Opinion
No. 31693-5-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-04698-5. Judgment or order under review. Date filed: 03/29/2004. Judge signing: Hon. Stephanie A. Arend.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Dominick Steven Nello appeals the trial court's denial of his motion to withdraw his guilty plea to charges of unlawful delivery of a controlled substance, unlawful possession of a controlled substance, and bail jumping. Nello argues that the trial court erred because (1) the court misinformed him about the consequences of his guilty plea under the Drug Offender Sentencing Alternative (DOSA); (2) his plea was involuntary due to his emotional and physical condition; and (3) the court failed to hold a competency hearing to determine if he was able to enter a knowing and voluntary plea. In his Statement of Additional Grounds (SAG), Nello asserts that (1) he received ineffective assistance of counsel; and (2) the court erred by failing to conduct a competency hearing in order to consider a letter from his physician regarding his methadone treatment. Because the trial court misinformed Nello about the consequences of his guilty plea, we reverse and remand.
RAP 10.10.
FACTS
On October 11, 2002, the Pierce County prosecutor's office charged Dominick Nello with unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver. On May 5, 2003, the State filed an amended information, adding a school zone enhancement to both counts. In a second amended information, the State added a count of bail jumping and removed the school zone enhancement from the unlawful possession charge. The State agreed to recommend a DOSA in exchange for a guilty plea.
On September 12, 2003, Nello pleaded guilty to: (1) unlawful delivery of a controlled substance with a school zone enhancement, Count I; (2) unlawful possession of a controlled substance with intent to deliver, Count II; and (3) bail jumping, Count III. The statement of defendant on plea of guilty indicated that the standard range sentence was 50-58 months for Count I, 26-34 months for Count II, and 4-12 months for Count III. The plea form specified the prosecutor's sentencing recommendation as 'DOSA 27/27.' Clerk's Papers (CP) at 11.
Nello began the plea colloquy with the court by acknowledging that he had read, understood, and had no questions about the statement of defendant on plea of guilty. When the court went over the constitutional rights enumerated on the plea form, Nello stated that he understood the rights he was waiving with his guilty plea. But his inability to fully understand the proceedings was exhibited several times during the plea colloquy.
When the court asked Nello if he understood the elements of the crime, he asked, 'What was that?' Report of Proceedings (RP) at 5. And when the court asked, '[D]o you understand the sentence that goes with that crime?' Nello's answer was, 'If what?' RP at 6.
Despite this, Nello indicated that he understood the crimes charged in the first two counts of the second amended information and the sentence that would be imposed as a result of each charge. But Nello expressed some confusion when the court began to address Count III, the bail jumping charge. He stated that he did not realize he had jumped bail and argued that the charge was 'an error by the attorneys.' RP at 9-10. When the court asked Nello if he wanted to agree to the deal, Nello responded by asking his attorney, 'We're saying yes, right?' RP at 10. When Nello's attorney and the court responded that the decision was up to him, Nello stated, 'Yeah, I suppose technically it did happen.' RP at 11.
The court then asked Nello if he understood how the DOSA program worked and Nello responded, 'Not really.' RP at 11. He indicated that he had gone over it with his attorney, but he had since 'lost it.' RP at 11. The court explained:
50 to 58 months. You take half of that and that's the midpoint of the standard range. That's what you get sentenced to. You spend half of that in the Department of Corrections in physical custody in treatment. Then, if you comply with the conditions, you get out and you're in treatment out of physical custody, but still technically in a custody status, and then you are still in treatment. Okay. And then if you don't comply with the conditions of your treatment, Department of Corrections can bring you back and put you back in prison.
RP at 12 (emphasis added). Nello stated that he understood the court's explanation. But when the court asked him if he wanted treatment, Nello initially responded, 'What?' RP at 12. When the court repeated the question, Nello answered, 'That's what I've been doing, I've been trying to do what's right.' RP at 13. In response to further inquiries from the court, Nello said he understood that his sentence included community custody placement and understood what it meant. Nello pleaded guilty to each of the charges against him and the court found that Nello made the plea freely and voluntarily.
At the conclusion of the hearing, Nello indicated that he was particularly emotional given that his wife was ill and his mother was on life support. The court allowed Nello to remain out of custody pending sentencing so that he could take care of his wife.
Sentencing took place on September 16, 2003. At the sentencing hearing, Nello told the court that his wife had suffered a grand mal seizure and he had spent most of his release with her in the hospital. Defense counsel presented the court with a record of Nello's methadone treatment along with the doctor's recommendation of how he should be weaned off the drug. The parties agreed to forward the information to the jail.
The court followed the joint sentencing recommendation and imposed a DOSA sentence of 54 months, with 27 months of total confinement on Count I, 15 months for Count II and 4 months for Count III, to be served concurrently. The court also imposed equal terms of community custody on each count to complete the DOSA sentence. Nello did not object or question the court at the sentencing hearing.
On December 5, 2003, Nello filed a pro se motion to modify judgment and sentence under CrR 4.2(f) and requested withdrawal of his guilty plea. Nello alleged he was unaware that his bail jumping charge made him ineligible to serve his confinement at a minimum security facility.
Nello further alleged that his plea was involuntary because he misunderstood his sentence. He stated that the length and nature of his DOSA sentence were never fully explained to him and that the sentence he received in exchange for his plea did not comport with his counsel's explanation. Nello argued that he was coerced and threatened to plead guilty by his attorney, who had allegedly told him, '[i]f you don't plead guilty today you will go to jail and get five years on monday [sic].' CP at 33.
Nello also alleged that his lack of glasses and a hearing impairment prevented him from fully understanding his plea. Further, he asserted that at his plea hearing he was mentally impaired due to the influence of methadone and heroin. Along with his motion, Nello submitted an exhibit showing that ten days after he pleaded guilty, he tested positive for codeine, morphine, hydromorphone, and methamphetamine.
The court found that Nello's motion established a basis for further consideration and ordered the State to respond. The State responded that Nello failed to offer proof of being under the influence of drugs at the time of his plea and that he submitted no affidavits from experts regarding the effect any drugs could have had on his ability to understand the proceedings. The court denied Nello's motion 'based upon the written materials submitted.' CP at 98. Nello filed this timely appeal.
ANALYSIS
Nello contends that the trial court erred in denying his motion to withdraw his guilty plea because he was misinformed about the consequences of pleading guilty.
The trial court's decision on a post-judgment motion to withdraw a guilty plea is governed by CrR 7.8 and we review it for abuse of discretion. State v. Olivera-Avila, 89 Wn. App. 313, 317, 949 P.2d 824 (1997). The court abuses its discretion when it adopts a position that is manifestly unreasonable or based on untenable grounds or reasons. State v. Valdobinos, 122 Wn.2d 270, 279, 858 P.2d 199 (1993) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A guilty plea must be knowing, intelligent, and voluntary to satisfy federal and state constitutional due process requirements. U.S. Const. amends. V, XIV; Wash. Const. art. I, sec. 3; Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); In re PRP of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987). We determine whether a plea is knowing, intelligent, and voluntary by examining the totality of the circumstances. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). When a defendant has read and signed a plea statement, it creates a strong presumption that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
Under CrR 4.2(f), a defendant may withdraw a plea of guilty 'whenever it appears that the withdrawal is necessary to correct a manifest injustice.' Nello bears the burden of showing manifest injustice, which is injustice that is obvious and overt. CrR 4.2(f); State v. Ross, 129 Wn.2d 279, 283, 916 P.2d 405 (1996).
Nonexclusive criteria as to what constitutes manifest injustice include (1) a denial of effective counsel; (2) a defendant's failure to ratify the plea; (3) an involuntary plea; and (4) a prosecutor's breach of the plea agreement. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).
CrR 4.2(d) requires the court to determine that the plea was 'made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.' In order for a guilty plea to be deemed voluntary, a defendant must be informed of all direct consequences of his plea. Ross, 129 Wn.2d at 284. A guilty plea is involuntary if there is a misunderstanding about the standard range sentence. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591, (2001). A guilty plea is only valid if the defendant understands the sentencing consequences of the agreement. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988).
Here, Nello entered a guilty plea in exchange for the State's DOSA recommendation. At the plea hearing, Nello expressed confusion about the DOSA and, in response, the court inadvertently told him that his entire sentence, including treatment, would be set at the midpoint of the standard range. Thus, under the court's explanation, Nello would receive a total sentence of half of the midpoint, or 27 months, instead of 27 months in custody and 27 months out of custody in treatment. The court's explanation was technically incorrect, or at least ambiguous, and could not reasonably be expected to alleviate Nello's confusion.
The State argues that Nello was properly informed of the duration of his sentence under the DOSA because he read and signed the plea agreement, which provided that the State would make a 'DOSA 27/27' recommendation. CP at 11. The State's argument is not persuasive. To a party unfamiliar with the DOSA, a cryptic notation in the plea paperwork does not provide adequate information about the terms of the sentence. After reading and signing the plea agreement, Nello expressed confusion about the DOSA to the court, and he was entitled to an accurate explanation of his sentence before the entry of his guilty plea. Thus, we hold that Nello is entitled to withdraw his plea and we remand for further proceedings consistent with this opinion.
Because we reverse the denial of Nello's motion to withdraw his plea and remand this matter to the trial court, we do not address his remaining assignments of error.
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, P.J. and HUNT, J., concur.