Opinion
No. 37586-9-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00867-5, Leonard W. Costello, J., entered March 12, 2008.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION
David Paul Vandament appeals the trial court's denial of his motion to withdraw his Alford plea to one count of first degree child rape and one count of first degree child molestation. He argues that (1) he did not receive a copy of the first amended information, (2) the trial court misadvised him about the required term of community custody on his conviction for first degree child molestation, and (3) the trial court did not advise him that both offenses were most serious offenses. He also raises additional issues in two statements of additional grounds for review (SAG). Finding no error, we affirm.
In an Alford plea, the defendant concedes that the state's evidence is strong and most likely would result in a conviction. North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 162 (1970); see also State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1976).
Ordinarily, when a defendant pleads guilty, the factual basis for the offense is provided at least in part by the defendant's own admissions. With an Alford plea, however, the court must establish an entirely independent factual basis for the guilty plea, a basis which substitutes for an admission of guilt.
State v. D.T.M., 78 Wn. App. 216, 220, 896 P.2d 108 (1995).
RAP 10.10.
FACTS
On August 22, 2006, the State charged Vandament with one count of first degree child molestation against RMNJ between May 31, 2005, and May 31, 2006. The State filed a first amended information on September 1, 2006, charging Vandament with one count of first degree child rape, in violation of RCW 9A.44.073, against RMNJ between May 31, 2005 and May 31, 2006, and one count of first degree child molestation, in violation of RCW 9A.44.083, against BJG, between January 1, 1999, and January 1, 2004.
We use initials when we refer to minor victims. See generally State v. Roswell, 165 Wn.2d 186, 189 n. 1, 196 P.3d 705 (2008).
The trial court arraigned Vandament on the amended information on September 12, 2006. Vandament appeared for an Alford plea to the first amended information on November 14, 2006. At the hearing, the prosecutor stated he wished to correct a "scrivener's error" in the first amended information to change the dates of the offense against BJG to January 1, 1999, to September 1, 2000. Clerk's Papers (CP) at 366. The court allowed this change. Vandament then entered his Alford pleas to the charges, as amended.
On March 19, 2007, the trial court sentenced Vandament to 160 months plus lifetime community custody on the child rape charge, count I, and 89 months plus 36 to 48 months of community custody on the child molestation charge, count II.
Vandament moved to withdraw his plea on February 5, 2008. He argued, in relevant part, that the alterations to the first amended information were made without his knowledge or consent and after he signed his plea statement. He added that he was not provided a copy of the first amended information before or after the alteration made on the day of his plea. He also maintained that his sentence was not adequately explained and that he did not understand the sentencing consequences of his plea. The trial court denied the motion.
Vandament appeals the trial court's denial of his motion to withdraw his plea.
ANALYSIS
I. Withdrawal of Plea
A. Standard of Review
We review the denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). In order for us to reverse the trial court's dedcision, "the record must show that the discretion exercised by the court [in denying the motion] was predicated upon grounds clearly untenable or manifestly unreasonable." State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966).
B. Withdrawal of Plea — Manifest Injustice Required
CrR 4.2 permits a defendant to withdraw a guilty plea to correct a manifest injustice. A trial court errs in denying a motion to withdraw a guilty plea when withdrawal is necessary to correct a manifest injustice. CrR 4.2(f). State v. Taylor, 83 Wn.2d 594, 595, 521 P.2d 699 (1974). State v. Dixon, 38 Wn. App. 74, 76, 683 P.2d 1144 (1984) (manifest injustice standard also applies to motions to withdraw Newton or Alford pleas). A manifest injustice occurs when "(1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept." State v. Marshall, 144 Wn.2d at 281.
CrR4(f) states:
Withdrawal of Plea. The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice. If the defendant pleads guilty pursuant to a plea agreement and the court determines under RCW 9.94A.090 that the agreement is not consistent with (1) the interests of justice or (2) the prosecuting standards set forth in RCW 9.94A.430-.460, the court shall inform the defendant that the guilty plea may be withdrawn and a plea of not guilty entered. If the motion for withdrawal is made after judgment, it shall be governed by CrR 7.8.
