                                                             COURT OFP'ILED
                                                              STATE OFAPPEALS DIV I
                                                                       WASHINGTON
                                                              2018 JUN 18 AN 10: 18




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                      )
                                          )       No. 76943-0-1
                     Respondent,          )
                                          )
       v.                                 )
                                          )
KEVIN JAMES HILL,                         )       UNPUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: June 18, 2018
                                          )

       PER CURIAM-Prior to sentencing on his guilty pleas in four separate matters,1
Kevin Hill moved pro se to withdraw his pleas. He contended his pleas were involuntary

because his offender score omitted a prior Arizona conviction and, consequently, he

was misinformed regarding a direct consequence of his pleas. Following a hearing

during which the State said it did not intend to prove, and could not prove, the Arizona

conviction, the court denied Hill's motion. He appeals, arguing that the court abused its

discretion in denying his motion to withdraw his pleas. We affirm.

       Hill pled guilty with the understanding that his offender score was 68. In moving

to withdraw his pleas, he alleged that the State failed to include an Arizona conviction

for solicitation of forgery in his offender score. Hill maintained that his offender score


        The guilty pleas encompassed twenty-two felonies and three misdemeanors.
This appeal is taken from Hill's conviction for one count of second degree burglary.
No. 76943-0-1

was actually 69 and that the misinformation regarding his score rendered his pleas

involuntary. In support, he attached a copy of an Arizona judgment and sentence for

solicitation of forgery.

       The State responded that Hill's offender score was correctly calculated and that,

in any event, he assumed the risk that his score could increase if additional criminal

history was discovered.2 In an affidavit, the prosecutor stated:

      23. I fully reviewed the Defendant's National Crime Information Center
      (NCIC) Interstate Criminal History Report to determine if any out-of-state
      criminal history could be considered as scoreable priors under the SRA,
      including his history in the State of Arizona. Exhibit C. There are no prior
      convictions noted that correspond to the document the Defendant
      filed as Exhibit B to his motion. While there are similar charges
      noted in the Defendant's Arizona history, they each are noted with a
      Disposition of "Court Dismissal."

       24. Because there were no priors to be considered for scoring (or
       impeachment) purposes from those Arizona records, I did not request any
       certified documents regarding those cases.

(Emphasis added) CP 112-13.3 The prosecutor reiterated these points at the hearing

on Hill's motion, stating in part:


       2 Citing State v. Codiga, 162 Wn.2d 912, 928, 175 P.3d 1082(2008)(citations
omitted), the State argued below:
               The Defendant expressly, in writing and on the record in court,
       assumed the risk that additional criminal history could be found prior to
       sentencing. The Defendant forfeited his right to argue for withdraw[al] of
       his plea on this basis... . Holding a defendant to such an assumption of
       risk is necessary to prevent defendants from holding back criminal
       conviction information to use as an escape hatch to get out of any plea
       agreement.
       CP 120 (Clerk's Papers in 76942-1). The Codiga court also held, however, that
"the defendant does not assume the risk of miscalculation of the offender score based
on a mistake as to the legal effect of a fully disclosed criminal history." Codiga, 162
Wn.2d at 930. Because this issue is not briefed on appeal and we resolve the appeal
on other grounds, we do not address it.
       3 This   citation is to the clerk's papers in No. 76942-1.


                                               2
No. 76943-0-1

      [PROSECUTOR]:. . .[There is] substantial evidence that that conviction
      may not be valid even in the state of Arizona. . . . We do not have here a
      certified document, do not have here other reliable evidence, and we
      do have contradictory evidence that indicates that conviction is not
      comparable.

      THE COURT: Is it fair to say --


      THE COURT: -- you're not putting that before the sentencing judge?

      [PROSECUTOR]: That is correct.

      [PROSECUTOR]: ... The State has not seen anything that convinces it
      that there is a valid comparable felony conviction in the state of Arizona
      that we have not previously (unintelligible).

      [PROSECUTOR]: The State is not asserting that this document... the
      defendant has produced is somehow fraudulent. However, it may not be
      the final document in the case. The unit in my office works very hard to
      make sure that we get enough documents so that we know if something
      happened later. There can be a valid judgment and sentence, or in any
      case, even in King County, that can later be essentially undone with a
      different document.
              That judgment and sentence still exists. You can still request it and
      you could still produce it and assert that there is a valid conviction, unless
      you get that other document. And so it's important and my office works
      very hard to be careful with what documents it's ordering to determine if
      these priors are not just comparable but valid in their jurisdiction.
              Nothing dependable has been put before this court to
      establish a comparable, valid, or scorable prior conviction in -- under
      that specific cause number that the defendant is asserting, and
      the score should remain the same and the pleas should not be permitted
      to be withdrawn.

(Emphasis added) RP 154-56. The court then said "[a]nything else?" RP 156. Neither

Hill nor the prosecutor responded.

