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State v. Kelley

The Court of Appeals of Washington, Division Two
Nov 9, 2004
124 Wn. App. 1011 (Wash. Ct. App. 2004)

Opinion

No. 30989-1-II

Filed: November 9, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 03-1-02451-3. Judgment or order under review. Date filed: 08/18/2003. Judge signing: Hon. Frederick Fleming.

Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.

Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.


Brian Kelley appeals his Pierce County conviction of vehicular assault, RCW 46.61.522(1)(c), and the sentence imposed thereon. Kelley seeks to withdraw his guilty plea, contending that it was not knowing and voluntary because he was misinformed about the period of community custody he would have to serve. The State concedes error and asks us to remand the matter to the superior court so that Kelley can choose whether to withdraw his plea or have the sentence corrected. We hold that the mistake in the community custody range does not entitle Kelley to withdraw his plea, and remand for correction of the sentence only.

A commissioner of this court initially considered this matter pursuant to RAP 18.12, and referred it to a panel of judges.

The State initially charged Kelley with vehicular assault under RCW 46.61.522(1)(a) and (b), alleging that he feloniously operated a motor vehicle in a reckless manner or while under the influence of intoxicating liquor and/or drugs. Conviction of one of those alternatives would have counted as a strike under the persistent offender accountability act (POA), RCW 9.94A.555-570. See former RCW 9.94A.030(28)(q) (2001). Pursuant to the plea agreement, the State amended the charge to allege the alternative in RCW 46.61.522(1)(c), operating a motor vehicle with disregard for the safety of others. That alternative does not count as a strike. The parties agreed that Kelley's standard range included 12 to 16 months of incarceration followed by 18 to 36 months of community custody.

The court sentenced Kelley to 16 months of confinement and 18 to 36 months of community custody. Kelley's correct community custody range is 9 to 18 months. RCW 46.61.522(c); former RCW 9.94A.510 (2000); WAC 437-20-010 .

A defendant's decision to plead guilty must be knowing, voluntary, and intelligent. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). It is not knowing and intelligent if it is based on incorrect information about a direct sentencing consequence. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). However, if the sentencing consequence, itself, was not material to the defendant's decision, the plea was not based on any information about it, whether correct or incorrect. In State v. McDermond, 112 Wn. App. 239, 47 P.3d 600 (2002), we stated:

[T]hree questions will determine whether a plea of guilty was initially invalid due to incomplete or inaccurate advice about one or more of its consequences. (1) Was the defendant incompletely or inaccurately advised about one or more consequences of the plea? (2) Could the defective advice have materially affected the defendant's decision to plead guilty? (3) Did the defective advice materially affect the defendant's decision to plead guilty? The first and third questions are factual. The second question is legal and reflects that some consequences are so minor (i.e., so 'collateral') the law will not recognize them as affecting the decision to plead guilty. If the answer to any question is no, the remaining questions need not be reached, and the plea should be upheld. If the answer to all three questions is yes, the plea should be set aside.

112 Wn. App. at 248 (emphasis added). See also State v. Acevedo, 137 Wn.2d 179, 194, 970 P.2d 299 (1999).

Here the legal consequences to overstating the length of time Kelley could be required to serve in community custody are so minor that it could not have affected his decision to plead guilty. Kelley pleaded guilty to avoid a conviction that would count as a strike under the POA. It cannot reasonably be argued that he would have rejected the plea bargain if he had known the period of community custody would be less than he anticipated. Relying on In re Personal Restraint of Isadore, 151 Wn.2d 294, 302, 88 P.3d 390 (2004), Kelley contends that he is entitled to withdraw his guilty plea because he was told that his term of community placement would be longer than that the statute allowed. But Kelley's reliance on Isadore is misplaced. Isadore entered his plea without being told that he would be subject to additional community placement following his release from prison. Given that the defendant had anticipated a more favorable result than the law allowed, the Isadore Court refused to speculate about whether the community placement requirement was material to his decision.

Here, Kelley pleaded guilty believing that he would be required to serve 18 to 36 months in community placement following his release from prison when the law allowed that he would only be required to serve an additional 9 to 18 months in community placement. Unlike Isadore, Kelley was informed that he would be required to serve additional time in community placement upon his release from prison. The only error was that he was told he would have to spend more time being monitored in the community than the law actually allowed. Here, the error in the community placement range was immaterial. Kelley is not entitled to withdraw his plea. The proper remedy is to remand to the trial court for entry of a corrected judgment and sentence setting Kelley's community placement range at 9 to 18 months. CrR 7.8(a).

Pro se, Kelley has filed a statement of additional grounds for review, raising several issues. None of these claims justify withdrawal of his plea. The amendment of the information was clearly to his benefit. He knew that it would be amended, and the fact that the amended information was not filed until he entered his guilty plea did not prejudice him.

Kelley's claim that trial counsel did not effectively represent him is based on assertions that counsel (1) told him he would have to serve only six months of incarceration, (2) failed to adequately investigate the case, and (3) failed to file unspecified motions. These complaints all involve matters outside the record, and they cannot be reviewed on appeal. See State v. King, 24 Wn. App. 495, 498, 601 P.2d 982 (1979).

Finally, the record does not support Kelley's claim that he did not waive his presence at the restitution hearing. His signed waiver was filed in open court on the same day that he entered his guilty plea.

In conclusion, we find that there was no error that invalidates Kelley's guilty plea. However, this case is remanded to the superior court with directions to modify the judgment and sentence to provide the correct period of community custody, 9 to 18 months.

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.

ARMSTRONG, J. and HUNT, J., concur.


Summaries of

State v. Kelley

The Court of Appeals of Washington, Division Two
Nov 9, 2004
124 Wn. App. 1011 (Wash. Ct. App. 2004)
Case details for

State v. Kelley

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. BRIAN GALEN KELLEY, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 9, 2004

Citations

124 Wn. App. 1011 (Wash. Ct. App. 2004)
124 Wash. App. 1011