Opinion
No. 55380-1-I.
May 1, 2006.
Petition for relief from personal restraint. Denied by unpublished opinion by Cox, J., concurred in by Schindler, A.C.J., and Grosse, J.
Counsel for Petitioner(s), Denis P. Mahony (Appearing Pro Se), 2765 S. Washington, Seattle, WA 98144.
Susan F. Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Denis Mahony seeks relief by personal restraint petition from the statutory requirement that he register as a sex offender. He contends that his plea was involuntary because registration is a direct consequence of his guilty plea and he was not advised of the requirement until after he pled guilty. He also argues his trial and appellate counsel were ineffective for alleged failures arising from the registration requirement. Alternatively, he contends that his plea bargain was the subject of mutual mistake, and that he is entitled to his choice of remedy due to that mistake. Finally, he raises a due process challenge to the requirement that he register as a sex offender. None of these arguments is persuasive, and we dismiss the petition.
The State charged Mahony with two counts of first degree child molestation. As a result of plea bargaining, Mahony entered an Alford plea to two counts of communication with a minor for immoral purposes ("CWMIP") and two counts of assault in the third degree. The State agreed to recommend a sentence of 12 months total confinement on all charges. At the time Mahony negotiated his plea agreement, the law did not require a person convicted of CWMIP to register as a sex offender.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
On March 12, 2003, the day Mahony entered his plea, the law changed to require sex offender registration for misdemeanor CWMIP convictions. Neither Mahony nor the State was aware of this change in the law at the time of the plea. But soon after entering his plea, and prior to sentencing, he became aware of the change.
At his sentencing hearing, Mahony moved for specific performance of the plea agreement, requesting that the court not impose the sex offender registration requirement. The superior court denied the request, but offered Mahony the opportunity to withdraw his plea. Mahony chose not to withdraw his plea and proceeded to sentencing. The court sentenced Mahony to 12 months total confinement on all charges, and ordered him to register as a sex offender.
Mahony appealed his sentence, contending that the trial court erred in not granting his motion for specific performance of the plea agreement based on mutual mistake. This court affirmed the sentence in an unpublished opinion, deciding that the record on appeal was "insufficient to determine whether non-registration was even a term of the plea agreement, let alone a bargained-for assurance."
State v. Mahony, 2003 Wash. App. LEXIS 1731 (2003).
Id. at 4.
Following issuance of this court's mandate, Mahony filed this personal restraint petition.
INVOLUNTARY PLEA
Mahony first argues that his plea was involuntary and thus invalid because he was misinformed about a direct consequence of his plea agreement. We disagree.
Before a personal restraint petition may be granted, the petitioner must prove that the constitutional errors "worked to his or her actual and substantial prejudice."
In re Mercer, 108 Wn.2d 714, 721, 741 P.2d 559 (1987).
Due process requires that a guilty plea be knowing, intelligent, and voluntary. A defendant must understand the direct consequences of his guilty plea for it to be valid. The defendant need not, however, be advised of all possible collateral consequences of his plea. "The distinction between direct and collateral consequences of a plea `turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Because registration as a sex offender does not alter the standard of punishment, the state supreme court has held that the duty to register is a collateral, and not a direct, consequence of a guilty plea.
State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996); In re Pers. Restraint of Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988).
Ross, 129 Wn.2d at 284.
State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980).
Id. at 305 (quoting Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir. 1973).
State v. Ward, 123 Wn.2d 488, 513-14, 869 P.2d 1062 (1994).
Registration Requirement: a Collateral Consequence of a Plea
In State v. Ward, the Washington Supreme Court held that the Community Protection Act of 1990, which required people who were previously convicted of sex offenses to register as sex offenders, does not violate the ex post facto clause because the registration requirement was regulatory and not punitive.
Id. at 498-99.
That court also held that registration as a sex offender does not alter the standard of punishment and thus is a collateral, not a direct, consequence of a guilty plea.
Id. at 513-14.
