[No. 78254-7. En Banc.]
Argued January 11, 2007. Decided May 24, 2007.
In the Matter of the Personal Restraint of COLE W. SHALE, Petitioner.
Nature of Action: A defendant convicted upon a plea of guilty to several counts of the crimes of unlawful possession of stolen property and unlawful possession of payment instruments that were charged under seven separate cause numbers moved to vacate his judgment and sentence as to the counts charged under three of the cause numbers. He claimed that he was placed in double jeopardy by the multiple convictions and that his offender score was erroneously calculated. The trial court transferred the case to the Court of Appeals for consideration as a personal restraint petition.
Court of Appeals: The court dismissed the petition by an order dated January 5, 2006.
Supreme Court: Holding that the petitioner is not entitled to relief on his claims, the court affirms the decision of the Court of Appeals.
[1]Criminal Law - Plea of Guilty - Plea Bargaining - Validity - Multiple Charges - Single Agreement - Effect. A defendant who pleads guilty to multiple offenses charged under more than one cause number pursuant to a plea agreement with the State made as an indivisible package deal may not challenge any portion of the deal without challenging the entire deal. (See lead opinion of C. Johnson, J.) [Note: Only four Justices concur in the above statement.]
[2] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Subsequent Challenge - Plea of Guilty - Waiver. A defendant who has pleaded guilty to multiple offenses may not collaterally challenge the offender score calculation used by the trial court to impose sentence based on a claim that the trial court failed to treat some of the offenses as the "same criminal conduct" for offender score purposes if no invalidity is apparent on the face of the judgment and sentence and the defendant acknowledged and agreed to the offender score calculation in the plea proceedings and did not request the trial court to make a discretionary call on any factual dispute regarding the issue of "same criminal conduct." (See lead opinion of C. Johnson, J.) [Note: Only four Justices concur in the above statement.]
[3] Criminal Law - Former Jeopardy - Plea Bargain - Effect - In General. A defendant who is convicted of multiple offenses upon pleas of guilty entered at the same time as part of a single plea agreement may be precluded from collaterally challenging the convictions on the grounds of double jeopardy if the double jeopardy violation is not evident on the face of the judgment and sentence entered on the pleas. (See concurring opinion of Madsen, J.) [Note: Only four Justices concur in the above statement.]
[4] Criminal Law - Former Jeopardy - Plea Bargain - Effect - Waiver. A defendant's participation in bringing about a double jeopardy violation in the course of negotiating a plea agreement can constitute a waiver of the violation. (See concurring opinion of Madsen, J.) [Note: Only four Justices concur in the above statement.]
¶1 C. JOHNSON, J. - This case asks us to determine whether petitioner Cole Shale's several convictions for possession of stolen property and unlawful possession of payment instruments violate double jeopardy principles and constitute the "same criminal conduct" for sentencing purposes. The Court of Appeals dismissed all of Shale's claims. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In November 2004, Shale pleaded guilty to 12 crimes charged under seven separate cause numbers in Spokane County Superior Court. Relevant to this case, Shale pleaded guilty to two counts of first degree possession of stolen property under cause number 04-1-02713-7, and one count of the same crime under cause number 04-1-02873-7. Additionally, Shale pleaded guilty to three counts of unlawful possession of payment instruments under cause number 04-1-02816-8. The superior court calculated Shale's offender scores at 9+ after treating his crimes as separate from one another. Shale received concurrent standard range sentences on each cause number.
¶3 In February 2005, Shale moved to vacate his judgment and sentence as to each charge on only three of his seven cause numbers, claiming double jeopardy violations and errors in the calculation of his offender scores. Shale claimed no dispute on the remaining four cause numbers. The superior court transferred the case to Division Three of the Court of Appeals for consideration as a personal restraint petition, where the chief judge dismissed all of Shale's claims.
