STATE v. FARRON, 21740-6-II (Wash.App. 2-20-2002)

No. 21740-6-II.The Court of Appeals of Washington, Division Two.
Filed: February 20, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Jefferson County, No. 96-1-00105-3, Hon. Thomas J. Majhan, February 21, 1997, Judgment or order under review.

Counsel for Appellant(s), Craddock D. Verser, Attorney At Law, 686 Lake St #200, Port Townsend, WA 98368.

Counsel for Respondent(s), Juelanne B. Dalzell, Prosecuting Attorney, P.O. Box 1220, Port Townsend, WA 98368.

DAVID H. ARMSTRONG, C.J.

Thomas L. Farron pleaded guilty to burglary in the first degree, two counts of residential burglary, and theft in the second degree. RCW 9A.52.020(1)(a), RCW 9A.52.025(1), and RCW 9A.56.040(1)(a). The Jefferson County Superior Court imposed a standard range sentence including the imposition of a five-year `firearm’ enhancement on his conviction of burglary in the first degree. RCW 9.94A.310(3). Farron challenges the enhancement arguing that the State failed to specify a `firearm’ enhancement in the amended information. Farron also raises several additional issues in his pro se supplemental brief. We find merit in only one issue. Based on the State’s concession, we vacate one count of residential burglary. We affirm in all other respects and remand for resentencing.

Farron pleaded guilty to an amended information charging the above noted offenses. In count one of the amended information, the State accused Farron of being armed with deadly weapons, to wit: a Chinese model 30-06 caliber rifle and a Winchester model 67, .22 rifle. Farron never challenged the State’s allegation that he armed himself with these weapons in the commission of the crime. Farron’s statement on plea of guilty indicates, in paragraph 6(f), that the State would seek a gun enhancement as part of its sentence recommendation. Prior to Farron entering his plea, the trial court and the parties discussed the State’s intention to seek a five-year enhanced sentence. Farron entered his plea. At sentencing, the court imposed a standard range sentence plus a five-year enhancement.

When the State relies on statutes authorizing enhanced penalties, due process requires that the information contain specific allegations to that effect, thus placing the accused upon notice that enhanced consequences will flow from a conviction. State v. Cosner, 85 Wn.2d 45, 50, 530 P.2d 317
(1975). It is necessary for prosecuting attorneys to adhere to the above rule, preferably complying by pleading the statutory language and citation upon which they are relying, i.e., firearms and/or deadly weapons. Cosner, 85 Wn.2d at 51. The underlying purpose of this rule is to give the defendant notice of the possibility of enhanced consequences. State v. Theroff, 95 Wn.2d 385, 392-93, 622 P.2d 1240
(1980).

Farron first raised a challenge regarding the specificity of the information at his sentencing. Therefore, we review the challenge by considering (1) whether the information provides notice of the allegedly missing elements and (2) if the language is vague, whether there was actual prejudice to the defendant. State v. Kjorsvik, 117 Wn.2d 93, 106, 812 P.2d 86 (1991). The charging document need not use the exact words of the statute, but is sufficient if the words conveying the same meaning and import are used so to reasonably apprise the defendant of the accusation charged. Kjorsvik, 117 Wn.2d at 97.

RCW 9.94A.125 provides, in pertinent part, that when there is a special allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the crime, the court shall make a factual finding to such. The statute defines deadly weapons to include `any dirk, dagger, pistol, revolver, or any other firearm[.]’ RCW 9.94A.125. There is no statute requiring a specific finding for firearms. See Laws of 1995, ch. 129. Instead, once a finding regarding a deadly weapon is made, it is the sentencing court’s responsibility to determine the appropriate enhancement. State v. Meggyesy, 90 Wn. App. 693, 708-09, 958 P.2d 319 (1998) (holding that special verdict that defendant armed with `deadly weapon’ supported court’s imposition of enhancement for use of `firearm’). See State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996).

RCW 9.94A.310, amended in 1995, requires different enhancements depending upon whether the accused was armed with a firearm or any other deadly weapon. Specifically, RCW 9.94A.310(3) states:

The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010. . . .

(a) Five years. . . .

RCW 9.94A.310(4) states:

The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010. . . .

(a) Two years. . . .

A `firearm’ is defined in RCW 9.41.010(1) as `a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.’ Further, the statute defines a `rifle’ as `a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and . . . intended to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.’ RCW 9.41.010(3).

In the instant case, the State, in its amended information, included notice that it was accusing Farron of being armed with deadly weapons, to wit: a Chinese model 30-06 caliber rifle and a Winchester model 67, .22 caliber rifle, under the authority of RCW 9.94A.125 and 9.94A.310. The language used by the State sufficiently gave Farron notice that it was charging him with use of a deadly weapon, specifically firearms. This is consistent with the statutory definition of a `deadly weapon’ under RCW 9.94A.125 as well as the statutory definition of a `firearm’ under RCW 9.41.010.

Given the foregoing, the State provided Farron adequate notice, including disclosure in its amended information, that it was alleging use of deadly weapons, namely firearms, during the commission of the crime. Once the trial court found that Farron used deadly weapons during the commission of his crime, it determined the appropriate enhancement based upon the type of deadly weapons used. See Meggyesy, 90 Wn. App. at 708-09.

The trial court’s sentence was consistent with the statutory language cited above.

Farron makes several arguments pro se. First, Farron argues that he made his plea neither knowingly nor voluntarily because he was unaware that the State would recommend a five-year enhancement for commission of a crime with a firearm. Because the record indicates that Farron knew of the State’s proposed recommendation at the time that he entered his plea, this contention has no merit.

Due process requires that a defendant enter a guilty plea intelligently and voluntarily. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). In addition, CrR 4.2(d) requires courts to determine before accepting a guilty plea that the defendant made the plea `voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.’ This court reviews a trial court’s decision to deny a motion to withdraw a plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). Knowledge of the direct consequences of a guilty plea may be satisfied from the record of the plea hearing or clear and convincing extrinsic evidence. Ross, 129 Wn.2d at 287.

The record does not support Farron’s contention that he was unaware of the possibility that the court might impost a five-year firearm enhancement. The defendant’s statement on plea of guilty, paragraph (6)(f), notes that the prosecuting attorney would recommend a sentence including that for `gun enhancement.’ CP at 11. The record also shows a colloquy between the court and the parties in which the State noted that it was seeking a five-year enhanced penalty due to the guns involved in the crimes. An additional sentence of five years for gun enhancement is also contemplated in Appendix B of the plea agreement, which Farron reviewed with his attorney and signed. Similarly, the State’s sentencing recommendation also shows that it recommended a five-year enhancement.

Because Farron was fully apprised of the gun enhancement prior to the court accepting his guilty plea, the record demonstrates he understood the consequences of that plea.

In a related claim, Farron challenges the factual basis for his plea.[1] CrR 4.2(d) requires that a guilty plea have a factual basis that is developed on the record at the time the plea is taken. State v. Osborne, 102 Wn.2d 87, 95, 684 P.2d 683 (1984). This requirement is met if there is sufficient evidence for a jury to conclude that the defendant is guilty. Osborne, 102 Wn.2d at 95.

Farron claims that because the guns he stole were inoperable, the record does not contain proof that he was armed with a firearm at the time of the robbery. This claim is unsupported by the record. There is no evidence in the record indicating whether the two rifles Farron stole were inoperable. However, a court is not required to find that a gun is capable of being fired to impose a firearm’s enhancement. State v. Faust, 93 Wn. App. 373, 380, 967 P.2d 1284 (1998).

At the time he entered his plea, Farron told the court that he had taken two rifles from one of the residences he burglarized. Farron did not then, and does not now on appeal, contest that the stolen rifles were real guns. His admission, therefore, was a sufficient basis for the trial court to accept his plea.

Similarly, the record contains adequate evidence of the burglary charged in count two to support the trial court’s acceptance of Farron’s plea to this count.[2] Farron argues that the State’s evidence did not establish that he had entered or remained unlawfully in the home that was the subject of this count. However, the affidavit of probable cause indicates that Farron entered the residence. Since the State made the affidavit part of the record prior to the change of plea hearing, it was sufficient to substantiate Farron’s plea. Osborne, 102 Wn.2d at 95; State v. Arnold, 81 Wn. App. 379, 383-84, 914 P.2d 762 (1996). Moreover, Farron admitted in the statement on plea of guilty that he entered all three residences the State accused him of burglarizing. See State v. Norval, 35 Wn. App. 775, 781, 669 P.2d 1264 (1983).

Farron also claims that he made his plea under duress. Coercion may render a plea involuntary, but the burden is on the defendant to establish that the coercion existed. State v. Frederick, 100 Wn.2d 550, 556, 674 P.2d 136 (1983), rev’d on other grounds, Thompson v. State, Dept. of Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999). In addition, where a defendant completes a plea statement and admits to reading, understanding, and signing it, he must overcome a strong presumption that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810
(1998). When the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable. State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708
(1982). Farron’s bare assertions that the State took advantage of his dyslexia and his toothache do not overcome this presumption. The trial court thoroughly inquired of Farron whether his plea was voluntary. Farron confirmed that no one had attempted to coerce him into entering the plea and that he had satisfactory time in which to consider his decision to plead guilty. He specifically noted that his dyslexia had not interfered with him understanding the plea agreement. Under these circumstances, Farron’s plea was voluntary.

Next, Farron argues, and the State concedes, that the superior court lacked jurisdiction over count three of the information because he is Indian and the crime occurred on tribal land. The State admits that Farron is a member of the Squaxin tribe and that he was on tribal land when he committed the burglary. We accept the State’s declaration as sufficient to defeat state jurisdiction. See State v. Daniels, 104 Wn. App. 271, 16 P.3d 650 (2001). We vacate count three.

Farron contends counts one and four merge (burglary in the first degree and theft in the second degree) since they encompass the same criminal conduct. He is mistaken. Under the burglary anti-merger statute, RCW 9A.52.050, the sentencing court has the discretion `to punish for burglary, even where it and an additional crime encompass the same criminal conduct.’ State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996
(1992). Farron has not shown that the sentencing court abused its discretion in not merging the two crimes for purposes of calculating Farron’s offender score. Thus, we find no error.

Finally, Farron claims he received ineffective assistance of counsel due to his counsel’s alleged failure to inform him that he might face a five-year firearm enhancement as a consequence of his plea. The test for ineffective assistance of counsel is whether (1) the defense counsel’s performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In the context of a guilty plea, the defendant must show that his counsel failed to `actually and substantially [assist] his client in deciding whether to plead guilty,’ and that but for counsel’s failure to adequately advise him, he would not have pleaded guilty. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999) (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981)). This court adopts a strong presumption that counsel’s performance is within the broad range of reasonable professional assistance. McCollum, 88 Wn. App. at 982.

Farron has not shown that his appointed attorney did not provide effective assistance. He merely contends that his counsel’s performance was deficient for the reasons argued in his previous assignments of error.

Since all but one of these assignments of errors lack merit, and we have vacated Farron’s conviction on the third count, Farron has failed to establish the second prong of the Strickland test. Any failure by Farron’s counsel to address these issues did not prejudice Farron. In fact, the record reveals that Farron’s counsel did address several of these issues.

At sentencing, trial counsel argued that the State’s information was defective and that two of the charged crimes encompassed the same criminal conduct. The failure of Farron’s counsel to persuade the court of its viewpoint does not render the counsel’s performance deficient. Moreover, the record also shows that trial counsel assisted Farron in deciding to plead guilty. Farron informed the court that he had talked the plea over with his attorney and had no desire to speak with him further, and that his attorney explained his plea statement as they went through it together. Farron has not provided this court with any evidence indicating that during these discussions his attorney failed to adequately inform him of the possibility that the court might impose a five-year firearm enhancement. His attorney’s statements to the court at the change of plea hearing show that the attorney was aware of the possibility; he argued that a firearms enhancement was inapplicable. Thus, even if Farron’s counsel failed to inform him of the possibility of the court imposing the five-year enhancement, Farron could not have been prejudiced by this failure. As already noted, Farron was adequately informed of the risk of this result by his counsel’s arguments and his statement on plea of guilty. See State v. Stephan, 35 Wn. App. 889, 895, 671 P.2d 780 (1983). We find no basis for Farron’s claim of ineffective assistance.

We vacate the conviction of count three, residential burglary. We affirm in all other respects. We remand for resentencing consistent with this opinion.

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: SEINFELD, J., QUINN-BRINTNALL, J.