til::- CG^TCF_AP;EALSn!v
2013 SEP 30 AH 10* 11*
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68847-2-1 Respondent, (anchored w/No. 68848-1-1)
DIVISION ONE v.
ANTHONY RUSSELL WOODS, UNPUBLISHED OPINION
Appellant. FILED: September 30. 2013
Spearman, A.C.J. — After Anthony Woods pleaded guilty to possession of
cocaine and solicitation to deliver cocaine, he twice moved to withdraw his guilty
plea. The trial court denied the motions. He appeals, contending that during plea
negotiations, defense counsel led him to believe he would be released after
serving ten months of the 15-month sentence contemplated by the plea
agreements. He also claims in a statement of additional grounds that his
judgment and sentence is facially invalid because (1) it did not include good time
credit for presentence time served in King County Jail and (2) his two current
offenses, used to compute his offender score, do not encompass the same
criminal conduct. Finding his claims to lack merit, we affirm. No. 68847-2-1/2
FACTS
The State charged Anthony Woods with possession of cocaine and
delivery of cocaine. The State and Woods, who was represented by defense
counsel Mark Flora, reached a plea agreement under which Woods pleaded
guilty to possession of cocaine and a reduced charge of solicitation to deliver
cocaine and both parties recommended 15-month concurrent terms of
confinement based on an agreed offender score of 5.1 The trial courtaccepted Woods' guilty plea on June 2, 2011 and on June 24 imposed the recommended
sentence.2 At sentencing, Woods was credited with having served 262 days. Sometime before January 24, 2012, Woods was released from prison. 3
Verbatim Report of Proceedings (VRP) at 2-3.3 On January 3, 2012, Woods, represented by new counsel, filed a motion to withdraw his guilty plea based on
grounds he does not assert on appeal.4 At the February 24 hearing on the motion, Woods asserted one additional claim on the basis that Flora failed to
advise him that the Department of Corrections (DOC) could hold him past his
anticipated early release date if he failed to "have a valid address the DOC can
1Appendix Bto the plea agreement for each offense lists eightfelonies committed by Woods from 1975-1999. The parties agreed that four of the prior felonies would not score. The concurrent offense and the remaining four felonies resulted in an agreed offender score of five.
2The court also imposed 12 months of community custody. 31VRP-June2, 2011 and March 29, 2012; 2VRP-June24, 2011; 3VRP-January 24, 2012; 4VRP-February 24, 2012; 5VRP-June 7, 2012.
4Woods argued that he received ineffective assistance of counsel because (1) counsel failed to challenge the inclusion of his out-of-state convictions in his offender score on the basis of reliability; (2) counsel failed to investigate the issue of comparability of the out-of-state convictions; and (3) counsel failed to object at the plea or sentencing hearings to certain out-of- state convictions being deemed comparable felonies. No. 68847-2-1/3
confirm. . . ." 4VRP at 4. He argued that his guilty plea was involuntary because
Flora misadvised him about how long he would remain incarcerated.
Woods did not testify at the hearing on the motion. Flora testified that he
remembered a conversation with Woods about how much time Woods would
serve on a 15-month sentence with good time credit. Flora stated:
My conversation with him was that the DOC would be crazy not to release him. In fact, they turned out to be crazy. I don't know why they didn't release him,[sic] Whether or not he had an address. We are going to broke and they spent another, I don't know, $25,000 to house him. It is nuts.
4VRP at 25. He testified, "I am sure that the impression that [Woods] got from me
was that I couldn't imagine the Department of Corrections not releasing him."
4VRP at 26. Flora stated that he did not know "what the rules are with respect to
the DOC." Jd, Flora did not inform Woods that the DOC might not release him on
his release date without a stable address. He was aware that Woods did not
have a stable address at the time he represented Woods and that Woods had
housing assistance. He did not recall if he knew whether the DOC would assist
Woods with housing programs. Flora discussed with Woods the risk of a
lengthier sentence if he proceeded to trial and was convicted. Flora recalled that
Woods would have faced a longer sentence of about 20 to 60 months if he did
not accept the plea.
The trial court denied Woods' motion on April 13, 2012. It found that Flora
and Woods did not discuss the consequences of a failure to give an address that
met DOC criteria. The court noted that the only evidence as to why Woods was No. 68847-2-1/4
not released prior to completing his full sentence was a statement by Woods'
counsel, who indicated that "she spoke to DOC staff who indicated that Mr.
Woods' 'release plan' failed to meet DOC criteria."' Clerk's Papers (CP) at 72.
The court found there was no evidence as to DOC criteria, how the release plan
failed to meet such criteria, or whether the release plan could have been
modified to satisfy DOC criteria, "i.e., by providing an alternate address." ]d It
also found there was no evidence that an inmate's homeless status automatically
disqualifies the inmate from consideration for early release. The court concluded:
The mere fact alone that defendant was held for his full sentence rather than released early because he failed to provide an adequate release plan does not establish that this was a direct consequence of defendant's plea to this charge. He did not automatically or immediately lose the opportunity to be released early because he pled guilty. Nor has Mr. Woods shown that his "homeless" status at the time of entering the plea was the cause of him being held beyond his early release date or that such status was an immutable characteristic which triggered direct and definite consequences. . . . Mr. Woods has failed to show that his "homeless" status at the time of entering the plea was an immutable characteristic that, under DOC regulations, automatically or largely automatically results in being held for the full sentence.
CP at 76.
On June 5, 2012, Woods filed another motion to withdraw his guilty plea,
arguing that counsel provided ineffective assistance by failing to seek his
immediate release at sentencing.5 The courtdenied the motion on June 7.
6Woods argued that the sentencing court, while itcredited him with 262 days for time actually served in King County Jail, erroneously failed to credit him with 131 days of good time credit from his presentence time served in King County Jail. No. 68847-2-1/5
Woods appeals the trial court's orders denying his motions to withdraw his
guilty plea.
DISCUSSION
Involuntary Plea
We review de novo a trial court's denial of a motion to withdraw a guilty
plea that is based on ineffective assistance of counsel. State v. A.N.J., 168
Wn.2d 91, 109, 225 P.3d 956 (2010). The test under Strickland v. Washington.
466 U.S. 668, 104 S.Ct. 2052, 80 LEd.2d 674 (1984) applies to claims of
ineffective assistance of counsel during the plea process. State v. Stowe, 71 Wn.
App.
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til::- CG^TCF_AP;EALSn!v
2013 SEP 30 AH 10* 11*
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68847-2-1 Respondent, (anchored w/No. 68848-1-1)
DIVISION ONE v.
ANTHONY RUSSELL WOODS, UNPUBLISHED OPINION
Appellant. FILED: September 30. 2013
Spearman, A.C.J. — After Anthony Woods pleaded guilty to possession of
cocaine and solicitation to deliver cocaine, he twice moved to withdraw his guilty
plea. The trial court denied the motions. He appeals, contending that during plea
negotiations, defense counsel led him to believe he would be released after
serving ten months of the 15-month sentence contemplated by the plea
agreements. He also claims in a statement of additional grounds that his
judgment and sentence is facially invalid because (1) it did not include good time
credit for presentence time served in King County Jail and (2) his two current
offenses, used to compute his offender score, do not encompass the same
criminal conduct. Finding his claims to lack merit, we affirm. No. 68847-2-1/2
FACTS
The State charged Anthony Woods with possession of cocaine and
delivery of cocaine. The State and Woods, who was represented by defense
counsel Mark Flora, reached a plea agreement under which Woods pleaded
guilty to possession of cocaine and a reduced charge of solicitation to deliver
cocaine and both parties recommended 15-month concurrent terms of
confinement based on an agreed offender score of 5.1 The trial courtaccepted Woods' guilty plea on June 2, 2011 and on June 24 imposed the recommended
sentence.2 At sentencing, Woods was credited with having served 262 days. Sometime before January 24, 2012, Woods was released from prison. 3
Verbatim Report of Proceedings (VRP) at 2-3.3 On January 3, 2012, Woods, represented by new counsel, filed a motion to withdraw his guilty plea based on
grounds he does not assert on appeal.4 At the February 24 hearing on the motion, Woods asserted one additional claim on the basis that Flora failed to
advise him that the Department of Corrections (DOC) could hold him past his
anticipated early release date if he failed to "have a valid address the DOC can
1Appendix Bto the plea agreement for each offense lists eightfelonies committed by Woods from 1975-1999. The parties agreed that four of the prior felonies would not score. The concurrent offense and the remaining four felonies resulted in an agreed offender score of five.
2The court also imposed 12 months of community custody. 31VRP-June2, 2011 and March 29, 2012; 2VRP-June24, 2011; 3VRP-January 24, 2012; 4VRP-February 24, 2012; 5VRP-June 7, 2012.
4Woods argued that he received ineffective assistance of counsel because (1) counsel failed to challenge the inclusion of his out-of-state convictions in his offender score on the basis of reliability; (2) counsel failed to investigate the issue of comparability of the out-of-state convictions; and (3) counsel failed to object at the plea or sentencing hearings to certain out-of- state convictions being deemed comparable felonies. No. 68847-2-1/3
confirm. . . ." 4VRP at 4. He argued that his guilty plea was involuntary because
Flora misadvised him about how long he would remain incarcerated.
Woods did not testify at the hearing on the motion. Flora testified that he
remembered a conversation with Woods about how much time Woods would
serve on a 15-month sentence with good time credit. Flora stated:
My conversation with him was that the DOC would be crazy not to release him. In fact, they turned out to be crazy. I don't know why they didn't release him,[sic] Whether or not he had an address. We are going to broke and they spent another, I don't know, $25,000 to house him. It is nuts.
4VRP at 25. He testified, "I am sure that the impression that [Woods] got from me
was that I couldn't imagine the Department of Corrections not releasing him."
4VRP at 26. Flora stated that he did not know "what the rules are with respect to
the DOC." Jd, Flora did not inform Woods that the DOC might not release him on
his release date without a stable address. He was aware that Woods did not
have a stable address at the time he represented Woods and that Woods had
housing assistance. He did not recall if he knew whether the DOC would assist
Woods with housing programs. Flora discussed with Woods the risk of a
lengthier sentence if he proceeded to trial and was convicted. Flora recalled that
Woods would have faced a longer sentence of about 20 to 60 months if he did
not accept the plea.
The trial court denied Woods' motion on April 13, 2012. It found that Flora
and Woods did not discuss the consequences of a failure to give an address that
met DOC criteria. The court noted that the only evidence as to why Woods was No. 68847-2-1/4
not released prior to completing his full sentence was a statement by Woods'
counsel, who indicated that "she spoke to DOC staff who indicated that Mr.
Woods' 'release plan' failed to meet DOC criteria."' Clerk's Papers (CP) at 72.
The court found there was no evidence as to DOC criteria, how the release plan
failed to meet such criteria, or whether the release plan could have been
modified to satisfy DOC criteria, "i.e., by providing an alternate address." ]d It
also found there was no evidence that an inmate's homeless status automatically
disqualifies the inmate from consideration for early release. The court concluded:
The mere fact alone that defendant was held for his full sentence rather than released early because he failed to provide an adequate release plan does not establish that this was a direct consequence of defendant's plea to this charge. He did not automatically or immediately lose the opportunity to be released early because he pled guilty. Nor has Mr. Woods shown that his "homeless" status at the time of entering the plea was the cause of him being held beyond his early release date or that such status was an immutable characteristic which triggered direct and definite consequences. . . . Mr. Woods has failed to show that his "homeless" status at the time of entering the plea was an immutable characteristic that, under DOC regulations, automatically or largely automatically results in being held for the full sentence.
CP at 76.
On June 5, 2012, Woods filed another motion to withdraw his guilty plea,
arguing that counsel provided ineffective assistance by failing to seek his
immediate release at sentencing.5 The courtdenied the motion on June 7.
6Woods argued that the sentencing court, while itcredited him with 262 days for time actually served in King County Jail, erroneously failed to credit him with 131 days of good time credit from his presentence time served in King County Jail. No. 68847-2-1/5
Woods appeals the trial court's orders denying his motions to withdraw his
guilty plea.
DISCUSSION
Involuntary Plea
We review de novo a trial court's denial of a motion to withdraw a guilty
plea that is based on ineffective assistance of counsel. State v. A.N.J., 168
Wn.2d 91, 109, 225 P.3d 956 (2010). The test under Strickland v. Washington.
466 U.S. 668, 104 S.Ct. 2052, 80 LEd.2d 674 (1984) applies to claims of
ineffective assistance of counsel during the plea process. State v. Stowe, 71 Wn.
App. 182, 186, 858 P.2d 267 (1993). A defendant must show that (1) his
counsel's performance fell below an objective standard of reasonableness and
(2) counsel's deficient performance prejudiced him. Strickland, 466 U.S. at 687.
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." CrR 4.2(d). A guilty plea is
involuntary when a defendant is not informed of all direct consequences of
pleading guilty. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 300, 88 P.3d
390 (2004). A direct consequence is one having a definite, immediate, and
largely automatic effect on the range of punishment. State v. Ross, 129 Wn.2d
279, 284, 916 P.2d 405 (1996). A defendant need not be informed of all possible
collateral consequences of his plea. In re Isadore, 151 Wn.2d at 298. However,
affirmative misinformation about a collateral consequence may permit withdrawal No. 68847-2-1/6
of a guilty plea ifthe defendant relied on that misinformation when deciding to
plead guilty. State v. Stowe. 71 Wn. App. 182, 187-89, 858 P.2d 267 (1993). A
defendant must be allowed to withdraw a guilty plea "whenever it appears that
the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f).
Woods claims he involuntarily pleaded guilty based on inaccurate
information from Flora. He contends he was affirmatively misinformed of the
consequences of pleading guilty because Flora led him to believe he would be
released after serving 10 months of the 15-month sentence under the plea
agreement. Woods relies primarily on A.N.J, and Stowe.
In A.N.J., juvenile respondent A.N.J, pleaded guilty to child molestation in
the first degree. A.N.J.. 168 Wn.2d at 96. He later sought to withdraw his guilty
plea on various grounds, arguing, among other things, that he was misinformed
by defense counsel about the consequences of his plea. Id. at 114. Specifically,
defense counsel did not explain the difference between registration as a sex
offender and the record of a conviction, and led A.N.J, to believe that his juvenile
conviction could later be removed from his record, kl at 116-17. But while a sex
offender could petition to be relieved of the obligation to register, "the record of
juvenile sex offenses never goes away." Ja\ at 115-16, (citing RCW 9.94A.525(2).
The Court concluded that while defense counsel's failure to advise A.N.J, that his
juvenile sex conviction would remain on his record forever did not, in and of itself,
rise to a manifest injustice, "ifA.N.J, was misinformed that his conviction could be
removed from his record, then he should be allowed to withdraw his plea." Jd. at No. 68847-2-1/7
116. The Court concluded that A.N.J, had been misinformed as to the
consequences of his plea and was entitled to withdraw it. Id at 117.
In Stowe. Stowe entered an Alford6 plea to second degree assault of his infant son. Stowe, 71 Wn. App. at 183. He moved to withdraw his plea on the
basis that defense counsel affirmatively misinformed him regarding whether the
plea would affect his military career. He had entered his plea after defense
counsel told him that if he entered an Alford plea, he could probably remain in the
Army and could have his jail time tacked on to his Army time. ]d, at 185. The
Army, however, had discharged him immediately after entry of his plea. kf. This
court held that Stowe was prejudiced by his counsel's advice regarding the
impact of an Alford plea on his military career. ]g\ at 187. We explained that
although "defense counsel does not have an obligation to inform his client of all
possible collateral consequences of a guilty plea, ..." the question is "not
whether counsel failed to inform defendant of collateral consequences, but rather
whether counsel's performance fell below the objective standard of
reasonableness when he affirmatively misinformed Stowe of the collateral
consequences of a guilty plea." Jd. We noted that Stowe had informed his
attorney that his primary reason for not wanting to accept a guilty plea was his
desire to continue his military career. Id. at 188. Stowe had made it clear that he
would rather risk a trial than plead guilty and face definite discharge from the
military, and entered an Alford plea only after counsel incorrectly informed him
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct 160, 27 LEd.2d 162 (1970). No. 68847-2-1/8
that he would be able to continue his career. Id We concluded that defense
counsel's advice prejudiced Stowe because it was clear that Stowe specifically
relied on counsel's advice and would not otherwise have entered the plea. ]d at
189.
Here, we conclude that Woods fails to establish that counsel's
performance was deficient or that it prejudiced him. Woods agreed to a 15-month
sentence. He contends Flora led him to believe he would be released after
serving only ten months, with good time credits. The specific basis of this claim,
as he argued below, was that Flora failed to advise him that the DOC could hold
him past his early release date if Woods failed to have a valid address. Woods
does not contend that early release was a direct consequence of pleading guilty.
And as the trial court correctly concluded, Woods did not automatically lose or
obtain the opportunity to be released early because he pleaded guilty. Thus,
Flora's statements regarding early release related to a collateral consequence of
pleading guilty. Affirmative misinformation about a collateral consequence may
permit withdrawal of a guilty plea if the defendant relied on that misinformation in
pleading guilty. Stowe. 71 Wn. App. at 187-89.
But here, unlike in A.N.J, and Stowe. Woods does not establish that Flora
gave him specific misinformation about early release. As the State points out,
although the record shows that Flora told Woods that the DOC would be "crazy"
not to release him early with good time credit, there is no evidence that Flora
gave him any more specific assurances or information, provided misinformation
8 No. 68847-2-1/9
about DOC release plans, or misinformed him about the consequences of failing
to supply the DOC with an approved address. Woods also does not establish that
he relied on misinformation from Flora in pleading guilty. Nothing in the record
establishes that Woods would not have pleaded guilty had Flora not said he
could not imagine the DOC not releasing Woods early with good time credit.
Furthermore, the record does not establish why Woods was not released
early.7 Woods' attorney at the hearing on the motion to withdraw his guilty plea, stated only that DOC staff indicated that Woods' release plan did not meet DOC
criteria. Woods did not provide any evidence from the DOC about the
circumstances surrounding his release or about DOC's release plan for him. He
offered no evidence in support of his contention that the DOC failed to release
him earlier due to lack of a valid address.
Good Time Credit
In a statement of additional grounds, Woods claims that the sentencing
court failed to give him earned early release ("good time") credit on his judgment
and sentence for presentence time served in King County Jail prior to
sentencing.8 He contends his judgment and sentence is invalid on its face and
7The record does not establish exactlywhen Woods was released from DOC custody, but the State does not dispute that Woods was not released early.
8The substance of this claim is similar to that made by counsel in Woods' June 5, 2012 motion to withdraw his guilty plea. No. 68847-2-1/10
violates RCW 9.94A.505(6),9 due process, and double jeopardy.10 Based on these claims, he seeks to withdraw his guilty plea. In support of his argument,
Woods attaches to his statement of additional grounds two documents titled "Jail
Certification and Authorization for Earned Early Release Credit" from the King
County Department ofAdult Detention Records Office .11 One document pertains to the time Woods spent in King County Jail for the possession charge and the
other pertains to his time in jail for the solicitation charge. Each indicates a
number of actual days served and a number of good time days earned. These
forms are dated June 27, 2011, after Woods was sentenced and after entry of
the judgment and sentence on June 24, 2011. The forms were not before the
sentencing court.
Woods' claims are without merit. To the extent his claim is that the
sentencing court was required to revise its judgment and sentence after the King
County Jail issued its certification of his good time credit and indicate on the
judgment and sentence the number of earned good time credit, he cites no
authority for such a proposition. Moreover, "only a facility in which [an offender]
had been in custody could certify good time credits, not a court." In re Pers.
9 RCW 9.94A.505(6) provides, "The sentencing court shall give the offendercreditfor all confinement time served before the sentencing ifthat confinement was solely in regard to the offense for which the offender is being sentenced."
10 Woods also asserts a claim of ineffective assistance based on counsel's alleged failure to argue that Woods should receive credit for presentence good time served in King County Jail prior to sentencing. We do not reach this claim given our conclusion that Woods fails to show error in the judgment and sentence.
11 These documents do not appear in the record before this court, and it is therefore unclear whether the trial court ever saw them.
10 No. 68847-2-1/11
Restraint Petition of Erickson. 146 Wn. App. 576, 586, 191 P.3d 917 (2008).
Where, as here, an offender is transferred from the custody of a county jail to the
DOC, the DOC is responsible for crediting the offender with any good time credit
certified by the county jail. Id at 586. While the DOC "is entitled to give
presumptive legal effect to a county jail's certification if it does not contain
apparent or manifest errors of law," jd at 585 (citing In re Pers. Restraint of
Williams. 121 Wn.2d 655, 664, 853 P.2d 444 (1993)), Woods does not appear to
be claiming that the DOC failed to give him credit for good time earned in King
County Jail.12 To the extent he is making such a claim, we cannot review it, as it involves matters outside of the record. State v. McFarland, 127 Wn.2d 322, 338,
899 P.2d 1251 (1995). There is no evidence from the DOC regarding its release
plan for Woods or its calculation of his good time credits, including its
consideration of good time credits earned in King County Jail.
Finally, for this claim Woods seeks the remedy of withdrawing his guilty
plea. But he does not explain how his plea was involuntary on this basis, given
that the judgment and sentence was not entered until after his plea. There is also
no showing of a manifest injustice arising from the fact that the judgment and
sentence was not revised after sentencing to reflect Woods' good time credit.
12 Woods appears to suggest that DOC did in fact give him credit for presentence good time earned in King County Jail and that the reason he was not released early was because he did not have a DOC-approved address.
11 No. 68847-2-1/12
Offender Score
Woods also claims in his statement of additional grounds that the
judgment and sentence is facially invalid because his two current offenses, used
to compute his offender score, do not encompass the same criminal conduct.13
He points out that the acts forming the basis for possession of cocaine were
committed on June 1, 2010, while the acts underlying the solicitation to deliver
cocaine charge were committed on July 27, 2010.
This claim lacks merit. Woods' two offenses were not counted as the
same criminal conduct, as reflected in the judgment and sentence for each
offense.
Affirmed.
WE CONCUR: J&4 AS/*./. f ft ^ ££
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13 Woods also asserts he was denied effective assistance of counsel because his attorney failed to argue that his current offenses were not the same criminal conduct. We need not reach this argument because we conclude the underlying claim lacks merit.