In re Personal Restraint Petition of Salyers

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

No. 49799-9-II

Court of Appeals of Washington, Division 2

June 26, 2018

UNPUBLISHED OPINION

Order File Date September 5, 2018

ORDER ON RECONSIDERATION AND AMENDING OPINION

The petitioner has moved for reconsideration of the court's unpublished opinion filed June 26, 2018. The court now rules as follows:

(1) The paragraph beginning at the bottom of page 12 through page 13 preceding the last paragraph on that page is amended to read as follows:

Here, the State had to show that Salyers took the children with the intent to deny access to them by the State's designated lawful custodians. Even if Salyers believed the State did not have valid authority to keep her children in custody until written orders were entered, she knew when she took them that an order would be entered soon and that, at that point, she would be keeping the children from their lawful custodians. She had no intention of returning her children to state custody the next week, when she was told the written orders would be entered. Salyers went to the house where she knew her children were staying, lied about her purpose, and then absconded with her children through a bedroom window. She later left her children at another location while she and a friend gathered belongings from Salyers's home. And when questioned by police Salyers's friend told police that Salyers intended to leave the area with her children. Taken together, there is sufficient evidence to provide a factual basis to find that when Salyers took the children, she acted with the "intent to deny access to the child . . . by a person having a lawful right to physical custody." RCW 9A.40.060(1)(a).

We do not need to reach Salyers's arguments that under Boss and State v. Kirwin, 166 Wn.App. 659 271 P.3d 310 (2012), mere presence during the juvenile court's oral ruling that the children would be in state custody over the weekend was insufficient. There is a sufficient factual basis for Salyers's guilty plea regardless of whether Salyers was present when the court entered the written order. Salyers had notice that the court would enter an order placing her children in shelter care the following week. She knew that she would violate the order the moment the court entered it because she intended to leave the area with the children, rather than to return the children to the state's custody the following week.

(2) Footnote 10 on page 13 is amended to read as follows:

¹⁰ Additionally, we do not reach Salyers's arguments, first raised in her reply, that she was a "parent," not a "relative," of her children and that DSHS, not the family from whom Salyers took her children, had the lawful right to custody of her children. "An issue raised and argued for the first time in a reply brief is too late to warrant consideration." Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801 809, 828 P.2d 549 (1992); RAP 10.3(a)(6).

(3) In all other respects, the motion for reconsideration is denied.

IT IS SO ORDERED.

Penoyar, J. ^[*]

In 2016, Stephanie Salyers entered an Alford^[1] 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. Background^[3]

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 that Salyers'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...