Opinion
Nos. 36506-5-II, 36513-8-II.
February 24, 2009.
Appeals from a judgment of the Superior Court for Pierce County, No. 06-1-00992-6, Kathryn J. Nelson, J., entered June 29, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ .
In this consolidated appeal, Nicholas Lee and Aaron Barnes challenge their respective convictions. Lee argues that (1) the trial court erred by failing to exercise special care in accepting his guilty plea, and (2) the probable cause statement upon which the trial court relied was insufficient to support his guilty plea. Lee also argues in a statement of additional grounds for review that he was denied effective assistance of counsel. Barnes argues that (1) his guilty plea was involuntary; (2) the trial court erred by entering written findings and conclusions to support his exceptional sentence after he filed this appeal; and (3) the trial court erred by failing to exercise special care in accepting his guilty plea. Lee's and Barnes's arguments are unpersuasive; therefore, we affirm.
RAP 10.10.
FACTS
I. Lee
On March 2, 2006, the State charged Lee with one count of unlawful possession of a controlled substance (cocaine) with intent to deliver under RCW 69.50.401(1) and (2)(a). On June 11, 2007, the State filed an amended information, adding a firearm enhancement to the original charge and one count of bail jumping.
On June 18, 2007, four days after trial began, Lee and his codefendants, Aaron Barnes and Karriem Shaheed, reached a plea agreement with the State. The plea agreement was a "package resolution" contingent on all three codefendants agreeing to the deal. 5 Report of Proceedings (RP) at 300. Pursuant to the agreement, the State filed a second amended information in which it eliminated the firearm enhancement to Lee's unlawful possession charge, dismissed Lee's bail jumping charge, and added one count of second degree unlawful possession of a firearm.
Shaheed ultimately pleaded guilty to the reduced charge of unlawful possession of a controlled substance (cocaine).
In his statement on plea of guilty for the second degree unlawful possession of a firearm charge, Lee stated that he agreed to the "legal fiction of a prior felony conviction to facilitate [the] plea." Clerk's Papers (Aug. 9, 2007) (CP) at 7. Lee also agreed that (1) he made the plea freely and voluntarily; (2) no one threatened harm of any kind to him or to any other person to cause him to make the plea; and (3) no person made promises of any kind to cause him to enter the plea except as set forth in the statement. During Lee's plea hearing, defense counsel stated that he believed that Lee understood his rights and that his plea was knowing, intelligent, and voluntary. When the trial court asked Lee whether he had an adequate opportunity to review his statement on plea of guilty with his attorney, and whether he understood the charges against him and the elements of each crime, Lee responded affirmatively. When the trial court asked whether anyone had threatened him in order to get him to plead guilty, Lee responded, "No." 5 RP at 318. Both of Lee's codefendants were present in the courtroom during this exchange.
Under RCW 9.41.040(2)(a)(i), a person is guilty of second degree unlawful possession a firearm if he owns or has in his possession or control any firearm after having previously been convicted of a felony that is not a serious offense as defined in RCW 9.41.010(12). Because Lee possessed the firearm at the time of his arrest, the "legal fiction" was the existence of a prior felony conviction.
Additionally, the trial court asked whether Lee agreed to the legal fiction of a prior felony conviction to facilitate the plea. Lee responded affirmatively. Finally, the trial court incorporated the declaration for determination of probable cause as a "further factual basis" for Lee's pleas. 5 RP at 319. The declaration stated, in part:
Tacoma PD Officers served a search warrant on an apartment [in Tacoma] and located [codefendants] and NICHOLAS LEE inside the apartment . . . Inside the bedroom . . . was 24.2 grams of crack cocaine that field tested positive. A handgun was also located under the bed . . .
Officers located drugs in a closet near where SHAHEED and LEE were sitting. In the pocket of a jacket were 20 pieces of crack cocaine that field tested positive. Also inside the closet was . . . a copy of a search warrant with LEE's name on it.
CP (Aug. 9, 2007) at 3.
Lee pleaded guilty to both charges in accordance with Alford/Newton and In re Barr.
Under an Alford plea, a defendant may take advantage of a plea agreement without acknowledging guilt. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976). In In re Barr, the Supreme Court of Washington held that a plea can be voluntary and intelligent absent a factual basis for the ultimate charges, so long as the plea is based on informed review of all the alternatives and the defendant understands the nature of the consequences of the plea. 102 Wn.2d 265, 684 P.2d 712 (1984).
