Opinion
No. 61846-6-I.
November 24, 2008.
Petition for relief from personal restraint.
Granted, sentence vacated, and remanded by unpublished per curiam opinion.
Harry Olebar filed a motion to modify or correct his judgment and sentence following his conviction by guilty plea of possession of a controlled substance in King County Superior Court No. 07-1-10983-4. The superior court transferred the motion to this court for consideration as a personal restraint petition. We accept the State's concession that Olebar's sentence must be vacated and that he must be resentenced. On remand the State will recommend to the sentencing court that Olebar's sentence run concurrently with the sentence imposed on another of Olebar's conviction, and the sentencing court is granted the discretion to make that change.
At the time of Olebar's plea, the prosecution agreed to recommend his sentence run concurrently with another conviction in King County No. 03-1-05764-5. The sentencing court failed to indicate on Olebar's judgment and sentence whether the sentence would run concurrently or consecutively with any other conviction. After Olebar began serving his sentence, he learned that the Department of Corrections (DOC) had determined that, under RCW 9.94A.589(2)(a), his sentence had to run consecutively to his sentence in No. 03-1-05764-5, on which Olebar was incarcerated for community custody sanctions, because Olebar committed his 2007 offense while he was under sentence for the 2003 offense. Olebar contacted the sentencing court, but, based on RCW 9.94A.589(2)(a), the court denied Olebar any relief, and thereafter transferred his further requests for relief to this court.
The King County Prosecutor's Office initially argued that there was no error in Olebar's judgment and sentence because RCW 9.94A.589(2) controls the circumstances here. C.f. State v. Roberts, 76 Wn. App. 290, 884 P.2d 628 (1994) (defendant released on community supervision is "under sentence for conviction of a felony" for purposes of RCW 9.94A.589(2)). While this argument was responsive to part of Olebar's claim, it did not address what effect the prosecutor's agreement to recommend a concurrent sentence had on Olebar's claim for relief.
This court accordingly directed the King County Prosecutor's Office to file a supplemental response addressing whether, under In re Pers. Restraint of Murillo, 134 Wn. App. 521, 530, 142 P.3d 615 (2006), In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 428, 993 P.2d 296 (2000), and State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988), Olebar was entitled to elect the remedy of specific performance of his plea agreement because the agreement was based upon a mutual misunderstanding of the law relating to concurrent and consecutive sentences.
The King County Prosecutor has now filed a supplemental response acknowledging that Olebar's plea was based on a mutual mistake as to a material provision of the law and that Olebar was therefore misadvised of a direct consequence of his plea. The State therefore concedes that Olebar must be resentenced.
We accept the concession because under such circumstances a defendant is entitled to his choice of two remedies, either withdrawal of his guilty plea or specific performance, unless there is a compelling reason not to allow the chosen remedy. Miller, 110 Wn.2d at 531. The State offers no reason to deny Olebar's request for specific performance, his remedy of choice, and none appears in the record.
Olebar therefore is entitled to vacation of his sentence, and a remand for appointment of counsel and resentencing, at which time the State will be required to make the bargained-for recommendation of a concurrent sentence, and the trial court will possess the discretion to grant a concurrent sentence. See In re Pers. Restraint of Powell, 117 Wn.2d 175, 814 P.2d 635 (1991), cert. denied, 516 U.S. 825, 116 S. Ct. 91, 133 L. Ed. 2d 47 (1995); State v. E.A.J., 116 Wn. App. 777, 786 n. 5, 67 P.3d 518 (2003); State v. Henderson, 99 Wn. App. 369, 378, 993 P.2d 928 (2000).
The personal restraint petition is granted and Olebar's sentence is vacated. Olebar shall receive a new sentencing hearing at which the State must recommend he receive concurrent sentences and the sentencing court will possess the discretion to order that Olebar's sentence in King County Superior Court No. 07-1-10983-4 shall run concurrently with his sentence in King County No. 03-1-05764-5.