No. 47834-6-IThe Court of Appeals of Washington, Division One.
Filed: April 8, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 001069797, Hon. Jeffrey M. Ramsdell, November 29, 2000, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
David L. Donnan, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Ian M. Goodhew, King County Pros Office, 516 3rd Ave, Seattle, WA 98104.
PER CURIAM
Roxane Roberts appeals the trial court’s denial of her motion to withdraw her guilty plea. She contends further investigation into her competency to enter her Alford plea was required. Since no legitimate concerns were raised regarding her competency, the trial court did not abuse its discretion in denying her motion to withdraw. Additionally, the trial court correctly calculated Roberts’ offender score under RCW 9.94A.360(6) under our prior holding in State v. Howell, 102 Wn. App. 288, 6 P.3d 1201 (2000). We affirm.
FACTS
On August 10, 2000, Roxane Roberts pled guilty by way of an Alford plea to solicitation to distribute cocaine. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Roberts was represented by her attorney, Randall Hall. Hall asked the court to delay sentencing based on “health-related concerns.” Before accepting the plea, the court asked the prosecution to review the plea with Roberts to ensure that she understood. The following is part of the discussion that ensued: Ms. Herrman: You have been charged, by Amended Information, with one count of solicitation of delivery of cocaine. If this case were to proceed to trial, the State would have to prove that on July 1st, 2000, with the intent to promote solicitation of cocaine, you offered or gave something of value to another to engage in specific conduct that constituted delivery of cocaine, or at least established complicity of the other person in the commission or attempted commission had the delivery been . . .
Ms. Herrman: Pardon?
[Roberts]: Yes, ma’am. I gave my heart and help.Ms. Herrman: Could you repeat that?
[Roberts]: I said I gave something of value, yes, ma’am, I gave my heart and help.Ms. Herrman: But do you understand that the State has to prove all these elements at a trial?
[Roberts]: Yes, I do. I am telling you that because of the preponderance of evidence that you could present, be it false or otherwise, I don’t feel I can win an acquittal, so I am pleading guilty, according to the stipulations of the offer by the state of Washington.Roberts then asked for clarification from the court: The Court: The judge has the correct standard range in mind, then any sentence within that standard range would not be assailable, or you could attack that.
[Roberts]: The reason I mentioned that there is, she said there is no way of appealing the sentence, but there is a dispute about the range.The Court: That’s correct.
[Roberts]: That’s all I was trying to clarify. It’s already clear for me.The Court: If there was agreement as to your standard range and the court sentenced you within that agreed standard range, then that would not be appealable.
[Roberts]: I understand that, but as the prosecutor stated, there is a dispute, therefore, I related — I don’t know if she — there is a —The Court: You obviously understand this whole thing, ma’am.
[Roberts]: Yes, sir, I do after 16 and a half years in law school.The court further asked Roberts whether she had reviewed the plea form with her attorney. Roberts replied that they had reviewed it for “three hours yesterday.” In accepting Roberts’ plea, the court found the following: I’ll accept the plea as knowing, intelligent and voluntary, with a full understanding of the consequences of the plea. . . . I will also note for the record that it’s very clear to me that Miss Roberts has a firm grasp of exactly what’s going on here today and some of the subtleties of an appeal and what’s appealable and what isn’t appealable, and so forth, so I am very confident that she understands her rights and the rights that she is giving up.
Hall then reiterated Roberts’ request to delay sentencing. Roberts explained:
Your Honor, I have been faced with possible cervical cancer for two years. The last diagnostic test will be the 18th to determine the phase it’s in. I also have an ovarian cyst and fibroids and gall bladder disease, and I am sure I can take care of all of it, or at least what has to be done within 30 days.
The court delayed sentencing until September 11, 2000. On September 11, 2000, before the Honorable Helen Halpert, Roberts made a motion to withdraw her plea. Roberts explained:
Your Honor, I am asking to withdraw my Alford plea and I am asking to put this on the trial calendar, because I am very sick. I was concerned about my health, I was concerned about the most expedient way to get back to New York, my home, and unfortunately I was going to do the wrong thing to do it, and that was to use an Alford plea to get out of here quicker than fighting — fighting failing health and lose more time before I get home instead of — I still believe in doing it the right way and I didn’t do it and I am not going to say I did just to get back to New York in six, eight, eleven, or twenty-one months.
The court then addressed Hall asking whether there were any legal grounds on which Roberts wished to withdraw her plea. Hall responded, “Well, she has raised some concerns about whether she fully understood the plea at the time it was entered.” Roberts responded, “I understood it, I put it in, and I just explained why. My health and that is recorded when I made the plea, cancer, fibroid cysts, filing gall bladder. But other than that, that is going to be secondary.” Judge Halpert transferred the motion back to Judge Ramsdell, the original judge who accepted Roberts’ plea. On October 16, 2000, before Judge Ramsdell, Roberts moved to withdraw her plea and to proceed pro se. Roberts explained:
Unlike the 10th of August, I was very unlike the shambles of myself at the September 11th appearance for sentencing before a judicial member, whose decorum was careless and unprofessional.
At this time I would like to do two things, one, to formally withdraw my inference of complicity through and Alford plea; and, two, explain why. I gave my plea in a weakened condition and confused state, hoping to expedite my return to New York and leave Washington State as soon as possible, given the sentence recommendation if I were to do so.
Judge Ramsdell then discussed the implications of proceeding pro se with Roberts. He then granted her motion to proceed pro se and asked Roberts to explain why she wished to withdraw her plea. Roberts explained, “I gave it because I have grave health concerns, sir. That’s why I ask you to please set it off to the last possible time, the commencement of my trial.” Still confused by the argument Roberts was making, Judge Ramsdell clarified, “Okay. You are not saying that anybody threatened you or coerced you or forced you to enter that plea, are you?” Roberts responded, “No, I am saying the promise was great and I jumped at it.”
The court informed Roberts that she had not established a legal basis for her motion. Rather, as she had indicated herself, she took the plea because it was a good deal. Roberts retorted, “Not because it was good, because it was six months and not five years, and because I was sick, and the 20 days in jail my medication was withheld and I wasn’t in a state of mind where I could exonerate myself.” The discussion continued: The Court: But the bottom line is, you understood that you had two choices, one was this and the other was that, and —
[Roberts]: I didn’t feel I had two choices, I felt it was something I had to do because I am dying.The Court: Okay. And I hope that’s not the case, but we talked about that at the time of your —
[Roberts]: Well, I didn’t do this crime.The Court: Okay, I understand.
[Roberts]: And I don’t know if I say okay, I did it, and then I take my medication, I get enough medical help to feel good, to reintegrate mentally and then feel the strength where I can stand up regardless of what the threat is and prove to you that this is not the situation with this crime.The Court: Well, Ms. Roberts, feeling —
[Roberts]: I feel I should be able to withdraw.The Court: I understand that, and I deny the motion to withdraw the plea . . . .
After the court transferred Roberts’ case for sentencing, Roberts argued, “How in the world can you tell me I am guilty? I am telling you I am not. You held me 20 days and took away my medication I have taken for 19 years.” Roberts then continued to assert her innocence. The court then responded, “Ms. Roberts, I have ruled on this, and anything more from you is going to invite me to find you in contempt, and I don’t want to do that okay.” Judge Halpert sentenced Roberts under an offender score of four-one point from a prior drug possession and three points from a prior drug delivery. The court sentenced Roberts to 30.75 months, the bottom of the standard range. Roberts timely appealed.
ANALYSIS I. Withdrawal of Plea
Roberts argues on appeal that the trial court erred when it failed to investigate her claim that she was incompetent at the time she entered her Alford plea. We review a trial court’s denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966). A trial court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds. Olmsted, 70 Wn.2d at 119. Leave should be granted to withdraw a plea, however, “whenever it appears that the withdrawal is necessary to correct a manifest injustice.” CrR 4.2(f). Manifest injustice occurs when “(1) the plea was not ratified by the defendant; (2) plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept.” State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001). A defendant’s claim that she was not competent to enter her plea is equivalent to claiming the plea was not voluntary. Marshall, 144 Wn.2d at 281.
Whether a person is competent is a mixed question of law and fact Marshall, 144 Wn.2d at 281. “In such a situation, we independently apply the law to the facts.” Marshall, 144 Wn.2d at 281. In Washington, “[n]o incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.” RCW 10.77.050. “Incompetency” exists where a person “lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.” RCW 10.77.010(14). “[W]here there is reason to doubt a defendant’s competency the trial court must appoint experts and order a formal competency hearing.” Marshall, 144 Wn.2d at 278. These procedures are required “whenever a legitimate question of competency arises.” Marshall, 144 Wn.2d at 279.
The question before us is whether there was a ‘legitimate question of competency’ raised to the trial court. Marshall, 144 Wn.2d at 229. In accepting a guilty plea, the trial judge is vested with broad discretion in judging the defendant’s mental competency. State v. Osborne, 102 Wn.2d 87, 98, 684 P.2d 683 (1984). The court may base its determination on several factors including the defendant’s appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports, and the statements of counsel. Osborne, 102 Wn.2d at 98.
Roberts asserts that her somewhat indirect or confused answers throughout the proceedings and that her claim that she was denied medication for 20 days prior to entering the plea raised legitimate concerns as to her competency. Although the trial court did not conduct the investigation contemplated in Marshall, it was presented with no legitimate concern for Roberts’ competency to enter the plea. The record indicates that Roberts was more than competent in understanding the nature of the proceedings against her and in assisting in her own defense. For example, during the plea hearing she clarified the rules regarding the appealability of her sentence if her offender score was miscalculated. Arguably this is a more difficult issue to understand than whether she wants to accept a plea of guilty. Roberts further stated that she had legal training and had represented herself in the past. Roberts even admitted to the trial court that she accepted the plea ‘to get out of here quicker than fighting’ and ‘hoping to expedite my return to New York and leave Washington State as soon as possible, given the sentence recommendation if I were to do so.’ The trial court did not abuse its discretion in concluding that Roberts was competent to enter an Alford plea.
II. Offender Score
Roberts argues that the trial court miscalculated her offender score at the time of sentencing. She asserts that the triple scoring effect of RCW 9.94A.360(6), when read in conjunction with RCW 9.94A.360(12), and In re Hopkins, 137 Wn.2d 897, 976 P.2d 616 (1999), does not apply to convictions for solicitation of delivery of cocaine. “The question of whether a sentencing court has miscalculated the defendant’s offender score is a question of law that is reviewed de novo.” State v. Howell, 102 Wn. App. 288, 292, 6 P.3d 1201 (2000).
As recognized in Howell:
RCW 9.94A.360 contains the rules for calculating a defendant’s offender score. Where the present conviction “is for a drug offense count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense.” RCW 9.94A.360(12). Where the present conviction “is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense.” RCW 9.94A.360(6). Where the prior offenses are prior convictions for felony anticipatory offenses (attempts, criminal solicitation, and criminal conspiracies), they are scored the same as if they were convictions for completed offenses. RCW 9.94A.360(4).
102 Wn. App. at 292.
Roberts’ argument has been considered and rejected by this court in Howell. In Howell, the defendant pled guilty to one count of solicitation of delivery of cocaine. 102 Wn. App. at 288. Howell argued that her adult prior felony drug offense should be scored as a one, not a three, based on a perceived conflict between RCW 9.94A.360(6) and RCW 9.94A.360(12) and the holding of In re Hopkins, 137 Wn.2d 897, 976 P.2d 616
(1999). The Hopkins court held that for the purposes of the drug doubling statute, RCW 69.50.408(a), a conviction for solicitation of delivery of cocaine was not a “drug offense” under RCW 69.50. Hopkins, 137 Wn.2d at 901. Howell argued that if a solicitation conviction was not a “drug offense” under RCW 69.50, then it was not a “drug offense” under RCW 9.94A.360(12) for the purpose of triple scoring a prior drug offense. Howell asked the court to declare RCW 9.94A.360(6) ambiguous because of this conflict with RCW 9.94A.360(12) in light of the Hopkins ruling. Howell, 102 Wn. App. at 293.
The court found the Hopkins ruling inapplicable to the issue at hand Howell, 102 Wn. App. at 294. The court distinguished Hopkins based on the fact that the Hopkins court never addressed the effect of RCW 9.94A.360(6). Howell, 102 Wn. App. at 294. The court rejected the defendant’s assertion that the language of RCW 9.94A.360(6) was ambiguous when read in conjunction with RCW 9.94A.360(12). The court, relying o State v. Becker, 59 Wn. App. 848, 801 P.2d 1015 (1990), held that the two statutes did not conflict and treated the anticipatory crime as a completed offense. Howell, 102 Wn. App. at 295.
The trial court calculated Roberts’ offender score as a four based in part on her prior conviction for delivery of cocaine. The court scored the conviction as a three based on the tripling effect of RCW 9.94A.360(12) after applying RCW 9.94A.360(6) in line with the holding of Howell. The trial court properly calculated Roberts’ offender score.
Accordingly, we affirm.
FOR THE COURT:
The true and correct spelling, “Roxane,” will be used in this opinion.