The trial court accepted his plea and made the following finding:
I find the defendant's plea of guilty to be knowingly, intelligently, and voluntarily made. Defendant understands the charges and the consequences of the plea. There is a factual basis for the plea. The defendant is guilty as charged.
CP (Aug. 9, 2007) at 7. The trial court sentenced Lee to 20 months' confinement for unlawful possession of a controlled substance with intent to deliver, 8 months for second degree unlawful possession of a firearm, and 9 to 12 months of community custody. Lee now appeals.
II. Barnes
On March 2, 2006, the State charged Barnes with one count of unlawful possession of a controlled substance (cocaine) with intent to deliver, with a firearm enhancement, and one count of second degree unlawful possession of a firearm. Pursuant to the plea agreement, the State subsequently filed an amended information, which eliminated the firearm enhancement to the unlawful possession of a controlled substance charge and amended the other charge to first degree unlawful possession of a firearm. Like Lee's unlawful possession of a firearm charge, Barnes's unlawful possession of a firearm charge was also based on a "legal fiction," as his underlying felony was not a "serious offense" under RCW 9.41.010(12). 5 RP at 304. The State recommended a 20 month sentence on the unlawful possession of a controlled substance charge and 34 month sentence on the unlawful possession of a firearm charge, to be served consecutively.
When police officers entered the apartment on March 1, 2006, Barnes went into the back bedroom and shut the door. When officers later searched the bedroom, they discovered 24.2 grams of crack cocaine and a handgun located under the bed.
Under RCW 9.41.040(1)(a), one is guilty of first degree unlawful possession of a firearm if the person owns, or has in his possession or control any firearm after having previously been convicted of any serious offense.
Barnes also entered a plea in accordance with Alford/Newton and In re Barr. In his statement on plea of guilty, Barnes stated that no one had threatened harm to him or to any other person or made promises of any kind to cause him to enter the plea. During the plea hearing, the trial court asked Barnes whether he understood what the standard sentencing range was for his charges and advised him that the trial court did not have to follow the sentencing recommendation but could sentence him in accordance to the law. Barnes responded affirmatively. The prosecutor stated that the parties agreed to the following sentencing recommendation: "high end of 20 months on Count I and high end of 34 months on Count II to run consecutively." 5 RP at 304. Defense counsel then stated that he and Barnes had reviewed the recommendation and that "it [was] an agreed recommendation." 5 RP at 305.
The State notes that even though Barnes did not check the joint recommendation box on his statement on plea of guilty, "it is clear from the record that [Barnes] and the prosecutor agreed to and jointly recommended the consecutive sentences." Resp't's Br. (Barnes) at 8.
Defense counsel also stated that he and Barnes had reviewed "all of the important constitutional rights that Mr. Barnes [would] be giving up by entering this plea" and that Barnes's plea was knowing and voluntary. 5 RP at 305-06. The trial court asked Barnes whether he had an adequate opportunity to go over his statement on plea of guilty with his attorney and whether he understood the charges against him and the elements of each crime. Barnes answered affirmatively. The trial court then asked whether anyone had threatened or made promises to him in order to cause him to plead guilty. Barnes responded, "No." 5 RP at 309. The trial court accepted Barnes's guilty plea and found that his plea was knowing, intelligent, and voluntary, that Barnes understood the consequences of his plea, and that there was a factual basis for his plea.
At Barnes's sentencing, both parties again stated that in exchange for dropping the firearm enhancement, "the sentences would run consecutively for a total of 54 months." 6 RP at 340-41. The trial court then followed the parties' agreed recommendation and sentenced Barnes to 20 months for unlawful possession of a controlled substance with intent to deliver and 34 months for unlawful possession of a firearm, to be served consecutively, and 9 to 12 months of community custody.
Barnes filed a timely notice of appeal on June 29, 2007 and his appellant's brief on December 21, 2007. On April 11, 2008, the trial court entered written findings of fact and conclusions of law. In its findings of fact, the trial court found that the prosecutor and defense counsel previously stipulated to an exceptional sentence above the standard range and agreed that the sentences on the two counts should run consecutively. It also found:
That AARON D. BARNES understands and acknowledges that he has the right to a jury determination of mitigating or aggravating circumstances and waives any right to appeal this exceptional sentence under [ Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)].
CP (May 7, 2008) at 38. The trial court also concluded:
That an exceptional sentence above the standard range is permitted as part of a plea bargain under [ State v. Hilyard, 63 Wn. App. 413, 819 P.2d 809 (1991)]. Such an agreement constitutes a substantial and compelling reason justifying an exceptional sentence outside the standard range.
CP (May 7, 2008) at 39. Both the prosecutor and defense counsel signed these findings of fact and conclusions of law.
ANALYSIS
I. Lee
A. Special Care
Lee first argues that the trial court's failure to exercise special care in accepting his guilty plea "precludes a finding that the plea was voluntary." Appellant Lee's Br. at 5. He requests that we reverse his conviction and remand the case to the trial court. The State responds that the trial court properly determined that Lee's guilty plea was knowingly, voluntarily, and intelligently made because (1) he received a reduced sentence in exchange for his guilty plea; (2) he does not now present any evidence that he was in fact coerced into pleading guilty; and (3) any potential error the trial court committed was harmless. The State's argument that Lee's plea was knowing, voluntary, and intelligent is persuasive.
In the alternative, Lee argues, we should remand the case for an evidentiary hearing to determine whether he was threatened or coerced into pleading guilty.
Due process requires that when a criminal defendant pleads guilty, his plea must 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 guilty plea which is the product of, or is induced by coercive threat, fear, persuasion, promise, or deception, however, is invalid. Woods v. Rhay, 68 Wn.2d 601, 605, 414 P.2d 601 (1966). "This standard is reflected in CrR 4.2(d), which mandates that the trial court 'shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.'" State v. Blanks, 139 Wn. App. 543, 547, 161 P.3d 455 (2007) (quoting CrR 4.2(d)).
Under this rule, once a guilty plea is accepted, the trial court may allow withdrawal of the plea only "to correct a manifest injustice." CrR 4.2(f). A manifest injustice is one that is "obvious, directly observable, overt, not obscure." State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). A manifest injustice may arise where a defendant's plea was involuntary. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). The burden is on the defendant to show a manifest injustice. Osborne, 102 Wn.2d at 97. In this case, it appears that neither Lee nor Barnes moved to withdraw their guilty pleas below.
When a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges that he has read it and understands it and that its contents are true, the written statement provides prima facie verification of the plea's voluntariness. State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982) (citing In re Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980); In re Teems, 28 Wn. App. 631, 626 P.2d 13 (1981); State v. Ridgley, 28 Wn. App. 351, 623 P.2d 717 (1981)). "When the [trial] judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable." Perez, 33 Wn. App. at 262. We review conclusions of law, such as the voluntariness of a plea, de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004)).
We have recognized that "special care should be taken in reviewing guilty pleas entered in exchange for a prosecutor's promise of lenient treatment of a third party." State v. Cameron, 30 Wn. App. 229, 231, 633 P.2d 901 (1981) (citing United State v. Nuckols, 606 F.2d 566 (5th Cir. 1979)). Division One of this court has also recognized that although package plea deals are not per se impermissible, "they pose an additional risk of coercion not present when the defendant is dealing with the government alone." State v. Williams, 117 Wn. App. 390, 399, 71 P.3d 686 (2003) (quoting United States v. Caro, 997 F.2d 657, 659 (9th Cir. 1993)). It has defined the phrase "special care" to mean
[T]hat when a court is informed that a plea is part of a package deal, the court must specifically inquire about whether the codefendant pressured the defendant to go along with the plea and carefully question the defendant to ensure he is acting of his own free will. The most crucial inquiry is whether the codefendant pressured the defendant into going along with the plea. It is also important to determine whether the defendant has had sufficient opportunity to meet and discuss the case and alternatives with his attorney.
Williams, 117 Wn. App. at 400 (footnote omitted).
Although it is not at all clear that Lee's motivation for entering his plea was to secure leniency for his codefendants, Division One's decision in Williams is instructive. Where, as here, there is no evidence of any promises or threats to the defendant other than those represented in the written plea agreement, where the defendant signs the written plea agreement acknowledging guilt in his own words, and where the defendant states that no other promises were made other than those in the plea agreement, the trial court properly accepts the plea as being the result of the defendant's own volition and freely and voluntarily made. Williams, 117 Wn. App. at 401.
In this case, Lee filled out a written statement and acknowledged that he read it, understood it, and that its contents were true. The trial court, which was aware that the plea agreement was part of a package resolution, then asked him whether anyone had threatened or made promises in order to cause him to enter his plea. Lee responded, "No." 5 RP at 318-19. Lee does not argue that he was denied a sufficient opportunity to meet with and discuss the case with his attorney. Rather, he argues that the presence of his codefendants during the trial court's inquiry precludes a finding that his plea was voluntary. This assertion alone is insufficient to render Lee's plea involuntary. Furthermore, Lee does not present any evidence that he was in fact coerced into entering his plea. Therefore, he has failed to demonstrate that the trial court erroneously concluded that his plea was voluntary or that its inquiry regarding the voluntariness of his plea was somehow insufficient. Lee pleaded guilty in exchange for his own leniency and cannot now argue that he was coerced into entering his plea.
The State also argues that because the trial court knew that Lee's plea agreement was part of a package resolution and because he pleaded guilty in exchange for his own leniency, it is even less likely that Lee's codefendants coerced him into entering his plea. In light of these factors, it contends, "the [trial] court went through what it determined was the necessary plea colloquy . . ." Resp't's Br. (Lee) at 12. We agree.
B. Probable Cause
Lee next argues that the probable cause statement upon which the trial court relied was insufficient to sustain his guilty plea, as "there was no indication that [] Lee was guilty of bail jumping." Appellant Lee's Br. at 7. Citing RAP 2.5(a)(3) and our decision in State v. R.L.D., 132 Wn. App. 699, 133 P.3d 505 (2006), Lee argues the because the record does not provide a factual basis for his guilty plea, his plea was involuntary and, therefore, it violated due process.
In that case, the defendant and a friend entered an unlocked car, removed wires from below the steering column, and tried to hot wire when a bystander interrupted them. R.L.D., 132 Wn. App. at 702. Subsequently, the defendant appealed his juvenile adjudication of second degree theft, arguing that insufficient facts supported his guilty plea. R.L.D., 132 Wn. App. at 701. Noting that due process requires that a guilty plea be voluntary, knowing, and intelligent and that a guilty plea cannot be knowing and intelligent when the defendant does not have an accurate understanding of the relation of the facts to the law, we held that insufficient evidence supported taking his guilty plea as the plea agreement facts insufficiently demonstrated the requisite dominion and control to support a theft conviction. R.L.D., 132 Wn. App. at 705-06.
Generally, we do not review issues raised for the first time on appeal unless the issue involves a manifest error affecting a constitutional right. RAP 2.5(a)(3). It does not appear that Lee moved to withdraw his guilty plea for lack of a sufficient factual basis at the trial court. Therefore, we may only review his plea if there has been a manifest error affecting a constitutional right. The factual basis requirement in CrR 4.2(d) is a procedural requirement that is not constitutionally mandated except where it relates to the defendant's understanding of his plea. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996); In re Pers. Restraint of Hews, 108 Wn.2d 579, 591-92, 741 P.2d 983 (1987).
Lee does not argue that he did not understand the plea. The record demonstrates that Lee's plea was knowingly, voluntarily, and intelligently made. In his statement on plea of guilty, he stated, "I am entering this plea to take advantage of the State's offer." CP (Aug. 9, 2007) at 7. During his plea hearing, both Lee and defense counsel stated that he understood the plea, the charges against him, and the elements of each crime. Therefore, the factual basis of the plea in this case is not constitutionally significant and we decline to review Lee's plea on this basis.
Even if we were to consider his plea on this basis, Lee's argument that State v. Zhao, 157 Wn.2d 188, 137 P.3d 835 (2006), is inapposite fails. In Zhao, the Washington Supreme Court held that a defendant can plead guilty to amended charges for which is there no factual basis, but only if the record establishes that the defendant did so knowingly and voluntarily and that there "at least exists a factual basis for the original charge, thereby establishing a factual basis for the plea as a whole." 157 Wn.2d at 200. Lee argues that although the Zhao court made a distinction between the original and amended charges the defendant faced in that case, it did not specifically address situations in which the State makes multiple amendments to the information. Lee also contends that there is no factual basis for his guilty plea which was entered, "at least in part, to avoid the bail jumping charge," Appellant Lee's Reply Br. at 5, and that the holding in Zhao applies only to guilty pleas to lesser charges that are entered to avoid punishment for greater charges. These arguments are unconvincing.
