Opinion
No. 33065-2-II.
Filed: April 11, 2006.
Appeal from Superior Court of Clark County. Docket No: 04-1-02033-6. Judgment or order under review. Date filed: 03/11/2005. Judge signing: Hon. James E. Rulli.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Wendy Harmon Hanson, Clark County Prosecutors Office, 1200 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
UNPUBLISHED OPINION
Victor Rocael Lopez-Maria appeals his conviction of second degree child rape. He argues that the superior court erred (1) in presiding over his case before the juvenile court declined jurisdiction; (2) in denying his motion to withdraw his guilty plea, which was invalid because he was inadequately informed of its sentencing consequences; (3) in violating his right to effective assistance of counsel when he was not appointed a new attorney to argue his motion to withdraw his guilty plea; and (4) in sentencing him under RCW 9.94A.712. Holding the plea was invalid, we reverse and remand for further proceedings.
FACTS
On October 20, 2004, the State charged Victor Rocael Lopez-Maria with two counts of second degree rape of a child, occurring between October 10 and 17, 2004. The information alleges that Lopez-Maria was at least 36 months older than his 13-year-old victim and lists his birth date as June 5, 1984. Lopez-Maria told the arresting officer he was 20 years old.
I. Guilty Plea
Lopez-Maria is from Guatemala, has a third-grade education, and cannot read English. On December 20, 2004, he and his attorney appeared for trial with an interpreter. After the court granted the State's motion in limine, defense counsel informed the court that his client wished to take advantage of the State's plea offer to plead guilty to one count of second degree rape of a child. In his statement on plea of guilty, Lopez-Maria wrote that he was 17 years old, with a birth date of June 5, 1987. In setting forth the consequences of the plea, the statement provided:
For sex offenses committed on or after September 1, 2001
(i) Sentencing under RCW 9.94A.712: If this offense is for any of the offenses listed in subsections (aa) or (bb), below, the judge will impose a maximum term of confinement consisting of the statutory maximum sentence of the offense and a minimum term of confinement either within the standard range for the offense or outside the standard range if an exceptional sentence is appropriate. The minimum term of confinement that is imposed may be increased by the Interdeterminant Sentence Review Board if the Board determines by a preponderance of the evidence that it is more likely than not that I will commit sex offenses if released from custody. In addition to the period of confinement I will be sentenced to community custody for any period of time I am released from total confinement before the expiration of the maximum sentence. 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 and I may be required to participate in rehabilitative programs.
Clerk's Papers (CP) at 21. Among the offenses listed in subsection (aa) was the following: `Rape of a child in the second degree committed when I was at least 18 years old.' CP at 22.
When the statement was filed in court, the prosecuting attorney noted that Lopez-Maria had listed his age as 17. She informed the court that the State believed Lopez-Maria to be 20 years old based on his statements to the police and his Oregon driver's license, which listed his birth date as June 5, 1984. Defense counsel explained that his client was 17 but had lied about his age in order to secure fulltime employment.
Both attorneys informed the court that the age issue was immaterial because Lopez-Maria was more than 36 months older than the alleged victim and because his case would have been sent automatically to the superior court had it belonged initially in juvenile court. Assisted by the interpreter, the court explained the situation to Lopez-Maria:
THE COURT: Okay, one — one step at a time here, Mr. Lopez-Maria. Listen to me now, please. In the state of Washington, you are — your cases are handled in juvenile court across the street until you're eighteen years old, except in certain cases, depending on what you're charged with. There's some cases no matter if you're seventeen or eight — or sixteen, seventeen that you automatically have to be in adult court. Okay?
So if you would have started your case, if you'd have told them at the time you were arrested that you were seventeen, you would have gone to juvenile court. You would have then had a hearing there to determine whether you should be — have a case in juvenile court or adult court, but because of the crime of Rape of a Child in the Second Degree that automatically means that you are tried as an adult, not as a juvenile. Do you understand that?
THE DEFENDANT: Yes.
Report of Proceedings (RP) at 12-13.
After describing to Lopez-Maria the rights he would waive by pleading guilty, the court explained the plea's sentencing consequences.
THE COURT: . . . This crime carries a jail time, a prison term of 78 to 102 months in jail. 78 to 102 months, which is served in prison. . . .
You will be on what's called community custody for the rest of your life. Community custody is like probation. You would be under the authority or supervision of the Department of Corrections here in the state of Washington for the rest of your life.
This crime carries a maximum term of life in prison and a $50,000 penalty. The 78 to 102 months sentence is based upon the crime of Rape of a Child in the Second Degree and your criminal history.
RP at 19-20. Lopez-Maria's criminal history contained only a DUI conviction, which would not count as part of that history. The court explained the significance of that fact to Lopez-Maria as follows: `If you're telling us, I don't have any more crimes, then you're looking at just the 78 to 102 months.' RP at 21.
After discovering that sentencing would have to be postponed because of the need for a presentence investigation report, the court further elaborated on the possible sentencing consequences:
THE COURT: Okay. So say, for example, the report comes back and they say sentence Mr. Lopez-Maria to 78 months, for example, okay? And I agree, I sentence Mr. Lopez-Maria to 78 months in prison, you must understand that even though I'm sentencing you to 78 months in prison, there is a board, it's called the sentencing board, up in the prison that will interview you and decide at that time whether you should be released or not.
So you will be interviewed by what's called the sentencing board near the end of your jail time to make a determination whether you should be released or not. Understand that?
THE DEFENDANT: Yes.
RP at 22-23. The court then accepted Lopez-Maria's guilty plea.
II. Motion To Withdraw Guilty Plea
On February 18, 2005, the parties appeared for sentencing. At the beginning of that hearing, however, defense counsel informed the court that Lopez-Maria wanted to withdraw his guilty plea because `he didn't understand anything.' Counsel stated he had not given his client any advice on the matter and did not know how to proceed because of the apparent conflict the motion presented. The trial court ordered counsel to prepare a written motion to withdraw the guilty plea.
Defense counsel responded by filing a motion to withdraw the guilty plea based on his own declaration. In that declaration, counsel stated that Lopez-Maria was claiming ineffective assistance of counsel for several reasons, including that he was only 17 years old: `The defendant believes that a jury might not convict him if they saw his original birth certificate from Guatamela.' CP at 45. Counsel refuted each claim, stating, with regard to Lopez-Maria's assertion that he was 17, that his client's case would have required a `mandatory remand' from juvenile court.
On March 11, the parties appeared in court on Lopez-Maria's motion to withdraw his guilty plea. After asking Lopez-Maria if he had anything to add to his attorney's declaration, the court denied the motion and proceeded to sentencing. Despite Lopez-Maria's assertion that the anticipated sentence was too long because he was only 17 years old, the court sentenced him under RCW 9.94A.712 to a maximum term of life in prison with a minimum term of 90 months.
Lopez-Maria appeals.
ANALYSIS I. Withdrawal of Guilty Plea
Due process requires that a guilty plea be knowing, voluntary, and intelligent. In re Personal Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A guilty plea is not knowingly made when based on misinformation regarding sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). A defendant need not be informed of all possible consequences of a plea, but he must be informed of the direct consequences. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996).
Failure to inform a defendant of a guilty plea's direct consequences is also governed by court rule. CrR 4.2(f) permits a guilty plea to be withdrawn when withdrawal is necessary to correct a manifest injustice. State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). An involuntary plea is one of several circumstances that constitutes a manifest injustice. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). A plea is involuntary when based on a mutual mistake regarding its sentencing consequences. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001). A defendant enters a valid plea only by making a knowing, voluntary, and intelligent decision based on an understanding of the charge and the plea's consequences. CrR 4.2(d); State v. McDermond, 112 Wn. App. 239, 243-44, 47 P.3d 600 (2002).
A. Misinformation About Consequence of Age
Lopez-Maria was misinformed about the nature of the charge at the outset of the plea hearing. The trial court mistakenly informed him that his age was of no relevance because, even if he was 17, the crime charged would have required the juvenile court to transfer jurisdiction automatically to the superior court without holding a decline hearing. This information was wrong: Second degree rape of a child is not among the offenses subject to the automatic decline provision. See RCW 13.04.030(1)(e)(v).
This subsection sets forth an exception to the law vesting original jurisdiction over juvenile crimes in juvenile court. The exception applies when the juvenile is 16 or 17 and the alleged offense falls within one of these categories:
(A) A serious violent offense as defined in RCW 9.94A.030;
(B) A violent offense as defined in RCW 9.94A.030 and the juvenile has a criminal history consisting of: (I) One or more prior serious violent offenses; (II) two or more prior violent offenses; or (III) three or more of any combination of the following offenses: Any class A felony, any class B felony, vehicular assault, or manslaughter in the second degree, all of which must have been committed after the juvenile's thirteenth birthday and prosecuted separately;
(C) Robbery in the first degree, rape of a child in the first degree, or drive-by shooting, committed on or after July 1, 1997;
(D) Burglary in the first degree committed on or after July 1, 1997, and the juvenile has a criminal history consisting of one or more prior felony or misdemeanor offenses; or
(E) Any violent offense as defined in RCW 9.94A.030 committed on or after July 1, 1997, and the juvenile is alleged to have been armed with a firearm.
