Opinion
No. 55951-6-I.
August 13, 2007.
Petition for relief from personal restraint. Granted and remanded by unpublished opinion per Appelwick, C.J., concurred in by Baker, J.; Coleman, J., concurring separately.
Washington Appellate Project Attorney at Law, Seattle, WA, Counsel for Petitioner(s).
Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Of Mount Vernon, WA, Counsel for Respondent(s).
effery Collins alleges that under the Sentencing Reform Act several Class C felonies used in calculating his sentence had washed out after five years in the community without subsequent conviction. RCW 9.94A.525(2). Collins requests application of the wash out law and resentencing to reflect an offender score of seven. We grant the petition and remand for resentencing consistent with this opinion.
FACTS
Jeffery Collins pled guilty to six counts of second degree identity theft. The court sentenced Collins to 43 months, the low end of the standard range of 43-57 months for an offender score of 9. While in prison, Collins discovered that because his judgment and sentence reflected more than five years crime-free in the community, two of his prior convictions should have washed out pursuant to RCW 9.94A.525(2). For the purposes of calculating his offender score for the six counts at issue, the judgment and sentence lists his criminal history as:
1. Grand Theft Auto, sentenced 12/17/82 in Los, Angeles CA, crime committed 5/8/82
2. Possession of a Controlled Substance, sentenced 11/30/87 in Los Angeles, CA, crime committed 8/1/87
3. Possession of a Controlled Substance, sentenced 11/04/98 in Los Angeles, CA, crime committed 8/22/98
4. Identity Theft 2nd Degree, sentenced 7/12/01 in Whatcom, WA, crime committed 12/5/00.
Collins contends that the 1982 grand theft auto and 1987 possession convictions should have washed out, decreasing his offender score to seven.
Collins filed four separate motions to amend his judgment and sentence with the Skagit County Superior Court, including a request for counsel. Despite Collins' multiple motions, the court did not respond or reappoint counsel. As a result, he filed a personal restraint petition so he could be resentenced based on a lower offender score. This court dismissed the petition and the commissioner at the Washington Supreme Court denied review. Collins filed a motion to modify the commissioner's ruling, which was granted and resulted in a remand to the Court of Appeals for reconsideration based on In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005). This court vacated the earlier order dismissing the petition, appointed counsel and referred the petition for oral argument.
DISCUSSION
The State concedes that Collins properly brought this personal restraint petition even though it was filed more than one year after entry of the judgment and sentence in violation of RCW 10.73.090. The court permits challenges by personal restraint petition beyond one year if they are based on a miscalculated offender score due to the wash out rules. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866-67, 50 P.3d 618 (2002). In addition, Collins timely filed motions to amend the judgment and sentence with the trial court, allowing him to pursue the motion and appeal even if the State contested the timeliness of the personal restraint petition.
When seeking relief from personal restraint based on nonconstitutional grounds, a petitioner must establish (1) unlawful restraint, (2) due to a fundamental defect inherently resulting in a complete miscarriage of justice. Goodwin, 146 Wn.2d at 867; In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990). A sentence based on a miscalculated offender score is a fundamental defect that inherently results in a miscarriage of justice. Goodwin, 146 Wn.2d at 868 (citing In re Pers. Restraint of Johnson, 131 Wn.2d, 558, 569, 933 P.2d 1019 (1997)).
The major disagreement between the parties is the outcome of the personal restraint petition. The State identifies three potential outcomes: (1) grant the petition and remand for resentencing without a reference hearing; (2) grant the petition and remand for a reference hearing and sentencing; (3) deny the petition by finding that Collins has not established that he is being unlawfully detained. Collins contends his petition should be granted and that resentencing should proceed without a reference hearing in which the State could prove his criminal history to support the current offender score. The State argues that the petition should be denied, or in the alternative that it should have the opportunity at resentencing to present evidence of the misdemeanors and Whatcom convictions.
The State concedes that the sentencing documents do not list the offenses which would prevent wash out of the 1982 and 1987 convictions or increase the number of Whatcom County charges and that this oversight leads to a sentence which appears invalid. We agree. A miscarriage of justice is established based upon the erroneous offender score. The petition is granted, and the matter is remanded to the trial court for resentencing.
However, the State argues that Collins has California misdemeanor offenses that interrupt the wash out, but which did not appear on the judgment and sentence. These misdemeanors, if proved, would prevent the two convictions from washing out. In addition, the State discovered that although the judgment and sentence only reflects a single conviction in Whatcom County, Collins actually pled guilty to four counts of identity theft. The State contends that even if the 1982 and 1987 convictions wash out, the three additional Whatcom County convictions elevate Collins' offender score to 9+ so his sentence would not decrease. Therefore the State argues we should not grant the petition. But, this evidence was not presented to the trial court and not properly taken by this court. In re Dependency of K.S.C., 137 Wn.2d 918, 932, 976 P.2d 113, (1999) ("Portions of a brief which contain factual material not submitted to or considered by the trial court should be stricken").
