Opinion
No. 30336-1-II.
August 14, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 02-1-01152-1, Christine A. Pomeroy, J., entered April 15, 2003.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Armstrong and Hunt, JJ.
Shawn Dunkelberger pleaded guilty to one count of first degree child rape and two counts of first degree child molestation and was sentenced to 192 months-to-life, as per the State's recommendation. He appealed, claiming his pleas were not entered into knowingly because he was not aware that he might be imprisoned for life. After his appeal was filed, we granted the State's motion to take additional evidence on review and ordered the trial court to conduct an evidentiary hearing and enter findings regarding whether Dunkelberger entered his plea knowingly.
At that hearing, the trial court concluded that Dunkelberger had not entered his pleas knowingly — specifically, that the State had not proven by clear and convincing evidence that Dunkelberger was properly advised as to all the consequences of his plea. The State then filed its response to Dunkelberger's appeal. We agree with the State that Dunkelberger has failed to establish that he should be allowed to withdraw his plea as a result of a manifest injustice, and therefore we affirm.
FACTS
Dunkelberger was originally charged (in July 2002) with one count of first degree child rape and four counts of first degree child molestation. He entered a statement of defendant on plea of guilty (Statement) on March 4, 2003, pleading guilty to one count of first degree child rape and two counts of first degree child molestation.
The following colloquy took place at Dunkelberger's plea hearing:
The Court: You're pleading guilty to three charges here, Rape of a Child First Degree, Count 1; Child Molestation First Degree, Count 2; and Child Molestation First Degree, Count 3. As a consequence of that you face a standard range in each count of 162 to 216 months in prison and a community custody range of up to life imprisonment. Do you understand — or excuse me, up to life on community custody. Do you understand that?
[Dunkelberger]: Yes.
The Court: I'm further informed that the prosecutor will recommend that you receive a sentence of 192 months to life, that you pay court costs, assessments, and all conditions, and that the prosecutor would then agree to dismiss counts 4 and 5 and to not file additional charges based upon facts now within the prosecutor's knowledge. Do you understand that that's the representation that the prosecutor has made to me about what his recommendation will be?
[Dunkelberger]: Yes.
The Court: Do you understand that I don't have to accept that recommendation even if it's an agreed recommendation; I can give you any sentence authorized by law?
[Dunkelberger]: Yes.
Report of Proceedings (RP) (Mar. 4, 2003) at 5-6.
The Statement recited the standard sentence range for each charge (I — III) as 162-216 months, with a maximum term and fine of life and $50,000. The Statement also listed the prosecutor's recommendation of 192 months-to-life.
In the Statement, Dunkelberger wrote that he was filing an Alford plea — he believed a reasonable jury would find him guilty beyond a reasonable doubt, but he did not agree that he "made any penetration." Clerk's Papers (CP) at 19. He signed the Statement on March 4, 2003.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
At Dunkelberger's sentencing hearing, the prosecutor explained the sentencing scheme at
length, as it had recently changed:
[The State]: The standard range is 162 to 216. The court must impose a minimum term somewhere in between those two ends of the range. The maximum term that the court must impose here is the maximum of the offense, which is life. . . . When [Dunkelberger] reaches the end of his minimum term, less any good time that might be awarded, . . . then his sentence would be reviewed by the Indeterminate Sentence Review Board.
If the review board found that he was more likely than not to re-offend, they could continue to detain him for a two-year period. Every two years thereafter it would be reviewed.
RP (Apr. 15, 2003) at 4-5.
Dunkelberger was sentenced to 192 months-to-life for count I, and 114 months for counts II and III, all to be served concurrently. Additionally, he was ordered into community custody for life on count I. The judgment and sentence correctly listed the standard range for the three charges: 162-216 months for count I, and 98-130 months for each of counts II and III. It also stated the maximum term for each count as life.
Dunkelberger originally appealed his sentence in March 2004. Our Commissioner granted the State's motion for an evidentiary hearing and stayed the matter pending the hearing on remand, which the trial court eventually held in March 2006.
At that hearing, defense counsel testified that he received a letter from Dunkelberger asking several questions, including what his sentence could be. Counsel reviewed the questions with Dunkelberger and explained "as best [he] could" that Dunkelberger could be in jail for life. RP (Mar. 9, 2006) at 10. Counsel also stated that he reviewed the plea offer and the plea agreement with Dunkelberger, both of which indicated that life was the maximum term for his crimes. He testified that Dunkelberger did not raise any questions or concerns after the prosecutor explained the new sentencing structure. Indeed, counsel argued for the minimum sentence of 162 months because, essentially, Dunkelberger would be held for life if the Indeterminate Sentence Review Board (ISRB) determined that he may re-offend.
At the same hearing, Dunkelberger claimed that he never wrote the letter to his counsel because he is functionally illiterate. He also testified that his understanding of his sentence was that he would be in prison for 13-16 years, and in community placement afterwards (possibly for life). He stated that he did not understand that there was a possibility he could spend his life in prison and, had he known, he would not have pleaded guilty.
Following that hearing, the court entered findings of fact and conclusions of law regarding Dunkelberger's plea. It found that neither the Statement nor the plea hearing itself adequately and clearly advised Dunkelberger that he would be sentenced to a maximum term of life in prison. It also found that, although Dunkelberger "was advised that the maximum sentence range was life in prison," the advice "did not adequately explain . . . other considerations which would impact [Dunkelberger's] ability to be released from prison." Findings of Fact and Conclusions of Law (FF/CL) at 2. Finally, the court found that Dunkelberger's demeanor "did not suggest any noticeable learning disability or other impairment," and it found no evidence that Dunkelberger lacked the capacity to understand the sentencing scheme. FF/CL at 3.
