Nos. 61074-1-I; 61075-9-I; 61076-7-I.The Court of Appeals of Washington, Division One.
January 26, 2009.
Appeals from a judgment of the Superior Court for King County, No. 07-1-02448-1, Laura C. Inveen, J., entered November 9, 2007.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION
PER CURIAM.
Joseph Mast pleaded guilty to three separate crimes under three different cause numbers. The trial court sentenced him accordingly. For the first time in this consolidated appeal, Mast contends that his convictions should be reversed, and the assorted causes remanded for him to withdraw his pleas, because the trial court neglected to initial and cross out some of the paragraphs dealing with community custody on the preprinted plea form used by Mast. According to Mast, this omission rendered all of his pleas involuntary. But Mast was repeatedly told prior to sentencing that no community custody would be imposed, and so was fully informed of the sentencing consequences of his pleas, notwithstanding the trial court’s oversights. Accordingly, Mast may not challenge the voluntariness of his pleas on that basis.
Mast also contends, however (and the State concedes), that remand is necessary for entry of an order correcting the length of a no-contact provision in one sentence that exceeds the statutory maximum sentence for the charged offense. We agree. Accordingly, we remand for entry of an order shortening the term of that no-contact order to a term not longer than the statutory maximum.
Finally, Mast contends that the trial court erred by imposing a no-contact order as a probationary condition of a misdemeanor judgment and sentence. Observing that the no-contact order will likely have no effect due to the separate no-contact order imposed pursuant to the felony charged under the same cause (the no-contact order which must be revised on remand), the State does not object to its being stricken. This concedes the remedy. Accordingly, the trial court should not reimpose any no-contact order as part of the misdemeanor sentence when it revises the judgment and sentence in the cause.
I
The State charged Mast with attempted theft in the first degree under King County Superior Court cause number 07-1-02416-2 KNT, theft in the second degree and theft in the third degree under cause number 07-1-02407-3 KNT, and residential burglary and possession of stolen property in the first degree under cause number 07-1-02448-1 KNT.
Mast pleaded guilty to all charges. He entered separate felony guilty pleas, based on separate plea agreements, for each of the separate cause numbers, as well as a guilty plea to the misdemeanor third degree theft charge in cause 07-1-02407-3 KNT.
The preprinted plea forms upon which the felony plea agreements were prepared each contained a subsection setting forth various potential options for community supervision, community placement, and community custody, none of which were applicable to Mast’s particular convictions. The subsections each also contained the following sentences, in brackets, following the two paragraphs describing the inapplicable community custody possibilities:
If not applicable, this paragraph should be stricken and initialed by the defendant and the judge ___ ___.
. . .
If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.
It is undisputed that, in the felony plea agreement for the second degree theft charge under cause number 07-1-02407-3 KNT, the paragraphs preceding these sentences were not crossed out and neither the trial court judge nor Mast initialed in the appropriate places. Moreover, neither the plea agreement in cause number 07-1-02416-2 KNT nor the agreement addressing the crimes charged under cause 07-1-02448-1 KNT was initialed on the paragraphs preceding the second above-quoted sentence.
The trial court accepted Mast’s pleas, finding that they were made knowingly, voluntarily, and intelligently.
Prior to sentencing, Mast moved to withdraw all his pleas to the felony charges (i.e., all charges except the third degree theft charge) pursuant to CrR 4.2(f). The reasons that he stated for seeking to withdraw his pleas had nothing whatsoever to do with either community custody or the plea forms. Finding “no manifest injustice based on involuntariness or ineffective assistance of counsel,” the trial court denied the motion.
The State’s sentencing recommendations did not include any reference to community custody being imposed upon Mast. At Mast’s sentencing hearing, prior to the entry of judgment on the various charges, the trial court asked counsel for the State whether community custody was applicable to any of the charges under the sentencing recommendations. The State responded: “No, there’s not community custody on any of these.” Neither Mast nor his counsel remarked in any way about community custody or omissions on the plea forms at any hearing prior to the entry of judgment on any of the causes.
