Opinion
No. 55469-7-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 91-1-01940-8, Michael Hayden, J., entered February 17, 2005.
Affirmed in part and remanded by unpublished opinion per Appelwick, C.J., concurred in by Coleman and Agid, JJ.
Rickey Calhoun seeks to withdraw his 1991 guilty plea to second degree rape and attempted second degree rape, claiming the plea was involuntary because he was informed that the standard range was higher than it actually was. This error was corrected in the judgment and sentence, but other errors occurred, including the court's sentencing of Calhoun to more than the statutory maximum. A decade later, that error was discovered. The superior court corrected that error and others at resentencing, but did not allow Calhoun to withdraw his plea. Calhoun claims he is not subject to the RCW 10.73.090(1) one-year time bar for collateral attack because his judgment and sentence was invalid on its face, and because he was not told of the time limit for review when his judgment and sentence was pronounced. Pro se, Calhoun raises additional issues, mostly relating to his pending sexually violent predator (SVP) proceedings. We remand to the sentencing court for correction of Calhoun's offender score, but affirm on all other issues.
FACTS
In November 1991, Rickey Calhoun pleaded guilty to an attempted second degree rape that occurred in 1990 and a second degree rape that occurred in 1989. The State assigned Calhoun an offender score of six for the rape and seven for the attempt. In the plea documents, the State had erroneously listed the seriousness level of the 1989 rape as ten, when it was actually eight. Former RCW 9.94A.320, .310 (1989). Calhoun was thus told the standard range for his 1989 offense was higher than it actually was. The State told Calhoun that it was recommending a sentence at the top of the higher standard range, 130 months, in exchange for the State's promise not to file charges in three additional sex crimes. Calhoun was also told that the statutory maximum for his crimes was ten years.
By the time the judgment and sentence was entered in January 1992, the State had discovered additional criminal history and claimed Calhoun's offender score was nine for both offenses. The error in seriousness level for the 1989 rape was corrected. The State again recommended a sentence at the top of the higher standard range, 148.5 months. The court accepted the State's recommendation and sentenced Calhoun to 148.5 months for the attempt, and 144 months for the rape, both at the top of their respective ranges and to be served concurrently. The record does not reflect that Calhoun was informed of the statutory one-year time limit for collateral attacks.
After the State's premature attempt to file a SVP petition in 2000, Calhoun returned to prison. At about the same time, the Department of Corrections (DOC) discovered that Calhoun had been sentenced to more than the statutory maximum. The State filed a motion to modify the judgment and sentence, and on July 3, 2002, the superior court changed the sentence on both counts to 120 months. Calhoun was not notified of this proceeding, nor was an attorney for Calhoun present.
The Department of Corrections (DOC) had initially calculated Calhoun's early release date as November 4, 2000. As Calhoun was about to be released, the State filed an SVP petition. While Calhoun's SVP trial was pending, DOC recalculated his release date as November 26, 2004. The court dismissed the State's petition without prejudice because Calhoun was not about to be released from total confinement, as the SVP statute required. Calhoun returned to prison.
The State filed another SVP petition on July 12, 2002. The court found probable cause, and Calhoun is currently detained, awaiting his SVP trial.
When Calhoun learned of the July 2002, resentencing, he filed a motion to vacate the order, contending that his rights to counsel and to due process had been violated. He argued that his plea was involuntary because he was misinformed of the standard range. He also argued that his plea could not be used in the SVP proceeding.
The State conceded that the 2002 resentencing was invalid because Calhoun had not been given notice. In November 2004, the court vacated the original 1992 sentence and the 2002 order modifying the judgment and sentence. However, the court denied the plea withdrawal and set a date for resentencing.
In December 2004, the court resentenced Calhoun. A change in the law after the original sentencing in 1992 substantially changed Calhoun's new sentence. In re Personal Restraint of Sietz established that prior offenses served concurrently should be counted as a single offense for the purpose of calculating an offender score. Sietz, 124 Wn.2d 645, 648-49, 880 P.2d 34 (1994). As a result, the trial court recalculated the offender score to reflect a single offense instead of the 1982 and 1985 convictions that had previously counted as two separate offenses. The score also changed because the sentencing court found that a previously included juvenile offense washed out "prior to any of the statutory amendments that would have revived it." The court determined the new offender scores to be 6 for Count I and 5 for Count II. The standard ranges became 73.5 to 97.5 months and 46 to 61 months respectively. The court sentenced Calhoun to 97.5 months and 61 months, to be served concurrently and noted that the sentence was satisfied. According to his November 1991 plea agreement, Calhoun acknowledged that the standard range and recommended sentence could change based on discovery of additional criminal history. His plea agreement further stipulated that he could not withdraw his plea due to an increase based on additional criminal history. He does not challenge the corrected offender score or its consequences in this appeal. The resentencing resolved the errors of the initial sentencing and reflected the new law.
Calhoun contends that other errors should allow for withdrawal of his plea, but the errors do not show that he was misinformed about a direct result of his plea. Calhoun claims that the disparity in the sentences between the 1992 and 2004 sentences shows that his original judgment and sentence is invalid on its face and that his plea was based on misinformation. The sentencing range in the plea differs from the final sentence due to both error and changes in the law. Calhoun cannot use the decrease in the sentence based on the new law established by Seitz to challenge the voluntariness of his plea.
The juvenile offense was not in the criminal history used to calculate the standard range in the plea agreement. The offense was discovered before the 1992 sentencing and resulted in the increased offender score. Because the plea agreement did not include the juvenile offense and stipulated that his score could change based on new information, the juvenile offense inclusion and wash-out cannot serve as a basis for the plea withdrawal.
ANALYSIS
Calhoun asserts that his guilty plea was not knowing, intelligent, and voluntary because it was based on a misunderstanding of the direct sentencing consequences of his plea. He claims that he can challenge the plea so many years after it was entered because he was not informed of the one-year time limit for collateral attack at the time his judgment and sentence was pronounced.
Generally, no collateral attack on a judgment and sentence may be filed more than one year after the judgment is final "if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." RCW 10.73.090(1). "At the time judgment and sentence is pronounced in a criminal case, the court shall advise the defendant of the time limit specified in RCW 10.73.090 and 10.73.100." RCW 10.73.110. The time bar in RCW 10.73.090(1) is conditioned on compliance with RCW 10.73.110. State v. Golden, 112 Wn. App. 68, 78, 47 P.3d 587 (2002) (citing In re Pers. Restraint of Vega, 118 Wn.2d 449, 451, 823 P.2d 1111 (1992)). Assuming without deciding that Calhoun was not informed of the time limit and can thus bring this collateral attack, we find that his plea was not involuntary.
RCW 10.73.110 was enacted in 1989. Laws of 1989, ch. 395, § 4. Thus, it applied to Calhoun's sentencing proceedings in 1992.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). A plea is involuntary if made without an understanding of all direct consequences of the plea, including the sentencing range. State v. Paul, 103 Wn. App. 487, 494-95, 12 P.3d 1036 (2000). A guilty plea is considered involuntary, and withdrawal of the plea is available, if it was based on misinformation regarding direct consequences of the plea. State v. Mendoza, 157 Wn.2d 582, 584, 141 P.3d 49 (2006). A plea is considered involuntary even if a miscalculation results in a lower standard range than anticipated during plea negotiations. Id. However, a defendant may waive the right to challenge the validity of the plea if informed of the miscalculation and given the opportunity to withdraw the plea prior to sentencing. Id. at 591.
At the time of his plea, Calhoun was misinformed about the seriousness level of one of the charges, which led to a decrease in the standard sentencing range. Mendoza applies directly to the case at hand. Mendoza pled guilty to one count of child molestation in the third degree. Id. at 584. His Statement of Defendant on Plea of Guilty gave an offender score and resulting sentencing range that were subsequently found incorrect during preparation of the sentencing report. Id. at 584-85. Mendoza's offender score and standard range were actually lower than those stated in the plea agreement. The mistake was discovered and the State corrected it at the sentencing. The State asked for a sentence within the standard range. Id. at 585. Mendoza did not object or express concern about these changes during his sentencing. Id. He did not ask to withdraw his plea. On his later challenge, the court ruled he had waived his right to withdraw the plea.
At the time Calhoun entered his plea, the State incorrectly determined Count II had a seriousness level of ten, instead of eight. As a result, Calhoun was told the standard range for his offense was higher than it actually was. The State corrected this error in presentencing documents and in court. The corrected seriousness level decreased the standard range. However, the State had also discovered an additional prior offense which raised his offender score and sentencing range and offset the decrease. Like Mendoza, Calhoun was fully informed about the corrections to his seriousness level, offender score and standard range at the January 1992 sentencing. Calhoun neither expressed concern about the calculation of the score and its resulting sentencing range nor asked to withdraw the plea at that time.
The error at issue that allegedly renders the plea involuntary is the misstated standard range due to the mistaken seriousness level. The Mendoza decision provides a basis to withdraw a plea if the seriousness level and resulting standard range are miscalculated. "[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. Absent a showing that the defendant was correctly informed of all of the direct consequences of his guilty plea, the defendant may move to withdraw the plea." Mendoza, 157 Wn.2d at 591.
However, "where it is clear that a defendant was informed of the miscalculation before sentencing and does not object or move to withdraw the plea on that basis, the defendant cannot challenge the voluntariness of the plea on appeal." Id. at 584. Calhoun was informed of the changes to his seriousness level and the standard range at the sentencing hearing in January 1991. At that time, he did not request that the plea be withdrawn. Like Mendoza, Calhoun waived his right to challenge the validity of his plea. This precludes him from now challenging the plea.
Additionally, Calhoun cannot challenge the plea because his sentence exceeded the statutory maximum of 120 months. "By sentencing petitioner to terms beyond the maximum periods allowed by statute, the trial court exceeded its authority, and the sentences are not valid on their face." In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 356, 5 P.3d 1240 (2000). While this error renders his sentence invalid, it does not affect the voluntariness of his plea. Calhoun was properly informed of the statutory maximum at the time of his plea in 1991. The plea agreement specifically and correctly advised Calhoun that the maximum sentence was ten years, and the prosecutor reiterated this at sentencing. Because Calhoun was not misinformed as to the consequences that stem from this aspect of his guilty plea, the inconsistency provides no basis for withdrawal of the plea. State v. Kennar, 135 Wn. App. 68, 76, 143 P.3d 326 (2006) (defendant was properly informed of statutory maximum therefore claimed sentencing error not basis to conclude plea was not knowingly, intelligently, and voluntarily entered). However, he was entitled to be resentenced. "When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence, when the error is discovered." In re Personal Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). The trial court corrected this error when it resentenced Calhoun.
The plea documents show that the State recommended a sentence of 130 months. The court was only authorized to sentence Calhoun to a maximum of 120 months. RCW 9A.20.021(1)(b). But this does not show that Calhoun was misinformed as to the direct consequences of his plea — rather, it only shows that the State was going to recommend a sentence in excess of the statutory maximum, which properly should have been rejected. The fact that the excessive sentence was not rejected by the sentencing court, and more months were added to it, does not change the fact that Calhoun was properly informed of the ten year maximum at the time of his plea.
The trial court properly denied the motion to withdraw the plea.
Additional Grounds for Review A. Ineffective Assistance of Counsel
Calhoun contends that his counsel was ineffective for several reasons. He asserts that counsel was ineffective for allowing him to be sentenced for more than the statutory maximum and the standard range. He also contends that his counsel was ineffective for not securing in the plea agreement the State's promise not to file a SVP petition.
CrR 4.2(f) provides that a trial court must permit the withdrawal of a guilty plea to correct a manifest injustice. Denial of effective counsel is one way to establish a manifest injustice. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). When a defendant challenges his or her guilty plea on the basis of ineffective assistance of counsel, he or she must show with reasonable probability that, but for counsel's deficient performance, he or she would not have pleaded guilty and would have proceeded to trial. State v. Garcia, 57 Wn. App. 927, 932-33, 791 P.2d 244 (1990).
