Opinion
Nos. 35131-5-II; 35151-0-II; 35161-7-II.
May 13, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 05-1-01697-5, Frederick W. Fleming, J., entered July 28, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn- Brintnall, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Gregory Lamont Briscoe appeals his conviction and sentence based on his bargained for guilty pleas. Briscoe challenges: (1) the sentencing court's refusal to hear his motion to withdraw his guilty plea on one charge; (2) the validity of the convictions; (3) the sentencing court's refusal to grant him a drug offender sentencing alternative (DOSA) sentence, former RCW 9.94A.660 (2002); and (4) the sentencing court's imposition of a sentence that exceeded the statutory maximum. There being no error regarding the first three issues, we affirm Briscoe's convictions. But we agree that Briscoe's sentence on the domestic violence no-contact court order conviction exceeded the statutory maximum, and remand to the trial court for resentencing.
FACTS
The State charged Briscoe with numerous crimes in three separate cause numbers. On June 8, 2006, in exchange for a reduction in the number and nature of the charges and a concurrent sentence recommendation, Briscoe pleaded guilty to (1) residential burglary, domestic violence (cause no. 05-1-04620-3, count I); (2) violation of a domestic violence court order (cause no. 05-1-04620-3, count II); (3) second degree theft, domestic violence (cause no. 05-1-04620-3, count III); (4) unlawful possession of a controlled substance, cocaine (cause no. 05-1-01697-5, count I); and (5) two counts of bail jumping (cause no. 05-1-01697-5, count III, and cause no. 06-1-01583-7, count I).
At sentencing Briscoe sought to withdraw his guilty plea on the residential burglary charge, contending that the residence in question was his own. Believing it untimely, the trial court refused to entertain Briscoe's motion to withdraw his plea on the burglary charge. The trial court also denied Briscoe's DOSA request and sentenced Briscoe to 84 months in confinement and 9 to 18 months community custody for first degree burglary, 60 months in confinement and 9 to 18 months community custody for violation of a domestic violence court order, 29 months for second degree theft, 24 months for unlawful possession of a controlled substance, and 60 months for each of the two bail jumping charges. All these sentences were concurrent. Although it denied Briscoe's request for DOSA, the sentencing court recommended that Briscoe receive drug treatment from the Department of Corrections. Briscoe timely appeals.
Discussion
Withdrawal of Guilty Plea
Briscoe argues that the sentencing court erred when it (1) denied the motion to withdraw his guilty plea on the burglary charge, and (2) found the motion to withdraw his plea was untimely. Specifically, Briscoe also contends that the trial court "mistakenly" informed him that it could not sentence him to community custody for the domestic violence court order conviction causing his plea to be involuntary. Moreover, Briscoe asserts that his motion to withdraw the plea was timely because he orally moved to withdraw it prior to judgment.
Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent. CrR 4.2(d); State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006) (citing In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004)). A defendant's guilty plea is not voluntary if it was based on misinformation about sentencing consequences. Mendoza, 157 Wn.2d at 591; Isadore, 151 Wn.2d at 298. A defendant may withdraw his guilty plea if it was invalidly entered or if its enforcement would result in a manifest injustice. CrR 4.2(f); Isadore, 151 Wn.2d at 298. A "manifest injustice" is "an injustice that is obvious, directly observable, overt, [and] not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974).
"The plea bargaining process encourages a defendant to forgo his trial rights in the attempt to resolve a case. A plea bargain must be knowing, intelligent, and voluntary precisely because the defendant surrenders his constitutional trial rights." State v. Korum, 157 Wn.2d 614, 630, 141 P.3d 13 (2006) (citing State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001)).
In addition, a defendant may move, orally or in writing, to withdraw a guilty plea prior to judgment. CrR 4.2(f); State v. Davis, 125 Wn. App. 59, 63-64, 68, 104 P.3d 11 (2004). Cf. CrR 4.2 (CrR 4.2 does not set specific procedures for making the motion to withdraw a plea) and CrR 7.8 (motions filed under CrR 7.8 to set aside a judgment, including a guilty plea, must be done in writing and supported by affidavits). We review conclusions of law, such as the voluntariness of a plea, de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004)), cert. denied, 544 U.S. 922 (2005).
A motion to withdraw a guilty plea must be made within a reasonable time and is subject to time restrictions set forth in RCW 10.73.090, .100, .130, and .140. See CrR 4.2(f); CrR 7.8(b).
Under CrR 4.2(f), "judgment" means the date the judgment and sentence are filed with the clerk. State v. Davis, 125 Wn. App. 59, 68, 104 P.3d 11 (2004).
Here, Briscoe's motion to withdraw his guilty plea was timely made before entry of the judgment and sentence, and the sentencing court erred in denying the motion as untimely. But we will affirm the trial court on any other ground appearing in the record and may review a challenge to the voluntariness of defendant's plea for the first time on appeal. State v. Walsh, 143 Wn.2d 1, 6-7, 17 P.3d 591 (2001); Davis, 125 Wn. App. at 68 n. 30.
Our review of the record Briscoe submitted establishes that Briscoe's plea was knowing and voluntarily made. Initially, we note that, although this was a plea bargain, Briscoe requested permission to withdraw his guilty plea only with respect to count I, the residential robbery domestic violence charge. The trial court did not allow Briscoe to withdraw his plea to this charge alone. In State v. Turley, 149 Wn.2d 395, 398-400, 69 P.3d 338 (2003), our Supreme Court held that, because a plea agreement is a "package deal," a trial court may not grant or deny a motion to withdraw a plea agreement as to an individual separate count when the defendant pleaded guilty to multiple counts in one agreement. See also State v. Ermels, 156 Wn.2d 528, 541, 131 P.3d 299 (2006); State v. Bisson, 156 Wn.2d 507, 519, 130 P.3d 820 (2006).
