Opinion
No. 28665-3-II.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No. 00-1-00466-9. Judgment or order under review. Date filed: 03/01/2002. Judge signing: Hon. David R Draper.
Counsel for Appellant(s), John Rodney Crowley, Crowley Leen LLP, 601 Union St. Ste 4610, Seattle, WA 98101-4050.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001 360 NW North St., Chehalis, WA 98532-1925.
Christopher Carr appeals his jury convictions for possession and manufacture of methamphetamine, contending that he was convicted of an uncharged crime and that his convictions violate the prohibition against double jeopardy. Carr also appeals pro se under a variety of theories, including ineffective assistance of counsel, failure to disclose exculpatory evidence, trial transcript alteration, erroneous admission of evidence, miscalculation of offender score, and failure to inform him of the maximum sentence he could receive. We affirm.
FACTS
On August 5, 2000, Lewis County Deputy Sheriff Bruce Kimsey responded to a domestic dispute between Carr and his wife. Kimsey arrested Carr. During a search of Carr incident to the arrest, Kimsey discovered pictures of a methamphetamine laboratory in Carr's pants pocket.
The following day, police officers served search warrants at 2508 Seminary Hill Road, Centralia, Lewis County ('2508'), Carr's residence, and 2479 Seminary Hill Road ('2479'), a nearby property belonging to Carr and his family. In Carr's residence at 2508, the officers found several items consistent with the methamphetamine production. For example, the officers discovered surgical tubing, Pyrex dishes, coffee filters, and methamphetamine powder in Carr's master bedroom. They also discovered 13 marijuana plants in the basement of the residence. At trial, Carr testified that he had lived at the residence for almost 30 years. On August 7, police returned to search a motor home at Carr's residence, where they found glassware, coffee filters, unidentified liquids, and documents belonging to Carr. In a separate mobile home on the property owned by Carr's family, 2479, officers found, among other things, photographs of Carr and others, glassware, tubing, ammonia, and books describing the methamphetamine manufacturing process. In October 2001, over a year later, the police returned and searched what they described as a 'dump site' at 2479, where they discovered more solvent containers, ammonia compressed gas cylinders, and other items.
The State charged Carr with four crimes: manufacture of marijuana (Count I), possession of methamphetamine (Count II), second degree malicious mischief (Count III), and manufacture of methamphetamine (Count IV). Count IV of the amended information, charging Carr with 'manufacture [of] a controlled substance, to-wit: methamphetamine,' incorrectly cited RCW 69.50.401(a)(1)(iii), the section of the statute that applies to controlled substances other than methamphetamine. Clerk's Papers (CP) at 17. Count IV also listed an incorrect maximum penalty of '5 years in prison and a $10,000 fine.' CP at 17. The correct maximum penalty under RCW 69.50.401(a)(1)(ii) is imprisonment for not more than 10 years or a fine of $25,000, or both, if the crime involved less than two kilograms of the drug.
At Carr's jury trial, the State introduced photographs of the property taken by the officers. The State at first offered the photographs one by one. Later, the court admitted photographs in large groupings; Carr did not object.
Also at trial, Carr's sister, Andrea Thielen, identified Carr's handwriting inside of the books describing the methamphetamine manufacturing process. Jill Arwine of the Washington State Patrol crime lab, the State's fingerprint expert, identified Carr's fingerprints in the books. The court admitted various books into evidence.
Carr, the only defense witness, denied knowledge of the marijuana in the basement of his residence, and he claimed that he was unaware of any methamphetamine production on the property.
The jury returned a guilty verdict on the charges of manufacture of marijuana, possession of methamphetamine, and manufacture of methamphetamine. At Carr's sentencing, the court found that Carr's offenses did not constitute the same criminal conduct.
The State had withdrawn Count III, the second degree malicious mischief charge.
ANALYSIS (1) Uncharged Crime
Carr contends that because Count IV of the amended information cited the incorrect subsection of the statute, he was impermissibly convicted of either (1) a crime not charged in the information or (2) an uncharged alternative manner of committing a charged crime.
