Filed Washington State Court of Appeals Division Two
January 4, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54332-0-II
Respondent,
v.
KAREN JANET ENDECOTT, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Karen J. Endecott appeals her convictions for first degree burglary and theft
of a firearm after she failed to comply with the terms of a pretrial diversion agreement. Endecott
argues that the pretrial diversion agreement was invalid on its face because of a mutual mistake
regarding her felony history, she received ineffective assistance of counsel because her defense
counsel advised her to enter into the pretrial diversion agreement, and insufficient evidence
supports her convictions.
We hold that Endecott waived her right to appeal the issue of whether the pretrial diversion
agreement was invalid, Endecott did not receive ineffective assistance of counsel, and the
stipulated facts provide sufficient evidence to convict Endecott of first degree burglary and theft
of a firearm. Therefore, we affirm Endecott’s convictions, but we remand with directions to the
trial court to reform paragraph 1 of the pretrial diversion agreement to accurately reflect Endecott’s
felony criminal history. No. 54332-0-II
FACTS
A. PRETRIAL DIVERSION
The State charged Endecott with first degree burglary, theft of a firearm, first degree
unlawful possession of a firearm, and first degree trafficking in stolen property. The State and
Endecott entered into a pretrial diversion agreement. Pursuant to the pretrial diversion agreement,
the State agreed to dismiss the charges for unlawful possession of a firearm and first degree
trafficking in stolen property, and upon Endecott’s successful completion of the Friendship
Diversion Program, 1 the State would then dismiss the charges for first degree burglary and theft
of a firearm. The pretrial diversion agreement included language that stated:
1. I have no prior conviction(s) for a felony offense in the State of Washington nor in any other state or country, nor have I ever successfully completed a DUI or Drug Court Program in the State of Washington or anywhere else, nor have I been convicted of a crime in another state or country which would be considered a felony in the State of Washington, nor do I have any other felony offenses pending in Washington or anywhere;
....
5. I understand that if I fail to successfully comply with this agreement, I will be removed from the diversion program, and the Thurston County Prosecuting Attorney’s Office will recommence prosecution of this case against me;
7. I stipulate that this court may determine my guilt or innocence for the charges presently filed against me in this matter based solely upon the law enforcement/investigating agency’s reports on which this prosecution was based, and I stipulate that the facts contained within the investigation reports are sufficient for a Trier of fact to find me guilty of the charge(s) presently filed against me in this matter. However, I understand that any stipulation as to the sufficiency of the evidence is not binding on the Court and the Court will make an independent
1 The Friendship Diversion Program monitors cases in the diversion program for the State.
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determination of guilt based on the documents provided by the State at the time of any such hearing.
Clerk’s Papers (CP) at 25, 27.
In the pretrial diversion agreement, Endecott also declared that she understood that the
standard sentencing range for her first degree burglary charge was 87 to 116 months2 and the
standard sentencing range for her theft of a firearm charge was 77 to 102 months. The ranges were
“based on the prosecuting attorney’s understanding of [Endecott’s] criminal history.” CP at 28.
Two months later, a case manager with Friendship Diversion Services notified the State
that Endecott had “failed to follow through with the enrollment process for the diversion program.”
CP at 34. As a result, the case manager referred Endecott’s case back to the State for disposition.
The State moved to revoke Endecott’s pretrial diversion agreement. After a hearing on the
motion, the trial court found that Endecott did not fulfill any of the responsibilities under the
agreement and revoked her pretrial diversion agreement.
B. STIPULATED FACTS BENCH TRIAL
The trial court then held a stipulated facts bench trial to determine Endecott’s guilt on the
charges of first degree burglary and theft of a firearm. Endecott argued that sufficient facts did
not exist to support her conviction.
As was stipulated to in the pretrial diversion agreement, the trial court considered the filed
police reports, which included the Thurston County Sheriff’s Office Field Report, the Thurston
County Sheriff’s Office Incident Report, two supplemental reports, a suspect interview with
2 A standard sentencing range of 87 to 116 months for first degree burglary is appropriate for a defendant with an offender score of 9+.