Moreover, Briscoe was advised that his maximum sentence on the domestic violence court order charge could not exceed 60 months. In its colloquy, the plea judge and the prosecutor also noted that the sentence on that charge could not exceed five years. Additionally, Briscoe's guilty plea form specifies that the "total actual confinement" is 60 months. "Knowledge of the direct consequences of a guilty plea can be satisfied by the plea documents." In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 266, 36 P.3d 1005 (2001) (citing Wood v. Morris, 87 Wn.2d 501, Page 5 507, 554 P.2d 1032 (1976)). See also State v. Codiga, 162 Wn.2d 912, 923, 175 P.3d 1082 (2008) (citing In re Pers. Restraint of Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980)). The record does not support Briscoe's claim that he was misadvised as to the consequences of his guilty plea. Sentencing: DOSA
Briscoe next asserts that the sentencing court erred by refusing to consider his DOSA request and failed to articulate its reasoning regarding its sentencing decision.
Generally, a sentencing court's decision to deny a DOSA sentence is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005); State v. Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998). Because a DOSA sentence falls within the standard sentence range set by the legislature, we presume that the sentencing court did not abuse its discretion in deciding not to grant a DOSA. Garcia-Martinez, 88 Wn. App. at 329. No defendant is entitled to a DOSA sentence, but every defendant is entitled to ask the sentencing court for meaningful consideration of a DOSA request. Grayson, 154 Wn.2d at 342. But even if a defendant satisfies the DOSA eligibility requirements, the sentencing court must also make a discretionary determination about whether it should grant a DOSA to this defendant. Former RCW 9.94A.660(2); State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519, review denied, 136 Wn.2d 1004 (1998).
The trial court may apply DOSA at its discretion "if, among other factors, the offender is convicted of possession with intent to deliver a controlled substance, the offender has no prior felony convictions and the offense involved only a small quantity of controlled substance. [Former] RCW 9.94A.120(6)(a). The purpose of the DOSA act is to provide `treatment-oriented sentences' for drug offenders. Laws of 1995, ch. 108." State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998), review denied, 136 Wn.2d 1004 (1998).
Former RCW 9.94A.660(2) provides:
If the standard sentence range is greater than one year and the sentencing court determines that the offender is eligible for this alternative and that the offender and the community will benefit from the use of the alternative, the judge may waive imposition of a sentence within the standard sentence range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard sentence range. During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender. The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.
(Emphasis added.)
We review a sentencing court's denial of a DOSA request for abuse of discretion. Garcia-Martinez, 88 Wn. App. at 329. An abuse of discretion occurs when the sentencing court's decision rests on manifestly unreasonable or untenable grounds. State v. White, 123 Wn. App. 106, 114, 97 P.3d 34 (2004).
Here, the record does not support Briscoe's claims that the sentencing court refused to consider his DOSA request or abused its discretion by failing to grant him a DOSA sentence. To the contrary, the record amply demonstrates that the sentencing court considered Briscoe's request for a DOSA as well as his extensive criminal record and decided to recommend that Briscoe receive the necessary drug treatment in prison. The sentencing court considered Briscoe's DOSA request and stated reasonable grounds for rejecting it.
A DOSA sentence is an alternate form of standard range sentence because it "is split evenly between incarceration and community custody based upon the mid-point of the total standard range." State v. Williams, 112 Wn. App. 171, 176, 48 P.3d 354 (2002) (citing former RCW 9.94A.660(2)), rev'd, 149 Wn.2d 143, 65 P.3d 1214 (2003). If the offender violates the terms of the DOSA sentence, the court may order him to serve the unexpired term of the standard range sentence. Former RCW 9.94A.660(5).
Statutory Maximum Sentence
Briscoe also argues that his sentence for the domestic violence court order conviction exceeds the statutory maximum.
Here, the court below sentenced Briscoe to the statutory maximum of 60 months for the domestic violence court order conviction. It also imposed 9 to 18 months community custody. Although the matter was discussed in the record, Briscoe's judgment and sentence does not specify that his term of confinement and community custody cannot exceed the maximum 60-month term set by the legislature. The State concedes that the face of the judgment and sentence contains an error and that remand for resentencing is appropriate.
Generally, a trial court lacks the jurisdiction to impose a sentence providing for a term of confinement, community supervision, community placement, or community custody that, when added together, exceeds the statutory maximum for the crime. RCW 9.94A.505(5). See State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005) (vacated and remanded for resentencing; the sentence exceeding the statutory maximum); State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004) (when a sentence could exceed the statutory maximum sentence for the offense, the trial court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed the maximum).
Here, Briscoe's total combined sentence on the violation of domestic violence no-contact court order conviction exceeds the statutory maximum of 60 months. Without notation on the judgment and sentence stating that the duration of confinement plus the term of community custody cannot exceed the statutory maximum for the offense, violation of the domestic violence no-contact court order, the judgment, and sentence is facially invalid.
Because the sentence on the domestic violence no contact court order conviction is incorrect, we accept the State's concession and remand to the trial court for resentencing to correct the judgment and sentence on count II so that it does not exceed the statutory maximum.
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.
VAN DEREN, A.C.J. and PENOYAR, J., concur.