The State originally charged Lee with one count of unlawful possession of a controlled substance (cocaine) with intent to deliver. Although the first amended information added a firearm enhancement to his original charge and one count of bail jumping, the State eliminated the firearm enhancement, dismissed the bail jumping charge, and added one count of second degree unlawful possession of a firearm in its second amended information — in accordance with its plea agreement with Lee. The State did not originally charge Lee with bail jumping and Lee never pleaded guilty to such a charge. The record demonstrates that a factual basis existed for Lee's original charge. After entering into the plea agreement, Lee then agreed "to the legal fiction of a prior felony conviction to facilitate this plea" and entered his plea "to take advantage of the State's offer." CP (Aug. 9, 2007) at 7. At his plea hearing, the trial court confirmed that Lee understood this. Therefore, Lee's argument that the record does not provide a factual basis for his guilty plea as a whole, and that his plea was involuntary and therefore violated due process, is without merit.
C. Statement of Additional Grounds (SAG)
Finally, Lee argues that he wanted to fire his attorney because "he wasn[']t working for [him]" and failed to follow his instructions. Lee's SAG at 1. Lee contends that he asked the trial court if he could fire his attorney because they were not "seeing eye to eye" and that, at some point, his attorney "even told the judge that he didn[']t want to go to trial with [him]." Lee's SAG at 1.
Lee appears to be arguing that he was denied effective assistance of counsel. Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend. VI ; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, the appellant must show that (1) counsel's performance was deficient, and (2) that deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Lee neither cites to examples in the record in support of his contention nor demonstrates that defense counsel's performance fell below an objective standard of reasonableness. Furthermore, it appears that Lee's claims refer to matters outside the record. Our review of the record does not indicate, however, that defense counsel's performance was deficient.
II. Barnes
A. Exceptional Sentence
Barnes first argues that his guilty plea was involuntary because the trial court failed to inform him that the direct consequence of his plea was an exceptional sentence. Barnes contends that the trial court erred when it found, without evidence in the record, that he knowingly waived his right to appeal his exceptional sentence. The State responds that Barnes was in fact aware of all direct consequences of his plea.
A defendant must be informed of all direct consequences of his plea. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). "A 'direct' consequence includes one that 'represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" In re Pers. Restraint of Matthews, 128 Wn. App. 267, 271-72, 115 P.3d 1043 (2005) (quoting Ross, 129 Wn.2d at 284)). The State bears the burden of showing that the defendant knew of all direct consequences of his plea. Ross, 129 Wn.2d at 287 (citing Wood v. Morris, 87 Wn.2d 501, 507, 554 P.2d 1032 (1976)). The State may meet this burden through the record of the plea hearing or other "clear and convincing extrinsic evidence." Ross, 129 Wn.2d at 287 (citing Wood, 87 Wn.2d at 511).
In Hilyard, 63 Wn. App. 413, we held that the defendant's stipulation to an exceptional sentence was sufficient grounds for a trial court to impose an exceptional sentence. In this case, the record demonstrates that Barnes agreed to the State's recommendation that he serve consecutive sentences. During his plea hearing, the trial court asked Barnes whether he understood what the standard sentencing range was for his charges, and that the trial court did not have to follow the sentencing recommendation but could sentence him in accordance to the law. Barnes responded affirmatively. The prosecutor then stated that the parties agreed to the sentencing recommendation: "high end of 20 months on Count I and high end of 34 months on Count II to run consecutively." 5 RP at 304. Defense counsel subsequently reiterated that he and Barnes had reviewed the recommendation and that "it [was] an agreed recommendation." 5 RP at 305.
Defense counsel also stated that he and Barnes had reviewed "all of the important constitutional rights that Mr. Barnes [would] be giving up by entering this plea" and that Barnes's plea was knowing and voluntary. 5 RP at 305-06. The trial court asked Barnes whether he had an adequate opportunity to go over his statement on plea of guilty with his attorney and whether he understood the charges against him and the elements of each crime. Barnes answered affirmatively. The trial court accepted Barnes's guilty plea and found that his plea was knowingly, intelligently, and voluntarily made and that Barnes understood the consequences of his plea. At Barnes's sentencing, both parties again stated that in exchange for dropping the firearm enhancement, "the sentences would run consecutively for a total of 54 months." 6 RP at 340-41. Ultimately, Barnes received the sentence for which he bargained. That the trial court did not specifically articulate that that State's recommendation constituted an exceptional sentence does not warrant reversal. The record supports the trial court's finding that, by knowingly and voluntarily entering his guilty plea, Barnes waived his right to appeal the exceptional sentence. See Hilyard, 63 Wn. App. 413 (defendant waived right to argue for sentence within standard range by voluntarily and intelligently entering a plea agreement for two lesser second degree assault convictions, which included an agreement for exceptional sentence by consecutive terms of imprisonment).
