Opinion
No. 57456-6-I.
April 2, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-09794-7, Sharon S. Armstrong, J., entered December 15, 2005.
Affirmed by unpublished per curiam opinion.
Ranae Naitoko seeks to withdraw his guilty plea due to ineffective assistance of counsel, lack of competency preventing a knowing, intelligent and voluntary plea, and misinformation as to his maximum term. Alternatively, he argues that his sentence should be recalculated because his offender score improperly included a juvenile adjudication. Finding no error, we affirm.
Facts
Ranae Naitoko was charged with one count of first-degree robbery, including a firearm enhancement, and one count of first-degree assault. Naitoko was also facing charges in two other King County cases: 1) assault and unlawful possession of a firearm and 2) a felony drug charge. The assault case proceeded to trial and resulted in a conviction and a sentence of 30 years confinement. After this trial, the State and Naitoko entered into a plea agreement on his robbery charges. The State agreed to dismiss the first-degree assault charge, the unlawful possession of a firearm charge, the firearm enhancement and the pending felony drug charge. In exchange, Naitoko agreed to plead guilty to one count of first-degree robbery, and also agreed to the prosecutor's understanding of his criminal history and offender score, which included a juvenile adjudication for second-degree robbery.
On July 25, 2005, Naitoko signed the "Statement of Defendant on Plea of Guilty" prepared by his attorney and required by Criminal Rule (CrR) 4.2(g), indicating that he acknowledged the nature of the crime charged, the maximum sentence, and the consequences of entering the plea. The persistent offender paragraph was crossed out and initialed by Naitoko. It reads:
The crime of ___ is a most serious offense as defined by RCW 9.94A.030, and if I have at least two prior convictions on separate occasions whether in this state, in federal court, or elsewhere, of most serious crimes, I may be found to be a Persistent Offender. If I am found to be a Persistent Offender, the Court must impose the mandatory sentence of life imprisonment without the possibility of early release of any kind. RCW 9.94A.570. [If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.]
During his plea colloquy, Naitoko answered that his attorney explained why this paragraph did not apply to him. The guilty plea form also read
[t]he judge does not have to follow anyone's recommendation as to sentence. The judge must impose a sentence within the standard range unless the judge finds substantial and compelling reasons not to do so. If the judge goes outside the standard range, either I or the State can appeal that sentence.
Later in the plea, Naitoko wrote, "I give the court permission to read the Certification for Determination of Probable Cause to make the necessary factual determination that a reasonable jury would find me guilty of Robbery in the First Degree." Finally, the plea agreement showed that the maximum sentence for first degree robbery was life imprisonment with a fine of $50,000.00, while the standard range was 108 to 144 months, with no available enhancement.
During the plea colloquy, Naitoko was informed of the maximum sentence of life imprisonment and the standard range sentence. When asked whether the State made any threats to induce him to sign the guilty plea, Naitoko responded, "[t]hree strikes." The prosecutor responded that Naitoko was not facing a "third strike" regardless of whether he pled guilty or went to trial.
Before sentencing, on December 15, 2005, Naitoko obtained new counsel and moved to withdraw his guilty plea. He claimed that his plea was not made knowingly, voluntarily and intelligently due to ineffective assistance of counsel — i.e. his attorney did not review discovery with him. He also claimed his plea was invalid because, as a traumatic response to learning that he had been sentenced to 30 years imprisonment on his assault charges, he was hearing voices at the time he made the agreement. During this hearing, Naitoko's former counsel testified that he spent considerable time reviewing the facts of the case, discovery and the sentencing consequences of the guilty plea. He stated "Mr. Naitoko was insistent on reviewing the discovery." The trial court found that Naitoko was not credible, and observed that at the plea hearing, he "was focused and engaged in the entire process." Consequently, the trial court denied Naitoko's motion to withdraw his plea and sentenced him to 108 months, to run concurrently with his 30-year sentence on his assault convictions. Naitoko timely appeals.
ANALYSIS
1) Incorrect Plea Advice
Naitoko claims that his attorney did not provide effective assistance in helping Naitoko make an informed decision as to whether or not to plead guilty. He argues that because the "most serious offense" portion of his CrR 4.2 guilty plea form was crossed out, he was indirectly incorrectly informed that his first degree robbery was not a "most serious offense." He asserts that when the prosecutor told him that his guilty plea to first degree robbery would not count as his "third strike," the prosecutor should have told him that it did at least count as a "most serious offense." Finally, he believes that he was incorrectly told that his guilty plea would not count as a second strike.
Due process requires that a defendant's guilty plea be knowing, voluntary and intelligent. In re Personal Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). CrR 4.2(f) requires a trial court to permit the withdrawal of a guilty plea if the defendant can show that a "manifest injustice" has occurred. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001); CrR 4.2(f). "Manifest injustice" is defined as "obvious, directly observable, overt, not obscure." State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996) (citing State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991)). A defendant wishing to withdraw a guilty plea bears the burden of showing that a manifest injustice exists. Ross, 129 Wn.2d at 283-84. Manifest injustice occurs if trial counsel was ineffective, or if a plea is involuntary. State v. Taylor, 83 Wn.2d 594, 596-97, 521 P.2d 699 (1974). Under CrR 4.2(d), a plea is involuntary if the defendant did not understand the consequences of pleading guilty. CrR 4.2 (d); State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980). However, "[a] defendant need not be informed of all possible consequences of a plea but rather only direct consequences." Ross, 129 Wn.2d at 284. Direct consequences are distinguished from collateral consequences by "whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. (citing Barton, 93 Wn.2d at 305). We review a denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001).
Naitoko argues that he has suffered a manifest injustice because, due to ineffective trial counsel, he did not understand the consequences of his plea. In reviewing his claim of ineffective assistance of counsel, we look to whether "(1) defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant." State v. Stowe, 71 Wn. App. 182, 186, 858 P.2d 267 (1993) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). "The first prong of the Strickland test is satisfied if counsel's performance falls below an objective standard of reasonableness in light of all surrounding circumstances." Stowe, 71 Wn. App. at 186. Even if counsel's performance is deemed deficient, the defendant must also show prejudice: a reasonable probability that, but for counsel's unprofessional errors, defendant would not have pleaded guilty and would have insisted on going to trial. Id. (citing Hill v. Lockhart, 474 U.S. at 57).
The Persistent Offender Accountability Act (POAA) was passed as Initiative 593, and amended sections of the Sentencing Reform Act of 1981. RCW 9.94A. Under the POAA, a conviction for a "most serious offense" will count as the second strike only if the offense was committed after the conviction for the first strike. RCW 9.94A.030(33)(a). Here, Naitoko committed the first degree robbery on November 29, 2003. He was convicted on unrelated assault charges on July 21, 2005. Accordingly, while Naitoko's guilty plea for first degree robbery did constitute a "most serious offense," it does not count as his "second strike," because he committed the robbery before he was convicted for the assaults. RCW 9.94A.030(33)(a).
The only part of the record that explains why the persistent offender paragraph was crossed out was when the prosecutor asked Naitoko if his attorney explained to him why it did not apply to him. Naitoko replied "yes." In his Motion to Withdraw Guilty Plea, Naitoko's attorney acknowledged Naitoko's claim that "he did not understand that he would be [sic] have a 'second strike,'" but then points out that under RCW 9.94A.030(32), "[t]he plea in this case did not affect the number of convictions." In other words, Naitoko was correctly informed that pleading guilty to first degree robbery would not count as his second strike, or as his third strike.
Naitoko claims that nonetheless, he was still misinformed as to the POAA, because he was not told that his plea would constitute a "most serious offense." He argues that if his assault convictions are overturned on appeal, his first degree robbery will remain on his record as a strike because it is a most serious offense. RCW 9.94A.030(29)(a); RCW 9A.56.200(2). While this is true, this is not a direct consequence of which Naitoko had to be informed — it does not represent "a definite, immediate and largely automatic effect on the range of the defendant's punishment." Ross, 129 Wn.2d at 284. If Naitoko's first degree assault convictions are overturned, and if he commits another most serious offense for which he is convicted, the status of his first degree robbery conviction as a strike will affect the sentence for that conviction, not the sentence at hand. RCW 9.94A.030(33)(a). Further, Naitoko's defense attorney was not incorrect when he crossed out the persistent offender paragraph and explained why it did not apply to Naitoko. In order for the first degree robbery to count towards persistent offender status, and for Naitoko to be found a persistent offender, he would have to 1) appeal his assault charges; 2) succeed on that appeal; 3) commit another most serious offense; 4) be convicted of that offense; and 5) commit and be convicted of a third most serious offense. RCW 9.94A.030(33)(a) (only requiring a conviction for a "most serious offense" to count as the second strike if the offense was committed after the conviction for the first strike). First degree robbery's status as a "most serious offense" will only be of consequence to Naitoko's persistent offender status under these attenuated possibilities; it is not a direct consequence of the plea. Naitoko's trial counsel did not fall below an objective standard of reasonableness when he failed to inform Naitoko that first degree robbery was a "most serious offense," but correctly advised him that it would not count as a "second strike."
Absent error, we need not consider the prejudice prong. But Naitoko does not meet his burden of showing prejudice. While he did mention "three strikes" during his plea colloquy, he does not show a reasonable probability that he would not have pleaded guilty, and he would have insisted on going to trial had he known that first degree robbery had the very remote potential to count as a strike. The trial court did not abuse its discretion when it denied Naitoko's motion to withdraw his guilty plea.
2) Misinformation on Maximum Term
Naitoko argues that his guilty plea was invalid because it was based on incorrect information about his possible maximum term. He claims that because the prosecutor agreed to drop his firearm enhancement, his sentence could only be as high as the top end of the standard range — the maximum sentence of life imprisonment was not possible. Further, in his reply brief, he argues that he was misinformed because the guilty plea form indicated that the judge must impose a sentence within the standard range unless he found substantial and compelling reasons not to do so. Naitoko contends that this violates Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004) (finding that facts supporting an exceptional sentence must by found by a jury, unless they are stipulated to by the defendant, or a prior conviction). The State argues that Naitoko was not misinformed as to his possible maximum sentence because he still could have faced the maximum term — that the high end of the standard range was not itself the maximum term, and that even the high end of the range could change if additional criminal history was found prior to sentencing.
The State points out that this argument was raised for the first time on appeal. Although as a general rule under RAP 2.5(a) issues cannot be raised for the first time on appeal, RAP 2.5(a) does not preclude review of an issue involving a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 684, 757 P.2d 492 (1988). Due process requires that a defendant's guilty plea be made knowingly, voluntarily, and intelligently. In re Personal Restraint of Isadore, 151 Wn.2d at 297. A "guilty plea is not knowingly made when it is based on misinformation of sentencing consequences." Id. at 298. This Court has recently reviewed a misinformed maximum sentence argument similar to Naitoko's, finding it to be a "manifest error affecting a constitutional right." State v. Kennar, 135 Wn. App. 68, 143 P.3d 326 (2006). Accordingly, we elect to review the merits of Naitoko's claim.
In Kennar, the defendant made the same argument as Naitoko — because he was informed of both his standard sentence range and his maximum range, his guilty plea was invalid because it was based on the erroneous belief that he might face a greater sentencing consequence than being sentenced at the high end of the applicable standard range. Kennar, 135 Wn. App. at 73. There, the defendant maintained that in light of Blakely, the top end of his sentence range was his "maximum sentence." This Court noted that Blakely applies to sentencing, during which the trial court is making the final determination that the information on which it bases the defendant's offender score and standard sentence range is correct. Kennar, 135 Wn. App. at 75. In contrast, at a plea colloquy, the trial court is "merely operating on the basis of the information given to it by the parties" — it is estimating the standard range and maximum sentence, subject to the discovery of any additional criminal history or requirement of law. Id.
