State v. Matsen

• Decision Date: 12 July 2022
• Docket Number: 55624-3-II
• Parties: STATE OF WASHINGTON, Respondent, v. BRYAN CHRISTOPHER MATSEN, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,
v.
BRYAN CHRISTOPHER MATSEN, Appellant.

No. 55624-3-II

Court of Appeals of Washington, Division 2

July 12, 2022

UNPUBLISHED OPINION

VELJACIC, J.

Bryan C. Matsen appeals his convictions and sentence. Matsen pleaded guilty to two counts of aggravated murder in the first degree. Matsen contends that he is entitled to withdraw his guilty plea. Specifically, he argues that his plea was involuntary because he was misinformed about the maximum statutory penalty for aggravated murder in the first degree. In a statement of additional grounds (SAG), Matsen also argues that his plea was involuntary because he was misinformed about the imposition of mandatory community custody, which he contends is a direct consequence of his plea under the facts of this case. Matsen further argues that his plea was involuntary because he was provided ineffective assistance of counsel.

We hold that Matsen fails to show that his guilty plea was involuntary. First, Matsen was properly informed about the maximum statutory penalty that applied to him. Second, community custody was not a direct consequence of Matsen's guilty plea under the facts presented. He was sentenced to life imprisonment without the possibility of parole and the imposition of community custody would not enhance his sentence or punishment. Third, Matsen does not establish ineffective assistance of counsel requiring a withdrawal of his guilty plea because he fails to allege

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any prejudice from counsel's allegedly deficient performance at sentencing. Accordingly, we affirm Matsen's convictions and sentence for two counts of aggravated murder in the first degree.

FACTS

On November 30, 2005, the State charged Matsen with two counts of aggravated murder in the first degree. In the charging document, the State advised that the maximum penalty for each count was "[l]ife imprisonment without the possibility of parole or release, or death if the [State] files written notice of a special sentencing proceeding to determine whether the death penalty should be imposed and if the jury finds that there are not sufficient mitigating circumstances to merit leniency." Clerk's Papers (CP) at 8, 9.

The State considered pursuing capital punishment. In fact, Matsen's appointed counsel moved to withdraw "due to the possibility of the death penalty or mitigating circumstances," which the trial court granted. CP at 67. Additionally, the record demonstrates that the parties agreed to extend the deadline for the State to file a "Special Sentencing Proceeding Notice" so that Matsen could compile a mitigation package. CP at 69. A hearing for the special sentencing notice was set for November 1, 2006.

On November 1, Matsen entered guilty pleas to both counts of aggravated murder in the first degree. In exchange for Matsen's guilty pleas, the State agreed to recommend a sentence of life without the possibility of parole under the plea agreement. In both the statement of defendant on plea of guilty and the plea agreement, Matsen was advised that the standard range sentence and maximum statutory penalty for both counts was life imprisonment without the possibility of parole.

Matsen's statement of defendant on plea of guilty also contained a section concerning community custody. In relevant part, the statement contained boilerplate language providing that, "If the crime I have been convicted of falls into one of the offense types listed in the following

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chart, the court will sentence me to community custody for the community custody range established for that offense type unless the judge finds substantial and compelling reasons not to do so." CP at 15. Below the boilerplate language, a chart provided that "Serious Violent Offenses" would carry a community custody range of "24 to 48 months or up to the period of earned release, whichever is longer." CP at 15. However, Matsen's plea agreement did not mention the imposition of community custody.

Matsen affirmed that he had reviewed the statement of defendant on plea of guilty with his attorney. Matsen also affirmed that he reviewed the plea agreement and understood its terms. The trial court found that Matsen made his plea of guilty "knowingly, intelligently and voluntarily . . . understand[ing] the charges and consequences of the plea." CP at 19. The court also approved the plea agreement finding that Matsen "knowingly, voluntarily and intelligently entered into this plea agreement, and [he] understands the consequences of the agreements, recommendations and waivers therein." CP at 25. Accordingly, the court accepted Matsen's plea of guilty to both counts of aggravated murder in the first degree.

On November 15, the court sentenced Matsen to life imprisonment without the possibility of parole. At the sentencing hearing, the State requested the court to impose community custody conditions despite the fact that it was not mentioned in the plea agreement:

There is one minor housekeeping matter, and that has to do with community custody. We didn't include it in the plea agreement. It seems somewhat superfluous in a case in which the defendant is getting life without the possibility of parole; however, I fear if we don't include it in the judgment and sentence, Department of Corrections will send it back. It is a serious violent offense, and while it does seem somewhat superfluous, I think we should address that so we don't have to readdress it later

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Report of Proceedings (Nov. 15, 2006) at 17. The court agreed and imposed community custody for both counts for a period of 24 to 48 months. Neither defense counsel nor Matsen objected to the inclusion of community custody in the judgment and sentence.

On November 16, 2007, Matsen filed a motion to withdraw his guilty plea.^[1] Matsen's motion was transferred to this court as a personal restraint petition (PRP). We denied Matsen's PRP. See Order Dismissing Petition, In re Pers. Restraint of Matsen, No. 37224-0-II (Sept. 23, 2008).

On February 19, 2021, Matsen filed this notice of appeal. Matsen filed a motion under RAP 18.8(b) seeking our permission to file his untimely notice of appeal. A commissioner of this court granted the motion, accepting Matsen's appeal because "[t]he State has not met its burden of showing that Matsen voluntarily, knowingly, and intelligently [] waived his constitutional right to appeal." See Comm'r's Ruling (May 25, 2021). The State did not seek to modify the commissioner's ruling. Matsen appeals.

ANALYSIS

I. MAXIMUM STATUTORY PENALTY

Matsen argues that he is entitled to withdraw his guilty plea because he was misinformed about the maximum statutory penalty for aggravated murder in the first degree. More specifically, Matsen argues that the possibility of the death penalty influenced his decision to plead guilty, but because the Supreme Court in State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018), held that such a sentence violated article 1, § 14 of the Washington Constitution, the change in the law renders his plea involuntary. We disagree.

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A. Legal Principles

"We review whether a defendant's...