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                                              2016 Ali 29         {:5t



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,         )
                             )                  No. 75548-0-1
         Respondent,         )
                             )                  DIVISION ONE
     v.                      )
                             )                  UNPUBLISHED OPINION
CHRISTOPHER !LANDERS HUTTON, )
                             )
         Appellant.          )                  FILED: January 29, 2018
                             )
      LEACH, J. — Christopher Ilanders Hutton appeals his conviction for first

degree murder.     He challenges the voluntariness of his guilty plea on two

grounds.   He claims that he received misinformation about the trial court's

authority to require him to register as a felony firearm offender and about the

maximum sentence the court could impose. Because the applicable firearm

registration requirement is a collateral, and not a direct, consequence of Hutton's

guilty plea, misinformation about its application to him did not make his plea

involuntary. And the court correctly informed Hutton of the statutory maximum

sentence in addition to the standard range sentence. We affirm.

                                     FACTS

      On June 11, 2015, Christopher Hutton chased Jaebrione Gary into an

open apartment. Hutton pistol-whipped Gary in the head, shoved him to the

ground, and shot him three times, killing him.              Hutton pleaded guilty to
No. 75548-0-1/ 2


premeditated murder in the first degree.         On July 22, 2016, the trial court

sentenced Hutton to 416 months of confinement. Hutton appeals.

                                STANDARD OF REVIEW

          Generally, a party may raise on appeal only those issues raised at the trial

court.1       But an appellant may raise an issue for the first time on appeal if it

involves a manifest error affecting a constitutional right.2 This test, however,

presupposes a trial court error. This court must preview the merits of the claimed

constitutional violation to determine whether the argument is likely to succeed.3

Only if an error did occur does this court address whether the error caused actual

prejudice and was therefore manifest.4 Constitutional error is manifest when a

defendant's guilty plea is involuntary because he misunderstood the sentencing

consequences of his plea.5

                                       ANALYSIS

          "Due process requires that a defendant's guilty plea be knowing,

voluntary, and intelligent."6       A defendant must be informed of the direct

consequences of his plea.7 Otherwise, his plea is involuntary.5

        In re Det. of Brown, 154 Wn. App. 116, 121, 225 P.3d 1028 (2010).
          1
      2 RAP 2.5(a)(3).
      3 Brown, 154 Wn. App. at 121-22.
      4 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).
      5 State v. Mendoza, 157 Wn.2d 582, 589, 141 P.3d 49(2006).
      6 In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390
(2004).
      7 State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405(1996).
      8 State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338(2003).
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No. 75548-0-1 / 3


             Registration Requirement for Felony Firearm Offenders

A.     The Trial Court Erred in Informing Hutton That the Firearm Offender
Registration Requirement Did Not Apply to Him

       First, Hutton challenges the voluntariness of his guilty plea based on the

fact that the trial court misinformed him that he was not a felony firearm offender

and it could not require him to register. We agree with Hutton that he is a felony

firearm offender and the court erred in informing him otherwise.          But the

registration requirement is a collateral consequence of his guilty plea. Thus, the

misinformation does not make his plea involuntary.9

       An individual convicted of a "felony firearm offense" is a "felony firearm

offenderl° A "felony firearm offense" is "[a]ny felony offense if the offender was

armed with a firearm in the commission of the offense" in addition to select

enumerated offenses.11    When the legislature first enacted the felony firearm

offender statute in 2013, it required that the trial court consider whether to

impose the registration requirement in any circumstance in which the offender



       9 Although Hutton was not prejudiced, a lack of prejudice does not affect
the voluntariness of Hutton's plea. "A reviewing court cannot determine with
certainty how a defendant arrived at his personal decision to plead guilty, nor
discern what weight a defendant gave to each factor relating to the decision."
Isadore, 151 Wn.2d at 302 (declining "to adopt an analysis that requires the
appellate court to inquire into the materiality of mandatory community placement
in the defendant's subjective decision to plead guilty").
        10 RCW 9.41.010(8).
        11 The remaining felony firearm offenses are any felony offense that
violates chapter 9.41 RCW, drive-by shooting, theft of a firearm, and possessing
a stolen firearm. RCW 9.41.010(9).
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No. 75548-0-1 /4


committed a felony firearm offense.12 But it provided the court with discretion to

