State v. Robinson , 172 Wash. 2d 783 ( 2011 )

Chambees, J.

¶1 Chuceo Robinson erroneously believed that his earlier juvenile convictions had washed out and no longer counted toward his offender score. Based upon this understanding and after extensive negotiations, largely focused on an offender score that would lead to a mutually acceptable sentence, he pleaded guilty. Before sentencing, he learned that his juvenile convictions would count toward his offender score, significantly increasing the statutory sentencing range he faced. Robinson immediately moved to withdraw his plea. After a hearing, the trial court granted the motion, finding that Robinson’s misunderstanding of the consequences of Washington sentencing law was reasonable, though erroneous, and that Robinson’s plea was not made knowingly, voluntarily, and intelligently. The State contends, successfully below, that the trial judge abused her discretion when she allowed Robinson to withdraw his plea. We find the ruling was within the sound discretion of the trial court. We reverse the Court of Appeals and remand for further proceedings consistent with this opinion.

FACTS

¶2 Robinson’s formal criminal history starts in 1991 when he was 14 years old. That year he accumulated four convictions: two for assault, one for taking a motor vehicle without permission, and one for reckless endangerment.¹ In 1994, when Robinson was 17, he was convicted of second degree murder. He was told at the time that his previous convictions would not be used to calculate his offender score because he committed the crimes when he was younger than 15.

¶3 Very early one morning, just months after he completed his sentence for murder, Robinson knocked on the door of a woman he had recently met. When she opened the door, he entered, uninvited, and attempted to sexually assault her. She fought back and he left. She called the police. He was charged with first degree attempted rape, burglary, and kidnapping.

¶4 Robinson’s defense counsel and the prosecutor attempted to negotiate a plea. Accordingly to defense counsel, “negotiations ... revolved around the sentencing range . .. with the specific intent of getting Mr. Robinson into a sentencing range that was acceptable to all parties involved.” Clerk’s Papers (CP) at 52. It appears that neither attorney was aware of Robinson’s early juvenile criminal history. According to the record, Robinson reasonably believed the law at the time of his 1994 sentencing excluded his earlier crimes. The trial court in this case found that Robinson believed “that those convictions were no longer on his criminal record, and that they could never be used against him again for any sentencing purpose.” CP at 40.

¶5 However, the law regarding scoring juvenile criminal history had changed while Robinson was in prison. Former RCW 9.94A.030 (1994); State v. Smith, 144 Wn.2d 665, 671, 30 P.3d 1245, 39 P.3d 294 (2001) (holding that the definition of “criminal history” in former RCW 9.94.030 did not include defendants’ washed-out juvenile convictions), abrogated by State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004) (discussing former RCW 9.94A.030 (2002); Laws of 2002, ch. 107 § 2(13)). When Robinson entered his guilty plea in this case, his 1994 juvenile convictions did count toward his offender score. Former RCW 9.94A.525 (2008); In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 12, 100 P.3d 805 (2004) (holding that “[u]nder the current [Sentencing Reform Act of 1981, ch. 9.94A RCW], no offender has a vested right in the definition of criminal history in effect when a previous crime was committed”); Varga, 151 Wn.2d at 191 (noting that the 2002 legislature intended to include previously washed-out convictions in current offender score calculations).

¶6 During plea negotiations, the State and Robinson both appeared to have calculated Robinson’s existing offender score by simply adding his murder conviction to his 1994 score of zero.² In order to arrive at a sentencing range that was acceptable to both sides, Robinson agreed to plead guilty to first degree burglary and to enter a Barr plea to third degree rape. In re Pers. Restraint of Barr, 102 Wn.2d 265, 270, 684 P.2d 712 (1984);³ CP at 12, 52. The State agreed to drop the kidnapping charge and filed a substitute information reflecting the reduced charges. As part of his guilty plea, Robinson signed a document titled “Understanding of Defendant’s Criminal History” (Understanding). In it, he agreed that “each of the listed convictions count [ed] in the computation of the offender score” and that the Understanding “does not limit the use of additional criminal history if later ascertained.” CP at 61. The “Statement of Defendant on Plea of Guilty” also said:

The standard sentence range is based on the crime charged and my criminal history. Criminal history includes prior convictions and juvenile adjudications or convictions . . . if any additional criminal history is discovered [before sentencing], both the standard sentence range and the prosecuting attorney’s recommendation may increase. Even so, my plea of guilty to this charge is binding on me. I cannot change my mind if additional criminal history is discovered even though the standard sentencing range and the prosecuting attorney’s recommendation increase.

