      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 79153-2-I
                     Respondent,
       v.                                       DIVISION ONE

TYSON SCHULTZ,                                  UNPUBLISHED OPINION

                     Appellant.


       LEACH, J. — Tyson Schultz appeals an order correcting his judgment and

sentence and an order permitting the filing of an amended information.           He

claims the trial court should have resentenced him to a crime charged in the

information but not the crime to which he pleaded guilty or for which he was

convicted. He bases this claim on a mutual mistake the parties made when they

entered into a plea agreement, when Schultz pleaded guilty, and when the court

sentenced him.

       Schultz’s remedy for this mutual mistake is specific performance or

withdrawal of the plea agreement. Because he did not want to withdraw his

guilty plea, CrR 7.8(a) authorized the trial court to correct a clerical error in the

record by allowing the State to file an amended information to charge the crime

the parties thought the original information charged and Schultz knowingly

pleaded guilty to and for which the trial court sentenced him. CrR 7.8(a) also

authorized the trial court to amend the judgment and sentence. We affirm.
No. 79153-2-I/ 2


                                 BACKGROUND

       Tyson Schultz and A.J. were in an intimate dating relationship and had a

child together. After A.J. asserted that Schultz cyberstalked her via Facebook

Messenger, the cell phone application “Pinger,” and texts to her cell phones, the

State charged Schultz with one count of felony harassment domestic violence,

one count of felony cyberstalking, and two counts of domestic violence felony

violation of a court order. The information did not allege domestic violence as

part of the charge of cyberstalking.

       In May 2016, Schultz entered into a written plea agreement.           The

statement of defendant to which Schultz signed as part of this agreement states

that he is charged in one count with “Cyberstalking DV” and the elements of the

crime were set forth in the information. Schultz agreed that the standard range

for the crime was 51 to 60 months confinement and that the prosecutor would

recommend 51 months. Schultz included the following statement in the plea

agreement:

       During a period of time between October 1, 2015 and July 19,
       2016, I did, with the intent to harass, make electronic
       communications with [A.J.], the mother of my child, repeatedly,
       using obscene words and threats of injury to her after having
       previously been convicted of Assault in the Fourth Degree-
       Domestic Violence, a crime of harassment as defined in
       RCW 9A.46.060. These communications were received by [A.J.] in
       King County, Washington.

       On the felony plea agreement, Schultz pleaded guilty to count two of the

information.   He agreed that his offender score was 10 and agreed to the

recommended sentence of 51 months.         Schultz also agreed the sentencing

guidelines scoring form, the offender score, and the prosecutor’s understanding



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of defendant’s criminal history, attached to the felony plea agreement, were

“accurate and complete.”

       According to the plea agreement “if the parties are mistaken as to the

offender score on any count, neither party is bound by any term of th[e]

agreement.” The plea agreement also stated, “The defendant agrees that any

attempt to withdraw [his] guilty plea(s), or any attempt to appeal or collaterally

attack any conviction or agreed sentence under this cause number or any cause

number that is part of this indivisible agreement will constitute a breach of this

agreement.”

       The State attached the domestic violence and non-violent felony offense

scoring form to the plea agreement. Using the form’s standard range calculation,

Schultz’s cyberstalking score identified the “number of adult DV doublers” under

RCW 9.94A.525(21)(a) as one; Schultz’s “number of scored DV misdemeanors”

under RCW 9.94A.525(21)(c) as five; and Schultz’s “other felony convictions”

score as three. So, according to the form, his offender score was 10 and the

standard range was 51 to 60 months. The prosecutor’s understanding of his

criminal history, also attached to the plea agreement, assigned points to the

following prior offenses:

      Two points for one count of felony violation of protective order domestic

       violence (2016).

      One point each for three counts of misdemeanor violations of a protective

       order domestic violence (2015).




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      One point for a misdemeanor violation of a protective order domestic

       violence (2014).

      One point for assault four domestic violence (2013).

      One point for one count of felony assault two not domestic violence

       (2009).

      One point for one count of residential burglary (2009).

      One point for one count of possession of a controlled substance (2006).

The parties agreed to a joint sentence recommendation of 51 months

confinement. The State agreed to dismiss the charges of felony harassment

domestic violence, one count of felony cyberstalking, and two counts of domestic

violence felony violation of a court order.

       During the hearing on the plea agreement, Schultz said that he

understood that he was pleading guilty to felony cyberstalking domestic violence.

He also affirmed that he understood the elements the State needed to prove

beyond a reasonable doubt. He said “yes” when asked whether he understood

that he was “giving up [his] right to appeal a determination of guilt.” He said he

understood that the parties’ understanding was that the standard range for him

with his criminal history and the offense was 51 to 60 months. He adopted the

statement on the form as his own statement and agreed it was true and correct.

       The court accepted Schultz’s plea as knowingly, voluntarily, and

intelligently made. And it found that there was “an adequate factual basis to

support the plea.” It found him guilty of cyberstalking domestic violence.




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       The court sentenced Schultz on June 16, 2017.             At the sentencing

hearing, defense counsel agreed that Schultz’s offender score was 10 and the

standard range was 51 to 60 months.               Counsel also agreed that the

recommendation of 51 months in confinement was appropriate.

       The trial court entered a judgment and sentence convicting Schultz of

domestic violence felony cyberstalking.        It dismissed the other three counts

alleged in the information. The trial court found that “[d]omestic violence as

defined by RCW 10.99.020 was pled and proved.”1              It included the same

convictions in calculating Schultz’s offender score as identified by the State in its

understanding of his criminal history.       It sentenced Schultz to 51 months of

confinement.

       On May 29, 2018, Schultz filed a motion to correct his judgment and

sentence. He claimed, because the State failed to allege domestic violence in

count two of the information charging him with cyberstalking-felony, the court

should not have included misdemeanor domestic violence offenses in its

calculation of his offender score. And, as a result, he was entitled to have a

much less lengthy sentence imposed.

       The State responded that the documents related to Schultz’s plea

agreement, read together, made it clear “that it was the parties’ intent and

agreement that the defendant plead guilty to Cyberstalking, Domestic Violence,

that his prior domestic violence misdemeanors should count toward his offender




       1The trial court did not fill in to whom the count of domestic violence
designation applied.


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No. 79153-2-I/ 6


score of 10 and that the parties were agreeing to a low end sentence of 51

months.”

      The State asserted Schultz could either ask for specific performance of his

plea agreement, which he received, or he could withdraw his plea.        Schultz

expressly rejected the choice of withdrawing his plea. So, the State asked the

court to allow it to file an amended information that included a designation of

domestic violence with the cyberstalking charge.     It also asked the court to

amend the judgment and sentence to reflect the domestic violence designation.

It claimed that the failure to include domestic violence along with the

cyberstalking charge was a scrivener’s error resulting from the way the State’s

computer system generated the information.

      The court declined to resentence Schultz.     The trial court granted the

State’s motion and entered an amended information and corrected judgment and

sentence to add the domestic violence designation to cyberstalking.

      Schultz appeals.

                                  ANALYSIS

      This case presents the intersection between a defendant’s remedy for a

conviction for an offense not charged, and his remedy for a plea based on a

mutual mistake.    Schultz claims that when a mutual mistake produces an

agreement to plead guilty to a crime not charged and a resulting conviction, the

remedy is to provide him with all of the agreement’s benefits but to require the

court to impose a lesser sentence for a lesser crime than contemplated by the

agreement. We disagree.




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      A defendant convicted of a crime not charged has the right to reversal of

the judgment and sentence.2 But, Schultz did not ask for and does not want this

relief, because the judgment and sentence dismissed three counts of the

information charging him with three additional felonies. Because Schultz has not

requested this relief, it would deprive both parties of the benefits of their plea

agreement. The trial court’s actions remedied the issue, so we do not reverse

the judgment and sentence.

      When a defendant’s plea agreement is based on a mutual mistake, the

Washington Supreme Court has identified two remedies available to the

defendant: specific enforcement of the plea agreement or withdrawal of the guilty

plea.3 It has not identified any third remedy. Schultz has stated that he does not

wish to withdraw his plea. The record suggests good reasons why. He would

face the four felonies charged in the original information and possible

amendments charging more serious or additional crimes.

      So, Schultz asks for a remedy that no court appears to have provided.4

He cites no case law suggesting that this remedy is within the court’s authority.

