In re Hoisington

• Decision Date: 22 February 2000
• Docket Number: No. 18621-1-III.,18621-1-III.
• Citation: 99 Wash.App. 423,993 P.2d 296
• Court: Washington Court of Appeals
• Parties: In the Matter of the Application for Relief From Personal Restraint of: Monte C. HOISINGTON, Petitioner.

993 P.2d 296

99 Wash.App. 423

In the Matter of the Application for Relief From Personal Restraint of: Monte C. HOISINGTON, Petitioner.

No. 18621-1-III.

Court of Appeals of Washington, Division 3, Panel Six.

February 22, 2000.

Reconsideration Denied March 24, 2000.

John Henry Browne, Browne & Ressler, Seattle, for Petitioner.

Ray D. Lutes, Prosecuting Attorney, Asotin, for Respondent.

SCHULTHEIS, J.

Monte C. Hoisington pleaded guilty in 1991 to second-degree rape and second-degree burglary. He is currently serving an exceptional sentence of 325 months. In this petition, he seeks to specifically enforce the original plea agreement under which he first pleaded guilty. Both he and the State based that agreement on their incorrect belief that RCW 9A.44.050 defined second-degree rape as a class B felony, with a maximum sentence of 10 years.

The State moves to dismiss Mr. Hoisington's petition because he filed it more than one year after the judgment against him became final. See RCW 10.73.090. In the alternative, it argues it performed its part of the plea agreement when it recommended the superior court sentence Mr. Hoisington to 114 months for his offenses.

We conclude the one-year limitation period of RCW 10.73.090 was equitably tolled in Mr. Hoisington's case. In his prior appeals and in a prior personal restraint petition, Mr. Hoisington raised the issue of specific enforcement of his plea agreement, but the court failed to address it. Further, we conclude that Mr. Hoisington has a right to specific enforcement of his plea agreement, unless the State proves on remand that such a remedy is unjust.

FACTS

In 1991, Asotin County charged Mr. Hoisington with first-degree burglary and first-degree rape. Mr. Hoisington and the State subsequently entered into a plea bargain. The State agreed to reduce the charges to second-degree burglary and second-degree rape and to recommend a standard range sentence of 114 months, in exchange for Mr. Hoisington's guilty pleas. The amended information the State filed with the plea agreement stated, incorrectly, that second-degree rape was a class B felony with a maximum term of 10 years. The Legislature had recently amended RCW 9A.44.050, increasing second-degree rape to a class A felony with a maximum punishment of life imprisonment. See Laws of 1990, ch. 3, § 901.

The parties proceeded to the guilty plea hearing without learning of their mistake. At the hearing, the judge asked Mr. Hoisington, "[a]nd you understand that the crimes with which you are charged carry a maximum sentence of 10 years imprisonment and a $20,000 fine?" Mr. Hoisington answered, "Yes."¹ The court continued, "So while the sentencing grid ... has a high end of 130 months, ... the court, under the present law, could not sentence you even in an exceptional sentence to over 120 months; everybody understands that?" Mr. Hoisington answered, "Yes." Further along in the hearing, the court advised him that it did not have to follow sentencing recommendations; however, the court also observed that it was "limited by the maximum, the statutory maximum on the sentence." Mr. Hoisington then pleaded guilty, and the court approved the statement of defendant on plea of guilty and the order amending the information. The guilty plea hearing took place on November 6, 1991. On December 13 defense counsel notified Mr. Hoisington by letter that the prosecutor had informed him that the amended information mistakenly charged him under the old statute. However, counsel also advised Mr. Hoisington that the prosecutor still intended to ask for a standard range sentence, the high end of which was 130 months. However, to procure that recommendation, Mr. Hoisington had to agree to permit the State to amend the information to indicate that second-degree rape was a class A felony punishable by a maximum of life in prison. Counsel continued: "If for any reason you are not willing to agree to this change, [the prosecutor] would then request the Court to allow him to back out of the plea bargain agreement and no longer continue to recommend a favorable disposition of your case and would look forward to trial and seek an exceptional sentence." The letter closed with counsel telling Mr. Hoisington the results of the DNA tests were now available and positively identified him as the perpetrator.

Mr. Hoisington signed a stipulated amended plea agreement correctly identifying the rape charge as a class A felony with a maximum of life. The remainder of the agreement was the same as the first agreement, including the State's promise to recommend a standard range sentence of 114 months. However, the court did not follow the State's recommendation and, instead, imposed an exceptional sentence of the maximum—life.

