State v. Walsh

• Citation: 143 Wash.2d 1,17 P.3d 591
• Decision Date: 08 February 2001
• Docket Number: No. 68979-2.,68979-2.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Timothy Patrick WALSH, Petitioner.

17 P.3d 591

143 Wash.2d 1

STATE of Washington, Respondent, v. Timothy Patrick WALSH, Petitioner.

No. 68979-2.

Supreme Court of Washington, En Banc.

Argued September 21, 2000.

Decided February 8, 2001.

Sonderman & Swanberg, Carl G. Sonderman, Kennewick, for Petitioner.

Steven Lowe, Franklin County Prosecutor, David Wayne Corkrum, Deputy, Pasco, for Respondent.

MADSEN, J.

The defendant agreed to plead guilty to second-degree rape in exchange for the prosecutor's promise to recommend a sentence at the low end of the standard range. However, the parties were mistaken about the proper standard range sentence the standard range is higher than contemplated by the plea agreement. We hold that the plea agreement was not voluntary and that the defendant is entitled to challenge the plea's validity for the first time on appeal.

Facts

Defendant Timothy Walsh was originally charged with first-degree kidnapping, first-degree rape, and second-degree assault. He agreed to a reduced charge of second-degree rape in exchange for dismissal of the other counts and the prosecutor's promise to recommend the low end of the standard range.¹ The plea form shows that Walsh had one prior conviction for vehicular assault. Both the defense and the prosecution mistakenly understood that based upon that history, the standard range is 86 to 114 months, and the plea agreement therefore provided that the prosecutor would recommend an 86-month sentence.

In response to the court's questions at the plea hearing, Walsh said that he understood that the maximum sentence for second-degree rape is life, and that his standard range is 86 to 114 months. He also said that he understood that in exchange for his guilty plea he was promised only that the prosecutor would recommend a sentence of 86 months. He stated that he understood that the court was not required to follow the State's recommendation. The court accepted the plea agreement, finding that Walsh entered the guilty plea knowingly, intelligently, and voluntarily.

After the plea hearing and before the sentencing hearing, the community corrections officer who prepared the presentence report concluded that the vehicular assault conviction counted as two points, which resulted in a standard range of 95 to 125 months. The officer asked the court to impose an exceptional sentence of 136 months based upon deliberate cruelty to the victim.

At sentencing, the prosecutor told the court that the standard range is 95 to 125 months, and recommended the low end of this range, 95 months. Defense counsel asked the court to impose a sentence at the bottom end of the standard range. Nothing in the record shows that Walsh himself was ever advised or realized before the sentencing proceeding that the standard range is not what the parties believed when the plea agreement was reached and accepted by the court. He was clearly not advised of the new standard range at that proceeding, and nothing suggests he was then aware of the change in the prosecutor's recommendation. There was simply no discussion of the matter at all. Walsh did not move to withdraw the guilty plea.

The court sentenced Walsh to an exceptional sentence of 136 months. Walsh appealed, raising several challenges. The Court of Appeals affirmed, reasoning, among other things, that while Walsh had a right to withdraw his plea once it became apparent that the plea was based upon an incorrect understanding of the standard range, he waived any error by "electing to proceed with the sentencing and by not moving for withdrawal of his plea." State v. Walsh, No. 17485-9-III, slip op. at 5, 97 Wash.App. 1092, 1999 WL 1044196 (Wash.Ct.App. Nov.16, 1999).

We granted Walsh's petition for discretionary review. He raises only one issue in the petition: whether a challenge to the voluntariness of a guilty plea is waived if a defendant who enters a plea agreement fails to move to withdraw the guilty plea and proceeds with sentencing after it becomes apparent that the plea is based upon a misunderstanding as to the standard range sentence.

Analysis

The plea agreement here conforms to RCW 9.94A.080, which authorizes a prosecutor to agree to dismissal of other counts and to recommend a particular sentence within the sentence range. Pursuant to CrR 4.2(d) 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." See State v. Wakefield, 130 Wash.2d 464, 472, 925 P.2d 183 (1996); State v. Miller, 110 Wash.2d 528, 531, 756 P.2d 122(1988). There is a strong public interest in enforcement of plea agreements that are voluntarily and intelligently made. In re Personal Restraint of Breedlove, 138 Wash.2d 298, 309, 979 P.2d 417 (1999).

