State v. Drath

Citation: 431 P.3d 1098Docket: No. 49403-5-II

Court: Court of Appeals of Washington; December 27, 2018; Washington; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Orlena R. Drath appeals her convictions for multiple offenses, including residential burglary and firearm-related charges, resulting in a 128-month sentence. She claims ineffective assistance of counsel during plea negotiations due to being misinformed about her potential sentencing range if convicted at trial. Drath's defense counsel allegedly provided incorrect information, stating a range of 87 to 116 months without acknowledging that certain sentences would run consecutively, which should have indicated a range of 103 to 136 months. Additionally, Drath argues that her counsel failed to object to a prosecutor's statement during closing arguments and that the trial court improperly limited her cross-examination of a witness, violating her constitutional right to present a defense. The court found that the misinformation about the sentencing range constituted ineffective assistance but ruled that the other claims regarding the prosecutor's statement and cross-examination limitations were unfounded. The decision reverses the conviction and remands the case for further proceedings. Drath had previously filed a pro se motion for a new trial based on the alleged misinformation, and an evidentiary hearing involved testimonies from multiple attorneys who represented her, with the first attorney acknowledging he could not recall discussions about her sentencing range.

Taschner represented Drath from October 7, 2013, to June 2, 2014, during which he discussed a potential plea deal in May 2014. Drath reacted negatively, leading Taschner to avoid specifics about potential sentencing ranges. He intended to address these details in a follow-up meeting, which Drath missed. Taschner informed her that sentences for theft of a firearm and unlawful possession would be consecutive but framed this in the context of possible additional charges. He did not provide specific sentencing ranges, only indicating that additional charges could result in over 15 years of confinement. Taschner did not recall Drath ever expressing willingness to consider a plea.

Jones represented Drath from June 2, 2014, to January 27, 2015, and acknowledged several discussions about consecutive sentencing, including a cautionary tale about a severe sentence. However, he could not recall providing a specific sentencing range of 103 to 136 months to Drath, believing it did not accurately reflect her potential exposure due to possible additional charges. He negotiated a plea offer for a 41.5 month sentence, which Drath rejected.

Gazori represented Drath from February 4, 2015, to September 1, 2015, during her first trial, which ended in a mistrial. On June 2, 2015, he met with the State, which provided a chart detailing the sentencing ranges Drath faced, indicating that two counts were mandatorily consecutive, with a range between 103 and 136 months. The chart also included a plea offer range of 67 to 75 months. Gazori conveyed this offer to Drath but did not explicitly mention the term "consecutive" when discussing how certain sentences would "run after this." There is no record of Gazori providing Drath with the State's handwritten chart.

Gazori and the State discussed a plea offer without Drath present, noting count numbers of charges but not their names. Gazori reviewed a handwritten document with Drath, which he failed to copy or track after transferring the file. Drath ultimately rejected the plea offers presented by Gazori. After a mistrial, the State offered a plea on terms similar to a previous case, resulting in 33 months of confinement. Drath requested time to consider the offer, but the State withdrew it before she could respond. Gazori could not confirm if he explicitly informed Drath of the potential sentencing range, recalling only that he provided a vague estimate.

Jardine represented Drath from September 2015 to April 2016, negotiating plea offers, including a reopened offer with a sentencing range of 67 to 75 months, which Drath did not accept. As the trial approached, Jardine proposed a plea of 40 months, which the State countered with 50 months. Jardine inquired about the specific charges related to this counteroffer, and the State indicated it would remove the Trafficking charge. Drath rejected the 50-month offer. During cross-examination, Jardine identified a handwritten document detailing charges and sentencing ranges, specifying a total range of 87 to 116 months, including good time credits.

Drath testified that she only discussed potential sentencing consequences with some attorneys, specifically mentioning Gazori and a narrative from another attorney, but could not recall Gazori providing a specific sentencing range.

Drath met with her attorney, Jardine, to discuss a handwritten document that outlined her potential sentencing range if convicted, indicating a range of 87 to 116 months, with a separate note of '6 years' as her worst-case scenario. Drath testified that Jardine communicated a plea offer of 50 months but later advised against accepting it, suggesting it was better to proceed to trial due to the lack of favorable offers from the prosecutor. Drath indicated she would have considered the 50-month plea if she had known her true sentencing range was 103 to 136 months, which she had not been informed of by her previous attorneys. 

The trial court found Jardine's failure to account for RCW 9.94A.589(1)(c) when advising Drath constituted ineffective assistance of counsel, as her representation did not meet an objective standard of reasonableness. However, the court ruled that Drath did not demonstrate a reasonable probability that the outcome would have changed had she received accurate information, leading to the denial of her motion for a new trial. Drath subsequently appealed, claiming ineffective assistance during plea negotiations due to the misinformation regarding her sentencing range. The State acknowledged the error but contended that Drath did not show resulting prejudice. The court held that the failure to provide the correct sentencing range did prejudice Drath, constituting ineffective assistance of counsel under the Sixth Amendment and Washington Constitution.

An ineffective assistance of counsel claim requires a two-part analysis: the defendant must demonstrate that (1) counsel's performance was deficient and (2) this deficiency prejudiced the defense. A claim fails if either prong is not satisfied. The court established that the right to effective counsel includes aiding defendants in making informed decisions during plea negotiations. Counsel is obligated to evaluate the evidence and potential conviction likelihood to inform the defendant adequately. 

To establish prejudice, a defendant must show a reasonable probability that, but for the deficient performance, the outcome would have differed. This probability must be substantial enough to undermine confidence in the result. Specifically, within plea negotiations, the defendant must prove that competent advice would have led to a different plea outcome.

