Opinion
No. 34979-5-II.
January 2, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 03-1-00052-9, Leonard W. Costello, J., entered May 19, 2006.
Affirmed in part and remanded by unpublished opinion per Hunt, J., concurred in by Quinn-Brintnall and Penoyar, JJ.
Michael Darren Miceli appeals an amended judgment and sentence from Jefferson County. He pleaded guilty to two counts of first degree child rape based on acts that he committed against his two young half-sisters. The court imposed a SSOSA sentence (Special Sexual Offender Sentencing Alternative) on August 27, 2004. On May 19, 2006, the court revoked that sentence and reinstated the remainder of Miceli's 130-month prison term. It issued an amended judgment and sentence on April 9, 2007, reflecting the lifetime community custody to which he is now subject under RCW 9.94A.712(5).
Miceli contends that his guilty pleas were involuntary because the trial court told him that his term of community custody would be 36 to 48 months, which was incorrect. A commissioner of this court initially reviewed this matter on the State's motion on the merits and then referred it to a panel of judges. We agree that the incorrect advice about the length of community custody renders Miceli's pleas involuntary and remand for further proceedings.
See RAP 18.14.
FACTS
On November 14, 2003, Michael Miceli pleaded guilty to two counts of first degree child rape. Subsection (f) of his statement on plea of guilty advised him of the potential sentences for various offenses. Subsection (f)(i), which applied to Miceli's crimes, stated, in part: "In addition to the period of confinement, I will be sentenced to community custody for any period of time I am released from total confinement before the expiration of the maximum sentence." Clerk's Papers at 19. Subsection (f)(ii) pertained to sex offenses not listed in subsection (f)(i); it advised that for those crimes, the term of community custody would be 36 to 48 months.
The plea statement also advised that the maximum sentence for rape of a child is life.
At the plea hearing, the trial court asked defense counsel what Miceli's community custody range would be. Defense counsel did not know, and the State offered no information. The trial court looked at the plea agreement and read part of subsection (f)(ii) to Miceli, telling him that the section applied to him and that he would be subject to community custody for 36 to 48 months. The court accepted Miceli's guilty pleas and ultimately granted his request for a SSOSA.
Miceli was assiduous about meeting his treatment requirements, but he did not maintain stable employment. He declined to apply for certain kinds of jobs and worked only at temporary and often part-time jobs in fields that interested him. His income was insufficient to meet his living expenses and the costs of treatment, and he fell behind in his payments. His counselor believed that Miceli was unwilling to do what was necessary to satisfy his SSOSA requirements and terminated treatment. The SSOSA revocation followed.
analysis
Miceli argues that his guilty pleas were involuntary because the trial court incorrectly told him that his term of community custody would be 36 to 48 months. We agree.
I. Timeliness
We first address the State's procedural defenses to Miceli's claim. The State argues that Miceli's claim is time barred under RCW 10.73.090 because he did not raise it within a year of his original sentence. This is not so. Miceli had a right to appeal his amended judgment and sentence, RAP 2.2(a)(13), and he did so timely.
The State next argues that the modification of community custody was merely the correction of a clerical mistake. This argument also fails. Miceli's challenge to his guilty pleas is meritorious, as well as timely.
II. Involuntariness of Pleas
Due process requires an affirmative showing that a defendant entered a guilty plea knowingly, voluntarily, and intelligently. 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)). A defendant does not enter a guilty plea knowingly or voluntarily when it is based on misinformation about the sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). Although a defendant need not be informed of all possible consequences of pleading guilty, he must be informed of all direct consequences. State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980) (citing Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1365 (4th Cir. 1973), cert. denied, 414 U.S. 1005 (1973)).
A direct consequence has a definite, immediate, and largely automatic effect on the range of a defendant's punishment by enhancing the sentence or altering the standard of punishment. State v. Ross, 129 Wn.2d 279, 284-85, 916 P.2d 405 (1996). In contrast, a collateral consequence involves sentencing conditions that flow from additional proceedings, separate from a guilty plea. Ross, 129 Wn.2d at 285. Unquestionably, mandatory community placement is a direct consequence of a plea. See State v. Mendoza, 157 Wn.2d 582, 588, 141 P.3d 49 (2006); State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003); In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 264, 36 P.3d 1005 (2002). Community custody is not distinguishable from community placement. See State v. Crandall, 117 Wn. App. 448, 451, 71 P.3d 701 (2003) (community custody is a subset of community placement).
The information the trial court gave Miceli about the length of his potential community custody was wrong, and the error was significant. Despite the presence of the correct information in the plea statement, Miceli was entitled to rely on the judge's advice under the circumstances.
Three factors suggest that Miceli lacked the requisite actual knowledge about his life term of community custody and, therefore, understood the trial court's explanation of his supposed shorter range to be accurate and final. First, the trial court itself was initially uncertain about the length of Miceli's community custody term; it became certain that Miceli would have a 36 to 48-month community custody range when it orally read through Miceli's judgment and sentence. Second, the trial court thoroughly explained community custody to Miceli, giving him more information than that contained in the written judgment and sentence, thereby presenting his oral explanation as more complete and, therefore, more accurate. And third, defense counsel did not know the correct community custody range; in light of counsel's lack of knowledge, it appears questionable whether he had actually reviewed this community custody information with Miceli. Therefore, we must consider Miceli's guilty pleas to have been involuntary.
An involuntary plea produces a manifest injustice. State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001). In such circumstances, a defendant ordinarily may choose whether to withdraw the plea or to seek specific enforcement of the plea bargain. Miller, 110 Wn.2d at 536. A plea bargain may be enforceable, even though it conflicts with a statutory requirement. Id. at 532.
The problem here is that the plea agreement did not offer a 36 to 48-month term of community custody. Rather, it accurately, if somewhat confusingly, recited the law. Thus, it is the court's advice, not a plea bargain, that Miceli seeks to enforce. The court, however, is not a party to a plea agreement. See State v. Wakefield, 130 Wn.2d 464, 474, 925 P.2d 183 (1996). Because there is no plea agreement to enforce, Miceli's only option is to withdraw his guilty pleas.
III. SSOSA Revocation
In a statement of additional grounds for review (SAG), Miceli asserts that the trial court erred in revoking his SSOSA. He contends that his lack of permanent employment and inability to pay for treatment were insufficient grounds for revocation. Because he may elect not to withdraw his pleas, we will address this claim.
We review a trial court's decision to revoke a SSOSA for an abuse of discretion. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A trial court may revoke a SSOSA at any time if it is reasonably satisfied that the offender in question violated a condition of the sentence. RCW 9.94A.670(10)(a) (formerly RCW 9.94A.120(8)(a)(vi)(A) (1996)); State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999).
It is uncontroverted that Miceli violated conditions of his SSOSA. He seems to argue that some requirements are more important than others and, thus, revocation should not be based on violation of relatively minor conditions. This argument fails. The trial court imposed all SSOSA conditions for a purpose, and violation of any one condition is a tenable basis for revocation.
Accordingly, we affirm the trial court's decision to revoke Miceli's SSOSA. But we remand to the trial court for further proceedings to provide Miceli an opportunity to withdraw his guilty pleas.
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.
We concur:
PENOYAR, J.
QUINN-BRINTNALL, J.