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State v. Conklin

The Court of Appeals of Washington, Division Three
Mar 10, 2011
160 Wn. App. 1027 (Wash. Ct. App. 2011)

Opinion

No. 28863-3-III.

Filed: March 10, 2011.

Appeal from a judgment of the Superior Court for Spokane County, No. 02-1-02305-4, Linda G. Tompkins, J., entered February 23, 2010.


Reversed and remanded by unpublished opinion per Brown, J., concurred in by Sweeney and Siddoway, JJ.


In 2003, Christopher W. Conklin pleaded guilty to first degree murder. The court sentenced him to 280 months plus a 60-month firearm enhancement. The trial court granted the parties' plea agreement for a 15 percent sentence reduction for earned release time. But earned release time is not allowed for first degree murder. In 2008, the Department of Corrections (DOC) noted the earned-release-time problem. In response, and at the State's request, the court corrected Mr. Conklin's sentence by amending it to reduce his sentence outright by 15 percent and deleting earned-release-time references. In 2009, Mr. Conklin, pro se, unsuccessfully moved to withdraw his guilty plea, arguing he was not informed during the 2008 proceedings that he could withdraw his plea. Now, Mr. Conklin contends (1) the trial court erred by not informing him he could withdraw his plea, (2) ineffective assistance of counsel, (3) manifest injustice warrants withdrawal of his plea, and (4) he should have been resentenced by another judge. Mr. Conklin, pro se, additionally claims he was not given credit for time served and the court erred by sentencing him above the statutory maximum. Because the trial court did not advise Mr. Conklin he could withdraw his guilty plea before his resentencing and because the State did not have the opportunity to argue prejudice, we reverse and remand.

FACTS

During a road rage incident in 2002, Mr. Conklin shot and killed Melvin Hendrickson, the passenger in the other vehicle. The vehicle's driver and many other persons witnessed Mr. Conklin's actions. The State charged Mr. Conklin with first degree murder with a firearm enhancement for the killing of Mr. Hendrickson and attempted first degree murder with a firearm enhancement with regard to the driver. The State later amended the information to include possessing marijuana with intent to deliver. In exchange for a guilty plea, the State agreed to dismiss the attempted murder and possession charges.

In 2003, Mr. Conklin acknowledged his constitutional rights and his waiver of those rights, including waiver of the right to appeal his guilty plea. The State recommended 240 months plus a 60-month firearm enhancement. The plea agreement stated, "It is agreed and stipulated that the defendant is eligible for 15% off of the 240 months for aggregate earned release time under this plea agreement." Clerk's Papers (CP) at 14. The agreement partly stated, "The crime of 1st [Degree] Murder has a mandatory minimum sentence of at least 20 years [240 months] of total confinement. ([T]he defendant is eligible by all parties' understanding to the 15% aggregate earned early release time). The law does not allow any reduction of this sentence." CP at 16.

The sentencing judge, Linda Tompkins, declined to follow the State's recommendation, and instead imposed a sentence of 280 months on the murder charge, plus an additional 60-month firearm enhancement. The court and the parties incorrectly assumed Mr. Conklin would be eligible for a 15 percent good time reduction on his sentence. The DOC pointed out the error.

In 2008, the State asked the court to resentence Mr. Conklin to correct the error. The court reduced Mr. Conklin's underlying 280-month sentence by about 15 percent to the mandatory minimum of 240 months plus the 60-month firearm enhancement for a total sentence of 300 months. At the resentencing hearing, defense counsel stated he had "[n]othing to add." CP at 144. Additionally, Mr. Conklin stated he thought "it was . . . 300 months minus the 15 percent which was a little less than I would get now, but I just kind of understood I would have a choice of remedy over accepting this or nothing, but I understand." CP at 145-46. The court replied, "Well, you can certainly request some alternatives." CP at 146. Mr. Conklin replied, "Okay." CP at 146. The court then moved on and did not advise Mr. Conklin of his alternatives.

On September 22, 2009, Mr. Conklin moved pro se to withdraw his guilty plea pursuant to CrR 4.2(f). He claimed neither the court nor his attorney ever advised him that he could withdraw his plea at the 2008 hearing. Mr. Conklin was appointed new defense counsel, who filed a response brief supporting Mr. Conklin's motion to withdraw his plea. Defense counsel argued Mr. Conklin was not given his choice of remedies.

The parties again appeared before Judge Tompkins to consider Mr. Conklin's motion to withdraw his guilty plea. Entering findings of fact and conclusions of law, the court found Mr. Conklin received the benefit of his plea bargain, was represented by competent counsel, and no basis existed to set aside his plea. Mr. Conklin appealed.

The court also recognized at the motion hearing that 15 percent off of 280 months plus the 60-month enhancement actually totals 298 months, but this court's record does not contain an amended judgment and sentence that reflects the court's acknowledgement.

ANALYSIS A. Resentencing

The issue is whether the trial court erred in denying Mr. Conklin's motion to withdraw his guilty plea. Mr. Conklin contends his plea was involuntary because the sentencing court erred in not informing him at the 2008 hearing that he could withdraw his guilty plea.