Order Dismissing Personal Restraint Petition, In re Pers. Restraint of Shale, No. 24046-1-III (Wash. Ct. App. Jan. 5, 2006). ISSUES A.Whether Shale's multiple convictions for possession of stolen property and unlawful possession of payment instruments violate double jeopardy principles. B.Whether the trial court erroneously failed to treat some of Shale's crimes as the "same criminal conduct" for offender score purposes. ANALYSIS Double Jeopardy ¶4 The double jeopardy clauses of the Washington State and United States Constitutions prohibit convicting a person more than once under the same criminal statute if he or she committed only one "unit" of the crime. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005). Shale argues that his convictions violate double jeopardy principles because the counts of possession of stolen property and unlawful possession of payment instruments constitute one "unit of prosecution" rather than the separate units to which he pleaded guilty. ¶6 The State's position is supported by our previous holdings where we have held indivisible plea bargains involving multiple charges are found where pleas were made at the same time, described in one document, and accepted in a single proceeding. State v. Turley, 149 Wn.2d 395, 398, 69 P.3d 338 (2003); see also State v. Ermels, 156 Wn.2d 528, 541, 131 P.3d 299 (2006); State v. Bisson, 156 Wn.2d 507, 519, 130 P.3d 820 (2006). ¶7 In Turley, the State incorrectly represented to the defendant that no mandatory community placement would be required on one of two charges to which the defendant pleaded guilty. When Turley discovered the error, he requested to withdraw his entire plea agreement. We allowed Turley to do so because we reasoned that a plea agreement is essentially a contract made between a defendant and the State; and, under normal contract principles, it is dependent upon the intent of the parties whether a contract is considered separable or indivisible. Turley negotiated and pleaded guilty to two charges contemporaneously, and one document contained the plea to and conditions for both charges. The State argued to allow Turley to withdraw only one of the two charges to which he pleaded guilty. We disagreed and held that a trial court must treat a plea agreement as indivisible when pleas to multiple counts or charges were made at the same time, described in one document, and accepted in a single proceeding. Turley, 149 Wn.2d at 400. ¶8 Here, all of Shale's pleas were entered and accepted in the same proceeding, but the pleas were described in different documents. However, because the different documents challenged by Shale are for crimes he committed on the same day, and the documents were all signed the same day, and refer to one another, we find Shale is challenging only a portion of an indivisible package deal. Therefore, we find Shale cannot challenge a portion of the plea agreement. Accordingly, we affirm the Court of the Appeals' dismissal of these claims. Same Criminal Conduct RCW 9.94A.589(1)(a) provides in relevant part: "[S]ame criminal conduct," as used in this subsection, means "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." ¶10 We have held that a sentence in excess of statutory authority is subject to collateral attack, that a sentence is excessive if based upon a miscalculated offender score (miscalculated upward), and that a defendant cannot agree to punishment in excess of that which the legislature has established. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002). However, in Goodwin, we clarified that waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion. Goodwin, 146 Wn.2d at 873. ¶11 In fact, the rule we applied in Goodwin established that waiver may be found under certain circumstances, and we adopted an analogy from State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000, review denied, 141 Wn.2d 1030, 11 P.3d 827 (2000). In Nitsch, the defendant argued for the first time on appeal that the two crimes he was convicted of constituted the same criminal conduct and therefore neither could be counted as part of his offender score for sentencing the other crime. He had, however, agreed in his own pre-sentence memorandum that his offender score had been properly calculated. The Court of Appeals noted that application of the same criminal conduct inquiry involves both factual determinations and the exercise of discretion. The court held that the defendant's "failure to identify a factual dispute for the court's resolution and . . . failure to request an exercise of the court's discretion" waived the challenge to his offender score. Nitsch, 100 Wn. App. at 520-23. ¶12 We again adopt that reasoning and conclude that it controls in this case. Here, Shale agreed to the offender scores as part of his plea bargain, and he did not challenge the offender score computation. The relevant portion of the record provides: The Court: Did Mr. Krzyminski [Shale's attorney] go over all of these standard sentencing ranges with you? The Defendant: Yes. The Court: Do you understand that the standard sentencing range is derived by looking at any prior countable criminal history in addition to looking at any concurrent offenses charged? The Defendant: Yes, ma'am. The Court: Do you understand or - I am going to explain to you what my understanding is and you tell me if this is your understanding. You had no prior felony history; is that correct? The Defendant: None. The Court: And that the reason we are looking at an offender score of 9 here is because of all of the concurrent offenses; is your [sic] understanding? The Defendant: Yes. The Court: All right. You understand that an offender score of 9 puts you at the top end of the standard sentencing ranges for all of these offenses? The Defendant: Yes. Verbatim Report of Proceedings at 14-15. ¶13 The statement of defendant on plea of guilty is signed by Shale in each of the seven cases, and those documents acknowledge the calculation of the offender score. Further, the record shows that Shale failed to ask the court to make a discretionary call of any factual dispute regarding the issue of "same criminal conduct" and he did not contest the issue at the trial level. Accordingly, we hold that Shale's offender scores are not now subject to challenge. ¶14 While we have recognized and granted relief from plea agreements in limited circumstances, those cases involved pleas, convictions, or sentences that were invalid on the face of the judgment and sentence. Here, no invalidity is apparent. Shale made no factual statements supporting the guilty pleas and instead allowed the judge to review the police reports and statement of probable cause supplied by the prosecution to establish a factual basis for the plea. These facts establish the separate nature of each charge. See Statement on Plea of Guilty, at 6 (Spokane County Super. Ct., Wash., Nos. 04-1-02713-7, 04-1-02873-7, 04-1-02816-8). CHAMBERS, OWENS, and J.M. JOHNSON, JJ., concur. ¶16 MADSEN, J. (concurring) - Cole Shale pleaded guilty to 12 crimes charged under seven separate cause numbers. Relevant here, Shale pleaded guilty to two counts of first degree possession of stolen property under cause number 04-1-02713-7 and one count of first degree possession of stolen property under cause number 04-1-02873-7. He also pleaded guilty to three counts of unlawful possession of payment instruments under cause number 04-1-02816-8. Several months after his plea, Mr. Shale filed motions in superior court to modify or vacate his sentences, claiming double jeopardy precludes his convictions for three of these crimes. See Supplemental Brief of Petitioner at 9 n.2, wherein Mr. Shale explicitly states that he does not seek withdrawal of his plea. Discussion ¶20 The first question then, is whether the judgments and sentences show on their face that the challenged convictions for possession of stolen property and unlawful possession of payment instruments violate double jeopardy principles. WASH. CONST. art. I, § 9; U.S. CONST. amend. V. ¶21 As the majority correctly notes, the double jeopardy clauses of the Washington and United States Constitutions prohibit convicting a person more than once under the same criminal statute if he committed only one "unit" of the crime. State v. Tvedt, 153 Wn.2d 705, 710, ¶ 10, 107 P.3d 728 (2005). Shale argues that his convictions violate double jeopardy principles in two ways. First, he contends that the two counts of first degree possession of stolen property under cause number 04-1-02713-7 and the one count of the same crime under cause number 04-1-02873-7 constitute one "unit of prosecution" because he committed those crimes at the same time. Second, Shale claims that two of the three counts of unlawful possession of payment instruments under cause number 04-1-02816-8 also constitute one "unit of prosecution" because they involved the same victim and were committed at the same time. ¶22 Turning first to the possession of stolen property charges, Shale correctly argues that simultaneous possession of various items of property stolen from multiple owners constitutes one unit of prosecution of the crime. State v. McReynolds, 117 Wn. App. 309, 335-40, 71 P.3d 663 (2003). Conversely, "[s]eparate, discrete possessions constitute separate units of prosecution." Id. at 339. Here, the judgments and sentences show on their face three convictions for possession of stolen property committed on the same date. From this evidence Mr. Shale argues that he committed only one unit of prosecution. ¶23 The judgments and sentences here do suggest that Mr. Shale's multiple convictions for possession of stolen property may violate double jeopardy. However, the unit of prosecution analysis articulated in McReynolds is not met merely by showing that the possession crimes were committed on the same date; more is required to show simultaneous possession. For example, if the stolen property was held in different geographical locations, the possessions would likely constitute separate crimes. ¶24 As to the three convictions for unlawful possession of payment instruments, whether they violate double jeopardy principles depends first on defining the "unit of prosecution" of that crime. The statute defining that crime, RCW 9A.56.320(2), provides a person is guilty of unlawful possession of payment instruments if he possesses two or more checks or payment instruments "[i]n the name of a person or entity, or with the routing number or account number of a person or entity, without the permission of the person or entity to possess such payment instrument, and with intent either to deprive the person of possession of such payment instrument or to commit theft, forgery, or identity theft." RCW 9A.56.320(2)(a)(i). By describing the crime as the possession of two or more payment instruments of "a person" with intent to deprive "the person" of those instruments, the statute clearly makes each person whose payment instruments are unlawfully possessed a unit of prosecution. Cf. State v. Ose, 156 Wn.2d 140, 148, ¶19, 124 P.3d 635 (2005) (each stolen access device constitutes a unit of prosecution of second degree possession of stolen property based on possession of "a stolen access device," RCW 9A.56.160(1)(c)). Thus, under the statute, each victim represents a single unit of prosecution. ¶25 Mr. Shale does not dispute that each victim constitutes a unit of prosecution. Rather, he contends that the three charges to which he pleaded guilty involved only two victims, not three. However, the number of victims is not evident from the face of the judgments and sentences and the amended charging documents do not reveal the names of the victims related to each count. As with the possession of stolen property convictions, it is necessary to go beyond the face of the judgment and sentence to determine whether double jeopardy is violated. ¶26 Turning to the record, the probable cause statements associated with the unlawful possession of stolen property charges show that all of the property was found in a search of Shale's truck. Suppl. Resp. to Pers. Restraint Pet., Attach. D (aff. of probable cause); Resp. to Pers. Re-straint Pet., Attach. M (aff. of probable cause). The record also shows, however, that the State originally charged two of the counts as possession of a stolen firearm in violation of RCW 9.41.040. According to the record, one of the firearms was located during a search of a storage unit leased by Mr. Shale. ¶27 With regard to the unlawful possession of payment instruments, the State originally charged three counts of unlawful possession of payment instruments because three different victims were involved. At the plea hearing the State informed the court that it was relying on the same victim for counts two and three as a matter of convenience, since one victim lived outside of Washington. Verbatim Report of Proceedings (VRP) at 5-6, 10 (Nov. 16, 2004). ¶29 As mentioned earlier, in some circumstances waiver may be found where a defendant collaterally challenges a facially valid conviction. See Broce, 488 U.S. at 575-76; Menna, 423 U.S. at 62 n.2. A waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). A defendant may waive a double jeopardy claim through some affirmative act which indicates waiver. Jeffers v. United States, 432 U.S. 137, 154, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977) (defendant waived double jeopardy by opposing government's motion to join two separate criminal prosecutions). "[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." United States v. Scott, 437 U.S. 82, 99, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978). ¶30 The State moved to amend the charges here pursuant to a plea agreement, which Mr. Shale helped to fashion in order to preserve his right to argue for a first offender waiver at sentencing. At the sentencing hearing Mr. Shale's attorney, Thomas Krzyminski, told the court, I would respectfully ask this court to consider first time offender. It is obviously an option. We have made sure, both Mr. [Robert] Sargent and I, that he was eligible on each one of these charges and that's why some were amended to make sure that he was eligible. VRP at 45. In addition, the prosecutor, Mr. Sargent, complimented defense counsel during the hearing, stating, I have to say on the record that defense counsel, in the State's opinion, has done a terrific job in that we have sat down and we have looked at these cases. We have hashed out these cases. Had it gone to trial and the State had - well, he could have faced substantially more time, in the State's opinion. VRP at 33-34. ¶31 A defendant's participation in bringing about a double jeopardy violation can constitute a waiver of such violation. In Jeffers for example, the defendant was charged with committing a continuing criminal enterprise under 21 U.S.C. § 848 and conspiracy under 21 U.S.C. § 846. The government moved to consolidate the indictments for trial, which the petitioner and his codefendants opposed. The court denied the motion and the charges went forward in separate trials. Following convictions for both charges, the defendant argued that the convictions violated the prohibition against double jeopardy, contending that conspiracy was a lesser included offense of a continuing criminal enterprise under § 848. The Supreme Court rejected the defendant's argument, holding that the defendant had waived his right to complain that his consecutive trials violated double jeopardy because it was he who insisted on successive trials for the conspiracy offense and the continuing-criminal-enterprise offense. Jeffers, 432 U.S. at 154. ¶32 As in Jeffers, Mr. Shale actively participated in the amendment of charges and in crafting the plea bargain in order to preserve his eligibility for a first offender waiver. This brought about the claimed double jeopardy violations. Accordingly, I would hold that Mr. Shale waived his right to complain that his convictions for possession of stolen property and unlawful possession of payment instruments violate the prohibition against double jeopardy and would affirm his convictions. ALEXANDER, C.J., and BRIDGE and FAIRHURST, JJ., concur with MADSEN, J.