State v. Magana

1

STATE OF WASHINGTON, Respondent, v. XAVIER M. MAGANA, Appellant.

No. 55800-9-II

Court of Appeals of Washington, Division 2

August 23, 2022

UNPUBLISHED OPINION

VELJACIC, J.

Xavier M. Magana appeals the denial of his motion to withdraw his guilty plea. Magana argues that the trial court violated CrR 7.8's procedural requirements and in so doing violated his procedural due process rights when it failed to hold a hearing on the merits before denying his motion.^[1] In a statement of additional grounds (SAG) for review, Magana argues that restitution was unconstitutionally imposed on him and that the trial court was required to strike all legal financial obligations (LFOs) and waive all interest accrued. He also argues that he was misinformed about a direct consequence of his plea and that the State breached the plea agreement when it recommended 36 months of community custody instead of the agreed 24-48 months.

We hold that the trial court erred by failing to fix a time and place for a show cause hearing. Accordingly, we reverse the trial court and remand Magana's motion to withdraw his guilty plea so that the trial court can hold a show cause hearing.

FACTS

I. FACTUAL BACKGROUND

On July 12, 2009, at approximately 8:22 p.m., Tacoma Police officers responded to a report of "shots fired with a person down." Clerks Papers (CP) 3. Officers found Alrick Hendricks suffering from multiple gunshot wounds lying on the ground. He was pronounced dead at the scene. Witnesses told police that Hendricks was at a graduation party where Magana had been earlier. Hendricks and a friend were out on the front porch when Magana walked by. Due to a past altercation Magana and Hendricks exchanged words, and Magana challenged Hendricks to a fight. The two walked away from the party and according to witnesses, Magana pulled out a black semi-automatic handgun and began firing at Hendricks. Hendricks attempted to flee but was struck by a round and fell down. Magana ran up to Hendricks and fired additional rounds into Hendricks at close range, killing him; he fled the scene.

II. PROCEDURAL HISTORY

A. Trial Court Proceedings

On July 13, 2009, the State charged Magana with murder in the first degree with a firearm sentencing enhancement and unlawful possession of a firearm in the second degree. On April 1, 2010, Magana filed a motion to "substitute counsel," wherein he sought appointment of a different attorney to defend him. Magana stated that he was dissatisfied with his legal representation because he alleged his defense counsel was not staying in contact with him and was not working in his best interests. Magana's defense counsel stated that he "stayed in contact with [Magana]" and went "over the discovery with [Magana]." Report of Proceedings (RP) (April 21, 2010) at 5. Defense counsel further stated that Magana "indicated that he doesn't like the options that I have explained to him.... I am willing to consider, or continue to work as his attorney." RP (April 21, 2010) at 6. The trial court denied Magana's motion.

On April 29, 2010, the State amended the information to add a gang aggravating factor to the murder charge and raised the unlawful possession of a firearm charge to the first degree. On February 9, 2011, pursuant to a plea deal, the State filed a second amended information charging Magana with murder in the first degree, eliminating the unlawful possession of a firearm charge, and eliminating all enhancements. In exchange, Magana pled guilty to the second amended information. The plea deal included the State recommending a low end sentence of 250 months' confinement on a 250-333 month standard range. The agreement also allowed for LFOs including restitution, and 24-48 months community custody.

Sentencing occurred on March 25, 2011. At sentencing, Magana stated a desire to withdraw his plea, alleging that he was not competent^[2] and had received ineffective assistance of counsel at the time he made his plea.^[3] The trial court denied Magana's motion to set over sentencing and to withdraw his guilty plea. The trial court found there had been no showing that the withdrawal of the plea was necessary to correct any manifest injustice, that the plea was in any way involuntary or coerced, or that counsel was ineffective. After hearing the State's recommendation, which included 36 months of community custody, the trial court then sentenced Magana to 333 months of confinement, 36 months of community custody, and imposed LFOs, including restitution in the amount of $11,384.54.

B. Direct Appeal

In April 2011, Magana filed a notice of appeal, contending that the trial court erred by denying his motion to withdraw his guilty plea without conducting a competency hearing because his psychological evaluation indicated that he lacked the capacity to understand the nature of the proceedings against him. In his SAG, Magana asserted that his defense counsel was ineffective by pressuring him to plead guilty to murder in the first degree and for advising him to accept the State's plea agreement despite the findings from his psychological evaluation. CP 254, 260-61.