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Endecott, and pictures from the scene of the crime. According to the Incident Report, officers
were dispatched to the victim’s home where they spoke with the victim. The victim reported that
Endecott had stolen items from the premises. The victim and the officers reviewed video footage
from security cameras on the premises that showed Endecott entering the premises and taking
items from the property. The video footage showed Endecott entering a garage and carrying items
back to her car. The officers asked the victim if they knew Endecott. The victim stated that
Endecott had come to the premises a few times previously.
The officers then went to Endecott’s residence and spoke to her about the incident.
Endecott admitted going to the property and taking items that were not hers. Endecott also
admitted to taking a firearm off the wall of the home. The police reports showed that an “antique
shotgun used as wall art as [a] trophy” was stolen. CP at 73 (capitalization omitted). Endecott
told officers that she took some of the stolen items, including the firearm, to Billy Lemm.
The officers then spoke to Lemm. Lemm stated that Endecott showed up at his home with
the items, including the firearm, and tried to give them to him.
Based on the information presented, the trial court found Endecott guilty of first degree
burglary and theft of a firearm. The trial court found that Endecott did not have permission to be
on the premises, entered or remained unlawfully in a building with intent to commit a crime against
a person or property therein, admitted to taking property without permission, and thus committed
first degree burglary. The trial court also found that Endecott “was armed with a deadly weapon,
a 12 gauge shot gun” while in the building or in immediate flight therefrom. CP at 68. The trial
court further found that Endecott committed theft of a firearm when she stole “a 12-gauge
shotgun.” CP at 68.
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At the sentencing hearing, the trial court merged the theft of a firearm and first degree
burglary charges. The trial court found that Endecott had an offender score of 16, which carried a
standard sentencing range of 87 to 116 months for the first degree burglary conviction. The
standard sentencing range found by the trial court based on an offender score of 16 matched the
standard sentencing range reflected in Endecott’s pretrial diversion agreement.
Endecott appeals.
ANALYSIS
A. PRETRIAL DIVERSION AGREEMENT
Endecott argues that the pretrial diversion agreement is invalid on its face and cannot be
enforced by the State. Endecott contends that the parties made a mutual mistake under paragraph
1 of the agreement, which stated that Endecott had no prior felony convictions. The State argues
that Endecott waived her right to appeal this issue because she failed to raise the issue with the
trial court. Alternatively, the State argues that the misstatement under paragraph 1 was a
scrivener’s error. We agree with the State that Endecott has waived her right to appeal this issue.
We “may refuse to review any claim of error which was not raised in the trial court.” RAP
2.5(a). But a party may raise a claim for the first time on appeal when it is a “manifest error
affecting a constitutional right.” RAP 2.5(a)(3). An error is “manifest” if an appellant shows
actual prejudice. State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). “To demonstrate
actual prejudice, there must be a ‘plausible showing by the appellant that the asserted error had
practical and identifiable consequences in the trial of the case.’” Id. (internal quotation marks
omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)).
5 No. 54332-0-II
Endecott’s contention that the pretrial diversion agreement is invalid affects her
constitutional rights. Like plea agreements, diversion agreements require that a defendant give up
constitutional rights in exchange for certain benefits. See State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d
591 (2001). “[B]ecause fundamental rights of the accused are at issue, due process considerations
come into play.” Id.
Here, Endecott gave up the right to a jury trial, to a speedy and public trial, to confront
witnesses at trial, to call witnesses, to testify on her own behalf, and to appeal a determination of
guilty. Therefore, Endecott’s fundamental rights are at issue and her claim is of constitutional
magnitude. However, Endecott’s claim is not a manifest error because no mutual mistake
occurred.
1. Legal Principles
Pretrial diversion agreements are contracts. See State v. Kessler, 75 Wn. App. 634, 638-
39, 879 P.2d 333 (1994) (applying to a diversion agreement the “legal principles of due process as
guided by analogy to such contract principles as may be appropriate and helpful”).3 The
interpretation of a pretrial diversion agreement is a question of law that we review de novo. See
State v. Bisson, 156 Wn.2d 507, 517, 130 P.3d 820 (2006) (interpreting plea agreements, which
are contracts, is a question of law that the appellate court reviews de novo).
A mutual mistake occurs when both parties make the same mistake. Simonson v. Fendell,
101 Wn.2d 88, 91, 675 P.2d 1218 (1984). “A mistake is a belief not in accord with the facts.” Id.
3 Both the State and Endecott rely on an unpublished case, State v. Patel, 36732-2-III, (Wash. Ct. App. Jul. 16, 2020) (unpublished), http://www.courts.wa.gov/opinions/pdf/367321_unp.pdf, which held that pretrial diversion agreements should be treated as contracts.
6 No. 54332-0-II
Both parties must independently believe the mistaken fact. Id. “The test for mutuality of mistake
requires the mistaken fact be the underlying basis of the entire agreement and, when discovered,
that the essence of the agreement is destroyed.” Seattle Prof’l Eng’g Emp. Ass’n v. Boeing Co.,
139 Wn.2d 824, 832, 991 P.2d 1126 (2000).
2. No Mutual Mistake
Endecott argues that there is a mutual mistake in the diversion agreement because the
statement in paragraph 1 that Endecott had no prior convictions for a felony offense was
completely false. We hold that no mutual mistake occurred because neither party relied on the
statement that Endecott had no felony criminal history in reaching the pretrial diversion agreement.
Here, there is no evidence that either the State or Endecott relied on the statement that
Endecott did not have a felony criminal history in agreeing to a pretrial diversion. Also, the pretrial
diversion agreement shows that the State understood Endecott had a felony offender score of 9+
when it listed her standard sentencing ranges for first degree burglary (87 to 116 months) and theft
of a firearm (87 to 116 months). And Endecott admits that her lengthy criminal history is reflected
in the sentencing ranges stated in the pretrial diversion agreement.
Further, the essence of the pretrial diversion agreement was not destroyed by the
misstatement that Endecott had no felony criminal history. The misstatement did not cause the
agreement to be terminated; the agreement was terminated because Endecott failed to fulfill any
of her responsibilities under the agreement. And there is no evidence that the misstatement
affected the stipulated facts bench trial. Nor is there any evidence that the misstatement affected
the sentencing hearing, as the trial court imposed the same sentencing range as reflected in the
pretrial diversion agreement.
7 No. 54332-0-II
Endecott relies on Goodwin4 and Walsh to contend that she should be allowed to withdraw
from the pretrial diversion agreement. But both cases involved miscalculated or incorrect
sentencing ranges in the plea agreement. Goodwin, 146 Wn.2d at 864, 867; Walsh, 143 Wn.2d at
4. Thus, Goodwin and Walsh are distinguishable.
Unlike in Goodwin and Walsh, Endecott’s pretrial diversion agreement included accurate
sentencing ranges, which were based on an offender of 9+. Endecott admits that that the sentencing
ranges in the pretrial diversion agreement reflects her lengthy criminal history. And the trial court
found the same sentencing range in the judgment and sentence as reflected in the pretrial diversion
agreement. Therefore, unlike in Goodwin and Walsh, Endecott’s offender score was not
miscalculated and she was not subject to an inaccurate sentencing range as a result. The diversion
agreement is not invalid because the misstatement is not a mutual mistake.
3. Scrivener’s Error
The State argues, in the alternative, that the statement in paragraph 1 of the pretrial
diversion agreement is a scrivener’s error. We agree.
“‘A scrivener’s error occurs when the intention of the parties is identical at the time of the
transaction but the written agreement errs in expressing that intention.’” Glepco, LLC v. Reinstra,
175 Wn. App. 545, 561, 307 P.3d 744 (quoting Reynolds v. Farmers Ins. Co., 90 Wn. App. 880,
885, 960 P.2d 432 (1998)), review denied, 179 Wn.2d 1006 (2013). A scrivener’s error may be
resolved through reformation of the affected contract. See id. at 564.
4 In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002).
8 No. 54332-0-II
We hold that the statement in paragraph 1 is a scrivener’s error because neither party
believed that Endecott had no felony criminal history. This is shown by the sentencing ranges set
forth in the pretrial diversion agreement, which accurately took into account Endecott’s criminal
history. Neither party objected at sentencing to the trial court’s finding that Endecott had an
offender score of 16, which resulted in the same sentencing ranges as reflected in the pretrial
diversion agreement. Therefore, it is clear that both parties were aware of Endecott’s felony
criminal history at the time they entered into the pretrial diversion agreement and that they intended
Endecott’s criminal history to be reflected in the sentencing ranges set forth in the agreement.
