Opinion
No. 33679-1-II.
November 21, 2006.
The unpublished opinion in this cause was withdrawn by order of the Court of Appeals dated July 17, 2007.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Tacoma, WA.
Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, Tacoma, WA.
As part of a plea bargain to avoid more serious charges, Randall Charles Nelson pleaded guilty to attempted delivery of Clonazepam, agreeing to an exceptional sentence of 30 months. He then appealed, contending he involuntarily pleaded guilty because the trial court did not tell him he had a right to a jury determination of any aggravating facts supporting the exceptional sentence. He sought to withdraw his guilty plea.
Our commissioner affirmed his conviction and sentence. Nelson moved to modify. See RAP 17.7. We granted the motion to modify and now remand to allow Nelson to withdraw his guilty plea.
Nelson pleaded guilty to a class C felony. See RCW 69.50.210(b)(9), .401(2)(d), .407. Class C felonies have a maximum sentence of five years (60 months). RCW 9A.20.021(1)(c). Because his only prior drug conviction was for possession, RCW 69.50.408 did not increase his maximumsentence. His guilty plea statement and his judgment both incorrectly state his maximum sentence as 10 years. No one corrected this error during his guilty plea hearing.
Our Supreme Court recently set forth the remedy required here in State v. Mendoza, 157 Wn.2d 582, 141 P.3d 49 (2006). According to Mendoza, when a defendant is misinformed about his potential sentence, even when the true potential sentence is smaller, the defendant's guilty plea is involuntaryand it may be withdrawn. 157 Wn.2d 582. Because no one told Nelson his correct maximum sentence, he did not waive. Mendoza, 157 Wn.2d at 584, 591-92 (defendant waiver involuntariness claim when informed of error before sentencing but neither objects nor moves to withdraw plea). Thus, we remand to allow Nelson to withdraw his guilty plea.
The Supreme Court issued its opinion after briefing on the motion to modify had been filed.
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 VAN DEREN, J., concur.