We disagree. The information cited RCW 69.50.401(a)(1)(iii), which addresses controlled substances other than those in sections (i) and (ii) of that statute. Manufacturing of amphetamine and methamphetamine are covered under RCW 69.50.401(a)(1)(ii). Count IV correctly identified the controlled substance as methamphetamine, but it incorrectly listed the maximum penalty as '5 years in prison and a $10,000 fine.' CP at 17. Carr did not challenge the information at trial.
RCW 69.50.401 provides in relevant part:
(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
. . . .
(ii) amphetamine or methamphetamine, is guilty of a crime and upon conviction may be imprisoned for not more than ten years, or (A) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine; or (B) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms and not more than fifty dollars for each gram in excess of two kilograms, or both such imprisonment and fine. Three thousand dollars of the fine may not be suspended. . . .
(iii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both.
As for Carr's first contention that he was convicted of a crime not charged in the information, all essential elements of a crime must be included in the charging document in order to provide notice to an accused of the nature and cause of the allegation against him. See Wash. Const. art. 1, sec. 22 (amend. 10); RCW 10.37.050(6); State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991). One reason that this is required is that defendants must be apprised with reasonable certainty of the nature of the accusations against them so that they may prepare an adequate defense. State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989); State v. Grant, 89 Wn.2d 678, 686, 575 P.2d 210 (1978). Where sufficiency of the information is not challenged until after the verdict, however, the information will be liberally construed in favor of validity. Kjorsvik, 117 Wn.2d at 103. The test for sufficiency of the charging document, if challenged for the first time on appeal, is first, whether the necessary facts appear in any form or, by fair construction, can be found in the charging document; and second, if so, whether the defendant can show that he was nonetheless actually prejudiced by the inartful language that caused a lack of notice. Kjorsvik, 117 Wn.2d at 105-06.
The pertinent language in RCW 10.37.050 provides:
The indictment or information is sufficient if it can be understood therefrom
. . . .
(6) That the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
Here, the information is being challenged for the first time on appeal, and Carr must overcome a higher burden to show that Count IV was defective. But the information meets the constitutional and statutory notice requirements under either standard. Count IV charged Carr with 'knowingly, unlawfully and feloniously manufactur[ing] a controlled substance, to-wit: methamphetamine.' CP at 17. This language satisfies the statutory notice requirement that the crime charged be set forth in 'ordinary and concise language.' See RCW 10.37.050(6). Under the constitutional test, the essential elements of the crime are present, despite the incorrect citation to the statute. See CrR 2.1(a); State v. Hopper, 118 Wn.2d 151, 159-60, 822 P.2d 775 (1992). Moreover, Carr does not argue that the mistake prejudiced him in his ability to present a defense.
CrR 2.1(a)(1) reads in pertinent part:
The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice. (Emphasis added.)
Carr's second contention is that he was convicted under an uncharged alternative manner. Under both state and federal constitutions, a defendant cannot be tried for an uncharged offense. U.S. Const. amend. VI; Wash. Const. art. I, sec. 22 (amend. 10); State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988); State v. Frazier, 76 Wn.2d 373, 376, 456 P.2d 352 (1969). When a statute provides that a crime may be committed in different ways or by different means, the State may charge in the information that the crime was committed in one or all of the ways specified; however, when the information charges that the crime was committed by only one of the ways named in the statute, the court cannot instruct the jury that they may consider the ways by which the act may have been committed, regardless of the strength of the evidence presented at trial. State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942). Because the plain language of Count IV indicated that the charge was manufacture of methamphetamine and not another substance, and the trial court properly instructed the jury on the elements of the crime, the incorrect citation of the statute did not result in Carr's being convicted of an uncharged crime or an uncharged alternative means of committing a crime.
(2) Double Jeopardy
Carr next contends that his convictions under Count II, possession of methamphetamine, and Count IV, manufacture of methamphetamine, violate the prohibition against double jeopardy because the offenses constituted the same conduct.
