                                                                                                              FILED
                                                                                                    COURT OF APPEALS
                                                                                                            DIVISION II

                                                                                                   2015JUN 23           AM 8: 32




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


    In the Matter of the                                                             No. 46090 -4 -II
    Personal Restraint Petition of


    JOHN MICHAEL TROIT,


                                        Petitioner.


                                                                             UNPUBLISHED OPINION




          LEE, J. —     John Michael Troit seeks relief from personal restraint imposed following his

conviction of unlawful possession of a controlled substance ( methamphetamine) with intent to


deliver. Troit contends that he received ineffective assistance of counsel when his trial attorney

failed to accurately convey a plea offer that would have allowed him to plead guilty to a simple

possession charge. Troit received a sentence of 100 months, which was well beyond any
                                                                                                                    1
standard range sentence         he    would   have   received   had he   pleaded   guilty to   possession   only.


Because defense counsel did not convey the State' s offer in a timely and accurate manner, we

agree that Troit received ineffective assistance. Therefore, we grant this petition, remand this


matter, and direct the State to again offer him a chance to plead guilty to unlawful possession.


1
    Troit' s   standard range   for   a possession conviction would        have been 12+ to 24 months, while his
standard range on       the   possession with    intent to deliver   conviction was      60+ to 120 months. RCW
9. 94A. 517, . 518.
No. 46090 -4 -II


                                                     FACTS


          Troit raised this issue on direct appeal, and we recognized that the transcript of the


sentencing hearing showed some disagreement about the specifics of the State' s plea offer. State

v.   Troit,   noted at   171 Wn.   App.   1015, 2012 WL 5349380,        at *   3 ( 2012), review denied, 176


Wn.2d 1028 ( 2013).          During that hearing, defense counsel asserted that the State had offered to

recommend a sentence within the range for possession of a controlled substance while


maintaining the original charge of possession with intent to deliver. Counsel said that he told

Troit that the recommended sentence was not compatible with his offense. The prosecuting

attorney responded that the State had offered to amend the charge to possession of a controlled

substance, which would have allowed Troit to take advantage of the considerably reduced

sentence range.          Troit, 2012 WL 5349380,   at *   2 -3.   On appeal, we observed that these facts were


insufficient to show that defense counsel misstated the plea offer to Troit, but we noted that Troit


could submit additional evidence in a personal restraint petition and seek a reference hearing.

Troit, 2012 WL 5349380, at * 3.


          Troit responded by filing a timely personal restraint petition and a copy of the State' s

written plea offer. The document appeared to support the prosecuting attorney' s description of

the offer during sentencing, but it was not without ambiguity and did not answer questions

concerning how and when defense counsel communicated its terms to Troit.

          We transferred this petition to the superior court for a reference hearing to determine the

terms of the State' s plea offer and whether those terms were communicated to Troit in a timely

manner. RAP 16. 12. Following that hearing, the superior court entered written findings of fact,

two of which described the State' s offer:



                                                            2
No. 46090 -4 -II



         2.         The state' s written plea offer in this case stated, at the top of the document,
                    that the defendant was charged [ with] Unlawful Possession of a Controlled
                    Substance --Methamphetamine - with
                                                  -    Intent to Deliver.                          Just below that,
                    however, the written plea offer states that the charge is " UPCS- meth" with
                    a standard range of "12+          to 24   months,"   based on a noted offender score of
                    7....       That is the amount of time for a standard range sentence for a charge
                    of Unlawful Possession of a Controlled Substance --Methamphetamine, for
                    a defendant with an offender score of 7.
         3.         The written plea offer also states that " if the defendant pleads by 12/ 20:
                    Plead to       as charged;   Recommendation:             12+     months."      The written plea
                    offer includes increasing recommended sentences if defendant accepts the
                    plea offer at       later dates, up to 18 months, " if the defendant pleads after
                      1/ 13."    The   written plea offer is dated " 29 Nov 10," and signed by [ the
                    assigned prosecutor].




Findings of Fact Following Reference Hr' g, at 2. The offer also contained the prosecutor' s

handwritten      notation       that, regarding the   offer of   12+   months, she " will honor if he takes by Wed,

12/ 22   @    10: 30."   Findings of Fact, at 2.


