In re Pers. Restraint Petition Salyers

In the Matter of the Personal Restraint Petition of STEPHANIE MARELDA SALYERS, Petitioner.

No. 49799-9-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

June 26, 2018

UNPUBLISHED OPINION

PENOYAR, J.^* — In 2016, Stephanie Salyers entered an Alford¹ plea to one count of first degree custodial interference.² She now argues in a personal restraint petition (PRP) that she should be permitted to withdraw her plea because (1) it lacks a factual basis, (2) her counsel rendered ineffective assistance when he misadvised her of a collateral consequence of the plea and failed to adequately investigate her case, (3) she was not released from jail under CrR 3.2, and (4) she has shown egregious governmental misconduct. Because (1) Salyers's plea has a factual basis, (2) she fails to show ineffective assistance of counsel, (3) she waived her CrR 3.2 argument, and(4) she has not shown that the misconduct she alleges resulted in actual and substantial prejudice, we deny Salyers's PRP.

FACTS

I. BACKGROUND³

On February 19, at a shelter care hearing, a juvenile court placed Salyers's three children in state custody. Two days later, police responded to a report that Salyers had found her children and removed them from state custody in violation of the shelter care orders. The family from whose home Salyers had taken her children reported that she had come to their home, claimed she was allowed to visit the children, and then, when she was unsupervised, fled with the children through a bedroom window.

Later in the day on February 21, police located Salyers and arrested her for kidnapping. At the time of her arrest, Salyers had left her children at a friend's home while Salyers and her friend gathered belongings from Salyers's home. Police questioned Salyers's friend, who said that Salyers intended to leave the area with her children.

Salyers maintained her innocence, stating that she had never been given paperwork saying that she could not have her children. Incident reports and a probable cause statement that was not sworn to "under penalty of perjury" documented that Salyers had been present at the shelter care hearing and also that shelter care orders had been entered.⁴ The shelter care orders stated thatSalyers's children were in the Department of Social and Health Services' (DSHS's) temporary custody.

II. CHARGES AND PLEA

On February 24, the State charged Salyers with three counts of first degree custodial interference, one for each child. Salyers's attorney received as discovery from the prosecutor the information, incident reports, and probable cause statement associated with her February 21 arrest, setting forth the background facts above.

On March 18, Salyers entered an Alford plea to one count of first degree custodial interference. In her signed statement on plea of guilty, she agreed that the superior court could review associated police reports and the probable cause statement for her kidnapping charges to establish a factual basis for her plea. Her statement on plea of guilty also expressly incorporated the prosecutor's plea offer.

The plea offer included provisions that the prosecutor would recommend 30 days of confinement and the entry of no-contact orders prohibiting Salyers from contacting her children for five years. The plea offer also allowed the no-contact order provision to "be addressed post-conviction in conjunction with family court/dependency proceedings." Resp. to PRP, App. D at 14 (underlining omitted). Salyers signed the plea offer's last page, following the provisions discussing the no-contact order recommendation. Her signature was directly below the statement that she had reviewed the offer's terms with her attorney and understood them.

The superior court sentenced Salyers to 30 days of confinement and entered no-contact orders preventing her from seeing her children until March 2021.

III. PRP AND APPENDICES

In December, Salyers filed a CrR 7.8 motion, which the superior court transferred to this court as a PRP. She relies on various video recordings and documents as supporting evidence, the relevant portions of which are summarized below.

A. SHELTER CARE HEARING VIDEO AND ORDER

Salyers relies upon a video recording of the juvenile court's oral ruling at the February 19 shelter care hearing. With Salyers present, the juvenile court found that "your children would be in serious danger right now if I placed them back with you" and twice stated its ruling "that there is shelter care [sic]." Ex. 3 at 19 sec. to through 33 sec., 2 min. 12 sec.

The juvenile court directed the prosecutor to prepare a written order for presentation the following week. The prosecutor informed Salyers that the social worker assigned to her case would be changing, that she could contact the social worker to set up ongoing visitation, and that a visit would be set up for the following Monday at DSHS.

