Opinion
No. 64348-7-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-02482-9, Gregory P. Canova, J., entered September 28, 2009.
Affirmed in part and remanded by unpublished opinion per Grosse, J., concurred in by Dwyer, C.J., and Appelwick, J.
A voluntary plea obtained with proper advisement of the then-existing law is not rendered involuntary because of post-plea changes in the law. At the time the defendant entered his plea, he was advised of the correct range of community custody that would be imposed. The fact that the legislature subsequently modified the amount of community custody required does not alter the voluntariness of the plea. This is particularly true here, where the legislature's amendment required mandatory community custody of 36 months, less than the maximum previously imposed. Because the court improperly imposed community custody of 48 months, rather than 36 months, we remand for entry of an order amending the community custody period, and otherwise affirm the judgment and sentence.
FACTS
Benjamin Smalls pleaded guilty to one count of second degree murder while armed with a firearm and one count of second degree assault. In return, the State recommended a sentence of 418 months' total confinement and agreed to dismiss not only the firearm enhancement on the second degree assault, but also charges that were pending against Smalls in another case. At the plea hearing, the prosecutor conducted an extensive colloquy with Smalls advising him as to each provision of the plea agreement. During that oral colloquy, Smalls was advised that the court would impose 24 to 48 months of community custody.
Before sentencing, Smalls obtained new counsel and sought to withdraw his guilty plea on the basis of Smalls' lack of competency. Smalls was evaluated at Western State Hospital as well as an independent doctor. Both evaluations concluded that Smalls was competent.
Smalls was sentenced on September 25, 2009. During sentencing, the court interjected that the legislature had recently amended the Sentencing Reform Act of 1981, chapter 9.94A RCW, to require that community custody be set at a specific length of time rather than a range. Believing that the range for serious violent offenses was 48 months, the court imposed a 48-month term of community custody. The plea agreement called for imposition of between 24 to 48 months of community custody. Defense counsel objected to the imposition of the fixed term of 48 months because Smalls had pleaded guilty before the new legislation was passed. The court noted the objection and imposed a sentence of 418 months' total confinement and 48 months of community custody.
ANALYSIS
A defendant's failure to understand a direct consequence of his plea constitutes manifest injustice and may be withdrawn. CrR 4.2(f). Smalls argues that he should be permitted to withdraw his plea because he was misinformed about a direct consequence of his plea — community custody. At the time of his plea, he was advised that the court would impose 24 to 48 months of community custody, rather than the fixed amount of custody actually imposed. At the time Smalls entered his guilty plea, however, former RCW 9.94A.701(1)(b) (2008) provided that the term of community custody for violent offenses was set forth in former RCW 9.94A.850 (2008). Murder in the second degree is a serious violent offense. The range of community custody for serious violent offenses was 24 to 48 months.
Former RCW 9.94A.701 (2008).
In July 2009, before Smalls was sentenced, the legislature amended RCW 9.94A.701 establishing a set period of three years for violent offenders. Effective July 26, 2009, the amendment applied retroactively and prospectively to all offenders whether sentenced before or after the effective date of the statute. Smalls was not misadvised in the plea hearing. In In re Newlun, we recently noted that a voluntary plea which is given after being correctly advised of the then-existing law is not rendered involuntary because of post-plea changes in the law. Smalls also disputes the inclusion of three prior juvenile convictions in his offender score because those convictions were not decided by a jury. This argument has been rejected by the Washington Supreme Court in State v. Weber, which he challenges. The decision
Former RCW 9.94A.701(1)(b) (2008) (amended by Laws of 2009, ch. 375, §§ 5).
Laws of 2009, ch. 375, §§ 20.
No. 63810-6, 2010 WL 3894559, *4 (Wash. Ct. App. October 4, 2010); see also Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970) (no right to withdraw plea because the maximum penalty assumed applicable was later held inapplicable in subsequent judicial decisions).
159 Wn.2d 252, 149 P.3d 646 (2006).
Smalls challenges is binding on this court. We therefore affirm the inclusion of the juvenile convictions in Smalls' offender score.
Smalls also raises a number of additional issues in a statement of additional grounds. He contends that he did not sign a waiver of his speedy trial rights. But the verbatim report of proceedings belies that contention. A trial court's decision to grant a continuance under CrR 3.3 will not be disturbed absent a showing of manifest abuse of discretion. Defense counsel moved for a continuance after consulting with Smalls and waived speedy sentencing. There was no violation of his rights. Smalls next contends that his plea was invalid because there was no factual basis to support the plea and, further, that it was not in his own handwriting. But the verbatim report of proceedings shows that Smalls was aware that his plea was filled out by his defense counsel and that he agreed with the assertions made therein. Smalls also contends that he received ineffective assistance of counsel. "To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice." Counsel's representation is presumed to have been reasonable, and all significant decisions by counsel are presumed to be an exercise of reasonable professional judgment. Smalls asserts his counsel was ineffective because he failed to interview witnesses, provided no discovery, and forced him to take a plea. Smalls' argument is conclusory. To support these allegations, he submits additional affidavits from family members who assert that they had difficulty contacting defense counsel. These affidavits are outside the record. We cannot determine from the record before us the witnesses who might have been interviewed or even whether those witnesses would have been helpful to the defense. We find no merit to any of the allegations in the statement of additional grounds.
State v. Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006).
State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
At the time of sentencing, the court erroneously imposed community custody for 48 months, rather than the 36 months required under amended RCW 9.94A.701(1)(b). Accordingly, we remand for entry of an order awarding the correct community custody period, and otherwise affirm the judgment and sentence.
WE CONCUR: