In re the Personal Restraint of Murillo

134 Wash. App. 521
CourtCourt of Appeals of Washington
DecidedAugust 17, 2006
DocketNo. 24444-0-III
StatusPublished
Cited by2 cases

This text of 134 Wash. App. 521 (In re the Personal Restraint of Murillo) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Personal Restraint of Murillo, 134 Wash. App. 521 (Wash. Ct. App. 2006).

Opinion

Sv&eney, C.J.

¶1 RCW 9.94A.712 requires that a judge sentence a defendant convicted of first degree child molestation to the statutory maximum—life imprisonment. The sentencing court sets only a minimum term, within the standard range. RCW 9.94A.712. Ramon Murillo pleaded guilty to first degree child molestation. But the judge at the guilty plea hearing told him: “If you plead guilty to this charge, I will sentence you to prison and the range is 51 to 68 months. And I have to impose sentence within that range. I guess I can go low, but I cannot go above under the present law [referring to the holding in Blakely ,1 which had been filed less than six weeks prior to Mr. Murillo’s guilty .plea hearing]. You can probably expect a sentence within that range.” Pers. Restraint Pet. (Petition) Ex. H at 5. Mr. Murillo’s sentence reflected neither the statutory maximum—life—nor a minimum sentence. The judge imposed a determinate sentence of 5914 months. The Department of Corrections requested that the judgment be corrected to reflect the statutorily mandated life sentence. The judge then amended Mr. Murillo’s sentence and imposed life in prison with a statutory minimum of 5914 months.

¶2 The question before us is whether Mr. Murillo’s plea was knowingly and voluntarily entered. We conclude that it was not. We therefore grant his petition, vacate his sentence, and remand for further proceedings.

[525]*525FACTS

Guilty Plea Hearing

¶3 Mr. Murillo signed a “Statement of Defendant on Plea of Guilty to Sex Offense” (hereafter statement on plea of guilty). It included the following statement of his “Total Actual Confinement”—51-68 months:

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four of the statement on plea of guilty, the following language appears in preprinted format:

For sex offenses committed on or after September 1, 2001: (i) Sentencing under RCW 9.94A.712: If this offense is for any of the offenses listed in subsections (aa) or (bb), below, the judge will impose a maximum term of confinement consisting of the statutory maximum sentence of the offense and a minimum term of confinement either within the standard range for the offense or outside the standard range if an exceptional sentence is appropriate.

Response App. C at 4. These are mandatory provisions of RCW 9.94A.712.2

[526]*526¶4 At the guilty plea hearing, the judge told Mr. Murillo, “[i]f you plead guilty to this charge, I will sentence you to prison and the range is 51 to 68 months. And I have to impose sentence within that range. I guess I can go low, but I cannot go above under the present law. You can probably expect a sentence within that range.” Petition Ex. H at 5. Mr. Murillo pleaded guilty. The court accepted Mr. Murillo’s plea of guilty. The court did not mention that he must impose a maximum sentence of life or that a sentence within the standard range would represent only his minimum term. Nor did the court advise him that he was subject to a life term of community custody if he was released prior to expiration of the maximum sentence of life.

Sentencing Hearing

¶5 The State recommended a sentence in the middle of the standard range. Petition Ex. J at 2. Mr. Murillo’s lawyer responded that the prosecutor had agreed to recommend the low end of the range. Id. But the written statement on plea of guilty recited that the State reserved its recommendation for Mr. Murillo’s confinement time. Response App. C at 5. The court imposed a determinate mid-range sentence of 59V2 months.

¶6 The parties along with the court talked about community custody:

THE COURT:____
. . . What about community custody . . . ?
[527]*527MR. SMITH: I believe he’s subject to the indeterminate sentence board for life ....
THE COURT: Is that reflected on here . . . ?
THE COURT: ....
Do we need a different order?
MS. FAIR: I don’t think so, your Honor. I can review it with Mr. Knodell, but I don’t believe so. Because it does point out that the maximum sentence is life imprisonment. And I believe if the court goes ahead and attaches Appendix H [providing for community custody “up to life”] to the judgment and sentence, I think we’re fine. . . .
THE COURT: All right. We’ll attach it.

Petition Ex. J at 9-12.

¶7 The judgment and sentence accurately reflected the sentencing judge’s ruling. It imposed a sentence of 59% months and left blank the preprinted portions of the judgment form that were provided for sentences imposed under RCW 9.94A.712. It provided:

(a) CONFINEMENT. RCW 9.94A.589. Defendant is sentenced to the following term of total confinement in the custody of the Department of Corrections (DOC):
59% Months on Count #1__months on Count_
_months on Count__months on Count_
_Months on Count__months on Count_
Actual number of months of total confinement ordered is:
(b) CONFINEMENT. RCW 9.94A.712: The defendant is sentenced to the following term of confinement in the custody of the DOC:
_months on Count__months on Count_
Months on Count months on Count

Response App. E at 6.

[528]*528¶8 The preprinted community custody paragraphs within the judgment itself are not filled in:

[ ] COMMUNITY CUSTODY for count(s)_, sentenced under RCW 9.94A.712, is ordered for any period of time the defendant is released from total confinement before the expiration of the maximum sentence.

Id. at 7. A generic preprinted appendix (appendix H) is attached to the judgment. It sets out the various alternative community custody terms. And it recites that for sex offenses committed after September 1, 2001, community custody can be “up to life.” The appendix does not state that for Mr. Murillo’s offense, first degree child molestation, community custody is always for life.

Defense Counsel’s Advice

¶9 Mr. Murillo’s attorney testified by deposition in a civil suit filed against Grant County (see Best v. Grant County, No.

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Bluebook (online)
134 Wash. App. 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-murillo-washctapp-2006.