      The court denied Hill's motion to withdraw his pleas, stating in pertinent part:

             ...The court has before it Mr. Hill's motion to withdraw or vacate
      his guilty pleas. I'm going to deny the request. I think the pleas were
      entered into... knowingly, intelligently, and voluntarily... .




                                            3
No. 76943-0-1

               I'm going to start with the offender score. It is a rare day when a
       defendant brings forth additional [criminal] history. What I had asked [the
       prosecutor] is, are you going to stick with the offender score of 68, and
       she has affirmatively answered yes, because we still don't believe
       solicitation of forgery can be pled and proven at sentencing.
               With that assurance, the Arizona prior offense, although it may exist
       on paper, doesn't even amount to a mistake, either legal or factual,
       because the. . . State is simply not going to ask that your offender score
       be considered the higher number of 69.
               Frankly, you're maxed out at nine. So I think the difference
       between 68 and 69, I'm not trying to minimize the fact that you might have
       a one point higher offender score, Mr. Hill, but the State is simply not
       seeking to prove and plead that additional Arizona history.

RP 156-57. Hill appeals.

                                         DECISION

       Hill contends the court abused its discretion4 in denying his motion to withdraw

his pleas because the parties mistakenly believed, and he was misadvised, that his

offender score was 68 when it was actually 69. These mistakes, he argues, rendered

the pleas involuntary and entitle him to withdraw the pleas. We disagree.

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

intelligent.5 CrR 4.2(d) codifies this principle and mandates that the trial court "shall not

accept a plea of guilty, without first determining that it is made voluntarily, competently

and with an understanding of the nature of the charge and the consequences of the

plea." This rule also allows withdrawal of a plea "to correct a manifest injustice." CrR

4.2(f). A plea may be withdrawn under this standard if it is based on a mistake that

bears upon the offender score or sentencing range and renders the plea unknowing and




       4 We  review the denial of a defendant's motion to withdraw a guilty plea for abuse
of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P .2d 312(1966).
       5 In re Personal Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004).



                                              4
No. 76943-0-I

involuntary.6 If a defendant has been incorrectly advised of the offender score and

accompanying standard range, his plea is involuntary.7 If, on the other hand, a

defendant is misadvised regarding the offender score but the standard range is the

same under either score, the defendant's understanding of the consequences of his

plea is unaffected.8 "Once an offender score reaches 9, the standard range does not

change. RCW 9.94A.510."6

       Here, the record establishes that Hill was correctly advised regarding his offender

score. The plea documents informed him that his score was 68. Hill claims the score

was actually 69 because the State omitted his prior Arizona conviction for solicitation of

forgery. But it was the State's burden to prove Hill's criminal history,1° and the

prosecutor told the sentencing court unequivocally that the State could not prove, and

Hill's evidence did not prove, the existence of the Arizona conviction. The State points

out on appeal, and Hill does not dispute, that the Arizona judgment and sentence Hill

submitted below was neither certified nor authenticated. And while a National Crime

Information Center Interstate Criminal History Report in the record lists an Arizona

forgery committed the same day as the forgery in Hill's judgment and sentence, the


       6 State v. Codiga, 162 Wn.2d 912, 925, 175 P.3d 1082(2008).
       7 State v. Mendoza, 157 Wn.2d 582, 589-591, 141 P.3d 49 (2006).

       8 State v. King, 162 Wn. App. 234, 241, 253 P.3d 120, 124 (2011); see also State
v. Wills, 154 Wn. App. 1001, 2010 WL 9085, at *3("The offender score is important only
to the extent that it impacts the standard sentencing range. . .. Wills's extremely high
offender score means that the mistake in the calculation of his score does not effect his
standard range. The essential term [of the plea agreement] — the sentencing range —
does not change. Therefore, the mutual mistake provision is not triggered. Wills should
remain bound by the plea agreement.").
       9 State   v. King, 162 Wn. App. at 241.
      10 State v. Arndt, 179 Wn. App. 373, 378, 320 P.3d 104 (2014); State v. Latham,
183 Wn. App. 390, 398, 335 P.3d 960(2014).

                                             5
No. 76943-0-1

report and judgment lack matching case numbers. In any event, the report lists the

forgery's disposition as"COURT DISMISSAL." CP 133.11 Given the evidence

presented below, we conclude that there was no mutual mistake or erroneous advice

regarding Hill's offender score and that Hill's pleas were knowingly, intelligently, and

voluntarily entered.

         In addition, we note that even if Hill had been misadvised regarding his score, he

would still not be entitled to withdraw his plea because his score is far above 9 and the

alleged scoring error would have no effect on his standard range.12

         The court did not abuse its discretion in denying Hill's motion to withdraw his

pleas.

         Affirmed.


                                              FOR THE COURT:




                                               .)Q9-e-tc.Q.c4c-‘



         11   This citation is to the clerk's papers in No. 76942-1.
         12   Note 8, supra.


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