Opinion
No. 34322-3-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 04-1-00623-9, Gordon Godfrey, J., entered December 5, 2005.
Reversed and remanded by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
Jesse William Harford appeals the sentence imposed following his guilty plea to a charge of attempting to elude a pursuing police vehicle. He claims that he was denied his right to effective assistance of counsel because his attorney failed to challenge the use of two prior class C felonies in calculating his offender score. He also claims that he detrimentally relied on the State's plea offer and as his sentence far exceeds that offer, he should be allowed to withdraw his guilty plea. Following our order to supplement the record with additional findings as to Harford's criminal history, the State conceded that it miscalculated Harford's offender score. We find no merit to Harford's claims on appeal, but we accept the State's concession on the offender score and vacate Harford's judgment and sentence and remand for resentencing.
Facts
According to the State's declaration for an arrest warrant, the following occurred on November 26, 2004. Cosmopolis Police Officer Heath Layman was working in Aberdeen as part of the Grays Harbor County Traffic Safety Team when he saw a Chevrolet pickup travel through a red light. Officer Layman pulled behind the vehicle and activated his overhead lights. The vehicle, which was straddling the middle lane and traveling faster than the posted speed limit, did not pull over. Officer Layman then activated his siren but again the vehicle did not pull over. Washington State Patrol troopers set up spike strips, which the vehicle struck, but the vehicle then drove the wrong way on a one-way street and stopped just before hitting two patrol cars blocking its path. The driver, Harford, refused to get of the vehicle and the officers tazed him to comply.
Based on these facts, the State charged Harford with attempting to elude a pursuing police vehicle. The State made Harford a plea offer, agreeing not to charge Harford with assault, in which it calculated Harford's offender score as six based on the following criminal history:
A violation of RCW 46.61.024.
1991 Third Degree Rape
1991 Unlawful Imprisonment
1993 Driving Under the Influence
1999 First Degree Theft
1999 Second Degree Burglary
1999 Failure to Register as a Sex Offender
The State proposed a sentence range of 12 months plus one day to 14 months' incarceration. Harford agreed to this criminal history and entered an Alford plea. In that plea agreement, he averred:
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 366, 552 P.2d 682 (1976).
(d) 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 prosecutor's recommendation may increase. Even so, my plea of guilty is binding on me. I cannot change my mind even 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.
Clerk's Papers (CP) at 9. The trial court accepted Harford's plea, finding that he made it knowingly, intelligently, and voluntarily. The trial also found that Harford understood the charges, the consequences of the plea, and that a factual basis for it existed.
Before sentencing here, Harford was sentenced for three offenses in adjoining Thurston County. At sentencing here then, the State changed its sentencing recommendation to reflect an offender score of nine with a standard range sentence of 22 to 29 months' incarceration. Defense counsel agreed on the record to the recalculated offender score and to a recommended 25-month sentence to be served concurrently with the Thurston County offenses. The sentencing court imposed a 22-month sentence but imposed it consecutive to the Thurston County sentences. Harford then moved to withdraw his guilty plea but the trial court denied his motion.
Failure to Register as a Sex Offender, Tampering with a Witness, and Driving Under the Influence. At the supplemental hearing on Harford's criminal history, the parties discovered that Harford's failure to register as a sex offender conviction was a gross misdemeanor, not a felony as they originally thought.
Analysis
I. Effective Assistance of Counsel
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995).
A. Failure to Object to Offender Score
Harford first argues that counsel's failure to argue that his 1991 and 1993 offenses washed out of his offender score was objectively unreasonable and caused undue prejudice. He claims that these class C felonies washed out of his offender score under RCW 9.94A.525(2), which provides, in relevant part:
[C]lass C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including fulltime residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
Similarly, serious traffic infractions also wash out under RCW 9.94A.525(2):
[S]erious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction.
The State argues that Harford never spent five consecutive years in the community without a conviction in that he committed 11 misdemeanors during this time. As the record before us did not contain Harford's misdemeanor criminal history, we, under RAP 9.11, directed the trial court to hold a hearing to determine what offenses, if any, Harford committed during this six-year period. Those findings are now before us and reveal that Harford's 1991 and 1993 never washed out. As such, he cannot show prejudice and his claim necessarily fails.
B. Failure to Move to Withdraw Based on Detrimental Reliance
Harford next argues that counsel's failure to seek withdrawal based on detrimental reliance denied him his right to effective representation. He argues that he pleaded guilty based on the State's offer that he had an offender score of six and a standard sentence range of 12 plus one day to 14 months' incarceration. He argues that his plea was involuntary because he did not understand that his previous DUI offense was included in his offender score and therefore did not understand that his pending DUI could be used as well. He also argues that counsel did not appear aware that DUIs are counted.
CrR 4.2(f), which governs the withdrawal of a guilty plea, provides in part: "The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice." A "manifest injustice" is "an injustice that is obvious, directly observable, overt, not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). In Taylor, the Supreme Court discussed four indicia, any one of which would independently establish manifest injustice: (1) the denial of effective assistance of counsel, (2) the plea was not ratified by the defendant, (3) the plea was involuntary, and (4) the plea was not honored by the prosecution. CrR 4.2(f) places a demanding standard on the defendant. Taylor, at 597. See also State v. Watson, 63 Wn. App. 854, 856-57, 822 P.2d 327 (1992).
Even though Harford frames his claim as one of ineffective assistance of counsel, it is in essence a claim of involuntariness. As to such a claim, we have observed:
When a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges that he or she has read it and understands it and that its contents are true, the written statement provides prima facie verification of the plea's voluntariness. In re Keene, 95 [Wn.2d] 203, 206-07, 622 P.2d 360 (1980); In re Teems, [ 28 Wn. App. 631, 626 P.2d 13 (1981)]; State v. Ridgley, 28 Wn. App. 351, 623 P.2d 717 (1981). When the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.
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). Harford does not refute this presumption.
The trial court had before it Harford's "Statement of Defendant on Plea of Guilty." This document details the elements of the crime and explains the facts in support of the charge. It indicates the standard range sentence and the maximum penalty the court could impose. In it, Harford averred that he was making the plea freely and voluntarily, that no one caused him to enter the plea and no one made any promises other than in the plea agreement to cause him to plead guilty. Furthermore, Harford averred that he understood the entire agreement. And his attorney averred that his client fully understood the agreement. Finally, the trial court satisfied itself on the record that Harford understood the agreement, that it was entered into voluntarily, and that it was knowingly made.
Further, as we noted in the factual recitation above, Harford understood that if the State discovered additional criminal history or if he committed any additional offenses, not only would the State's recommendation change but that the plea agreement would remain binding on him. Harford fails to overcome the presumption of voluntariness and thus his claim fails.
Harford complains that he was confused about his offender score because, in Thurston County, his DUIs were not added to his offender score. But before sentencing, counsel conferred with the prosecutor and then told the court:
This is an agreed recommendation. After looking over Mr. Harford's criminal history, we're in agreement that his offender score is 9. Mr. Harford was also confused with his offender score in Thurston County where the DUIs aren't counted over there. So, he has two DUIs here, which elevates him two additional points. So, we are in agreement with that. We're also in agreement with the recommendation by the State of 25 months. That would be run concurrent with the sentencing he received in Thurston County.
Report of Proceedings (RP) at 11. To fault counsel for not seeking withdrawal at this point would be to fault him for not taking a frivolous action. Harford's Thurston County offender score did not include his DUIs because he was not being sentence for a traffic felony. To the contrary here, he committed an eluding crime, which specifically included those DUIs. See RCW 9.94A.525(11). There was no error, counsel conferred with his client about the confusion and agreed to a lawful sentence. Harford's ineffective assistance claim fails under both prongs of the test as counsel's actions were objectively reasonable and Harford suffered no prejudice.
II. Supplemental Argument
During the hearing on our order to supplement the record with findings as to Harford's criminal history, the parties discovered that a 2005 Thurston County offense scored as a felony was actually a gross misdemeanor and should not have been used in calculating Harford's offender score. Thus, the sentencing court should have used an offender score of 8 rather than 9 and a standard sentencing range of 17 to 22 months instead of 22 to 29 months. Further, the sentencing court relied on Harford's incorrect score of 9 in deciding to impose this sentence consecutive to a Thurston County sentence even though the State had recommended concurrent sentences. As we cannot say, under these circumstances, that the court would have imposed the same sentence, we vacate Harford's judgment and sentence and remand for resentencing. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).
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.
HOUGHTON, C.J., and BRIDGEWATER, J., concur.