Opinion
No. 60948-3-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-06678-7, Paris K. Kallas, J., entered November 27, 2007.
Appeal from a judgment of the Superior Court for King County, No. 07-1-06678-7, Paris K. Kallas, J., entered November 27, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Chad Stands appeals the denial of his motion to withdraw his guilty plea. He contends that the plea was not entered knowingly, voluntarily, and intelligently because the parties miscalculated his offender score and the trial court misinformed him of the applicable maximum sentence. Because the mistake in the offender score had no impact on the standard range and because Stands was properly informed of both the standard range and the maximum sentence as determined by the legislature, we affirm. We also reject his challenge to the trial court's order setting restitution and his pro se claims of ineffective assistance of counsel.
I
Chad Stands entered a plea agreement with the prosecutor agreeing to plead guilty to first degree possession of stolen property, two counts of second degree assault, possession of cocaine, second degree taking a motor vehicle without permission, attempted felony harassment, eluding a police vehicle, and forgery. Stands signed the statement of defendant on plea of guilty, thereby acknowledging that he knew the nature of the crimes charged, the maximum sentences, and the consequences of entering the plea, including the court's authority to impose any sentence within the designated standard ranges.
During the plea colloquy, Stands stated that he understood that the maximum sentence for the second degree assault charges was 10 years and/or a $20,000 fine and the standard sentence range was 63 to 84 months of confinement. He also acknowledged that, in exchange for his guilty plea, the State would recommend a sentence of 73.5 months for each assault charge, and ask the court to run the sentences concurrently. After finding that Stands entered the guilty plea freely and voluntarily and with a full knowledge of the consequences, the trial court accepted his guilty plea.
At the sentencing hearing, Stands asked to withdraw his plea, claiming that he was pressured by the prosecutor and his attorney to accept the plea in order to avoid a third strike life sentence and that he was "totally stressed out" at the time of the plea. The trial court denied his request and sentenced Stands, imposing concurrent standard range sentences for each count for a total of 73.5 months of imprisonment, as recommended by the prosecutor.
Stands appeals.
II
A defendant may withdraw a guilty plea if it was invalidly entered or if necessary to correct a manifest injustice. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). "The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f).
A valid guilty plea must be knowing, voluntary, and intelligent. Isadore, 151 Wn.2d at 297. In order to knowingly enter a plea, a defendant must be informed of all direct consequences of the plea, but need not be informed of all possible consequences. Isadore, 151 Wn.2d at 298. A direct consequence has "`a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (quoting State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)).
Stands first contends that his plea was not valid because he was not correctly advised of his offender score. In particular, although the parties agreed at the time of the plea that Stands' offender score on the second degree assaults was a 9, and the trial court imposed the recommended sentence based on that score, the correct score is actually a 10.
The parties agreed prior to sentencing that Stands' criminal history included a conviction for attempted first degree burglary. The prosecutor counted the conviction as a nonviolent felony worth only one point on the assault scoring forms. Under former RCW 9.94A.030(50)(a)(i), amended by Laws of 2008, ch. 276, § 309, a "[v]iolent offense" includes "[a]ny felony defined under any law as a class A felony or an attempt to commit a class A felony." Because attempted first degree burglary constituted a "violent" felony for the purposes of calculating the offender score, the conviction should have been counted as two points.
Relying on State v. Mendoza, 157 Wn.2d 582, 141 P.3d 49 (2006), Stands argues that the miscalculation of his offender score renders his plea involuntary, despite the fact that the correct score would not have altered the standard range. In Mendoza, our Supreme Court concluded that a plea may be involuntary if based on misinformation, "including a miscalculated offender score that resulted in an incorrect higher standard range," Mendoza, 157 Wn.2d 592, because "the length of the sentence is a direct consequence of pleading guilty." Mendoza, 157 Wn.2d 590.
Here, Stands does not argue that the mere miscalculation of his offender score, without any resulting impact on the standard range, constituted misinformation regarding a direct consequence of pleading guilty. Instead, he claims only that the higher offender score would have changed " possible sentencing consequences" by providing the court with grounds to impose an exceptional sentence or depart from the parties' agreed sentencing recommendation. Under these circumstances, Stands fails to demonstrate that his guilty plea was invalid.
Stands does not identify any authority to support such an argument. Cf. State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996) (miscalculation of offender score was harmless and remand for resentencing was not required where standard range would remain the same had the court properly calculated).
Stands also points to language in the plea agreement indicating that the parties would not be bound in the event of a miscalculated offender score. The agreement provides: "An essential term of this agreement is the parties' understanding of the standard sentencing range(s) and if the parties are mistaken as to the offender score on any count, neither party is bound by any term of this agreement." But Stands has not shown that the identified mistake in his offender score is material to the agreement when both parties made the agreed recommendation at the time of sentencing based on the correct standard range and the trial court followed the recommendation.
Stands also contends that his plea is invalid because he was misinformed of the applicable maximum sentence for his second degree assault charge. Citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004), he claims that the applicable maximum sentence was the top of the standard range rather than the statutory maximum declared by the legislature. We rejected an identical argument in State v. Kennar, 135 Wn. App. 68, 143 P.3d 326 (2006), review denied, 161 Wn.2d 1013 (2007).
In Kennar, we held that Blakely, a sentencing case, does not compel a change in the CrR 4.2 requirement that the trial court, at the time of plea entry, inform a defendant of both the applicable standard sentence range and the maximum sentence for the charged offense as determined by the legislature. Kennar, 135 Wn. App. at 75. "Because a defendant's offender score and standard sentence range are not finally determined by the court until the time of sentencing, the Sixth Amendment concerns addressed in Blakely do not apply until that time." Kennar, 135 Wn. App. at 76. The trial court correctly advised Stands that the maximum sentence for second degree assault is 10 years confinement and/or $20,000 in fines. RCW 9A.36.021(2)(a); RCW 9A.20.021(1)(b). To the extent the Division Two decision in State v. Knotek, 136 Wn. App. 412, 424 n. 8, 149 P.3d 676 (2006), reaches a different result, we decline to follow it and adhere to Kennar.
Stands also challenges the order setting restitution, arguing that the trial court exceeded its authority by ordering restitution for losses not caused by his criminal acts and abused its discretion by failing to hold an evidentiary hearing. We hold that the trial court properly exercised its discretion in awarding restitution.
Restitution "shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property . . . unless extraordinary circumstances exist." RCW 9.94A.753(5). A restitution order "shall be based on easily ascertainable damages for injury to or loss of property." RCW 9.94A.753(3). Where material facts are disputed, the trial court must hold an evidentiary hearing, and the State must prove restitution by a preponderance of the evidence. State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998).
The State also must prove a "but for" causal connection between the defendant's criminal conduct and the victim's harm. State v. Enstone, 137 Wn.2d 675, 682-83, 974 P.2d 828 (1999). "Although we recognize that there may be instances where the injury that a crime victim suffers is so remotely connected to the crime that it does not justify the imposition of restitution, we observe that the statute accords discretion to the trial court." Enstone, 137 Wn.2d at 682. We review a restitution order only for an abuse of that discretion. Enstone, 137 Wn.2d at 679.
In the plea agreement, Stands stipulated to the facts stated in the probable cause certification for the purposes of restitution. The certification indicates that while John Ekemo was loading packages into his 2000 Chevrolet Impala at his apartment building, Stands got into Ekemo's car and drove away. Stands later rammed the Impala into a car driven by Kyle Strieck. When Stands backed the Impala away, Kyle rammed his car into the Impala, attempting to disable it. Stands then accelerated rapidly toward Kelly Strieck where he stood by his own car. Stands rammed Kelly's car and pushed it against a wall, and struck another parked vehicle as well as a post supporting an apartment building. Stands then ran away from the disabled Impala.
These facts supported Stands' convictions for possession of stolen property, that is, the Impala, and two counts of second degree assault for assaulting Kyle and Kelly with the Impala.
The State sought a restitution award of $8,317.85 for the full amount paid by an insurance company to Ekemo for the loss of the Impala. At the hearing, Stands argued that there was no causal connection between his crimes and the damage resulting from Kyle's attempt to disable the Impala. The trial court disagreed and awarded the full amount requested.
Stands claims the trial court abused its discretion by ordering him to pay for damage caused by Kyle's actions rather than his own criminal acts. But there was no dispute that Stands was in sole possession of the Impala from the time he stole it until it was disabled and that he used the Impala to assault both Kyle and Kelly. There was also no dispute that Kyle rammed the Impala in response to Stands' initial attack. Under these circumstances, the trial court did not abuse its discretion by finding that but for Stands' illegal acts, the Impala would not have been damaged and ordering the full amount of restitution. See, e.g., State v. Harrington, 56 Wn. App. 176, 782 P.2d 1101 (1989) (affirming restitution award where defendant admitted illegal possession of the vehicle for the entire time victim was out of possession and damage occurred during that time).
We also reject Stands' claim that the trial court abused its discretion by failing to hold an evidentiary hearing to determine what damage was caused by Stands as opposed to damage caused by Kyle. Given the trial court's proper finding of a causal connection between Stands' illegal acts and all the damages, it was immaterial whether certain damage resulted from Kyle's car striking the Impala and no further evidentiary hearing was required.
In his statement of additional grounds for review, Stands claims that he received ineffective assistance of counsel. To establish ineffective assistance, Stands must show that counsel's performance was deficient and that prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice is established if Stands shows "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." In re Personal Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)). If Stands wishes a reviewing court to consider matters outside the record, a personal restraint petition is the appropriate means to raise such issues. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
Stands claims that his attorney informed him that his guilty plea was necessary to avoid life imprisonment as a persistent offender and failed to affirmatively inform him that such a sentence was not possible.
The record does not support his claim. At the plea hearing, defense counsel stated on the record that Stands understood that the plea would result in his second strike. Following a discussion off the record, defense counsel indicated that Stands was concerned that the State could bring additional charges based on related but as yet uncharged incidents resulting in a third strike.
After some discussion on the record, the following language was added to the plea form and initialed by Stands: "The parties agree that, for the defendant to be a persistent offender, that he would have to commit another `serious offense' after this date. This plea is based on this assumption." According to statute, to be considered a persistent offender based on the commission of "most serious" offenses, a person must have been convicted of most serious offenses on at least two separate occasions before commission of the third offense. RCW 9.94A.030(37)(a).
On this record, Stands was correctly informed of the law. Moreover, Stands does not claim that he would not have pleaded guilty and would have insisted on going to trial based on any statement in the record regarding the persistent offender statute. Under these circumstances, Stands fails to establish prejudicial error.
Finally, Stands contends that the trial court erred by denying his motion for new counsel to investigate his attorney's failure to properly advise him regarding the persistent offender statute and prepare a motion to withdraw his plea. But the record reveals that at the time of the plea, Stands initialed the correct statement of the law and agreed on the record that he had been fully advised by his attorney and had no further questions. The trial court did not err in determining that Stands did not present sufficient grounds to appoint new counsel to investigate whether there was a basis to withdraw the plea.
Affirmed.