Opinion
No. 60725-1-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-09218-6, Andrea A. Darvas, J., entered October 1, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
A plea agreement is a contract and conditions contained in attached documents incorporated by reference in a defendant's plea agreement are part and parcel of that agreement. Moreover, a court may rely on the defendant's assurances that he reviewed the form with his attorney and understood the various elements
of the plea. Here, the defendant not only signed the plea agreement, but initialed the portion that referenced the attached documents. The trial court is affirmed.
FACTS
Victor Nunez was charged with one count of indecent liberties. The victim, her mother, and two adult brothers were taking turns sleeping so someone would always be awake while their father was in the intensive care unit (ICU). The victim was in the ICU waiting area, which is a large room with several cubicle areas containing cots. The victim went into one of the cubicles at about 3:00 a.m. At approximately 5:00 a.m., she awoke to Nunez touching her front genital area, over her clothes. Nunez quickly left when the victim awoke. The victim immediately reported the incident to security and identified Nunez as having been in the waiting room the previous two days with his family. She gave a description to hospital security personnel who then located Nunez. The victim identified Nunez in the security area as the person who had sexually assaulted her. Nunez was arrested and charged with indecent liberties.
At the time of his arrest, a voyeurism charge was pending against Nunez. Nunez agreed to plead guilty to the indecent liberties charge. The written "Statement of Defendant on Plea of Guilty" form is written in both English and Spanish, and was signed by Nunez. Paragraph (g) of the form contained the following handwritten prosecutor's recommendation:
36 months confinement, community custody 36-48 months, restitution TBD, court costs; $500 VPA, Recoupment Counsel, $100 DNA fee. The State contacted the prosecutor in Yakima re the defendant's pending voyeurism case, who indicated a willingness to request that the sentences run concurrent should the defendant plead as charged.
The following preprinted language in both English and Spanish appeared with adjacent boxes both of which were hand checked:
The prosecutor will make the recommendation stated in the plea Agreement and State's Sentence Recommendation, which are incorporated by reference.
Further, Nunez initialed just below the checked Spanish translation of the paragraph indicating that the State's sentence recommendation is incorporated by reference.
Before sentencing, Nunez moved to withdraw his plea on the grounds that he was unaware the crime of indecent liberties was a felony. When the judge ruled against him, he tried to withdraw his plea, arguing that he was unaware that his guilty plea could lead to his deportation. The trial court pointed out that the plea agreement in fact contained language about such a risk and denied his motion.
At sentencing, the court adopted the State's recommendations. Nunez now appeals alleging he was denied due process because the State exceeded the agreed upon recommendations.
ANALYSIS
Nunez claims the State breached the plea agreement when it recommended two sentencing conditions allegedly exceeding those agreed upon — a sexual deviancy evaluation and any resulting treatment recommendations and no contact with the victim. Neither of these claims, which Nunez raises for the first time on appeal, have any merit. The plea agreement explicitly incorporated the attached State's sentence recommendation.
We may consider an argument for the first time on appeal where the appellant raises a claim of "manifest error affecting a constitutional right." A plea entered without knowledge of the direct sentencing consequences is a manifest injustice. As the Supreme Court observed in State v. Codiga, "[k]nowledge of the direct consequences of the plea can be satisfied by the plea documents." Due process does not require that the court orally confirm a defendant's understanding of the various elements of a plea if the court relies on the defendant's plea form, its attached documents and the defendant's assurances that he reviewed the form with his attorney and understood it.
RAP 2.5(a)(3).
In re Pers. Restraint of Murillo, 134 Wn. App. 521, 530, 142 P.3d 615 (2006).
162 Wn.2d 912, 923, 175 P.3d 1082 (2008) (citing In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 266, 36 P.3d 1005 (2001)).
Codiga, 162 Wn.2d at 924.
A plea is presumed to have been properly entered where the defendant admits to reading, understanding, and signing a proper plea statement. Washington courts have long expressed a strong preference for the enforcement of plea agreements. Thus, the defendant must show manifest injustice sufficient to warrant withdrawal of a plea agreement before withdrawal is permissible. Here, no such showing has been made.
State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
Codiga, 162 Wn.2d at 929.
Codiga, 162 Wn.2d at 929-30.
Nunez signed and submitted the "Statement of Defendant on Plea of Guilty." Although the sentencing terms he protests were not handwritten into the section describing the majority of the State's recommendation, the typewritten portion of the recommendation paragraph explicitly incorporated "the recommendation stated in the plea Agreement and State's Sentence Recommendation." The box indicating that this statement applies is checked in both the English and Spanish portions of the document. Furthermore, the plea agreement and the State's sentence recommendation are both attached to the plea form.
The State's sentence recommendation form specifically provided both that Nunez undergo a sexual deviancy evaluation with a state-certified treatment provider as a condition of community custody and that there be a no contact order with the victim. After communicating the plea conditions to the court, the court queried whether the prosecution was recommending treatment if the evaluation so provided. The court indicated that the basis of its inquiry lay in the presentence investigation fact sheet which expressed serious concerns regarding Nunez. The prosecutor responded that it was her intention to include treatment and the omission in the form was inadvertent. The prosecutor further remarked that she would "hate to know there is a sexual deviancy that needs to be treated and leave it at that."
The court sought input from defense counsel who requested an opportunity to see the presentence report. After reviewing the report, defense counsel made no objection to treatment. Rather he argued for a lower range sentence and stated that the defendant "has been working on getting treatment."
In evaluating whether the State has explicitly or implicitly breached a plea agreement, we review the entire sentencing proceeding and apply an objective standard. We find no such breach here. The court's comments regarding its concern about Nunez getting treatment clearly indicate its proclivity to rule in favor of such treatment. Indeed when the prosecutor responded that treatment was in fact contemplated, the court indicated that it expected such treatment to be required if the evaluation so recommended. Nunez did not object to any of this at the hearing. Furthermore, his argument for a reduced sentence because he was currently seeking treatment is indicative of his consent to future treatment if so ordered. Viewing the entire proceedings, it is clear that treatment was contemplated by the parties.
State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999).
The judgment and sentence is affirmed.