STATE v. SANCHEZ, 149 Wn. App. 1040 (2009)

No. 37116-2-II; 37296-7-II.The Court of Appeals of Washington, Division Two.
March 31, 2009.

Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-04530-2, Rosanne Buckner, J., entered November 21, 2007, together with a petition for relief from personal restraint.

Judgment affirmed and petition denied
by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.

UNPUBLISHED OPINION
PENOYAR, A.C.J.

David Sanchez appeals his first degree burglary conviction, seeking to withdraw his guilty plea. He contends that his plea statement did not list all the crime elements, and thus his plea was not knowing, intelligent, and voluntary.[1] The State concedes error, but we find that the error does not invalidate the plea. We affirm the convictions and sentence.

FACTS
The State charged Sanchez with one count of first degree burglary, four counts of second degree assault, and four counts of felony harassment. The charges were based on his conduct on September 24, 2006, while he was spending the night at Heather Farmer’s residence. There were two women and two men present in addition to Sanchez and Farmer. During the course of the evening, Sanchez became intoxicated and made sexual overtures to Farmer and another woman. He persisted in this conduct, even though he was rebuffed, and came upstairs when they wanted to go to bed. Farmer told him to remain downstairs where his cousin was sleeping. He came back upstairs shortly thereafter and was again told to stay downstairs. At that point, the people sleeping upstairs gathered in the master bedroom and locked the door.

Farmer and the other two women testified that sometime in the early morning, Sanchez climbed through the master bathroom window and entered the locked bedroom. He was holding four knives, and he paced around the room, yelling repeatedly that he was going to “slit [their] throats out and eat it or cut their guts out and eat it.” Report of Proceedings (RP) at 135.

Ultimately, Sanchez permitted one woman to leave the bedroom, and she ran to a neighbor’s house and summoned the police. The officers who responded said the women were all crying and upset. The three women, too, testified that they were in a panic in the bedroom, believing they were going to be killed or raped.

After the first day of trial, Sanchez called his attorney and told her that he wanted to plead guilty. The State agreed to drop the harassment charges and one count of assault, and Sanchez pleaded guilty to the remaining charges (one count of first degree burglary and three counts of second degree assault). His plea statement defined the first degree burglary elements as:

in WA did enter and remain unlawfully in a building while armed [with a] deadly weapon.

Clerk’s Papers (CP) at 23.

His statement describing his conduct said:

On 9/24/06 in Pierce County WA I did unlawfully enter [and] remain in a building located at 10509 141st Street Court East while armed with a deadly weapon. On this same date [and] location I did also unlawfully [and] intentionally assault Heather Farmer, Cheyenne Marcellay [and] Bryson Janson [and] Danyal Best with a deadly weapon.

CP at 30.

ANALYSIS
One of the essential elements of first degree burglary is the intent to commit a crime against a person or property in the building entered. RCW 9A.52.020. That element was not included in Sanchez’s plea statement. The prosecutor noticed the error during the plea hearing and made Sanchez aware of the additional element. The trial court observed that there had been testimony to support that element, but did not discuss it further with Sanchez. Sanchez claims that there is therefore insufficient proof that he understood the nature of the charge and how it related to his conduct.

If a defendant does not know all of the elements of the offense and understand that his conduct satisfies those elements, his plea is not knowing, intelligent, and voluntary. State v. R.L.D., 132 Wn. App. 699, 705, 133 P.3d 505 (2006). An involuntary plea constitutes a manifest injustice, and the court must permit the defendant to withdraw it. CrR 4.2(d). It is the defendant’s burden to demonstrate a manifest injustice State v. Turley, 149 Wn.2d 395, 398, 69 P.3d 338
(2003).

The plea statement should certainly contain all of the elements of the crimes charged. However, the omission is not necessarily reversible error. If the information under which the defendant pleads guilty states all of the elements, and the defendant acknowledges that he received a copy of the information, he has been informed of the elements. In re the Pers. Restraint of Keene, 95 Wn.2d 203, 208-09, 622 P.2d 360 (1980). The third amended information included the intent element. Sanchez acknowledged in his plea statement and in court that he received a copy of the information. Defense counsel told the court that she explained the elements of the charges to him.

Sanchez was adequately informed about the elements of the crime. The trial court was not required to further confirm that he understood how his conduct satisfied those elements. See State v. Codiga, 162 Wn.2d 912, 923-24, 175 P.3d 1082
(2008) (citing Keene, 95 Wn.2d at 207).

We also note that the circumstances overwhelmingly demonstrate that Sanchez understood the relationship of his conduct to the elements of the crime. He decided to plead guilty after he heard the testimony provided on the first day of trial, and he stipulated to the trial court’s consideration of that evidence. It showed that he entered the bedroom carrying several knives, which he used to frighten the victims. He admitted that the assaults were intentional. He has not demonstrated a manifest injustice. State v. Codiga, 162 Wn.2d at 924.

Sanchez raises a number of other issues in his statement of additional grounds for review (SAG) and personal restraint petition. Because he entered valid guilty pleas to the crimes, he waived objections to the time of trial, and the sufficiency of the evidence. State v. Carrier, 36 Wn. App. 755, 756-57, 677 P.2d 768 (1984); State v. Wilson, 25 Wn. App. 891, 894-95, 611 P.2d 1312 (1980).

Sanchez claims that he was not effectively represented by counsel below, asserting that she asked for too many continuances, never “prepped” him for trial, lied to him, “inflicted fear upon [him]”, did not call a witness he wanted to call, and did not file any of the motions he asked for. Personal Restraint Petition at 3. In order to prevail on a claim of ineffective assistance, a defendant must show both deficient performance and prejudice. In Re Pers. Restraint of Davis, 152 Wn.2d 647, 672-73, 101 P.3d 1 (2004). In the plea bargaining context, effective assistance requires that counsel “actually and substantially [assist] [the defendant] in deciding whether to plead guilty.” State v. James, 48 Wn. App. 353, 362, 739 P.2d 1161 (1987) (quoting State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984)).

Sanchez’s claim is based on bare allegations, without any explanation, and he does not indicate how counsel’s actions affected his decision to plead guilty. The record indicates that there was more than enough evidence to convict him of a fourth count of second degree assault, increasing his standard range and adding another 12 months of enhancement time to his sentence. Thus, it appears that trial counsel’s negotiations with the State were a benefit to him. He has shown no prejudice resulting from his counsel’s performance. This claim therefore fails.

Finally, Sanchez challenges his sentence, asserting that it was too much time for his crimes, considering that no one was hurt. He also contends that the sentencing court erred in failing to find that all of the crimes constituted the same criminal conduct. These claims are meritless.

The trial court imposed standard range sentences, totaling 66 months. Sanchez’s use of knives required four consecutive deadly weapon enhancements, 24 months for the burglary and 12 months each for the assaults, adding another 60 months (mandatory, or “flat” time), for a total of 126 months. There are no grounds here for a mitigated sentence. Sanchez’s reliance on the lack of physical harm does not count for very much, given the testimony of the victims’ terror. As to the second argument, the crimes could not be treated as the same criminal conduct because they involved different victims State v. King, 113 Wn. App. 243, 294-95, 54 P.3d 1218
(2002), review denied, 149 Wn.2d 1013 and 1015 (2003) State v. Davis, 90 Wn. App. 776, 782, 954 P.2d 325
(1998).

Sanchez has demonstrated no reversible error. We affirm the convictions 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. and QUINN-BRINTNALL, J., concur.