After an inquiry into the Supreme Court's intent behind CrR 4.2, this Court found that "CrR 4.2 requires the trial court to inform a defendant of both the applicable standard sentence range and the maximum sentence for the charged offense as determined by the legislature . . . Blakely does not compel a change in this practice." Id. at 75. While Naitoko argues that the Kennar court's distinction between sentencing and plea agreements is meaningless, and it's analysis of the drafter's intent behind CrR 4.2 is fallacious, we disagree. The conclusions in Kennar are sound, and control this case. CrR 4.2 requires that a guilty plea form notify the defendant of both his possible standard sentence range and his possible maximum sentence. Rather than being misinformed, Naitoko was fully informed of the potential consequences of his guilty plea.
Recently, in Mendoza, the Washington State Supreme Court held:
that where a guilty plea is based on misinformation regarding the direct consequences of the plea, including a miscalculated offender score resulting in a lower standard range than anticipated by the parties when negotiating the plea, the defendant may withdraw the plea based on involuntariness.
State v. Mendoza, 157 Wn.2d 582, 584, 141 P.3d 49 (2006). There was no miscalculation here. The parties simply disagree as to what is the "maximum sentence."
Finally, Naitoko's guilty plea form stated that the judge could exercise his discretion to sentence outside the standard range if he found substantial and compelling reasons to do so. For the first time in his reply brief, Naitoko argues that this clause is incorrect under Blakely. As noted above, RAP 2.5(a) precludes issues from being raised for the first time on appeal, unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); Scott, 110 Wn.2d at 684. Since a Blakely error implicates the Sixth Amendment right to a jury trial, a constitutional right, it may be considered for the first time on appeal. State v. O'Connell, No. 23563-7 (February 6, 2007).
However, Naitoko's claim fails because "the Blakely Court also acknowledged that a jury need not find facts supporting an exceptional sentence when a defendant pleads guilty and stipulates to the relevant facts":
But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.
State v. Suleiman, 158 Wn.2d 280, 289, 143 P.3d 795 (2006) (emphasis added). Naitoko ignores the Blakely exception for facts stipulated to by the defendant. In his Alford plea Naitoko wrote, "I give the court permission to read the Certification for Determination of Probable Cause to make the necessary factual determination that a reasonable jury would find me guilty of Robbery in the First Degree." When he entered his guilty plea, Naitoko stipulated to the facts in the Determination of Probable Cause. Had the trial court used these facts to find substantial and compelling reasons to sentence Naitoko outside of the standard range, it would have been within the Blakely exception for facts stipulated to by the defendant. Under Blakely, the judge could use the facts admitted by Naitoko as a basis for his compelling reasons. Naitoko was not misinformed when he was told that the judge could sentence Naitoko beyond the standard range if he found compelling reasons to do so.
We acknowledge that while Naitoko did not specifically stipulate to these facts for sentencing purposes, neither did he specifically state that they were not to provide the legal basis for an exceptional sentence.
3) Naitoko's Mental State
Naitoko argues that his plea was not voluntary because of his mental state at the time of the plea. He complains that the guilty plea and his attorney's explanation were "mumbo jumbo." He also claims that the time he signed the guilty plea, he was hearing voices that were telling him to do things that he did not want to do. The trial court found that during his plea colloquy, Naitoko "never manifested any signs of distress," and that the transcripts of the proceedings indicate that "Mr. Naitoko was focused and engaged in the entire process."
