No. 34389-4-II.The Court of Appeals of Washington, Division Two.
May 1, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02201-1, Ronald E. Culpepper, J., entered January 27, 2006.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
QUINN-BRINTNALL, J.
Daniel Silva entered a plea agreement containing contradictory information about his maximum possible sentence. In a nine-count amended information, the State charged Silva with crimes committed against his girl friend, including residential burglary while armed with a deadly weapon, attempted second degree assault, unlawful imprisonment, tampering with a witness, and felony harassment. The nine counts included three counts of felony violation of a protective court order.
In the portion of Silva’s plea agreement relating to the three counts of felony violation of a protective court order, three paragraphs list the standard range sentence as 0 to 12 months with a 12-month and $5,000 maximum penalty, while a table of penalties sets out the standard range as 60 months with a five-year and $10,000 maximum penalty. The trial court repeated the erroneous information by telling Silva that his possible range was 0 to 12 months, but the court also told him that he faced felony charges, which would have carried the higher penalty listed on the plea agreement. Silva timely moved to withdraw his plea, but the trial court denied his motion and sentenced him to 51 months for each of the disputed counts. Silva argues that: (1) his guilty plea was involuntary because he did not know the maximum sentence for violating a protective order; (2) he was denied the assistance of counsel during the hearing on his motion to withdraw; and (3) his guilty plea should be withdrawn because he did not receive effective assistance of counsel when entering it. We reverse.
ANALYSIS
Standard Of Review
Due process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent. 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.” Under this rule, once a guilty plea is accepted, the court must allow withdrawal of the plea only “to correct a manifest injustice.” CrR 4.2(f). Among other reasons, manifest injustice occurs if the plea was involuntary or the defendant was denied effective counsel Mendoza, 157 Wn.2d at 587 (citing State v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996)). We review conclusions of law, such as the voluntariness of a plea, de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004)).
Voluntariness
Silva argues that his plea was involuntary because he was misadvised about the standard sentencing range for three counts of violation of a court order. The appellate record contains ample evidence supporting Silva’s claim.
The plea agreement contains two different sets of penalties for the same counts. One portion of the agreement said that the standard range sentence was 0 to 12 months with a 12-month and $5,000 maximum penalty, while another portion stated that the standard range is 60 months with a five-year and $10,000 maximum penalty. The correct penalty, the later information, was written in one place after the incorrect information was crossed out. Although Silva initialed one change in the plea agreement, neither Silva, his attorney, nor the prosecutor initialed the changes at issue. Further, before the trial court accepted Silva’s plea, it said, “[A] violation of the protection order is at 12 months,” and Silva’s attorney replied, “Yes.” Report of Proceedings (Oct. 5, 2005) at 10. But because this no contact violation was a felony, the correct standard range was 72-96 months, but RCW 9A.20.021 limits the maximum sentence for a class C felony to 5 years or 60 months. The error is manifest. Silva’s plea was involuntary. We reverse the trial court’s denial of Silva’s motion to withdraw his plea and remand to the trial court for further proceedings consistent with this opinion.[1]
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 VAN DEREN, A.C.J., concur.
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