THE STATE OF WASHINGTON, Respondent, v. WILEY FLOYD KISSEE, Appellant.
[1] Criminal Law - Plea of Guilty - Validity - Test. A guilty plea is invalid if it is not made knowingly, voluntarily, and intelligently.
[2] Criminal Law - Plea of Guilty - Advisement of Rights - Consequences of Plea - Direct Consequences - In General.
818 STATE v. KISSEE Nov. 1997
88 Wn. App. 817, 947 P.2d 262
A defendant's guilty plea is not knowing, voluntary, and intelligent unless the defendant correctly understands its direct sentencing consequences. A sentencing consequence is direct if it will have a definite, immediate, and largely automatic effect on the range of the defendant's punishment.
[3] Criminal Law - Plea of Guilty - Advisement of Rights - Consequences of Plea - Direct Consequences - What Constitutes - Special Sex Offender Alternative. A defendant's ineligibility for the special sex offender sentencing alternative of RCW 9.94A. 120(8) is a "direct sentencing consequence" of pleading guilty to a sex-related crime.
[4] Criminal Law - Plea of Guilty - Withdrawal - Misunderstanding of Direct Sentencing Consequence. A guilty plea may be withdrawn if, due to a mistaken belief, the defendant did not understand a direct sentencing consequence of the plea.
Nature of Action: Prosecution for three counts of luring, one count of communicating with a minor for immoral purposes, one count of first degree child molestation, and one count of second degree child molestation. Following plea negotiations, the defendant agreed to plead guilty to the luring and communicating with a minor counts and the State agreed to drop the child molestation counts and to allow the defendant to seek a special sexual offender sentencing alternative.
Superior Court: The Superior Court for Clark County, No. 94-1-01695-4, Edwin L. Poyfair, J., on September 18, 1995, entered a judgment on a plea of guilty to the luring and communicating counts, dismissed the molestation counts with prejudice, and sentenced the defendant to 48 months of incarceration.
Court of Appeals: Holding that the defendant was ineligible for the special sexual offender sentencing alternative, that the defendant did not understand that he was ineligible, and that the guilty plea was not knowing, voluntary, and intelligent because of the misunderstanding, the court reverses the judgment, vacates the plea, and remands the case for further proceedings.
George A. Kolin, for appellant.
Arthur D. Curtis, Prosecuting Attorney, and Kimberley R. Farr, Deputy, for respondent.
Nov. 1997 STATE v. KISSEE 819
88 Wn. App. 817, 947 P.2d 262
MORGAN, J. - On December 21, 1994, the State charged Wiley F. Kissee in Clark County cause number 94-1-01695-4. It alleged three counts of luring in violation of RCW 9A.40.090, and one count of communicating with a minor for immoral purposes in violation of RCW 9.68A.090. The communicating count did not allege a prior conviction, so it charged a gross misdemeanor rather than a felony. RCW 9.68A.090.
On March 1, 1995, the State charged Kissee in Clark County cause number 95-1-00318-4. It alleged one count of first degree child molestation and one count of second degree child molestation.
On or before April 18, 1995, the parties agreed that if Kissee pleaded guilty to the four counts alleged in cause number 94-1-01695-4, the State would dismiss the two counts alleged in cause number 95-1-00318-4. In addition, they stipulated in writing:
3. The State shall be free to make any recommendation of prison or SSOSA to 48 months.
4. The defendant shall be free to attempt to seek the Special Sexual Offender Sentencing Alternative (SSOSA) if:
a. The court finds the defendant amenable to treatment and safe to be at large after a state licensed sexual offender treatment evaluation . . . .
. . . .
c. If the SSOSA option is used, the State and the defendant shall stipulate to 48 months in prison suspended upon successful entry and completion of all phases of a state licensed sex offender treatment program . . . .
820 STATE v. KISSEE Nov. 1997
88 Wn. App. 817, 947 P.2d 262
e. The State would further recommend, if SSOSA is utilized, 180 days of local jail time . . . .
f. The State reserves the right pursuant to RCW 9.94A.120(7)(E) to request a second SSOSA evaluation.
. . . .
i. After evaluation, should the defendant not be found by the Court to be safe at large or not amenable to treatment, the State and the defendant shall stipulate to 48 months in prison.«1»
On April 18, Kissee pleaded guilty to the four counts charged in cause number 94-1-01695-4. During the plea proceeding, the prosecutor orally reiterated, "The State will agree he can seek S[S]OSA alternative with the conditions as set forth in paragraph 4a through i." The trial court responded, "Of course, if he's found not to be amenable to treatment or safe to be at large by the Court after an evaluation, letter i indicates that the defendant will be stipulating to 48 months."«2» The trial court accepted the pleas, dismissed cause number 95-1-00318-4 with prejudice, and ordered a SSOSA evaluation at public expense.
In truth, Kissee was not eligible for a SSOSA sentence. RCW 9.94A. 120(8) provided, subject to certain conditions and exceptions not pertinent here, that the trial court could impose a SSOSA sentence "[w]hen an offender is convicted of a sex offense." RCW 9.94A.030(33) defined the term "sex offense" as follows:
(a) A felony that is a violation of chapter 9A.44 RCW or RCW 9A.64.020 or 9.68A.090 or a felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;
(b) A felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135; or
(c) Any federal or out-of-state conviction for an offense that
«1» Clerk's Papers at 25-26.
«2» Report of Proceedings at 7.
Nov. 1997 STATE v. KISSEE 821
88 Wn. App. 817, 947 P.2d 262
under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.
The three luring counts did not charge "sex offenses" within the meaning of this definition, because luring is a felony described in RCW 9A.40.090. The communicating count did not fall within this definition, because it charged a gross misdemeanor rather than a felony. Accordingly, the trial court lacked statutory authority to impose a SSOSA sentence.
Sometime after pleading, Kissee obtained new counsel and discovered his ineligibility for a SSOSA sentence. Thus, on June 9, 1995, he moved to withdraw his pleas of guilty. He argued, among other things, that he had been misinformed about his eligibility for a SSOSA sentence, and thus that his decision to plead guilty had not been knowing, voluntary and intelligent. The trial court denied his motion, and he was ultimately sentenced to 48 months of incarceration.«3»
[1, 2] Kissee now appeals the trial court's denial of his motion to withdraw his guilty pleas. Due process and CrR 4.2 require that a plea of guilty be entered knowingly, voluntarily and intelligently.«4» A plea is not knowing, voluntary or intelligent i unless the defendant correctly understands its direct sentencing consequences.«5» A sentencing consequence is "direct" if it will have "a definite, immediate and largely automatic effect on the range of the
«3» The sentence was 12 months on each count, with all counts to run consecutively.
«4» State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996); State v. Branch, 129 Wn.2d 635, 638-44, 919 P.2d 1228 (1996); State v. Ward, 123 Wn.2d 488, 512, 869 P.2d 1062 (1994); In re Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987); State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980); State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974); State v. Stoive, 71 Wn. App. 182, 186, 858 P.2d 267 (1993) (due process). If it is not, it generally must be set aside at the defendant's request. CrR 4.2(d), (f); Ross, 129 Wn.2d at 288; State v. Miller, 110 Wn.2d 528, 535, 536, 756 P.2d 122 (1988); Taylor, 83 Wn.2d at 597; State v. Moore, 75 Wn. App. 166, 173-74, 876 P.2d 959 (1994).
«5» Ross, 129 Wn.2d at 284; Ward, 123 Wn.2d at 512; Miller, 110 Wn.2d at 531; Wood v. Morris, 87 Wn.2d 501, 513-14, 554 P.2d 1032 (1976); Moore, 75 Wn. App. at 172-73.
822 STATE v. KISSEE Nov. 1997
88 Wn. App. 817, 947 P.2d 262
defendant's punishment."«6» A sentencing consequence is "indirect" or "collateral" if it "flows not from the guilty plea itself but from additional proceedings."«7»
[3] In our view, one's eligibility for SSOSA is a direct sentencing consequence, because it "produces a definite, immediate and automatic effect on a defendant's range of punishment."«8» If eligibility exists, the trial court may impose community custody, up to three years of treatment, up to 180 days jail, and various other conditions.«9» If eligibility does not exist, the trial court generally must impose a sentence within the standard range, unless there are grounds for an exceptional sentence.
[4] Here, it is obvious that Kissee was mistaken about his eligibility for SSOSA; indeed, the record demonstrates that his mistake was shared by the prosecutor, defense counsel, and the trial judge. Because of his mistake, he did not understand a direct sentencing consequence of his pleas, and his pleas were not knowing, voluntary and intelligent. He was entitled to withdraw his pleas, and the trial court erred by ruling otherwise.
The judgment is reversed, the guilty pleas are vacated, and the case is remanded for further proceedings.
BRIDGEWATER, A.C.J., and SEINFELD, J., concur.
«6» Ross, 129 Wn.2d at 284 (quoting Barton, 93 Wn.2d at 305); Ward, 123 Wn.2d at 512-13; State v. Olivas, 122 Wn.2d 73, 96, 856 P.2d 1076 (1993).
«7» Ross, 129 Wn.2d at 285; Ward, 123 Wn.2d at 513; Barton, 93 Wn.2d at 305.
«8» Ross, 129 Wn.2d at 284.
«9» RCW 9.94A.120(8)(a)(ii).
Nov. 1997 ESTATE OF BAROVIC 823
88 Wn. App. 823, 946 P.2d 1202