State v. McDermond

• Decision Date: 07 June 2002
• Docket Number: No. 26137-5-II.,26137-5-II.
• Citation: 112 Wash. App. 239,112 Wn. App. 239,47 P.3d 600
• Parties: STATE of Washington, Appellant, v. Ernesto McDERMOND, Respondent.
• Court: Washington Court of Appeals

47 P.3d 600

112 Wash. App. 239

112 Wn. App. 239

STATE of Washington, Appellant, v. Ernesto McDERMOND, Respondent.

No. 26137-5-II.

Court of Appeals of Washington, Division 2.

June 7, 2002.

Linda J. King, Steilacoom, for Respondent (Court Appointed).

Michael Lee Sommerfeld, Pierce Co. Deputy Pros. Atty., Tacoma, for Appellant.

MORGAN, P.J.

The State appeals an order vacating Ernesto Jimmy McDermond's guilty pleas. We reverse and remand for further proceedings.

On May 12, 1999, the State charged McDermond with two counts of first degree possession of stolen property and one count of second degree possession of stolen property. On or before March 29, 2000, the State agreed to reduce the charges to three counts of second degree possession of stolen property, and to recommend a standard-range sentence of 4 months. McDermond agreed to plead guilty to the reduced charges. At that time, both parties thought that McDermond's offender score was 5 and his standard range 4-12 months.

On March 29, 2000, McDermond pled guilty. The court scheduled sentencing for a later date.

Before the date on which sentencing was to occur, the parties realized that they had miscalculated McDermond's offender score and standard range. They now agreed that his offender score was 4 and his standard range 3-8 months.

In April 2000, McDermond moved to withdraw his pleas. At the ensuing hearing, the prosecutor and defense counsel noted they had made "a mutual mistake as to the point score[.]"¹ McDermond argued that his decision to plead guilty had been "affected by erroneous information[,]"² and that his pleas had not been "voluntarily made."³ The State argued that a defendant could not set aside a guilty plea just because he or she thought the standard range was higher than it actually was, even though a defendant could set aside a guilty plea because he or she thought the standard range was lower than it actually was. The State also argued that a plea could not be set aside without finding "manifest injustice."⁴

In May 2000, the trial court orally granted McDermond's motion. It did not, however, find a "manifest injustice." It stated:

I'm going to grant the motion. You know, I struggle with finding a manifest injustice here, but I also feel that if the consequences are different than you thought they were going to be when you plead guilty, you ought to be allowed to withdraw your plea.[⁵]

In June 2000, each party presented proposed findings and conclusions, but the court refused to sign either party's proposal. The court commented:

The facts are the defendant was misinformed as to the offender score, and he seeks to withdraw his guilty plea. The cases say that's all it takes.[⁶]

Again then, the court did not find a "manifest injustice."

I.

The State now appeals. Preliminarily, it claims that "[t]he trial court erred when it permitted defendant to withdraw his guilty plea without finding that a manifest injustice had occurred...."⁷ We disagree.

The leading case is State v. Taylor.⁸ It notes that before the 1973 adoption of CrR 4.2, RCW 10.40.175 gave the trial court broad discretion on whether to allow withdrawal. It then goes on to state:

The comprehensive protective requirements of CrR 4.2(d), (e) and (g) present a striking contrast to the less strict procedures formerly associated with RCW 10.40.175 and its connected cases. Greater safeguards have been thrown around a defendant at the critical time of accepting his plea of guilty. Every effort has been made to ascertain that the plea of guilty is made voluntarily, with understanding and with reasonable knowledge of the important consequences. That being the case, trial courts should exercise greater caution in setting aside a guilty plea once the required safeguards have been employed.

Under the federal rules, the "manifest injustice" requirement has been recognized as a "demanding standard." The federal courts have found the demanding standard met where it is established that a defendant has failed to understand the consequences of his plea; or, where a defendant was denied effective assistance of counsel; or, where the plea was induced by threats or promises.... The [Washington State Criminal Rules] task force, in its comments, has suggested four indicia of "manifest injustice." They are: "(1) denial of effective counsel, (2) plea ... not ratified by the defendant or one authorized (by him) to do so, (3) plea was involuntary, (4) plea agreement was not kept by the prosecution." While we agree that any one of the above-listed indicia would independently establish "manifest injustice" and would require a trial court to allow a defendant to withdraw his plea, none is present in this case.

