No. 61782-6-I.The Court of Appeals of Washington, Division One.
November 24, 2008.
Petition for relief from personal restraint.
Granted and remanded by unpublished per curiam opinion.
PER CURIAM.
Simon James pleaded guilty to one count of delivery of cocaine in Whatcom County Superior Court Cause No. 06-1-01248-1. James now files this personal restraint petition seeking to withdraw his guilty plea because he was not informed of the correct standard range before pleading guilty. The State correctly concedes that James was not adequately informed regarding the sentencing consequences of the plea. We accordingly grant his petition and remand for further proceedings.
James was originally charged with two counts of delivery of cocaine. As part of a negotiated plea agreement, James eventually agreed to plead guilty to one count of delivery. The trial court calculated his offender score as 6 with a standard sentence range of 60 to 120 months, and imposed a 45-month prison sentence under the Drug Offender Sentencing Alternative (DOSA).[1]
The parties now agree that James’ offender score should have been five, not six. Because James was misinformed regarding a direct consequence of pleading guilty, the State concedes that this matter should be remanded to allow James to withdraw his guilty plea. The concession is well taken.
A defendant’s decision to plead guilty must be knowing, intelligent, and voluntary. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). To be knowing and intelligent, the guilty plea must at least be made with a correct understanding of the charge and the consequences of pleading guilty. State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996). A guilty plea is not knowingly made when based on misinformation regarding sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). One direct consequence of the plea is the applicable sentence range. State v. Moon, 108 Wn. App. 59, 62, 29 P.3d 734 (2001). Under our sentencing laws, sentence ranges are based upon the seriousness of the offense and the defendant’s criminal history as reflected in the offender score. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999).
The case of State v. Mendoza, 157 Wn.2d 582, 141 P.3d 49 (2006), is instructive. Mendoza pleaded guilty to one count of child molestation in the third degree. Mendoza’s plea statement indicated his offender score was 7, which meant the standard sentence range would be 51 to 60 months. The State agreed to recommend a 60-month sentence. After Mendoza’s guilty plea was entered he was told that his offender score was 6, and that the actual sentence range was 41 to 54 months. Mendoza argued on appeal that his plea was involuntary because he was not informed of the correct standard range before pleading guilty. In agreeing with Mendoza, the Supreme Court held that a guilty plea may be deemed involuntary when based on misinformation regarding an offender score calculation. Mendoza, 157 Wn.2d at 591. Here, as in Mendoza, James is entitled to withdraw his guilty plea if he chooses to do so.
The personal restraint petition is granted. The matter is remanded to Whatcom County Superior Court for further proceedings consistent with this opinion.
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