Opinion
No. 58226-7-I.
September 10, 2007.
Petition for relief from personal restraint.
Granted and remanded by unpublished per curiam opinion.
Melanie McFerrin was originally charged by information with committing eight separate crimes. As part of a negotiated plea agreement, McFerrin later agreed to plead guilty to nine felonies in total "to increase [her standard sentence] range." McFerrin now files this personal restraint petition challenging the judgment and sentence entered on her guilty plea. The State correctly concedes that McFerrin was not adequately informed regarding the sentencing consequences of her guilty plea, but disagrees with McFerrin as to the appropriate remedy. We conclude that McFerrin's plea was not knowingly and intelligently entered. We accordingly grant her petition, vacate her sentence, and remand for further proceedings.
McFerrin was originally charged with theft, identity theft, forgery, and possession of stolen property, for a total of eight counts in Skagit County Superior Court Cause No. 04-1-00060-1. McFerrin eventually agreed to plead guilty to an additional crime, possession with intent to manufacture a controlled substances, in exchange for the State recommending a DOSA sentence. She signed a "Statement of Defendant on Plea of Guilty to Non-Sex Offense," which indicated the standard sentence range for each offense, the longest of which was 77 to 102 months. The plea form also memorialized the State's sentencing recommendation of "DOSA — 100 MONTHS DEFENDANT TO SERVE 25 MONTHS BASED ON A MID-POINT OF 50 MONTHS."
On May 20, 2005, the court accepted the plea and sentenced McFerrin. During sentencing, the following colloquy took place:
[PROSECUTOR]: The State is recommending DOSA on this particular charge with a range, it would be 102 months, midpoint range is 51 months. We are, it would be 51 months in the custody of Department of Corrections, half of that would be —
THE COURT: You said midpoint was 51.
[PROSECUTOR]: That's correct, Your Honor. There is the range on the, we are agreeing, all parties are agreeing. I think this needs to go on the record, in order to qualify for DOSA all parties in agreement, and given considerations for the dismissals and not pursing other items and qualifying for DOSA, had the proper range, the midpoint would be actually lower than 102 months, going with the upper point, so defendant can qualify with 51 months, if the court understands where I am going with that.
THE COURT: I believe so, under DOSA you start there.
[PROSECUTOR]: It would be under DOSA, Your Honor, midpoint range of the I guess most serious range for that, too low for the state to agree, we have agreed to go within that range, at the upper end, it would be 51 months in the Department of Corrections custody.
[DEFENSE COUNSEL]: 50, actually. In her statement she tried, we tried to communicate what she was doing there. She agreed to the amendment of Count IX, to add that charge on, because it gives her a higher range so she can start out with 100 months to get the 50 midpoint range.
[PROSECUTOR]: It would be an exceptional for DOSA but not exceptional within the range.
THE DEFENDANT: I do 25 in?
THE COURT: If you complete the program successfully, you would do 25 in.
THE DEFENDANT: I'm not saying I would mess up, I'm trying to ask, I get 100 months, I'm doing DOSA, 25 in, if something happens, I do the 75 months in?
[PROSECUTOR]: Under DOSA the State's understanding is you do the remainder of 25?
THE COURT: Never facing the entire 100, only facing the 50?
[PROSECUTOR]: Yes, if the court accepts her.
THE COURT: One question, it is important you understand before you enter into this, is that how you understand that?
THE DEFENDANT: I understand I was getting 100 months, 50 months was going somewhere, half of 50 months in, 25 in and 25 out.
THE COURT: If you are successful in the DOSA program. Any other questions?
PROSECUTOR: No.
THE DEFENDANT: No. . . .
Finding McFerrin eligible for a DOSA sentence, the court sentenced her to 50 months of total confinement to be followed by 50 months in community custody.
Once imprisoned, McFerrin contacted defense attorney about the length of her DOSA sentence. As a result of the correspondence, counsel moved for correction of McFerrin's judgment and sentence. In the motion filed on McFerrin's behalf, counsel made certain factual assertions including:
2.2 The prosecution and defendant agreed to a joint recommendation, which was ordered by Commissioner Needy, that the Defendant be sentenced to 100 months on a DOSA, so that the mid-point would be 50 months and she would actually serve 25
2.3 Count IX was added to the Defendant's charges so that she could plea to it and be sentenced to 100 months, with a standard range of 77-102 months.
2.4 According to the DOC, they are calculating her release date to be 2/28/08. In an email dated 11/8/05, from Linda Smith in records at Pine Lodge, she stated,
"if it was the courts [sic] intent to sentence the offender to 25 months in custody and 25 months on Community Custody status, the original J § S would have had to have been marked as an exceptional sentence and section 4.5 should have been entered as a 25 month DOSA sentence. DOC does not split out the imposed minimum term from the J § S."
2.5 I believe the court needs to correct the sentence order to reflect these changes pointed out by Ms. Smith.
A hearing was scheduled for November 18, 2005. After the hearing, the court entered an order clarifying that McFerrin "was sentenced to 50 months at DOC under a DOSA option. The court does not address how DOC determined [McFerrin's] good time or how DOC determined [her] risk level."
McFerrin now contends the sentencing court exceeded its lawful authority by imposing a 50-month prison sentence and 50 months of community custody. She claims that her judgment and sentence is unlawful because it does not accurately reflect the terms of the plea agreement "let alone the midpoint range required by law for DOSA."
