State Of Washington v. Erick Vincent Barnes ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 71144-0-1
v. (consol. with No. 71145-8-1)
ERIK VINCENT BARNES, UNPUBLISHED OPINION
Appellant. FILED: November 24, 2014
Dwyer, J. — Erik Barnes pleaded guilty to one count each of unlawful
possession of a firearm in the first degree, possession of a controlled substance
(methamphetamine) with intent to deliver, and possession of a controlled
substance (methamphetamine). He now appeals, alleging that his guilty pleas
were invalid because, prior to sentencing, he was misinformed of a direct
consequence of one of his pleas. In a statement of additional grounds, Barnes
makes three additional contentions: that the State did not prove his prior
convictions, that his juvenile convictions should not have been counted in his
offender score, and that some of his prior convictions should have been counted
as the same criminal conduct. Finding no error, we affirm.
I
Barnes was charged with three offenses under two separate cause
numbers. Under cause number 12-1-01700-4, he was charged with one count
No. 71144-0-1/2
each of unlawful possession of a firearm in the first degree and possession of a
controlled substance (methamphetamine) with intent to deliver. Under cause
number 12-1-02050-1, he was charged with one count of possession of a
controlled substance (methamphetamine).
Barnes was offered a package plea deal. Each offer read: "This Plea
Agreement is dependent upon the defendant entering a plea of guilty in all other
cause numbers included in the State's plea offer." At a combined plea hearing,
held on March 1, 2013, he pleaded guilty to all three charges. The plea
statements indicated that the standard sentence ranges were 87-116 months of
confinement plus 18-36 months of community custody for the firearm charge,
60+-120 months of confinement plus 12 months of community custody for the
charge of possession with intent to deliver, and 12+-24 months of confinement
plus 12 months of community custody for the possession charge.1 The court
found that Barnes's guilty pleas were knowingly, voluntarily, and intelligently
entered. Sentencing was postponed to allow Barnes to be evaluated for a
possible drug offender sentencing alternative (DOSA).
In its DOSA risk assessment report, the Department of Corrections
concluded that a DOSA sentence would "not appropriately mitigate [Barnes's]
continued risk of future re-offense." Barnes then moved to withdraw his guilty
pleas under both cause numbers, asserting that his pleas were invalid for two
reasons. First, he claimed that he did not know that the trial court had the
1The court repeated this information at the change of plea hearing, exceptthat it did not
reiterate that there would be community custody on the possession charge.
No. 71144-0-1/3
discretion to deny a DOSA sentence. Second, he stated that he did not know his
offender score and was "shocked" upon hearing the applicable score. The trial
court conducted a factual hearing on Barnes's allegations, after which it
determined that Barnes had been advised about both the discretionary nature of
the DOSA and his offender score. The court denied the motion and proceeded
to sentencing.
At sentencing, the prosecutor recommended 90 months of confinement on
the firearm charge, 90 months of confinement on the possession with intent to
deliver charge, and 24 months of confinement on the possession charge, all to
be served concurrently. The prosecutor also recommended 12-month terms of
community custody on the two drug charges. The prosecutor advised the court
that—despite what it said in the plea paperwork—there was no community
custody on the firearm charge. Both defense counsel and Barnes then
addressed the court. Except for recommending a lower sentence on the drug
possession charge, defense counsel asked the court to follow the prosecutor's
recommendation. Barnes asked the court for an appeal bond. The court then
sentenced Barnes in accordance with the prosecutor's recommendations.
II
Barnes contends that his guilty plea to unlawful possession of a firearm is
invalid because he was misinformed that 18-36 months of community custody
would be imposed as part of his sentence. He also contends that, because this
plea was entered as part of a package deal, he is entitled to withdraw his pleas to
each of the three offenses. We disagree.
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No. 71144-0-1/4
"Due process requires an affirmative showing that a defendant entered a
guilty plea intelligently and voluntarily." State v. Ross. 129 Wn.2d 279, 284, 916
P.2d 405 (1996); U.S. Const, amend. XIV, Wash. Const, art. I, § 3. This
standard is reflected in CrR 4.2(d), "which 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.'" State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d
49 (2006). "Under CrR 4.2(f), a court must allow a defendant to withdraw a guilty
plea if necessary to correct a manifest injustice." In re Pers. Restraint of Isadore,
151 Wn.2d 294, 298, 88 P.3d 390 (2004). "An involuntary plea produces a
manifest injustice." Isadore. 151 Wn.2d at 298.
