State v. Ross

• Decision Date: 16 May 1996
• Docket Number: No. 62847-5,62847-5
• Citation: 916 P.2d 405,129 Wn.2d 279
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Donald J. ROSS, Petitioner.

Page 279

129 Wn.2d 279

916 P.2d 405

The STATE of Washington, Respondent, v. Donald J. ROSS, Petitioner.

No. 62847-5.

Supreme Court of Washington,

En Banc.

Argued March 5, 1996.

Decided May 16, 1996.

Donald J. Ross, Pro Se.

Ende, Subin & Philips, Douglas J. Ende, Vashon, for petitioner.

Gary A. Riesen, Chelan County Prosecutor, Susan E. Hinkle, Deputy, Wenatchee, for respondent.

DOLLIVER, Justice.

Defendant Donald J. Ross has moved to withdraw his guilty plea as involuntary on the basis he was never informed a mandatory 12-month community placement would follow his prison sentence. We hold mandatory community placement constitutes a direct consequence of a guilty plea and failure to so inform a defendant renders that plea invalid. The trial court erred by denying Defendant's motion to withdraw his guilty plea.

The Legislature has ordered that defendants convicted of certain classes of serious offenses serve mandatory community placement, one year for crimes committed between July 1, 1988, and July 1, 1990 (see RCW 9.94A.120(8)(a)), in addition to their prison terms:

"Community placement" means a one-year period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

Former RCW 9.94A.030(4).

"Community custody" means that portion of an inmate's sentence of confinement in lieu of earned early release time served in the community subject to controls placed on the inmate's movement and activities by the department of corrections.

Former RCW 9.94A.030(3).

"Postrelease supervision" is that portion of an offender's community placement that is not community custody.

Former RCW 9.94A.030(21); see State v. Skillman, 60 Wash.App. 837, 840, 809 P.2d 756, review denied, 114 Wash.2d 1009 (1991). A defendant under community placement is subject to standard conditions, unless waived by the court:

(i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;

(ii) The offender shall work at department of corrections-approved education, employment, and/or community service;

(iii) The offender shall not consume controlled substances except pursuant to lawfully issued prescriptions;

(iv) An offender in community custody shall not unlawfully possess controlled substances; and

(v) The offender shall pay supervision fees as determined by the department of corrections.

Former RCW 9.94A.120(8)(b). In addition, the trial court may impose special conditions:

(i) The offender shall remain within, or outside of, a specified geographical boundary;

(ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;

(iii) The offender shall participate in crime-related treatment or counseling services;

(iv) The offender shall not consume alcohol;

(v) The residence location and living arrangements of a sex offender shall be subject to the prior approval of the department of corrections; or

(vi) The offender shall comply with any crime-related prohibitions.

Former RCW 9.94A.120(8)(c).

Ordinarily, a defendant will learn of the mandatory community placement prior to pleading guilty in the plea form required by CrR 4.2(g):

In addition to confinement, the judge will sentence me to community placement for at least 1 year. During the period of community placement, I will be under the supervision of the Department of Corrections, and I will have restrictions placed on my activities.

CrR 4.2(g)(6)(j).

This case stems from the use of an outdated plea form lacking that community placement warning. On November 6, 1991, Defendant pleaded guilty to three counts of second degree child rape committed against his former step-daughter prior to July 1, 1990. Those offenses carried a maximum sentence of 10 years and a $20,000.00 fine, a minimum sentence for Defendant's criminal history of 67 months, and a mandatory 12-month community placement.

The parties do not dispute Defendant did not receive an explicit warning of his mandatory one-year community placement term prior to entering his plea. Unlike the appropriate CrR 4.2(g) plea form, Defendant was presented with an outdated form omitting the community placement information. Nor did the trial court address this implication during oral colloquy. In his plea form and in open court, Defendant confirmed his knowledge of the maximum and minimum prison terms and the State's recommended sentence of an 89-month prison term. Defendant also expressed his understanding the State's sentencing recommendation did not bind the sentencing court, and he could not appeal his ultimate sentence unless the court did not adhere to the sentencing range.

