State v. Bisson

• Citation: 130 P.3d 820,156 Wn.2d 507
• Decision Date: 16 March 2006
• Docket Number: No. 75771-2.,75771-2.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Petitioner, v. Jonathan A. BISSON, Respondent.

Page 820

130 P.3d 820

156 Wn.2d 507

STATE of Washington, Petitioner, v. Jonathan A. BISSON, Respondent.

No. 75771-2.

Supreme Court of Washington, En Banc.

Argued June 28, 2005.

Decided March 16, 2006.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, for Petitioner/Appellant.

Montell E. Hester, Wayne Clark Fricke, Attorney at Law, Tacoma, Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, for Appellee/Respondent.

OWENS, J.

¶ 1 Defendant Jonathan Bisson pleaded guilty to five counts of first degree robbery and three counts of second degree robbery. The State conceded that Bisson's plea agreement was involuntary because he had not been clearly informed that the five deadly weapon enhancements applicable to the first degree counts had to be served consecutively to one another. At issue is the remedy for Bisson's involuntary plea. The State contends that his only remedy is withdrawal of the entire plea (complete rescission), but Bisson maintains that he may withdraw the plea to the deadly weapon enhancements only, while letting stand the plea to the underlying offenses (partial rescission), or that, in the alternative, he may receive a sentence imposing concurrent enhancements (specific performance). The Court of Appeals concluded that Bisson was not entitled to specific performance but that he could partially withdraw his plea agreement if he could establish on remand that he had personally perceived his plea to the enhancements to be separable from his plea to the underlying crimes. State v. Bisson, noted at 121 Wash.App. 1035, 2004 WL 1045915, at *1, 2004 Wash. App. LEXIS 962, at *2.

¶ 2 We agree with the State that Bisson was not entitled to the remedies of partial rescission or specific performance. The Court of Appeals decision is thus reversed in part and affirmed in part. On remand, the trial court should permit Bisson to withdraw his plea in its entirety.

FACTS

¶ 3 Bisson was charged with a string of robberies committed between November 2001 and January 2002, the first occurring at a flower shop and the others at espresso stands. In the second amended information, the State charged Bisson with five counts of first degree robbery and three counts of second degree robbery, pursuant to RCW 9A.56.200(1)(b), .210, and .190. Each of the five first degree counts included an allegation that Bisson had been armed with a deadly weapon—identified as a hammer in three counts, a knife in the other two.

¶ 4 On June 13, 2002, when his case was called for trial, Bisson pleaded guilty to the eight counts. As required under CrR 4.2(g), Bisson completed a "Statement of Defendant on Plea of Guilty," a form document bearing handwritten responses that Bisson had initialed.¹ The prosecutor handed the statement on the plea to the trial judge and also submitted the State's second amended information and the State's one-page "Plea Agreement." Verbatim Report of Proceedings (VRP) (June 13, 2002) at 8; Clerk's Papers (CP) at 43-46, 58. As indicated in the plea agreement, the State attached to the agreement the sentencing guidelines scoring forms and a form setting forth the prosecutor's understanding that Bisson had no prior criminal history.²

¶ 5 Bisson's statement on the plea incorporated information provided in the documents the State submitted—the State's second amended information, the State's plea agreement, and the sentencing guidelines scoring forms accompanying the plea agreement. Bisson acknowledged that he had been charged with, and was pleading guilty to, the crimes set forth in the second amended information. See CP at 30, 38. Consistent with the scoring forms, Bisson's statement on the plea entered "129-171" as the standard range for the five first degree robbery counts and "63-84" as the standard range for the three second degree robbery counts. Id. at 31, 60-61. As for the applicability of deadly weapon enhancements, the statement on the plea indicated that no enhancements were applicable to the second degree robbery counts but recorded that the first degree counts carried enhancements of "24 months on each count; 5 counts total." Id. at 31. That entry accurately repeated the information provided on the State's calculation sheet for the deadly weapon enhancements. There, the five first degree robbery counts are treated collectively as the "CURRENT OFFENSE BEING SCORED"; the "BASE STANDARD SENTENCE RANGE" is defined as "129 TO 171," the "DEADLY WEAPON ENHANCEMENT" as "24," and the resulting "STANDARD RANGE" as "153 TO 195." Id. at 62.

