Opinion
Nos. 24027-4-III; 24289-7-III.
June 27, 2006.
Appeals from a judgment of the Superior Court for Grant County, No. 04-1-00270-5, Evan E. Sperline, J., entered February 22, 2005, together with a petition for relief from personal restraint.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
John Dietrich III Knodell, Attorney at Law, Pros Atty Grant Co Crthse, PO Box 37, Ephrata, WA 98823-0037.
Judgment affirmed and petition dismissed by unpublished opinion per Kato, J., concurred in by Brown and Kulik, JJ.
In this consolidated appeal and personal restraint petition (PRP), John Shannon Codiga contends his guilty pleas to three counts of first degree child molestation should not have been accepted. On direct appeal, he contends the court erred by accepting his guilty plea. In his PRP, he seeks to withdraw his guilty plea. We affirm the convictions and dismiss the PRP.
On April 12, 2004, Mr. Codiga was charged with five counts of first degree child molestation. He pleaded guilty to three counts in exchange for dismissal of two.
At the plea hearing, Mr. Codiga told the court he had signed the statement of defendant on plea of guilty. He said he had read the statement carefully and had discussed it with his lawyer. He understood he was giving up his right to a jury trial and no one had pressured him into entering the plea agreement. Mr. Codiga advised the court he did not need to speak with his attorney and he did not have any questions.
The court then asked Mr. Codiga to enter a plea. He said he was pleading guilty. Before accepting Mr. Codiga's plea, the court stated on the record that the plea was knowing, intelligent, and voluntary. It noted Mr. Codiga had adopted the probable cause statement and had further stipulated there were sufficient factual bases to support his plea.
The prosecutor informed the court Mr. Codiga had two prior felony convictions in 1996 and 1997. Both the prosecutor and defense counsel believed the 1996 conviction washed out. The prosecutor calculated Mr. Codiga's offender score as seven with a standard range sentence of 108 to 144 months.
At sentencing, the prosecutor again stated that both he and defense counsel believed Mr. Codiga had one prior felony point and the offender score was seven. The presentence investigation report, however, calculated Mr. Codiga's offender score as eight including both prior felony convictions. The report also revealed a number of prior misdemeanors and recommended a standard range sentence of 129 to 171 months. Mr. Codiga argued the 1996 conviction had washed out. But the court determined his misdemeanor convictions in 2001 and 2002 tolled the washout period. The court also denied Mr. Codiga's request for a Special Sex Offender Sentencing Alternative (SSOSA). Mr. Codiga was sentenced to 150 months on each count to run concurrently.
Mr. Codiga subsequently filed a motion to withdraw his guilty plea based on the discrepancy in his offender score between the plea and sentencing hearings. The superior court transferred the motion to this court as a personal restraint petition. The direct appeal and personal restraint petition have been consolidated.
Mr. Codiga contends the court erroneously accepted his guilty plea. Due process requires that a defendant knowingly, intelligently, and voluntarily enter a guilty plea. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). When a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges he has read and understands it and its contents are true, the written statement provides prima facie verification of the plea's voluntariness. In re Pers. Restraint of Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980); In re Pers. Restraint of Teems, 28 Wn. App. 631, 633, 626 P.2d 13 (1981); State v. Ridgley, 28 Wn. App. 351, 355, 623 P.2d 717, review denied, 95 Wn.2d 1020 (1981). When the court goes on to inquire orally of the defendant and satisfies itself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is irrefutable. See State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982); State v. Hystad, 36 Wn. App. 42, 45, 671 P.2d 793 (1983).
Mr. Codiga argues the court did not inform him on the record at the plea hearing of the nature of the charges for child molestation or the law in relation to the facts of the charges. He also contends the court did not inform him of the consequences of his plea.
All criminal defendants have a constitutional right to know the nature and cause of the accusation against them. U.S. Const. amend. VI; Const. art. I, § 22 (amend. 10); State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995). For a plea to be voluntary and knowledgeable, not only must a defendant be apprised of the nature of the charges, he must also be aware that the facts support his guilt under those charges. Keene, 95 Wn.2d at 207, 209. But apprising the defendant does not necessarily mean describing every element orally on the record at the plea hearing. Id. at 207. If the colloquy at the plea hearing does not include every word necessary to ensure the voluntariness of the plea, clear and convincing written evidence can remedy the defect. Id. at 208; Wood v. Morris, 87 Wn.2d 501, 507, 554 P.2d 1032 (1976).
It is well settled that a written statement on plea of guilty in the form provided by CrR 4.2(g) establishes knowledge of the nature of the charge. Keene, 95 Wn.2d at 206-07; Ridgley, 28 Wn. App. at 355. The court is justified in relying on facts admitted in the plea statement. Keene, 95 Wn.2d at 206-07. A correct statement of the charge in the information is also evidence the defendant was informed of the nature of the charge. Id. at 208.
Moreover, in order for a plea to be voluntary, a defendant `must be informed of all the direct consequences of his plea prior to acceptance of a guilty plea.' State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980). A direct consequence of a plea is one with `a definite, immediate and largely automatic effect on the range of defendant's punishment.' State v. Cameron, 30 Wn. App. 229, 233, 633 P.2d 901, review denied, 96 Wn.2d 1023 (1981). Direct consequences of a conviction include the mandatory minimum sentence for the crime, Wood, 87 Wn.2d at 513; `special parole terms or ineligibility for parole,' Id.; that sentences must be served consecutively, In re Personal Restraint of Williams, 21 Wn. App. 238, 240-41, 583 P.2d 1262 (1978); and the obligation to pay restitution, Cameron, 30 Wn. App. at 233.
Here, the court approved Mr. Codiga's statement of defendant on plea of guilty. This document details the elements of the crime and incorporates the statement of probable cause to establish the facts in support of the charges. It indicates the standard range sentence and the maximum penalty the court could impose based on the information known to the parties at the time of the hearing. Mr. Codiga stated the plea was made freely and voluntarily; no one caused him to enter the pleas and no one made any promises, other than in the plea agreement, to cause him to plead guilty. He also told the court he had read the statement carefully, discussed it with his lawyer, and understood he was giving up his right to a jury trial. Finally, before accepting Mr. Codiga's plea, the court indicated it was entered into voluntarily, intelligently, and knowingly. The court also reiterated that Mr. Codiga had adopted the probable cause statement and had additionally stipulated there were sufficient factual bases to support his plea. In these circumstances, the court did not err by accepting Mr. Codiga's plea.
Mr. Codiga also contends his guilty plea was involuntary based on mutual mistake about the standard range sentence. A defendant must understand the direct consequences of his guilty plea for it to be valid. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). The standard sentencing range is a direct consequence of a guilty plea. State v. McDermond, 112 Wn. App. 239, 244, 47 P.3d 600 (2002). `[W]hen a mutual mistake occurs regarding a standard sentence range, a defendant may choose to either specifically enforce the plea agreement, or to withdraw the plea.' State v. Moon, 108 Wn. App. 59, 63, 29 P.3d 734 (2001).
Mr. Codiga relies on State v. Walsh, 143 Wn.2d 1, 17 P.3d 591 (2001), where the defense and the prosecution believed the standard sentence range was 86 to 114 months based on the defendant's one prior conviction for vehicular assault. Id. at 4. In response to the court's questioning at the plea hearing, the defendant said he understood that in exchange for his guilty plea he was promised that the prosecutor would only recommend a sentence of 86 months. Id.
Prior to sentencing, however, it was revealed in a presentence report that the defendant's prior conviction counted as two points, resulting in a standard range sentence of 95-125 months. Id. At sentencing, the prosecutor told the court the standard range was 95-125 months and recommended 95 months. Id. at 5. The defendant was apparently never advised of the error before sentencing. Id. Our Supreme Court found the plea was involuntary and the sentence could not stand. Id. at 9. But the facts here are distinguishable. Although it was determined at the time of the plea hearing that Mr. Codiga's offender score was seven for a standard range sentence of 108 to 144 months, he had also signed the statement of defendant on plea of guilty. The statement provided: If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard sentence range and the prosecuting attorney's recommendation may increase. Even so, my plea of guilty to this charge is binding upon me. I cannot change my mind if additional criminal history is discovered even though the standard sentencing range and the prosecuting attorney's recommendation increase or a mandatory sentence of life imprisonment without the possibility of parole is required by law.
