Opinion
No. 37681-4-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Clallam County, No. 07-1-00306-1, Kenneth D. Williams, J., entered April 18, 2008.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
Angela Johnson appeals her plea-based residential burglary and theft of a firearm convictions. The State concedes that Johnson was misinformed regarding her standard sentencing range and that, as a result, her pleas were not knowingly and voluntarily entered as a matter of law. We accept the State's concession and remand with directions to allow Johnson an opportunity to withdraw her pleas.
FACTS
Sometime between December 31, 2006 and January 2, 2007, someone entered William Lindsay's home without permission and took several guns valued at around $2,200. Police found Johnson's latent fingerprints on a plate in Lindsay's kitchen. Lindsay did not know Johnson and had never given her permission to enter or remain in his home or to take any weapons.
The State charged Johnson with one count of residential burglary in violation of RCW 9A.52.020, count I, and one count of theft of a firearm in violation of RCW 9A.56.300(1), count II. Johnson pleaded guilty as charged on November 19, 2007.
The trial court accepted Johnson's pleas and notified her that she had an offender score of one and would face standard sentencing ranges of 21 to 27 months for residential burglary and 15 to 20 months for theft of a firearm. Johnson's statement of defendant on plea of guilty indicated the same sentencing ranges.
Before sentencing, Johnson moved to withdraw her guilty plea on the basis that the State failed to satisfy an integral part of her plea agreement; namely, that law enforcement representatives did not contact her in an effort to locate the firearms at issue. CrR 4.2(f). Ruling that the record did not support Johnson's argument, the trial court denied her plea withdrawal motion. The trial court then sentenced Johnson to a 24-month, prison-based drug offender sentencing alternative (DOSA).
Johnson appealed, arguing that she should be allowed to withdraw her plea because (1) the trial court erred in finding a sufficient factual basis for her plea and (2) she was misinformed regarding her correct standard sentencing range.
Because Johnson's second issue is dispositive, we do not address her insufficient factual basis claim.
The State concedes that Johnson was misinformed regarding her standard sentencing range and should be allowed to withdraw her plea. We agree.
DISCUSSION
Standard of Review
A defendant must be allowed to withdraw her guilty plea whenever necessary to correct a manifest injustice. State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006) (citing CrR 4.2(f); State v. Marshall, 144 Wn.2d 266, 280-81, 27 P.3d 192 (2001); State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974)). "Manifest injustice includes instances where `(1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept.'" Zhao, 157 Wn.2d at 197 (quoting Marshall, 144 Wn.2d at 281).
Incorrect Sentencing Information
Johnson argues that her guilty plea was not knowingly and voluntarily entered because she was misinformed regarding her standard sentencing range for residential burglary. The State concedes this error and agrees that Johnson is entitled to withdraw her plea. We agree.
A guilty plea is involuntary if the defendant is not advised of all direct consequences of that plea, including the length of her sentence. State v. Smith, 137 Wn. App. 431, 437, 153 P.3d 898 (2007) (citing In re Pers. Restraint of Isadore, 151 Wn.2d 294, 300, 88 P.3d 390 (2004)). This is so regardless of whether the actual sentencing range is lower or higher than anticipated. Smith, 137 Wn. App. at 437 (quoting State v. Mendoza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006)). Thus, the defendant need not show that the misinformation materially affected her decision to plead guilty. Smith, 137 Wn. App. at 437-38 (citing Isadore, 151 Wn.2d at 302; Mendoza, 157 Wn.2d at 590-91).
Here, the trial court told Johnson that her standard sentencing range on the residential burglary charge was 21 to 27 months. The correct standard range for an offender score of one was 6 to 12 months. Compare former RCW 9.94A.515 (2005) with RCW 9.94A.510. The statement of defendant on plea of guilty and the trial court during colloquy also mistakenly told Johnson that her standard sentencing range was 21 to 27 months. Johnson's 24-month, prison-based DOSA was a direct consequence of the guilty plea she entered based on the misinformation regarding the length of her potential sentence. The State concedes error and acknowledges that Johnson has shown that her pleas were not knowingly and voluntarily entered as a matter of law and that she must be provided an opportunity to withdraw them.
Accordingly, we remand to the trial court with directions that it provide Johnson with notice and an opportunity to withdraw her pleas should she elect to do so. See State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003) ("`[W]here the terms of a plea agreement conflict with the law or the defendant was not informed of the sentencing consequences of the plea, the defendant must be given the initial choice of a remedy to specifically enforce the agreement or withdraw the plea'") (quoting State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988)).
Reversed and remanded.
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, P.J. and HUNT, J., concur.