                                                    201UUL23 tt*5ii



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 70036-7-1
                     Respondent,
                                                 DIVISION ONE
              v.



JAMEL OMARI FIELDS,                              UNPUBLISHED OPINION


                     Appellant.                  FILED: July 28, 2014


       Becker, J. — Ineffective assistance of counsel is a manifest injustice that

justifies the withdrawal of a guilty plea. To establish deficient performance of

counsel, a defendant must overcome the presumption that counsel's

performance was adequate. Because the defendant did not overcome that

presumption, we affirm the trial court's denial of his motion to withdraw.

       On February 24, 2012, at 9:35 p.m., Francisco Villegas was attacked and

robbed by a group of people while walking along Second Avenue near University

Street in downtown Seattle. Two people who witnessed the attack from across

the street called the police as it occurred and reported that the group had moved

one block northward toward Union Street. Two bicycle officers who were nearby

at the time arrived at Second and Union almost immediately. They observed a

group of five people nearby, one of whom was wearing a black leather jacket with

a Seahawks logo on it. Hearing that the witnesses described the jacket as more
No. 70036-7-1/2



like a NASCAR jacket, the officers continued down towards University Street. By

this time, other responding officers had heard from Villegas himself that the

person who hit and kicked him was an African-American male "maybe wearing a

Seahawks jacket." The bicycle officers returned to Second and Union and

detained the group they had seen previously. The person wearing the Seahawks

jacket, an African-American male, was Jamal Fields. A backpack and phone

belonging to Villegas were found on the ground nearby.

       The bicycle officers detained the group. More officers arrived. Villegas

was brought to the scene for a show-up identification. Villegas stated he was

"absolutely positive" Fields was his attacker and that the others were the persons

who were with Fields during the assault. Fields, when searched, did not have

any property belonging to Villegas.

      On February 29, 2012, the State charged Fields with one count of robbery

in the first degree. At this time, Fields was the defendant in a pending unrelated

criminal case. In that case, Fields was charged with possession of cocaine and

forgery as a result of events that transpired on October 7, 2011.

      On July 24, 2012, two days into trial on this case, Fields entered into a

negotiated global settlement. The State agreed to dismiss the cocaine charge

and reduce the first degree robbery charge to second degree robbery in

exchange for a guilty plea on both the robbery and forgery charges. Under the

plea agreement, the standard range of over 70 months was reduced to a range

of 22 to 29 months. The State agreed to recommend a low-end sentence of 22

months concurrent with the sentence recommended under the other cause
No. 70036-7-1/3



number. Fields entered a plea to the robbery charge under North Carolina v.

Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). He pleaded guilty to

the forgery charge. The plea agreement stated that "this is part of an indivisible

agreement" including both cause numbers.

       On August 29, 2012, the trial court permitted withdrawal of counsel for

Fields and instructed the Office of Public Defense to appoint new counsel.

       On December 14, 2012, Fields, represented by new counsel, filed a

motion to withdraw his Alford plea. The motion was based on a claim for

ineffective assistance of counsel. An expert on eyewitness identification had

reviewed the evidence and identified concerns that might have been used to

undermine a jury's confidence in Villegas' ability to accurately identify Fields.

Fields argued that his former attorney had failed to properly evaluate the

evidence identifying him as the robber and performed deficiently by failing to hire

an expert or otherwise challenge the reliability of cross-racial identification.

Fields alleged that he would not have entered the Alford plea if his attorney had

told him that the weakness of cross-racial eyewitness identification was a viable

defense.


       On February 8, 2012, the court heard the motion. The State called

George Sjursen, the attorney who represented Fields on the robbery charge.

Sjursen testified that his trial strategy would have been to attack the eyewitness

identification of Fields by calling witnesses who thought that another person,

Gregory Hughes, had committed the robbery:
No. 70036-7-1/4



              Q. When you came into court on the trial, did you feel like
       you were ready to proceed and attack—and to attack the State's
       case regarding identification?
             A. Yes, I do.

              A. Well, because, number one, there were two
       eyewitnesses that were going to be called by the State that we
       interviewed. I think actually the day of trial we actually finally got in
       touch with them and interviewed them that provided a different
       description. I think they said specifically that they remembered the
       person wearing a NASCAR type jacket, and the alleged victim said
       that the jacket was a Seahawks jacket. And I felt that this was
       good information. On top of that I had subpoenaed—I was able to
       go back last night and check and I had subpoenaed Sirronald Hicks
       and I believe a Ms. Turner. I believe she went by Angel, I think that
       was the sister. Now, Ms. Turner didn't exactly see the incident but
       she did see—I think she did see Mr. Hughes there. And then Mr.
       Hicks described someone else as doing it.
               But these people were subpoenaed and I think I provided
       both counsel copies.

       The court denied Fields' motion to withdraw his Alford plea. The court

stated that Sjursen performed well in representing Fields and that whether or not

to hire an eyewitness identification expert was a matter of strategy.

      I am not sure at all that I even would have admitted an eyewitness
      expert, and I do not believe that they're terribly persuasive. I think
      that the Supreme Court Justices who have opined on that are
      absolutely right.
             So my sense here is that Mr. Fields got a really good
      defense from a really good defense attorney who fought for him all
      the way.

Following the State's recommendation, the court sentenced Fields to 22 months

for the robbery charge and 3 months for forgery, to be served concurrently.

       On appeal, Fields argues that the trial court erred in denying his motion to

withdraw because "defense counsel's failure to investigate or challenge the

cross-racial eyewitness identification constituted deficient performance of

counsel."
No. 70036-7-1/5



       The State points out that the remedy sought by Fields—withdrawal of his

plea to robbery—is unavailable because it was part of an indivisible global plea

agreement. State v. Turlev. 149 Wn.2d 395, 69 P.3d 338 (2003). Under Turlev.

a trial court does not have the discretion to permit withdrawal of only one plea in

a global agreement. Turlev. 149 Wn.2d at 399. The State contends that Fields'

appeal should be rejected out of hand because he moved to withdraw only the

Alford plea to the robbery charge. We need not decide whether Fields' failure to

move for withdrawal of the entire plea forecloses his appeal because his appeal

lacks merit in any event.

       We review a trial court's denial of a motion to withdraw for abuse of

discretion. State v. Jamison. 105 Wn. App. 572, 589-90, 20 P.3d 1010, review

denied, 144 Wn.2d 1018 (2001). "The court shall allow a defendant to withdraw

the defendant's plea of guilty whenever it appears that the withdrawal is

necessary to correct a manifest injustice." CrR 4.2(f). A manifest injustice

occurs when an attorney renders ineffective assistance of counsel while advising

a defendant on a plea bargain. State v. Taylor. 83 Wn.2d 594, 597, 521 P.2d

699 (1974). Claims of ineffective assistance of counsel in the plea bargain

context are governed by Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Hill v. Lockhart. 474 U.S. 52, 57, 106 S. Ct. 366,

88 L. Ed. 2d 203 (1985).

       To establish ineffective assistance of counsel, a defendant must prove

that (1) trial counsel's performance was deficient in that it fell below an objective

standard of reasonableness and (2) counsel's deficient performance prejudiced
No. 70036-7-1/6



the defendant. Strickland, 466 U.S. at 687. To establish deficient performance,

the defendant must overcome the presumption that under the circumstances, the

challenged action might be considered sound trial strategy. Strickland, 466 U.S.

at 689. To establish prejudice, the defendant must show that there is a

reasonable probability that, but for counsel's errors, he would not have pleaded

guilty and would have insisted on going to trial. Hill, 474 U.S. at 59.

       In some cases, making cross-racial bias the focus of a challenge to

eyewitness identification can be effective. While our Supreme Court has

declined to adopt a general rule requiring instruction on the fallibility of cross-

racial identification, a trial court retains the discretion to give such an instruction.

State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013). The trial court

acknowledged that "the problems with eyewitness identification that are coming

to light often affect people of color."

       Fields argues that the trial court mistakenly assumed that because

Villegas, a Hispanic, and Fields, an African-American, were both persons of

color, the identification could not have been encumbered by cross-racial fallibility.

What the court said was this:

       This is not as good a case for challenging eyewitness identification
       as others I have seen. Although it is true that the identification here
       is cross-racial, it is also true that Mr. Villegas is a person of color
       himself. And secondly, this offense took place and the defendant
       was located literally within minutes—within 15 minutes in terms of
       the identification procedure and sooner than that in terms of finding
       him right in the area of where this offense took place wearing
       distinctive clothing and very near and in the path of a backpack that
       belonged to Mr. Villegas, and that he obviously did know and
       positively identified as his own.
               Also the Court took a very hard look at the identification
       procedure in this case. There was no suggestiveness by the officer
No. 70036-7-1/7



       who took Mr. Villegas to the scene to make an identification.
       There's no indication from anything Mr. Villegas said along the way
       that he was identifying based on clothing or identifying in a hasty
       way, and there was no reinforcement of his identification by the
       officer once he made the ID either.


Defense counsel stated that the court's remark was "disconcerting" in that cross-

racial identification can also be unreliable when the individuals who are of

different races are both persons of color. The court responded, "I know that. But

I would point out that a lot of cross-racial identification issues have been with

white people identifying black people, and that's not this case."

       On this record, Fields has not overcome the presumption that defense

counsel provided effective assistance. It is not necessarily always a sound

strategy to bring racial differences into a challenge to eyewitness identification.

As the trial court emphasized, Villegas positively identified Fields as his attacker

almost immediately afterwards and the specific detail of the Seahawks jacket

was highly corroborative. Villegas' backpack was found near Fields. Friends

who Fields had hoped would come forward and identify Gregory Hughes as the

robber did not respond to counsel's efforts to contact them, so there was no solid

evidence of another suspect. To suggest under these circumstances that

Villegas was mistaken because all African-American males must have looked the

same to him would have posed a substantial risk of alienating the jury. Defense

counsel's duty to reasonably evaluate the evidence against the accused does not

require the attorney to inform a defendant of every possible defense.

       We conclude that the trial court did not abuse its discretion when it denied

Fields' motion to withdraw his guilty plea.
No. 70036-7-1/8



      Affirmed.




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WE CONCUR:




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