After court was adjourned, Salyers left the courtroom, and the juvenile court inquired whether the prosecutor had "anything . . . to keep the kids in shelter care over the weekend." Ex. 3 at 4 min. 54 sec. through 4 min. 57 sec. The prosecutor answered affirmatively.

In addition to the shelter care hearing video, Salyers relies upon the shelter care orders from the February 19 hearing. The orders are unsigned by Salyers.

B. SALYERS'S DECLARATION

Salyers also relies upon her declaration, signed under penalty of perjury, describing her interactions with her defense attorney and her understanding of her guilty plea's effect. In her declaration, Salyers claims that her defense counsel visited her only once in jail and discussed her case with her for only a few minutes. Salyers provides a jail record of her attorney's only visit on March 15, confirming that he stayed for merely six minutes. She claims her counsel did not review any discovery, mention any efforts to investigate her case, or do more than advise her to accept the State's plea offer.

Salyers states that her attorney affirmatively "advised me to accept the State's plea offer so I could get out of jail and see my children." PRP, App. DD at 2. He summarized the plea offer without including notice that she "would lose" her children and told her "flat out that signing the plea agreement was the 'quickest way to get reunited with [my] children'" and that "pleading would get me back with them." PRP, App. DD at 2-3 (alteration in original). According to Salyers, "I would not have ever entered the 'Alford' plea if I knew . . . that there was any possibility of a no contact order being entered that barred me from being with my children for another day, let alone five years." PRP, App. DD at 3.

Salyers acknowledges her signature on the plea offer but claims that she signed the offer based entirely on her attorney's summary, which did not include any possibility that she might lose her children. She claims that she was not given a copy of the plea offer and her attorney did not read it to her before she signed it.

C. PLEA HEARING TRANSCRIPT

Salyers also relies upon an unofficial transcript of the plea hearing, which was not prepared by a court transcriptionist. According to the transcript, Salyers answered affirmatively when the superior court questioned whether she had reviewed her statement on plea of guilty, discussed it with her attorney, and understood what was in the statement. The superior court did not ask Salyers whether she had read the plea offer or refer to the no-contact order provision until after Salyers had entered her plea.

When the parties discussed Salyers's sentence, the prosecutor referred to the no-contact order provision and requested "standard conditions including formal no-contact orders with the children." PRP, App. EE at 6. The superior court ruled that Salyers's sentence would "include the no-contact order," and Salyers acknowledged that she understood that violating the no-contact order would worsen her situation. PRP, App. EE at 9.

D. "RETALIATION" APPENDICES

Salyers also relies on various materials to support her claims of police misconduct and retaliation, summarized below. Some of her materials relate to an incident at her home on February 16, when police arrested Salyers and her husband.

1. 2014 E-MAILS

First, Salyers relies upon e-mails from 2014. A single e-mail, sent to the entire Vancouver Police Department, criticizes "a couple [Child Protective Services] social workers shopping for officers/deputies in the field and requesting they sign children into protective custody, after [Children's Justice Center] has told them we do not have [probable cause]," a practice known as"pink-sheet shop[ping]." PRP, App. V. The e-mail warns officers to ensure they do not "sign the pink sheets" without probable cause. PRP, App. V.

Salyers also relies upon a string of e-mails between Detective Aldridge⁵ and another person in 2014. The other person complains about "dumb lazy officers who either don't know how to or won't do the child protective custody thing when they should." PRP, App. W at 1. Detective Aldridge responds that officers should "turn off MDC" (recording device), "get kid," and "'get' the other people who made this mess." PRP, App. W at 1. The other person responds, "Time to buy another shovel," to which Detective Aldridge says she will "help dig." PRP, App. W at 1.

2. FEBRUARY 16, 2016 PROBABLE CAUSE STATEMENT

Salyers relies upon Detective Aldridge's probable cause statement for Salyers's husband's February 16, 2016 arrest for assaulting Salyers. As set forth in this probable cause statement, on February 16, Salyers's family reported to 911 that Salyers had called her mother while Salyers's husband was assaulting her. Salyers told her family that her husband had kneed her and broken her finger, and Salyers's family believed they heard a physical struggle and choking.

Police reported to Salyers's home, where neither Salyers nor her husband would exit their home or allow officers inside, stating that the police officers were "foreign agents." PRP, App....