decide whether to ultimately impose the requirement.13 The legislature amended

the statute in 2016 with an effective date of June 9, 2016. This amendment

added subsection (3), which requires the trial court to impose the registration

requirement in certain circumstances.14 Because Hutton pleaded guilty on April

28, 2016, the amendment did not apply to him. Thus, while the trial court had


      12 LAWS OF 2013, ch. 183,§ 3(1); former RCW 9.41.330(1)(2013).
      13 LAWS OF 2013, ch. 183,§ 3(1); former   RCW 9.41.330(1)(2013).
            (1) On or after July 28, 2013, whenever a defendant in this
            state is convicted of a felony firearm offense or found not
            guilty by reason of insanity of any felony firearm offense, the
            court must consider whether to impose a requirement that
            the person comply with the registration requirements of
            RCW 9.41.333 and may, in its discretion, impose such a
            requirement.
                   (2) In determining whether to require the person to
            register, the court shall consider all relevant factors
            including, but not limited to:
                   (a)The person's criminal history;
                   (b) Whether the person has previously been found not
                    guilty by reason of insanity of any offense in this state
                    or elsewhere; and
                   (c) Evidence of the person's propensity for violence
                    that would likely endanger persons.
      14 LAWS OF 2016, ch. 94,§ 1(3); RCW 9.41.330(3).
                   (3) When a person is convicted of a felony firearm
            offense or found not guilty by reason of insanity of any felony
            firearm offense that was committed in conjunction with any
            of the following offenses, the court must impose a
            requirement that the person comply with the registration
            requirements of RCW 9.41.333:
                   (a) An offense involving sexual motivation;
                   (b) An offense committed against a child under the
                    age of eighteen; or
                   (c) A serious violent offense.
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No. 75548-0-1/ 5


discretion to decide whether to ultimately require Hutton to register, it did not

have discretion to decide whether to consider if it should impose the requirement

on Hutton.

       Here, Hutton pleaded guilty to first degree murder. In the plea agreement,

he stipulated to the facts included in the certification for determination of probable

cause and prosecutor's summary. The probable cause statement establishes

that he used a firearm to pistol-whip and murder the victim. Consistent with

Hutton's argument, because he was "armed with a firearm in the commission of

the offense," he committed a felony firearm offense.15 Thus, RCW 9.41.330(1)

required the trial court to consider whether to impose the registration requirement

on Hutton.

       The record shows, however, that the court did not consider whether to

require Hutton to register. In fact, Hutton's guilty plea form shows that the court

affirmatively told Hutton that the requirement did not apply to him.16 The court

misinformed him that it could not require him to register as a felony firearm

offender. This error, however, does not make Hutton's plea involuntary.




       15 RCW 9.41.010(9)(e).
       16 Both Hutton and the trial court judge initialed the paragraphs on
Hutton's guilty plea form that did not apply to him. The court improperly initialed
the paragraph stating that the offense was a felony firearm offense for which it
could impose a registration requirement.
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No. 75548-0-1/6


B.      The Registration Requirement Is a Collateral Consequence of Hutton's
Guilty Plea

      While a criminal defendant must be informed of all the direct

consequences of his plea, he need not be informed of the collateral

consequences.17 "The distinction between direct and collateral consequences of

a plea turns on whether the result represents a definite, immediate and largely

automatic effect on the range of the defendant's punishment.'"18 Hutton asserts

that the firearm registration requirement under RCW 9.41.330(1) is a direct

consequence of his guilty plea because if the court had properly considered

whether to impose it, it could have immediately enhanced his punishment. We

disagree.

      A sentencing condition is immediate if the "effect on the range of [a]

defendant's punishment" is immediate.18 For example, our Supreme Court has

held that community placement is a direct consequence of a defendant's guilty

plea, in part, because it flows immediately from the guilty plea.2° By contrast, a

discretionary habitual criminal proceeding is not immediate because it requires

additional proceedings separate from the guilty plea.21 Here, the trial court could




      17 State v. Ward, 123 Wn.2d 488, 512, 869 P.2d 1062(1994).
      18  Ward, 123 Wn.2d at 512 (internal quotation marks omitted) (quoting
State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353(1980)).
       19 Ross, 129 Wn.2d at 285 (quoting Ward, 123 Wn.2d at 512).
       29 Ross, 129 Wn.2d at 285.
       21 Ross, 129 Wn.2d at 285.
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No. 75548-0-1/ 7


have considered a duty to register under RCW 9.41.330(1) during sentencing or

in a separate proceeding. The requirement is therefore not immediate.

       The duty to register under RCW 9.41.330(1) is also neither direct nor

automatic. In State v. A.N.J.,22 our Supreme Court declined to decide whether a

statutory duty to register as a sex offender is a direct consequence of a plea. It

held, however, that the registration obligation is "significant," "automatic," and

"known" before a defendant enters his guilty plea. Although the issue remains

undecided, this suggests that sex offender registration may be more akin to a

direct consequence than a collateral consequence.