A defendant's claim that he was not competent to enter his plea is equivalent to claiming the plea was not voluntary. State v. Osborne, 102 Wn.2d 87, 98, 684 P.2d 683 (1984). Whether a person is competent is a mixed question of law and fact, to which we independently apply the law to the facts. State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001) (citing Clarke v. Shoreline Sch. Dist., 106 Wn.2d 102, 111, 720 P.2d 793 (1986). However, "[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). "[W]here a defendant moves to withdraw [a] guilty plea with evidence the defendant was incompetent when the plea was made, the trial court must either grant the motion to withdraw [the] guilty plea or convene a formal competency hearing required by RCW 10.77.060." Marshall, 144 Wn.2d at 281. "This competency hearing is mandatory whenever a legitimate question of competency arises." Id. at 279 (emphasis added). In Marshall, substantial evidence called the defendant's competency into question. At Marshall's hearing on his motion to withdraw his guilty plea, four defense experts testified to unusual amounts of brain abnormality in MRI scans, average-to-low, or lowest, percentile scores on various brain-functioning tests, and diagnosis as a paranoid schizophrenic by the a jail health clinic, for which he was treated by medications. Id. at 270-72. Only one expert for the State, who acknowledged that he needed to spend more time with the defendant, suggested that the defendant was competent to enter his guilty plea.
Here, the record does not show substantial evidence legitimately calling Naitoko's competency into question. No experts testified regarding competency tests. Defense counsel testified that he had gone through discovery with Naitoko, and the consequences of his plea, and Naitoko intelligently and voluntarily made his plea. The trial court found Naitoko's testimony not credible — this credibility determination is not subject to appellate review. Naitoko's competency was not legitimately called into question; his guilty plea was not involuntary. The trial court did not abuse its discretion when it denied Naitoko's motion to withdraw his guilty plea.
4) Juvenile Adjudication
Naitoko argues that if he is not allowed to withdraw his plea, he is entitled to re-sentencing because the trial court included his prior juvenile adjudication for second-degree robbery in his offender score. He argues that this violates Blakely's requirement that all facts used in sentencing be determined by a jury, because juveniles do not have the right to a jury trial. The State points to two recent appellate decisions that reject this same argument. See State v. Weber, 127 Wn. App. 879, 888, 112 P.3d 1287 (2005), aff'd, 159 Wn.2d 252 (2006); State v. Mounts, 130 Wn. App. 219, 122 P.3d 745 (2005) review pending, 2006 Wash. LEXIS 639 (Wash. Sept. 6, 2006).
Naitoko contends that even if he did agree to the inclusion of his juvenile adjudication, it is not a valid waiver of his rights to a jury trial under Blakely. As noted above, Blakely clarified the rule set forth in Apprendi, finding that facts supporting an exceptional sentence must by found by a jury, unless they are stipulated to by the defendant, or a prior conviction. Blakely, 542 U.S. at 296 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).
Naitoko's argument has been recently rejected by the Washington State Supreme Court in Weber, 159 Wn.2d at 265. While the Weber court recognized that some jurisdictions have held the juvenile adjudications do not fall within Apprendi's prior conviction exception (See, e.g., United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001); State v. Harris, 339 Or. 157, 118 P.3d 236, 244-46 (Or. 2005)), it rested its decision on the majority of jurisdictions that have held that juvenile adjudications fall under the prior conviction exception. Weber, 159 Wn.2d at 265.
In the absence of authoritative instruction from the United States Supreme Court that juvenile adjudications are not prior convictions, and in light of the aforementioned strong state indicators, we hold that juvenile adjudications are convictions for the purposes of Apprendi's prior conviction exception. Therefore, we affirm the Court of Appeals determination that Weber's due process and jury trial rights are not violated by including Weber's juvenile adjudication in his offender score.
Weber, 159 Wn.2d at 264-65 (emphasis added).
Accordingly, Naitoko's prior juvenile adjudications fall under the "prior conviction" exception in Apprendi and are not facts that a jury must find under Blakely. Naitoko provides nothing more than the arguments already rejected.
The trial court did not err when it included his juvenile adjudication in his offender score. We affirm his sentence.
5) Statement of Additional Grounds
In his Statement of Additional Grounds, Naitoko makes the same ineffective assistance of counsel claim already discussed above. There is no need to repeat our rejection of that argument.
We affirm.