE: OF WASHINGTON

                                                                              S" .....,
                                                                                                0 ,.


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

 STATE OF WASHINGTON,                                                       No. 44949 -8 -II


                                  Respondent,


          v.



 MARK SCOTT MACY,                                                    UNPUBLISHED OPINION


                                  Appellant.


       WORSWICK, J. —       Mark Scott Macy filed a pro se CrR 7. 8 motion to withdraw his guilty

plea to second degree assault and felony harassment, which motion the trial court denied. Macy

appeals, asserting that the trial court erred by denying his motion without first appointing him
counsel. In his statement of additional grounds ( SAG) for review, Macy raises several claims of

ineffective assistance of counsel, but all of his claims refer to matters outside the record on

appeal. We affirm.


                                                 FACTS


       On October 13, 2011, the State charged Macy with one count of second degree assault,

with special allegations of domestic violence and sexual motivation, and one count of felony

harassment, with a special allegation of domestic violence. On November 16, 2011, Macy

pleaded
          guilty to both   charges under   North Carolina   v.   Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L.
No. 44949 -8 -II



Ed. 2d 162 ( 1970)    and   State    v.   Newton, 87 Wn.2d 363, 552 P. 2d 682 ( 1976). Pursuant to his


guilty plea agreement, Macy agreed that the trial court could review the police reports to

establish a factual basis for his crimes.


        According to the police reports, Bremerton Police officers went to Macy' s residence on

September 15, 2011 in response to a call from a female who was heard crying and asking for

assistance. The female caller stated that she could not speak freely and asked for police to be

sent in a hurry. When the officers arrived at Macy' s residence, Officer Matthew Thuring looked

through a large window next to the front door and saw Macy holding onto a female. Thuring

also saw what appeared to be areas of fresh blood on white bed sheets.

          When Officer Hughes' knocked on the front door, Macy answered and asked the officers,

  W] hy   are you   here ?"   in what Thuring described as a mocking tone. Clerk' s Papers (CP) at 7.

Hughes told Macy that the officers were responding to a 911 call; Macy responded that nothing

was happening at the house. When Hughes told Macy that he needed to talk with the female,

Macy told him that " she       did   not   have anything to say."   CP at 7. As Hughes was talking with

Macy, the victim motioned to Thuring that she had been hit in the face and showed him blood

covered tissues that she was holding.

          Hughes told Macy that the officers needed to enter the residence to speak with the victim,

to which   Macy     responded, "[     T] his is my house [   and] you   don' t   need   to   come   in." CP at 7.


Thuring told Macy that the officers needed to enter the residence to see if anyone was hurt, and

Macy stated that no one was hurt. Thuring asked Macy whether anyone was bleeding; Macy

stated that no one was bleeding and then asked Thuring why he would ask that question. When


 1 The police report does not provide Officer Hughes' s first name.


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No. 44949 -8 -II



Thuring told Macy that he was entering the residence to speak with the victim, Macy blocked the

doorway with his body. Thuring eventually entered the residence and spoke with the victim.

          When       Thuring     asked   the   victim about   her injuries, the   victim said, "[   Macy] can' t know

that I   called you or      he   will   beat   me worse."    CP at 7. Thuring saw that the victim had a swollen

nose that was turning purple and had two black eyes. Macy yelled that the victim was not hurt

and glared at her in an intimidating manner. The officers arrested Macy and removed him from

the residence.



          After Macy was placed outside the residence, the victim told Thuring that Macy was

drunk and trying to force her to have sex with him. She stated that she tried to ignore Macy' s

advances, but he became enraged and threatened to kill her and throw her in a river. The victim

said   that   Macy hit     her in the face      and   left breast before telling her to   clean   herself up. She stated


that after Macy left the room, she called 911 on her cell phone and hid the phone in a nearby

dresser. The victim told Thuring that " he was just about to rape me when you knocked on the

door."     CP   at   8.   She also told Thuring that Macy had assaulted her in January 2011, which

assault caused her to have two broken ribs and a cracked sternum. While the victim was


speaking to Thuring, Macy yelled to the victim that he would be out ofjail soon and would

return home.


           The trial court accepted Macy' s Alford/Newton plea on November 16, 2011, finding that

there was a factual basis for the plea and that the plea was knowingly, intelligently and

voluntarily     made.       A sentencing        hearing   was scheduled   for December 15, 2011. At the


December 15 hearing, Macy stated that he wanted to withdraw his guilty plea; the trial court

appointed additional counsel to advise Macy about withdrawing his guilty plea. At a December



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No. 44949 -8 - II



29, 2011 status hearing, Macy stated that he no longer wanted to withdraw his guilty plea. Macy

again stated that he wanted to withdraw his guilty plea at a January 23, 2012 sentencing hearing,

and the trial court again appointed him counsel to advise him regarding the withdrawal of his

guilty plea. Macy again abandoned his wish to withdraw his guilty plea and, on February 3,

2012, the trial court imposed its sentence.


            On January 31, 2013, Macy filed a pro se CrR 7. 8 motion to withdraw his guilty plea.

Macy' s motion to withdraw his guilty plea asserted that ( 1) there was an insufficient factual basis

to accept his guilty plea because the victim' s statements in the police reports were inadmissible

hearsay     and   because the    victim      recently     recanted   her   statements, (    2) the State improperly

threatened to charge him with more serious crimes if he did not agree to plead guilty, and ( 3) his

counsel was ineffective for failing to conduct an adequate investigation. Macy attached to his

motion an affidavit from the victim, in which the victim stated that on the night of the incident

                                                                                        police, ( 2)   she had tripped and
 1)   she   had been intoxicated           while   giving her   statement      to the



fallen into a wall causing her nose to bleed, and ( 3) Macy had not made any sexual advances

toward her.


            The trial   court   held   a   hearing   on   Macy' s   motion on      March 8, 2013. At the March 8


hearing, the trial court stated that it would need to schedule a " fact- finding hearing on the issue

of whether or not there was a sufficient factual basis for the plea and whether or not [ defense

counsel] made a reasonable             investigation." Report            of   Proceedings ( RP) ( Mar. 8, 2013) at 5. At


the April 26 fact -finding hearing, Macy requested that the trial court appoint him counsel. The

trial   court   told   Macy, " I' m not      obliged   to   appoint a    lawyer for     you ...   for a post -trial proceeding




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No. 44949 -8 -II



unless   I   conclude     that   your motion      is   meritorious."       RP ( Apr. 26, 2013)      at    3.   Macy again

requested the appointment of counsel, and the trial court stated:


             I' m   not prepared        to say that    your motion        is   meritorious at   this     point.   If there' s

             further evidence adduced, maybe I will change my mind. But at this point, I don' t
             see any merit to your motion.

RP ( Apr. 26, 2013)         at   5.     The trial court then asked Macy if he wanted to call any witnesses to

testify at the hearing. Macy stated that he wanted to subpoena the recanting victim to testify, and

the trial court responded that he should have subpoenaed her to testify prior to the hearing. Macy

then called his father who testified that the victim was under the influence of alcohol on the night

of the incident. The trial court denied Macy' s motion to withdraw his guilty plea, stating:.

             Mr. Macy, your motion to withdraw your guilty plea is denied. There is a factual
             basis in the record to support your guilty plea. The fact that a witness, even a victim
             witness, recants — if, in        fact,   she   did   recant —     but even if she did, that is not a basis
             for withdrawing your guilty plea. Complaining witnesses recant all the time. And
             there' s no more basis for believing her recantation now than her original testimony.
                      I see no basis. I see nothing in the file that the prosecuting attorney' s office
             overstepped        its bound.      It' s completely          normal     and   proper   to    charge   you —to

             threaten to charge you with other additional more serious crimes if you do not plead
             guilty. I do not see any basis in the record that the attorneys in your case committed
             any form of malpractice or were otherwise insufficient in their performance of their
             duties to you. It is not an involuntary plea to plead guilty because you believe the
             prosecutor will charge you with more significantly serious crimes if you do not do
             so.

                       For those reasons, I am denying your motion to withdraw your plea of guilty
             and your motion for a new trial.


RP ( Apr. 26, 2013)         at    11.    After the trial court announced its ruling, the following exchange took

place:




              Macy]: So is there another action that I can go for now?
              Trial   court] :   I can' t give you legal advice, sir.
              Macy]:    Can I     get an attorney? I mean, can I get an attorney while I am here?
              Trial   court]:    If you file a motion that has merit, I' m authorized, in my discretion,
             to appoint an attorney to you.
              Macy] : Yes,       sir.




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No. 44949 -8 -II



           Trial   court]:   This motion had no merit.


RP ( Apr. 26, 2013) at 12. The trial court later entered a written order denying Macy' s motion to

withdraw his guilty plea. Macy appeals from the order denying his motion to withdraw his

guilty plea.

                                                        ANALYSIS


                                I. CrR 7. 8 MOTION To WITHDRAW GUILTY PLEA


          Macy contends that the trial court erred by denying his CrR 7. 8 motion to withdraw his

guilty plea by failing to appoint him counsel before ruling on his motion. We disagree.

          We note at the outset of our analysis that there is no constitutional right to counsel in a


post- conviction CrR 7. 8 motion to withdraw a guilty plea. See, e. g., State v. Forest, 125 Wn.

