State Of Washington, V. Brandon Gates

• Court: Court of Appeals of Washington
• Decided: September 27, 2021
• Docket: 82026-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 82026-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BRANDON TIMOTHY GATES,

Appellant.

APPELWICK, J. — Gates entered a guilty plea pursuant to an agreement that

included the State’s recommendation that he serve the remainder of his sentence

on electronic home monitoring at the discretion of the DOC. Gates moved to

withdraw his plea when the DOC refused his request for EHM, but the court denied

his request. On appeal, Gates argues his guilty plea was not knowing, intelligent,

and voluntary because it was based on a mutual mistake about his eligibility for

EHM. We reverse.

FACTS

The State charged Brandon Gates with three counts of domestic violence

felony violation of a court order. Gates also faced additional charges under a

separate cause number. Gates represented himself and negotiated a global plea

agreement. In exchange for a guilty plea on one count of tampering with a witness-

domestic violence, the State agreed to dismiss the other charges from the two

cases and recommend a standard range sentence of 29 months of confinement. No. 82026-5-I/2

The State also agreed to recommend Gates serve his sentence on “GPS [(global

positioning system)] Electronic Home Monitoring at the direction of the Department

of Corrections.” Gates had court appointed standby counsel for the limited

purpose of reviewing the disposition documents related to his plea.

According to Gates, he would accept a plea agreement only if he could be

free on electronic home monitoring (EHM). In her dealing with Gates, the

prosecutor “was very clear that . . . she could only recommend home monitoring

as part of his sentence” and that EHM was at the discretion of the Department of

Corrections (DOC). She cautioned Gates that EHM “was not guaranteed.”

The trial court accepted Gates’s plea and the State’s recommended

sentence. Gates was sentenced to 29 months confinement with the judgment and

sentence specifying that he “may serve the remaining balance of his sentence on

GPS Electronic Home Monitoring or its equivalent, at the direction of the

Department of Corrections.”

Two week after Gates began serving his prison sentence in a DOC facility,

he sent a kite1 inquiring about his release on EHM. “I was awarded (EHM) inside

of my Judgment [and] Sentenc[e], I would like to know how do we expedite this

process.” The prison responded, “No it does not give you credit for EHM. It states

defendant may serve the remaining balance of his sent[ence] or its equivalent at

the direction of [the] DOC. So you are serving your time here in prison.”

1 A “kite” is a form used in prison for communications from inmates to prison staff.

2 No. 82026-5-I/3

Gates filed pro se motions to arrest his judgment and sentence and to

withdraw his guilty plea, alleging that the State and standby counsel manipulated

him to plead guilty knowing he would not receive EHM. Representing himself at

oral argument, Gates requested specific performance of the plea agreement or to

withdraw the plea agreement. The court noted that Gates had been informed that

the State’s recommendation of EHM was not binding on either the court or DOC.

“I believe that you wanted a certain thing, but you didn’t get it. They only

recommended that you could have electronic home monitor, but you were advised

that it might not happen, and you were advised that I didn't have to follow it.” The

court denied the motions to withdraw.

Gates appeals.

DISCUSSION

Gates argues he should be allowed to withdraw his guilty plea due to the

parties’ mistaken belief as to his eligibility for EHM. We agree.

Due process requires that a defendant enter a guilty plea knowingly,

intelligently, and voluntarily. State v. Weyrich, 163 Wn.2d 554, 556-57, 182 P.3d

965 (2008). A defendant must be informed of all direct consequences of the plea.

In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). This

includes the availability of sentencing alternatives. See State v. Kissee, 88 Wn.

App. 817, 822, 947 P.2d 262 (1997); State v. Adams, 119 Wn.2d 373, 376-77, 82

P.3d 1195 (2003); In re Pers. Restraint of Fonseca, 132 Wn. App. 464, 468, 132

P.3d 154 (2006). “A defendant does not knowingly plead guilty when he bases

that plea on misinformation regarding sentencing consequences.” State v.

3 No. 82026-5-I/4

Robinson, 172 Wn.2d 783, 790, 263 P.3d 1233 (2011). A defendant may

challenge the voluntariness of a plea based on this misinformation on a direct

sentencing consequence. Weyrich, 163 Wn.2d at 557.

A court must allow a defendant to withdraw a guilty plea when necessary to

correct a manifest injustice. CrR 4.2(f); In re Pers. Restaraint of Stockwell, 179

Wn.2d 588, 595, 316 P.3d 1007 (2014). A motion to withdraw a plea after entry of

judgment is governed by CrR 7.8 which allows the court to relieve a party from

final judgment for reasons including mistake, newly discovered evidence, or any

other reason justifying relief. Stockwell, 179 Wn.2d at 595. We review a trial

court’s order on a motion to withdraw a guilty plea for abuse of discretion. State v.

Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012). A court abuses its discretion

when its decision is based on untenable grounds or reasons. Id.

Gates accepted the plea agreement with the understanding that he was

eligible to receive EHM for the remaining months of his sentence at DOC’s

discretion. EHM is a “program of partial confinement.” RCW 9.94A.030(29). By

definition, partial confinement may last “no more than one year.” RCW

9.94A.030(35). The Sentencing Reform Act of 1981, provides, “[a]lternatives to

total confinement are available for offenders with sentences of one year or less.”

RCW 9.94A.680; State v. Law, 154 Wn.2d 85, 105, 110 P.3d 717 (2005). A

sentence with a term of confinement of more than one year must be served in

prison except under very limited circumstances. RCW 9.94A.190(1).

Based on these statutes, the 29 month sentence recommended as part of

the plea deal made him ineligible for EHM. The State argues Gates knew that the

4 No. 82026-5-I/5

DOC had discretion and “was never ‘assured’ he would receive EHM.” But, Gates

bargained for and accepted a plea agreement in which he had a chance for partial

confinement on EHM. This chance never existed. Therefore, Gates’s plea was

based on misinformation and was not knowing, intelligent, and voluntary.

Gates, the State, and standby counsel were all mistaken as to Gates’s

eligibility for EHM. As a result of this mutual mistake, Gates’s guilty plea was

involuntary and he is entitled to withdraw the plea. State v. Carreno-Maldonado,

135 Wn. App. 77, 89, 143 P.3d 343 (2006). The trial court’s denial of Gates’s

motion to withdraw his plea was an abuse of discretion.2

Reversed.3

WE CONCUR:

2 We note that Gates entered a global plea which included dismissal of several charges from different causes of action. Withdrawal of that plea allows for reinstatement of all of the original charges. State v. Carreno-Maldonado, 135 Wn. App. 77, 89, 143 P.3d 343 (2006). 3 In light of this decision, we do not address the additional arguments raised

by the appellant.