See footnote 1.
If, as here, the motion for withdrawal is made after entry of the judgment and sentence, CrR 7.8 governs. CrR 7.8(b) states:
On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment. C. Copy of the First Amended Information
Vandament first argues that he was not provided with a copy of the first amended information and, therefore, he was not advised of the nature of the charges against him. He relies primarily on the affidavit he filed with his motion to withdraw his plea, which states that he did not receive a copy of the first amended information. In his SAG, he states that, when he appeared at his plea hearing, the prosecutor and his counsel discussed the original information, not the amended one.
But the record shows that Vandament received a copy of the first amended information and reviewed it with his attorney before he entered his plea to both charges. In his statement of defendant on plea of guilty, Vandament stated, "I am charged with: Rape of a Child 1st Degree, Child Molestation 1st Degree." CP at 11. The original information only contained a single charge of first degree rape of a child.
Even more indicative of the fact Vandament received the first amended information is that paragraph 7 of his statement on plea of guilty that clearly states, "I plead guilty to: count I Rape of A Child First Degree[,] count II Child Molestation First Degree[,] in the 1st Amended Information. I have received a copy of that Information." CP at 17. Vandament signed this document.
Furthermore, at the hearing on November 14, 2006, Vandament signed the statement of defendant on plea of guilty a second time to further attest that he had "previously read the entire statement . . . and that [he] understood it in full." CP at 18. Also, at the plea hearing after the amended information was edited in open court, he confirmed that he had reviewed it and had no questions. Thus, it is clear that Vandament received a copy of the first amended information before the prosecutor indicated that the dates on the child molestation charges were amended in open court during the November 14, 2006, guilty plea colloquy.
D. Edited First Amended Information
Vandament makes a related argument that the court improperly allowed the State to change the dates relating to the child molestation charge in the first amended information. It appears that the State corrected the charged dates the child molestation occurred because BJG turned 12 on September 1, 2000, and the crime charged required that the victim be under the age of 12.
Vandament alleges that he did not know of these changes or understand them. He states that, after pleading guilty, he realized that he could not have committed any crime against BJG before BJG turned 12 because he did not own a boat in which he allegedly transported BJG until after BJG was 12. Further, he points to some confusion at the plea hearing that he claims supports his argument that he did not understand the edited amended first information.
But, here, the prosecutor's interview summary of BJG indicates that Vandament assaulted BJG not only in the boat but also in Vandament's apartment when the victim was "11 or 12 years old." CP at 32. Thus, Vandament's claim that his lack of awareness of the amendment to the dates included in the charge of child molestation is shown by his lack of boat ownership during the amended time frame fails. See also generally CP at 9 (statement of probable cause for offense against BJG).
Vandament is correct that the relevant portions of the hearing show some confusion over the charging document. First, when discussing the scrivener's error it wished to correct, the State initially stated that it had not filed a first amended information and that it was editing the original information. It then clarified that Vandament was pleading guilty to a first amended information, filed on September 1, 2006. The trial court then stated that it was going to "interlineate the original information." CP at 367. Vandament's counsel stated that he had no objection to the date change the State indicated. Second, when asking Vandament how he wished to plead to the charge of first degree child molestation of BJG, the trial court incorrectly asked Vandament whether he wished to plead guilty to second degree rape of a child.
Vandament argues in a related claim in his pleading labeled "Objection Inaccurate Records RAP 9.10", which we treat as a supplemental SAG, that the edited copy of the first amended information is an "unauthorized altered copy" of the document that appears only in the record transferred to this court and not in the record of the Kitsap County Superior Court. Supp. SAG at 6 (emphasis omitted). He accuses his defense counsel, the prosecutor, and the clerk of the trial court of tampering with the record. But the edited first amended information is stamped "received and filed in open court Sep 01 2006." CP at 5 (emphasis omitted). This copy has handwritten changes dated "11/14/06," the date of the plea colloquy. CP at 6. The unedited copy of this document is similarly stamped. The prosecution stated at the plea colloquy that it had filed the as-yet-unedited first amended information on September 1, 2006. Thus, the existence of both the amended and as-yet not amended first amended information are fully explained and the record reflects that both were filed in Kitsap County Superior Court.
