State v. Paul

12 P.3d 1036
CourtCourt of Appeals of Washington
DecidedNovember 17, 2000
Docket24425-0-II
StatusPublished
Cited by11 cases

This text of 12 P.3d 1036 (State v. Paul) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Paul, 12 P.3d 1036 (Wash. Ct. App. 2000).

Opinion

12 P.3d 1036 (2000)
103 Wash.App. 487

STATE of Washington, Respondent,
v.
Jeremy David PAUL, Appellant.

No. 24425-0-II.

Court of Appeals of Washington, Division 2.

November 17, 2000.

*1037 Thomas Edward Doyle, Hansville, Robert Mason Quillian, Olympia, for Appellant.

J. Andrew Toynbee, Lewis County Deputy Prosecuting Attorney, Chehalis, for Respondent.

FOSCUE, J.P.T.[1]

Jeremy Paul appeals from an order denying his motion to withdraw his plea of guilty to one count of first degree burglary and three counts of theft of a firearm. Paul contends he was unaware of the correct sentencing range and, therefore, the trial court erred in finding that he entered his plea voluntarily and knowingly. We affirm.

FACTS

In July 1998, Paul was arrested while driving in Cowlitz County because of what Paul described as "some road rage stuff." The State charged him in Cowlitz County with felony harassment and unlawful possession of a firearm.

The firearm discovered in Paul's vehicle was one of three firearms he had stolen in a Lewis County burglary two days earlier. The State then charged Paul in Lewis County with one count of first degree burglary, three counts of theft of a firearm, and three counts of first degree unlawful possession of a firearm. The State later amended the information to add a firearm enhancement to the first degree burglary count.

On October 2, 1998, in Lewis County, Paul entered an Alford plea[2] to one count of first degree burglary, without a firearm enhancement, and three counts of theft of a firearm. But in paragraph 6(a) of the Plea Statement, the expected standard sentencing range was omitted:

The crime with which I am charged carries a maximum sentence of LIFE ... imprisonment and a $50,000 fine. The standard sentence range is from ___ months to ___ months confinement, based *1038 on the prosecuting attorney's understanding of my criminal history.

(Emphasis added). This omission is the basis for Paul's appeal.

In paragraph 6(c), the prosecutor listed Paul's prior California convictions of first degree burglary and grant theft. At the end of the paragraph, defense counsel added a handwritten comment about Paul's prior convictions:

Unless I [Paul] have attached a different statement, I agree that the prosecuting attorney's statement [of the criminal history] is correct and complete. If I have attached my own statement, I assert that it is correct and complete.... DEFENDANT BELIEVES THEFT CHARGE TO BE A MISDEMEANOR & DEFENSE IS UNSURE OF CORRELATION BETWEEN CALIFORNIA & WASHINGTON BURGLARY STATUTES.

(Emphasis added.)

In paragraph 6(f), the prosecutor agreed to recommend at sentencing a 75 month prison term.[3] The prosecutor further "ACKNOWLEDGES COWLITZ COUNTY AGREEMENT TO RUN ITS SENTENCE CONCURRENT WITH LEWIS COUNTY IF [PAUL] P.G. IN COWLITZ CO. AS CHARGED."

In connection with Paul's execution of the Plea Statement, defense counsel discussed sentence ranges with Paul using two "Offender Scoring" sheets for first degree burglary. On both sheets defense counsel calculated Paul's offender score to be four, representing a sentence range of 36 to 48 months.[4] But on the back of one of the sheets, defense counsel wrote: "IF GRAND THEFT IS MISDEMEANOR & ST[ATE] V. ROOSE [APPLIES], RANGE IS 31-41 MONTHS."[5]

At the hearing on Paul's plea, the trial judge questioned Paul about his understanding of potential sentence consequences:

JUDGE BROSEY: You understand that I'm not required to accept the recommendation made by [defense counsel], yourself, or the prosecutor as far as sentence is concerned; that I could sentence you to the maximum provided for by law?

MR. PAUL: Yes.

JUDGE BROSEY: You understand that Count I, Burglary in the First Degree, is a Class A felony and the maximum punishment is life imprisonment?
JUDGE BROSEY: You understand Count II, Theft of a Firearm, Count III, Theft of a Firearm, Count IV, Theft of a Firearm, are all Class B felonies and the maximum punishment for those is 10 years each; do you understand that?
JUDGE BROSEY: Now, [defense counsel] has in his hand a Statement of Defendant on Plea of Guilty form. Did he discuss with you and go over that with you?
MR. PAUL: Yes.
JUDGE BROSEY: That form contains a complete listing or enumeration of your rights. Do you have any questions about your rights?
MR. PAUL: No.
. . . .
JUDGE BROSEY: And you understand that your criminal history consists of a Burglary First out of California and a Grand Theft? ...
*1039 [DEFENSE COUNSEL]: Mr. Paul believes the Grand Theft was a misdemeanor. We're not sure of the correlation between Washington and California.
JUDGE BROSEY: There's a dispute as to criminal history?
[DEFENSE COUNSEL]: Yes, Your Honor.
JUDGE BROSEY: You understand the State's going to recommend 75 months.... Counts V, VI, and VII [charging unlawful possession of a firearm] are dismissed. The firearm enhancement is dismissed. The State acknowledges the Cowlitz County agreement to run it's [sic] sentence concurrent with Lewis County if the defendant pleads guilty in Cowlitz County as charged.
Do you understand that offer?
MR. PAUL: Yes.

The trial judge determined that there was a factual basis for the plea and then accepted it as being made with full knowledge of its consequences.

On the date set for Paul's sentencing, November 9, 1998, Paul sought to withdraw his plea. The trial court appointed new counsel for Paul and rescheduled sentencing, apparently based on Paul's "indicat[ion] that he did not know if he wanted to withdraw his guilty pleas."

At some point following the entry of Paul's guilty plea in Lewis County, the State amended the Cowlitz County charges and Paul pleaded guilty to one count of second degree unlawful possession of a firearm and one count of second degree possession of stolen property. Paul was sentenced in Cowlitz County on December 1, 1998. Because he was convicted in Cowlitz County before he was sentenced in Lewis County, the Cowlitz convictions became part of his criminal history for the Lewis County case.[6]

In January 1999, Paul moved to withdraw his Lewis County guilty plea. At the hearing on the motion, Paul testified that he anticipated a standard sentence range of either 31 to 41 months or 36 to 48 months based on an offender score of three or four, respectively, and that he would have insisted on going to trial had he known he was facing a range of 57 to 75 months based on an offender score of six.[7] But Paul further testified that, before he entered his plea: (1) defense counsel had "explained two or three difference [sentences] that [he] could get," including a sentence within the 57 to 75 month range; (2) he knew the State was going to recommend 75 months; (3) he knew there was a dispute as to the correct sentencing range; (4) he was told by defense counsel he "[p]ossibly ... wouldn't get [75 months];" and (5) he knew the sentencing judge could go beyond the State's recommendation up to life in prison. (Emphasis added.)

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Bluebook (online)
12 P.3d 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-paul-washctapp-2000.