In re Granados

In Matter of the Personal Restraint of KELDY ADALID GRANADOS, Petitioner.

No. 33866-5-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

February 8, 2018

UNPUBLISHED OPINION

SIDDOWAY, J. — Through retained counsel, Keldy Granados seeks relief from personal restraint resulting from his 2015 Franklin County bench trial conviction of unlawful possession of methamphetamine. He contends the evidence against him was insufficient including because, under the doctrine of corpus delicti, the trial court should not have considered his uncorroborated confession. Alternatively, he seeks a new trial because he never knowingly, voluntarily and intelligently waived trial by jury and because his Spanish-speaking lawyer interpreted critical court documents without being statutorily qualified or certified to do so.

The evidence against him was sufficient. We reject his argument that his unwitting waiver of trial by jury in what was substantially a stipulated facts trial was structural error. Because he fails to make the showing of prejudice that is required on collateral review, we dismiss the petition.

FACTS AND PROCEDURAL BACKGROUND

In December 2013, the State charged Keldy Granados with unlawful possession of methamphetamine, a class C felony, to which Mr. Granados pleaded not guilty. In early 2014, attorney George P. Trejo, Jr. began representing Mr. Granados and reached an agreement with the State to transfer proceedings from superior court to the Franklin County District Court, so that Mr. Granados could apply for the felony diversion program administered by that court.

At a hearing taking place on March 5, 2014, Mr. Granados, who is Spanish speaking only, applied for the felony diversion program on a three-page, single-spaced "Application to the Felony Diversion Program and Waiver of Arraignment, Preliminary Appearance and Speedy Trial." Mot. to Vacate under CrR 7.8 (CrR 7.8 Mot.), Ex. 3. The application form is in English. It includes multiple signature lines: one for the defendant, who declares that he or she has read or been read all of its 13 paragraphs; onefor the defendant's lawyer, who attests to reviewing the application with the defendant and being satisfied the defendant understands it; one for the prosecutor, who agrees to submit the case to the diversion program; and one for the court, in order to make a finding that the agreement has been entered knowingly and voluntarily by the defendant. Mr. Granados, Mr.Trejo, and the prosecutor had all signed the application.

The application form also includes an "Interpreter's Declaration" that had been completed by Mr. Trejo. It states:

I am a certified interpreter or have been found otherwise qualified by the court to interpret in the * language, which the defendant understands, and I have translated this entire document for the defendant from English into that language. The defendant has acknowledged his or her understanding of both the translation and the subject matter of this document. I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct.

Id. at 3.

At the hearing, an unidentified interpreter was present. In Mr. Granados's presence, and with the interpreter interpreting in the Spanish language, Mr. Trejo represented to the court that he and Mr. Granados had gone over the application and that Mr. Granados knew the rights he was waiving and was making the application knowingly, voluntarily, and without compulsion. The application was accepted by the court, signed, and entered on the record.

Mr. Granados was approved for the program and executed a five-page, single-spaced felony diversion program agreement. Similar to the diversion application, thediversion agreement, which is also in English, contained Mr. Granados's signed declaration that each of the paragraphs were read to him and explained by his attorney and that he freely and voluntarily agreed to enter into the felony diversion program. It, too, contained Mr. Trejo's signed interpreter declaration and statement that he had translated the entire document from English to the language that Mr. Granados understands.

Mr. Granados and Mr. Trejo appeared in district court for entry of the felony diversion agreement on November 6, 2014. Once again, a court interpreter was present to interpret for Mr. Granados. The court asked Mr. Granados on the record if he had discussed the program with his attorney, whether he understood it, and whether he was entering the program freely, voluntarily and without compulsion. Mr. Granados answered yes. CrR 7.8 Mot., Ex. 4; Verbatim Report of Proceedings (Nov. 6, 2014), at 7-8.

