Opinion
No. 62234-0-I (consolidated with No. 62236-6-I).
January 4, 2010.
Appeals from a judgment of the Superior Court for King County, No. 08-1-04149-9, Suzanne M. Barnett, J., entered August 1, 2008.
Affirmed in part and remanded by unpublished opinion per Appelwick, J., concurred in by Grosse and Leach, JJ.
Wills pleaded guilty to four felonies. At the plea stage, the parties believed his offender score to be 29. After the trial court imposed an exceptional sentence, defense counsel claimed that the offender score should be 21 instead of 29. Counsel acknowledged that the score remained substantially above nine. Wills now claims the plea was involuntary, because it was based on misinformation as to his offender score. The plea was voluntary and there is no basis on which to withdraw the plea. We affirm.
FACTS
Danny Wills pleaded guilty to four counts in two separate sets of charges — one for second degree possession of stolen property and malicious mischief, and the other for second degree theft and malicious mischief. His felony plea agreement included an offender score calculation of 29, resulting in a standard range of 22 to 29 months for each count. As part of the plea, Wills agreed "to forgo any legal argument that the State is precluded from seeking an exceptional sentence." He stipulated that facts existed to support an exceptional sentence under RCW 9.94A.535(2)(c), because "the defendant has committed multiple current offenses [and] that [the] defendant's high offender score results in some of the current offenses going unpunished." Wills also agreed to seek no less than 25 months on each count to be served concurrently. His plea contained the provision that "[a]n 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."
At sentencing, Wills requested concurrent 25 month terms for all four crimes. The State requested an exceptional sentence of consecutive 30 month terms on all charges. The sentencing court imposed consecutive 25 month terms for the four offenses, amounting to an exceptional sentence of 100 months.
After the court handed down the exceptional sentence, and while the attorneys were amending and signing the findings of fact supporting the exceptional sentence and the judgment and sentence, the defense objected to the offender score calculation:
One of the proposed findings of fact is that Mr. Wills has an offender score of 29. Although I agree with all the other proposed findings and conclusions, I disagree with the specific calculations of his offender score. Specifically, I think all of the sentences that were imposed on the same day prior to 1986 would count as one point. He would still have an offender score well in excess of 9. But for the record, I would object to that finding.
As a result, Wills believed his offender score to be 21 instead of 29. The trial court concluded that it would impose the same sentence regardless of whether Wills's score amounted to 21 or 29. Rather than resolve the disagreement about the offender score, the court merely amended the findings of fact to include both calculations: "I have changed the finding to indicate a felony offender score of at least 21 or maybe as much as 29. But at some point it really doesn't matter if it is 21 or 29. It is off the chart." As a result, the findings to support the exceptional sentence read that Wills "has a felony offender score of at least 21 or maybe as much as 29."
Wills now appeals his judgment and sentence.
DISCUSSION
I. Withdrawal of the Plea as Involuntary
Due process requires that guilty pleas be knowing, voluntary, and intelligent. State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). The court must allow withdrawal of a plea "`to correct a manifest injustice.'" Id. (quoting CrR 4.2(f)). Circumstances resulting in manifest injustice include the denial of effective counsel, the defendant's failure to ratify the plea, an involuntary plea, and prosecutorial breach of the plea agreement. Id. Here, Wills claims that his plea was involuntary.
"A guilty plea is not knowingly made when it is based on misinformation of sentencing consequences." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). The defendant must be informed of the direct consequences of his guilty plea. Id. 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, 285, 916 P.2d 405 (1996) (quoting State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980)). For example, Washington courts have found mandatory community placement to be a direct consequence of the plea. See Id. at 284; Isadore, 151 Wn.2d at 298. A mandatory minimum sentence resulting in a more onerous punishment is a direct consequence of a plea. State v. Miller, 110 Wn.2d 528, 531-32, 756 P.2d 122 (1988). And, an incorrect standard sentencing range — whether higher or lower than anticipated — also constitutes a direct consequence which may create an involuntary plea. See State v. Walsh, 143 Wn.2d 1, 3-4, 17 P.3d 591 (2001) (plea agreement involuntary where standard range at sentencing was higher than stated in the plea agreement); Mendoza, 157 Wn.2d at 590 (lower standard sentencing range can yield an involuntary plea).
Here, Wills claims an involuntary plea based solely on an incorrect offender score. The miscalculation of his offender score does not increase or decrease his standard range sentence. It does not lead to a more onerous sentence, or impose previously unknown punishment. The change in offender score had no effect on Wills's range of punishment. As a result, the miscalculated offender score does not result in misinformation about a direct consequence of the plea. Therefore, the plea was not involuntary and no manifest injustice occurred. Wills cannot withdraw his plea on this ground.
II. Withdrawal of Plea Agreement Based on Express Language
In State v. Codiga, the court interpreted a clause in a plea agreement that states that the defendant assumes the risk that new or additional criminal history will be discovered that increases the offender score. 162 Wn.2d 912, 928, 175 P.3d 1082 (2008). The court determined that assigning the risk to the defendant is fair and reasonable, because the facts of the criminal history are known to the defendant. Id. Codiga was not allowed to withdraw his plea when his offender score changed, because of additional criminal history. Id. at 931.
In this case, the plea agreement attempts to avoid this risk by including a clause stating that "[a]n 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." At the time of the plea the parties calculated that Wills had an offender score of 29. But, at sentencing he asserted that his score should be 21. This discrepancy could allow Wills to void the contract.
Plea agreements are regarded as contracts and the parties are bound by the terms of the plea. Id. at 922. To interpret contracts, we apply the context rule to determine the intent of the parties. This requires an examination of "`the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.'" Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990) (quoting Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973)). Wills argues that the plea agreement was based on a mutual mistake that went to the basic assumptions on which the contract was made. The State contends that the offender score was not a basic assumption on which the contract was made, because the offender score had no material effect on the plea.
Given a literal reading of the language of the plea bargain, neither party is bound by the plea because of the offender score discrepancy. But, an examination of the context shows that the plea agreement should be enforced. According to the language of the plea, an essential term of the agreement is the sentencing range. The plea does not specify that the offender score is an essential term. The offender score is important only to the extent that it impacts the standard sentencing range. In most cases, a mistake in the offender score leads to a different sentencing range than contemplated by the plea and would interfere with an essential term of the agreement. But, in this case, Wills's extremely high offender score means that the mistake in the calculation of his score does not effect his standard range. The essential term — the sentencing range — does not change. Therefore, the mutual mistake provision is not triggered. Wills should remain bound by the plea agreement.
Even if the plain language reading of the plea agreement controls, and the change in offender score renders the agreement voidable, Wills has waived his right to withdraw his plea. In Mendoza, the court made clear that a defendant can waive his right to challenge the voluntariness of a statutorily authorized plea. 157 Wn.2d at 592. Mendoza waived his right to challenge his plea, because he "did not object to sentencing or move to withdraw his plea as involuntary." Id. Codiga reiterated that waiver occurred because Mendoza had failed at sentencing " either to object to the new sentencing recommendation or to move to withdraw his plea." 162 Wn.2d at 930 n. 5.
In this case, Wills merely objected to the calculation of the offender score at sentencing. He did not move to withdraw his plea. He did not object to being sentenced in light of the error in the offender score. He did not request a revision of the sentence in light of the lower score. An objection to the offender score alone is not enough to avoid waiver. Wills waived the challenge to his plea based on his offender score.
III. Correcting the Judgment and Sentence
Wills argues that the trial court erred by failing to resolve the disputed calculation of his offender score, and that he is entitled to have the record corrected. He admits that he is not entitled to resentencing in light of State v. Parker, 132 Wn.2d 182, 188, 937 P.2d 575 (1997). The State agrees that remand is necessary solely for the correct calculation of Wills's offender score.
Under RCW 9.94A.441, "[a]ll disputed issues as to criminal history shall be decided at the sentencing hearing." "A sentencing court must ordinarily correctly calculate the standard range before imposing an exceptional sentence. Failure to do so renders the exceptional sentence subject to appellate review, and remand for resentencing is the remedy unless the record clearly indicates the sentencing court would have imposed the same sentence anyway." Parker, 132 Wn.2d at 192-93. Here, the trial court correctly calculated the sentencing range, which is the same whether Wills's offender score is 21 or 29 or something in between. Furthermore, the trial court indicated that the exceptional sentence imposed would also have remained the same regardless of whether his score was 21 or 29, or as noted below is correctly computed as 22. Remand for resentencing is unnecessary. We remand solely to correct the offender score in the judgment and sentence.
IV. Statement of Additional Grounds A. Incorrect Offender Score
Wills contends that his offender score is incorrectly calculated. The State agrees that the score was miscalculated. But, the two parties disagree as to the correct score. The State believes that Wills's offender score is 22 (not 21 as originally proposed by defense counsel at sentencing). Wills believes that his score should be 16 or lower. He claims that the four current offenses, for which he was sentenced in the case at hand, were incorrectly included in his score. Under RCW 9.94A.525(7), Wills prior 26 felonies count as one point each. But, it appears that 8 of those were served concurrently prior to 1985 such that they comprise only on point under RCW 9.94A.525(5)(ii). Therefore, his score would be 19 without the current offenses.
But, Wills's current offenses are properly included in his offender score calculation. "Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed `other current offenses' within the meaning of RCW 9.94A.589." RCW 9.94A.525(1). Because Wills was sentenced for all four counts on the same date, three of the convictions are considered "other current offenses." These current offenses are factored into the offender score. "[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score." RCW 9.94A.589 (1)(a). Under RCW 9.94A.525(7), the current offenses count as one point apiece, yielding three additional points for the score. As a result, Wills's offender score is properly calculated as 22.
B. Involuntary Plea
Wills claims that misinformation from his attorney renders his plea involuntary. According to Wills, he did not intend to agree or stipulate to an exceptional sentence. He appears to believe that his hearing reflects that he unknowingly stipulated to an exceptional sentence and that the court did not make adequate inquiry into his understanding and the voluntary nature of such a plea.
Wills misinterprets the stipulation included within his plea. In the plea agreement, Wills agrees to "forego any legal argument that the State is precluded from seeking an exceptional sentence" and "that there are sufficient facts to support a finding pursuant to RCW 9.94A.535(2)(c) that the defendant has committed multiple current offenses [and] that [the] defendant's high offender score results in some of the current offenses going unpunished." These are not stipulations to an exceptional sentence. In fact, the plea also includes Wills's agreement to request a sentence within the standard range, no less than 25 months on each count to be served concurrently. Wills's stipulation merely confirms the facts as they exist — he has an offender score significantly above nine, and will be sentenced on four felonies — and therefore eligible for an exceptional sentence under RCW 9.94A.535(2)(c). This information is all readily obtainable and did not prevent Wills from arguing for a standard range sentence. Wills did not stipulate to an exceptional sentence.
C. Ineffective Assistance of Counsel
Wills argues that his attorney was ineffective and lists several errors in support of his claim. Ineffective assistance of counsel requires a showing of both deficient performance and prejudice to the defense. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). A deficient performance falls below an objective standard of reasonableness. Id. at 226. The allegations are unsupported by the record other than the affidavit submitted by Wills. Wills has not established that any of the claimed errors amount to such deficient performance, nor does he demonstrate prejudice from the errors.
Wills has no grounds on which to withdraw his plea. We affirm his conviction and sentence and remand solely to correct the offender score in his judgment and sentence.
WE CONCUR: