No. 29182-7-IIThe Court of Appeals of Washington, Division Two.
Filed: December 16, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-00423-9. Judgment or order under review Date filed: 07/26/2002.
Counsel for Appellant(s), Robert Spiro Chamadias (Appearing Pro Se) #842302 16700 177th St. SE, P.O. Box 777, Monroe Correctional Complex Monroe, WA 98272-0777.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552 4603 University Vlg NE, Seattle, WA 98105-5091.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
MORGAN, J.
Robert Spiro Chamadias, Jr. appeals his conviction of two counts of first degree rape of a child. He argues that his guilty plea is invalid and that the State breached the plea agreement. We affirm.
On January 24, 2002, the State charged Chamadias with four counts of first degree rape of a child and one count of second degree rape of a child. The State alleged in Count I that the victim was `R.C.;’ in Counts II and III that the victim was `N.K.;’ in Counts IV and V that the victim was `C.C;’ and in all five counts that the crime occurred between January 1, 1994, and July 6, 2000.
After the State and Chamadias formed a plea agreement, the State amended the charges to allege two counts of first degree rape of a child. Each count alleged that between November 26, 1997, and July 7, 1999, Chamadias had `engaged in sexual intercourse with R.C. and/or C.C. and/or N.K.’[1]
On June 11, 2002, Chamadias appeared in court and pleaded guilty. In his written statement on plea of guilty, he described the facts as follows: In Pierce Cty I engaged in sexual intercourse with two separate minors both under age 12 yrs old and at the time I was more than 24 mo older and was never married to either. This occurred between Nov. 1997 and July 1999.[2]
Although this statement was actually written by Chamadias’s attorney, the attorney informed the court that Chamadias was adopting it.
The trial court questioned whether the State had agreed to recommend a SSOSA sentence. The State replied that any such recommendation depended on Chamadias satisfying the conditions listed in the appendix to his statement on plea of guilty. The appendix stated:
The defendant’s sexual deviancy evaluation and treatment program must be from a treatment provider approved by the deputy prosecutor. The evaluation must state that the defendant has a fair or better prognosis in treatment and is safe to be at large in the community. Prior to sentencing, the defendant must also take and pass a polygraph relating to sexual history and evaluation.[3]
The court then asked Chamadias if he understood that the prosecutor would recommend a SSOSA only if the evaluator found that he was amenable to treatment and that the community would be reasonably safe while he was in treatment. Chamadias said that he understood these conditions, and the court then accepted his guilty plea to each of the two amended counts.
At sentencing, the parties agreed that a SSOSA sentence was no longer possible. Chamadias’s attorney explained that the evaluator had been `very blunt’ in his opinion that a SSOSA sentence would not work for Chamadias and would not be safe for the community. The State recommended 132 months, and the trial court imposed concurrent 160-month sentences. Chamadias then filed this appeal.
I.
Chamadias argues that the trial court erred by accepting his guilty plea. The reason, he asserts, is that his plea lacked an adequate factual basis.
Due process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily.[4] Beyond this constitutional minimum, CrR 4.2 requires that the court not accept a guilty plea without first determining that the defendant is making it voluntarily, competently, and with an understanding of the nature of the charge and the consequences of the plea.[5] And CrR 4.2(d) requires that there be a factual basis for the plea. Before accepting a plea, therefore, the court must determine that the defendant’s admitted conduct constitutes the charged offenses.[6] A failure to comply fully with CrR 4.2 requires that the defendant’s guilty plea be set aside and his case remanded so that he may plead anew.[7]
Chamadias argues that his written statement lacks an adequate factual basis because it does not list the incidents and the victims he was admitting to. The State responds that he cites no authority supporting his assertions that the identity of the victim is essential to establishing a factual basis. The State also contends that the written statement on plea of guilty incorporated the amended information, and that the amended information alleged the incidents and victims with sufficient specificity.
In his plea statement, Chamadias acknowledged engaging in sexual intercourse between November 1997 and July 1999 with two minors to whom he was not married, when they were under 12 and when he was at least 24 months older. The amended information stated that on two occasions during the period between the 26th day of November, 1997 and the 7th day of July, 1999, [Chamadias] did unlawfully and feloniously being at least 24 months older than R.C. and/or C.C. and/or N.K., engage in sexual intercourse with R.C. and/or C.C. and/or N.K., who is less than 12 years old and not married to the defendant[.][8]
The amended information was made part of the record during the plea hearing. Read together, the written statement and the amended information were sufficient for the trial court to determine that Chamadias’s admitted conduct constituted the charged offenses.[9] We conclude that Chamadias’s pleas were supported by an adequate factual basis.
II.
Chamadias next argues that the State breached the plea agreement by failing to recommend a SSOSA sentence. When the State makes a plea agreement, it is bound thereby.[10]
It may not undercut the agreement, explicitly or implicitly.[11]
In this case, the State agreed to recommend a SSOSA sentence but only if Chamadias satisfied the conditions in the appendix to his plea form. He understood these conditions when he plead, and he did not fulfill them before he was sentenced. Accordingly, the State did not breach the plea agreement.
Affirmed.
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.
HUNT, C.J. and QUINN-BRINTNALL, J. concur.
(1996).