Opinion
No. 57153-2-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for King County, No. 00-1-04397-6, Michael J. Fox, J., entered August 29, 2005.
Remanded by unpublished opinion per Becker, J., concurred in by Grosse and Ellington, JJ.
As trial was about to begin on a second degree murder charge against appellant Darrick Jennings, the trial judge told Jennings that the State's plea offer was "in his best interests", a "very good deal", and it would be a "mistake" and "a very unwise decision" to turn it down. Jennings accepted the offer and was convicted. He now contends the record showing the pressure applied by the court casts significant doubt upon the voluntariness of the plea. We agree and remand to give Jennings the opportunity to withdraw his plea.
Three hours after a jury found him guilty of delivering cocaine, Darrick Jennings — released on bail — shot and killed an unarmed rival gang member. The State charged Jennings with felony murder with a firearm enhancement. At the end of his first trial in November 2000, the jury was unable to reach a unanimous verdict. Upon retrial in February 2001 Jennings was found guilty and sentenced to 280 months. This was to run concurrently with two other sentences, and consecutively with an 89-month sentence for delivering cocaine, for a total of 369 months (over 30 years) in prison.
Clerk's Papers at 205 (Judgment and Sentence, March 21, 2001).
The murder conviction was vacated based upon In re Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). The State amended the information and charged Jennings with second degree murder along with a firearm enhancement. Jennings elected to proceed to a jury trial and the case was set for trial in July 2005.
Before opening statements began, the court inquired about the status of plea negotiations. The State said that the pending offer was to allow Jennings to plead to manslaughter in the first degree, with a deadly weapon enhancement instead of a firearm enhancement. The standard range for such a conviction was 144 to 182 months. The State would recommend a high end sentence of 180 months, and would recommend that the manslaughter conviction run concurrently with the prior conviction for delivering cocaine. Defense counsel told the court that he would recommend 144 months if Jennings entered the plea. But, he said, Jennings did not want to accept the State's offer.
The trial court believed the offer was generous and encouraged Jennings to rethink his decision:
THE COURT: Now, looking at these numbers, and being familiar with the evidence in this case, having heard the prior trial, I think this is a very favorable resolution from the defendant's perspective. I would urge Mr. Jennings and his counsel to reconsider the decision that Mr. Jennings just indicated that he made. To put it bluntly, I think this is a good deal, Mr. Jennings, a favorable deal, a fairly generous deal offered by the State.
. . .
I can tell you that having been here now, presiding over cases for 18 years, this is an offer that I would seriously urge you to consider. I think it's in your best interests, and if you want to take a few more minutes to think about it and talk about it with Mr. McDonald, you certainly can.
Report of Proceedings at 5, July 19, 2005.
Jennings responded that he was ready to make a deal with the State only if his sentence would not exceed 160 months. The court further explained the recommendations and the court's role in sentencing:
THE COURT: Now, I cannot tell you, Mr. Jennings, in honesty what I would do. However, I'm sitting here and I'm telling you that I think that this would be a good deal from your perspective.
Before sentencing, I would want to know what's going on, to some extent, in the last few years that you have been in prison. I don't know anything about that whatsoever. I would like to see if I can get some more information that's going to give me something to indicate what type of citizen you are going to be once you are released into the general population.
I only have discretion here, 182 minus 144 is 38 months. I only have discretion for 38 months. . . .
I could wind up imposing a sentence of 144 months, or I could wind up imposing a sentence of 182 months or anywhere in between there. But I'm urging you to seriously consider this deal.
All I can tell you, I can't promise anything with regard to sentencing. All that I can do is tell you that I would take a fresh look at this entire matter and I would take a fresh look at, again, what you have done over the last few years in prison and whether that gives me any indication about, again, what kind of a citizen you are going to be when you are released.
. . .
THE COURT: See, this decision about what the sentence is is totally up to me.
THE DEFENDANT: Right.
THE COURT: And I'm not going to participate in your negotiations because that's not my role. What I'm indicating to you is that your counsel, for whom I have great respect, is going to be recommending a minimum standard range of 144 months.
THE DEFENDANT: Left?
THE COURT: What's that?
MR. MCDONALD: No, that's left. It includes the 55 you have already done.
THE COURT: It's minus the time you have already served and minus whatever good time you accumulate over the entire course of your sentence. So you are looking at a release date that's not that far off, and Mr. McDonald can figure that out for you right now.
MR. MCDONALD: That's right.
THE DEFENDANT: So if I take —
THE COURT: Just let me finish and then I will get off the bench, and you can talk. I'm also going to listen very seriously to what the prosecution recommends, I'll be honest with you, I have great respect for these prosecutors, as well. I'm going to seriously consider both arguments about what the sentence should be.
Whether I would wind up near the low end or near the high end or almost in the middle, I don't know, because there is more information I would want. I'm not going to participate in these negotiations as to say if you take this deal I will impose a sentence of precisely 160 months.
THE DEFENDANT: Okay.
THE COURT: But I'm telling you that I would do my job, which is to seriously consider the arguments advanced by both sides and look at the evidence with regard to, again, the factors that should be considered at sentencing.
With these two recommendations, this is what I would characterize as a very good deal from your interests in terms of the amount of time that you would have left to serve, which is not that long, in the event that you accept this offer and the Court winds up roughly near what you are talking about.[]
Report of Proceedings at 9-13, July 19, 2005.
After a brief recess in which Jennings discussed the matter with his attorney, he again declined the State's offer. The State made clear that the offer would be off the table once opening statements began. The court told Jennings that it was a mistake to reject the offer:
THE COURT: All right. Mr. Jennings, that's an unequivocal decision by you?
THE DEFENDANT: Yes, it is.
THE COURT: All right. I will tell you that after having sat through this first trial, I think this is a very serious mistake. I don't know if you are fully understanding the opportunity you are giving up, but it's a very significant one.
. . .
THE COURT: I think, again, I'm not attempting in any way to denigrate your decision-making, but it looks to me that a rejection of this offer, given the other consequences, and the possible likely outcome, would be a very unwise decision on your part.
Report of Proceedings at 14-18, July 19, 2005.
Upon returning from a lunch break, Jennings accepted the State's offer and entered a plea of guilty. At sentencing one month later, the court imposed a total of 172 months. This appeal followed. Jennings contends the trial court overstepped its bounds by pressuring him to plead guilty, thus rendering his plea involuntary. Jennings asks this court to remand his case back to the trial court to give him the opportunity to consider withdrawing his plea. The State responds that the appeal should be denied because the trial court's involvement was only to make certain that Jennings understood all of the conditions of the State's offer so that his plea would be knowing and intelligent.
The statute permitting plea agreements expressly limits the trial court's involvement: "The court shall not participate in any discussions under this section." RCW 9.94A.421. Washington follows the guidance of American Bar Association standards that permit the trial court to "serve as a moderator" in plea discussions with the parties, but not to play the role of an active bargainer:
3 American Bar Association, Standards for Criminal Justice, Std. 14-3.3(c) (in part) (2d ed. 1980).
Where the parties have neither advised the judge of a plea agreement nor requested to meet for plea discussion purposes, the judge may inquire of the parties whether disposition without trial has been explored and may allow an adjournment to enable plea discussions to occur.
. . . Except as otherwise provided in this standard, the judge should never through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.
State v. Pouncey, 29 Wn. App. 629, 635, 630 P.2d 932 (1981) (quoting 3 American Bar Association, Standards for Criminal Justice, Std. 14-3.3(e)-(f) (in part) (2d ed. 1980)).
The defendant in Pouncey, facing charges of armed robbery, pleaded guilty to a lesser charge. After being sentenced, he moved in the trial court to withdraw his plea. Pouncey alleged that the judge had been coercive when, during a chambers discussion with counsel at which Pouncey was not present, the judge asked defense counsel whether he had considered talking with Pouncey about a plea given the seriousness of the charges. The trial court denied Pouncey's motion to withdraw his plea. After considering the American Bar Association Standards and adopting them in principle, this court affirmed the trial court's decision. "Regardless of the precise wording of the standard (and, indeed, independent of any specific standard), we believe the appropriate appellate function is to scrutinize the available record carefully to determine whether or not the judge's presence and/or involvement affected the voluntariness of the defendant's plea." Pouncey, 29 Wn. App. at 637. The court concluded that the available record clearly indicated that the trial judge acted merely as a moderator of a discussion between counsel and his comments to the attorney were not coercive. Pouncey, 29 Wn. App. at 637.
The Supreme Court agreed with the reasoning of Pouncey in State v. Wakefield, 130 Wn.2d 464, 473, 925 P.2d 183 (1996). Where a trial court participates in plea negotiations, "the critical inquiry is whether such participation resulted in an involuntary plea." Wakefield, 130 Wn.2d at 473.
In Wakefield, the trial court first interjected itself into plea discussions when making an oral ruling that Wakefield was competent to stand trial. The court expressed concern over Wakefield's "failure to be receptive to a plea offer that would subject her to much less jeopardy". Wakefield, 130 Wn.2d 468. A week later, defense counsel informed the court that Wakefield was inclined to accept the plea if she could receive assurance from the court that she would be sentenced to a correctional facility rather than a mental institution. The court acceded to this request and explained to Wakefield that she would be sentenced to a correctional facility. The court additionally told Wakefield that she would be sentenced within the standard range. Wakefield, 130 Wn.2d at 469. Immediately following these comments, Wakefield entered a plea, acknowledging in colloquy the possibility of an exceptional sentence. The State recommended a sentence of 41 months and the defense requested a 31-month sentence. The trial court, however, imposed an exceptional sentence of 120 months (the maximum available) based on the vulnerability of the victim. Wakefield, 130 Wn.2d at 470.
Unlike in Pouncey, Wakefield did not initially seek relief in the trial court. On direct appeal, she argued that the trial judge improperly participated in the plea negotiations by promising to sentence her within the standard range. She argued that the only adequate remedy was to grant "specific performance" of the plea agreement and remand her case for sentencing within the standard range.