¶ 6 Consistent with the State's second amended information and its plea agreement with accompanying scoring sheets, the statement on the plea did not state that the five 24-month weapon enhancements were to run consecutively to one another. Just as the State's plea agreement provided that any mandatory enhancements "must be served consecutively to any other term and without any earned early release," id. at 58 (emphasis added), the preprinted form for the statement on the plea provided that "[t]his additional confinement time is mandatory and must be served consecutively to any other sentence I have already received or will receive in this or any other cause." Id. at 35 (emphasis added). Moreover, the calculation sheet for the deadly weapon enhancement folded the enhancements into the sentencing computation to produce a higher "STANDARD RANGE" for each of the five counts; because, by statute, those counts run concurrently, the scoring sheet obscured the requirement that the enhancements be served consecutively to one another. Id. at 62; see RCW 9.94A.589.

¶ 7 Bisson's statement on the plea indicated that, at the time of the entry of the plea on June 13, 2002, the State was leaving "open" its recommended sentence. CP at 33, 58. At the oral presentation of the plea on that day, the trial court confirmed Bisson's understanding that he was pleading guilty "to Counts I through VIII of the Second Amended Information" and that, in light of the "open recommendation," "the prosecutor at the time of sentencing can recommend anything up to the standard range." VRP (June 13, 2002) at 9-10 (emphasis added). Formally accepting Bisson's plea, the trial judge stated that he had "signed the Statement of Defendant on Plea of Guilty and the Plea Agreement." Id. at 11; see CP at 40, 58.

¶ 8 When the sentencing hearing began seven weeks later on August 2, 2002, the prosecutor began by reporting that defense counsel had brought to his attention a citation error in the second amended information, the information on which Bisson had based his previously entered guilty plea. In the information, the State had incorrectly cited the deadly weapon statutes as RCW 9.94A.125 and .310—provisions that had actually been recodified in July 2001 as RCW 9.94A.602 and .510, respectively. The State's plea agreement likewise incorrectly cited RCW 9.94A.310; because the prosecutor had used a form last revised in July 2000, the form incorrectly used citations predating the July 2001 recodification. CP at 58. Although the substance of the statutes had not changed in 2001, the legislature had changed RCW 9.94A.310 in 1998 in response to this court's decision in In re Post Sentencing Review of Charles, 135 Wash.2d 239, 955 P.2d 798 (1998), in which we held that former RCW 9.94A.310(3)(e) (1995) did not unambiguously require weapon enhancements to run consecutively to one another.³ Defense counsel explained to the court that Bisson had relied on the citation of RCW 9.94A.310 in the second amended information when exploring case law on his own: "[Bisson] has been citing me cases and saying, look at this case, look at this case, and look at this case. And the cases he is talking about are the line of supreme court and appellate cases that say that deadly weapon enhancements run concurrent. . . . Under his version he is looking up an old case law and under the statute which was cited in the amended information. And that's what he was relying on. . . . So I understand the basis for my client's confusion on that subject."⁴ While the State characterized the mistake as a harmless scrivener's error, defense counsel moved to dismiss the weapons allegations without prejudice, stating that Bisson had understandably believed the enhancements would run concurrently with one another and that, even if the citations had been correct, the information's description of the deadly weapons was factually insufficient. The trial court granted the State's motion to correct the citation and denied Bisson's motion.

¶ 9 The State then went on to recommend at the August 2 sentencing hearing, orally and in writing, that Bisson receive base sentences of 150 months on each of the five first degree robbery counts and 75 months on each of the three second degree robbery counts, with the base sentences on all eight counts to run concurrently. See VRP (Aug. 2, 2002) at 13-14; CP at 63-64. The State's sentencing recommendation stated that each of the five first degree robbery counts carried a mandatory 24-month deadly weapon enhancement. Although the recommendation form stated that the five enhancements would be "served consecutive to any other term of confinement," it did not specify that the enhancements would be consecutive to one another. CP at 64. Nor did the State's oral presentation clarify that the enhancements were to run consecutively to one another: "As the Court knows the deadly weapon enhancements run consecutive to the 150-month sentence." VRP (Aug. 2, 2002) at 13.

¶ 10 The trial court reduced the State's 75-month recommendation to 63 months on each of the three second degree robbery counts and similarly reduced the 150-month recommendation to 129 months on each of the five first degree robbery counts. When the trial court initially announced its sentencing decision, the court was under the impression that the 24-month enhancements would also be served concurrently:

And on the counts [for first degree robbery, I am...