We will not review an alleged error not raised at trial unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). The constitutional prohibition against double jeopardy protects an individual from multiple punishments for the same offense. Wash. Const. art. I, sec. 9. The Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932) 'same elements' test determines whether multiple prosecutions violate the double jeopardy clause of the Washington constitution. State v. Gocken, 127 Wn.2d 95, 102, 896 P.2d 1267 (1995). See Blockburger 284 U.S. at 304. The prohibition against double jeopardy applies if the two charged offenses are legally identical and are based on the same act or transaction. Blockburger, 284 U.S. at 304. If there is one element of the offense that is not present in the other offense, then the offenses are not the same offense. State v. Cole, 128 Wn.2d 262, 285 n. 18, 906 P.2d 925 (1995) (citing Blockburger, 284 U.S. at 304).
Applying this test to the statutes at issue here reveals that Carr's rights were not violated because possession and manufacture of methamphetamine are not the same offense under Blockburger. RCW 69.50.401(d) provides: 'It is unlawful for any person to possess a controlled substance,' but it does not require the person possessing the controlled substance to have manufactured it. The statute prohibiting manufacture of a controlled substance, RCW 69.50.401(a), does not require possession of the completed controlled substance. The elements of manufacturing are the (1) unlawful, felonious, and (2) knowing (3) manufacture of (4) a controlled substance. Accordingly, we reject Carr's double jeopardy claim.
(3) Ineffective Assistance of Counsel (A) Photographic evidence
In his Statement of Additional Grounds for Review (SAG), Carr contends that his counsel's performance was deficient in that he failed to object to admission of 'large blocks of photographic evidence . . . without ever even looking at it.' SAG at 1. He correctly points out that failure to provide effective assistance of counsel violates the sixth amendment.
RAP 10.10, 'Statement of Additional Grounds for Review' provides in part:
(a) Statement Permitted. A defendant/appellant in a review of a criminal case may file a pro se statement of additional grounds for review to identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel.
. . . .
(c) Citations; Identification of Errors. Reference to the record and citation to authorities are not necessary or required, but the appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in RAP 18.3(a)(2), the appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review.
. . . .
(e) Report of Proceedings. If within 30 days after service of the brief prepared by defendant/appellant's counsel, defendant/appellant requests a copy of the verbatim report of proceedings from defendant/appellant's counsel, counsel should promptly serve a copy of the verbatim report of proceedings on the defendant/appellant and should file in the appellate court proof of such service. The pro se statement of additional grounds for review should then be filed within 30 days after service of the verbatim report of proceedings. The cost for producing and mailing the verbatim report of proceedings for an indigent defendant/appellant will be reimbursed to counsel from the Office of Public Defense in accordance with Title 15 of these rules.
(f) Additional Briefing. The appellate court may, in the exercise of its discretion, request additional briefing from counsel to address issues raised in the defendant/appellant's pro se statement.
To show ineffective assistance of counsel in violation of the sixth amendment, an appellant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance, the outcome would have been different. In Re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give deference to trial counsel's performance and presume that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Here, before the court admitted the first large group of photographs, the State had laid the foundation and offered a number of photographs into evidence, one at a time. Carr's counsel stated that he had reviewed all of the photographs when the first 60 were admitted. And the court admitted additional photographs in smaller groups. Carr does not argue that the photographs would have been ruled inadmissible had his counsel objected. Thus, not only has Carr failed to demonstrate that his counsel was objectively deficient, he has also failed to demonstrate how the admission of the photographic evidence prejudiced his case. Accordingly, Carr has not established that his counsel was ineffective for failing to require the State to offer admissible photographic evidence one picture at a time.
(B) Failure to Call Expert Witness
Carr also contends that his counsel's failure to call Washington State Patrol Detective Orest Wilson constituted ineffective assistance. Carr asserts that Wilson would have presented expert testimony to the effect that 'no methamphetamine had ever been produced at any of these sites.' SAG at 8. Carr complains that his attorney merely stated that because Wilson was stuck in traffic, 'we didn't need him.' SAG at 9.
Carr has the burden to provide adequate record to review issues raised; the trial court's decision must stand if this burden is not met. See RAP 9.2. See also State v. Slanaker, 58 Wn. App. 161, 165, 791 P.2d 575 (citing Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)), review denied, 115 Wn.2d 1031 (1990); State v. Slemmer, 48 Wn. App. 48, 738 P.2d 281 (1987).