Mahony argues that Ward's holding applies only to the registration requirement for felony offenses and that dictum in the opinion supports his contention that registration, as applied to him, is punitive. As such, Mahony contends that registration is punishment amounting to a restraint and is a direct, not a collateral, consequence of his plea agreement. We reject this reading of Ward.
As part of its analysis, the Ward court construed the statute requiring registration to determine if it was regulatory or punitive. Though the stated legislative intent was regulatory, the court continued its analysis to determine if the overall effect of the statute is "so punitive as to negate the Legislature's regulatory intent." In determining effect, the court applied the factors listed in Kennedy v. Mendoza-Martinez. These factors are:
Id. at 499 (citing United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980).
372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. . . .
Ward, 123 Wn.2d at 499.
Applying the factors, the court concluded that, on balance, the sex offender registration requirement was not punishment. The court distinguished an Eighth Amendment case, In re Reed, in which the California Supreme Court held that mandatory registration of sex offenders convicted under a misdemeanor disorderly conduct statute was an affirmative restraint and constituted punishment. The court noted, "We do not find In re Reed, supra, dispositive . . . Unlike California's registration requirement, the Washington statute requires registration for felony sexual offenders only. Unlike the petitioner in In re Reed,
Id. at 510-11. See also Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (applying the Mendoza-Martinez test to hold that Alaska's sex offender registration act — and, in particular its public notification provision — is regulatory and not punitive for ex post facto purposes).
Ward, 123 Wn.2d at 506 (discussing Reed, 33 Cal. 3d 914, 663 P.2d 216, 191 Cal. Rptr. 658 (1983)). Reed has recently been expressly overruled by In re Alva, 33 Cal. 4th 254, 14 Cal. Rptr.3d 811, 92 P.3d 311 (2004) (holding that lifetime registration for misdemeanor sexual offenders was not `punishment within the meaning of the cruel or unusual punishment clause').
. . . both Ward and Doe were convicted of felony sexual offenses." Mahony asserts that this language indicates that the distinction between registration for felony and misdemeanor offenses was "critical to the Ward court's analysis."
Id. at 507 (similarly noting and distinguishing In re Birch, 10 Cal. 3d 314, 110 Cal. Rptr 212, 515 P.2d 12 (1973) (holding a life-long duty to register is cruel and unusual punishment given his misdemeanor offense).
The felony-misdemeanor distinction was noted by the court only in its analysis of two of the four factors — whether registration was excessive in relation to its non-punitive purpose, and whether registration was historically regarded as punishment. In its excessive punishment analysis, the Ward court found it an equally important distinction that, unlike the California statute, which required lifelong registration, the duty to register in Washington ended after 15 years if the registrant remains conviction free. Moreover, a sexual offender may petition the Washington courts for relief from the duty to register after 10 conviction-free years in the community if he can show it will not serve the statute's purpose. There has been no substantial change in this provision since Ward was decided.
Ward, 123 Wn.2d at 509.
See RCW 9A.44.140 (1), (3), (4) (2004).
Finally, Ward relied heavily on the reasoning of the Arizona Supreme Court in State v. Noble. Noble, like Ward, involved an ex poste facto challenge to the statute requiring a convicted felony sex offender to register. Though Noble held that, on balance, Arizona's sex offender registration requirement was not punitive, the Noble court found, as had the Birch and Reed courts, that registration had traditionally been viewed as punishment. The Ward court specifically rejected Noble's analysis on this factor, but agreed with its outcome.
171 Ariz. 171, 829 P.2d 1217, 111 Ariz. Adv. Rep. (1992).
Arizona courts have subsequently applied Noble's reasoning to the registration requirement for misdemeanants, to find it does not constitute punishment. See, e.g., State v. Cameron, 185 Ariz. 467, 469, 916 P.2d 1183 (Ariz. 1996) (`[W]e believe that the balance the supreme court struck in Noble is correct for misdemeanants as well as for felons.').
Noble, 829 P.2d at 1222.
