State Of Washington, V. Joseph Allen Campbell

• Court: Court of Appeals of Washington
• Decided: September 4, 2024
• Docket: 57546-9
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

September 4, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 57546-9-II

Respondent,

v. UNPUBLISHED OPINION

JOSEPH ALLEN CAMPBELL,

Appellant.

CHE, J. ⎯ Joseph Allen Campbell seeks to withdraw his guilty plea.

Campbell pleaded guilty to one count of second degree rape of a child. The trial court

imposed a sentence based on an offender score of 2, which included one point for committing the

current offense while on community placement under RCW 9.94A.360.

Campbell appeals, arguing that his guilty plea was not knowing, intelligent, and

voluntary as it was based on an incorrect offender score. In a statement of additional grounds

(SAG), Campbell also argues that he received ineffective assistance of counsel.

We hold that (1) the trial court erred by using an incorrect offender score to sentence

Campbell, (2) Campbell is not entitled to withdraw his guilty plea, but he is entitled to

resentencing using a correct offender score, and (3) Campbell did not receive ineffective

assistance of counsel.

Accordingly, we affirm the conviction and remand to the trial court for resentencing

using Campbell’s correct offender score. No. 57546-9-II

FACTS

In 2003, the State charged Campbell with second degree rape of a child. The information

identified minor VKF (DOB 5/18/90) as the victim. But the probable cause certificate appeared

to identify a different individual, minor FGK (DOB 7/20/90), as both a witness and the victim.

SAG Ex. 1. Campbell pleaded guilty to second degree rape of a child. In Campbell’s statement

on plea of guilty, he wrote that he “had sexual intercourse with a 12 year old minor DOB

(5/18/90)” when “[he] was 18 years old.” Clerk’s Papers (CP) at 7. He did not name the victim,

however.

Both Campbell’s statement on plea of guilty and the plea agreement reflected an offender

score of 0 and the corresponding standard sentence range. Campbell’s statement on plea of

guilty acknowledged that “both the standard sentence range and the prosecuting attorney’s

recommendation may increase” if the State discovered additional criminal history. CP at 3.

Campbell acknowledged that his guilty plea would nevertheless be binding.

Campbell signed the guilty plea statement, attesting that his lawyer had explained the

plea and that he understood it and had no further questions. Campbell also attested that he made

the plea “freely and voluntarily.” CP at 7. Campbell’s attorney signed the statement, declaring

that he had discussed the statement with Campbell and believed Campbell was, “competent and

fully understands the statement.” CP at 7. The trial court found Campbell’s guilty plea

“knowingly, intelligently and voluntarily made” and that Campbell understood “the charges and

the consequences of the plea.” CP at 8.

Before sentencing, the State discovered that Campbell’s criminal history contained three

prior nonviolent juvenile offenses, totaling 1.5 points. Additionally, Campbell was on juvenile

2 No. 57546-9-II

probation when he committed his offense. Therefore, the trial court added one additional point

because it believed that Campbell committed his offense while on community placement. The

trial court sentenced Campbell using an offender score of 2. It imposed 125 months to be served

through the Special Sexual Offender Sentencing Alternative (SSOSA). The trial court later

revoked Campbell’s SSOSA and sentenced him to 125 months to life. In re Pers. Restraint of

Campbell, 27 Wn. App. 2d 251, 253, 533 P.3d 144 (2023).

Campbell appeals.1

ANALYSIS

I. WITHDRAWAL OF GUILTY PLEA

Campbell argues that his guilty plea was not knowing, intelligent, and voluntary because

the trial court erroneously added one point for community placement, thereby sentencing him

using an incorrect offender score. He seeks to withdraw his guilty plea as his chosen remedy.

The State concedes that Campbell’s offender score is incorrect but argues he is entitled only to

resentencing using a correct offender score. We accept the State’s concession that the trial court

sentenced Campbell using the incorrect offender score. But we conclude Campbell’s guilty plea

was knowing, intelligent, and voluntary, and that the error here is a factual one, such that he is

not entitled to withdraw his guilty plea. Instead, Campbell is entitled to resentencing using a

correct offender score.

1 Campbell filed his notice of appeal on November 4, 2022, nearly 20 years after entry of the judgment and sentence. The commissioner granted Campbell’s motion to file a late notice of appeal pursuant to RAP 18.8(b).

3 No. 57546-9-II

A. Offender Score Calculation

The sentence imposed by the trial court must be statutorily authorized. In re Pers.

Restraint of Schorr, 191 Wn.2d 315, 322, 422 P.3d 451 (2018). We review offender score

calculations de novo. State v. Griepsma, 17 Wn. App. 2d 606, 619, 490 P.3d 239 (2021). RCW

9.94A.525 governs the offender score calculation. The trial court must add one point to a

defendant’s offender score if they are under community placement when they commit their

offense. Former RCW 9.94A.525(17) (2002). Community placement is defined as the “period

during which the offender is subject to the conditions of community custody and/or postrelease

supervision.” Former RCW 9.94A.030(7) (2002). Community placement is not available for

juvenile offenses. See former RCW 9.94A.030(7) (2002).

Here, Campbell’s juvenile probation did not qualify as community placement under

former RCW 9.94A.030(7). Thus, the trial court erred by adding one point to Campbell’s

offender score calculation and Campbell is entitled to a remedy.

B. Campbell’s Plea is Knowing, Intelligent, and Voluntary, and Campbell Is Entitled Only

to Resentencing Using a Correct Offender Score

Campbell seeks to withdraw his guilty plea, arguing that the erroneous offender score

rendered his plea not knowing, voluntary, and intelligent. The State responds that the remedy for

an erroneous offender score is resentencing with a correct offender score, not withdrawal of the

plea. Given the facts of this case, we agree with the State.

“Due process requires that a defendant’s guilty plea must be knowing, intelligent, and

voluntary.” State v. Codiga, 162 Wn.2d 912, 922, 175 P.3d 1082 (2008). When guilty pleas are

voluntarily and intelligently made, there is a strong public interest in their enforcement. Id.

4 No. 57546-9-II

There is a strong presumption that a plea is voluntary if “‘a defendant completes a plea statement

and admits to reading, understanding, and signing it.’” State v. D.G.A., 25 Wn. App. 2d 860,

864, 525 P.3d 995, review denied, 534 P.3d 802 (2023) (quoting State v. Smith, 134 Wn.2d 849,

852, 953 P.2d 810 (1998)). We determine whether a plea is knowingly, intelligently, and

voluntarily made based on the totality of circumstances. State v. Snider, 199 Wn.2d 435, 444,

508 P.3d 1014 (2022). The State bears the burden of proving a guilty plea is valid. State v.

Ross, 129 Wn.2d 279, 283, 916 P.2d 405 (1996).

Plea agreements are regarded and interpreted as contracts between the parties and the

parties are bound by the terms of a valid plea agreement. Codiga, 162 Wn.2d at 922. Under CrR

4.2(f), a defendant may withdraw their guilty plea when it appears necessary to correct a

manifest injustice. Id. at 922-23. Involuntary pleas can amount to a manifest injustice. Id. at

923. The defendant carries the burden of proving manifest injustice. Ross, 129 Wn.2d at 283.

It is uncontested that Campbell read and signed his guilty plea statement, attesting that he

discussed all the paragraphs with his attorney, understood its terms, and entered the plea “freely

and voluntarily.” CP at 7. Campbell’s attorney attested that the attorney discussed the guilty

plea with Campbell and believed Campbell was competent and fully understood the guilty plea.

The trial court found Campbell’s plea was “knowingly, intelligently and voluntarily made” and

Campbell “underst[ood] the charges and the consequences of the plea.” CP at 8. This creates a

strong presumption that Campbell’s plea was voluntary.

Campbell, however, argues that the erroneous offender score rendered his plea not

knowing, voluntary, and intelligent. He relies on Codiga for the proposition that because his

5 No. 57546-9-II

offender score is incorrect, which is a legal error, his choice of remedy—withdrawal of his

plea—controls.

In Codiga, our Supreme Court discussed cases in which it had held that a mutual mistake

made by the parties at the time the plea was entered or negotiated—regarding the standard

sentence range or offender score—caused the plea to be involuntary such that it could be

withdrawn. Codiga, 162 Wn.2d at 925. The court recognized “a distinction between instances

where the mistake was a factual one involving the defendant’s criminal history and instances

where the defendant completely and correctly revealed [their] criminal history, but the attorneys

made a legal mistake as to the resulting sentencing range for the current crime.” Codiga, 162

Wn.2d at 926. The defendant should not be burdened with assuming the risk of a legal mistake

where their criminal history is correct and complete, but counsel miscalculates the resulting

offender score. Id. at 929. But where the defendant does not disclose their correct or complete

criminal history, as was the case in Codiga, they assume the risk of additional criminal history

being discovered that would impact their offender score and fail to establish a manifest injustice

to allow withdrawal of their guilty plea. Id. at 928, 930.

Like Codiga, Campbell failed to disclose his entire criminal history and he has not

claimed that he presented his entire criminal history to his attorney or the State prior to the entry

of his guilty plea. Id. at 930. Thus, Campbell assumed the risk of his additional criminal history

that was discovered, which resulted in a higher offender score than anticipated by the plea

agreement. Campbell characterizes the miscalculation of his further discovered criminal history

as a “legal error,” but he disregards that he first failed to disclose his entire and correct criminal

history, which is a factual mistake. Because this is an instance of a factual mistake regarding

6 No. 57546-9-II

Campbell’s criminal history, he fails to establish manifest injustice sufficient to warrant

withdrawal of his guilty plea. See Id. at 930.