Insofar as Calhoun is asserting that because of his counsel's errors he was incorrectly sentenced in 1992 that wrong has been remedied: Calhoun has been resentenced. Further, insofar as Calhoun is challenging the voluntariness of his plea, he has not shown that he would not have pleaded guilty and would have instead gone to trial if his counsel had informed him of the correct sentencing range. Finally, Calhoun has not shown that his counsel was ineffective for not securing a promise from the State not to file a SVP petition. Contrary to Calhoun's assertion that there was no reason for him to have taken the plea without such a promise, Calhoun avoided prosecution on three other matters in exchange for his guilty plea. He cannot show deficient performance.
B. Community Placement
Calhoun claims that the trial court erred when, during the December 2004 resentencing, it allowed the State to count one point towards Calhoun's offender score for being on community placement for the 1982 and 1985 convictions when he committed the instant crimes. He claims that since community placement only came into effect in 1988 and he was sentenced for his 1982 and 1985 crimes before 1988, he could not have been on community placement at the time of the instant crimes.
Calhoun's assertion appears to be correct, although the record does not contain copies of Calhoun's paperwork from his 1982 and 1985 convictions. In its sentencing memorandum, the State alleged that Calhoun was on "community placement" for his 1982 conviction until 1994, and for his 1985 conviction until May 1990. Calhoun's counsel agreed that Calhoun was "on parole" at the time of the instant offenses. However, the term "community placement" was not added to definitions in the criminal code until 1988. Laws of 1988, ch 153, § 1; see also e.g., former RCW 9.94A.030(4)(1987). The provision that one point would be added to an offender score if the crime was committed while on community placement was also added in 1988. Laws of 1988, ch. 153, § 12. Before 1988, it does not appear that there was any provision in the criminal code allowing the State to count a point towards a defendant's offender score if he or she was on parole at the time of the instant offense. Although the community placement provisions were in place when Calhoun committed the instant crimes, the record indicates that the provisions were not in place when he was sentenced in 1982 and 1985. We found nothing in the criminal code that allows the State to convert parole or community supervision, sentencing aspects that existed before 1988, into community placement when the 1988 laws were enacted. The State has not submitted any argument in response to Calhoun's pro se brief. See RAP 10.2(c). Thus, from the record before us, it appears that Calhoun is correct.
Further, we cannot say that Calhoun's claim is moot. See State v. Raines, 83 Wn. App. 312, 315, 922 P.2d 100 (1996) (holding that defendant's objections to court's modification of his sentence were not moot, even though he had served the entire modified sentence, because the modifications could cause a future sentencing court to impose additional demanding conditions of community placement or sway a court to impose the high end of the standard range) superseded by statute on other grounds, Laws of 1999, ch 196, § 5 as recognized in State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003). Accordingly, remand to the sentencing court for recalculation of Calhoun's offender score and sentence is required.
C. Validity of Conviction as it Relates to SVP Proceedings
Calhoun makes several arguments regarding how his current conviction relates to his upcoming SVP trial. First, he asserts that because his judgment and sentence is invalid on its face due to the excessive sentence, the sentencing court should have recognized that the conviction cannot be considered in his upcoming SVP proceedings. Second, Calhoun asserts that once he claimed below that he could no longer be detained for the SVP proceeding because of the invalidity of the judgment and sentence, the sentencing court should have allowed him to brief the issue and should have considered the validity of his detention, rather than defer to this court. Finally, Calhoun requests that we assign him counsel and order briefing on the issue of whether his SVP proceeding can be stayed while the conviction that is the basis for the SVP petition is still being litigated. Calhoun also requests that the court allow his counsel to brief why the SVP petition should be dismissed, regardless of whether he is allowed to withdraw his plea. These issues appear to be collateral to the question of withdrawal of his plea and are all more appropriately raised in the context of Calhoun's SVP trial. We decline to reach them.
We remand to correct Calhoun's offender score and sentence, but otherwise affirm.