State Of Washington v. Kevin James Hill ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
) No. 76945-6-I
Respondent,
) ORDER GRANTING MOTION
v. ) FOR RECONSIDERATION,
) WITHDRAWING OPINION, AND
KEVIN JAMES HILL, ) SUBTITUTING AMENDED
) OPINION
Appellant.
Appellant, Kevin James Hill, has moved for reconsideration of this court's
opinion filed on June 18, 2018. He notes, correctly, that our original opinion
omitted the State's concession that the combined sentences for confinement and
community custody on his second degree identity theft convictions exceed the
statutory maximum and must be remanded for resentencing. We accept the
State's concession, grant the motion for reconsideration, withdraw the opinion
filed on June 18, 2018, and substitute an amended opinion. Now, therefore, it is
hereby
ORDERED that appellant's motion for reconsideration is granted, the
opinion filed on June 18, 2018, is withdrawn, and it is further
ORDERED that an amended substitute opinion shall be filed.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 76945-6-1
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PER CURIAM — Prior to sentencing on his guilty pleas in four separate matt,
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Kevin Hill moved pro se to withdraw his pleas. He contended his pleas were involuntary—
because his offender score omitted a prior Arizona conviction and, consequently, he
was misinformed regarding a direct consequence of his pleas. Following a hearing
during which the State said it did not intend to prove, and could not prove, the Arizona
conviction, the court denied Hill's motion, He appeals, arguing that the court abused its
discretion in denying his motion to withdraw his pleas. He also contends two of his
sentences exceed the statutory maximum. We affirm the denial of Hill's motion to
withdraw his plea, but remand for resentencing on two convictions.
Hill pled guilty with the understanding that his offender score was 68. In moving
to withdraw his pleas, he alleged that the State failed to include an Arizona conviction
for solicitation of forgery in his offender score. Hill maintained that his offender score
was actually 69 and that the misinformation regarding his score rendered his pleas
1 The guilty pleas encompassed twenty-two felonies and three misdemeanors. This appeal is
taken from Hill's convictions for four counts of second degree burglary, two counts of second
degree identity theft, and one count each of unlawful possession of a firearm and possession of
methamphetamine.
No. 76945-6-1
involuntary. In support, he attached a copy of an Arizona judgment and sentence for
solicitation of forgery.
The State responded that Hill's offender score was correctly calculated and that,
in any event, he assumed the risk that his score could increase if additional criminal
history was discovered.2 In an affidavit, the prosecutor stated:
23. I.fully reviewed the Defendant's National Crime Information Center(NCIC)
Interstate Criminal History Report to determine if any out-of-state criminal history
could be considered as scoreable priors under the SRA, including his history in
the State of Arizona. Exhibit C. There are no prior convictions noted that
correspond to the document the Defendant filed as Exhibit B to his motion.
While there are similar charges noted in the Defendant's Arizona history,
they each are noted with a Disposition of "Court Dismissal."
24. Because there were no priors to be considered for scoring (or impeachment)
purposes from those Arizona records, I did not request any certified documents
regarding those cases.
(Emphasis added) CP 112-13.3 The prosecutor reiterated these points at the hearing
on Hill's motion, stating in part:
[PROSECUTOR]:...[There is] substantial evidence that that conviction may not
be valid even in the state of Arizona.. .. We do not have here a certified
document, do not have here other reliable evidence, and we do have
contradictory evidence that indicates that conviction is not comparable.
THE COURT: Is it fair to say --
2Citing State v. Codiqa, 162 Wash. 2d 912, 928, 175 P.3d 1082(2008)(citations omitted), the
State argued below:
The Defendant expressly, in writing and on the record in court, assumed the risk that
additional criminal history could be found prior to sentencing. The Defendant forfeited his
right to argue for withdraw[al] of his plea on this basis. ... Holding a defendant to such
an assumption of risk is necessary to prevent defendants from holding back criminal
conviction information to use as an escape hatch to get out of any plea agreement.
CP 120 (Clerk's Papers in 76942-1). The Codiqa court also held, however, that "the defendant
does not assume the risk of miscalculation of the offender score based on a mistake as to the
legal effect of a fully disclosed criminal history." Codiqa, 162 Wash. 2d at 930. Because this issue
is not briefed on appeal and we resolve the appeal on other grounds, we do not address it.
3 This citation is to the clerk's papers in No. 76942-1.
2
No. 76945-6-1
THE COURT: -- you're not putting that before the sentencing judge?
[PROSECUTOR]: That is correct.
[PROSECUTOR]: .. . The State has not seen anything that convinces it that
there is a valid comparable felony conviction in the state of Arizona that we have
not previously (unintelligible).
[PROSECUTOR]: The State is not asserting that this document... the
defendant has produced is somehow fraudulent. However, it may not be the final
document in the case. The unit in my office works very hard to make sure that
we get enough documents so that we know if something happened later. There
can be a valid judgment and sentence, or in any case, even in King County, that
can later be essentially undone with a different document.
That judgment and sentence still exists. You can still request it and you
could still produce it and assert that there is a valid conviction, unless you get
that other document. And so it's important and my office works very hard to be
careful with what documents it's ordering to determine if these priors are not just
comparable but valid in their jurisdiction.
Nothing dependable has been put before this court to establish a
comparable, valid, or scorable prior conviction in -- under that
specific cause number that the defendant is asserting, and the score should
remain the same and the pleas should not be permitted to be withdrawn.
(Emphasis added) RP 277-79. The court then said "[a]nything else?" RP 279. Neither
Hill nor the prosecutor responded.
The court denied Hill's motion to withdraw his pleas, stating in pertinent part:
.. .The court has before it Mr. Hill's motion to withdraw or vacate his guilty
pleas. I'm going to deny the request. I think the pleas were entered into ...
knowingly, intelligently, and voluntarily. . . .
I'm going to start with the offender score. It is a rare day when a
defendant brings forth additional [criminal] history. What I had asked [the
prosecutor] is, are you going to stick with the offender score of 68, and she has
affirmatively answered yes, because we still don't believe solicitation of forgery
can be pled and proven at sentencing.
With that assurance, the Arizona prior offense, although it may exist on
paper, doesn't even amount to a mistake, either legal or factual, because the ...
State is simply not going to ask that your offender score be considered the higher
number of 69.
Frankly, you're maxed out at nine. So I think the difference between 68
and 69, I'm not trying to minimize the fact that you might have a one point higher
3
No. 76945-6-1
offender score, Mr. Hill, but the State is simply not seeking to prove and plead
that additional Arizona history.
RP 279-80. Hill appeals.
DECISION
Hill contends the court abused its discretion4 in denying his motion to withdraw
his pleas because the parties mistakenly believed, and he was misadvised, that his
offender score was 68 when it was actually 69. These mistakes, he argues, rendered
the pleas involuntary and entitle him to withdraw the pleas. We disagree.
Due process requires that a defendant's guilty plea be knowing, voluntary, and
intelligent.5 CrR 4.2(d) codifies this principle and mandates that the trial 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." This rule also allows withdrawal of a plea "to correct a manifest injustice." CrR
4.2(f). A plea may be withdrawn under this standard if it is based on a mistake that
bears upon the offender score or sentencing range and renders the plea unknowing and
involuntary.6 If a defendant has been incorrectly advised of the offender score and
accompanying standard range, his plea is involuntary.7 If, on the other hand, a
defendant is misadvised regarding the offender score but the standard range is the
same under either score, the defendant's understanding of the consequences of his
plea is unaffected.5 "Once an offender score reaches 9, the standard range does not
4 We review the denial of a defendant's motion to withdraw a guilty plea for abuse of discretion.
State v. Olmsted, 70 Wash. 2d 116, 118, 422 P .2d 312(1966).
5 In re Personal Restraint of Isadore, 151 Wash. 2d 294, 297, 88 P.3d 390(2004).
6 State v. Codiga, 162 Wash. 2d 912, 925, 175 P.3d 1082(2008).
7 State v. Mendoza, 157 Wash. 2d 582, 589-591, 141 P.3d 49(2006).
8 State v. King, 162 Wash. App. 234, 241, 253 P.3d 120, 124 (2011);see also State v. Wills, 154
Wash. App. 1001, 2010 WL 9085, at *3("The offender score is important only to the extent that it
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No. 76945-6-1
change. RCW 9.94A.510."9
Here, the record establishes that Hill was correctly advised regarding his offender
score. The plea documents informed him that his score was 68. Hill claims the score
was actually 69 because the State omitted his prior Arizona conviction for solicitation of
forgery. But it was the State's burden to prove Hill's criminal history,19 and the
prosecutor told the sentencing court unequivocally that the State could not prove, and
Hill's evidence did not prove, the existence of the Arizona conviction. The State points
out on appeal, and Hill does not dispute, that the Arizona judgment and sentence Hill
submitted below was neither certified nor authenticated. And while a National Crime
Information Center Interstate Criminal History Report in the record lists an Arizona
forgery committed the same day as the forgery in Hill's judgment and sentence, the
report and judgment lack matching case numbers. In any event, the report lists the
forgery's disposition as"COURT DISMISSAL." CP 133.11 Given the evidence
presented below, we conclude that there was no mutual mistake or erroneous advice
regarding Hill's offender score and that Hill's pleas were knowingly, intelligently, and
voluntarily entered.
impacts the standard sentencing range. ... Wills's extremely high offender score means that
the mistake in the calculation of his score does not effect his standard range. The essential
term [of the plea agreement]—the sentencing range—does not change. Therefore, the mutual
mistake provision is not triggered. Wills should remain bound by the plea agreement.").
9 State v. King, 162 Wash. App. at 241.
10 State v. Arndt, 179 Wash. App. 373, 378, 320 P.3d 104 (2014); State v. Latham, 183 Wash. App.
390, 398, 335 P.3d 960(2014).
11 This citation is to the clerk's papers in No. 76942-1.
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No. 76945-6-1
In addition, we note that even if Hill had been misadvised regarding his score, he
would still not be entitled to withdraw his plea because his score is far above 9 and the
alleged scoring error would have no effect on his standard range.12
The court did not abuse its discretion in denying Hill's motion to withdraw his
pleas.
Hill also argues, and the State concedes, that the combined sentences for
confinement and community custody on his second degree identity theft convictions
exceed the statutory maximum and must be remanded for resentencing. We accept the
State's concession and remand for proceedings consistent with this opinion.
Affirmed in part and remanded in part for further proceedings.
For the court:
12 Note 8, supra.
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