Opinion
No. 35041-6-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-00291-1, Stephen M. Warning, J., entered June 8, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Hunt, JJ.
This is the second appeal from Luis Rueda-Nacaspaca's guilty plea for unlawful delivery of a controlled substance, methamphetamine. We remanded to the trial court because Rueda-Nacaspaca's sentence was higher than that authorized by statute. On remand, the trial court gave Rueda-Nacaspaca the opportunity to withdraw his plea, but he declined, and the trial court accordingly resentenced him for the maximum allowable time. He now argues that his counsel was ineffective when advising him about the consequences of the plea. We affirm.
The State charged Rueda-Nacaspaca with six counts of delivering a controlled substance in violation of RCW 69.50.401(1). In counts one through three, the State charged a school zone enhancement. Rueda-Nacaspaca entered a plea agreement in which the State agreed to drop the enhancements and counts four through six. In exchange, Rueda-Nacaspaca agreed to serve a maximum sentence of 60 months and 9 to 12 months community custody for counts one through three.
Rueda-Nacaspaca submitted a personal restraint petition (PRP) to this court to appeal his sentence. This court held that the maximum sentence for each count was 60 months total, including community custody, and, therefore, remanded for resentencing.
At resentencing, the trial court asked Rueda-Nacaspaca whether he wanted to withdraw his plea agreement or delete the term of community custody and serve the 60 months confinement. Rueda-Nacaspaca said he wanted a lower sentence, but said he did not want to withdraw his guilty plea and would like to go back to prison to complete his sentence. Accordingly, the trial court modified the judgment and sentence to delete the community custody.
ANALYSIS
Effective Assistance of Counsel
Rueda-Nacaspaca argues that his counsel was ineffective because she did not inform him that accepting the plea meant that he could not appeal the length of a standard range sentence. To prevail on this claim, Rueda-Nacaspaca must prove that his counsel performed deficiently and the deficient performance prejudiced him. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In the context of a guilty plea, a defendant must show that his counsel failed to actually and substantially assist him in deciding whether to plead guilty and that, but for counsel's failure to give adequate advice, he would not have pleaded guilty. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999). Rueda-Nacaspaca has not met this burden.
Rueda-Nacaspaca's argument hinges on only one factual assertion: he argues that his counsel did not inform him that, if he accepted the plea, he could not appeal the length of a standard range sentence. The record belies this claim. Rueda-Nacaspaca's PRP (the source of the remand) contained a claim of ineffective assistance because his attorney did not request an exceptional sentence below the standard range or a DOSA sentence. We affirmed on those grounds because such a request would have breached the plea agreement. Our order, therefore, informed Rueda-Nacaspaca that any subsequent appeal on the length of his standard range sentence would be fruitless. In light of this procedural posture, it is difficult to see how counsel's alleged failure to inform her client of the sentence's appealability could affect whether Rueda-Nacaspaca would enter into the plea.
Drug Offender Sentencing Alternative, former RCW 9.94A.660 (2002).
During the resentencing hearing, Rueda-Nacaspaca expressed to the court that he wanted a reduced sentence based on good behavior under the Sanchez law. His attorney explained:
State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993).
My client and I have discussed this, the Sanchez Appeal, as well as DOSA issues. As I've explained to him, if he were to come into court and ask for either of those, that would be breaching [the] plea agreement.
It was my understanding, after our conversation yesterday, that he was — that he understood that he had the option to breach the plea agreement, or he had the option to accept what the State was proposing. It is my understanding that he wished to accept what the State is proposing.
I would ask the Court to inquire which choice he would like to make at this time.
Report of Proceedings (RP) (June 8, 2006) at 5-6. The court then asked Rueda-Nacaspaca repeatedly whether he intended to withdraw his guilty plea and Rueda-Nacaspaca replied that he did not. On this record, it is clear that counsel informed her client that he had two options regarding the plea: (1) withdraw the plea and seek a lower sentence or (2) retain the plea and allow the trial court to resentence him in accordance with our order. That information was correct; counsel was not deficient. Statement of Additional Grounds (SAG) Issues
In his SAG, Rueda-Nacaspaca raises six additional issues: (1) he now wants to withdraw his plea because it originally contained an error in the maximum standard range sentence; (2) this court should reverse the plea because originally part of his total sentence was converted to community custody, but on remand the community custody was deleted and his entire sentence was for confinement; (3) the prosecutor committed misconduct when drafting the plea agreement by denying Rueda-Nacaspaca the ability to request a lighter sentence from the sentencing court; (4) the court incorrectly calculated his offender score at five; (5) the 60-month maximum sentence was incorrect because the crime of intent to deliver a controlled substance carried a maximum sentence of one year; and (6) cumulative error warrants reversal.
RAP 10.10.
As to the first issue, the trial court gave Rueda-Nacaspaca the option to withdraw his plea due to the sentence miscalculation and he declined. The transcripts and court of appeals order reveal that Rueda-Nacaspaca made this decision with full knowledge of the miscalculation. Second, Rueda-Nacaspaca voluntarily entered into the revised plea agreement in which his community custody would be deleted. In the record, his attorney said, "the State proposes . . . [to] simply strike the community custody. I talked to my client about this, he's in agreement. The State and I are here today, simply asking that the Court strike the community custody." RP (June 8, 2006) at 3-4. Rueda-Nacaspaca knowingly, voluntarily, and intelligently entered this revised guilty plea and we affirm it.
Third, it is not prosecutorial misconduct to enter into a plea agreement in which the defendant agrees to a particular sentence in exchange for the State dismissing three counts and three sentence enhancements against the defendant. It is true, as Rueda-Nacaspaca asserts, that the trial court retains authority to impose a different sentence than the plea agreement recommends, but that does not deprive the State from holding Rueda-Nacaspaca to his contract, from which he benefited.
State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997) (holding that a plea agreement is a contract between the State and the defendant).
Fourth, Rueda-Nacaspaca argues that several of his offender score points should have been merged into one because he was sentenced for those crimes on the same day in the same court. This issue is not properly before us because our task is to review Rueda-Nacaspaca's resentencing, not his original sentencing, and because the record contains insufficient information about his criminal history. Nevertheless, for purposes of calculating an offender score, prior convictions should be merged when two or more crimes require the same criminal intent, are committed at the same time and place, and involve the same victim. RCW 9.94A.589(1)(a). The time and location of sentencing does not control merger.
Fifth, Rueda-Nacaspaca argues that his maximum sentence was incorrect. We already resolved this issue through Rueda-Nacaspaca's previous PRP and we do not revisit it. But the charges of methamphetamine delivery did carry a maximum 60-month sentence, given that Rueda-Nacaspaca's offender score was five. RCW 9.94A.517-.518. Last, the cumulative error doctrine does not apply here because there is no error to cumulate. State v. Johnson, 113 Wn. App. 482, 494, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1010 (2003).
We affirm.
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., HUNT, J., concur.