STATE v. LINDAHL, 144 Wn. App. 1027 (2008)

No. 35845-0-II.The Court of Appeals of Washington, Division Two.
May 6, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 00-1-04870-1, Stephanie A. Arend, J., entered January 26, 2007.

Affirmed
by unpublished opinion per Hunt, J., concurred in by Bridgewater and Armstrong, JJ.

HUNT, P.J.

We previously granted Peter Lindahl’s personal restraint petition to vacate his conviction for second degree murder under In re Personal Restraint of Andress, and In re Personal Restraint of Hinton. 147 Wn.2d 602, 604, 56 P.3d 981 (2002); 152 Wn.2d 853, 857-58, 861, 100 P.3d 801 (2004). He now appeals the trial court’s orders vacating his sentence and withdrawing his guilty plea on remand, arguing that he is entitled to specific performance of his original plea agreement with the State. As conceded by Lindahl, we hold that State v. Yates, 161 Wn.2d 714, 739, 168 P.3d 359 (2007), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Mar. 20, 2008) (No. 07-10069), and State v. Tarrer, 140 Wn. App. 166, 169, 165 P.3d 35 (2007) control.

We affirm.

FACTS
In 2001, Peter Lindahl pleaded guilty to amended charges of second degree felony murder predicated on second degree assault under former RCW 9A.32.050(1)(b) (1976), [1] and the State recommended a standard range sentence. On August 8, 2001, the trial court sentenced him to an exceptional sentence of 330 months’ imprisonment. We affirmed his judgment and sentence on direct appeal. State v. Lindahl, 114 Wn. App. 1, 19, 56 P.3d 589 (2002), review denied, 149 Wn.2d 1013 (2003).

Lindahl then filed a personal restraint petition seeking vacation of his second degree felony murder conviction. He based his request o Andress, which held that the trial court may not base a second degree felony murder conviction on a second degree assault predicate, an Hinton, a decision filed after Lindahl’s direct appeal that held Andress
applied retroactively. 147 Wn.2d at 604; 152 Wn.2d at 861. Accepting the State’s concession that his second degree felony murder conviction must be vacated, we granted his petition.

The trial court vacated Lindahl’s conviction and sentence, withdrew Lindahl’s guilty plea, and allowed the State to withdraw its 2001 second and third amended charging information. Lindahl’s counsel signed these orders without objection. Nevertheless, eight months later, Lindahl asked the trial court for specific enforcement of his 2001 plea agreement with the State, which the trial court denied.

After a trial on stipulated facts, the trial court found Lindahl guilty of intentional second degree murder. It also found two aggravating circumstances?that the offense was a domestic violence offense and that it occurred within the sight or sound of Wolf and Lindahl’s minor child. The trial court sentenced Lindahl to an exceptional sentence of 330 months confinement, the same term as his original 2001 sentence.[2]

ANALYSIS
Lindahl appeals, arguing that the trial court: (1) erred in failing to allow him to choose whether to withdraw or to seek specific enforcement of his 2001 plea agreement with the State and (2) erred in allowing the State to bring him to trial under the original information, which, he further claims, should have been equitably estopped. These arguments fail.

At oral argument, Lindahl’s counsel conceded that one Supreme Court opinion issued after he filed his appellate brief, and one of our recent opinions, filed one-day prior to him filing his appellate brief, are controlling and negate his appellate arguments: Yates, 161 Wn.2d at 739
(“case law and public policy foreclose a defendant’s use of equitable estoppel to alter the outcome of the plea-bargaining process”); an Tarrer, 140 Wn. App. at 169 (“to vacate a conviction based on a guilty plea necessarily requires that the plea also be withdrawn”).[3]
Agreeing, we affirm Lindahl’s conviction and sentence.

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.

BRIDGEWATER, J., ARMSTRONG, J., concur.