However, a trial court must allow withdrawal of a guilty plea "to correct a manifest injustice." CrR 4.2(f) Nonexclusive criteria as to what constitutes manifest injustice include (1) the denial of effective counsel; (2) the defendant or one authorized by the defendant did not ratify the plea; (3) the plea was involuntary; or (4) the prosecution breached the plea agreement. Wakefield, 130 Wash.2d at 472, 925 P.2d 183; State v. Saas, 118 Wash.2d 37, 42, 820 P.2d 505 (1991). Walsh contends that his plea was not voluntary because of the mutual mistake about the standard range sentence and therefore he is entitled to withdraw the plea.

While the Court of Appeals agreed that Walsh had the right to withdraw his guilty plea when it became apparent that it was based upon a misunderstanding of the standard range, the court held that Walsh waived the error by electing to proceed with sentencing and failing to move at the trial court for withdrawal. We disagree.

In In re Personal Restraint of Hews, 99 Wash.2d 80, 660 P.2d 263 (1983), this court reviewed a challenge to the voluntariness of a plea agreement which was raised for the first time by way of a personal restraint petition. It follows that the issue can be raised for the first time on appeal. See also In re Personal Restraint of James, 96 Wash.2d 847, 849, 640 P.2d 18 (1982). In State v. Skiggn, 58 Wash. App. 831, 795 P.2d 169 (1990), as in this case, an error was made in calculating the standard range. The defendant was given an opportunity to withdraw his plea, but declined, apparently hoping the court would specifically enforce the agreement. On appeal, the Court of Appeals held that specific performance would be unjust under the circumstances because the error was largely attributable to the defense (not the case here). The court held that although the defendant was not entitled to specific performance, he should be given another opportunity to withdraw the plea, now that he knows specific enforcement was not an option. Skiggn, 58 Wash.App. at 838-39, 795 P.2d 169. In accord with these cases, Walsh should be allowed to raise the issue of the validity of his plea for the first time on appeal. He was never even offered an opportunity to withdraw his plea or to seek specific performance; the new standard range was not brought to his attention at the sentencing hearing.

Moreover, RAP 2.5(a)(3) provides that "manifest error affecting a constitutional right" may be raised for the first time on appeal. Division Two of the Court of Appeals recently discussed the rule in the context of a claim raised for the first time on appeal that the prosecution breached a plea agreement by undermining the agreement and arguing for a sentence greater than the agreed-to recommendation. As that court noted, a defendant gives up constitutional rights by agreeing to a plea agreement, and, because fundamental rights of the accused are at issue, due process considerations come into play. State v. Van Buren, 101 Wash. App. 206, 211, 2 P.3d 991 (2000); see State v. Tourtellotte, 88 Wash.2d 579, 583, 564 P.2d 799 (1977) ("[a] plea of guilty constitutes a waiver of significant rights by the defendant, among which are the right to a jury trial, to confront one's accusers, to present witnesses in one's defense, to remain silent, and to be convicted by proof beyond all reasonable doubt"); State v. Sledge, 133 Wash.2d 828, 839, 947 P.2d 1199(1997) (due process requires that the prosecutor adhere to the plea agreement); In re Personal Restraint of Montoya, 109 Wash.2d 270, 277, 744 P.2d 340 (1987) (due process requires that a guilty plea be knowing, intelligent and voluntary); State v. Lewis, 16 Wash.App. 132, 135, 553 P.2d 127 (1976) (same) (citing, among other cases, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)); see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

The Court of Appeals in Van Buren correctly reasoned that a claim of error based upon a breach of a plea agreement involves an issue of constitutional magnitude that may be raised for the first time on appeal under RAP 2.5(a)(3). Similarly, given the fundamental constitutional rights of an accused which are implicated when a defendant pleads guilty, a claim that a guilty plea pursuant to a plea agreement was involuntary due to a misunderstanding about the standard range sentence is the kind of constitutional error that RAP 2.5(a)(3) encompasses.²

"Manifest" in RAP 2.5(a)(3) means that a showing of actual prejudice is made. State v. McFarland, 127 Wash.2d 322, 333-34, 899 P.2d 1251 (1995); State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988). The court previews the merits of the claimed constitutional error to determine whether the argument is likely to succeed. State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999). Walsh's claim that his plea was not voluntary is clearly likely to succeed. "A defendant must understand the sentencing consequences for a guilty plea to be valid." Miller, 110 Wash.2d at 531, 756 P.2d 122; see Skiggn, 58 Wash.App.2d 831, 795 P.2d 169. Walsh may raise the issue of the involuntariness of his plea for the first time...