State v. Lee
| Decision Date | 24 February 2009 |
| Docket Number | 36506-5-II,36513-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. NICHOLAS JERMAINE LEE, Appellant, STATE OF WASHINGTON, Respondent, v. AARON DARNELL BARNES, Appellant. |
Unpublished Opinion
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[1] 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.
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.[2] 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.
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."[3] 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.
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:
Lee pleaded guilty to both charges in accordance with Alford/Newton and In re Barr.[4] 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.
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.[5] 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).[6] 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.
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."[7] 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 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
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.[8] 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.
Due process requires that when a criminal defendan...
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