Opinion
No. 34325-8-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 04-1-02056-5, Robert L. Harris, J., entered January 5, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Penoyar, J.
Daniel R. Smith appeals (1) the trial court's denial of his motion to withdraw his guilty plea to one count of second degree rape of a child and one count of first degree child molestation and (2) his sentence in excess of the statutory maximum. He also appeals the trial court's orders that he submit and pay for a deoxyribonucleic acid (DNA) sample and comply with certain community custody conditions. We affirm the trial court's denial of his motion to withdraw his plea, vacate the DNA sample fee, and remand for resentencing within the statutory maximum term for a class B felony and for correction and modification of the community custody provisions.
FACTS
On November 29, 2004, the Klickitat County Superior Court sentenced Daniel R. Smith to concurrent sentences for one count of second degree rape of a child (Klickitat County: count II, 131 months) and one count of first degree child molestation (Klickitat County: count I, 89 months).
One month before Klickitat County sentenced Smith, the Clark County prosecutor charged Smith with two counts of first degree child molestation and two counts of second degree child molestation. The Clark County prosecutor alleged that Smith committed these offenses between April and October 2001. On August 15, 2005, the Clark County prosecutor reduced the charges to one count of first degree child molestation and one count of second degree child molestation as part of a plea agreement.
Clark County Superior Court continued trial on these charges several times. In the interim, Smith requested a competency evaluation and hearing. The competency evaluation concluded that Smith was competent but noted that he was illiterate and had below-normal intelligence. Following a competency hearing based on the evaluation, the trial court found Smith competent to stand trial.
The State's plea offer allowed Smith to plead guilty to the reduced Clark County charges in exchange for a joint sentencing recommendation that he serve his sentence on the remaining charges concurrently with the sentences on the Klickitat County convictions. The offer required him to stipulate to specified conditions of community custody. Smith reviewed the offer with his attorney, rejected it, and continued to trial.
After voir dire, Smith asked the prosecutor if the original pre-trial plea offer was still available. Learning that it was, Smith informed the trial court that he wished to change his plea and accept the State's offer.
The trial recessed so that the State could prepare the plea paperwork and so that Smith's attorney could read the entire statement of defendant on plea of guilty to him, answer his questions, and explain the consequences of the plea. The trial court then engaged Smith in a colloquy to ensure that he understood the nature and consequences of a guilty plea.
During the colloquy, Smith appeared confused and indicated that he did not understand what was going on. The trial court determined that it was apparent that Smith was not prepared to enter a guilty plea. It then recessed the proceeding and gave Smith 15 minutes to determine, with his attorney, if he wished to plead guilty. Following the break, Smith agreed to plead guilty and informed the trial court that he had had enough time to review the offer with his attorney and that he understood the offer.
The trial court then questioned Smith further:
THE COURT: Has anybody promised you anything to get you to plead other than the promises laid out in the statement?
THE DEFENDANT: None.
THE COURT: I understand this is a [ Newton plea], which means that you're agreeing that although you're contending that you're not guilty that there is sufficient evidence that a jury might find you guilty beyond a reasonable doubt of these offenses; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Do you wish to plead guilty to take advantage of the State's recommendation to drop some charges and to make a particular sentence recommendation?
THE DEFENDANT: Yes, sir.
THE COURT: That includes their recommendation of concurrent time with your Klickitat County matter.
THE DEFENDANT: Yes, sir.
Report of Proceedings (RP) at 50.
The State then articulated a factual basis for the plea. While Smith did not agree with those facts, by entering his Newton plea he agreed that if the State was able to prove the facts it alleged, the evidence would be sufficient to sustain a guilty verdict on both Clark County charges.
State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
The trial court found that Smith made his plea knowingly, intelligently, and voluntarily; it accepted his plea and dismissed the remaining counts III and IV according to the plea agreement. Smith filled out and signed the statement of defendant on plea of guilty to a sex offense.
Before sentencing, Smith moved to withdraw his guilty plea. Smith's attorney testified that he explained to Smith several times that the benefit of accepting the State's offer was a reduction in counts and concurrent prison time with the Klickitat County sentence. The trial court denied Smith's motion to withdraw his guilty plea, sentenced him within the standard range, allowed him to serve the sentence concurrent with the Klickitat County sentence, and imposed the stipulated community custody conditions. The trial court also found "that [Smith] has a chemical dependency that has contributed to the offense(s), RCW 9.94A.607." Clerk's Papers (CP) at 162.
