State v. Phelps

• Decision Date: 13 September 2002
• Docket Number: No. 26076-0-II.,26076-0-II.
• Parties: STATE of Washington, Respondent, v. Donald Bradford PHELPS, Appellant.
• Court: Washington Court of Appeals

57 P.3d 624

113 Wash.App. 347

STATE of Washington, Respondent, v. Donald Bradford PHELPS, Appellant.

No. 26076-0-II.

Court of Appeals of Washington, Division 2.

September 13, 2002.

Manek R. Mistry, Backlund & Mistry, (Court Appointed), Chehalis, WA, Counsel for appellant.

Loren Oakley, Clallam Co. Deputy Pros. Atty., Port Angeles, WA, Counsel for Respondent.

SEINFELD, J.

Donald Bradford Phelps's sentence ordered him to remain outside 4 Washington counties and provided for a seven year extension of the statute of limitations. Because he agreed to the sentence as part of a plea agreement, the invited error doctrine bars Phelps from challenging some parts of the sentence on appeal. But because the trial court lacked statutory authority to extend the statute of limitations, that portion of the sentence is void. Accordingly, we affirm in part and reverse in part.

FACTS

The State charged Phelps with five drug offenses and one count of witness tampering.¹ Phelps agreed to plead guilty to one count of unlawful delivery of marijuana, with the understanding that the State would dismiss the other charges with prejudice, except for count I, unlawful manufacture of marijuana. The State would dismiss count I without prejudice:

on condition that I stipulate to the facts related to that Count as set forth in the Certification for Probable Cause ... in support of the filing of the Criminal Information and any and all related police reports, and with the understanding that the charge described in Count I will not be re-filed against me as long as I do not re-enter any of the Counties of Clallam, Grays, Island, Jefferson, Kitsap, Mason, after four months have elapsed from the date of my release from incarceration for the charge to which I am pleading guilty; The defendant waives statute of limitations for a period of ten years.

Clerk's Papers (CP) at 42.

The State also agreed to recommend a 29-month standard range sentence and

[i]mposition of a total court-ordered legal financial obligation in the amount of $86,000.00, to be paid in accordance with the agreement set forth in Attachment A to this Statement of Defendant on Plea of Guilty, and to represent payment in full of all potential legal financial obligations relating to this action as described at RCW 9.94A.030(11), including, but not limited to, the mandatory $500.00 Victim Penalty Assessment and the mandatory $2,000 fine for conviction of a subsequent drug offense; and this amount also to represent satisfaction in full of any claim or cause of action, known or unknown, that Clallam County ... has asserted or could have asserted against me up to the date of the execution of the agreement represented by this Statement of Defendant on Plea of Guilty, including [listing specific cause numbers.]

CP at 42-43.

The trial court accepted Phelps' guilty plea, sentenced him to a 29-month standard range sentence, ordered a $2,000 fine "[t]o be paid from the proceeds of the $86,000.00 civil forfeiture," imposed one year of community placement, and ordered him to remain "outside Clallam, Kitsap, Grays Harbor and Mason Counties." CP at 32, 35. The court also added a hand-written note to the judgment and sentence stating: "The defendant agrees to extend the statute of limitation for refiling Count I for a period of 7 years from this Judgment and Sentence." CP at 36.

Phelps now appeals each of these terms of his judgment and sentence.

DISCUSSION

Phelps challenges neither the plea agreement nor his guilty plea. Instead, he argues that the trial court exceeded its statutory authority in imposing a "[b]anishment" provision and an $86,000 fine, and in dismissing his civil suit. Appellant's Br. at 8.

I. WAIVER—GUILTY PLEA

A defendant who pleads guilty waives numerous rights, including any CrR 3.3 speedy trial challenges and, generally, the right to appeal. State v. Majors, 94 Wash.2d 354, 356, 616 P.2d 1237 (1980); State v. Wilson, 25 Wash.App. 891, 895, 611 P.2d 1312 (1980). But "a plea of guilty does not preclude an appeal where collateral questions, such as the validity of the statute, the sufficiency of the information, the jurisdiction of the court, or the circumstances under which the plea was made, are raised." State ex rel. Fisher v. Bowman, 57 Wash.2d 535, 536, 358 P.2d 316 (1961) (emphasis omitted). See also Majors, 94 Wash.2d at 356,

616 P.2d 1237. A defendant also may challenge his sentence if the trial court exceeded its statutory sentencing authority. In re Personal Restraint of Moore, 116 Wash.2d 30, 38-39, 803 P.2d 300 (1991); State v. Eilts, 94 Wash.2d 489, 495-96, 617 P.2d 993 (1980)

overruled by statute on other grounds as stated in State v. Barr, 99 Wash.2d 75, 78, 658 P.2d 1247 (1983); In re Personal Restraint of Gardner, 94 Wash.2d 504, 507, 617 P.2d 1001 (1980). "[A] defendant cannot agree to be punished more than the Legislature has allowed for." In re Moore, 116 Wash.2d at 38, 803 P.2d 300. As Phelps challenges the trial court's authority to sentence him as it did, the doctrine of waiver does not apply here.