Defendants are statutorily required to provide their criminal history when entering a plea agreement. State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986). "The prosecuting attorney and the defendant shall each provide the court with their understanding of what the defendant's criminal history is prior to a plea of guilty pursuant to a plea agreement." RCW 9.94A.441. Without a plea agreement, a defendant has no obligation to disclose any prior convictions. Cadwallader, 155 Wn.2d 867, 875, 123 P.3d 456 (2005) (citing State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002); Ammons, 105 Wn.2d at 183). Unless Collins had an obligation to disclose his prior convictions, the State will be held to the existing record at resentencing.
In Cadwallader, the petitioner pled guilty, but not pursuant to a plea agreement. 155 Wn.2d at 870. His criminal history included two convictions which were predicate strike offenses under the Persistent Offender Accountability Act. Id. Cadwallader was sentenced as a persistent offender and received life in prison without the possibility of early release. Id. He later filed a personal restraint petition to challenge his sentence because one of the predicate strike offenses should have washed out. Id. at 870-71. The State alleged that an out-of-state felony conviction interrupted the crime-free period required to wash out. Id. at 871. However, the State did not include this out-of-state conviction on the judgment and sentence and did not provide evidence of the conviction at sentencing. Id. at 873. The Supreme Court stated that "[b]ecause it is the State's burden to establish criminal history at sentencing (unless the defendant pleads guilty pursuant to a plea agreement), we agree that the State is not entitled to rely on the out-of-state conviction that it did not allege at sentencing." Id. at 869-70. The Court further determined that this failure to assert or provide evidence of the out-of-state conviction at sentencing precluded the State from having an opportunity to prove the conviction at a subsequent reference hearing. Id. at 878-79. Finally, the Court noted that evidence of the out-of-state convictions would not be admissible on direct appeal because the State did not allege the convictions, so the evidence is also inadmissible on collateral review. Id.
Cadwallader specifically notes that the petitioner did not accept a plea agreement. Because Cadwallader did not enter into a plea agreement, "[he] had no obligation to disclose his criminal history . . . he had no obligation to object to the State's failure to include" the out-of-state conviction. Cadwallader, 155 Wn.2d at 876.
The State claims that Collins entered a plea agreement which required him to provide his criminal history and object to errors, thus distinguishing the facts from Cadwallader. Collins argues he did not enter into a plea agreement. The statute requires that "[i]f a plea agreement has been reached by the prosecutor and the defendant . . . they shall at the time of the defendant's plea state to the court, on the record, the nature of the agreement and the reasons for the agreement." RCW 9.94A.431(1); See also, State v. Jones, 46 Wn. App. 67, 69, 70, 729 P.2d 642 (1986) (pleas need not be in writing). However, the documentary evidence is conflicting as to whether Collins entered a plea agreement, and the trial court made no finding with respect to the existence of a plea agreement.
On one hand, the record suggests that Collins pled guilty the same day the State dropped 13 counts of identity theft. In addition, the statement of defendant on plea of guilty shows a recommended sentence. "The prosecuting attorney will make the following recommendation to the judge: Forty-three (43) months confinement, credit for time already served. Pay restitution, amount to be determined, and pay costs, fees and assessments ($710)." Defense counsel acknowledged the sentence was "an agreed recommendation". The Statement contains the following: "No person has made promises of any kind to cause me to enter this plea agreement except as set forth in this statement." There is no mention of dropping charges contained in the second amended information or otherwise. The checkbox next to the statement "[t]he prosecutor will recommend as stated in the plea agreement, which is incorporated by reference" remains blank. The record does not appear to include a plea agreement or evidence that the plea agreement was made on the record with the court, as required by RCW 9.94A.431(1), RCW 9.94A.441 and Criminal Rule (CrR) 4.2(e). We decline to attempt to make a finding of fact as to the existence of a plea agreement and remand to the trial court to determine whether or not Collins entered a plea agreement.
If Collins entered into a plea agreement, the trial court shall resentence him after taking further evidence of his criminal history. If the trial court determines that Collins did not enter a plea agreement requiring his full participation at sentencing, then Cadwallader compels that Collins must be resentenced without a reference hearing for the State to prove the additional offenses.
While this result is clearly required, we consider Cadwallader troubling in light of the cautionary language of State v. Ford:
[W]here . . . the defendant fails to specifically put the court on notice as to any apparent defects, remand for an evidentiary hearing to allow the State to prove the classification of the disputed convictions is appropriate. This preserves the purpose of the SRA to impose fair sentences based on provable facts, yet provides the proper disincentive to criminal defendants who might otherwise purposefully fail to raise potential defects at sentencing in the hopes the appellate court will reverse without providing the State further opportunity to make its case.
State v. Ford, 137 Wn.2d 472, 485-86, 973 P.2d 452 (1999) (internal citation omitted). Cadwallader does not purport to overrule Ford, yet allows for the very outcome Ford sought to prevent. If Collins did not enter into a plea agreement, as contemplated in Cadwallader, then he had no obligation to correct his criminal history and may now receive a shorter sentence. While we have no evidence that Collins knew about the omitted offenses and failed to raise them, we have concerns about the unintended consequence of Cadwallader — the potential for fraud on the court. The application of Cadwallader may not serve the ends of justice.
We remand to the trial court to determine if Collins entered a plea agreement. If Collins entered into a plea agreement, then he had an obligation to correct his criminal history at sentencing and the State is entitled to bring in the evidence of additional criminal history at resentencing. If Collins did not enter into a plea agreement, then Cadwallader applies and Collins must be resentenced based on the record proved at the former sentencing.
Baker, Coleman, WE CONCUR.
I concur in the majority's remand of this case to determine whether Collins entered a plea agreement, but I write separately to indicate my belief that the record amply supports a finding that Collins did enter a plea agreement. As the majority points out, not all statutory requirements concerning plea agreements were complied with in this case. But on the day of Collins's sentencing, the information was amended to charge six counts of identity theft in the second degree. The previous information charged 19 counts (1 count of identity theft in the first degree and 18 counts of identity theft in the second degree). The prosecutor handed the amended information to the court. Immediately thereafter, defense counsel handed the court the defendant's statement on plea of guilty, and the defendant entered his plea. Defense counsel acknowledged that the parties had reached an agreed recommendation, and the court imposed the agreed-upon sentence. Collins received a benefit from his guilty plea — 13 counts were dismissed — and it is clear that he negotiated with the prosecutor to reach an agreed sentencing recommendation. These facts compel the conclusion that a plea agreement was reached.
Because I believe a plea agreement existed in this case, it is not necessary to reach the issue of whether In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005), would apply here. But I write separately to expand upon the majority's concerns about the applicability of Cadwallader to this case in light of State v. Ford, 137 Wn.2d 472, 485 — 86, 973 P.2d 452 (1999). In Ford, the court stated that where a defendant's sentence has apparent defects, the defendant has some obligation to call those deficiencies to the court's attention. The Ford court noted that this obligation "provides the proper disincentive to criminal defendants who might otherwise purposefully fail to raise potential defects at sentencing in the hopes the appellate court will reverse without providing the State further opportunity to make its case." Ford, 137 Wn.2d at 486. If the defendant fails to inform the court that a sentence has apparent defects but objects to the sentence on appeal, the appropriate remedy is to allow the State to present additional evidence to prove the defendant's criminal history at resentencing. Ford, 137 Wn.2d at 485.
The Cadwallader court states that the defendant did not plead pursuant to a plea agreement. This is undoubtedly the case, given that Cadwallader was sentenced as a persistent offender — the only possible sentence was life without the possibility of parole, so no bargaining was possible. These circumstances are entirely different than the facts of Collins's case.
Yet in Cadwallader, the defendant had not informed the sentencing court of a deficiency in his sentence and the court held the State to the existing record on a remand for resentencing. The Cadwallader court emphasized that the State had completely failed its burden to prove the defendant's criminal history when it knew of but chose not to allege intervening convictions that became necessary to prevent the washout of an earlier conviction. In addition, when Cadwallader was sentenced, the deficiency in the State's case was not apparent because the earlier conviction was not eligible for washout at that time. Only after a subsequent change in the law was it apparent that the prior conviction was eligible for washout. Thus, Cadwallader could not have informed the court of a deficiency in the State's case at the time of sentencing because there was no apparent deficiency at that time. Ford's concern about providing a disincentive for a defendant to remain silent while knowing his sentence is defective was therefore not at issue in Cadwallader.
The facts of this case are more like the facts of Ford than the facts of Cadwallader. Collins knew that intervening convictions prevented washout of the earlier conviction because he would not have agreed to a sentence that counted a prior conviction that he believed washed out. And because the defect in the sentencing documents was apparent at the time of sentencing, he had an obligation under Ford to call the deficiency to the court's attention.
To conclude that Collins did not have this obligation would encourage defendants to remain silent while knowing their sentence is improper in order to hold the State to the existing record on remand. This is not to say that Collins was required to disclose his criminal history to point out that the State has failed to allege some of his prior convictions. Cadwallader emphasizes that Collins is not required to do so absent a plea agreement. But Ford does impose an obligation on Collins to inform the court that a sentence is invalid on its face. I cannot believe the Cadwallader court intended to essentially overrule Ford to hold that a defendant has no obligation to call to the court's attention a deficiency that is apparent at the time of sentencing and that the State is then limited to the existing record on remand. Cadwallader contains language that supports that holding, but I doubt the Supreme Court intended that result.