Campbell does not show that withdrawal of his guilty plea is necessary to correct a

manifest injustice, but he is nonetheless entitled to resentencing. See State v. Wilson, 170 Wn.2d

682, 690, 244 P.3d 950 (2010) (“‘[T]he remedy for a miscalculated offender score is

resentencing using a correct offender score’” (quoting Ross, 152 Wn.2d at 228)).

Additionally, Codiga does not stand for the proposition that a guilty plea must be

withdrawn under Campbell’s circumstance where he failed to disclose his criminal record, the

court erroneously included one point for community placement, and it sentenced Campbell using

the incorrect offender score. Campbell provides no persuasive authority supporting his chosen

remedy. Moreover, our Supreme Court has articulated that the proper remedy for a sentence

based on a miscalculated offender score is resentencing using a correct offender score. Wilson,

170 Wn.2d at 690. Thus, we hold the remedy for Campbell’s miscalculated offender score is to

remand for resentencing based on a correct offender score.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his SAG, Campbell argues that defense counsel was ineffective in several ways. He

first asserts that counsel rendered ineffective assistance by failing to inform him that both the

certificate of probable cause and the information identified different persons as the victim of the

sex offense. Specifically, Campbell claims that had he been informed of the discrepancy of the

named victims, he would not have pleaded guilty and would have instead proceeded to trial. We

disagree. As explained below, we do not reach Campbell’s other SAG arguments.

7 No. 57546-9-II

A. Legal Principles

Defendants are entitled to effective assistance of counsel under both the United States

and Washington Constitutions. State v. Lopez, 190 Wn.2d 104, 115, 410 P.3d 1117 (2018). To

overcome the “strong presumption” that counsel is effective, a defendant must show that defense

counsel’s representation “fell below an objective standard of reasonableness based on

consideration of all the circumstances” and that counsel’s deficient representation prejudiced the

defendant. State v. Vazquez, 198 Wn.2d 239, 247-48, 494 P.3d 424 (2021). Failure to prove

either prong of the test ends the inquiry. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009).

To satisfy the prejudice prong, “a defendant challenging a guilty plea must show that

there is a reasonable probability that, but for counsel’s errors, [they] would not have pleaded

guilty and would have insisted on going to trial.” In re Pers. Restraint of Garcia-Mendoza, 196

Wn.2d 836, 845, 479 P.3d 674 (2021) (internal quotation marks omitted) (quoting State v.

Sandoval, 171 Wn.2d 163, 174-75, 249 P.3d 1015 (2011)). A reasonable probability exists if the

defendant “convince[s] the court that a decision to reject the plea bargain would have been

rational under the circumstances.” In re Pers. Restraint of Amos, 1 Wn. App. 2d 578, 595, 406

P.3d 707 (2017) (internal quotation marks omitted) (quoting Sandoval, 171 Wn.2d at 169).

A defendant’s bare allegation that he would not have pleaded guilty but for the error is

insufficient to establish prejudice. Buckman, 190 Wn.2d at 69; In re Pers. Restraint of Elmore,

162 Wn.2d 236, 254-55, 172 P.3d 335 (2007).

8 No. 57546-9-II

B. Campbell Fails to Show That He Was Prejudiced by Defense Counsel’s Performance

Campbell does not satisfy the prejudice prong.

Campbell must demonstrate a reasonable probability that, but for defense counsel’s

failure to inform him of the discrepancy of the named victims, he would have insisted on going

to trial. Garcia-Mendoza, 196 Wn.2d at 845. Instead, Campbell only asserts without

explanation that he would have proceeded to trial if his attorney informed him of the

discrepancy. Merely claiming that he would not have pleaded guilty or taken the plea deal but

for the alleged error is insufficient to establish prejudice. Buckman, 190 Wn.2d at 69.

Moreover, when Campbell was asked to state what he did in his own words that made him guilty

of the sex offense, Campbell acknowledged that he “had sexual intercourse with a 12 year old

minor DOB (5/18/90).” This statement matched the birth date of the victim identified as VKF in

the information. Because Campbell fails to establish prejudice, he does not demonstrate

ineffective assistance of counsel as to the victim identity issue.

Campbell also argues that he received ineffective assistance of counsel due to the

erroneous offender score. In light of our decision to remand for resentencing, we do not address

this argument.

Campbell also argues that defense counsel failed to investigate his mental health and

behavioral issues and misadvised him during plea negotiations. We cannot consider these

arguments as they are based on evidence outside the record. State v. Alvarado, 164 Wn.2d 556,

569, 192 P.3d 345 (2008) (Where “arguments [in a SAG] are not supported by credible evidence

in the record, we cannot review them.”) (emphasis added). Campbell’s recourse is to raise these

claims in a properly supported personal restraint petition. Alvarado, 164 Wn.2d at 569.

9 No. 57546-9-II

Thus, Campbell’s ineffective assistance of counsel claim fails and we decline to address

the remaining arguments in his SAG.

CONCLUSION

We affirm Campbell’s conviction and remand to the trial court for resentencing using

Campbell’s correct offender score.

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.

Che, J. We concur:

Maxa, P.J.

Price, J.