Barnes next argues that (1) the trial court erred by entering written findings of fact and conclusions of law to support his exceptional sentence after he filed his appellate brief; (2) there is evidence that the findings were tailored to this appeal; and (3) we should not consider the findings and conclusions. The State responds that the trial court's failure to enter its findings of fact and conclusions of law until after Barnes filed his appeal did not prejudice him and that he has not provided evidence that the trial court tailored them to this appeal.
RCW 9.94A.535 requires that the trial court enter written findings of fact and conclusions of law for all exceptional sentences. However, the statute does not fix a time limit for doing so. Washington courts have held that a conviction will not be reversed based on late entry of findings of fact and conclusions of law absent a showing of prejudice to the defendant. See State v. Bennett, 62 Wn. App. 702, 814 P.2d 1171 (1991) (held that delayed entry of findings of fact and conclusions of law by prosecution in juvenile case did not require reversal of juvenile's conviction where appellate court had findings of fact and conclusions of law prior to review, findings were adequate for review, and the delay did not prejudice the appellant); State v. Royster, 43 Wn. App. 613, 719 P.2d 149 (1986) (held that delayed entry of findings of fact and conclusions of law regarding suppression issue did not necessitate defendant's conviction where findings and conclusions tracked the trial court's oral opinion and defendant did not identify ways in which she was prejudiced by the delayed entry).
As an initial matter, we note that nothing in the record supports the trial court's finding that Barnes understood or acknowledged that he had the right to a jury determination of mitigating or aggravating circumstances and waived the right to appeal his exceptional sentence under Blakely, 542 U.S. 296. Therefore, we decline to hold that he waived his right to appeal this issue. However, Barnes has failed to articulate how the trial courts delayed entry of its findings of facts and conclusions of law prejudiced him. He merely asserts that because "[t]here is evidence in this case that the findings and conclusions on exceptional sentence were tailored to the assignments of error," he has been prejudiced by their late filing. Appellant Barnes's Br. at 12. However, the record does demonstrate that Barnes understood and agreed to the State's recommendation that he serve 20 months' confinement on the unlawful possession of a controlled substance charge and 34 months on the unlawful possession of a firearm charge, to be served consecutively. Barnes does not argue that he did not understand what the term "consecutive" meant when he agreed to the recommendation.
Furthermore, he does not argue that he did not have an adequate opportunity to discuss his plea and its consequences with his attorney. Rather, he appears to contend that the trial judge should have specified that the sentence to which he was agreeing was an exceptional sentence. Barnes fails to offer authority in support of his contention. Therefore, the trial court's delay in entry of its findings and conclusions does not warrant reversal in this case.
B. Special Care
Barnes finally argues, as Lee did, that the trial court failed to exercise "special care" in determining that his guilty plea was voluntary. Appellant Barnes's Br. at 13. Under RAP 10.1(g)(2), Barnes incorporates by reference the arguments, authorities, and attachments set forth in Lee's brief regarding this issue. The State responds that it was not necessary for the trial court to exercise "special care" because (1) the trial court properly determined that Barnes's guilty plea was knowingly, voluntarily, and intelligently entered; (2) Barnes received a reduced sentence in exchange for his guilty plea; (3) Barnes stated that he was not coerced into pleading guilty; (4) Barnes fails to present evidence that he was in fact coerced into pleading guilty; and (5) any potential error the trial court committed was harmless.
Like Lee's "special care" argument, Barnes's argument fails. The record demonstrates that Barnes's guilty plea was knowing, voluntary, and intelligent. In his statement on plea of guilty, Barnes stated that no one threatened harm to him or to any other person or made promises of any kind to cause him to enter the plea. Defense counsel also stated his belief that Barnes's plea was knowing and voluntary. The trial court then asked Barnes whether anyone threatened or made promises to him in order to cause him to plead guilty, to which he responded, "No." 5 RP at 309. Furthermore, Barnes fails to present evidence that his codefendants coerced him into entering his plea. Therefore, the trial court properly accepted Barnes's plea as voluntary. We affirm.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, J., concur.