Mr. Hoisington appealed. A panel of this court reversed, holding that the sentencing court erred when it imposed an indeterminate sentence. The panel remanded the case and directed the sentencing court to enter an exact number of months as a sentence. On remand, the sentencing court imposed an exceptional sentence of 325 months. Mr. Hoisington again appealed, and this court's commissioner affirmed.

LAW

Mr. Hoisington contends he had a right to specifically enforce his original plea agreement that assumed his maximum sentence for second-degree rape was 10 years. He asserts it was ineffective assistance of counsel for his attorney to fail to advise him of that right.

Mr. Hoisington relies upon State v. Miller, 110 Wash.2d 528, 756 P.2d 122 (1988). In Miller, the defendant pleaded guilty to first-degree murder pursuant to a plea bargain that specified he was free to argue to the court for a below standard range exceptional sentence of less than 20 years. The parties also agreed that the State would not recommend such a sentence but would recommend a sentence of 20 years. Three months later, but before sentencing, they discovered that the mandatory minimum term for first-degree murder is, by statute, 20 years. See RCW 9.94A.120(4). The defendant moved to withdraw his plea. The trial court refused on the ground the plea agreement could be specifically enforced, despite the statutory minimum. Nevertheless, defense counsel did not present any evidence of mitigating factors, believing the court was bound by the statutory minimum. The court sentenced the defendant to 20 years.

The Miller court first observed that a guilty plea entered on a plea bargain that is based upon misinformation about sentencing consequences is not knowingly made. 110 Wash.2d at 531,756 P.2d 122. In such circumstances, the court can permit the defendant to withdraw his plea, or it may grant specific enforcement of the agreement. Id. (citing State v. Tourtellotte, 88 Wash.2d 579, 585, 564 P.2d 799 (1977)). The fact the terms of the plea agreement are contrary to the explicit terms of a sentencing statute does not preclude enforcement of the agreement, "where fundamental principles of due process so dictate [.]" Id. at 532, 756 P.2d 122 (emphasis added) (citing State v. Cosner, 85 Wash.2d 45, 530 P.2d 317 (1975)). Because "[d]efendants' constitutional rights under plea agreements take priority over statutory provisions," the Miller court refused to hold that withdrawal, of a plea is the only remedy when the agreement clashes with the sentencing statutes. Id. at 533, 756 P.2d 122. In fact, withdrawal of the plea "may be unjust, especially where the defendant has relied to his or her detriment on the plea bargaining process by giving evidence to the State." Id.

Miller reviewed the Supreme Court's prior opinions in this area, which did not resolve the issue of whether the choice of remedy, withdrawal of the plea or specific enforcement, is in the sole discretion of the sentencing court, or whether the defendant makes the choice. 110 Wash.2d at 534-35, 756 P.2d 122. The court concluded "that the defendant's choice of remedy controls, unless there are compelling reasons not to allow that remedy." Id. at 535, 756 P.2d 122. The court cited two examples of "compelling reasons" to reject the defendant's choice. One, a defendant's choice of specific enforcement may be unfair if the plea agreement was the result of misinformation provided by the defendant. And, two, a defendant's choice of withdrawal of the plea may be unfair if the prosecutor has detrimentally relied on the bargain and has lost essential witnesses or evidence." Id.

The Miller court summarized its holding as follows: "[W]here the terms of a plea agreement conflict with the law or the defendant was not informed of the sentencing consequences of the plea, the defendant must be given the initial choice of a remedy to specifically enforce the agreement or withdraw the plea. The prosecutor bears the burden of demonstrating that the defendant's choice of remedy is unjust." Id. at 536, 756 P.2d 122 (emphasis added).

Just a few months after it decided Miller, the Supreme Court addressed these principles again in State v. Schaupp, 111 Wash.2d 34, 757 P.2d 970 (1988). There, the defendant entered a guilty plea to second-degree manslaughter after the prosecutor agreed to dismiss the second-degree murder charge the State had lodged against him. At the guilty plea hearing, the prosecutor told the court that "[t]he reason for the reduction ... is because of absent witnesses who are unable to be found who are essential to the prosecution." Id. at 36, 757 P.2d 970. Before sentencing, relatives of the victim disputed the prosecutor's claim. In response, the court appointed a special prosecutor, conducted an evidentiary hearing, and thereafter concluded that the witnesses were available at the time the prosecutor had represented otherwise. The court then vacated the plea, and reinstated the charge of second-degree murder. Id. at 37, 757 P.2d 970. A jury convicted the defendant of first-degree manslaughter.

In its decision granting Mr. Schaupp's appeal, the Supreme Court cited the rule that "[a] plea agreement, once...