In an unpublished opinion filed September 19, 2012,^[4] we affirmed Magana's conviction and sentence. Specifically, we concluded that the trial court did not abuse its discretion by denying Magana's motion to withdraw his guilty plea because Magana did not present sufficient evidence to call his competency into doubt. Nothing in the evaluation rendered him incompetent to enter a guilty plea. In fact, the evaluation showed that Magana was "fully capable of understanding the proceedings against him and assisting in his own defense." State v. Magana, noted at 170 Wn.App. 1039, 2012 WL 5348962, at *4. We also held that Magana did not meet his burden to show that his counsel's performance was deficient or that such deficient performance was prejudicial to his decision to plead guilty. There was no evidence in the record to support Magana's claims of ineffective counsel.

C. Post-Judgement Motions

On December 12, 2013, Magana filed a pro se motion to withdraw his guilty plea under CrR 7.8 and 4.2 ("2013 motion"). Magana claimed multiple due process violations, ineffective assistance of counsel, denial of his right to confront witnesses, and that newly discovered exculpatory evidence proved his innocence.

More specifically, Magana claimed his due process rights were violated because he was not afforded a competency hearing or allowed to withdraw his guilty plea and that his court appointed attorney allowed the State to file excessive charges against him.^[5] Magana also argued that he received ineffective assistance of counsel because his counsel did not move to have Magana arraigned for murder in the second degree and because "counsel did not bring the issue of competency to the trial courts [sic] attention, but instead persuaded [him] to sign an Alford Plea^[6]to First Degree Murder." CP at 275 (footnote added). Magana further argued that he received ineffective assistance of counsel and was denied his right to confront and cross-examine witnesses, when his attorney did not insist on witness statements being translated from Spanish to English.^[7]Lastly, Magana claimed that his defense attorney failed to investigate several witnesses that did not make statements and failed to investigate witness statements that were part of the investigative record.

The trial court failed to rule on the 2013 motion at the time.

In July 2015, Magana filed a motion to modify his judgment and sentence with regard to his LFOs. The court considered and granted the motion on December 18. Magana was found indigent and his judgement and sentence was amended to strike the $1,500 court appointed attorney fees.

On July 7, 2016, Magana filed another pro se motion to withdraw his guilty plea pursuant to CrR 7.8 ("2016 motion"). He claimed that his plea agreement incorrectly indicated that the State "will" recommend 24-48 months community custody, but that instead it requested 36 months, so his decision to plead guilty was not knowing, intelligent, and voluntary. Magana also argued that, at sentencing, the trial court did not make an individualized inquiry into his current and future ability to pay and improperly imposed LFOs.

On September 7, Magana filed a petition for a writ of mandamus for his 2016 motion. The Washington Supreme Court did not accept Magana's petition because he failed to include a filing fee. Magana requested a waiver of the filing fee. In November, the trial court ruled that Magana's 2016 motion was not properly before the court.

On December 7, the Washington Supreme Court issued an order granting Magana's 2016 petition for a writ of mandamus. The order directed the Honorable Frank Cuthbertson to take action on Magana's 2016 motion. The trial court transferred the motion to this court on December 14 because it was time barred under RCW 10.73.090.

In February 2017, this court dismissed Magana's 2016 motion because he filed it more than one year later than the date of final judgment under RCW 10.73.090(3)(a).

In February 2018, Magana filed a motion to withdraw particular motions, including the 2013 motion to withdraw his guilty plea. Despite having withdrawn his 2013 motion, Magana filed a petition in the Supreme Court for writ of mandamus for his 2013 motion. The Supreme Court granted the petition for writ of mandamus and directed the trial court "to take action on the motion filed in that court by the Petitioner on December 12, 2013." CP at 621. In October 2020, Magana then filed a motion in the trial court to withdraw his 2018 "motion to withdraw particular motions." CP at 534 (emphasis omitted). The trial court granted the motion.

D. Proceedings for the 2013 Motion to...