The felony diversion agreement provided that proceedings in Mr. Granados's case would be stayed and if he complied with its terms and conditions the charges would be dismissed after two years. If he did not, the stay would be lifted and the State would proceed to prosecute the charge. As part of the agreement, Mr. Granados submitted a sworn statement, entitled "Statement of Defendant," in which he admitted that on December 3, 2013, he unlawfully possessed methamphetamine. CrR 7.8 Mot., Ex. 10. The statement acknowledged that he made this "confession" with the advice of Mr. Trejo.Id. He stipulated in the agreement that the statement would be admissible in evidence if he violated the agreement and the matter proceeded to trial. Because of immigration consequences, the State agreed that Mr. Granados could stop short of completely confessing to the controlled substance crime by omitting the jurisdictional element. It would have to be proved later if the prosecution was revived.

In December 2013, Mr. Granados violated the felony diversion agreement by testing positive for methamphetamine use. He also failed to appear for a compliance hearing in January 2014. The felony diversion proceeding was dismissed as a result and the case was refiled in superior court. Attorney Trejo withdrew.

The matter proceeded to a bench trial on April 7, 2015. An interpreter was present. New defense counsel, Craig Stilwill, informed the court that Mr. Granados had waived the right to a jury trial by entering the felony diversion program. That would later prove to be incorrect. While the diversion program application and agreement include waivers of many rights, jury trial is not one of them.¹ The prosecutor then explained that for immigration reasons the State had agreed to omit a jurisdictional basis from Mr. Granados's statement, so the officer who contacted Mr. Granados on December 3, 2013, would be called to complete the State's proof.

In the bench trial that followed, the court considered as evidence Mr. Granados's admission that he unlawfully possessed methamphetamine on December 3, 2013. Officer Adam Brewster was called to the stand and testified that on that date, while working as a police officer for the city of Pasco, he contacted the defendant Keldy Granados during a vehicle stop on Court Street in Pasco. He identified Mr. Granados in the courtroom as the person he stopped. The court then found that the State had proved beyond a reasonable doubt that Mr. Granados unlawfully possessed methamphetamine in Franklin County, Washington, on December 3, 2013. It imposed a 30-day jail sentence. Mr. Granados was advised of his appeal right by the court but did not file a direct appeal.

Mr. Granados initially filed the present petition in the superior court as a CrR 7.8 motion to vacate his judgment and sentence. The superior court transferred the motion to this court for consideration as a personal restraint petition (PRP). CrR 7.8(c)(2). The petition was timely filed under RCW 10.73.090(1). It was referred to a panel and, after requesting and receiving supplemental briefing, we considered it without oral argument.

PRP Review Standard

To obtain relief in a PRP, a petitioner must show actual and substantial prejudice resulting from alleged constitutional errors, or for alleged nonconstitutional errors a fundamental defect that inherently results in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 505 (1990). To avoid dismissal, the petition must be supported by facts and not merely bald or conclusory allegations. Id.at 813-14; In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). We address the issues raised by Mr. Granados in the order raised in his petition.

1. Insufficient Evidence

The crime of unlawful possession of a controlled substance requires proof of two elements: (1) possession (2) of a controlled substance. RCW 69.50.4013(1). Methamphetamine is a controlled substance. RCW 69.50.206(d)(2). The State must also prove jurisdiction by presenting evidence that the crime was committed "in the state." RCW 9A.04.030(1). Mr. Granados contends that the State's evidence was insufficient to establish jurisdiction because when called to testify, Officer Brewster merely testified to stopping Mr. Granados in Pasco on December 3, 2013, not that Mr. Granados was in possession of methamphetamine when stopped. Alternatively, he argues that under the corpus delicti rule, his confession alone was insufficient to convict and the State failed to provide independent evidence of his guilt.

In reviewing a challenge to the sufficiency of the evidence, we view the evidence and all reasonable inferences in a light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Following a bench trial, review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). "Substantial evidence" isevidence sufficient to persuade a fair-minded person of the truth of the asserted premise. Id.

Proof of Jurisdiction

In first...