II. INVITED ERROR DOCTRINE

The State next argues that the invited error doctrine bars Phelps from complaining of the alleged errors because he participated in creating them by agreeing to the conditions in the plea bargain. State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514 (1990). The invited error doctrine applies only where the defendant engaged in some affirmative action by which he knowingly and voluntarily set up the error. In re Personal Restraint of Call, 144 Wash.2d 315, 326-28, 28 P.3d 709 (2001) (no invited error where technical defect in sentence calculation was inadvertent); State v. Wakefield, 130 Wash.2d 464, 475, 925 P.2d 183 (1996) (no invited error where defense counsel requested trial court to participate in plea negotiations but participation went beyond defense counsel's request). Where it applies, this doctrine precludes judicial review even where the alleged error raises constitutional issues. Henderson, 114 Wash.2d at 871,792 P.2d 514.

Here, the record indicates that Phelps' counsel and the State engaged in lengthy negotiations that produced a very favorable plea agreement for Phelps. The State committed itself to argue for dismissal of 5 of 6 charges and incarceration within the standard range on the remaining charge. Further, the record indicates that the terms of the plea agreement were fully disclosed and that the trial court imposed a sentence consistent with the agreement. See In re Personal Restraint of Breedlove, 138 Wash.2d 298, 312-13, 979 P.2d 417 (1999)

(defendant's stipulation to exceptional sentence was sufficient to establish that the sentence was statutorily authorized; defendant invited error by agreeing to the sentence in exchange for reduced charges).

The remaining question is whether the invited error doctrine bars Phelps' challenge to his sentence where the trial court arguably acted beyond its jurisdiction. In Eilts, the Supreme Court held that the trial court lacked statutory authority to grant probation on the condition that the defendant, who was convicted of stock fraud, make restitution to investors other than the victims of the charged crimes. 94 Wash.2d at 495-96, 617 P.2d 993. The State argued in Eilts that the defendant's acknowledgement below of the debt and his promise to repay all investors "prompted the sentencing court to reject a long jail term in favor of probation upon the condition that defendant repay all of the investors." 94 Wash.2d at 495, 617 P.2d 993.

The Eilts court rejected this argument, stating that "a defendant cannot empower a sentencing court to exceed its statutory authorization." 94 Wash.2d at 495-96, 617 P.2d 993 (citing State ex rel. Schock v. Barnett, 42 Wash.2d 929, 931, 259 P.2d 404 (1953)). Similarly, here, although Phelps clearly invited the challenged sentence, to the extent he can show that the sentencing court exceeded its statutory authority, the invited error doctrine will not preclude appellate review. See In re Personal Restraint of Goodwin, 146 Wash.2d 861, 50 P.3d 618, 625 (2002)

.

III. STATUTORILY AUTHORIZED SENTENCE

"With the twin exceptions of prior convictions and information relevant to the plea agreement, no restrictions are placed on the subject matter of plea agreements and, subject to the strictures of the prosecuting standards and judicial approval, prosecutors and defense attorneys ... may reach agreements as to any of the traditional subjects of plea bargaining." DAVID BOERNER, SENTENCING IN WASH., § 12.22 at 12-45 (1985). If the trial court finds the plea agreement to be "consistent with the interests of justice and with the prosecuting standards," RCW 9.94A.431(1), and if the defendant enters into the agreement "intelligently, voluntarily and with an understanding of the consequences," the reviewing court must uphold the agreement as valid. State v. Hilyard, 63 Wash. App. 413, 418, 819 P.2d 809 (1991). As Phelps does not challenge the plea agreement, we focus on the trial court's sentence.

"A trial court's sentencing authority is limited to that expressly found in the statutes. If the statutory provisions are not followed, the action of the court is void." State v. Theroff, 33 Wash.App. 741, 744, 657 P.2d 800 (1983)

(citing Eilts, 94 Wash.2d at 495,

617 P.2d 993). See also State v. Furman, 122 Wash.2d 440, 456, 858 P.2d 1092 (1993). Additionally, a defendant cannot extend the trial court's sentencing authority by agreeing to a punishment in excess of statute. See In re Moore, 116 Wash.2d at 38, 803 P.2d 300.

A. DISMISSAL OF CIVIL SUIT AND FINE

Phelps claims that the trial court improperly dismissed his civil suit as part of his judgment and sentence, arguing that this dismissal violated the doctrine of constitutional conditions. Phelps does not point to evidence in the record supporting or explaining this claim other than citing to papers related to the State's separate civil forfeiture claim against him. The civil...