Opinion
No. 64002-0-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 07-1-02909-1, Julie A. Spector, J., entered February 17, 2009.
Remanded by unpublished opinion per Spearman, J., concurred in by Dwyer, C.J., and Grosse, J.
A defendant who is misinformed regarding a direct sentencing consequence such as mandatory community custody is permitted to withdraw his or her guilty plea, regardless of whether the actually imposed sentencing consequence is lower or higher than anticipated. Here, Amnon Ashe's guilty plea to first degree theft and second degree trafficking in stolen property incorrectly indicated that the trial court would impose community custody. As such, Ashe was misinformed about a direct sentencing consequence, and we remand to allow him to withdraw his plea.
FACTS
The State charged Amnon Ashe with unlawful issuance of a bank check, first degree theft, and second degree trafficking in stolen property. Ashe pled guilty to the theft and trafficking charges. Before sentencing, Ashe moved to withdraw his plea, arguing his previous attorney misadvised him that his felonies would be "converted" to misdemeanors. At the hearing on Ashe's motion to withdraw his guilty plea, Ashe testified he never would have pled guilty to a felony because he would no longer be allowed to possess a firearm, and would therefore lose his military career. The State submitted a declaration from Ashe's previous attorney stating he never advised Ashe that the felony charges would be converted to misdemeanors. The trial court denied the motion, characterizing it as "a classic case of buyer's remorse."
The court imposed a sentence of three months of work release. Given community custody was not authorized for Ashe's sentence,see Laws of 2006, ch. 128, § 4 community custody was not discussed at sentencing, nor was it imposed by the court. However, that portion of Ashe's plea agreement discussing community custody was not crossed out. As such, Ashe's plea agreement states that the court "will" sentence him to community custody:
For crimes committed on or after July 1, 2000, the judge will sentence me to the community custody range which is from months to months or up to the period of earned release awarded pursuant to 9.94A.728, whichever is longer, unless the judge finds substantial and compelling reasons to do otherwise. During the period of community custody I will be under the supervision of the Department of Corrections, and I will have restrictions and requirements placed upon me. My failure to comply with these conditions will result in the Department of Corrections transferring me to a more restrictive confinement status or other sanctions being imposed. [If not applicable, this paragraph should be stricken and initialed by the defendant and the judge ___ .]
Ashe appeals from entry of his guilty plea and his judgment and sentence.
DISCUSSION
Ashe argues his plea agreement incorrectly informed him he would be sentenced to community custody, and as such, he was misinformed of a direct sentencing consequence and should be able to withdraw his plea. We agree.
"A defendant's decision to plead guilty must be knowing, intelligent, and voluntary." In re Pers. Restraint of Quinn, 154 Wn. App. 816, 835, 226 P.3d 208 (2010) (citingState v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006)). "To qualify as a knowing and intelligent plea, a guilty plea must be made with a correct understanding of the charge and the consequences of pleading guilty." Quinn, 154 Wn. App. at 835 (citing State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). "A guilty plea is not knowingly made when it is based on misinformation regarding sentencing consequences." Quinn, 154 Wn. App. at 835-46 (citingState v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988)). "The imposition of mandatory community placement or community custody is a direct consequence of a guilty plea." Quinn, 154 Wn. App. at 836 (citingState v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003) and State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996)). Additionally, "`a guilty plea may be deemed involuntary when based on misinformation regarding a direct consequence on the plea, regardless of whether the actual sentencing range is lower or higher than anticipated.'"Quinn, 154 Wn. App. at 838 (quoting Mendoza, 157 Wn.2d at 591). Further, "a defendant's misunderstanding of the sentencing consequences when pleading guilty constitutes a `manifest error affecting a constitutional right. . . .'"Mendoza, 157 Wn.2d at 589 (quoting Walsh, 143 Wn.2d at 7-8; RAP 2.5(a)(3)). Ashe is therefore entitled to raise this issue for the first time on appeal.
Here, Ashe's plea agreement incorrectly indicated that the court "will" impose community custody. As such, he was misinformed of a direct sentencing consequence. Quinn, 154 Wn. App. at 836-38; Mendoza, 157 Wn.2d at 591. The State nevertheless claims Ashe was not misinformed. The State notes that the spaces on the plea agreement where the parties were to fill in a time period for community custody were left blank. The State asks this court to apply the "context rule" articulated in Berg v. Hudesman, 115 Wn.2d 667, 801 P.2d 222 (1990) to the plea agreement, and claims that under the context rule, "the most reasonable reading" of the plea agreement, with its blank spaces, is that "no community custody range was applicable."
We reject this argument. The "context rule" is used merely "as an aid in ascertaining the parties' intent" in civil contract disputes. Berg, 115 Wn.2d at 667. Such an aid has no application here, given our Supreme Court has repeatedly rejected an approach that focuses on the materiality of the sentencing consequence to the defendants' subjective intent and thought processes in pleading guilty:
We have already held the length of the sentence is a direct consequence of pleading guilty. We have also declined to adopt an analysis that focuses on the materiality of the sentencing consequence to the defendants' subjective decision to plead guilty.
. . .
A knowing, voluntary, and intelligent guilty plea requires a meeting of the minds. In determining whether the plea is constitutionally valid, we decline to engage in a subjective inquiry into the defendant's risk calculation and the reasons underlying his or her decision to accept the plea bargain. Accordingly, we adhere to our precedent establishing that a guilty plea may be deemed involuntary when based on misinformation regarding a direct consequence on the plea, regardless of whether the actual sentencing range is lower or higher than anticipated.
Mendoza, 157 Wn.2d at 590-91 (internal citations omitted).
In short, Berg has no application here, and we will not speculate as to how the incorrect community custody language in the plea agreement affected Ashe's decision to plead guilty. Ashe was misinformed about a direct sentencing consequence, and is entitled to withdraw his plea.
Remanded for further proceedings consistent with this opinion.