Opinion
No. 35058-1-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 03-2-03086-8, John P. Wulle, J., entered May 16, 2006.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Hunt, JJ.
Scott Christopher Smith appeals his conviction and sentence for one count of first degree child rape, one count of first degree child molestation, and one count of third degree child assault. He argues that (1) the trial court denied his due process rights because he did not knowingly, intelligently, or voluntarily enter his plea; (2) the trial court abused its discretion by refusing to impose a special sex offender sentence under RCW 9.94A.670, the special sex offender sentencing alternative (SSOSA); and (3) the trial court erred when it imposed community custody conditions without legislative authority. Finding Smith's first argument dispositive, we reverse and remand for proceedings consistent with this opinion.
RCW 9.94A.670(2) provides in relevant part:
An offender is eligible for the special sex offender sentencing alternative if: (a) The offender has been convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious offence. If the conviction results from a guilty plea, the offender must, as part of his or her plea of guilty, voluntarily and affirmatively admit he or she committed all of the elements of the crime to which the offender is pleading guilty.
FACTS
On February 24, 2006, the State charged Smith with first degree child rape (count I), first degree child molestation (count II), and third degree child assault (count III). According to the amended information, Smith committed all three crimes between November 11, 2003, and August 7, 2005, against victims DRS and SDB. Smith entered a plea of guilty for each count pursuant to plea bargain allowing him to seek a SOSSA sentence. Although, under the applicable criminal statutes for counts I and II and RCW 9A.20.021, Smith was facing a maximum statutory sentence of life in prison with the possibility of parole, his statement of defendant on plea of guilty (guilty plea statement), incorrectly listed the maximum statutory sentences for count I and count II as 20 years in prison and a $50,000 fine per offense. During the colloquy on the guilty plea, the trial court did not inform Smith that the statutory maximum for the first two counts was life in prison. Rather, the trial court repeated the erroneous information from the guilty plea statement.
RCW 9A.44.073 provides:
(1) A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim. (2) Rape of a child in the first degree is a class A felony.
RCW 9A.44.083 provides:
(1) A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.
(2) Child molestation in the first degree is a class A felony.
RCW 9A.36.140 provides:
(1) A person eighteen years of age or older is guilty of the crime of assault of a child in the third degree if the child is under the age of thirteen and the person commits the crime of assault in the third degree as defined in RCW 9A.36.031(1)(d) or (f) against the child.
(2) Assault of a child in the third degree is a class C felony.
RCW 7.69A.030(4) creates a right in persons younger than 18 years old who are crime victims or witnesses to a crime not to have their names disclosed by any "state agency" without permission. Whether this proscription applies to appellate court case captions and opinions is unclear. At a minimum, the statute provides justification for an opinion author's decision to identify a child crime victim or a child witness to a crime only by initials.
RCW 9A.20.021 provides in relevant part:
(1) Felony. Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following: (a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in the amount fixed by the court of fifty thousand dollars, or by both such confinement and fine.
We use the term "parole" for ease of reference to the various and changing names for community supervision by the Department of Corrections.
The trial court accepted Smith's guilty plea and ordered the Department of Corrections to prepare a pre-sentence investigation (PSI) report. The PSI correctly reported that his maximum sentence was life with the possibility of parole. At sentencing, Smith presented the trial court with a psycho-sexual evaluation indicating that he was "a marginal candidate" for community-based treatment under the SOSSA. The trial court denied Smith's request, refusing to grant a SOSSA sentence. Instead, it sentenced him to life in prison with the possibility of parole on count I and II, with a minimum mandatory term of 171 months on count I and a minimum mandatory term of 96 months with the possibility of parole on count II, and 12 months on count III.
Smith appeals.
ANALYSIS
Smith argues that the trial court denied him his right to due process when it accepted his guilty plea, which he did not enter knowingly, voluntarily, and intelligently, because the trial court and the guilty plea statement, prepared by defense counsel, misinformed him about his maximum sentence. The State admits that the maximum sentence was misstated in Smith's guilty plea statement and by the trial court at the plea, but argues that all other documentation was in order and that "there has been no showing by [Smith] that his plea in this matter was not voluntary." Br. of Resp't at 4.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). This standard is reflected in CrR 4.2(d), which mandates that the trial court "shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." Under this rule, once a guilty plea is accepted, the trial court must allow withdrawal of the plea "to correct a manifest injustice." CrR 4.2(f). A defendant may also raise a "manifest error affecting a constitutional right" for the first time on appeal. RAP 2.5(a)(3). Our Supreme Court has recognized that an involuntary plea amounts to manifest injustice. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).
"A defendant must understand the sentencing consequences for a guilty plea to be valid."
State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). A defendant may challenge the voluntariness of a guilty plea when the defendant receives misinformation about sentencing consequences. See Miller, 110 Wn. at 531. And a defendant is entitled to withdraw his plea when the correct standard range is higher than the range stated in the plea agreement. State v. Walsh, 143 Wn.2d 1, 4-5, 8, 17 P.3d 591 (2001).
Unlike the case before us, State v. Walsh, addresses misinformation about the standard range rather than the maximum sentence. But because a defendant must understand the consequences of his plea, the same principle applies. See e.g., Wood v. Morris, 87 Wn.2d 501, 503, 513, 554 P.2d 1032 (1976).