We review a trial court's denial of a motion to withdraw a guilty plea for an abuse of discretion. State v. Padilla, 84 Wn. App. 523, 525, 928 P.2d 1141 (1997). "A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons." State v. Hudson, 150 Wn. App. 646, 652, 208 P.3d 1236 (2009).

Initially, the State argues Mr. Conklin cannot appeal because he waived that right by pleading guilty. An appellant, however, may challenge the voluntariness of his plea for the first time on appeal. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).

"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). The constitutional requirements of a voluntary guilty plea are that (1) the defendant is aware that he is waiving his right to remain silent, right to confront his accusers, and right to a jury trial; (2) the defendant is aware of the essential elements of the offense charged; and (3) the defendant is aware of the direct consequences of pleading guilty. In re Pers. Restraint of Hilyard, 39 Wn. App. 723, 727, 695 P.2d 596 (1985) (citing State v. Holsworth, 93 Wn.2d 148, 153-57, 607 P.2d 845 (1980)). The trial court must make direct inquiries of the defendant to determine if he understands the nature of the charge and the full consequences of pleading guilty. In re Pers. Restraint of Keene, 95 Wn.2d 203, 206, 622 P.2d 360 (1980).

Mr. Conklin knowingly, voluntarily, and intelligently entered his guilty plea in 2003. He argues his plea became involuntary in 2008 when the court amended his sentence, because then the court did not notify him that he could withdraw his plea. Mr. Conklin relies on State v. Walsh, 143 Wn.2d 1, 17 P.3d 591 (2001).

In Walsh, the defendant established that his guilty plea was involuntary based upon a mutual mistake about the standard range sentence. Both the defense and the prosecution understood at the time of entering into a plea agreement that the standard sentencing range was 86 to 114 months, when the actual range was 95 to 125 months. Id. at 4. The court held Mr. Walsh was entitled to withdraw his guilty plea because his plea was not voluntary. Id. at 9-10.

Under Walsh, a defendant is entitled to withdraw his guilty plea when his or her sentence is based on mutual mistake. Here, all parties assumed Mr. Conklin would be eligible for earned release time. But, a defendant convicted of first degree murder is not eligible for earned release time. RCW 9.94A.540(2). Based on the parties' mutual mistake, the court resentenced Mr. Conklin, but it failed to advise him of his right to withdraw his plea. The proper recourse, then, would be to remand to allow Mr. Conklin the opportunity to elect remedies. See Wakefield, 130 Wn.2d at 475 ("Given these circumstances, we hold that Wakefield may withdraw her plea and remand to the trial court for a hearing to give Wakefield this opportunity."). In turn, the State would have the opportunity to argue prejudice. Walsh, 143 Wn.2d at 9. "The defendant's choice of remedy does not control, however, if there are compelling reasons not to allow that remedy." Id. We note a defendant is no longer entitled to specific performance of an illegal sentence. State v. Barber, ___ Wn.2d ___, ___ P.3d ___, 2011 WL 172088 (Jan. 20, 2011) overruling State v. Miller, 110 Wn.2d 528, 756 P.2d 122 (1988).

This issue is dispositive, thus we do not reach Mr. Conklin's remaining contentions. See State v. Young, 152 Wn. App. 186, 188 n. 3, 216 P.3d 449 (2009) (courts need not reach additional issues when holding on other grounds is dispositive).

B. Statement of Additional Grounds for Review

In his statement of additional grounds for review, Mr. Conklin raises concerns regarding whether he was offered his choice of remedies, a matter resolved above and not addressed again. His remaining concerns relate to whether the trial court violated his constitutional rights by not giving him credit for time served and whether his sentence exceeds the statutory maximum.

Mr. Conklin contends the court did not give him credit for time served while in the Spokane County jail prior to his first sentencing hearing and while awaiting the hearings on his sentence correction and motion to withdraw his guilty plea. "The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced." RCW 9.94A.505(6). This statute "simply represents the codification of the constitutional requirement that an offender is entitled to credit for time served prior to sentencing." State v. Williams, 59 Wn. App. 379, 382, 796 P.2d 1301 (1990).

Our record shows Mr. Conklin was given credit in his original judgment and sentence for 323 days served. In the amended judgment and sentence, the court ordered "the jail" to determine the amount of credit to be given. CP at 61. Thus, the court ordered the required credit be given to Mr. Conklin in both hearings.

Mr. Conklin next contends his sentence exceeds the statutory maximum. Under RCW 9.94A.505(5), "a court may not impose a sentence providing for a term of confinement or community custody that exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW." First degree murder is a class A felony. RCW 9A.32.030(2). The statutory maximum for a class A felony is life imprisonment. RCW 9A.20.021(1)(a). The court's sentence of 240 months for the underlying offense plus 24 to 48 months of community custody does not exceed the statutory maximum.

Reverse and remand.

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.

Sweeney, J., Siddoway, J., concur.


Summaries of

State v. Conklin

The Court of Appeals of Washington, Division Three
Mar 10, 2011
160 Wn. App. 1027 (Wash. Ct. App. 2011)
Case details for

State v. Conklin

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. CHRISTOPHER W. CONKLIN, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Mar 10, 2011

Citations

160 Wn. App. 1027 (Wash. Ct. App. 2011)
160 Wash. App. 1027