STATE v. TURLEY, 26756-0-II (Wash.App. 2-20-2002)

No. 26756-0-II.The Court of Appeals of Washington, Division Two.
Filed: February 20, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Clark County, No. 97-1-00580-9, Hon. James D. Ladley, November 30, 2000, Judgment or order under review.

Counsel for Appellant(s), Suzan L. Clark, Attorney At Law, 1014 Franklin St Ste 214, Vancouver, WA 98660.

Counsel for Respondent(s), Robert W. Shannon, Clark Co Prosecutors Offc, 1200 Franklin, Vancouver, WA 98668.

QUINN-BRINTNALL, J.

Daniel Clayton Turley, Jr. appeals the trial court’s denial of his motion to withdraw his guilty plea. After he pleaded guilty and was sentenced on the crimes of first degree escape and conspiracy to manufacture a controlled substance, on the State’s motion, the court corrected the judgment by adding a mandatory one-year term of community placement. Turley then moved to withdraw his plea of guilty, claiming that his plea was involuntary because he was not properly informed about the community placement. The trial court, finding that community placement only affected the sentence for the conspiracy offense, allowed him to withdraw his guilty plea as to that count, but denied his motion on the escape count. Finding that the court did not abuse its discretion, we affirm.

Facts
On April 16, 1997, while detained at the Larch Corrections Center, Turley escaped from custody. Two days later, the State charged him with first degree escape.

On August 20, 1997, the State filed an amended information and added a second count of conspiracy to manufacture a controlled substance, methamphetamine, alleged to have occurred on June 12, 1997.

At the plea hearing held on August 20, Turley pleaded guilty to both counts as charged in the amended information. In the plea colloquy, the court reviewed with Turley the maximum penalties and the presumptive sentences for both counts. On the escape count, the presumptive range was 63 to 84 months based on Turley’s offender score of nine. The conspiracy, an unranked offense, had a presumptive sentence of 0 to 12 months. Neither the court’s advisement or the written plea statement mentioned community placement. The State recommended 74 months’ confinement. The court sentenced Turley to 72 months’ confinement for the escape and 12 months’ confinement for the conspiracy, and ordered the sentences to run concurrently.

In April 2000, the State discovered that community placement was required for the conspiracy offense and moved under CrR 7.8(a) to correct the judgment. At the motion hearing held May 8, 2000, Turley, pro se, stated that he had not been aware of the community placement requirement but did not object to the court adding it to his sentence. On the same day, the court entered a written order granting the State’s motion and added one year of community placement to Turley’s sentence.

In September 2000, Turley moved under CrR 4.2(f) to withdraw his guilty plea. He claimed that his plea was involuntary because he had not been informed about mandatory community placement before he entered his plea. At the hearing on this motion, the State agreed that Turley did not receive proper advisement regarding community placement but argued that he was only entitled to withdraw his plea on the conspiracy count because that was the only offense for which community placement was mandated. The court found that because community placement was not required for the escape count, the lack of advisement did not affect Turley’s plea on that count. It permitted Turley to withdraw his plea on the conspiracy count, but denied his motion as to the escape count. Turley now appeals.

Analysis
Turley claims that the court erred by not allowing him to withdraw his guilty plea to the escape charge. We review a trial court’s decision on a motion to withdraw a guilty plea for abuse of discretion. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). Abuse of discretion occurs when the court bases its decision on clearly untenable or manifestly unreasonable grounds. State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312
(1966). To warrant plea withdrawal under CrR 4.2(f), Turley must show that it is necessary to correct a manifest injustice. CrR 4.2(f); State v. Oseguera Acevedo, 137 Wn.2d 179, 193, 970 P.2d 299 (1999); State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). A manifest injustice is one that is `obvious, directly observable, overt, not obscure’ and may arise where the plea is involuntary. Taylor, 83 Wn.2d at 596. A plea is involuntary when the defendant is not informed of the direct consequences of pleading guilty. State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353
(1980).

Mandatory community placement is a direct sentencing consequence of pleading guilty. State v. Ross, 129 Wn.2d 279, 284-87, 916 P.2d 405
(1996). In Ross, the court held that because the defendant was not advised of the community placement term before he pleaded guilty, he was not able to enter an intelligent, voluntary plea and, consequently, the trial court erred by denying his motion to withdraw. Ross, 129 Wn.2d at 288. Then, in Oseguera Acevedo, the Supreme Court clarified the Ross holding and held that community placement is not a direct consequence of pleading guilty absent evidence that community placement was material or relevant to the defendant’s plea decision. 137 Wn.2d at 194. There, because the defendant was an undocumented alien and deportation was expected upon completion of his prison term, the court concluded that community placement was not a direct consequence and, therefore, his plea was voluntary. Oseguera Acevedo, 137 Wn.2d at 198.

Similarly, in State v. Aaron, 95 Wn. App. 298, 974 P.2d 1284, review denied, 139 Wn.2d 1002 (1999), this court affirmed the denial of a guilty plea withdrawal motion where the defendant failed to show that community placement was a factor in his decision to plead guilty. Aaron, 95 Wn. App. at 304. Here, due to inadvertent error, Turley was not properly informed about community placement, which was required by former RCW 9.94A.120(9)(a) (1996) for the offense of conspiracy to manufacture a controlled substance.[1]

Further, undisputedly community placement was not required for the escape conviction. In allowing Turley to withdraw his guilty plea only as to the conspiracy count, the trial court reasoned that the community placement requirement only affected the sentence for the conspiracy count. Thus, it found that the lack of proper advisement was material only to his plea on that count. By its decision, the court impliedly found that community placement was not a direct consequence of Turley’s plea on the escape charge. As such, a manifest injustice did not exist on the escape conviction. The court’s reasoning was not `manifestly unreasonable’ and, thus, it did not abuse its discretion in granting Turley’s motion to withdraw his guilty plea only as to the conspiracy count.

Turley contends that the trial court should have permitted withdrawal of his pleas on both counts `because of the concurrent nature of the charges.’ Br. of Appellant at 5. This claim lacks merit. He fails to support his claim with any argument or citation to legal authority. RAP 10.3(a)(5).

Additionally, that the State charged both offenses in the same information and Turley pleaded guilty as part of a single plea agreement does not control the trial court’s analysis in determining the voluntariness of his plea as to each count. A plea is involuntary only when the defendant satisfies his burden of showing the omission or mistake affected his plea decision. See e.g., Oseguera Acevedo, 137 Wn.2d at 194-98; Aaron, 95 Wn. App. at 304.

Because Turley did not demonstrate that his plea to the escape charge was affected by the failure to warn him about the community placement, the court did not abuse its discretion in finding no manifest injustice on that count. Turley also contends that the court improperly elected the remedy rather than giving him the choice of remedy and cites State v. Miller, 110 Wn.2d 528, 756 P.2d 122 (1988).

Although Miller stands for the cited propositions that (1) the defendant must be given the initial choice of a remedy to specifically enforce the plea agreement or withdraw the plea, and (2) the State bears the burden of demonstrating that the defendant’s choice of remedy is unjust, Miller, 110 Wn.2d at 536, these principles apply only when the court has determined that manifest injustice exists. Here, as discussed above, the court only found a manifest injustice on the charge, the conspiracy count, affected by the community placement requirement. Thus, Turley’s choice of remedy was properly confined to the conspiracy count.

We also note that because the State had offered to strike the community placement requirement, Turley was in fact given the choices of withdrawing his plea on that count or specific performance on the original plea agreement. But he refused specific performance and chose instead to withdraw his plea. On this record, Turley fails to show that the one-year term of community placement required for the conspiracy conviction had any affect or was material to his decision to plead guilty to the escape charge.

Accordingly, we hold that the trial court did not abuse its discretion and affirm.

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.

WE CONCUR: HOUGHTON, J., ARMSTRONG, C.J.