More recently, in Isadore, our Supreme Court held that, generally, defendants need not establish the materiality of the sentencing consequence to their decision to plead guilty. The Court reasoned that "[a] reviewing court cannot determine with certainty how a defendant arrived at his personal decision to plead guilty, nor discern what weight a defendant gave to each factor relating to the decision." Isadore, 151 Wn.2d at 302. It is undisputed that Smith's guilty plea statement indicated that Smith was facing a maximum term of 20 years in prison on each of the first two counts.
But, pursuant to RCW 9A.44.073 and RCW 9A.44.083, counts I and II are class A felonies. And under RCW 9A.20.021(1)(a), the maximum statutory sentence for a class A felony is life imprisonment. Moreover, the trial court informed Smith, during the colloquy on the guilty plea, that:
Your standard sentencing range as to the rape of a child is 129 to 171 months, with a community custody range of life in prison. The maximum term is twenty years and/or $50,000.
As to the child molestation, your standard range is 72 to 96 months, with up to life in prison. The maximum term is twenty years and/or $50,000. And the life in prison was a community custody range, I'm sorry.
Report of Proceedings (RP) at 8 (emphases added.). The trial court's statement that the maximum terms were 20 years and/or a $50,000 fine and that "[the] community custody range [was] life in prison" misinformed Smith of the consequences of his guilty plea. Because Smith was misinformed about the sentencing consequences, his plea was involuntary and did not satisfy due process requirements.
The State relies on State v. Kennar, 135 Wn. App. 68, 143 P.3d 326 (2006), to support its argument that no manifest error occurred.
Division I of the Court of Appeals faced a similar situation in State v. Kennar, 135 Wn. App. 68, 143 P.3d 326 (2006). In Kennar, the defendant argued that the plea was not entered knowingly, voluntarily, and intelligently because the trial court misinformed him of the applicable maximum sentence at the time of the change of plea to Second Degree Murder with a firearm enhancement. The defendant maintained that this caused a manifest error affecting his constitutional rights.
Br. of Resp't at 3. But this is a misstatement of defendant's contention. In Kennar, unlike here, it was undisputed that the trial court correctly informed the defendant of the statutory maximum sentence. Kennar, 135 Wn. App. at 70-71. Kennar, instead, claimed that Blakely requires the top end of the standard range to also be his maximum sentence. Kennar, 135 Wn. App. at 74. Therefore, Kennar reasoned that he was misinformed as to the actual maximum sentence for second degree murder. Kennar, 135 Wn. App. at 71. Division One rejected his claim and held that Blakely did not apply to the guilty plea colloquy. Kennar, 135 Wn. App. at 75.
Blakely v. Washington, 542 U.S. 296, 124, S. Ct. 2531, 159 L. Ed. 403 (2004).
The State, in relying on Kennar, states that "[i]n affirming Kennar's conviction, the Court drew the distinction between what occurs at the time of the change of plea and what occurs at the time of sentencing." Br. of Resp't at 3. We are mindful of the language the State relies on in Kennar but the distinction drawn by the court in Kennar was to illustrate the absurd result of the defendant's reasoning and not to suggest that a defendant need not be properly informed of the statutory maximum sentencing consequences at the time of his plea.
Kennar specifically holds that "CrR 4.2 requires the trial court to inform a defendant of both the applicable standard sentence range and the maximum sentence for the charged offense as determined by the legislature." Kennar, 135 Wn. App. at 75. The language from Kennar that the State points to simply illustrates one reason why informing a defendant of the accurate maximum statutory sentence, lacking here, is essential to a voluntary plea.
Kennar's contention that Blakely applies to the guilty plea colloquy between the trial court and the defendant misperceives the role of the trial court. It is not until the sentencing hearing that the trial court makes its determination of a defendant's offender score and the applicable standard sentence range. At the time of the plea colloquy, the trial court is merely operating on the basis of the information given to it by the parties — it is not at that time making a determination that this information is correct. Thus, it sometimes happens that the standard sentence range applicable to a defendant is, at the time of sentencing, found by the court to be different from that set forth in the guilty plea form. Indeed, the guilty plea form itself discusses this possibility:
If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard range and the prosecuting attorney's recommendation may increase. Even so, my plea of guilty to this charge is binding on me. I cannot change my mind if additional criminal history is discovered even though the standard sentencing range and the prosecuting attorney's recommendation increase or a mandatory sentence of life imprisonment without the possibility of parole is required by law.
CrR 4.2(g); see e.g., State v. Thomas, 79 Wn. App. 32, 42, 899 P.2d 1312 (1995) (where additional criminal history was found before sentencing, the defendant was bound by his guilty plea and could be sentenced within the newly calculated, higher standard range).
Thus, the procedure advocated by Kennar would often result in defendants being misadvised of their maximum peril.
Kennar, 135 Wn. App. at 75-76 (emphasis added) (footnotes omitted). Thus, Kennar is inapposite and the State's reliance on it is unavailing.
Accordingly, we hold that Smith did not enter his plea freely, intelligently, and voluntarily and he is entitled to withdraw it. Without reaching the merits of Smith's remaining arguments, we reverse and remand for proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J., HUNT, J., concur.