The court entered findings of fact and conclusions of law, and a Commissioner of this court reviewed them and accepted them for addition to the record. However, they have never been designated as supplemental clerk's papers.
Based on these findings, the trial court concluded that (1) given the inadequacies of the Statement and the colloquy, the State had to prove by "clear and convincing evidence" that Dunkelberger was properly advised about the possibility of serving a life term in prison and the factors that would influence his sentence; (2) counsel's testimony, while credible, did not present adequate evidence that Dunkelberger was "fully informed of the possibility of spending life in prison" and the factors that would influence his sentence; and (3) the State did not prove by clear and convincing evidence that Dunkelberger was properly advised, "outside of the plea documents and the plea hearing itself, as to all of the direct consequences of his pleas." FF/CL at 3-4. The trial court did not permit Dunkelberger to withdraw his plea, nor did it alter his sentence.
Our order remanding for a hearing specified only that the trial court enter findings regarding whether Dunkelberger entered into his plea knowingly.
The parties supplemented the record on appeal with the trial court's findings and conclusions. The State then filed its response brief on appeal, arguing in part that the trial court's findings were not supported by the facts, and in turn its conclusions were not supported by its findings.
ANALYSIS
I. Manifest Injustice
A defendant may withdraw his or her plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice," but this is a demanding standard. CrR 4.2(f); State v. Bao Sheng Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006). "Manifest injustice" requires an injustice that is "obvious, directly observable, overt, [and] not obscure." State v. Mendoza, 157 Wn.2d 582, 586, 141 P.3d 49 (2006) (quoting In re Pers. Restraint of Matthews, 128 Wn. App. 267, 274, 115 P.3d 1043 (2005)). The defendant has the burden of showing that a manifest injustice has occurred. State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974).
An involuntary plea constitutes a manifest injustice for purposes of CrR 4.2(f). Taylor, 83 Wn.2d at 597. A guilty plea is voluntary if the defendant is advised of all direct consequences of that plea. See State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). The length of a sentence is a direct consequence of a guilty plea because it 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)).
A defendant's guilty plea is involuntary when "based on misinformation regarding a direct consequence on the plea, regardless of whether the actual sentencing range is lower or higher than anticipated." Mendoza, 157 Wn.2d at 591. However, the defendant still must establish that the unexpected sentence provision was a direct consequence of the guilty plea; one that represents "a definite, immediate and largely automatic effect on the range of the defendant's punishment." Ross, 129 Wn.2d at 284.
A. Review of the Trial Court's Findings of Fact and Conclusions of Law
Here, Dunkelberger argues that he was not informed about the direct consequence of the possibility of a life sentence, and the trial court agreed, concluding that he was not "properly advised . . . as to the possibility of spending the rest of his life in prison." FF/CL at 3-4. The trial court also concluded that Dunkelberger was not "properly advised, outside of the plea documents and the plea hearing itself, as to all of the direct consequences of his pleas, as set forth above." FF/CL at 4. The State responds that Dunkelberger failed to show that he suffered a "manifest injustice," and it points out that the trial court's findings addressed whether Dunkelberger was advised of the entire sentencing scheme — not solely on whether he was advised of the direct consequences of his plea. Resp't Br. at 9.
We review findings of fact using a substantial evidence standard. State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993). Substantial evidence exists where the record contains a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the allegation. Halstien, 122 Wn.2d at 129. Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
The record does not support the trial court's findings and conclusions. First, the plea agreement accurately recites that the maximum sentence is life in prison. Second, the State's recommendation for sentencing also reflects a maximum term of life imprisonment. Third, Dunkelberger's attorney, who the court apparently found credible, testified not only that he explained both of these documents to Dunkelberger, but also that he separately met with
At oral argument, these documents were combined as one document with separate headings, although they were included in the Clerk's Papers as two separate documents.
Dunkelberger after receiving his letter and again explained that the maximum sentence was life. Finally, if Dunkelberger had not understood that he faced life in prison, it seems he would have objected after the prosecutor explained the sentencing scheme at his sentencing hearing.
It is true that the trial court misspoke at the plea hearing and stated at one point that the maximum sentence was life on community custody. However, at the same hearing, Dunkelberger was once again advised by the court that the prosecutor's recommended sentence was 192 months-to-life.
Thus, substantial evidence does not support the trial court's findings that Dunkelberger was not adequately advised of his sentence either before or during the plea hearing. Neither do the facts support the trial court's conclusions that Dunkelberger was not advised of his maximum sentence and that he did not understand that his maximum sentence was life imprisonment. Our de novo review of the facts reflects the opposite; Dunkelberger knew the direct consequences of his plea, and no manifest error has occurred.
Substantial evidence does support the trial court's finding that Dunkelberger was not comprehensively advised regarding the factors taken into consideration by the ISRB. However, these factors are not "direct consequences," which must have a definite, immediate, and largely automatic effect on the range of the defendant's punishment. Ross, 129 Wn.2d at 284. The law does not require every defendant to be fully informed as to the workings of the ISRB before he or she pleads guilty.