CP at 12 (emphasis added).

¶7 The Understanding does not list any of Robinson’s 1991 juvenile convictions. It does list Robinson’s 1994 felony conviction for second degree murder. Robinson affirmed at the plea hearing that the Understanding was true and correct to the best of his knowledge. Robinson signed the plea agreement and affirmed at the time of his plea that he had reviewed it carefully with his attorney and that he understood its contents.

¶8 The court accepted the plea and ordered a presentence report. The community corrections officer who conducted the presentence investigation reviewed four different databases and discovered the undisclosed juvenile convictions. The discovery of four undisclosed juvenile convictions increased the standard sentence range on the burglary conviction to 87-116 months (from 31-41 months) and the rape conviction to 41-54 months (from 13-17 months).

¶9 Before sentencing, and four days after being informed that the State would be seeking a sentence in a standard range that was nearly triple the negotiated sentencing range, Robinson moved to withdraw his plea, alleging a legal mistake. The court held a hearing to consider the motion. It agreed with the State that “[n]ow that we have . .. discovered that those crimes did in fact occur, and pursuant to current statute they should be counted in the calculation of the offender score.” Verbatim Record of Proceedings (VRP) at 28. But it also agreed with Robinson that given the substantially different standard range and the understandable mistake, “the plea was not made knowingly, intelligently, and voluntarily” and granted the motion. Id. at 28-29. In its written findings of fact and conclusions of law, the trial court elaborated that it was granting Robinson’s motion because (1) his “failure to disclose the prior juvenile convictions was based on a mistaken belief as to the law that those convictions had ‘washed’ prior to his 1994 sentencing”; (2) the Understanding was inaccurate; and (3) the defendant’s guilty plea was not “knowing, voluntary or intelligently made due to [Robinson’s] mistaken belief that the prior juvenile offenses had ‘washed,’ [resulting in a] substantial increase in the sentencing range.” CP at 40-41. With the court’s permission, the substitute information charging the lesser charges was withdrawn, leaving Robinson facing the original first degree charges of attempted rape, kidnapping, and burglary.

¶10 The State appealed. In a published opinion, the Court of Appeals reversed and remanded for sentencing. State v. Robinson, 150 Wn. App. 934, 210 P.3d 1045 (2009). The Court of Appeals held that because Robinson failed to disclose his juvenile offense history, he “assumed the contractual risk fixed in his plea agreement that the discovery of additional criminal history would increase his offender score and standard sentencing range.” Id. at 940 (citing State v. Codiga, 162 Wn.2d 912, 928, 175 P.3d 1082 (2008)). We accepted review. State v. Robinson, 167 Wn.2d 1017, 224 P.3d 773 (2010).

ANALYSIS

¶11 Due process requires that a guilty plea may be accepted only upon a showing the accused understands the nature of the charge and enters the plea intelligently and voluntarily. State v. A.N.J., 168 Wn.2d 91, 117, 225 P.3d 956 (2010) (citing In re Pers. Restraint of Mendoza Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). A trial court may not accept a guilty plea without first determining that a criminal defendant has entered into the plea “voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.” CrR 4.2(d); see also State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (stating that for a plea to be knowing and voluntary, a criminal defendant must be informed of all direct consequences of his plea). A defendant does not knowingly plead guilty when he bases that plea on misinformation regarding sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P2d 122 (1988), overruled on other grounds by State v. Barber, 170 Wn.2d 854, 248 P.3d 494 (2011). However, generally, a defendant accepts the risk that additional criminal history will be discovered prior to sentencing. Codiga, 162 Wn.2d at 928. The defendant is not, however, “burdened with assuming the risk of [a] legal mistake.” Id. at 929.