A guilty plea is not knowingly made when it is based on misinformation
regarding a direct sentencing consequence. Mendoza, 157 Wn.2d at 584, 590-
91; In re Pers. Restraint of Quinn. 154 Wn. App. 816, 835, 226 P.3d 208 (2010).
A sentencing consequence is direct when "'the result represents a definite,
immediate and largely automatic effect on the range of the defendant's
punishment.'" Ross. 129 Wn.2d at 284 (internal quotation marks omitted)
(quoting State v. Barton. 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Mandatory
community custody or community placement is a direct sentencing consequence
because it affects the punishment flowing immediately from the guilty plea and
imposes significant restrictions on a defendant's constitutional freedoms. Ross.
129 Wn.2d at 285-86; Quinn. 154 Wn. App. at 836.
When a guilty plea is based on misinformation, the defendant may move
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No. 71144-0-1/5
to withdraw the plea based on involuntariness—regardless of whether the actual
sentencing range is lower or higher than anticipated. Mendoza. 157 Wn.2d at
591. "However, if the defendant was clearly informed before sentencing that the
correctly calculated offender score rendered the actual standard range lower
than had been anticipated at the time of the guilty plea, and the defendant does
not object or move to withdraw the plea on that basis before he is sentenced, the
defendant waives the right to challenge the voluntariness of the plea." Mendoza.
157 Wn.2d at 592. The defendant need not be expressly informed that he can
withdraw his plea, see State v. Blanks. 139 Wn. App. 543, 549, 161 P.3d 455(2007), nor need there be any "waiting period" between the advisement of the
error and sentencing. Blanks. 139 Wn. App. at 550.
The Blanks decision controls the outcome of this claim of error. In that
case, Blanks moved to withdraw his guilty plea prior to sentencing. The court
denied Blanks's motion. At sentencing, the court determined that two of Blanks's
prior convictions encompassed the same criminal conduct, a difference that
reduced his standard sentence range. Blanks made no further attempt to
withdraw his plea. On appeal, Blanks argued that he pleaded guilty based on a
misunderstanding of the applicable offender score.
The appellate court rejected his claim. As in Mendoza. itwas held that
Blanks had waived the claim.
Blanks argues that he was not given enough time because the trial
court ruled on his offender score directly before it sentenced him.
But Mendoza requires only the "opportunity to withdraw the plea,"
not a waiting period. Blanks was informed of the miscalculation, it
worked in his favor, and he did not move to withdraw his plea on
No. 71144-0-1/6
this basis. Therefore, [he] impliedly waived this argument.
Blanks. 139 Wn. App. at 550 (citation omitted).
Such was the case herein. After unsuccessfully moving to withdraw his
guilty plea, Barnes learned that the actual term of community custody was less
than he had believed. After learning this, both he and his attorney had an
opportunity to address the court. Either could have asked the court to allow
Barnes to withdraw his plea based on the lessened term of community custody,
but neither did so. As in Blanks, the failure to act waived any argument that the
decreased term warranted withdrawal of the plea. Accordingly, Barnes has not
established an entitlement to appellate relief.
Ill
In a statement of additional grounds (SAG), Barnes makes three
additional contentions. First, he contends that due process was violated when
his sentence was based "on the prosecutor's bare assertions or allegations of
prior convictions."2 SAG at 11 (quoting State v. Hunlev, 175 Wn.2d 901, 915, 287
P.3d 584 (2012)). Given that Barnes affirmatively acknowledged his criminal
history, we disagree.
When a defendant affirmatively acknowledges the existence of prior
convictions, the State is not required to present further proof of those convictions.
State v. Ross. 152 Wn.2d 220, 232-33, 95 P.3d 1225 (2004). In the plea
agreements, Barnes specifically agreed that the prosecutor's understanding of
2This is the content of his claim, though he frames it thusiy: "Mr. Barnes Due Process
was violated when the sentencing court did not allow him to withdraw his plea or have a hearing
to prove his offender score." SAG at 11.
No. 71144-0-1/7
his criminal history was "accurate and complete." Therefore, there was no due
process violation.
Barnes's second contention is that the trial court should not have counted
his juvenile adjudications in calculating his offender score. This claim is based
on obsolete statutory provisions. Under the original Sentencing Reform Act
(SRA), juvenile convictions did not constitute "criminal history" for crimes
committed after the defendant's 23rd birthday. Former RCW 9.94A.030(11), as
enacted by Laws of 1981, ch. 137, § 3. This rule was abolished in 1997. Since
then, the definition of "criminal history" has been the same for juvenile and adult
convictions. Laws of 1997, ch. 338, §2(12) (now codified as RCW
9.94A.030(11)).
The effect of these changes was clarified in 2002:
A prior conviction that was not included in an offender score
calculated pursuant to a former version of the sentencing reform act
remains part of the defendant's criminal history.
Laws of 2002, ch. 107, § 2(13)(c) (now codified as RCW 9.94A.030(11)(c)). For
crimes committed after the effective date of the 2002 amendment, the former
rules for the "wash out" of juvenile convictions no longer apply. State v. Varqa.
151 Wn.2d 179, 193-95, 86 P.3d 139 (2004).3
3 Barnes erroneously relies on two cases—State v. Smith, 118 Wn. App. 288, 75 P.3d
986 (2003), and State v. Dean. 113 Wn. App. 691, 54 P.3d 243 (2002)—in support of his
contention that the trial court should not have used his "washed out" juvenile adjudications in
sentencing him. Both are distinguishable. In those cases, the trial courts were ordered to
resentence the defendants according to the law in effect at the time the offenses at issue were
committed. Since the offenses at issue in both cases were committed prior to 2002, this entailed
applying a different legal provision than was properly applied in this case.
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No. 71144-0-1/8
This change did not violate any vested rights of defendants who had
previously committed juvenile offenses.
The 2002 SRA amendments serve only to enhance the penalty for
[the defendant's] crime that he committed after the amendments'
effective date. Indeed, [the defendant] could have avoided the
effect of the 2002 SRA amendments by not committing a
subsequent crime.
Varqa. 151 Wn.2d at 196-97 (citations omitted). See also Landqraf v. USI Film
Prods.. 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) ("A statute does
not operate 'retrospectively' merely because it. . . upsets expectations based in
prior law." (citation omitted)).
Nonetheless, Barnes claims that he should be allowed to "withdraw" his
guilty pleas to the juvenile offenses. This claim cannot be raised in this
proceeding.
It is well settled that the State is not required to prove the
constitutional validity of prior convictions used to calculate a
defendant's offender score on a current conviction. And a criminal
defendant generally has no right to contest the validity of a previous
conviction in connection with a current sentencing.
State v. Irish. 173 Wn.2d 787, 789-90, 272 P.3d 207 (2012) (citation omitted). A
defendant can only challenge a prior conviction if it was constitutionally invalid on
its face. State v. Ammons. 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796(1986). The record does not contain any documents relating to the juvenile
convictions and there is no indication that those convictions are facially invalid.
Therefore, we reject Barnes's challenge to the validity of those convictions.
Finally, Barnes contends that some of his prior convictions should have
been counted as the same criminal conduct. Moreover, he asserts that the
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No. 71144-0-1/9
purported errors in his offender score entitle him to withdraw his guilty pleas to
the current offenses. We disagree.
We review an offender score calculation de novo but review a
"'determination of what constitutes the same criminal conduct [for] abuse of
discretion or misapplication of the law.'" State v. Mutch. 171 Wn.2d 646, 653,
254 P.3d 803 (2011) (alteration in original) (internal quotation marks omitted)
(quoting State v. "Till. 139 Wn.2d 107, 122, 985 P.2d 365 (1999)). "[I]t is the
defendant who must establish the crimes constitute the same criminal conduct."
State v. Aldana Graciano. 176Wn.2d531, 539. 295 P.3d 219 (2013); see also
State v. Johnson. 180 Wn. App. 92, 104, 320 P.3d 197, review denied. 181
Wn.2d 1003(2014).
In this case, Barnes made no attempt at the sentencing hearing to
establish that any of his priorconvictions constituted the same criminal conduct.
In fact, the only information in the record relevant to those convictions is found in
the plea statements, which each contained the following statement concerning
Barnes's criminal history: "The defendant agrees the attached Appendix A -
Prosecutor's Understanding of Defendant's Criminal History . . . and the attached
Sentencing Guidelines scoring form(s) are accurate and complete." Barnes did
not meet his burden of establishing that any of his prior offenses constituted the
same criminal conduct. Consequently, the trial court did not abuse its discretion
in counting them as separate offenses.
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No. 71144-0-1/10
As there was no error in the calculation of his offender score, Barnes is
not entitled to withdraw his guilty pleas to the current offenses on that basis.45
Affirmed.
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We concur:
(5ed*et,
4Barnes also refers at length to the rule of lenity, which has no application here.
5 In his statement of the case, Barnes includes a number of additional allegations of error,
upon which he does not further elaborate. He has not established an entitlement to relief on any
of those claims.
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