We hold that the confusion in the record does not amount to reversible error. The plea colloquy, while originally confused regarding which information was being amended in open court, demonstrates that all parties agreed to the amendment of count II, child molestation committed against BJG, a charge that appeared only in the first amended information. With respect to amending the dates of the crime against BJG, the parties discussed the date change in open court with Vandament present before he entered his guilty plea. Neither Vandament nor his attorney objected to this change.
Vandament does not appeal based on the trial court's oral misstatement of the charge in count II.
Furthermore, a review of the entire record shows that Vandament understood that he was pleading guilty to first degree molestation — not second degree rape — of BJG. At the hearing, before entry of the plea, the parties discussed the child molestation charge when amending the dates relating to this count. Vandament also reviewed this charge and stated that he pleaded guilty to it specifically in his statement of defendant on plea of guilty.
II. Community Custody Term
Vandament next argues that he should be allowed to withdraw his guilty plea because the trial court misstated the community custody term on the first degree child molestation conviction. During the plea colloquy, the State stated that community custody would be "712 supervision" for the rape conviction and 36 to 48 months for the child molestation conviction. CP at 370.
See RCW 9.94A.712 (setting lifetime term of community custody).
Vandament concedes that he was correctly advised that the community custody term for first degree child rape is life but argues he was misadvised as to first degree child molestation because the maximum community custody term is 36 months. He contends that, because he was misinformed of a direct consequence of his plea, the trial court erred in denying his motion to withdraw the plea. The State responds that the incorrect advisement was inconsequential because the trial court properly advised Vandament of the life term for first degree child rape.
In State v. Smith, we reviewed a motion to withdraw a guilty plea due to the trial court's statement of an incorrect term of confinement. 137 Wn. App. 431, 436, 153 P.3d 898 (2007). The trial court advised Smith that conviction on the first count required a standard term of imprisonment of 14 to 18 months and that conviction on the second count had a standard range term of 0 to 12 months. Smith, 137 Wn. App. at 434. But, in fact, a conviction on the second count also carried a 14 to 18 month sentencing range. Smith, 137 Wn. App. at 435. We did not hold that a manifest injustice resulted from the trial court's incorrect advisement that allowed Smith to withdraw his plea because, regardless of the sentencing range on the second count, Smith "faced an 18-month sentence at the maximum." Consequently, "Smith was not misinformed about a direct consequence of his guilty plea because he received the same punishment under the correct sentencing range that he would have received under the erroneous range." Smith, 137 Wn. App. at 438.
The same reasoning applies here. Regardless of the trial court's incorrect advisement of the community custody term associated with conviction for first degree child molestation, Vandament is required to serve lifetime community custody for first degree rape of a child. He, therefore, would receive the same punishment under the correctly stated range of community custody as under the erroneously stated range. Smith, 137 Wn. App. at 438; see also CP at 371 (statement by trial court that the community custody term is controlled by conviction for first degree rape of a child because of the mandatory lifetime supervision term).
III. Most Serious Offense Status
Vandament also contends that he should be allowed to withdraw his plea because the trial court failed to advise him that both charges constituted most serious offenses. Vandament's original and first amended information both stated that the charged offenses were "strike" offenses. In Vandament's plea statement, however, the provision regarding "strike offenses," paragraph (p), was erroneously stricken.
As explained by Vandament, the "most serious offense" designation counts as an offense under the "three-strike" law. Br. of Appellant at 18.
Both the original and the first amended informations stated that the maximum penalty was life in prison and that the mandatory minimum was life without the possibility of parole if he had two prior most serious offenses or one prior most serious sex offense.
Paragraph states, in relevant part, "This offense is a most serious offense or strike as defined by RCW 9.94A.030." CP at 15.
But neither RCW 9.94A.561 nor our case law requires the trial court to notify a defendant that he is pleading to a most serious offense or of the sanctions imposed on persistent offenders. RCW 9.94A.561 states that a sentencing judge "may, but is not required to, give offenders who have been convicted of an offense that is a most serious offense as defined in RCW 9.94A.030 either written or oral notice, or both, of the sanctions imposed upon persistent offenders." Moreover, our Supreme Court held in State v. Crawford that RCW 9.94A.561 does not violate a defendant's due process rights by not requiring the sentencing judge to notify a defendant he is pleading guilty to a "most serious offense." 159 Wn.2d 86, 95-96, 147 P.3d 1288 (2006).
Vandament, however, argues that he was not only not advised regarding the "most serious offenses," but that he was affirmatively misadvised because paragraph (p) in his plea statement was stricken. But Vandament's claim still fails because he was nevertheless advised of all direct consequences of his plea.
A defendant must be advised of all direct consequences of a plea. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). Direct consequences are those that have "a definite, immediate and largely automatic effect on the range of defendant's punishment." Ross, 129 Wn.2d at 284 (internal quotation marks omitted) (quoting State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Here, the most serious offense classification of his crimes does not have an immediate effect on Vandament's punishment range for his current offenses. See State v. Lewis, 141 Wn. App. 367, 395-96, 166 P.3d 786 (2007) (holding that failure to advise defendant of "most serious offense" status was not a direct consequence of guilty plea), review denied 163 Wn.2d 1030 (2008).
We hold that the trial court did not err in failing to advise Vandament that first degree rape of a child and first degree child molestation are most serious offenses and that the erroneous omission of the paragraph stating this in Vandament's plea statement does not rise to the level of a manifest error entitling him to withdraw his plea. CrR 4.2(f).
IV. Statement of Additional Grounds for Review Issues
Vandament raises two SAG issues related to his decision to plead guilty: (1) that his plea was involuntary and (2) that he received ineffective assistance of counsel. To the extent that these claims rely on allegations about the irregularity of the first amended information and the amendments thereto during the plea hearing and any alleged incorrect advisement about his crimes and sentence, they fail. SAG at 20-21, 25-27 (raising trial counsel's failure to file a motion to withdraw his guilty plea).
Other grounds Vandament raises require examination of matters outside the record on appeal and we do not consider them on direct appeal. See State v. Bugai, 30 Wn. App. 156, 158, 632 P.2d 917 (1981) (court reviewing claim on appeal may not consider matters outside the trial record). Vandament's additional grounds relate to (1) the involuntariness of his plea and ineffective assistance of counsel: (a) that he was coerced into pleading guilty by being "threatened[] with life in prison," placed in solitary confinement, and denied access to counsel while so confined; (b) that the State disseminated false press releases to convict him in the eyes of the public; and (c) his counsel failed to return phone calls or investigate the alleged crimes and had a conflict of interest, SAG at 19. He also claims (2) that he appeared in court without representation during certain pretrial hearings on August 23, and September 7 and 8, 2006.
A defendant whose guilty plea was validly entered generally waives complaints about errors occurring prior to the entry of the plea. In re Pers. Restraint of Teems, 28 Wn. App. 631, 637, 626 P.2d 13 (1981); Garrison v. Rhay, 75 Wn.2d 98, 449 P.2d 92 (1968)); see also 13 Royce Ferguson, Jr., Washington Practice: Criminal Practice Procedure § 3712, at 90-91 (3rd ed. 2004). Finally, Vandament claims (3) that the trial court denied him his speedy trial rights. This claim is also waived by the entry of his guilty plea. State v. Wilson, 25 Wn. App. 891, 895, 611 P.2d 1312 (1980) (defendant waives speedy trial issues by pleading guilty).
The record on appeal demonstrates that Vandament's plea of guilty was validly entered, in that the trial court did not err in denying his motion to withdraw his plea. To the extent that he submits evidence to the contrary in a personal restraint petition, he may be allowed to raise alleged pretrial errors.
We affirm.
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.
ARMSTRONG, J. and HUNT, J., concur.