Thus, paragraph 1 of the pretrial diversion agreement is a scrivener’s error.
4. Conclusion
Because there is no mutual mistake and the statement in paragraph 1 is merely a scrivener’s
error, we hold that Endecott has not shown a manifest error and, therefore, has waived her
challenge to invalidate the pretrial diversion agreement based on mutual mistake. However, we
remand with directions to the trial court to reform paragraph 1 of the pretrial diversion agreement
to accurately reflect Endecott’s felony criminal history.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Endecott argues that she received ineffective assistance of counsel because her defense
counsel allowed her to “perjure herself by signing an inaccurate diversion agreement.” Br. of
Appellant at 14. We disagree.
We review claims of ineffective assistance of counsel de novo. State v. Linville, 191 Wn.2d
513, 518, 423 P.3d 842 (2018). To establish ineffective assistance of counsel, a defendant must
show that their attorney’s performance was deficient and, if it was deficient, that it was prejudicial.
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State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 574 U.S. 860 (2014). An
ineffective assistance of counsel claim fails if the defendant fails to establish either deficient
performance or prejudice. Id. at 33.
Performance is deficient if counsel’s representation falls below an objective standard of
reasonableness based on consideration of all the circumstances. Id. There is a strong presumption
that counsel’s representation was effective. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177
(2009).
Perjury in the first or second degree occurs when an individual makes a materially false
statement, which they know to be false under an oath. RCW 9A.72.020, .030. A statement is
material if it “could have affected the course or outcome of the proceeding.” Former RCW
9A.72.010(1) (2001).
Here, the evidence does not support a perjury claim because the statement in paragraph 1
did not affect the course or outcome of the proceedings. First, there is no evidence that the State
or Endecott relied on paragraph 1 of the pretrial diversion agreement in deciding to enter in the
agreement. Second, Endecott admits that the pretrial diversion agreement accurately reflected her
lengthy criminal history in the sentencing ranges set forth in the agreement. Third, the trial court
did not revoke the agreement because of any misstatement in paragraph 1; rather, the trial court
revoked the pretrial diversion agreement because Endecott had failed to fulfill any of her
responsibilities under the agreement. And fourth, the trial court, based on Endecott’s undisputed
offender score, imposed the same sentencing range that was set forth in the pretrial diversion
agreement. Therefore, there is no evidence that the statement in paragraph 1 of the agreement
affected the decision to enter into the pretrial diversion agreement, its revocation, or the outcome
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of any proceedings. Thus, the statement in paragraph 1 of the pretrial diversion agreement cannot
be the basis for a perjury claim.
Endecott has not shown that defense counsel’s representation fell below an objective
standard of reasonableness by allowing Endecott to sign the agreement. Accordingly, we hold that
Endecott’s ineffective assistance of counsel claim fails.
C. SUFFICIENCY OF THE EVIDENCE
Endecott argues that there is insufficient evidence to support her first degree burglary and
theft of a firearm convictions. Specifically, Endecott claims that the State failed to prove that she
was on the premises unlawfully and failed to prove that she had a deadly weapon or a firearm. We
disagree.
Evidence is sufficient to support a conviction if any rational trier of fact can find the
essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). The evidence must be viewed in the light most favorable to the State and
interpreted most strongly against the defendant. Id. Circumstantial and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A claim of insufficiency of
evidence admits the truth of the State’s evidence and all inferences that reasonably can be drawn
therefrom. Salinas, 119 Wn.2d at 201.
Endecott was convicted at a stipulated facts bench trial. While a stipulated facts bench trial
is still a trial of the defendant’s guilt or innocence, a stipulation to facts is an express waiver
conceding for the purpose of the trial that the facts are true and there is no need to prove the facts.
State v. Mierz, 127 Wn.2d 460, 469, 901 P.2d 286 (1995); State v. Wolf, 134 Wn. App. 196, 199,
11 No. 54332-0-II
139 P.3d 414 (2006). When an individual stipulates to a factual finding, they are precluded from
challenging this finding on appeal. See State v. Ellison, 172 Wn. App. 710, 715, 291 P.3d 921
(2013), review denied, 180 Wn.2d 1014 (2014).