In a referenced case, the court determined that the defendant, Estes, met the burden of showing that had he known about the potential life sentence, he might have negotiated differently, demonstrating that he was denied the ability to make an informed decision. 

In Drath's case, her counsel erred by miscalculating her potential sentencing range, leading her to believe she faced a maximum of 116 months instead of the actual 136 months. This misinformation prevented Drath from making an informed choice about accepting a plea offer of 50 months. The State argued that Drath's previous rejection of plea offers differentiated her case from Estes; however, the court found this distinction unpersuasive, indicating that the core issue of informed decision-making remained unresolved.

The State's argument posits that a defendant's rejection of plea offers indicates an unwillingness to engage in plea bargaining. However, a defendant's willingness may evolve during the case. Drath rejected four plea offers over five years but actively discussed them with her attorneys. She stated that had she known her actual sentencing range during the final plea offer, she would have considered it. The record suggests it is likely the outcome would have differed if she had known her maximum sentence was 20 months longer than indicated.

The State contends Drath did not demonstrate prejudice, arguing she was aware of the potential for consecutive sentences as informed by her attorneys. They also claim the risk Drath faced was less severe than that faced by another case, which involved a life sentence. However, any additional jail time carries Sixth Amendment significance. Despite three attorneys discussing consecutive sentencing, none provided Drath with an accurate sentencing range that included this information.

One attorney, Taschner, only mentioned consecutive sentencing in the context of possible additional charges without clarifying the current charges' sentencing range. Another attorney, Jones, failed to inform her of the actual range and used a different client’s experience as an example. Gazori mentioned that some charges would run consecutively but did not clarify how this would impact her sentencing range. Consequently, it is questionable whether Drath understood she needed to add 16 to 20 months to her standard range based on prior discussions.

Only Jardine provided a concrete sentencing range, but his calculation was erroneous, leading him to dismiss the State's plea offer as not advantageous. Although the State argues that Drath's uncertainty about accepting the final plea offer indicates she would not have done so, the standard for establishing prejudice does not require absolute certainty of a different outcome. There is a reasonable probability that had Drath known her true sentencing exposure, she would have pursued a different outcome. Therefore, it is concluded that Drath was prejudiced by her counsel's ineffective assistance.

The remedy for ineffective assistance of counsel involves restoring the defendant to the position they would have occupied if effective counsel had been provided. In State v. Hamilton, it was established that if a plea offer involved lesser charges than those resulting in a conviction, simply resentencing based on the conviction may not be adequate. Instead, the prosecution could be required to reoffer the plea. The trial court has discretion to either accept the plea and vacate the conviction or maintain the conviction.

In Drath's case, the plea offer involved guilty pleas to counts different from those for which she was convicted, warranting remand for the prosecution to reoffer the 50-month plea deal. If Drath accepts, the trial court may vacate her conviction and resentence her accordingly; if she or the court rejects the plea, her conviction remains. Failure to accept within 90 days also results in the conviction standing.

The majority opinion was published while dissenting views noted that Drath did not sufficiently demonstrate prejudice from her counsel's performance. Testimony from an evidentiary hearing indicated that Drath had not shown a reasonable probability of accepting the plea had her counsel been effective. Over the course of her prosecution, five different lawyers represented her, and she rejected multiple plea offers, including one for 50 months, opting instead for trial after being advised about potential sentencing. Ultimately, she was convicted of eight felonies and sentenced to 128 months. Following this, she motioned for a new trial, claiming misinformation about sentencing ranges, leading to the appointment of new legal counsel and an evidentiary hearing involving all her previous lawyers.

Drath was questioned about whether she would have considered a 50-month plea offer if she had known the correct sentencing range and indicated that she would have considered it, but was unsure if she would have accepted it. The court found that Drath's trial lawyer was deficient for not properly advising her that some charges would run consecutively but denied her motion for a new trial, stating she failed to demonstrate prejudice. To succeed on a claim of ineffective assistance of counsel, a defendant must show both deficient performance by counsel and resulting prejudice, specifically that the plea outcome would have been different with competent advice. Drath did not establish that she would have accepted the plea offer or that the outcome of the criminal process would have been more favorable had she received effective assistance. The excerpt references legal standards from relevant cases, including Strickland v. Washington and Lafler v. Cooper, which outline the requirements for proving ineffective assistance. The comparison to State v. Edwards illustrates that a failure to show prejudice can lead to the affirmation of a conviction, as the defendant in that case also did not prove he would have accepted a plea deal.

Edwards presents a factually similar case to Drath's, where she failed to demonstrate that she would have accepted a plea deal from the State. Unlike Edwards, who expressed a desire to negotiate, Drath could not confirm whether she would have accepted a 50-month plea offer. During her motion for a new trial, she did not testify with reasonable certainty that she would have accepted the deal, undermining her claim of prejudice. The majority's reliance on State v. Estes is misplaced; in Estes, the defendant was uninformed about critical details affecting his negotiations, which impacted his decision. The court found a reasonable probability that knowledge of the potential life sentence would have changed the outcome for Estes. Conversely, the current case lacks such speculation since Drath was aware of the plea offer and still could not assert that she would have accepted it. The court concluded that Drath had not shown prejudice resulting from her counsel's performance. Under RCW 9.94A.589(1)(c), the sentencing structure for her offenses mandates consecutive sentences, and while there have been amendments to this law, they do not affect the relevant statutory language. The dissent focuses exclusively on the ineffective assistance of counsel claim's prejudice aspect, as Drath did not contest the findings of fact, which are accepted as true on appeal.