A trial court acts without statutory authority by imposing a sentence that is contrary to law. State v. Paine, 69 Wn. App. 873, 882, 850 P.2d 1369 (1993). "A trial court's sentencing authority is limited to that expressed in the statutes." State v. Skillman, 60 Wn. App. 837, 838, 809 P.2d 756 (1991). It is the function of the legislature and not the judiciary to fix penalties for criminal offenses. State v. Manussier, 129 Wn.2d 652, 667, 921 P.2d 473 (1996).
Under RCW 9.94A.660(2), a DOSA sentence is split evenly between imprisonment and community custody based upon the midpoint of the total standard range. It is undisputed that McFerrin's highest applicable standard range is 77 to 102 months. As the State now admits, McFerrin's DOSA sentence is unlawful since it does not represent the midpoint of that range. The proper midpoint is 89.5 months. Half of that amount is 44.75 months. Therefore, McFerrin is clearly entitled to be resentenced in accordance with the provisions of the DOSA statute.
McFerrin alternatively requests that this court specifically enforce her understanding of the plea agreement. McFerrin appears to argue that, because she was advised that her term of total confinement was limited to 25 months, this term constitutes the parties' agreement regarding the length of her DOSA sentence and therefore should be specifically enforced.
McFerrin does not seek to withdraw her guilty plea.
The State concedes that McFerrin's plea was constitutionally infirm, and not knowingly and intelligently made "[g]iven the confusion as to the State's recommendation and the plea agreement." The concession is well taken.
State's Supplemental Response to Personal Restraint Petition at 1.
A defendant's decision to plead guilty must be knowing, intelligent, and voluntary. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). To be knowing and intelligent, the guilty plea must at least be made with a correct understanding of the charge and the consequences of pleading guilty. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). A guilty plea is not knowingly made when based on misinformation regarding sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). One direct consequence of the plea is the applicable sentence range. State v. Moon, 108 Wn. App. 59, 62, 29 P.3d 734 (2001). Similarly, the sentence an offender is eligible to receive under DOSA is a direct consequence. See In re Pers. Restraint of Fonseca, 132 Wn. App. 464, 469, 132 P.3d 154 (2006).
In Miller, the Washington Supreme Court held that "where the terms of a plea agreement conflict with the law or the defendant was not informed of the sentencing consequences of the plea, the defendant must be given the initial choice of a remedy to specifically enforce the agreement or withdraw the plea." Id at 536. For the choice of remedies set forth in Miller to apply, however, McFerrin must be entitled to specific performance of her plea agreement on the basis of mutual mistake. A plea agreement is a contract and is to be analyzed in accordance with contract principles. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997). In order to establish mutual mistake, the mistaken fact must be the underlying basis for the entire agreement.
This case of State v. Bisson, 156 Wn.2d 507, 130 P.3d 820 (2006), is instructive. In Bisson, the defendant pleaded guilty to five counts of first-degree robbery while armed with a deadly weapon. The State thereafter conceded that Bisson's plea was involuntary because he had not been clearly informed that the deadly weapon enhancements had to be served consecutively to one another. The Washington Supreme Court nonetheless agreed with the State that Bisson was not entitled to the remedies of either partial recession or specific performance, concluding there was uncertainty in the plea agreement about whether the deadly weapon enhancements were to be served concurrently or consecutively.
The court in Bisson held that "specific performance would have been an available remedy here, had the State expressly promised Bisson that his five 24-month weapon enhancements would be served concurrently." Bisson, 156 Wn.2d at 524-25. But "because the State has conceded nothing more than uncertainty in the provision and because we find the State's concession reasonable, the specific performance that Bisson requests must be denied." Id at 525.
Here, as in Bisson, we are unable to determine from the record before us the basis for the State's assertion at sentencing that Ms. McFerrin would only have to serve 25 months confinement on her DOSA sentence. It is unclear whether the statements were the result of some basic misunderstanding of the law governing DOSA sentences or merely reflected the belief that McFerrin would be eligible for enhanced early release under RCW 9.94A.728(1) (b). In either case, however, the discussion was confusing and rendered McFerrin's plea infirm.
As the State now claims, it is possible the State's position took into account the fact McFerrin might earn enhanced good conduct and earned time credits under RCW 9.94A.728. The statue authorizes certain felony offenders to earn early release credits at 50 percent of the sentence rather than the previous 33 percent.
McFerrin is entitled to specific performance of the plea agreement only if the parties understood that her DOSA sentence would be limited to 25 months in prison, without regard to any earned early release credits she might earn while confined. If there was no meeting of the minds, McFerrin's request for specific performance is not available. See Bisson, 156 Wn.2d at 525. Because the record here is inconclusive as to whether the parties understood that the term of confinement portion of McFerrin's DOSA sentence was to be 25 months or 50 months, a fact-finding hearing must be held on this factual question. In re Pers. Restraint of Murillo, 134 Wn. App. 521, 532, 142 P.3d 615 (2006). The precise terms of the agreement must be decided by the trial court following its fact-finding hearing. RAP 16.11(b); Murillo, supra.
The personal restraint petition is granted. The matter is remanded to Skagit County Superior Court for further proceedings consistent with this opinion.
FOR THE COURT: