State v. Malone

Decision Date09 January 2007
Docket NumberNo. 23711-7-III.,No. 23696-0-III.,No. 24362-1-III.,23696-0-III.,23711-7-III.,24362-1-III.
Citation136 Wn. App. 545,150 P.3d 130
PartiesSTATE of Washington, Respondent, v. Michael E. MALONE, Appellant. In the Matter of the Personal Restraint Petition of Michael E. Malone, Petitioner.
CourtWashington Court of Appeals

Susan M. Gasch, Spokane, for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Spokane, for Respondents.


¶ 1 We have consolidated Michael E. Malone's two appeals and his personal restraint petition because they share an essential assignment of error. RAP 3.3(b). Mr. Malone withdrew his pleas of guilty to two drug counts, one for possession and one for delivery of methamphetamine. The pleas followed a plea agreement. He elected instead to go to trial on five counts. This turned out to be a mistake. The jury convicted him on all counts. The right to plead guilty is statutory, not constitutional. CrR 4.2; In re Pers. Restraint of Mayer, 128 Wash.App. 694, 703, 117 P.3d 353 (2005). Mr. Malone nonetheless contends that the trial court committed constitutional error in allowing him to withdraw the pleas. He asks us to reinstate the original plea bargain. He also challenges the court's rulings on his motion to suppress evidence obtained during the search and seizure leading to his arrest.

¶ 2 The court acted within its discretion in vacating the pleas. Both the State and the defendant repudiated the agreement. Mr. Malone has never shown that his offender score was wrong. And the State kept the offer open so that Mr. Malone could reconsider with the benefit of new counsel.

¶ 3 The record supports the court's suppression rulings. We therefore affirm the convictions.


¶ 4 A state patrol trooper followed a car for several miles. He pulled it over for failing to keep right except to pass. Mr. Malone sat in the backseat of the car. The trooper noticed that Mr. Malone was not wearing a seat belt. He asked Mr. Malone for identification. Mr. Malone gave a false name and date of birth. The trooper discovered the name Mr. Malone gave was false. Mr. Malone admitted as much and said he had done so because he had a warrant out for his arrest. The trooper arrested Mr. Malone for obstructing him in the performance of his duty and searched the car incident to the arrest. He found prescription pills and drug paraphernalia. The trooper then arrested Mr. Malone for possession and took him to jail. The booking officers searched him and found a small amount of methamphetamine in the coin pocket of his jeans.

¶ 5 The State charged Mr. Malone with possession of methamphetamine. Later, in another case the State charged four counts of delivery based on separate unrelated controlled buys.

¶ 6 The State offered Mr. Malone a plea bargain: he could plead guilty to one count of possession and one count of delivery. The State would then drop the remaining three delivery counts. Mr. Malone accepted. Both he and his lawyer signed an agreed "Understanding of Defendant's Criminal History" as part of the agreement. That "Understanding" set out Mr. Malone's prior criminal history including convictions for grand theft, bail jumping, unauthorized use of a motor vehicle, and several misdemeanors. The convictions supported an offender score of four. And that score became the basis for the written agreement to plead guilty. Mr. Malone pleaded guilty. And the court accepted his pleas as free and voluntary after the appropriate colloquy.

¶ 7 Later, Mr. Malone appeared for sentencing. He questioned the offender score of four set out in his statement on plea of guilty. The State then moved to vacate the pleas. The State argued that the challenge to the offender score breached the plea agreement. The court asked the parties to brief the issue and set a hearing on the State's motion to vacate.

¶ 8 Later the parties appeared before a different judge. Mr. Malone told the court he wanted to fire his public defender and hire private counsel. The court discharged the public defender and then proceeded with a hearing on vacating the pleas. The State agreed to hold open its plea offer for a few weeks to allow Mr. Malone time to consult his new lawyer. The court asked him if he wanted to withdraw the pleas. Mr. Malone said he did:

THE DEFENDANT: My question to this is that agreement to the plea that was supposedly there, before Judge Price or the honor came out, these two, I say with respect, were I guess discussing my case, and the agreement that I understood was as in the months, of course, which is already done, but the essential points behind that, sir, and—

THE COURT: Just tell me this. Do you want to adopt and unequivocally at this time tell the Court that you want to adopt the plea agreement as it was entered into before Judge Price, or do you want it vacated?

THE DEFENDANT: I'm trying to understand when you say vacate. I understand the vacate was to—

THE COURT: Erase it.

THE DEFENDANT: Erase it out.

THE COURT: Erase it out. It didn't happen. Do you want to go to where you were before you agreed on the plea?

THE DEFENDANT: I think it would be necessary so I would have a chance to prove myself on these cases.

THE COURT: I'm just going to do this. We're going to vacate the plea in both cases, and it's with the understanding that the State has made a comment that they will re-initiate the negotiation and re-offer the plea as soon as they're advised of who they're dealing with as counsel for the defendant, Mr. Malone.

Report of Proceedings (RP) (No. 23696-0-III) (May 6, 2004) at 15-16.

¶ 9 The court vacated both pleas on the understanding that the State would give Mr. Malone time to confer with new counsel and then offer the same deal. No plea deal was ever signed. Mr. Malone elected, instead, to go to trial.

¶ 10 He moved pretrial to suppress the drug evidence for the possession charge on the grounds the seat belt infraction was bogus and the detention and search exceeded the lawful scope of the stop. The State defended the stop and argued to admit the drugs based on the search incident to arrest. The court denied the motion to suppress.

¶ 11 A jury found Mr. Malone guilty as charged.


¶ 12 Mr. Malone now contends that the court improperly granted the State's request to vacate his guilty pleas. He asserts that the court should have calculated a correct offender score before it considered vacating the pleas. The State responds that Mr. Malone asked to withdraw from the plea agreement and the court merely acceded to that request. The State also argues that Mr. Malone has a right to a fair trial but has no right to plead guilty. And, moreover, the agreement was again tendered and rejected by Mr. Malone. In other words, he chose to reject the offer to plead guilty and to go to trial instead.

¶ 13 The right to plead guilty is statutory, not constitutional. CrR 4.2; Mayer, 128 Wash.App. at 703, 117 P.3d 353. Due process requires that a defendant understand the terms of a guilty plea agreement and freely accept them. That is, the plea must be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A defendant may withdraw a guilty plea to correct a "manifest injustice." CrR 4.2(f); State v. Bao Sheng Zhao, 157 Wash.2d 188, 197, 137 P.3d 835 (2006). Manifest injustice includes circumstances where "`(1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept.'" Bao Sheng Zhao, 157 Wash.2d at 197, 137 P.3d 835 (quoting State v. Marshall, 144 Wash.2d 266, 281, 27 P.3d 192 (2001)).

¶ 14 We review the trial court's decision for abuse of discretion. State v. Conley, 121 Wash.App. 280, 284, 87 P.3d 1221 (2004). A court abuses its discretion when its decision is made for untenable reasons or is based on untenable grounds. State v. Flinn, 154 Wash.2d 193, 199, 110 P.3d 748 (2005). The appellant has the burden of proving abuse of discretion. Id.

¶ 15 As a preliminary matter, a criminal defendant has no constitutional right to enter a guilty plea. This right stems solely from CrR 4.2 (right to plead not guilty, not guilty by reason of insanity, or guilty). State v. Martin, 94 Wash.2d 1, 4, 614 P.2d 164 (1980); Mayer, 128 Wash.App. at 703, 117 P.3d 353. What Mr. Malone had was a constitutional right to a fair trial,1 which is what he received when he withdrew his pleas. Mr. Malone did not have a constitutional right to a plea bargain. Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); State v. Wheeler, 95 Wash.2d 799, 804, 631 P.2d 376 (1981). But the Sentencing Reform Act of 1981, chapter 9.94A RCW, does limit the court's sentencing authority, even if the defendant pleads guilty. In re Pers. Restraint of Moore, 116 Wash.2d 30, 34, 803 P.2d 300 (1991). The mere existence of a plea bargain does not diminish the defendant's right to be sentenced strictly according to its terms. In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 870, 50 P.3d 618 (2002); Moore, 116 Wash.2d at 38, 803 P.2d 300.

¶ 16 And Mr. Malone is correct that the rules do not provide for the court to vacate a plea on the State's motion. The court may allow withdrawal of a plea on the defendant's motion to correct a "manifest injustice." CrR 4.2(f); State v. Tourtellotte, 88 Wash.2d 579, 584, 564 P.2d 799 (1977). But there is no comparable provision for the State to vacate a plea. Tourtellotte, 88 Wash.2d at 584, 564 P.2d 799. Here, the court vacated the pleas only after establishing on the record that Mr. Malone himself wished to vacate his pleas. RP (No. 23696-0-III) (May 6, 2004) at 15-16.

¶ 17 Mr. Malone was represented by counsel when he agreed to plead guilty to two charges rather than the five the State charged him with. In furtherance of that agreement, both he and his lawyer stipulated to Mr. Malone's specific criminal history. And his lawyer further stipulated...

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