Ward, 123 Wn.2d at 508.
To summarize, registration as a sex offender is a collateral consequence of the guilty plea in this case. The plea is not rendered involuntary because Mahony was unaware when he entered his plea that he would have to register as a sex offender as a result of the crime.
INEFFECTIVE ASSISTANCE OF COUNSEL
Mahoney argues that even if the registration requirement is a collateral consequence of the plea agreement, he is still entitled to relief because he received ineffective assistance of counsel at both the trial and appellate levels. Specifically, he argues that his trial attorney affirmatively misadvised him that a CWMIP conviction did not require sex offender registration. He also claims his counsel on the prior appeal was ineffective.
The test for ineffective assistance of counsel announced in Strickland v. Washington is whether "(1) defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant." The absence of one prong makes it unnecessary to consider the other. The Strickland test applies to claims of ineffective assistance of counsel in the plea process.
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. James, 48 Wn. App. 353, 359, 739 P.2d 1161 (1987) (citing Strickland, 466 U.S. 668; State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987)).
In re Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992).
Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
Prejudice
Mahoney asserts that he is not required by the Strickland test to show that if he had known about the registration requirement he would not have pleaded guilty and would have gone to trial. He cites for support the court's statement that a "defendant need not show that counsel's [performance] more likely than not altered the outcome of the case." The court considered whether, when showing prejudice in an ineffective assistance claim, the applicable standard should be a "more likely than not" standard used in the "newly discovered evidence" contexts, or the lesser "reasonable probability" standard applied in the test for materiality of exculpatory information not disclosed to the defense by the prosecution. It selected the "reasonable probability" standard, and rejected the "more likely than not" standard.
Appellant's Supplemental Brief at 11 (citing Strickland, 466 U.S. at 693, and mischaracterizing its holding in a misleading parenthetical).
Strickland, 466 U.S. at 694.
Mahony uses the language from this portion to misstate the defendant's burden. Strickland enunciated the rule that "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mahoney speculates that had he been properly advised, he "may have requested the State's recommendation that he not register as a sex offender be specifically incorporated into the plea agreement. Or [he] may have explored a guilty plea to other offenses not subject to the sex offender registration requirement." But the Strickland test is not satisfied by showing that there may have been some other outcome, however speculative or remote.
Id.
In the plea bargain context, "in order to satisfy the `prejudice' requirement, the defendant must show that 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." This Mahony cannot do. The trial court offered Mahony the opportunity to withdraw his guilty plea, and Mahony declined. We conclude that Mahony has failed to show he was prejudiced by his counsel's actions. Therefore, we need not consider the deficient performance prong.
Hill, 474 U.S. at 59.
Appellate Counsel
Mahony also argues that his counsel for the prior appeal was deficient in failing to raise the issue of alleged ineffective assistance of trial counsel. He also contends that appellate counsel failed to adequately address the absence of evidence in the record to which this court referred in Mahony's prior appeal. We disagree.
A criminal defendant has a right to have effective assistance of counsel on his first appeal of right. Often, a criminal defendant's first opportunity to raise an ineffective assistance of appellate counsel claim is often on collateral review. This court has held that: "[i]n order to prevail on an appellate ineffective assistance of counsel claim, petitioners must show that the legal issue which appellate counsel failed to raise had merit and that they were actually prejudiced by the failure to raise or adequately raise the issue."
Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).
In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 777, 100 P.3d 279 (2004).
In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 344, 945 P.2d 196 (1997).
Failure to raise all possible nonfrivolous issues on appeal is not ineffective assistance, and the exercise of independent judgment in deciding what issues may lead to success is the heart of the appellate attorney's role. Yet if a petitioner can show that his appellate counsel failed to raise an issue with underlying merit, then the first prong of the ineffective assistance test is satisfied.
In re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994).
Here, as we have held, Mahony's ineffective assistance of trial counsel claim cannot be sustained. Neither can his claim against appellate counsel, which rests essentially on the same basis.
The claim respecting the lack of evidence in the record on which this court relied when it declined to reach the mutual mistake issue in the prior appeal does not provide a basis for an ineffective assistance of counsel claim. Mahony has taken advantage of the opportunity to supplement the record with an affidavit of trial counsel regarding the negotiations of the plea agreement. We see no prejudice.
MUTUAL MISTAKE
Mahony argues that he was entitled to specific performance of his plea agreement on the basis of mutual mistake. We reject this argument. A plea agreement is a contract and is to be analyzed in accord with contract principles. In order to show mutual mistake, the mistaken fact must be the underlying basis for the entire agreement. Furthermore, the erroneous belief must relate to the facts as they exist at the time of the making of the contract. "A party's prediction or judgment as to events to occur in the future, even if erroneous, is not a "mistake." . . ." "[W]hen a mutual mistake occurs regarding a standard sentence range, a defendant may choose to either specifically enforce the plea agreement, or to withdraw the plea."
State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997).
SPEEA v. Boeing Co., 139 Wn.2d 824, 832, 991 P.2d 1126 (2000).
Restatement (Second) of Contracts, sec. 151 (1981); Denaxas v. Sandstone Court of Bellevue, LLC, 148 Wn.2d 654, 668 n. 8, 63 P.3d 125 (2003) (`The elements of mistake in Washington jurisprudence closely follow those in the Restatement (Second) of Contracts sec.sec. 151-53 (1981).').
State v. Moon, 108 Wn. App. 59, 63, 29 P.3d 734 (2001).
Here, both parties to the agreement had a mutually correct belief that registration was not required when they negotiated the plea. Prior to the change in the law, there would have been no basis to overturn the agreement because the change related to future events, not existing events. Counsel's statement confirming the facts confirm the understanding: "At the time [the] parties negotiated the plea agreement, misdemeanor CWMIP was not a registration offense." During negotiation and "through the plea itself, it was the understanding of both the state and defense" that there was no registration requirement.
Counsel further testified that a nonregistration offense "was an important factor to Mr. Mahony, and continued to be important to him during the course of a post-plea motion." While "important," the claim that non-registration was the underlying basis of the agreement cannot be sustained. That is because that upon learning about the changed registration requirement, Mahony declined to withdraw his plea when given the opportunity to do so by the trial court. Thus, we decline to conclude that rescission of the plea agreement was required.
Finally, Mahony relies on State v. Miller to argue that he should be granted specific performance and not be required to register as a sex offender on the basis of mutual mistake. In Miller, the prosecutor and defense counsel erroneously believed that a sentence of less than 20 years was possible for the crime of first degree murder. As a result, Miller was not advised before he pleaded guilty that his offense carried a mandatory minimum of 20 years. The Washington Supreme Court held that Miller could withdraw his plea or have the plea agreement specifically enforced.
110 Wn.2d 528, 756 P.2d 122 (1988).
Id. at 529.
Id.
Id. at 536-37; see also Moon, 108 Wn. App. at 63 (`[W]hen a mutual mistake occurs regarding a standard sentence range, a defendant may choose to either specifically enforce the plea agreement, or to withdraw the plea.').
Here, unlike in Miller, there was no mutual mistake to support the requested remedy. Mahony failed to show mutual mistake that would entitle him to specific performance of the plea agreement.
DUE PROCESS
Finally, Mahony argues that failure to inform him of the registration requirement in effect at the time he entered his plea violated both substantive and procedural due process. We reject this claim, holding that he was advised of the requirement at sentencing. That is sufficient. Here, Mahony was advised of the sentencing requirement by counsel, after the plea hearing, but prior to sentencing. In fact, he filed a motion to have the requirement stricken. The court also advised him of the requirement at sentencing. Mahony appealed the sentence that included a registration requirement. The argument here is unpersuasive.
State v. Clark, 75 Wn. App. 827, 832, 880 P.2d 562 (1994).
We dismiss the personal restraint petition.
SCHINDLER and GROSSE, JJ., concur.