Washington v. S. J. B.
| Decision Date | 24 July 2007 |
| Docket Number | 32611-6-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. S.J.B., [1]Appellant. |
UNPUBLISHED
S.J. B appeals his juvenile court adjudication of second degree arson and[1] the disposition imposed. He contends that he entered an involuntary plea because of a mutual mistake regarding the length of the standard range and that his trial counsel did not effectively represent him. He also argues that the record does not support the manifest injustice disposition imposed, and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) rendered the disposition procedure invalid. We find no reversible error and affirm.
S.J.B his brother, and a friend threw lighted Molotov cocktails at the stairwell of an apartment building, causing a fire on the porch. The State charged S.J.B. with first degree arson consumption of alcohol by a minor, and obstructing a law enforcement officer.
After plea negotiations, the State amended the first charge to second degree arson and dismissed the other two charges, and S.J.B. pleaded guilty. Both parties believed the standard range for his offense was 80 to100 weeks' detention. The plea agreement provided that the State would defer to the probation department, which would recommend that amount of time. With the encouragement of defense counsel, the court accepted that recommendation and imposed a disposition.
Thereafter S.J.B.'s probation officer determined that the correct standard range was 15-36 weeks' detention and the court held a second sentencing hearing. The State and S.J.B.'s probation officer recommended a manifest injustice disposition, contending that S.J.B. needed the 80-100 weeks in detention in order to deal with his substance abuse and anger control problems. Defense counsel urged the court to impose a standard range sentence of 15-36 weeks, pointing out that the court had not found any reason for a manifest injustice at the previous sentencing hearing. Adopting the State's reasoning, the court reimposed the 80-100 weeks.
Withdrawal of plea
S.J.B first contends that his plea was not voluntary due to mutual mistake about the standard range. Due process requires that a plea be knowing, voluntary, and intelligent. State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001). "An involuntary plea produces a manifest injustice." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). A plea that is based on incorrect information about a direct sentencing consequence is not voluntary. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988).
"To identify a punishment in the context of a direct consequence of a guilty plea, we examine whether the effect enhances the defendant's sentence or alters the standard of punishment." State v. Ross, 129 Wn.2d 279, 285, 916 P.2d 405 (1996). A defendant who enters a plea agreement under the erroneous belief that his sentence range is higher than it is does not receive an enhanced sentence. Accordingly, he is not entitled to withdraw his plea solely on the basis of that misinformation. See In re Pers. Restraint of Matthews, 128 Wn. App. 267, 272-73, 115 P.3d 1043 (2005). He may withdraw the plea only 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.'" Matthews, 128 Wn. App. at 274 (quoting State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996)) (internal quotation marks omitted). His self-serving statement, standing alone, does not satisfy that standard. See State v. Conley, 121 Wn. App. 280, 287, 87 P.3d 1221 (2004).
Here, we do not even have such a statement. S.J.B. merely argues that the existence of a mutual mistake requires that he be permitted to withdraw his plea. On the other hand, the record indicates that under the original charges, S.J.B.'s standard range would have been "103 to 129 [weeks]."[2] Former RCW 13.40.0357 (2004). The plea offer could have potentially decreased the sentence. Additionally, there was little chance S.J.B. would have obtained a favorable result in a trial. He committed his offense near the police station, was apprehended almost immediately, and told the police that he was just trying to scare the occupants of the apartment.
Given the potentially significant reduction in sentence and the strength of the State's case, the plea agreement was clearly beneficial to S.J.B. He did not ask to withdraw his plea at the second sentencing hearing, when he knew the standard range was lower than he had anticipated, and there is no reason to believe he would have rejected the plea bargain on that basis.
ineffective assistance of counsel
S.J.B. next contends that his trial counsel did not provide effective representation because counsel did not move to withdraw the plea. Counsel is deemed ineffective when his performance falls below an objective standard of reasonableness and the deficient performance prejudices the defendant. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). In order to establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's errors, the result of the trial or sentencing would have been different. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If an appellant fails to establish either element of the claim, we need not address the other element. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
S.J.B.'s first argument, that trial counsel was ineffective for failing to seek withdrawal on the basis of mutual mistake, fails for the reasons discussed above. As he was not entitled to withdraw his plea on that basis, he can demonstrate neither deficient performance on counsel's part nor prejudice.
S.J.B. also argues that trial counsel should have sought withdrawal on the basis of the State's breach of the plea agreement. He asserts that the prosecutor and the probation officer agreed to recommend the standard range.
The record discloses that the prosecutor and probation officer agreed to recommend a disposition of 80 to 100 weeks, which they believed to be the standard range. It was clearly the time, not the characterization of it, that was important.
According to the record, S.J.B. was able to read only at the second grade level. He had no self-control and no self-esteem, and he had a substance abuse problem. In the first sentencing hearing, the probation officer told the court that S.J.B. needed 80 to 100 weeks to learn to read, complete anger management counseling, and get treatment for his alcohol and drug problems. And defense counsel advised the court that S.J.B.'s last detention (15 to 36 weeks) was not long enough, and he and his client agreed with the recommendation of 80 to 100 weeks.
We review the plea agreement as a whole, the subject matter and objective of the agreement, all the circumstances surrounding the making of the agreement, the subsequent acts and conduct of the parties to the agreement, and the reasonableness of the respective interpretations advocated by the parties. See State v. Lathrop, 125 Wn. App. 353, 362, 104 P.3d 737 (2005).[3] Here, the circumstances of this bargain and the conduct of the parties indicates that their intent was to provide a period of detention sufficient to enable S.J.B. to deal with his problems and they believed that 80 to 100 weeks was the requisite amount of time. The State did not breach the plea agreement and trial counsel did not provide ineffective assistance in failing to seek withdrawal on that basis.
manifest injustice disposition
S.J.B. next contends that the record does not support the imposition of a manifest injustice disposition. The trial court based its decision on the following factors:
Review of a finding of manifest injustice is governed by RCW 13.40.230(2), which provides:
To uphold a disposition outside the standard range, the court of appeals must find (a) that the reasons supplied by the disposition judge are supported by the record which was before the judge and that those reasons clearly and convincingly support the conclusion that a disposition within the range would constitute a manifest injustice, and (b) that the sentence imposed was neither clearly excessive nor clearly too lenient.
Substantial evidence in the record must support the court's reasons. State v. P.B.T., 67 Wn. App. 292, 301, 834 P.2d 1051 (1992).
There is adequate support in the record for most of the aggravating factors identified by the court. S.J.B. and his companions filled bottles with gasoline, stuffed them with rags, lit them, and threw them at the entrance of an apartment building in the middle of the night. That is conduct that goes beyond...
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