State v. Littlefair

• Decision Date: 02 August 2002
• Docket Number: No. 24924-3-II.,24924-3-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Peter T. LITTLEFAIR, Appellant.

51 P.3d 116

112 Wash.App. 749

STATE of Washington, Respondent, v. Peter T. LITTLEFAIR, Appellant.

No. 24924-3-II.

Court of Appeals of Washington, Division 2.

August 2, 2002.

George A. Kolin, Washougal, WA, for Appellant.

Peter S. Banks, Prosecutor's Office, Skamania Co Courthouse, Stevenson, WA, for Respondent.

MORGAN, J.

Peter T. Littlefair, a resident alien, pled guilty after his attorney struck a portion of the plea form that would have told him deportation was a possible consequence. Relying on RCW 10.40.200, he moved to set aside his plea. The trial court denied his motion, but we reverse and remand.

Littlefair was born in Canada but raised in New Jersey, where his parents still reside. He is a resident alien but not a United States citizen.

In December 1995, the police searched Littlefair's house and found growing marijuana plants. In March 1996, the State charged Littlefair with manufacturing marijuana. At all times thereafter, Littlefair had counsel.¹

In August 1996, during a pretrial hearing on a motion to suppress, Littlefair testified in open court "that he was born in Canada, and raised in New Jersey."² The court and both counsel were present at that time.

On October 17, 1996, Littlefair pled guilty and was sentenced. The court imposed two days in jail, 240 hours of community service, two years of supervision, and about $3200 in costs and fines.

Before October 17, 1996, Littlefair's attorney prepared a written plea form. The form had six pages and twelve numbered sections. Section 6 was subdivided into sixteen lettered subsections, each of which described one or more consequences of pleading guilty.³ Eight of the sixteen subsections were stricken by using three typewritten "x"s to mark through their letter designations, apparently to indicate they did not apply to Littlefair. One of the eight thus stricken, subsection (6)(n), would have told Littlefair that he could be deported as a consequence of his plea. As prepared, section 6 appeared as follows:

6. IN CONSIDERING THE CONSEQUENCES OF MY GUILTY PLEA, I UNDERSTAND THAT:

(a) The crime with which I am charged carries a maximum sentence of 5 years imprisonment and/or $10,000.00 fine. The standard sentencing range is from 0 months to 3 months confinement....

(b) The standard sentencing range is based on the crime charged and my criminal history....

(c) The prosecuting attorney's statement of my criminal history is attached to this agreement....

(d) If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard range and the prosecuting attorney's recommendation may increase....

(e) In addition to sentencing me to confinement for the standard range, the judge will order me to pay $__________ as a victim's compensation fund assessment....

(f) The prosecuting authority will make the following recommendation to the Judge: See Plea Agreement attached....

(g) The judge does not have to follow anyone's recommendation as to sentence....

XXX The crime of ________ has a mandatory minimum sentence of ________ years of total confinement. The law does not allow any reduction of this sentence. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

XXX The sentence imposed on Counts ______ will run consecutively unless the judge finds substantial and compelling reasons to do otherwise. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

XXX In addition to confinement, the judge will sentence me to community placement for at least one year.... (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(k) The judge may sentence me as a first time offender instead of giving a sentence within the standard range if I qualify under RCW 9.94A.030 (20).... (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

XXX This plea of guilty will result in revocation of my privilege to drive.... (If not applicable, this paragraph should be stricken and initialed by the Defendant and the judge.)

XXX If this crime involves a sexual offense, prostitution, or a drug offense associated with hypodermic needles, I will be required to undergo testing for the human immunodeficiency (AIDS) virus. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

XXX If I am not a citizen of the United States, a plea of guilty to an offense punishable as a crime under the state law is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

XXX If this crime involves a sex offense or a violent offense, I will be required to provide a sample of my blood for ... DNA identification analysis.... (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

XXX If this crime involves a sex offense, I will be required to register with the sheriff of the county where I reside....(If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)[⁴]

On October 17, 1996, about 15-20 minutes before he went into court, Littlefair met an associate of his attorney in the hallway of the courthouse. He had not met the associate before. The associate handed him the written plea form and told him to read it. Littlefair had not seen the plea form before, and the associate did not discuss it with him. Littlefair read the form as instructed—but not the eight subsections that had been marked out. Thinking that those eight did not apply to him, he "just skipped over them" and "read the ones that would be pertaining to the plea bargain."⁵

Immediately after reviewing the plea form, Littlefair entered the courtroom and pled guilty. He did not "know from his attorneys or any other source that he would be subject to deportation[.]"⁶ His attorney's routine practice was "to not inquire of a defendant's citizenship status if the defendant was not a person of color or did not have an Hispanic surname."⁷ Adhering to that practice in this case, the attorney assumed Littlefair was a United States citizen and "neglected to inform him" of any deportation consequences.⁸

During the plea proceeding itself, no one followed the parenthetical instructions in subsections (6)(h) through (6)(m) and (6)(o) through (6)(p). Neither Littlefair nor the judge initialed the subsections that had been stricken, and no one noted that subsection (6)(n) was not supposed to be marked out.⁹

After the plea and sentence, more than two years elapsed. Then, on November 2, 1998, the Immigration and Naturalization Service (INS) notified Littlefair that it would seek to deport him because of his conviction. At that time, for the first time, Littlefair "became aware of the deportation consequences as a result of his plea of guilty."¹⁰

On May 3, 1999, Littlefair moved to withdraw his guilty plea. He stated that he "would not have changed his plea ... had [he] known that he in fact would be deported."¹¹ The State responded that he was required to bring his motion within one year of October 17, 1996, and that he had failed to do that.

On July 16, 1999, a hearing was held. The trial court ruled that Littlefair's motion was "not timely" because Littlefair had not filed it within one year of October 17, 1996.¹² The court also ruled, with respect to the merits, as follows:

First of all, there's a distinction between the paragraph concerning citizenship and the other paragraphs that must be stricken.... All of those [other paragraphs] ... have ... parentheses that state, "If not applicable, this paragraph should be stricken and initialed by the defendant and the judge." That parenthetical language does not appear on the paragraph concerning citizenship.

In other words, that paragraph applies to every judgment and sentence. It is not a paragraph that should be stricken.... The only thing was that somebody put in three Xs there....

Mr. Littlefair had an opportunity to read all of the plea statement. He indicated by his signature that he did.... Also, if you look at the case of State v. Malik, 37 Wash.App. 414, 680 P.2d 770, which was decided in 1984, that case stated that, "Failure to advise a defendant of immigration consequences is not grounds to withdraw a plea because it's a collateral not a direct consequence of the plea. And the court does not have to advise the defendant of all collateral consequences of a plea."¹³

Based on these rulings, the court entered written findings and an order denying Littlefair's motion to withdraw his plea.

On appeal, the parties debate two main issues. (1) Did the trial court err by holding that Littlefair's motion was time-barred? (2) If not, did the trial court err by holding that Littlefair was not entitled to withdraw his plea? We address each in turn.

I.

The first issue is whether the trial court erred by holding that Littlefair's motion to withdraw his plea was time-barred. RCW 10.73.090 provides:

(1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.

(2) For purposes of this section, "collateral attack" means any form of postconviction relief other than a direct appeal. "Collateral attack" includes ... a motion to withdraw a guilty plea....[¹⁴]

The State contends that Littlefair was required to file his motion to withdraw his plea within one year of October 17, 1996; that he failed to do that; and thus that he is time-barred. Littlefair acknowledges that he did not file his motion within one year after October 17, 1996. He claims, however, that he "did not receive notice from the INS until November, 1998[;]" that until then he had no way to...