State Of Washington v. Shan Dwayne Rivers

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12,011F.'t
STV1E
:55
20 JA1129 All
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) No. 75804-7-1
) (Consolidated with
Respondent, ) No. 75805-5-1)
)
v. ) DIVISION ONE
)
SHAN DEWAYNE RIVERS, ) UNPUBLISHED
)
Appellant. ) FILED: January 29, 2018
)
Cox, J. -- Shan Rivers appeals his judgment and sentences based on his
pleas to forgery and attempted residential burglary. He contends his guilty pleas
were neither knowing nor voluntary because he Was misinformed as to the nature
of these specific counts. The record shows that Rivers was correctly informed of
the nature and number of charges to which he pled guilty. Because he fails to
meet his burden to show a manifest injustice, we affirm.
This consolidated appeal arises from two eparate criminal cases against
Rivers. The State alleged that Rivers took financial advantage of two victims,
draining their bank accounts by forging checks and making unauthorized debit-
card purchases. For this conduct, it charged him, under superior court case
number 15-1-06447-5 with one count of second-degree identity theft and seven
counts of forgery. On appeal, this case is designated No. 75804-7-1.
No. 75804-7-1 (consolidated with No. 75805-5-1)/2
Subsequent to that case's filing, Rivers allegedly broke into an apartment
and stole a purse, which he used to further steal money from a checking account.
For this, the State charged him, under superior court case number 16-1-01273-2,
with residential burglary, domestic violence misdemeanor violation of a court
order, and two counts of second-degree identity theft. The residential burglary
charge was reduced later by amended information to attempted residential
burglary. On appeal, this case is designated No. 75805-5-1.
Rivers and the State entered into plea agreements to resolve both cases.
The residential burglary charge was reduced to attempted residential burglary.
At the plea hearing, the prosecutor incorrectly stated that Rivers was pleading to
attempted first degree burglary rather than attempted residential burglary.
At the plea hearing, Rivers' plea statement incorrectly states once that he
was pleading to eight counts of forgery. But it reportedly states thereafter that he
was pleading to seven counts of that charge. Both prosecution and defense
counsel repeatedly and correctly stated that the pleas included one count of
attempted residential burglary and seven counts of forgery.
Neither Rivers nor defense counsel expressed any misunderstanding of
the nature of the guilty pleas. The trial court sentenced Rivers to concurrent
prison-based drug offender sentencing alternatives.
Rivers appeals his sentences in these consolidated cases.
KNOWING AND VOLUNTARY PLEA
Rivers argues that he should be allowed to withdraw his guilty plea
because it was not knowing or voluntary. We disagree.
2
No. 75804-7-1 (consolidated with No. 75805-5-1)/3
Due process requires that a defendant's guilty plea be knowing, voluntary,
and intelligent.1 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 the trial court to permit withdrawal of the plea "to
correct a manifest injustice."2 A plea may be withdrawn under this standard if
based on a mistake that bears upon the offender score, sentencing range, or
charges subject to the plea, rendering the plea unknowing and involuntary.3
A plea may be unknowing and involuntary even if the sentencing
consequences are actually less severe than those the defendant understood in
entering the plea.4 For example, the supreme court has held that a defendant
may withdraw his plea based on a miscalculated offender score resulting in a
lower standard range than anticipated by the parties in negotiating the plea.5
The misinformation need not be material to the defendant's pleading decision.6
1 In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390(2004).
2 CrR 4.2(f).
3 State v. Codiga, 162 Wn.2d 912, 925, 175 P.3d '1082 (2008).
4 State v. Mendoza, 157 Wn.2d 582, 590, 141 P.3d 49(2006).
5 Id. at 591.
6 Isadore, 151 Wn.2d at 296.
No. 75804-7-1 (consolidated with No. 75805-5-1)/4
The defendant bears the burden to show the presence of a manifest
injustice, "one that is 'obvious, directly observable, overt,[and] not obscure.'"7 A
plea may be shown as valid based on either the oral colloquy or the written plea.8
The trial court may rely on the "written plea agreement where the defendant told
the court he had read the agreement and that the statements contained therein
were truthful."8 Additionally, a defendant may be deemed sufficiently informed
when misinformation is corrected prior to sentencing.1°
Here, the record demonstrates that Rivers was informed of the nature of
the pleas to the charges on which sentencing was based. His argument turns on
whether he was informed that he was pleading to attempted residential burglary,
rather than attempted first degree burglary. It also turns on whether he knew he
was pleading to seven, rather than eight counts of forgery. The record shows
that the prosecutor and defense counsel both made incorrect statements about
these two distinctions. But it also shows that Rivers was properly informed of the
true nature of the criminal charges to which he pled guilty.
The State initially charged Rivers with seven counts of forgery in case No.
15-1-06447-5, together with one other crime. It also charged him in case No. 16-
1-01273-2 with residential burglary, in addition to other crimes. Rivers entered
Mendoza, 157 Wn.2d at 586 (quoting In re Pers. Restraint of Matthews,
7
128 Wn. App. 267, 274, 115 P.3d 1043(2005)).
8 g_pskaq, 162 Wn.2d at 923.
9 Id.10 State v. Blanks, 139 Wn. App. 543, 550, 161 P.3d 455(2007).
4
No. 75804-7-1 (consolidated with No. 75805-5-1)/5
plea agreements to resolve both cases. The agreement pertaining to case No.
15-1-06447-5 shows that Rivers would plead guilty to the seven counts of forgery
in the original information. For case No. 16-1-01273-2, he agreed to plead to the
reduced charge of attempted residential burglary in an amended information
instead of residential burglary, as originally charged.
The first page of Rivers' plea-statement reads, on Rivers' behalf, that "1
am charged with the crime(s) of 1 count of identity theft 2nd degree, and eight
counts of forgery." But the document repeatedly thereafter indicates only seven
counts of forgery, labeled counts 11-V111.
At the plea hearing, the prosecutor as11ed Rivers if he understood that he
was pleading to eight counts of forgery. Rive s acknowledged that he did. But
the prosecutor later asked if he understood that he was pleading to seven counts
of forgery. Again, Rivers said that he did.
The prosecutor also noted that she was correcting the paperwork to reflect
the midpoint of the standard range for the "ei ht counts of forgery." But at
sentencing, the prosecutor read aloud the St te's sentencing recommendation,
which referenced seven counts.
Taken together, the written plea agree ent that Rivers signed and the
colloquy at the plea hearing demonstrate tha he understood he was pleading to
seven counts of forgery, not eight.
Regarding the attempted residential burglary charge, the prosecutor
incorrectly characterized this charge as "attempted burglary in the first degree."
But the plea agreement that Rivers signed a d the amended information the
5
No. 75804-7-1 (consolidated with No. 75805-5-1)/6
agreement referenced unequivocally indicate that the correct charge was
"attempted residential burglary." And subseqrent to her misstatement, the
prosecutor asked Rivers if he understood tha/ he was pleading guilty to one
count of attempted residential burglary, which Rivers affirmed. The prosecutor
again referenced the correct crime at sentencing.
This record shows that notwithstandin some confusion at the plea
hearing, Rivers was informed orally and in wr ting of the correct nature of the
charges to which he pled guilty. Specifically, he was informed, and
acknowledged, that he was pleading to one c unt of attempted residential
burglary and seven counts of forgery. For th se reasons, Rivers fails in his
burden to show that there is a manifest injust ce that entitles him to withdraw his
guilty pleas to the charges.
We affirm the judgment and sentence
WE CONCUR:
6