Here, Carr's challenge to his attorney's failure to call a witness and the nature of that witness's testimony does not appear in the record and is not properly before us for review. See McFarland, 127 Wn.2d at 338 n. 5 (a personal restraint petition is the proper vehicle for review of matters outside the record).
(4) Disclosure of Exculpatory Evidence
Carr next contends that the prosecution failed to disclose a taped statement from his wife taken on August 5, 2000, the day he was initially arrested. Carr has identified the issue as one of 'exculpatory evidence' and he states, 'The prosecution had a duty to disclose to the court that they had this information.' SAG at 2-3.
The prosecution has an obligation to turn over to the defense evidence in its possession or knowledge that is both favorable to the defendant and material to guilt or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This rule is based on the constitutional requirement of due process. Bagley, 473 U.S. at 675. See also CrR 4.7(a) (prior statements of a witness). But Carr has failed to present any evidence that any statement existed or that it was exculpatory. Thus, there is nothing in this record for us to review.
(5) Alteration of Trial Transcript
Carr next contends that there were alterations and omissions in the trial transcripts and requests that this court consider any audio-visual record of the trial. First, he points out that an exchange between the judge and the prosecutor regarding fingerprint evidence is missing from the January 24, 2002 pretrial hearing transcript; second, he complains that witness statements regarding anhydrous ammonia cylinders were improperly transcribed and that the reference to the cylinders was itself ambiguous and prejudicial; and third, he notes that the jury selection, preliminary jury instructions, and opening statements were not included in the record. Contrary to Carr's assertion, the exchange regarding the fingerprint report is part of the record, although not in the precise terms Carr describes it. And Carr fails even to assert that this exchange had any effect on the outcome of his case. Without argument or authority to support it, an assignment of error is waived. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
Next, Carr argues that evidence regarding an anhydrous ammonia compressed gas cylinder must have been incorrectly transcribed, because it is 'hugely ambiguous.' SAG at 6. Carr also implies in his brief that the introduction of such evidence is prejudicial and lacking foundation. But no objection to this evidence was raised at trial. Failure to make a timely objection to the admission of evidence at trial precludes our review. State v. O'Neill, 91 Wn. App. 978, 993, 959 P.2d 1149, 967 P.2d 985 (1998).
See Report of Proceedings (RP) (January 31, 2002, February 1, 2002) at 34 ('We also found in that same general vicinity about 30 feet from the main portion of the dump site a large approximately 150-gallon or 150-pound . . . cylinder.').
Carr makes a final transcript-based claim:
Yet another example of the record being altered is shown in the trial transcripts themselves. . . . I am refering [sic] to the small note that jury selection, jury instructions, and opening statements were made, yet no record of what was actually said was made. This instance, along with all the other discrepancies lead me to request that the court of appeals, and myself, should base our study of this case on the audio-video record of the proceedings, not the written statements of the transcripts.
SAG at 7-8 (emphasis added).
An appellant has the burden of providing adequate record to review the issues raised. See RAP 9.2. Jury selection and opening statements are not normally part of the record on appeal, although they may be made so upon request and by order of the trial court. RAP 9.2(b). A party may serve and file objections to, and propose amendments to, a verbatim report of proceedings within 10 days after receipt of the report of proceedings or receipt of the notice of filing of the report of proceedings. RAP 9.5(c). Here, Carr did not make a timely objection to the verbatim report of proceedings filed in this case, and we reject his request on that basis. Moreover, Carr presents no specific claim related to these portions of the trial; thus, he has waived any assignment of error. See Smith, 106 Wn.2d at 451-52.
In his SAG, Carr does refer to the jury instructions, but his argument is ambiguous and not substantive.
(6) Evidence Discovered at 2479, Intoxicated Witness, Handwriting Identification, Evidence in Plastic Bags
Carr also makes a variety of claims regarding the admission of evidence at trial. Carr contends that he lacked 'control and/or dominion' over the family property at 2479 and that the introduction of evidence found there after he was arrested violates his constitutional rights. SAG at 11. Carr also contends that Thielen was intoxicated at the time she testified for the State and that her testimony varied from a deposition that was not before the court below. He further contends that his sister was not qualified to testify whether handwriting appearing in a series of books presented by the prosecution was Carr's. Finally, Carr complains that the jurors were not allowed to remove the books treated for latent fingerprints from their plastic bags.
On cross examination, Thielen testified that she was not taking morphine at the time of trial.
Should Carr choose to argue at a later date that his counsel was ineffective for failure to make a timely objection to his sister's handwriting testimony, this argument will likely fail, because admission of evidence is within the sound discretion of the trial court and will not be disturbed on review absent a showing of abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation, is sufficient to satisfy the authentication requirement. ER 901(a) and 901(b)(2). Here, Carr's sister testified that she had a sample of Carr's handwriting and that she recognized the handwriting as Carr's. Admission of this evidence was well within the court's discretion.
The trial court did not forbid the jurors from removing the books from the bags. Arwine, the State's expert witness on fingerprints, testified that ninhydrin, chemical used in the fingerprint detection process, might be an irritant to some people. She therefore suggested opening the bags in a well-ventilated area and using rubber gloves to handle the books.
But Carr failed to make a timely objection to the admission of this evidence or raise a timely objection at trial and these issues are not preserved for our review. O'Neill, 91 Wn. App. at 993. Carr waived these claims of error by failing to object at trial.
(7) Jury Instructions
Carr states, 'I believe the jury instructions prejudiced my case and guaranteed the state a conviction.' SAG at 15. Without argument and citation to authority, this court will not review an assignment of error. See RAP 10.3(a)(5); State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995). Carr's argument regarding jury instructions goes no further than this statement, and this assignment of error is not reviewable.
(8) Offender Score Calculation
Carr contends that the trial court should have considered his three convictions as the same criminal conduct, yielding an offender score of zero, not four.
In general, a defendant cannot waive a challenge to a miscalculated offender score, but waiver may be found where the alleged error involves a matter of trial court discretion. In re Personal Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002); State v. Hickman, 116 Wn. App. 902, 905-06, 68 P.3d 1156 (2003). A trial court's determination of whether two crimes are the 'same criminal conduct' is reviewed under the abuse of discretion standard. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994); State v. Hernandez, 95 Wn. App. 480, 483, 976 P.2d 165 (1999). The trial court found that Carr's current offenses were not the same criminal conduct, and the record does not reflect any objection to such a finding. Carr waived any challenge to the trial court's finding, the issue is not preserved for appeal, and we do not address it.
(9) Incorrect Statement of Maximum Sentence
Carr states in his SAG, 'I was offered a 'deal' of time served if I would plead guilty to all [four] counts and sign the [plea agreement]. . . . This was a sentence that was clearly part of [RCW] 69.50.401(a)(1)(iii). I was not told that I could recieve [sic] a sentence of 96 months before I was taken to trial.' SAG at 15-16. Even though Count IV of the information sets forth the essential elements of the crime, Carr was improperly advised of the maximum sentence for the charge. Generally, the State is not required to inform the defendant of the maximum sentence in the information. See RCW 10.37.050. Nor is the court required to inform the defendant of the maximum possible sentence at arraignment or during the trial. Chapter 10.40 RCW; chapter 10.46 RCW; former CrR 4.1 (2000); CrR 6. Only on a plea of guilty is the court required to provide such information. CrR 4.2(g). Here, Carr pleaded not guilty, however, and he argues that he was not informed of the possible consequences: 'I was not told that I could recieve [sic] a sentence of 96 months before I was taken to trial.' SAG at 15-16.
The right to plead guilty, and thereby avoid trial, is recognized by Washington courts. Although a defendant does not have a constitutional right to plead guilty, the right derives from CrR 4.2(a), which provides that '[a] defendant may plead not guilty, not guilty by reason of insanity or guilty.' See State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). State v. James, 108 Wn.2d 483, 739 P.2d 699 (1987), is somewhat analogous to the present case because it involved a defendant who wished to withdraw a plea of not guilty. There, following the defendant's plea of not guilty, the State had amended the original charge of second degree murder to a charge of first degree murder. James, 108 Wn.2d at 484-85. The Supreme Court, holding that the defendant's right to plead guilty was not absolute, upheld the trial court's denial of the defendant's request to withdraw his plea of not guilty. James, 108 Wn.2d at 488-90. The court stated: '[W]e find that the possibility of a harsher penalty, standing alone, cannot constitute specific prejudice.' James, 108 Wn.2d at 489-90. State v. Hale, 65 Wn. App. 752, 829 P.2d 802 (1992), addressed circumstances more similar to the present case. In Hale, Division Three rejected a defendant's argument that she had a right to rely on a charging document that erroneously stated that attempted first degree murder was a Class B felony. Attempted first degree murder is actually a Class A felony and therefore subject to a harsher punishment. The Hale defendant rejected the State's offer and pleaded not guilty by reason of insanity, and the jury found her guilty. On appeal, she argued that she might have accepted the State's offer to plead guilty to a lesser charge had she known about the error. Rejecting this claim, the court found that the charging document was sufficient:
James also states that 'the unconditional nature of the right to plead guilty does not apply in subsequent proceedings if the defendant voluntarily, knowingly, and intelligently enters a not guilty plea at arraignment.' 108 Wn.2d at 488.
Even if we were to impose an obligation on the State to accurately inform Ms. Hale of the maximum penalty following a plea of not guilty, she must show some prejudice. . . . She did not claim at trial, nor does she claim on appeal, that she would have accepted the State's offer if the information had correctly set out the maximum sentence. Her contention is she may have. This is not sufficient.
Hale, 65 Wn. App. at 756.
The present case differs from cases where defendants pleaded guilty in plea bargaining situations, but the parties were mistaken as to the mandatory minimum sentence. In those cases, Washington courts have held that 'where fundamental principles of due process so dictate, the specific terms of a plea agreement based on a mistake as to sentencing consequences may be enforced despite the explicit terms of a statute.' State v. Miller, 110 Wn.2d 528, 532, 756 P.2d 122 (1988). See also State v. Cosner, 85 Wn.2d 45, 530 P.2d 317 (1975) (where defendants who pleaded guilty were advised that there was a mandatory minimum sentence, but were misinformed as to its length, the Court ordered the Board of Prison Terms and Paroles to reduce defendants' mandatory minimum terms in accordance with their understanding of the length of sentence at the time of their guilty plea). There was no plea agreement to uphold in the present case.
Both the appellant's brief and the SAG allude to the fact that Carr was prejudiced by the incorrect maximum sentence. But they fail to demonstrate how. Appellant's brief states
[Carr] was informed that the statutory maximum for Count Four was five years in prison. . . . [T]he trial court sentenced Carr to 96 months in prison; 36 months beyond the statutory maximum set forth in the information. This implicates his constitutional right to notice and thus, is properly raised for the first time on appeal.
Br. of Appellant at 6. But the brief does not go on to discuss how this mistake actually prejudiced Carr, nor does it contain any argument specifically addressing this issue. In his SAG, Carr argues that the mistake regarding the maximum sentence in Count IV was prejudicial. He states that he was offered a 'deal,' but cryptically asserts that he 'could not sign the 'agreement' because of section 13 [of the Agreement Between Lewis County Prosecutor's Office and ____].' SAG at 16. But Section 13 of the Agreement, attached to the SAG, states only:
Failure to meet any of the above condisions [sic] may result in the State seeking immediate authorization of a warrant for ____'s arrest, and that everything (s)he has performed up to the violation will not count towards the successful completion of the contract. The state will then recommend the maximum sentence allowed.
SAG at 18-19.
Not only does Carr fail to state directly why he did not plead guilty, he fails to clarify why he could not sign the agreement. Moreover, he does not argue that the mistake hindered the preparation of his defense. See State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989). In sum, Carr does not indicate how or why the listing of the incorrect maximum sentence prejudiced him. Moreover, Carr had the opportunity but refused to enter a plea of guilty that would have bound the State to the improper lesser penalties. We agree with Hale and, therefore, reject this argument and affirm.
Fees and Costs
We grant the State's request for taxable costs under RAP 14.2, 14.3, RCW 10.73.160, and State v. Blank, 131 Wn.2d 230, 251, 930 P.2d 1213 (1997). The State is not required to comply with RAP 18.1.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER and ARMSTRONG, JJ., concur.