ANALYSIS
I. Motion to Withdraw Guilty Plea
Smith argues that the trial court improperly denied his motion to withdraw his guilty plea, thereby denying his right to due process under article 1, section 3 of the Washington State Constitution and the Fourteenth Amendment to the United States Constitution.
"No person shall be deprived of life, liberty, or property, without due process of law." Wash. Const. art. I, §§ 3.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §§ 1.
"We will not reverse a trial court's order on a defense motion to withdraw [a] guilty plea absent abuse of discretion." State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). "A court abuses its discretion when its decision is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."' State v. Saas, 118 Wn.2d 37, 45, 820 P.2d 505 (1991) (citations omitted). Guilty pleas must be entered knowingly, voluntarily, and intelligently by the defendant. State v. Smith, 155 Wn.2d 496, 505, 120 P.3d 559 (2005).
A defendant is able to withdraw a plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice."
Marshall, 144 Wn.2d at 280-81 (quoting CrR 4.2(f)). "A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept." Marshall, 144 Wn.2d at 281. "The defendant bears the burden of proving manifest injustice, defined as `obvious, directly observable, overt, not obscure.'" State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996) (quoting Saas, 118 Wn.2d at 42).
"A defendant need not be informed of all possible consequences of a plea but rather only direct consequences." Ross, 129 Wn.2d at 284. A direct consequence is one that "represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Ross, 129 Wn.2d at 284 (citations omitted).
Smith argues that "(1) his attorney did not inform him that his standard range would remain the same whether or not he entered the guilty plea or went to trial, and (2) had he known this he would have gone to trial." Br. of Appellant at 5. As such, he argues that he did not knowingly, voluntarily, and intelligently enter his plea because he was not informed of the direct consequences of entering a guilty plea to the charges.
When a defendant fills out a written statement on a plea of guilty in compliance with CrR 4.2(g) and acknowledges that he has read it, understands it, and that its contents are true, the written statement provides prima facie evidence that the plea was made voluntarily. In re Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980). While an oral inquiry is not mandated, if the trial court conducts a colloquy with a defendant regarding his guilty plea seeking to ascertain if the defendant understands the proceeding, the charges, and the guilty plea, then there is a presumption of knowledge. State v. Ridgley, 28 Wn. App. 351, 355-57, 623 P.2d 717 (1981).
Here, Smith filled out the written statement of defendant on plea of guilty to sex offense. Furthermore, the trial court held a colloquy with Smith to determine if he understood the plea agreement. Smith asserts that he entered his Newton plea because he thought that he was receiving a reduced standard range with the dismissal of counts III and IV. But Smith's standard range sentence was not reduced because, with the two Klickitat County convictions and the Clark County convictions, Smith's offender score was nine or more. It appears that Smith does not understand that RCW 9.92.080(3) provides for consecutive sentences on the Clark and Klickitat County convictions and that he did, in fact, avoid serving an additional 131 months by entering the guilty plea based on the plea agreement that the Clark County sentences would be served at the same time the Klickitat County sentences were served, i.e. concurrently. Under these circumstances, there was no manifest injustice. Smith ratified the pleas orally and in writing and did so voluntarily. Therefore, the trial court did not abuse its discretion when it denied Smith's motion to withdraw his guilty plea.
RCW 9.92.080(3) provides "whenever a person is convicted of two or more offenses arising from separate and distinct acts or omissions, and not otherwise governed by the provisions of subsections (1) and (2) of this section, the sentences imposed therefor[e] shall run consecutively, unless the court, in pronouncing the second or other subsequent sentences, expressly orders concurrent service thereof."
II. Community Custody — Statutory Maximum
Smith also argues that "the trial court exceeded the statutory maximum for count II when it imposed community custody without limiting the total sentence to the statutory maximum of ten years." Br. of Appellant at 30. Smith pleaded guilty in count II to violating RCW 9A.44.086, a class B felony. The statutory maximum for a class B felony is 10 years. RCW 9A.20.021(1)(b). Here, the trial court imposed a prison sentence of 116 months (9.67 years) on count II, plus 36-48 months (3-4 years) of community custody. Thus, his total sentence, including community custody, exceeds the 10-year statutory maximum.
In his heading, Smith incorrectly refers to a statutory maximum of five years, but correctly asserts a ten-year maximum term in his actual argument.
When a trial court imposes a sentence beyond the statutory maximum, we must remand for an amendment of the judgment and sentence to provide for the correct term of community placement. State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004).
RCW 9.94A.030(7) defines community placement as "that period during which the offender is subject to the conditions of community custody and/or post[-]release supervision. . . . Community placement may consist of entirely community custody." RCW 9.94A.030(5) defines community custody as "that portion of an offender's sentence of confinement in lieu of earned release time . . . served in the community subject to controls placed on the offender's movement and activities by the department."
The State concedes this issue and agrees that we must remand for resentencing. We accept the State's concession and remand for the trial court to amend the sentence in order to limit the total sentence to the 10-year statutory maximum.
III. DNA Sample and Fee
Smith next argues that the trial court exceeded its statutory authority when it ordered him to submit and pay for a DNA sample. He argues that the State already had a sample of his DNA stored in the State's data bank and that there is "neither a need nor authority for gathering a second sample and imposing a second fee." Br. of Appellant at 20.
RCW 43.43.754(1) states that "[e]very adult . . . individual convicted of a felony . . . must have a biological sample collected for purposes of DNA identification analysis."
Statutory interpretation is a question of law, which this court reviews de novo. Courts should assume the Legislature means exactly what it says. Plain words do not require construction. The courts do not engage in statutory interpretation of a statute that is not ambiguous. If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself. A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable. The courts are not "obliged to discern any ambiguity by imagining a variety of alternative interpretations."State v. Keller, 143 Wn.2d 267, 276-77, 19 P.3d 1030 (2001) (internal citations omitted).
The legislature stated that the DNA identification system is an: important tool in criminal investigations, in the exclusion of individuals who are the subject of investigations or prosecutions, and in detecting recidivist acts. It is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in both the identification and detection of individuals in criminal investigations and the identification and location of missing and unidentified persons. Therefore, it is in the best interest of the state to establish a DNA data base and DNA data bank containing DNA samples submitted by persons convicted of felony offenses and DNA samples necessary for the identification of missing persons and unidentified human remains.
Smith argues that because he had already submitted a DNA sample, it was unnecessary to require him to submit another sample and charge him for it. But the statute does not address DNA sampling for felons with multiple convictions. The statute plainly says that every convicted felon must submit a "biological sample collected for the purposes of DNA identification analysis." RCW 43.43.754(1). Also, the language is not ambiguous. Under the statute, every convicted felon is required to submit a DNA sample and Smith's claim fails.
But the legislature did not implement the $100 fee for the DNA collection until after Smith committed the Clark County crimes.
RCW 43.43.7541. The legislature added RCW 43.43.7541 in 2002 to add the fee provision for offenses committed after July 1, 2002. The charging period here covered incidents between April and September 2001. Thus we vacate the fee requirement.
Laws of 2002, ch. 289 §§ 4.
IV. Community Custody Conditions
Finally, Smith argues that the trial court exceeded its authority by imposing certain community custody conditions. The plea agreement expressly included Smith's stipulation to the community custody conditions that he now opposes. The plea offer stated, "[b]y accepting this offer, the defendant stipulates to the conditions as set forth herein of the conditions of sentence/community placement/custody and/or supervision." CP at 97. Smith's attorney read the entire statement of defendant on plea of guilty to sex offense to him and Smith stated that he understood it in full.
Under the invited error doctrine, a criminal defendant who pleads guilty to a charge under a plea agreement and is sentenced consistently
with the agreement, may not seek appellate review of those portions of the sentence that are statutorily authorized or that do not exceed the court's statutory authority. State v. Phelps, 113 Wn. App. 347, 353, 57 P.3d 624 (2002). But "even where a defendant clearly invited the challenged sentence by participating in a plea agreement, to the extent that he or she `can show that the sentencing court exceeded its statutory authority, the invited error doctrine will not preclude appellate review.'" In re Pers. Restraint of West, 154 Wn.2d 204, 214, 110 P.3d 1122 (2005) (quoting Phelps, 113 Wn. App. at 354). Thus, the analysis turns on whether the trial court had the statutory authority to impose all of the community custody conditions.
Under Washington's Sentencing Reform Act (SRA), "[a]s a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter."
RCW 9.94A.505(8); State v. Warren, 134 Wn. App. 44, 70-71, 138 P.3d 1081 (2006). `"Crime-related prohibition' means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(13); Warren, 134 Wn. App. at 70-71. The relationship between the crime and the condition is always subjective; therefore, these issues are traditionally within the sentencing judge's discretion. Warren, 134 Wn. App. at 70-71.
Smith pleaded guilty to first degree child molestation under RCW 9A.44.083 and to second degree child molestation under RCW 9A.44.086, both sex offenses defined under RCW 9.94A.030(42)(a)(i). As such, the trial court had statutory authority to impose community custody under RCW 9.94A.715(1), which applies when the trial court sentences a person "to the custody of the department for a sex offense not sentenced under RCW 9.94A.712 (sentencing of non-persistent offenders)." In relevant part, RCW 9.94A.715 states:
Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community.
RCW 9.94A.715(2)(a) (emphasis added).
In relevant part, RCW 9.94A.700(4)(a) states that "the offender shall report to and be available for contact with the assigned community corrections officer as directed."
RCW 9.94A.700(5) provides in relevant part: (b) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals; (c) The offender shall participate in crime-related treatment or counseling services;
. . . .
(e) The offender shall comply with any crime-related prohibitions.
We review a trial court's sentencing conditions for abuse of discretion. Warren, 134 Wn. App. at 70. "No causal link need be established between the condition imposed and the crime committed, so long as the condition relates to the circumstances of the crime." State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992). "Crime-related prohibitions [that] limit fundamental rights are permissible provided the restrictions are reasonably necessary and narrowly drawn." Warren, 134 Wn. App. at 70. "We look at whether the order prohibits `a real and substantial amount of protected conduct in contrast to the statute's legitimate sweep."` Warren, 134 Wn. App. at 71 (quoting State v. Riles, 135 Wn.2d 326, 346-347, 957 P.2d 655 (1998)). Additionally, "[a] convicted defendant's freedom of association may be restricted only to the extent it is reasonably necessary to accomplish the essential needs of the [S]tate and public order." Warren, 134 Wn. App. at 71.
First, Smith challenges the following community custody conditions that limit his right to associate with others:
For clarity, we group and number the challenged conditions based on theme. We also note that in his brief, Smith challenges a condition regarding the possession of drug paraphernalia, but the box next to this condition was not checked in Smith's judgment and sentence; therefore, we do not address it further.
1. "Defendant shall not be in the company of any person known by him/her to be violating [federal, state, or local criminal] laws." CP at 167.
2. "You shall have no association with persons known to be on probation, parole or community placement." CP at 181.
These conditions are valid. The trial court may impose conditions prohibiting Smith from having direct or indirect contact with a specified class of individuals. RCW 9.94A.700(5)(b). Persons known to be violating laws or persons that have previously violated laws and are still subject to probation, parole, or community placement are such specified classes of individuals. Furthermore, Smith, as a convicted felon, may have his freedom of association rights restricted if doing so would be "reasonably necessary to accomplish the essential needs of the [S]tate and public order." Warren, 134 Wn. App. at 71. Accordingly, the trial court had statutory authority to prohibit Smith from contacting these individuals and did not abuse its discretion. We note, however, that the trial court should provide an exception to condition no. 2
while Smith participates in rehabilitation or treatment programs.
Next, Smith challenges the following conditions related to his chemical dependency:
3. "Defendant shall not initiate or permit communication or contact with persons known to him/her to be substance abusers." CP at 167.
4. "Defendant shall submit to urine, breath or other screening whenever requested to do so by the treatment program staff and/or the community corrections officer." CP at 168.
5. "You shall submit to urine, breath, or other screening whenever requested to do so by the program staff or your community corrections officer." CP at 180.
Smith stipulated to a list of custody conditions directly from the judgment and sentence as well as a list of additional conditions as part of the plea agreement found in Appendix A. Several of these conditions are substantively identical.
6. "You shall take antabuse per community corrections officer's direction." CP at 180.
Antabuse is a drug used in the treatment of patients with alcohol dependencies. Odyssey Pharmaceuticals, Inc. Antabuse Product Page, http://www.antabuse.com/productTable.asp?id=16 (last visited March 23, 2007).
These conditions are valid. The trial court found that a chemical dependency contributed to Smith's offense. CP 162. RCW 9.94A.607(1) provides the trial court with statutory authority to impose affirmative conduct that is necessary or beneficial to the offender and the community in rehabilitating the offender. Each of these conditions falls within the trial court's statutory authority and, thus, the trial court did not abuse its discretion by imposing them. But we again note that the trial court should provide an exception on the limitation of communicating or contacting other substance abusers (no. 3) while he is in rehabilitation or treatment programs.
Smith also challenges the following affirmative condition related to his risk of reoffense and the safety of the community.
7. "Defendant shall notify his/her community corrections officer within forty-eight (48) hours of any arrest or citation." CP at 167.
The trial court had statutory authority to require Smith to report to an assigned community corrections officer (CCO) as directed.
RCW 9.94A.700(4)(a). Additionally, because the trial court sentenced Smith under RCW 9.94A.715, the trial court had the authority to impose affirmative conduct reasonably related to his risk of reoffending and the safety of the community. The trial court did not abuse its discretion by requiring Smith to report future arrests or citations while on community custody.
Smith next challenges the following affirmative conditions not related to his chemical dependency, his risk of reoffense, or the safety of the community.
8. "Defendant shall sign necessary release of information documents as required by the Department of Corrections." CP at 169.
RCW 9.94A.715(2)(b) provides: "As part of any sentence that includes a term of community custody imposed under this subsection, the court shall also require the offender to comply with any conditions imposed by the department under RCW 9.94A.720 [supervision of offenders by the department]. The department shall assess the offender's risk of reoffense and may establish and modify additional conditions of the offender's community custody based upon the risk to community safety. In addition, the department may require the offender to participate in rehabilitative programs, or otherwise perform affirmative conduct, and to obey all laws."
9. "You shall sign necessary release [of] information documents as required by Department of Corrections or the Prosecuting Attorney." CP at 81.
The legislature must authorize community custody conditions because it is the legislature's sole province to fix legal punishments. State v. Pillatos, 159 Wn.2d 459, 469, 150 P.3d 1130 (2007). Although RCW 9.94A.715(2)(a) grants authority to the trial court to require Smith to perform affirmative conduct in some circumstances and RCW 9.94A.700 provides the trial court authority to impose specific conditions, neither of these statutes grants authority to the trial court to require Smith to sign documentation. Accordingly, the court exceeded its authority by including these conditions in the sentencing order.
Finally, Smith challenges the condition allowing his CCO to determine what is a deadly weapon and precluding him from possessing a deadly weapon. Condition no. 10 states:
"You shall not possess, use, or own any deadly weapon. Your community corrections officer shall determine what those deadly weapons are." CP at 180.
Smith argues that the phrase "deadly weapon," CP at 180, is ambiguous and therefore gives too much authority to a CCO to define the phrase. We do not address Smith's assertions regarding possible ambiguity, because RCW 9.94A.720(2) clearly provides that "[n]o offender sentenced to terms involving community supervision, community restitution, community custody, or community placement under the supervision of the department may own, use, or possess firearms or ammunition (emphasis added)." Neither this nor any other provision allows the court to prohibit the use or possession of any other type of weapon. State v. Combs, 102 Wn. App. 949, 954, 10 P.3d 1101 (2000). Accordingly, the court exceeded its authority by allowing the CCO to define deadly weapons and preclude Smith from such possession under the circumstances of this case.
Thus, the trial court erred by imposing the community custody conditions requiring Smith to sign documentation (nos. 8 and 9) and by prohibiting Smith from possessing, using, or owning any deadly weapon as defined by his CCO (no. 10). Additionally, we note that the conditions limiting Smith's association with substance abusers (no. 2) and offenders on probation, parole, or community placement (no. 3) should not preclude any incidental contact during participation in substance abuse rehabilitation or therapy.
We affirm the trial court's denial of Smith's request to withdraw his guilty pleas but vacate the DNA testing fee. We remand for resentencing for (1) imposition of a sentence not to exceed the 10-year statutory maximum for second degree child molestation; (2) removal of the prohibition on possession of deadly weapons defined by his CCO (no. 10); (3) removal of both conditions requiring Smith to sign documentation (nos. 8 and 9); and (4) modification of the prohibition of association with substance abusers (no. 3) and persons on probation, parole, or community custody (no. 2) to allow such contact as is necessary when Smith participates in substance abuse treatment.
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.
HOUGHTON, C. J., PENOYAR, J. concur: