State v. Mendoza

• Decision Date: 17 August 2006
• Docket Number: No. 77587-7.,77587-7.
• Citation: 141 P.3d 49,157 Wn.2d 582
• Parties: STATE of Washington, Respondent, v. Hector L. MENDOZA, Petitioner.
• Court: Washington Supreme Court

141 P.3d 49

157 Wn.2d 582

STATE of Washington, Respondent, v. Hector L. MENDOZA, Petitioner.

No. 77587-7.

Supreme Court of Washington, En Banc.

Argued June 29, 2006.

Decided August 17, 2006.

Ms. Patricia A. Pethick, Attorney at Law, Tacoma, Mr. Thomas Edward Doyle, Attorney at Law, Hansville, for Petitioner.

Mr. James C. Powers, Thurston Co. Prosecutor's Office, Olympia, for Respondent.

MADSEN, J.

¶ 1 There is a conflict among the divisions of the Court of Appeals as to whether a defendant is entitled to relief when a miscalculated offender score results in a lower standard range than the range indicated in the plea agreement. We hold that where a guilty plea is based on misinformation regarding the direct consequences of the plea, including a miscalculated offender score resulting in a lower standard range than anticipated by the parties when negotiating the plea, the defendant may withdraw the plea based on involuntariness. But, where it is clear that a defendant was informed of the miscalculation before sentencing and does not object or move to withdraw the plea on that basis, the defendant cannot challenge the voluntariness of the plea on appeal.

FACTS

¶ 2 Hector Mendoza was charged with one count of rape of a child in the third degree, one count of burglary in the first degree with sexual motivation, and one count of indecent liberties. On July 7, 2003, the parties entered a plea agreement which provided that Mendoza would plead guilty to one count of child molestation in the third degree. Mendoza's Statement of Defendant on Plea of Guilty described his offender score as 7, resulting in a standard range of 51 to 60 months. In exchange for Mendoza's guilty plea, the State agreed to recommend a 60 month sentence. The trial court accepted Mendoza's guilty plea and found him guilty of child molestation in the third degree.

¶ 3 A sentencing report was prepared that listed Mendoza's offender score as 6, resulting in a standard range of 41 to 54 months. During sentencing proceedings the State explained that Mendoza's offender score had been erroneously calculated in the plea agreement because a prior conviction that was listed as an adult felony conviction was in fact a juvenile felony conviction. Thus, as indicated in the sentencing report, his correct offender score was 6 and his standard range was 41 to 54 months. Based on the correct standard range, the State requested a sentence of 54 months. Mendoza's attorney asked the judge to consider sentencing him at the low end of the standard range. Mendoza did not object to the State's revised recommendation or mention any concern about his offender score or the lower standard range.

¶ 4 During proceedings held on August 18, 2003, Mendoza's attorney requested an evidentiary hearing to contest facts in the presentence report. In addition, the sentencing court considered Mendoza's objection to his counsel's representation and his request to withdraw his guilty plea based on ineffective assistance of counsel. When the court inquired into Mendoza's objection to his attorney's representation, Mendoza's attorney explained, among other things, that with respect to Mendoza's guilty plea, she recalled advising him that the State's "plea offer essentially spared him half the time that he would be looking at if he were convicted at trial." Tr. of Proceedings at 7 (Aug. 19, 2003). She continued, "[t]hen he made what I considered to be a voluntarily, intelligent decision to accept the plea agreement. We went through the plea hearing. As the Court points out, no mention of displeasure of his representation was made." Id. She explained that "[h]e simply agreed that in the trial posture, we were looking at quite a bit of jeopardy, and at that point agreed to settle the case." Id. at 8. Mendoza confirmed that his attorney advised him he was facing a 10-year sentence.

¶ 5 The sentencing court denied Mendoza's motion to withdraw his plea and stated that "there is nothing here that convinces me that there is anything to be gained by delaying further or convinces me that you have made a case for discharging your present court-appointed attorney and obtaining a new court-appointed attorney on the hope that in the future you may be allowed to withdraw your plea." Id. at 9. The judge sentenced Mendoza to 52 months.

¶ 6 Mendoza appealed, arguing his plea was involuntary because he was not informed of the correct standard range prior to pleading guilty. He asked that the Court of Appeals remand to the trial court with directions that he be allowed to decide whether to withdraw his guilty plea or seek specific performance of the plea agreement, absent a showing by the State that there are compelling reasons to limit Mendoza's choice of remedy.

¶ 7 In an unpublished opinion, Division Two affirmed the conviction and held that "a defendant enters an invalid plea only when he enters it believing that his sentencing range will be lower than in fact." State v. Mendoza, noted at 128 Wash.App. 1052, 2005 WL 1753800, at *2, 2005 Wash.App. LEXIS 1874, at *6.¹ The court in Mendoza, 128 Wash.App. 1052, 2005 WL 1753800 at *2, 2005 Wash.App. LEXIS at * * 5-6, relied on a previous decision where it held that "such erroneous information does not render the guilty plea invalid on its face. A defendant seeking to withdraw his plea, based on an assumption that the sentence would be harsher than it was in fact, may still do so if he can meet the `demanding standard' of CrR 4.2(f), which requires a `manifest injustice, i.e., "an injustice that is obvious, directly observable, overt, not obscure."'" In re Pers. Restraint of Matthews, 128 Wash.App. 267, 274, ¶ 17, 115 P.3d 1043 (2005) (quoting State v. Branch, 129 Wash.2d 635, 641, 919 P.2d 1228 (1996) (quoting State v. Saas, 118 Wash.2d 37, 42, 820 P.2d 505 (1991))).

¶ 8 We granted review of this case to resolve the split of authority in the divisions of the Court of Appeals. Division One has held that a plea based on a mutual mistake about the standard sentence range may be challenged as involuntary, regardless of whether the correct sentencing range is less onerous. State v. Murphy, 119 Wash.App. 805, 806, 81 P.3d 122 (2002). Similarly, Division Three has held that a defendant's guilty plea is involuntary when based on any misinformation regarding the direct consequences of a guilty plea. State v. Moon, 108 Wash. App. 59, 63, 29 P.3d 734 (2001).

ANALYSIS

¶ 9 Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent. In re Pers. Restraint of Isadore, 151 Wash.2d 294, 297, 88 P.3d 390 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). This standard is reflected in CrR 4.2(d), which mandates that the trial court "shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." Under this rule, once a guilty plea is accepted, the court must allow withdrawal of the plea only "to correct a manifest injustice." CrR 4.2(f). We have recognized the following circumstances as amounting to manifest injustice: the denial of effective counsel, the defendant's failure to ratify the plea, an involuntary plea, and the prosecution's breach of the plea agreement. State v. Wakefield, 130 Wash.2d 464, 472, 925 P.2d 183 (1996).

¶ 10 We have repeatedly held that a defendant may challenge the voluntariness of a guilty plea when the defendant was misinformed about sentencing consequences resulting in a more onerous sentence than anticipated. For example, in State v. Miller, 110 Wash.2d 528, 756 P.2d 122 (1988), we held the defendant was entitled to withdraw his guilty plea because both parties were unaware of a mandatory minimum sentence requirement. When Miller entered his guilty plea to first degree murder, he had been misinformed by his attorney, who in turn had been misinformed by the prosecutor, that he could receive an exceptional sentence of less than 20 years. Prior to sentencing, Miller was informed that a first degree murder conviction carried a mandatory 20-year sentence. On review, we held that because Miller entered his plea without knowing the sentencing consequences of that decision, his plea was involuntary and he was entitled to a remedy of either specifically enforcing the agreement or withdrawing the plea. Id. at 536-37, 756 P.2d 122.

¶ 11 We subsequently held that a defendant may withdraw his guilty plea when he was not informed of mandatory community placement because that sentencing term constitutes a "direct consequence" of a guilty plea. State v. Ross, 129 Wash.2d 279, 916 P.2d 405 (1996). We explained that a sentencing consequence is direct when "`the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment."' Id. at 284, 916 P.2d 405 (quoting State v. Barton, 93 Wash.2d 301, 305, 609 P.2d 1353 (1980)). We found that community placement is a direct consequence because it "affects the punishment flowing immediately from the guilty plea" and "imposes significant restrictions on a defendant's constitutional freedoms." Id. at 285, 286, 916 P.2d 405. Because Ross was not explicitly informed of the mandatory community placement and his plea was therefore involuntary, we held that he was entitled to withdraw it. Id. at 288, 916 P.2d 405.

¶ 12 Similarly, in State v. Walsh, 143 Wash.2d 1, 17 P.3d 591 (2001), we recognized that a defendant is entitled to withdraw his plea when the correct standard range is higher than the range stated in the plea agreement. Walsh had agreed to plead guilty to a reduced charge of second degree rape with the understanding his standard range was 86 to 114 months. After the plea was entered and before the sentencing hearing, the community corrections officer who prepared the presentence report determined that Walsh's vehicular assault conviction counted as two points,...