The court then imposed concurrent, standard-range sentences on the various felony charges. As part of Mast’s sentence for theft in the second degree, the court specified that the offense’s maximum statutory term was “10 YRS AND/OR $20,000” and imposed a no-contact order for “the maximum term of 10 years.” As part of Mast’s misdemeanor sentence for theft in the third degree, the court imposed the maximum statutory term and no probation, but nonetheless checked the box for the no-contact provision.
Mast separately appealed each of the cause numbers. We consolidated the various appellate causes for purposes of this opinion.
II
The only contested argument that Mast raises on appeal is his assertion that the failure of the trial court to initial and strike the paragraphs in his preprinted plea forms addressing community custody rendered all of his pleas in the various causes involuntary. The State responds to this assertion by observing that Mast was repeatedly informed prior to sentencing that no community custody would be imposed in any of the causes and thus was correctly informed of the sentencing consequences of his pleas, notwithstanding the trial court’s oversights on the plea forms. According to the State, in light of this full disclosure, Mast’s guilty pleas were voluntary and he may not now move to withdraw his pleas on the basis that they were not. We agree.
Due process requires that a defendant’s guilty plea be made knowingly, voluntarily, and intelligently. State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006) (citing In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004)). “This standard is reflected in CrR 4.2(d), which mandates that the trial court `shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.'” Mendoza, 157 Wn.2d at 587. Under CrR 4.2, once a guilty plea is accepted, the court need not allow the defendant to withdraw the plea unless doing so is necessary “to correct a manifest injustice.” CrR 4.2(f). When the defendant’s plea was involuntarily made, the “manifest injustice” standard is met. Mendoza, 157 Wn.2d at 587 (citing State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996)). A defendant may challenge the voluntariness of a guilty plea when he or she was misinformed about the mandatory sentencing consequences of the plea. Mendoza, 157 Wn.2d at 587. Community custody constitutes such a sentencing consequence, and misinformation about mandatory community custody may render a plea involuntary and thus provide a basis to withdraw the plea. Mendoza, 157 Wn.2d at 588 (citing State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996)). Challenges to the voluntariness of a plea may be raised for the first time on appeal, because a defendant’s “misunderstanding of the sentencing consequences when pleading guilty constitutes a `”manifest error affecting a constitutional right.”‘” Mendoza, 157 Wn.2d at 589 (quoting State v. Walsh, 143 Wn.2d 1, 7-8, 17 P.3d 591 (2001) (quoting RAP 2.5(a)(3)).
Moreover, a defendant may move to withdraw a guilty plea on the basis of involuntariness regardless of whether he or she was misinformed that the stated sentence under the plea would be more rather than less severe than the appropriate sentence. Mendoza, 157 Wn.2d at 584. This is so because the court will not engage in an analysis that attempts to determine the actual, subjective risk management decisions that informed the defendant’s decision to plead guilty rather than face trial. Mendoza, 157 Wn.2d at 590. But the defendant must have actually been misinformed about the direct sentencing consequences of a guilty plea in order for the plea to have been involuntary. The State may defeat an appellate challenge to the voluntariness of a plea by showing that the defendant was in fact fully informed of the sentencing consequences of the plea during the period in which a motion to withdraw it could be made. Mendoza, 157 Wn.2d at 591 (“Absent a showing that the defendant was correctly informed of all of the direct consequences of his guilty plea, the defendant may move to withdraw the plea.”) (emphasis added).
Here, the State has demonstrated that any misapprehension that Mast might have been under regarding the community custody consequences of his pleas resulting from the court’s oversight on the plea forms — i.e., any potential misunderstanding that community custody might have been imposed upon him, when in fact community custody was inapplicable — was thoroughly dispelled both by the prosecution and by the court itself prior to Mast being sentenced. First, there was never any indication whatsoever that the State intended to seek community custody as part of any of Mast’s sentences. Indeed, the State’s sentencing recommendation forms, which were filed as attachments to Mast’s guilty pleas, show that community custody was not part of the plea agreements, because the relevant sections indicate that the imposition of community custody was not being sought by the State.
Second, and more critically, the record indicates that Mast was explicitly advised at sentencing that he would not be subject to community custody following his term of confinement. Mast then directly acknowledged this communication:
THE COURT: . . . And were there any community custody cases? Is there community custody on the residential burglary?
[THE STATE]: No, there’s not community custody on any of these.
THE COURT: Mr. Mast, when you’re released from prison you will not be under supervision, it will be completely up to you to do the right thing.
[MAST]: Yeah.
Following this discussion, neither Mast nor the attorney assigned to him specifically for the purpose of aiding him in seeking to withdraw his guilty pleas indicated in any way that the absence of community custody came as a surprise, or that the court’s oversights on the plea forms should provide an additional basis upon which to withdraw the pleas.[1]
In sum, the record establishes that, notwithstanding the trial court’s omissions on the plea forms, Mast was not in fact misinformed of the sentencing consequences of his pleas.
Moreover, even if the court’s omissions had together constituted a miscommunication of the sentencing consequences of Mast’s pleas (regardless of the subsequent clarifications), Mast’s failure to renew his motion to withdraw his pleas in light of the new information constituted waiver of the issue. When a defendant is informed at sentencing that the plea agreement states a harsher than appropriate sentencing consequence of the plea, and the defendant has the opportunity to withdraw the plea, “the defendant may waive the right to challenge the validity of the plea.” Mendoza, 157 Wn.2d at 591. Here, as in Mendoza, any confusion caused by misinformation in the plea forms was expressly clarified by the State and the court. 157 Wn.2d at 592. As in Mendoza, Mast did not object to the State’s lower sentencing recommendation. 157 Wn.2d at 592. And, as in Mendoza, although Mast “sought to withdraw his plea for other reasons, he did not mention” the corrected sentencing consequences of the plea as one of the reasons. 157 Wn.2d at 592. Accordingly, pursuant to the holding in Mendoza, Mast has waived any appellate challenge to the voluntariness of his pleas on the basis of the trial court’s omissions in the plea forms. 157 Wn.2d at 592.
III
Mast next contends, and the State agrees, that a no-contact order was imposed as part of Mast’s sentence in cause 07-1-02407-3 KNT that exceeded the statutory maximum sentence for the felony charged under that cause. We agree as well, reverse Mast’s sentence solely with respect to the term of the no-contact order, and remand for imposition of a no-contact order that does not exceed the statutory maximum sentence.
Mast was convicted under cause 07-1-02407-3 KNT of theft in the second degree. Theft in the second degree is a class C felony, and thus a person who commits that offense may not be sentenced to a term of longer than five years. RCW 9A.56.040(2); RCW 9A.20.021(1)(c). Mast was ordered to have no contact with the Muckleshoot Casino “[f]or the maximum term of 10 years” as part of his sentence in cause 07-1-02407-3 KNT. Because the maximum term of any sentence condition may not exceed the statutory maximum sentence, this was error. We reverse Mast’s sentence solely as to this error, and remand for entry of an order reducing the term of Mast’s no-contact order to a period not exceeding the statutory maximum sentence.
IV
Mast next contends that the trial court erred by imposing a no-contact order as part of his conviction for theft in the third degree under cause 07-1-02407-3 KNT. The State maintains that no error was made, but correctly observes that this no-contact order has no practical effect whatsoever, given that a longer no-contact order was imposed pursuant to the felony conviction under the same cause. Accordingly, the State does not object to the trial court striking the no-contact provision of the third degree theft sentence on remand, conceding the remedy if not the issue. This being the case, the trial court should not reimpose the no-contact order on the misdemeanor conviction when it revises the judgment and sentence in cause 07-1-02407-3 KNT on remand.
Affirmed in part, reversed in part, and remanded.