Defendant received the maximum 89-month sentence within his sentencing range plus the mandatory one-year community placement. In addition to the standard community placement conditions, the court adopted special conditions recommended by the presentence investigator: no contact with the victim; no contact with females under 16 years old; Department of Corrections' approval of residence location and living arrangements; and urinalysis and polygraph at the will of his community corrections officer.

Defendant subsequently moved the trial court to withdraw his guilty plea as involuntary. The trial court denied withdrawal, concluding Defendant's plea form substantially complied with CrR 4.2(g), and the omission of the mandatory 12-month community placement represented merely a collateral consequence of his plea insufficient for withdrawal. The Court of Appeals affirmed. State v. Ross, causes 12217-4--III, 14020-2--III (Apr. 11, 1995), slip op. at 11. The Supreme Court granted discretionary review. We now reverse.

A court may permit withdrawal of a guilty plea in accordance with CrR 4.2(f):

The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.

The defendant bears the burden of proving manifest injustice, defined as "obvious, directly observable, overt, not obscure.' " State v. Saas, 118 Wash.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699 (1974)); State v. Moore, 75 Wash.App. 166, 171-72, 876 P.2d 959 (1994).

An involuntary plea produces a manifest injustice to permit withdrawal. Saas, 118 Wash.2d at 42, 820 P.2d 505; Moore, 75 Wash.App. at 172, 876 P.2d 959. Due process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily. State v. Barton, 93 Wash.2d 301, 304, 609 P.2d 1353 (1980) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Beyond this constitutional minimum, CrR 4.2 details further safeguards on the voluntariness of pleas:

The 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. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

CrR 4.2(d); see Barton, 93 Wash.2d at 304, 609 P.2d 1353.

Here the question concerns whether Defendant understood the consequences of his plea. A defendant need not be informed of all possible consequences of a plea but rather only direct consequences. Barton, 93 Wash.2d at 305, 609 P.2d 1353. The court has distinguished direct from collateral consequences by " 'whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment'." Barton, 93 Wash.2d at 305, 609 P.2d 1353 (quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)).

Mandatory community placement produces a definite, immediate and automatic effect on a defendant's range of punishment. We reject the State's contention that the possibility of an overlap between a community placement term and any community custody imposed in lieu of earned early release renders community placement indefinite. RCW 9.94A.030(5). That community custody in lieu of earned early release reduces a defendant's total confinement time but is uncertain at sentencing is irrelevant to the certainty of community placement. A defendant will definitely serve a full 12 months of mandatory community placement. Only the composition of community placement is uncertain at sentencing. See RCW 9.94A.120(8)(b).

We also refute the State's argument that community placement is not immediate because the term begins upon the completion of confinement or transfer to community custody in lieu of earned early release credit instead of immediately upon sentencing. See RCW 9.94A.150(1), (2). Immediacy does not necessitate the community placement itself occur immediately upon sentencing. Rather, as this court has repeatedly articulated, it is the "effect on the range of defendant's punishment" that must be immediate. State v. Ward, 123 Wash.2d 488, 512, 869 P.2d 1062 (1994) (emphasis added) (quoting Barton, 93 Wash.2d at 305, 609 P.2d 1353). In contrast are sentencing conditions where any effect on punishment flows not from the guilty plea itself but from additional proceedings and thus cannot qualify as immediate. State v. Olivas, 122 Wash.2d 73, 96, 856 P.2d 1076 (1993) (mandatory DNA testing); Barton, 93 Wash.2d at 305, 609 P.2d 1353 (discretionary habitual criminal proceeding); In re Ness, 70 Wash.App. 817, 823, 855 P.2d 1191 (1993) (federal sentence restricting possession of firearms), review denied, 123 Wash.2d 1009, 869 P.2d 1085 (1...