App.   702, 707, 105 P. 3d 1045 ( 2005) ( "[ C] riminal defendant has no constitutional right to


counsel    in   post- conviction proceedings other             than the   first direct   appeal of right. ").      However,


CrR 3. 1( b)( 2)    provides    in   relevant part   that "[   a] lawyer shall be provided at every stage of the

proceedings,       including ...      post- conviction review."        In State v. Robinson, 153 Wn.2d 689, 696,


107 P. 3d 90 ( 2005), our Supreme Court held that " CrR 3. 1( b)( 2) refers to the right to counsel


that is   either   already constitutionally     guaranteed or provided elsewhere                in the   rules."    Regarding

the right to counsel in a post- conviction motion to withdraw a guilty plea, the Robinson court

held that the procedure for appointing counsel for a CrR 7. 8 motion is similar to the procedure

for appointing counsel for a personal restraint petition (PRP):

           The broad, sweeping language              of [CrR    3. 1( b)( 2)] is not without limit, and must be
           read    in   context with related court rules.          With respect to the right to counsel for
           postconviction review, we have imposed a limitation that requires, in the case of
           PRPs, for the chief judge of the Court of Appeals, and in the case of CrR 7. 8
           motions, for the superior court judge, to initially determine whether the petition or
           motion establishes grounds         for    relief.   If it does   not establish grounds        for   relief, the
No. 44949 -8 -II



         judge may dismiss the petition or deny the motion without a hearing on the merits.
         If it does establish grounds for relief, counsel may be provided if not already
          available.



153 Wn.2d at 696. In Robinson, our Supreme Court held that the defendant was not entitled to

counsel   for his CrR 7. 8       motion        because "[   b] y not holding a hearing, the trial court effectively

determined that Robinson did                  not establish grounds     for   relief."   153 Wn.2d at 696 -97.


          Macy argues that he was entitled to counsel for his CrR 7. 8 motion because, unlike in

Robinson, here the trial court held a fact -finding hearing to determine whether his CrR 7. 8

motion was meritorious. In other words, Macy argues that once the trial court decided to

conduct a fact -finding hearing on his CrR 7. 8 motion, he was entitled to the appointment of

counsel at public expense under                 CrR 3. 1( b)( 2).   But Robinson held that the triggering event

allowing for the appointment of counsel at public expense in a post- conviction proceeding is the

trial court' s initial determination that the defendant' s CrR 7. 8 motion establishes grounds for

relief. 153 Wn.2d at 696. And here the trial court made clear' on the record prior to the fact -


finding hearing that it did not find Macy' s CrR 7. 8 motion had established grounds for relief,

stating, " I'   m not obliged      to    appoint a    lawyer for    you ...    for a post -trial proceeding unless I

conclude    that    your motion         is   meritorious."    RP ( Apr. 26,, 2013)       at   3.   The trial court further


stated prior     to the   fact -finding       hearing, " I' m not prepared to say that your motion is meritorious

at this point. If there' s further evidence adduced, maybe I will change my mind. But at this

point,   I don' t   see   any   merit    to   your motion."     RP ( Apr. 26, 2013) at 5. Because the trial court did


not determine that Macy' s CrR 7. 8 motion had established grounds for relief prior to the fact -

finding hearing, it did not err by denying Macy request to appoint him counsel for the hearing.




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No. 44949 -8 -II



          Although the Robinson court stated that a trial court' s summary denial of a CrR 7. 8

motion without conducting a fact -finding hearing equates with a determination that the motion

was frivolous or had failed to establish grounds for relief, Robinson does not require a trial court

to   make     this determination       without   the benefit   of a    fact -finding   hearing. 153 Wn.2d at 696 -97.

Accordingly, under Robinson, the trial court did not err by denying Macy' s CrR 7. 8 motion

without first appointing him counsel to argue the motion.2
                                                           II. SAG


          Macy raises several claims of ineffective assistance of counsel in his SAG, but we cannot

address those claims in this direct appeal because they all refer to matters outside the trial

          3
record.       See State   v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995) ( " If a defendant


wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the




2 We note that Macy' s CrR 7. 8 motion did not establish grounds for relief based on the attached
victim' s recantation because the trial court did not find that the victim' s recantation was credible.
See State v. Scott, 150 Wn. App. 281, 294, 207 P. 3d 495 ( 2009) ( Before considering a
defendant' s motion for a new trial based on a victim' s recantation, the trial court must determine
whether       the recantation     is   credible).   We need not address Macy' s contention that appointed
counsel would have known to subpoena the victim to testify at the fact -finding hearing in order
to present evidence of her credibility because we have held that Macy was not entitled to the
appointment of counsel to represent him at the fact -finding hearing.

3 For example, Macy argues in his SAG that counsel was ineffective for ( 1) failing to present to
the trial court his written statements describing his version of the events occurring on September
15, 2011, ( 2) pressuring him to            accept   the State'   s   guilty   plea offer, (   3) failing to adequately
communicate with him, and ( 4) failing to show him the State' s evidence against him. There is
nothing in the trial record to support these claims.


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No. 44949 -8 -II



appropriate means of     doing   so   is   through a personal restraint petition. ").   We affirm the trial


court' s denial of Macy' s pro se CrR 7. 8 motion to withdraw his guilty plea.

        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.




 We concur:




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