The Supreme Court agreed with Wakefield that the judge's promise of a standard range sentence had rendered her plea involuntary and she was entitled to a remedy: "We are mindful of the fact that a trial judge's promise of a standard range sentence could easily sway a defendant to plead guilty. In the present case, the trial judge's involvement in the plea negotiations casts significant doubt on the voluntariness of Wakefield's plea." Wakefield, 130 Wn.2d at 475. But the court did not agree that Wakefield was entitled to specific performance of the plea agreement as a remedy. The sentencing judge is not bound by the plea agreement or by any statements made in explaining it; only the prosecutor and the defendant are parties to the agreement. Wakefield, 130 Wn.2d at 474. Instead, Wakefield's remedy was under CrR 4.2(f) which requires a trial court to permit withdrawal of a plea agreement where the defendant entered the plea involuntarily. The Supreme Court remanded the case to the trial court for a hearing to give Wakefield the opportunity to withdraw her plea. If she chose not to withdraw her plea, the exceptional sentence would stand.
Here, the trial judge involved himself in plea discussions and asked Jennings to "seriously consider" the State's offer, but did not promise a particular sentence. The State contends that this case is therefore closer to Pouncey than to Wakefield. In the State's view, the trial court participated only as a "moderator" rather than as an "active bargainer," and the court's comments had no effect other than ensuring that Jennings understood the terms and conditions of the fairly complex offer as well as the sentence he would face if he chose to proceed with a trial. Our response to the State's argument is influenced by the Supreme Court's recent per curiam decision in State v. Watson, 159 Wn.2d 162, 165, 149 P.3d 360 (2006). At a pretrial competency hearing, Watson told the judge that his attorney had mentioned the option of a guilty plea. The judge replied:
And, I really think you should take their offer. It's a calculated risk going to trial. I did defense work and I had clients that wouldn't take the offer and went to trial and ended up with double the jail time and I would come back and tell them, don't blame me, you're the one that wanted to go to trial.
So, I think you need to seriously think about the next trial date and whether you want to take the risk of going to trial.
Watson, 159 Wn.2d at 163-164. The judge ruled that Watson had a personality conflict with his attorney but found no competence issue. Several months later, having discussed his situation with new counsel, Watson appeared before a different judge to enter a plea. On direct appeal from his conviction, he sought the opportunity to withdraw his plea, characterizing the remark about "double the jail time" as a threat and claiming it rendered his plea involuntary. The Court of Appeals concluded there was no threat and affirmed in an unpublished opinion. The Supreme Court agreed with the Court of Appeals' conclusion that "Watson's ultimate plea was sufficiently removed from the judge's remarks to attenuate any effect they may have had on the plea." Watson, 159 Wn.2d 165. The Supreme Court did, however, emphasize that it was "wholly inappropriate" for a judge to advise a defendant to take a plea:
State v. Watson, No. 32780-5-II (January 31, 2006).
Ordinarily, this court would simply deny review of a routine Court of Appeals opinion with which we agree. But here we grant review to emphasize that the criminal presiding judge's remarks were wholly inappropriate. While the judge made no threat to impose "double jail time," as Watson claims, she did advise Watson to "take [the State's plea] offer." Trial judges are to refrain from offering defendants any advice, direct or implied, about the wisdom of pleading guilty.
Watson, 159 Wn.2d at 165.
Here, the trial court told Jennings that the offer was "generous", in his "best interests", a "very good deal", and it would be a "mistake" to reject it. By the standard set forth in Watson, these remarks were clearly inappropriate. While there was no outright promise of a low-end or middle-range sentence, there was an indication that the court was leaning in that direction by way of comments about the court's respect for defense counsel and how the offer was "a very good deal" if the court ended up imposing a sentence "roughly near what you are talking about." In Watson, the effect of the court's general comment about the wisdom of pleading guilty was attenuated by the lack of urgency to the offer, the months that passed before the defendant decided to plead, and the presence of new counsel and a different judge. Here, by contrast, the trial was about to begin, Jennings had made an unequivocal decision to proceed with trial, and the court's remarks were directed to a very specific offer that the State was about to withdraw. The trial judge was familiar with the evidence after having presided over Jennings's two previous trials and was going to preside over this one as well. He spoke directly with the defendant about how it would be a mistake to walk away from the State's offer. Under these circumstances we cannot conclude that the court was simply moderating a discussion between counsel who are unable to reach agreement. We conclude that the volume and intensity of the advice the court gave to Jennings in these urgent circumstances does cast "significant doubt" on the voluntariness of the plea.
Because the posture of this case is essentially the same as Wakefield, the remedy is also the same. Jennings must be allowed the opportunity to withdraw his plea, and we remand to the trial court to give him this opportunity. If he elects not to withdraw his plea, the sentence imposed will stand. If he does withdraw his plea, he will face trial. The State, of course, is under no obligation to make any further offers.
Jennings also argues that the statute requiring convicted felons to provide a DNA sample is unconstitutional. We reject this argument, following State v. Surge, No. 76013-6 (April 19, 2007).
Remanded.