Clerks Papers at 9. Mr. Codiga told the court at the time of the plea hearing he had read the statement carefully and had a full opportunity to discuss the statement with his lawyer before signing it. He was aware his sentence could increase based on the discovery of additional criminal history. His plea agreement was therefore voluntary. The court properly accepted his guilty plea.
In his statement of additional grounds for review, Mr. Codiga contends his statements at the time of his arrest were involuntary due to his altered mental state; he signed `something' at the CrR 3.5 and 3.6 hearings that he did not understand due to his mental state; the judge called him a liar in open court; he was denied effective assistance of counsel when the court allowed his attorney to withdraw from the case; he should have been granted a change of venue; and the trial court did not follow its court rules.
But there is nothing in the record relating to these contentions. We therefore cannot consider them. State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991).
In his PRP, Mr. Codiga also contends he should be allowed to withdraw his guilty plea. He argues he pleaded guilty based on the agreement that his offender score was seven, but the judge sentenced him based on an offender score of eight.
A personal restraint petitioner has the burden of proving constitutional error that results in actual prejudice or nonconstitutional error that results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). If a petition is based on matters outside the appellate record, a petitioner must show that he has `competent, admissible evidence' to support his arguments. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). Also, `a petitioner must show that more likely than not he was prejudiced by the error. Bare allegations unsupported by citation of authority, references to the record, or persuasive reasoning cannot sustain this burden of proof.' State v. Brune, 45 Wn. App. 354, 363, 725 P.2d 454 (1986), review denied, 110 Wn.2d 1002 (1988). A petition failing to meet this basic level of proof and argument may be dismissed summarily. Id.
Due process requires a knowing, voluntary, and intelligent guilty plea. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A guilty plea is not knowingly made if based on misinformation as to the sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). A defendant must be informed of all direct consequences of the plea. Isadore, 151 Wn.2d at 298.
Under CrR 4.2(f), the court must allow a defendant to withdraw a guilty plea if necessary to correct a manifest injustice. An involuntary plea produces a manifest injustice. Walsh, 143 Wn.2d 1. A direct consequence includes one that "represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Ross, 129 Wn.2d at 284 (quoting State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)).
Here, however, nothing in the record shows that Mr. Codiga's plea was based on any agreement that his offender score would be a seven. At the plea hearing, the State informed the court Mr. Codiga would be pleading guilty to three of the five charged counts of first degree child molestation in exchange for `nothing more than our agreement to dismiss upon sentencing the other two counts.' Report of Proceedings (RP) (Nov. 30, 2004) at 2. Moreover, Mr. Codiga signed the statement of defendant on plea of guilty, which provided the standard range sentence could increase should any additional criminal history be discovered. He told the court he had read the statement carefully and had the opportunity to discuss the statement with his lawyer before signing it. There is no indication the guilty plea was based on an agreement that his offender score was a seven. Mr. Codiga also contends the increase in his offender score resulted in the court denying him SSOSA. But this contention is not supported by the record. In considering the request for SSOSA, the court observed it had several concerns. The court stated Mr. Codiga's evaluation by a certified sex offender treatment provider found him to `present a . . . mixed bag of risks.' RP (Feb. 8, 2005) at 33-34. The court noted Mr. Codiga had established no track record in the community of his ability to sustain a community-based treatment program; he had a substantial and long-term substance abuse history; and his criminal history showed an unmistakable pattern of trying to avoid the requirements of law. The court determined it would not grant Mr. Codiga SSOSA after considering what was revealed in the presentence investigation report, the nature of the offenses, his background, the conduct revealed in Mr. Codiga's polygraph, and review of his amenability to treatment.
Furthermore, RCW 9.94A.670(2)(f) states that a sex offender is SSOSA eligible when the `standard range for the offense includes the possibility of confinement for less than eleven years.' Even with an offender score of eight, Mr. Codiga was still eligible to receive SSOSA. Nothing supports the claim that the court's denial of Mr. Codiga's request for SSOSA was based on the increase in the offender score.
The convictions are affirmed and the PRP is dismissed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.