He offers no reason why it would be fair or appropriate. He admits that his plea

was knowing. He does not identify any injustice inflicted on him. He makes no

claim that he was denied due process. He makes no claim that the facts do not

support his conviction. He fails to persuade us that the trial court should have

resentenced him.


      2 State v. Olds, 39 Wn.2d 258, 261, 235 P.2d 165 (1951).
      3 State v. Walsh, 143 Wn.2d 1, 8-9, 17 P.3d 591 (2001).
      4 DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193

(1962).


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No. 79153-2-I/ 8


       Schultz also challenges the trial court’s decision to allow the State to file

an amended information after he was sentenced and the amendment of the

judgment and sentence. We review these decisions by the trial court for abuse

of discretion.5 The trial court authorized the filing of an amended information and

amended the judgment and sentence under CrR 7.8(a), which states:

              Clerical mistakes in judgments, orders or other parts of the
       record and errors therein arising from oversight or omission may be
       corrected by the court at any time of its own initiative or on the
       motion of any party and after such notice, if any, as the court
       orders. Such mistakes may be so corrected before review is
       accepted by an appellate court and thereafter may be corrected
       pursuant to RAP 7.2(e).

       A clerical mistake is one that, when amended, correctly conveys the

intention of the court based on other evidence.6        For example, a court may

amend a judgment to include correct language that did not correctly convey the

court’s intention or “supplies language that was inadvertently omitted from the

original judgment.”7 If the mistake is not clerical in nature, it is judicial, and the

trial court cannot amend the judgment and sentence.8

       Count two of the information stated:

       Cyberstalking – Felony

                That the defendant TYSON JOSIAH SCHULTZ in King
       County, Washington, between October 1, 2015 and July 19, 2016,
       with intent to harass, intimidate, or torment another person, did
       make an electronic communication to [A.J.], anonymously or
       repeatedly, whether or not conversation occurred and threatening
       to inflict injury on the person or property of [INSERT] [sic], or any


       5State v. Haner, 95 Wn.2d 858, 864, 631 P.2d 381 (1981).
       6State v. Priest, 100 Wn. App. 451, 456, 997 P.2d 452 (2000).
      7 Presidential Estates v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100

(1996).
      8 Presidential Estates, 129 Wn.2d at 326.



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No. 79153-2-I/ 9


         member of his/her family or household; and the defendant had
         previously been convicted of Assault in the Fourth Degree-
         Somestic [sic] Violence, a crime of harassment as defined in
         RCW 9A.46.060, with [A.J.]; and that the threats communicated
         included the threat to kill;

                Contrary to RCW 9.61.260(1),(3), and against the peace and
         dignity of the State of Washington.

         The information identified count two as cyberstalking, without the domestic

violence designation. Schultz’s statement on plea of guilty stated that he was

charged with the crime of “Cyberstalking DV” and referred to the “information” for

the elements of the crime.”          In open court, Schultz pleaded guilty to

“Cyberstalking DV.”     In his statement and in the felony plea agreement, he

agreed to the offender score based on his prior convictions for crimes involving

domestic violence as identified in the State’s offender scoring form.        In his

statement and at the hearing, he agreed the standard sentencing range was 51

to 60 months. The parties agreed to jointly recommend 51 months confinement.

         The documents and proceedings related to the plea agreement support

only one reasonable conclusion. The parties failed to notice that the information

did not designate the charge of cyberstalking as one of domestic violence.

Schultz points to no evidence to the contrary.        He does not challenge the

prosecutor’s assertion that this omission was a word processing or computer

error.

         CrR 7.8(a) authorizes the court to correct mistakes in the record with no

time limit.    Here, all of the parties believed the information included the

designation of domestic violence on the charge of cyberstalking. Because the

information is part of the record, and because the error was one that “when



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amended would correctly convey the intention of the court based on other

evidence,”9 the trial court did not err in allowing the filing of an amended

information or amending the judgment and sentence.

                                    CONCLUSION

        We affirm. The record shows that Schultz does not want the court to

reverse his original judgment and sentence and allow him to withdraw his guilty

plea.       His only other available remedy is specific enforcement of his plea

agreement, which he has received. CrR 7.8(a) allows a trial court to correct the

scrivener’s clerical error upon which Schultz has relied for his requested relief.




WE CONCUR:




        9   State v. Priest, 100 Wn. App. 451, 456, 997 P.2d 452 (2000).


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