State Of Washington v. Kevin James Hill ( 2018 )

COURT OFP'ILED
STATE OFAPPEALS DIV I
WASHINGTON
2018 JUN 18 AN 10: 18
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, )
) No. 76943-0-1
Respondent, )
)
v. )
)
KEVIN JAMES HILL, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: June 18, 2018
)
PER CURIAM-Prior to sentencing on his guilty pleas in four separate matters,1
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. We affirm.
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
The guilty pleas encompassed twenty-two felonies and three misdemeanors.
This appeal is taken from Hill's conviction for one count of second degree burglary.
No. 76943-0-1
was actually 69 and that the misinformation regarding his score rendered his pleas
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:
2 Citing State v. Codiga, 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 Codiga 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." Codiga, 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. 76943-0-1
[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 --
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 154-56. The court then said "[a]nything else?" RP 156. 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... .
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No. 76943-0-1
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 offender score, Mr. Hill, but the State is simply not
seeking to prove and plead that additional Arizona history.
RP 156-57. 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
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).
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No. 76943-0-I
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.8 "Once an offender score reaches 9, the standard range does not
change. RCW 9.94A.510."6
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,1° 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
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 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).
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No. 76943-0-1
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.
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.
Affirmed.
FOR THE COURT:
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11 This citation is to the clerk's papers in No. 76942-1.
12 Note 8, supra.
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