Opinion
No. 60957-2-I.
October 27, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-12905-7, George T. Mattson, J., entered December 3, 2007.
Affirmed by unpublished per curiam opinion.
Kina Howell appeals the judgment and sentence imposed following her guilty plea to possession with intent to deliver marijuana. She contends her plea was not knowingly, voluntarily, and intelligently entered because she was erroneously advised that the maximum sentence for her offense was the statutory maximum, not the maximum sentence supported by the admissions in her plea. This argument is controlled by our decision in State v. Kennar, 135 Wn. App. 68, 143 P.3d 326 (2006), review denied, 161 Wn.2d 1013 (2007). To the extent the Division Two decision cited by Howell reaches a different result, we decline to follow it and adhere to Kennar. See State v. Knotek, 136 Wn. App. 412, 424 n. 8, 149 P.3d 676 (2006).
Howell also claims that, contrary to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), her plea form erroneously stated that the judge could impose a sentence above the standard range if he or she found substantial and compelling reasons to do so. Howell overlooks the fact that "the Blakely Court also acknowledged that a jury need not find facts supporting an exceptional sentence when a defendant pleads guilty and stipulates to the relevant facts":
But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.
State v. Suleiman, 158 Wn.2d 280, 289, 143 P.3d 795 (2006). In her Alford plea, Howell wrote, "I understand the judge will read the certification of probable cause to determine a factual basis for the plea sentencing purposes." The plea agreement also recited that the parties "stipulated" to "[t]he facts set forth in the certification(s) for determination of probable cause and prosecutor's summary." Had the trial court used these facts to find substantial and compelling reasons to sentence Howell outside of the standard range, it would have been within the Blakely exception for facts stipulated to by the defendant. Thus, while it would have been better to use the plea form now commonly used in the wake of Blakely, Howell's plea form did not misinform her regarding the court's authority to impose an exceptional sentence.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed 2d. 162 (1970).
Affirmed.