The American Bar Association standards and the Criminal Rules Task Force proposed standards do not suggest that the list of indicia is exclusive and we do not so hold. If, however, facts presented to the court do not fall within one of the listed categories, ... we hold that there must at least be some showing that a manifest (i.e., obvious, directly observable, overt or not obscure) injustice will occur if the defendant is not permitted to withdraw his plea.[⁹]

Together with later cases,¹⁰ Taylor contemplates two inquiries. (1) Was the plea valid when initially entered? (2) Even if it was, should it now be set aside? If the plea was not valid when entered, the trial court must set it aside regardless of "manifest injustice." If the plea was valid when entered, the trial court may set it aside only upon finding "manifest injustice." The first inquiry is dispositive here, so the trial court was not required to find "manifest injustice."

II.

As just indicated, the dispositive inquiry is whether McDermond's pleas were valid when initially entered. If so, they should be upheld. If not, they should be vacated.

A defendant's decision to plead guilty must be knowing, voluntary, and intelligent.¹¹ To be voluntary, it must be made without coercion,¹² a matter not contested here. To be knowing and intelligent, it must at least be made with a correct understanding of the charge and of the consequences of pleading guilty.¹³

Since the 1980 case of State v. Barton,¹⁴ Washington courts have dichotomized the consequences of pleading guilty into those that are "direct" and those that are "collateral."¹⁵ A "direct" consequence is one that has a "definite, immediate and largely automatic effect on the range of defendant's sentence."¹⁶ A "collateral" consequence is one that does not "alter the standard of punishment"¹⁷ and that involves "ancillary or consequential results which are peculiar to the individual."¹⁸ "Direct" consequences include (1) the statutory maximum sentence,¹⁹ (2) the standard sentencing range,²⁰ (3) eligibility for SSOSA,²¹ (4) mandatory community placement,²² (5) restitution,²³ and (6) any mandatory minimum sentence.²⁴ "Collateral" consequences include (1) sex offender registration,²⁵ (2) commitment under the sexually violent predator act,²⁶ (3) extending jurisdiction over restitution,²⁷ (4) mandatory DNA testing,²⁸ (5) the right to bear arms,²⁹ (6) deportation,³⁰ (7) return to a juvenile institution,³¹ (8) habitual criminal proceedings,³² and (9) parole revocation.³³ In order to plead knowingly, voluntarily and intelligently, a defendant must be informed of each "direct consequence," but not of each "collateral consequence;"³⁴ and if he or she is not advised of a "direct consequence," the plea must be set aside.³⁵

This somewhat arbitrary dichotomy has started to break down. In State v. Oseguera Acevedo,³⁶ the defendant pleaded guilty to a drug charge. He was told that he would receive substantial prison time, and that he would likely be deported when released. He was not told that he would be subject to community placement if not deported. When he discovered that community placement was required, he moved to withdraw his plea, but the trial court denied his motion. On appeal, two judges of Division Three held that community placement was a "direct" consequence of his guilty plea, and that the record did not show he had been advised of that consequence. Thus, they set his plea aside.³⁷ A dissenting judge reasoned in part that any failure to advise could not have affected the defendant's decision to plead guilty, because he knew he was likely to be deported upon release. Thus, the dissenting judge would have affirmed the trial court.³⁸

The Supreme Court granted review and issued three opinions.³⁹ In the first opinion, four justices reasoned that under State v. Ross⁴⁰ "a mandatory period of community placement is a `direct consequence' of a plea of guilty concerning which the defendant must be informed before entering a voluntary plea of `guilty.'"⁴¹ The four justices further reasoned, however, that there was "no indication the term of community placement was `material' or relevant to the decision by [defendant] to plead guilty."<sup>42</sup> Thus, the four justices said, "[o]ne cannot logically conclude [that the defendant's] mandatory term of community placement is a `direct consequence' of his plea of guilty[,]"⁴³ and the plea should be upheld.

In the second opinion, three justices thought that the defendant had properly been advised of community placement and that the plea should thus be upheld.⁴⁴ They had no occasion to reach the question whether defective advice of a "direct consequence" renders a plea invalid only if it materially affects the defendant's decision to plead guilty.

In the third opinion, two justices reasoned that defective advice of a "direct consequence" renders a plea invalid only if it materially affects the defendant's decision to plead; that the advice in issue materially affected the defendant's decision to plead; and thus that his plea should be set aside. Hence, all six justices who addressed the question held that defective advice concerning a "direct consequence" renders a guilty plea invalid only if it materially affects the defendant's decision to enter...