¶12 “Mistake” is not the only ground for withdrawing a plea. CrR 4.2(f); CrR 7.8. Under our current criminal rules, “[t]he 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.” CrR 4.2(f).⁴ “This court will overturn a trial court’s denial of a motion to withdraw a plea only for abuse of discretion.” State v. Bao Sheng Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006) (citing State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001)).

¶13 Since the Court of Appeals considered this case, we have, reviewed the history of the standard we apply to a motion to withdraw a plea. A.N.J., 168 Wn.2d at 106-07. Prior to the adoption of CrR 4.2(f), this court followed a dual standard for analyzing motions to withdraw pleas depending on when the motion was made. A more liberal standard was applied if the defendant moved to withdraw before sentencing. The motion was addressed to the sound discretion of the court “to be exercised liberally in favor of life and liberty.” State v. Hensley, 20 Wn.2d 95, 101, 145 P.2d 1014 (1944) (citing State v. Cimini, 53 Wash. 268, 101 P. 891 (1909)); former RCW 10.40.175 (1881), repealed by Laws of 1984, ch. 76, § 27. Following the adoption of CrR 4.2(f), we abandoned the dual standard in favor of a singular, and more stringent, standard of allowing “ ‘a defendant to withdraw his plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.’ ” State v. Taylor, 83 Wn.2d 594, 595, 521 P.2d 699 (1974) (quoting former CrR 4.2(f)). We adopted the uniform standard because an examination of other rules connected to CrR 4.2(f) “prevents a court from accepting a plea of guilty until it has ascertained that it was ‘made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.’ ” Taylor, 83 Wn.2d at 596 (quoting CrR 4.2(d)). Thus, we felt, there were sufficient safeguards present before a plea was accepted to protect the defendant against involuntary pleas.

f 14 Since 1974, the law has become more complicated. See LaChapelle, 153 Wn.2d at 7 (noting that the Sentencing Reform Act of 1981 had been amended 181 times between 1981 and 2004). In A.N.J., 168 Wn.2d at 107, we explained that

a claim by a defendant that he did not understand the consequences of his plea may simply be more credible if made before sentencing than it would be if the defendant rolls the dice on a favorable sentence and is disappointed. We adhere to the single manifest injustice standard. But the timing of a motion may be considered by the court together with all other evidence bearing on the issue. However, the timing of the motion should be given weight only when it is made promptly after discovery of the previously unknown consequences or the newly discovered information. Timing should be given particular weight if the motion is made before any other benefit to the defendant or detriment to the State is known, and if the motion is grounded in the core concerns recognized in Taylor, [83 Wn.2d at 596,] whether the plea was voluntary, knowingly and intelligently made, and made with an understanding of the nature of the charge and the consequences of the plea. See generally id.

¶15 The Court of Appeals’ opinion was published before A.N.J. was announced, and the State has not briefed the impact of that recent opinion on this case. In its pre-A.N. J. briefing, the State relied on Codiga to argue that the defendant had contractually assumed the risk that additional criminal history would be found. Codiga, 162 Wn.2d at 928. We find that Codiga is consistent with the trial court’s decision allowing Robinson to withdraw his guilty plea. We recognize that there are some factual similarities. In Codiga, the defendant pleaded guilty to three counts of first degree child molestation. Id. at 916. He disclosed his felony criminal history during plea negotiations. Id. at 919. He did not disclose his misdemeanors. Id. at 920. But for those misdemeanors, one of Codiga’s prior offenses would have washed out. Id. After he was sentenced, Codiga moved to withdraw his plea on several grounds, including that he was not informed of the consequences of his plea. Id. at 921. Given that Codiga had already been sentenced, the trial court transferred the motion to the Court of Appeals for consideration as a personal restraint petition. Id. We noted that under the plea agreement, Codiga had contractually assumed the risk that additional criminal history would be found. Id. at 928. We concluded that “[allowing the defendant to assume this risk is both fair and reasonable.” Id. But we also concluded that “a defendant should not be charged with knowing the legal impact of his or her criminal history on the offender score. Where a criminal history is correct and complete, but the attorneys miscalculate the resulting offender score, then the defendant should not be burdened with assuming the risk of legal mistake.” Id. at 929. Under the circumstances, we found that Codiga had “not established a manifest injustice sufficient to warrant withdrawal of the plea.” Id. at 930.

¶16 Codiga is different from the case at bar in three critical ways. First, a review of the opinion and the briefs filed in Codiga reveals that he offered no explanation for why he did not disclose his prior offenses. By contrast, the trial judge found Robinson reasonably believed that his juvenile convictions did not count as part of his criminal history. Second, Codiga waited until after sentencing to move to withdraw his plea. Id. at 921. Robinson, like A.N. J., moved immediately upon learning of the mistake and before sentencing. CP at 31; A.N.J., 168 Wn.2d at 96. And perhaps most critically, in this case, the trial judge found that the plea was not knowing and voluntary and concluded that allowing the plea to stand would be a manifest injustice. The trial court’s judgment is reviewed for abuse of discretion. Zhao, 157 Wn.2d at 197 (citing Marshall, 144 Wn.2d at 280). No trial court findings of manifest injustice appear in Codiga. The question of deference to a trial court’s exercise of discretion did not arise.

¶17 Again, due process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004) (citing Boykin, 395 U.S. at 242). We typically regard valid plea agreements as binding contracts. In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 309, 979 P.2d 417 (1999) (citing State v. Talley, 134 Wn.2d 176, 182, 949 P.2d 358 (1998)). However, we permit “ ‘a defendant to withdraw his plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.’ ” Taylor, 83 Wn.2d at 595 (quoting former CrR 4.2(f)). The timing of a defendant’s motion to withdraw should be given weight when the motion is made promptly after discovery of a previously unknown consequence. A.N.J., 168 Wn.2d at 107. Here, Robinson promptly moved to withdraw his plea after he discovered that the law now counted his previously “washed” juvenile convictions.

¶18 Not only does the timing of Robinson’s motion support the trial court’s determination that his guilty plea was not knowing, voluntary, or intelligent, but also the trial court’s decision was entirely reasonable. As the trial judge noted, “ [I] t was eminently reasonable for Mr. Robinson to believe that these convictions no longer existed against him. They were not used against him when he was sentenced in 1994 on a murder charge; why would he think that they could be used against him in 2008 on lesser felony charges?” VRP at 28. We agree.

CONCLUSION

¶19 Robinson quickly moved to withdraw his guilty plea upon discovering his mistake. The trial court found his mistake was reasonable under the circumstances and that to enforce the plea would be manifestly unjust. We find no abuse of discretion. We reverse the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion.

Alexander, Owens, and Fairhurst, JJ., and Sanders, J. Pro Tem., concur.

1 The trial judge’s findings of fact allude to another conviction for taking a vehicle without permission in 1989. It is unclear how old he would have been, and it does not appear that conviction has been used in the calculation of his offender score. The record does not allow us to determine whether he had another scorable offense.

2 Both Robinson’s “First Appearance Evaluation” and his “Understanding of Defendant’s Criminal History,” which the State provided, listed only Robinson’s felony conviction as part of his “criminal history.”

3 In Barr, we joined the courts that hold “[a] plea does not become invalid because an accused chooses to plead to a related lesser charge that was not committed in order to avoid certain conviction for a greater offense.” Barr, 102 Wn.2d at 269-70 (citing People v. Martin, 58 Ill. App. 3d 633, 374 N.E.2d 1012, 16 Ill. Dec. 237 (1978)).

4 Robinson moved to withdraw his plea before entry of judgment and thus needed to satisfy only CrR 4.2(f). See A.N.J., 168 Wn.2d at 106; Codiga, 162 Wn.2d at 923 n.3. If Robinson had moved to withdraw his plea after he was sentenced and the judgment was entered, he would have also had to satisfy CrR 7.8(b), which says in most relevant part that “[on] motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceedings for the following reasons: (1) Mistakes [or] (5) [a]ny other reason justifying relief from the operation of the judgment.” See Codiga, 162 Wn.2d at 923 n.3. We note in passing that once the judgment and sentence is entered, as it was in Codiga, a one-year time clock begins to tick on most issues, and the trial judge has the authority to convert the motion to a personal restraint petition and transfer it to the Court of Appeals. CrR 7.8(b), (c)(2).