Nos. 34521-8-II; 35644-9-II.The Court of Appeals of Washington, Division Two.
March 18, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 02-1-00232-3, James B. Sawyer II and David E. Foscue, J., entered June 12, 2003, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Penoyar, JJ.
HOUGHTON, C.J.
Walter Barbee appeals the trial court’s entry of his guilty plea for first degree murder. He contends that the plea violates due process and CrR 4.2(d) and that he received ineffective assistance of counsel because the trial court and defense counsel erroneously advised him that he was eligible to earn early release credit on the first 20 years of his sentence. We affirm. We also deny his Personal Restraint Petition (PRP).
FACTS
In May 2003, the State charged Barbee with first degree murder with a firearm enhancement, second degree murder with a firearm enhancement, first degree robbery with a firearm enhancement, unlawful possession of a controlled substance, and first degree conspiracy to commit robbery.
The matter proceeded to a jury trial. On May 27, 2003, before the end of his jury trial, Barbee entered a guilty plea to first degree murder with a firearm enhancement.[1] Barbee also initialed this clause.
Before accepting the plea, the trial court engaged in a colloquy with Barbee. The trial court first confirmed that Barbee could read and write English, had completed the 12th grade of school, and that he had read the entire plea form with the assistance of counsel. During the colloquy and pertinent to our analysis, the trial court also discussed the maximum sentence of life in prison, the standard range of 261-347 months, plus a 60-month firearm enhancement and the possibility of 24 to 48 months of community custody. Barbee also acknowledged that no one had offered him anything other than that discussed with the court and in the agreement nor had anyone threatened him.
Barbee then signed the written plea agreement containing the following clause: “The crime of murder [first degree] has a mandatory minimum sentence of at least 20 years of total confinement. The law does not allow any reduction of this sentence.” Clerk’s Papers (CP) at 37.
The trial court entered Barbee’s guilty plea and imposed a sentence of 304 months for the first degree murder charge and 60 months for the firearm enhancement, for a total of 364 months’ confinement.[2] At the June 12, 2003 sentencing hearing, the trial court explained to Barbee that the 60-month firearm enhancement portion of his sentence was not subject to any reduction for earned early release credit but that the 304-month first degree murder portion of his sentence was subject to a 15 percent reduction should he serve his time in a fashion warranting the reduction.
After serving some time at Washington Corrections Center in Shelton, Barbee transferred to the Clallam Bay Corrections Center. In late 2004, a Clallam Bay prison counselor informed him of his earliest release date. Barbee believed that the counselor was mistaken and that his release date was much earlier, and he tried unsuccessfully over the next year to contact his trial counsel regarding the matter.
Barbee then retained his current counsel, who advised him that because his murder conviction was subject to a mandatory minimum 20-year sentence, he was not eligible to earn early release credit on that portion of his sentence.
Barbee filed a PRP, notice of appeal, and motion to allow late filing of his appeal. We denied his motion. He filed a motion for discretionary review with our Supreme Court, which a Supreme Court commissioner denied. He then filed a motion to modify the commissioner’s ruling. Department One of the Supreme Court granted his motion to modify and remanded to us for review. We granted his motion to consolidate his direct appeal and PRP, and we now address that consolidated appeal.[3]
ANALYSIS
Barbee contends that his guilty plea violates due process and CrR 4.2(d) and that he received ineffective assistance of counsel because the trial court and defense counsel misinformed him that he could receive earned early release credit on the first 20 years of his sentence for first degree murder. He claims that his guilty plea was not knowing or voluntary because he would not have pleaded guilty had he known that he was ineligible to receive “good time” credit on the first 20 years of his sentence.[4]
“Due process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent.” In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). Likewise, CrR 4.2(d) mandates that the trial court not accept a guilty plea without first determining that a criminal defendant has entered into the plea “voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.” See also State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (for a plea to be knowing and voluntary, a criminal defendant must be informed of all direct consequences of his plea). A defendant does not knowingly make a guilty plea when he bases that plea on misinformation regarding sentencing consequences. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988).
On review, the critical inquiry is whether a defendant was properly informed of the consequences of his guilty plea at the time he entered into a plea agreement. Where he entered into that agreement knowingly and voluntarily, any sentencing error by the trial court does not invalidate his plea. See In re Pers. Restraint of Williams, 111 Wn.2d 353, 361-62, 759 P.2d 436 (1988) (use of the defendant’s three prior traffic offenses, which were “washed out” by the Sentencing Reform Act of 1981’s wash-out provisions, in sentencing defendant for vehicular homicide, required a remand for resentencing but not a vacation of the defendant’s guilty plea; the defendant acknowledged that he understood his guilty plea was binding); State v. Jennings, 106 Wn. App. 532, 541-42, 24 P.3d 430 (2001) (where the sentencing court used the wrong standard range in sentencing a defendant who pleaded guilty and the defendant was not misinformed about the consequences of his plea, the remedy was not withdrawal of the plea, but resentencing). But see Miller, 110 Wn.2d at 529-31 (the defendant was entitled to withdraw guilty plea because at the time he entered the plea agreement, he was misinformed by his attorney, who in turn had been misinformed by the State, that he could receive an exceptional sentence for first degree murder of less than 20 years).
Here, Barbee pleaded guilty to one count of first degree murder. Under RCW 9.94A.540, the trial court must sentence an offender convicted of first degree murder to a minimum term of not less than 20 years and, during this term, the offender is not eligible to earn early release time. RCW 9.94A.540(1)(a), (2). The trial court sentenced Barbee to 304 months for first degree murder, thus he was not eligible to receive “good time” credit on the first 240 months of that sentence.
We agree that, at his sentencing hearing, the trial court failed to properly inform Barbee of the sentencing consequences and misapprehended that the 304-month portion of his sentence for first degree murder was subject to earned early release credit when, in fact, he was not eligible for this reduction until after serving 20 years.[5]
But on May 27, 2003, and before the June 12, 2003 sentencing hearing, Barbee signed a written plea agreement. The trial court engaged in a colloquy that set forth the possible sentencing ramifications. During that colloquy and before accepting the plea, the trial court correctly advised Barbee about the sentencing consequences, and the agreement entered correctly stated that first degree murder carries a mandatory minimum sentence of 20 years of total confinement and that the law did not allow “any reduction of this sentence.” CP at 37. The agreement also stated that Barbee’s counsel had “explained” and “fully discussed” all paragraphs contained in the agreement, and that Barbee understood all paragraphs. CP at 39.
The valid, signed plea agreement is direct and controlling evidence that Barbee understood the consequences of his plea at the time he entered into it. See In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 310, 979 P.2d 417 (1999) (Valid plea agreements are regarded and interpreted as contracts binding parties by the terms and, where “intelligently and voluntarily made, with an understanding of the consequences, are accepted, encouraged and enforced in Washington.”) State v. McRae, 96 Wn. App. 298, 303, 979 P.2d 911 (1999) (a plea agreement is an enforceable and binding contract between the defendant and the State). The trial court’s misinformation imparted later at the June 12, 2003 sentencing hearing, although erroneous, does not vitiate the plea agreement itself. Rather, Barbee’s written acknowledgement that he correctly understood the consequences of the valid plea agreement is binding on him.
Likewise, Barbee’s sentence was based on the valid plea agreement and was not erroneous.[6] Thus, although the trial court orally misinformed Barbee about the application of “good time” credit to his sentence and because there was no error as to the sentence itself, a remand for resentencing is unnecessary and would serve no purpose here.
BARBEE’S PRP
In his PRP, Barbee argues that he is entitled to his choice of remedy because he was misinformed about the penalties for his crime. As we hold that Barbee was not misinformed when he entered his plea, we do not address this argument further.
In the alternative, Barbee argues that he received ineffective assistance of counsel. He asserts that counsel misadvised him about the consequences of his plea.
To establish an ineffective assistance of counsel claim, Barbee must show both that (1) his trial counsel’s performance was deficient and (2) this deficient performance prejudiced him. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
In support of his claim, Barbee submits his and defense counsel’s declarations. Barbee states that had he known he would not receive 15 percent good time credit, he would not have entered the plea. Trial counsel states that he could not recall what he told Barbee about good time credit before the plea hearing but that he would not tell Barbee one thing before the hearing and another at the hearing. Trial counsel also stated that he did not recall telling Barbee that he would be prohibited from earning credit on the first 20 years of his murder sentence.
Barbee’s claim fails because he cannot establish that defense counsel’s performance was not objectively reasonable. In exchange for Barbee’s guilty plea, the State dismissed four felony counts, reducing the possible sentencing range from 312 to 418 months to 261 to 347 months. Regardless of whether Barbee was advised that he could receive 15 percent good time off his sentence, neither he nor counsel knew what sentence was going to be imposed at the time he entered into his plea. The only thing known for sure was that Barbee would be subject to a shorter sentence if he pleaded guilty than if he went to trial and was found guilty on all charges. Any good time credit would simply have shortened that sentence even further; Barbee could not know by what exact amount since he had not yet received the sentence. And if he had gone to trial and been convicted, he would have received a minimum sentence of 312 months which, even assuming he serves the full time on his 304-month sentence, is eight months longer than he was sentenced to under the plea agreement. This is a cost-benefit analysis that any defendant engages in with defense counsel when deciding whether to plead guilty without knowing whether or what he may ultimately be sentenced to.
We also find no merit to Barbee’s ineffective assistance of counsel claim because the signed plea agreement is valid, correctly states the law, and is controlling evidence that his counsel fully explained the agreement.
Affirmed. Barbee’s PRP is denied.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Bridgewater, J.
Penoyar, J.
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