       By contrast, the requirement to register as a felony firearm offender under

RCW 9.41.330(1) is less definite and less automatic of a consequence than sex

offender registration. For example, a person convicted of a sex offense must

register as a sex offender.23 But a person convicted of a felony firearm offense

must register under RCW 9.41.330(1) only if the trial court exercises its discretion

to impose the requirement. Thus, unlike the registration obligation for a sex

offender, the registration requirement for a felony firearm offender is neither

definite nor automatic. Because the registration requirement is not immediate,

definite, and automatic, it is a collateral consequence of Hutton's guilty plea.




       22 168 Wn.2d  91, 115, 225 P.3d 956 (2010).
       23   RCW 9A.44.130(1)(a).
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No. 75548-0-1/ 8


       Misinformation about a collateral consequence does not make a

defendant's guilty plea involuntary.24    But affirmative misinformation about a

collateral consequence may create a manifest injustice and necessitate allowing

withdrawal of the plea "if the defendant materially relied on that information when

deciding to plead guilty."25 Hutton, however, does not claim that the court's

registration misrepresentation materially influenced his decision to plead guilty.

Thus, any misinformation about registration did not make Hutton's plea

involuntary and does not constitute manifest constitutional error.

                               Maximum Sentence

       Hutton also challenges the voluntariness of his plea based on his claim

that the court misinformed him about the maximum sentence that it could have

imposed.      The relevant maximum sentence is • a direct consequence of a

defendant's guilty plea.26   Here, the court informed Hutton that first degree

murder carried a standard range sentence of 312 to 416 months and a maximum

statutory term of life and a $50,000 fine. Hutton cites Blakelev v. Washington27 to

support the proposition that the maximum sentence is the "sentence a judge may

impose solely on the basis of the facts reflected in the iury verdict or admitted by

the defendant."      Hutton contends that the relevant maximum sentence is

       24   In re Pers. Restraint of Reise, 146 Wn. App. 772, 787, 192 P.3d 949
(2008).
       25 Reise, 146 Wn. App. at 787.
      26 State v. Wevrich, 163 Wn.2d 554, 557, 182 P.3d 965(2008).
       27 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403(2004).
                                        -8-
No. 75548-0-1/ 9


therefore the high end of the standard sentencing range that is based on the

seriousness of the offense and the defendant's offender score, not the statutory

maximum sentence for the offense. He maintains that because the trial court

informed him of the statutory maximum for first degree murder, it misinformed

him of a direct consequence and rendered his plea involuntary.

       We rejected this argument in State v. Kennar.28           "In short, CrR 4.2

requires the trial court to inform a defendant of both the applicable standard

sentence range and the maximum sentence for the charged offense as

determined by the legislature."29 "The Washington Supreme Court adopted CrR

4.2 to ensure conformance to the constitutional requirement that a plea of guilty

be made voluntarily, intelligently, and knowingly."39

       This court also explained that Blakely defines "statutory maximum" for

sentencing purposes, not for plea-entry purposes.31 We noted that the standard

sentencing range applicable to a defendant at the time of sentencing may be




       28 135 Wn. App. 68, 143 P.3d 326 (2006).
       28 Kennar, 135 Wn. App. at 75.
       38 Kennar, 135 Wn. App. at 73.
       31 Kennar, 135 Wn. App. at 75. In Apprendi v. New Jersey, the United
States Supreme Court held that for Sixth Amendment purposes, "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000). In Blakely, the Court clarified that the facts reflected in the verdict or
admitted by the defendant dictate the "statutory maximum" for Apprendi
purposes. 542 U.S. at 303.
                                         -9-
No. 75548-0-1/ 10


different than that stated in the guilty plea form.32 For example, the guilty plea

form advises the defendant that the sentencing range could change if the

defendant is convicted of any new crimes before sentencing or if the court

discovers additional criminal history.33 Thus, the court must advise a defendant

of the statutory maximum at the plea-entry stage to ensure that he is fully

informed. We follow our decision in Kennar; the fact that the trial court informed

Hutton of the statutory maximum is not manifest constitutional error.

                                 CONCLUSION

       Hutton fails to show manifest constitutional error. His guilty plea was not

involuntary because the court misinformed him about its authority to require him

to register as a firearm offender, a collateral consequence of his plea, or because

it informed him of the statutory maximum in addition to the maximum applicable

term. We affirm.




WE CONCUR:



                                                  iSe_c_Le.e 1 ,


       32 Kennar, 135 Wn. App. at 75-76.
       33 Kennar, 135 Wn. App. at 76.
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