State Of Washington v. Steven Curtis Collins ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68438-8-1
Respondent,
DIVISION ONE
*jt.
v.
O
STEVEN CURTIS COLLINS, UNPUBLISHED OPINION
Appellant. FILED: OCT 1 4 2013
Per Curiam. Steven Collins appeals from the judgment and sentence entered
after he pleaded guilty to delivery of methadone. He contends the plea was not
knowingly, intelligently, and voluntarily entered because he was misinformed
regarding the applicable statutory maximum and consequences of his plea. We
affirm.
Collins pleaded guilty to one count of delivery of methadone. At the plea
hearing, the court informed him that the applicable maximum sentence was twenty
years in prison and a $50,000 fine and that his standard range was twenty months
and one day to sixty months. Collins acknowledged that he understood. He also
acknowledged that the State would recommend twenty months and one day of
incarceration and twelve months of community custody. The court accepted his plea.
At sentencing, Collins requested a drug offender sentencing alternative
(DOSA), stating that he wanted the extended period of community custody of the
DOSA sentence. "[T]he reason why I want the DOSA, the longer supervision that I
No. 68438-8-1/2
have out in the community I think is better for me... instead of just 12 months or
whatever it is, you know what I'm saying, the longer is better. I feel like I need that
and I want that." Verbatim Report of Proceedings (VRP at 19). The trial court gave
Collins a prison based DOSA sentence of twenty months of confinement followed by
twenty months of community custody.
Collins contends his plea is invalid because he was misadvised of the relevant
maximum sentence. Both the plea agreement and the court informed Collins that the
statutory maximum was twenty years. Collins contends this was error under
Blakelv v. Washington. 542 U.S. 296, 124 S. Ct. 2531, 159 L Ed. 2d 403 (2004).
According to Collins, the applicable maximum sentence was the maximum he could
receive under the plea agreement - i.e., the high end of his standard range or 60
months. This argument is controlled by our decision in State v. Kennar, 135 Wn.
App. 68, 74-75, 143 P.3d 326 (2006), rev, denied, 161 Wash. 2d 1013, 166 P.3d 1218
(2007). There, we held that "CrR 4.2 requires the trial court to inform a defendant of
both the applicable standard sentence range and the maximum sentence for the
charged offense as determined by the legislature." Kennar, 135 Wash. App. at 75.
Collins was informed of both the standard range and statutory maximum. There was
no error.
Collins also alleges that his plea was involuntary because he was never
informed that violation of his DOSA could lead to imposition of his remaining
sentence. A defendant must be informed of all the direct consequences of his plea,
No. 68438-8-1/3
but he need not be advised of all possible collateral consequences of his plea.
State v. Ward, 123 Wash. 2d 488, 512, 869 P.2d 1062 (1994). "The distinction between
direct and collateral consequences of a plea 'turns on whether the result represents a
definite, immediate and largely automatic effect on the range of the defendant's
punishment'." State v. Barton, 93 Wash. 2d 301, 305, 609 P.2d 1353 (1980) (quoting
Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert, denied, 414 U.S. 1005, 94
S. Ct. 362, 38 L. Ed. 2d 241 (1973)). For example, a habitual criminal proceeding is a
collateral consequence of a guilty plea, because "(1) it is not automatically imposed
by the court in which the defendant has entered a plea of guilty, and (2) it cannot
automatically enhance a defendant's sentence." Ward, 123 Wash. 2d at 513.
Similarly, the revocation of a DOSA is not an automatic procedure with a direct
impact on Collins' sentence. An offender in violation of a DOSA may be reclassified
to serve the remaining balance of the original sentence. RCW 9.94A.662(3).
Revocation of a DOSA sentence requires a Department of Corrections proceeding
with a preponderance of the evidence standard of proof. In re Pers. Restraint
Petition of McKay, 127 Wash. App. 165, 168, 110 P.3d 856 (2005). Therefore, "any
effect on punishment flows not from the guilty plea itself but from additional
proceedings and thus cannot qualify as immediate." State v. Ross, 129Wn. 2d 279,
285, 916 P.2d 405 (1996). The possibility of additional incarceration resulting from
violation of the DOSA is merely speculative.
No. 68438-8-1/4
Collins was properly instructed on the duration of incarceration and community
custody. VRP at 19-20, Clerk's Papers (CP) at 31. He clearly understood the direct
implications of his DOSA. If Collins was misinformed, that misinformation applies
only to a collateral consequence of his DOSA sentence and does not support
withdrawal of his plea.
Due process requires that a guilty plea be knowing, voluntary, and intelligent.
In re Pers. Restraint of Isadore. 151 Wash. 2d 294, 297, 88 P.3d 390 (2004). "A guilty
plea is not knowingly made when it is based on misinformation of sentencing
consequences." |d. at 298. A defendant must be informed of all direct
consequences of his plea. ]d. The statutory maximum sentence for a charged crime
is a direct consequence. In re Pers. Restraint of Stockwell. 161 Wash. App. 329, 335,
254 P.3d 899 (2011) (citing State v. Wevrich. 163 Wash. 2d 554, 557, 182 P.3d 965
(2008)).
Statement of Additional Grounds
Collins claims that his counsel was ineffective for failing to inform him about
the length and consequences of his DOSA sentence. Statement of Add'l Grounds for
Review (SAG) at 1. "A defendant claiming ineffective assistance of counsel must
show that counsel's performance was objectively deficient and resulted in prejudice."
State v. Emery, 174 Wash. 2d 741, 754-55, 278 P.3d 653 (2012) (citing State v.
McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995)). Courts strongly
presume that representation was effective. Emery, 174 Wn.2d. at 755.
No. 68438-8-1/5
Trial counsel's responsibility is to assist the defendant in "evaluating the
evidence against him and in discussing the possible direct consequences of a guilty
plea." State v. Malik, 37 Wash. App. 414, 417, 680 P.2d 770 (1984). Failure to advise
of collateral consequences does not amount to ineffective assistance of counsel
requiring withdrawal of a plea. State v. Hollev, 75 Wash. App. 191, 197, 876 P.2d 973
(1994). As noted above, the possible incarceration due to revocation ofa DOSA
sentence is not a direct consequence of the plea. Any failure to inform Collins about
this collateral consequence does not support an ineffective assistance claim.
We affirm the conviction.
For the court: