Filed Washington State Court of Appeals Division Two
June 6, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 48787-0-II
Respondent,
v. UNPUBLISHED OPINION
DEENA M. SANDBERG,
Appellant.
MAXA, A.C.J. – Deena Sandberg appeals her third degree assault conviction, claiming
that the trial court erred in denying her motion to withdraw her guilty plea. The record does not
show that Sandberg understood an essential element of the crime – that her actions had to be
intentional and not accidental. We hold that based on this record, allowing Sandberg to
withdraw her plea was necessary to correct a manifest injustice.1 Accordingly, we reverse
Sandberg’s conviction and remand to allow Sandberg to withdraw her guilty plea.
FACTS
On August 1, 2014, Sandberg and her husband went to a casino in Shelton. Sandberg
became disruptive because other people were sitting in her assigned seat. A casino supervisor
1 Sandberg also argues that the trial court erred in denying her motion to withdraw her guilty plea because she was not informed of a direct and a collateral consequence of her plea. Because we reverse on other grounds, we do not address these arguments. No. 48787-0-II
asked Sandberg to step outside to resolve the issue, but she refused. Eventually, a law
enforcement officer arrived and when Sandberg again refused to leave, the officer physically
escorted Sandberg out of the building. Sandberg tried to get away and dug her fingernails into
the officer’s arm, causing it to bleed.
The State charged Sandberg with third degree assault. The charging information stated
that Sandberg “did intentionally assault a law enforcement officer or other employee of a law
enforcement agency who was performing her official duties at the time of the assault.” Clerk’s
Papers (CP) at 73.
Sandberg agreed to plead guilty in exchange for the State not pursuing a bail jumping
charge, and agreeing to request a first time offender option. The plea statement listed the
elements of the offense “as in the information.” CP at 63. Sandberg’s statement of what made
her guilty of the crime was: “On 8-1-14 in Mason County, I assaulted a law enforcement
officer . . . who was performing official duties.” CP at 70.
At the plea hearing, the trial court asked Sandberg whether she understood the offense
with which she was charged:
THE COURT: Do you understand what it is you’re pleading guilty to? In other words, what conduct you did that the State alleges constitutes the crime of assault in the third degree?
[DEFENSE COUNSEL]: The third, the police officer. Assaulting the police officer - yeah.
MS. SANDBERG: Yeah.
THE COURT: I’m sorry, Ma’am?
MS. SANDBERG: Yes, on accident.
THE COURT: Okay.
2 No. 48787-0-II
MS. SANDBERG: Not on purpose, on accident I assaulted a . . .
THE COURT: Okay. Let me explain it.
MS. SANDBERG: They grabbed me leaving the casino, so.
THE COURT: Okay. I just need to explain something to you. In order for a court to accept a plea the Court has to find that the plea is knowingly, willful and voluntarily done, so I have to make a finding that you know what it is you’re pleading guilty to, in other words, okay, that’s something the Court has to ask you about, alright. Just so you know. So it’s assault in the third degree, and do you understand that by pleading guilty there’ll be no trial and no appeal of the conviction?
[DEFENSE COUNSEL]: Do you understand that?
MS. SANDBERG: Yes.
Report of Proceedings (RP) at 14-15. The trial court then questioned Sandberg about whether
she understood that she was giving up her trial and appeal rights, and understood the proposed
sentence and community custody, the maximum sentence it could impose, the mandatory costs
and fees, and her right to own or possess a firearm.
Next, the trial court asked for Sandberg’s plea and Sandberg plead guilty. She also orally
confirmed her description in the plea agreement of how the crime occurred. Sandberg then
represented that she had signed the plea agreement, that she had enough time to talk with defense
counsel about it, that defense counsel went over the plea form with her, and that it was her choice
to plead guilty. The trial court then found that Sandberg’s plea was knowingly, intelligently, and
voluntarily given.
During sentencing two months later, the trial court asked Sandberg if she had anything to
say and Sandberg responded that “[i]t was purely a accident. I was having a grand – a petit mal
seizure. . . . And it was, like, truly an accident. I didn’t mean to dig my nails into her, only
3 No. 48787-0-II
‘cause I was having a seizure, you know.”2 RP at 24. The trial court perceived that Sandberg
was looking to withdraw her guilty plea, and after a break Sandberg confirmed that she would
like to petition the court to withdraw her plea. As a result, the trial court allowed defense
counsel to withdraw, appointed new defense counsel, and rescheduled sentencing to allow
Sandberg an opportunity to file a motion to withdraw her guilty plea.
Sandberg subsequently filed a motion to withdraw her guilty plea. The trial court denied
Sandberg’s motion. The court then imposed the agreed first time offender sentence.
Sandberg appeals the trial court’s denial of her motion to withdraw her guilty plea.
ANALYSIS
A. LEGAL PRINCIPLES
Due process requires that a defendant’s guilty plea be knowing, intelligent, and
voluntary. State v. Robinson, 172 Wn.2d 783, 794, 263 P.3d 1233 (2011). Under CrR 4.2(d), a
trial court cannot accept a guilty plea without making a determination that the plea was made
“voluntarily, competently and with an understanding of the nature of the charge and the
consequences of the plea.”3 See also Robinson, 172 Wn.2d at 791-92.
In order to understand the nature of the charge, “[t]he defendant must understand the
facts of his or her case in relation to the elements of the crime charged, protecting the defendant
from pleading guilty without understanding that his or her conduct falls within the charged
2 Medical records showed that Sandberg did have seizures and, in fact, had a seizure in the courthouse that caused her to miss a hearing. 3 CrR 4.2(d) also requires the trial court to be “satisfied that there is a factual basis for the plea.” Sandberg did not argue that the record failed to identify a factual basis for an intentional assault, so we do not address this issue.
4 No. 48787-0-II
crime.” State v. Codiga, 162 Wn.2d 912, 923-24, 175 P.3d 1082 (2008). This requirement
means that at a minimum, defendant must be aware of the requisite state of mind necessary to
constitute the charged crime. In re Pers. Restraint of Montoya, 109 Wn.2d 270, 278, 744 P.2d
340 (1987). But in a plea hearing the trial court is not required to orally recite the elements of
each crime or the facts that satisfy those elements, and is not required to orally question the
defendant to ascertain whether he or she understands the nature of the defense. Codiga, 162
Wn.2d at 924. Instead, the trial court can rely on the written plea agreement if the defendant
confirms that he or she read the agreement and that its statements were true. Id.
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Filed Washington State Court of Appeals Division Two
June 6, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 48787-0-II
Respondent,
v. UNPUBLISHED OPINION
DEENA M. SANDBERG,
Appellant.
MAXA, A.C.J. – Deena Sandberg appeals her third degree assault conviction, claiming
that the trial court erred in denying her motion to withdraw her guilty plea. The record does not
show that Sandberg understood an essential element of the crime – that her actions had to be
intentional and not accidental. We hold that based on this record, allowing Sandberg to
withdraw her plea was necessary to correct a manifest injustice.1 Accordingly, we reverse
Sandberg’s conviction and remand to allow Sandberg to withdraw her guilty plea.
FACTS
On August 1, 2014, Sandberg and her husband went to a casino in Shelton. Sandberg
became disruptive because other people were sitting in her assigned seat. A casino supervisor
1 Sandberg also argues that the trial court erred in denying her motion to withdraw her guilty plea because she was not informed of a direct and a collateral consequence of her plea. Because we reverse on other grounds, we do not address these arguments. No. 48787-0-II
asked Sandberg to step outside to resolve the issue, but she refused. Eventually, a law
enforcement officer arrived and when Sandberg again refused to leave, the officer physically
escorted Sandberg out of the building. Sandberg tried to get away and dug her fingernails into
the officer’s arm, causing it to bleed.
The State charged Sandberg with third degree assault. The charging information stated
that Sandberg “did intentionally assault a law enforcement officer or other employee of a law
enforcement agency who was performing her official duties at the time of the assault.” Clerk’s
Papers (CP) at 73.
Sandberg agreed to plead guilty in exchange for the State not pursuing a bail jumping
charge, and agreeing to request a first time offender option. The plea statement listed the
elements of the offense “as in the information.” CP at 63. Sandberg’s statement of what made
her guilty of the crime was: “On 8-1-14 in Mason County, I assaulted a law enforcement
officer . . . who was performing official duties.” CP at 70.
At the plea hearing, the trial court asked Sandberg whether she understood the offense
with which she was charged:
THE COURT: Do you understand what it is you’re pleading guilty to? In other words, what conduct you did that the State alleges constitutes the crime of assault in the third degree?
[DEFENSE COUNSEL]: The third, the police officer. Assaulting the police officer - yeah.
MS. SANDBERG: Yeah.
THE COURT: I’m sorry, Ma’am?
MS. SANDBERG: Yes, on accident.
THE COURT: Okay.
2 No. 48787-0-II
MS. SANDBERG: Not on purpose, on accident I assaulted a . . .
THE COURT: Okay. Let me explain it.
MS. SANDBERG: They grabbed me leaving the casino, so.
THE COURT: Okay. I just need to explain something to you. In order for a court to accept a plea the Court has to find that the plea is knowingly, willful and voluntarily done, so I have to make a finding that you know what it is you’re pleading guilty to, in other words, okay, that’s something the Court has to ask you about, alright. Just so you know. So it’s assault in the third degree, and do you understand that by pleading guilty there’ll be no trial and no appeal of the conviction?
[DEFENSE COUNSEL]: Do you understand that?
MS. SANDBERG: Yes.
Report of Proceedings (RP) at 14-15. The trial court then questioned Sandberg about whether
she understood that she was giving up her trial and appeal rights, and understood the proposed
sentence and community custody, the maximum sentence it could impose, the mandatory costs
and fees, and her right to own or possess a firearm.
Next, the trial court asked for Sandberg’s plea and Sandberg plead guilty. She also orally
confirmed her description in the plea agreement of how the crime occurred. Sandberg then
represented that she had signed the plea agreement, that she had enough time to talk with defense
counsel about it, that defense counsel went over the plea form with her, and that it was her choice
to plead guilty. The trial court then found that Sandberg’s plea was knowingly, intelligently, and
voluntarily given.
During sentencing two months later, the trial court asked Sandberg if she had anything to
say and Sandberg responded that “[i]t was purely a accident. I was having a grand – a petit mal
seizure. . . . And it was, like, truly an accident. I didn’t mean to dig my nails into her, only
3 No. 48787-0-II
‘cause I was having a seizure, you know.”2 RP at 24. The trial court perceived that Sandberg
was looking to withdraw her guilty plea, and after a break Sandberg confirmed that she would
like to petition the court to withdraw her plea. As a result, the trial court allowed defense
counsel to withdraw, appointed new defense counsel, and rescheduled sentencing to allow
Sandberg an opportunity to file a motion to withdraw her guilty plea.
Sandberg subsequently filed a motion to withdraw her guilty plea. The trial court denied
Sandberg’s motion. The court then imposed the agreed first time offender sentence.
Sandberg appeals the trial court’s denial of her motion to withdraw her guilty plea.
ANALYSIS
A. LEGAL PRINCIPLES
Due process requires that a defendant’s guilty plea be knowing, intelligent, and
voluntary. State v. Robinson, 172 Wn.2d 783, 794, 263 P.3d 1233 (2011). Under CrR 4.2(d), a
trial court cannot accept a guilty plea without making a determination that the plea was made
“voluntarily, competently and with an understanding of the nature of the charge and the
consequences of the plea.”3 See also Robinson, 172 Wn.2d at 791-92.
In order to understand the nature of the charge, “[t]he defendant must understand the
facts of his or her case in relation to the elements of the crime charged, protecting the defendant
from pleading guilty without understanding that his or her conduct falls within the charged
2 Medical records showed that Sandberg did have seizures and, in fact, had a seizure in the courthouse that caused her to miss a hearing. 3 CrR 4.2(d) also requires the trial court to be “satisfied that there is a factual basis for the plea.” Sandberg did not argue that the record failed to identify a factual basis for an intentional assault, so we do not address this issue.
4 No. 48787-0-II
crime.” State v. Codiga, 162 Wn.2d 912, 923-24, 175 P.3d 1082 (2008). This requirement
means that at a minimum, defendant must be aware of the requisite state of mind necessary to
constitute the charged crime. In re Pers. Restraint of Montoya, 109 Wn.2d 270, 278, 744 P.2d
340 (1987). But in a plea hearing the trial court is not required to orally recite the elements of
each crime or the facts that satisfy those elements, and is not required to orally question the
defendant to ascertain whether he or she understands the nature of the defense. Codiga, 162
Wn.2d at 924. Instead, the trial court can rely on the written plea agreement if the defendant
confirms that he or she read the agreement and that its statements were true. Id.
CrR 4.2(f) states that the trial court shall allow a defendant to withdraw a guilty plea
before entry of judgment “whenever it appears that the withdrawal is necessary to correct a
manifest injustice.” See generally Robinson, 172 Wn.2d at 791-92, 794. Although “manifest
injustice” has not been definitively defined, it includes situations where the defendant’s guilty
plea was not knowing, intelligent, and voluntary. State v. A.N.J., 168 Wn.2d 91, 119, 225 P.3d
956 (2010). The defendant bears the burden of proving a manifest injustice. State v. Quy Dinh
Nguyen, 179 Wn. App. 271, 282-83, 319 P.3d 53 (2013).
The fact that a defendant moves to withdraw a guilty plea before sentencing does not
affect the manifest injustice standard. A.N.J., 168 Wn.2d at 106. However, a defendant’s claim
that he or she did not understand the nature of the charge is more credible if a motion to
withdraw a guilty plea is made before sentencing rather than after receiving an unfavorable
sentence. See id. at 107.
We review a trial court’s denial of 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 trial court abuses its
5 No. 48787-0-II
discretion when its decision is manifestly unreasonable or based on untenable grounds or
reasons. Id.
B. MISUNDERSTANDING THE INTENT ELEMENT OF ASSAULT
The State charged Sandberg under RCW 9A.36.031(1)(g), which states that a person is
guilty of third degree assault if he or she assaults a law enforcement officer who was performing
his or her official duties. Although the criminal code does not define “assault” as used in RCW
9A.36.031(1)(g), to obtain a conviction under that section the State must prove that the defendant
intended to commit an assault against the officer. State v. Brown, 140 Wn.2d 456, 469-70, 998
P.2d 321 (2000).
Consistent with this intent requirement, the information alleged that Sandberg “did
intentionally assault” a law enforcement officer. CP at 73. The plea statement stated that the
elements of the crime were “as in the information.” CP at 63. Sandberg confirmed that her
counsel had gone through the plea form with her. In certain cases, this record could be sufficient
to establish that Sandberg understood that intent was an element of the crime to which she was
pleading guilty. See Montoya, 109 Wn.2d at 278 (holding that because defense counsel read the
information to the defendant, the defendant was given adequate notice of the elements of the
crime).
However, three circumstances indicate that the record here was not sufficient to show that
Sandberg understood that third degree assault required intentional conduct. First, the plea
statement did not list intentional conduct as an element of the crime. Instead, the plea form
simply stated that the elements were “as in the information.” CP at 63. Further, although
Sandberg confirmed that she had gone over the form with defense counsel, nothing in the record
6 No. 48787-0-II
shows that Sandberg was shown or told the contents of the information. Even defense counsel’s
subsequent declaration did not expressly state that he informed Sandberg of the elements of third
degree assault.
Second, Sandberg clearly stated at her plea hearing that her conduct was accidental.
When the trial court asked whether she understood what she was pleading guilty to and
specifically referenced third degree assault, Sandberg answered “yes” but then added “on
accident.” RP at 14. She then tried to explain: “Not on purpose, on accident I assaulted a . . . .”
RP at 14. At that point the trial court interrupted. But instead of clarifying with Sandberg that
the State had to prove intentional conduct in order to convict her, the court began discussing
other issues.
Third, at the first sentencing hearing Sandberg again emphasized that her conduct had
been accidental and informed the trial court that her conduct was caused by a seizure. Although
the court recognized a problem, it again did not attempt to determine whether Sandberg knew
that the State was required to prove intentional conduct to convict her. And after conferring with
her counsel, Sandberg immediately informed the court that she wished to withdraw her guilty
plea. This is not a situation where Sandberg attempted to withdraw her plea only after “roll[ing]
the dice on a favorable sentence” and being disappointed. A.N.J., 168 Wn.2d at 107.
Nothing in the record shows that Sandberg understood the facts of her case in relation to
the elements of the third degree assault. Instead, the record shows that Sandberg had a
misunderstanding of the elements of the offense and that neither the trial court nor anyone else
corrected her misunderstanding before she entered the guilty plea. Therefore, Sandberg did not
7 No. 48787-0-II
make a knowing, voluntary, and intelligent decision to plead guilty and accepting her withdrawal
of the guilty plea was necessary to prevent a manifest injustice.
We hold that based on the record in this case, the trial court erred in denying Sandberg’s
motion to withdraw her guilty plea.
CONCLUSION
We reverse Sandberg’s conviction of third degree assault, and we remand to the trial
court to allow Sandberg to withdraw her guilty plea.
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 in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
LEE, J.
SUTTON, J.