RCW 13.04.030(1)(e)(v). Second degree rape of a child, a class A felony, is a violent rather than serious violent offense. See RCW 9A.44.076(2); RCW 9.94A.030(37), (45). Lopez-Maria's only prior offense was a gross misdemeanor, and he was not armed with a firearm at the time of the current offense. See RCW 46.61.502(5).
Had the superior court determined that Lopez-Maria was 17 years old, Lopez-Maria would have automatically been under the juvenile court's jurisdiction, and a decline hearing in juvenile court would have been mandatory unless waived. RCW 13.40.110(1)(a). The juvenile court would have been required to find that declination was in the best interests of Lopez-Maria or the public before transferring the case for adult criminal prosecution. RCW 13.40.110(2).
In addition to misinforming Lopez-Maria about the impact of his age on the question of jurisdiction, the trial court completely overlooked the effect of Lopez-Maria's age on his sentence. As stated, Lopez-Maria wrote on his plea statement that he was 17 years old. The statement then proceeded to set forth the provisions of RCW 9.94A.712, despite its reference to the fact that these provisions applied only if Lopez-Maria was 18 at the time of the offense. See RCW 9.94A.712(2) (offender convicted of second degree rape of a child who was 17 or younger at the time of the offense shall not be sentenced under this section). Thus, Lopez-Maria's guilty plea statement contained a fundamental inconsistency that the court never explored, and it also reflected a lack of Lopez-Maria's understanding about the sentencing consequences of his plea. Indeed, if he was actually only 17, there was no understanding on anyone's part regarding the direct consequences of his plea.
B. Inadequate Information About Sentencing Consequences
But even if Lopez-Maria was 20 at the time of the offense and plea, the court's explanation of the sentencing consequences was nevertheless deficient because the court never informed him that under RCW 9.94A.712, he had the possibility of serving a life sentence in prison. See McDermond, 112 Wn. App. at 244-45 (possibility of life sentence is direct consequence of pleading guilty). Under RCW 9.94A.712(3), a court imposes a minimum prison term and a maximum term consisting of the statutory maximum sentence for second-degree child rape. At the expiration of the minimum term, the Indeterminate Sentencing Review Board decides whether to release the defendant into community custody or set a second minimum term of not more than two years. State v. Brundage, 126 Wn. App. 55, 63, 107 P.3d 742 (2005); RCW 9.95.420(3)(a). At the end of the second minimum term, the Board may release the defendant or impose a new minimum term. Such reviews have the potential to extend imprisonment to the maximum sentence, which in this case is life. See Brundage, 126 Wn. App. at 63.
The language describing the effect of RCW 9.94A.712 in Lopez-Maria's guilty plea statement did not state explicitly that he could remain in prison for life. Nor did the trial court make this clear during the plea hearing. The court stated that the Board could bar Lopez-Maria's release, but it never explained that such a bar could result in his serving a life sentence. Instead, after stating that the crime charged carried a maximum term of life in prison, the court mistakenly told Lopez-Maria that if he had no further criminal history, he was `looking at just the 78 to 102 months.' Thus, whether Lopez-Maria was 17 or 20 when he appeared in court, he was not adequately advised of the sentencing consequences of his guilty plea.
II. Conclusion
We therefore grant his request to withdraw his guilty plea. See Miller, 110 Wn.2d at 536 (where plea is invalid, defendant may choose remedy of withdrawal). On remand, the trial court must hold a hearing to determine Lopez-Maria's age at the time of the offense. Because the State has introduced a valid driver's license indicating that Lopez-Maria was 20 at that time, it will be the defendant's burden to submit objective documentation verifying his claim that he was 17. See State v. Mendoza-Lopez, 105 Wn. App. 382, 390, 19 P.2d 1123 (2001). The State will then bear the burden of discrediting that documentation if it wishes to challenge Lopez-Maria's age. Lopez-Maria can make an informed decision regarding whether to plead guilty only after the court resolves the age issue.
Our resolution renders moot the question of whether the superior court properly exercised jurisdiction over Lopez-Maria in the absence of a decline hearing in juvenile court. Whether he was born in 1984 or 1987, he is now more than 18 years old. Accordingly, any further proceedings regarding this case must be held in the superior court. See Mendoza-Lopez, 105 Wn. App. at 390-91.
This resolution also makes it unnecessary to determine whether Lopez-Maria was denied his right to effective assistance of counsel when he sought to withdraw the plea and whether the trial court erred in sentencing Lopez-Maria under RCW 9.94A.712.
We hereby reverse and remand for proceedings consistent with this opinion.
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, J. and VAN DEREN, A.C.J., concur.