IN RE CLARK, 143 Wn. App. 1048 (2008)

In the Matter of the Personal Restraint of STEVEN JOSEPH CLARK, Petitioner.

No. 59970-4-I.The Court of Appeals of Washington, Division One.
March 31, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Petition for relief from personal restraint.

Remanded by unpublished per curiam opinion.

PER CURIAM.

A defendant who enters an involuntary plea is entitled to choose his remedy of either specifically enforcing the plea agreement or withdrawing that plea.[1] Although a defendant has the initial choice of remedy, a trial court is not bound by that choice where the State demonstrates that such a choice is unjust. Here, Steven Clark was misinformed that he would be required to serve a term of community placement, thus rendering the plea involuntary. We remand.

FACTS
Clark pleaded guilty in January 1998 to two counts of robbery in the second degree. The plea form indicated that, in addition to confinement, the court would sentence him to community placement for at least one year. In February 1998, Clark was sentenced to 25 months of confinement and two years of community placement under former RCW 9.94A.120(9) (1996). That statute, however, did not require a person convicted of second degree robbery to serve a term of community placement.

One month after Clark’s judgment and sentence was filed, the State moved to modify it. Neither Clark nor his counsel was notified of the motion. The court granted the ex parte motion and vacated the community placement provisions of Clark’s sentence. The State’s motion is not part of the record before this court, but the order indicated it was entered “to correct a clerical error or failure on the written judgment and to correspond with the actual sentence imposed by the court.”

ANALYSIS
In this petition, Clark argues that he should be allowed to withdraw his guilty plea related to the 1998 convictions because he was misinformed about mandatory community placement, which is a direct consequence of a guilty plea and, therefore, his plea was not knowing or voluntary. He contends that he is entitled to withdraw his guilty plea, regardless of whether he would have made a different choice if he had been advised correctly. Clark Is Entitled To Relief[2]

This court will grant relief if a petitioner is under “restraint” as defined in RAP 16.4(b), [3] and if the restraint is unlawful for one or more of the reasons set forth in RAP 16.4(c).[4] Generally, to be entitled to relief, the petitioner must prove actual prejudice from a constitutional error, or a nonconstitutional error that inherently results in a complete miscarriage of justice.[5] If, however, the petitioner has not had a prior opportunity for judicial review, he need only show that he is restrained under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c).[6] A petitioner’s restraint is unlawful if he is restrained as a result of an invalid guilty plea.[7]

Due process requires a defendant’s guilty plea to be knowing, voluntary, and intelligent.[8] A guilty plea is not made knowingly if it is based on misinformation regarding a direct sentencing consequence.[9] Mandatory community placement is a direct consequence of a guilty plea.[10] If a defendant’s guilty plea is invalid, he may elect to specifically enforce the plea or withdraw it.[11]

The State argues that Clark is not entitled to relief because the facts conclusively demonstrate that misinformation about community placement was not material to his decision to plead guilty. But the Mendoza court specifically rejected “an analysis that focuses on the materiality of the sentencing consequence to the defendant’s subjective decision to plead guilty.”[12] Mendoza pleaded guilty to one count of child molestation in the third degree. His plea statement indicated his offender score was 7, which meant a standard range of 51 to 60 months, and 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 his standard 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. The Supreme Court accepted review to resolve the split of authority among the divisions of the Court of Appeals whether a plea based on a mutual mistake about the standard sentence range may be challenged as involuntary, regardless of whether the correct sentencing range is less onerous. The court adhered to the precedent set in Isadore “that a guilty plea may be deemed involuntary when based on misinformation regarding a direct consequence on the plea,” regardless of whether the actual punishment was less or greater than anticipated.[13] We, therefore, are constrained by Mendoza and hold that Clark is entitled to withdraw his guilty plea if he chooses to do so.

We remand to the trial court to permit Clark to choose his remedy as required by State v. Miller.[14]

[1] State v. Miller, 110 Wn.2d 528, 756 P.2d 122 (1988).

[2] The State contends that Clark’s personal restraint petition is time-barred because the judgment and sentence as modified in March 1998 is valid on its face and was rendered by a court of competent jurisdiction. See RCW 10.73.090(1). But under State v. Mendoza, 157 Wn.2d 582, 151 P.3d 159 (2006), Clark had a right to withdraw his guilty plea and, therefore, the order modifying his judgment and sentence is void because it was entered without due process. See Amunrud v. Board of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006) (to accord due process, state must give notice and an opportunity to be heard before depriving a person of a protected interest); see also In re Marriage of Ebbighausen, 42 Wn. App. 99, 102, 708 P.2d 1220 (1985) (judgments entered without due process are void).

[3] “A petitioner is under a `restraint’ if the petitioner has limited freedom because of a court decision in a civil or criminal proceeding, the petitioner is confined, the petitioner is subject to imminent confinement, or the petitioner is under some other disability resulting from a judgment or sentence in a criminal case.” RAP 16.4(b).

[4] Restraint is unlawful under RAP 16.4(c) if, among other reasons, the sentence entered “was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington.” Although Clark no longer is serving the sentence for the convictions at issue in this case, the convictions served as a necessary predicate for his current life sentence following a subsequent robbery conviction and a persistent offender finding. In re Pers. Restraint of Davis, 152 Wn.2d 647, 670, 101 P.3d 1 (2004).

[5] In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083
(1999).

[6] In re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390
(2004).

[7] See Isadore, 151 Wn.2d at 302.

[8] Isadore, 151 Wn.2d at 297.

[9] Isadore, 151 Wn.2d at 298.

[10] Isadore, 151 Wn.2d at 298.

[11] Isadore, 151 Wn.2d at 303.

[12] Mendoza, 157 Wn.2d at 590.

[13] Mendoza, 157 Wn.2d at 591.

[14] 110 Wn.2d at 536 (Where a “defendant was not informed of the sentencing consequences of the plea, the defendant must be given the initial choice of a remedy to specifically enforce the agreement or withdraw the plea. The prosecutor bears the burden of demonstrating that the defendant’s choice of remedy is unjust.”).