2. Entering Or Remaining Unlawfully In A Building
Endecott argues that the trial court did not have sufficient evidence to support its finding
that she did not have permission to enter the residence. We disagree.
“A person is guilty of burglary in the first degree if, with intent to commit a crime against
a person or property therein, he or she enters or remains unlawfully in a building and if, in entering
or while in the building or in immediate flight therefrom, the actor or another participant in the
crime . . . is armed with a deadly weapon.” RCW 9A.52.020(1). A person “enters or remains
unlawfully” when they are “not then licensed, invited, or otherwise privileged to so enter or
remain.” RCW 9A.52.010(2). A privilege to remain may be revoked or limited depending on the
circumstances of the case. State v. Collins, 110 Wn.2d 253, 261, 751 P.2d 837 (1988).
Endecott argues that she had permission to be on the premises because she had previously
been invited onto the premises as a guest. Endecott contends that none of the residents stated that
Endecott was not allowed on the premises.
The State argues that there is no evidence that Endecott had a license to enter the premises,
and even if she had permission in the past to be on the premises, any permission was implicitly
revoked when she began to remove property from the residence. We agree with the State.
Even if Endecott had permission to be on the premises in the past, this permission did not
extend to the night of the burglary and did not include permission to remove items from the
premises. This is evident from the fact that the resident of the premises contacted law enforcement.
12 No. 54332-0-II
The resident reported that Endecott came onto the property and took items. Clearly, if Endecott
had the resident’s permission to be on the premises to take property, they would not have called
the police. We hold that sufficient evidence existed for a rational trial of fact to find beyond a
reasonable doubt that Endecott “entered or remained unlawfully” on the premises.
3. Theft Of A Firearm And Armed With A Deadly Weapon
Endecott argues that the State failed to prove first degree burglary or theft of a firearm
because it is unclear whether the antique shotgun is a firearm as the shotgun was described as a
“‘trophy’” and trophies are typically not functional. Br. of Appellant at 25 (quoting CP at 73).
We disagree.
“A person is guilty of burglary in the first degree if, with intent to commit a crime against
a person or property therein, he or she enters or remains unlawfully in a building and if, in entering
or while in the building or in immediate flight therefrom, the actor or another participant in the
crime . . . is armed with a deadly weapon.” RCW 9A.52.020(1). A deadly weapon may be a
“loaded or unloaded firearm . . . which, under the circumstances in which it is used, attempted to
be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.”
RCW 9A.04.110(6).
A person is guilty of theft of a firearm if they commit “a theft of any firearm.” RCW
9A.56.300(1). A firearm is “a weapon or device from which a projectile or projectiles may be
fired by an explosive.” Former RCW 9.41.010(11) (2014). A firearm does not need to be
operational during the commission of a crime. State v. Olsen, 10 Wn. App. 2d 731, 738, 449 P.3d
1089 (2019).
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Here, the police report referred to the antique shotgun as an “antique shotgun used as wall
art as [a] trophy.” CP at 73 (capitalization omitted). The report does not state that the shotgun
itself was a trophy, only that the shotgun was “used” as a trophy. CP at 73 (capitalization omitted).
Further, Endecott told officers that she stole the firearm. This was reinforced by Lemm, who stated
that Endecott showed up at his home with the firearm. Therefore, based on the evidence presented,
viewed in the light most favorable to the State and interpreted most strongly against Endecott, the
shotgun, though antique, was a firearm. See Salinas, 119 Wn.2d at 201 (holding a claim of
insufficiency of evidence admits the truth of the State’s evidence and all inferences that can
reasonably be drawn). We hold that there is sufficient evidence for a rational trier of fact to find
beyond a reasonable doubt that the antique shotgun is a firearm.
We affirm Endecott’s convictions, but we remand with directions to the trial court to reform
paragraph 1 of the pretrial diversion agreement to accurately reflect Endecott’s felony criminal
history.
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.
Lee, C.J. We concur:
Maxa, J.
Cruser, J.