         At Troit' s arraignment on November 30, 2010, an attorney from the Office of Assigned

Counsel tendered a not guilty plea on Troit' s behalf and named the attorney who would be

assigned to Troit. During the arraignment, the prosecutor stated that she had " already handed

defense counsel a copy of the state' s offer, statement of criminal history and offender score
worksheet."       Findings of Fact, at 2.


         Troit' s pretrial /omnibus hearing was scheduled for 10: 30 AM on December 20, 2010. He

did not appear at that hearing, and it was continued to December 22 at 10: 30 AM. On December

20, the original date for the hearing, defense counsel and the prosecutor met to discuss the State' s

written offer, which the prosecutor then realized " was not as she normally would have made in a

case charging Unlawful Possession of a Controlled Substance with Intent to Deliver, to

defendant      with   Mr. Troit' s     offender score."   Findings      of   Fact,   at   3.   The prosecutor agreed to


keep the offer open as written for two days, or until December 22 at 10: 30 AM, the date and time

                                                                 3
No. 46090 -4 -II



to which the pretrial /omnibus hearing was continued. Troit did not attend the omnibus hearing

on December 22.


         While Troit was in custody, he sent defense counsel and defense counsel' s supervisor a

total of five " kites" complaining of counsel' s lack of contact and lack of work on his case.'

Findings   of   Fact,   at   3.   The earliest kite, dated December 20, 2010, stated in part that it has " been


over   40 days   and    I have     not yet   heard from my attorney." Findings of Fact, at 3.


         Troit testified at the reference hearing that his attorney eventually informed him that the

State' s offer was to " plead as charged" and that at sentencing the attorneys would ask for an

exceptional sentence          downward. Findings        of Fact, at   3.   Troit also testified that he told his


attorney that he wanted to think about the offer. Troit added that he never saw the State' s written

offer until he received it through public records requests filed with the prosecutor' s office and


the Office of Assigned Counsel.


         Troit testified at his sentencing hearing that his attorney relayed a plea offer to him

during their first visit, and he testified at the reference hearing that this visit did not take place

until 40 days after his arrest. Troit' s kites referred to this lack of attorney contact and this length

of time.


         During his allocution at the time of sentencing, Troit stated that he asked his attorney

about the deal during his second visit, which was the day before trial. Troit told the sentencing

judge that his attorney stated that the offer he had communicated earlier was a mistake and that

the only question was `whether a lesser included charge would be given to the jury.




2 In this context, a kite is a written note sent by inmates to various people out of custody,
including their attorneys.
                                                             4
No. 46090 -4 -II


        At the sentencing            hearing,       defense   counsel attempted        to clarify the     plea offer. "   The


original offer was to plea as charged, but to accept a sentence within a range that was for simple

possession, and so the offer, as I understood it, was to plea as charged, but the amount of time

was not what —compatible               with what he would have done, and that' s what I told Mr. Troit."


Findings   of   Fact,   at   4. The    prosecutor       then    stated, "[    Defense counsel] came to me and said


specifically, if I understand it right, you' re offering him possession with a 12 -plus to 24 month

sentence   instead   of      delivery,   and    I   said yes,   that is    correct."   Findings of Fact, at 4.


        The court' s final finding is as follows:

        18.        Based on the above findings of fact, all of which are based on unrefuted
                   testimony          and      exhibits,        the    undersigned         finds   that     the   offer   as

                   communicated to Mr. Troit by his attorney was to enter a plea " as charged ",
                   and       that the    attorneys       would        agree   to   recommend       a "    standard   range"

                   sentence of 12 +months in custody. That standard range was not the correct
                   standard range for a charge of Unlawful Possession of a Controlled
                   Substance with Intent to Deliver --Methamphetamine, for an offender with
                   Mr. Troit'        s offender score of         7. Mr. Troit' s standard range for that charge
                   was       60+    to 120 months in custody.

Findings   of   Fact,   at    4.    As stated, Troit was convicted of possession with intent to deliver and


received a sentence of 100 months.


                                                              ANALYSIS


        To succeed on a claim of ineffective assistance of counsel, a petitioner must show that his


counsel' s performance was deficient and that the deficiency was prejudicial. In re Pers.

Restraint of Reise, 146 Wn.              App.       772, 787 -88, 192 P. 3d 949 ( 2008).           In a plea bargaining

context, effective assistance of counsel requires                      that   counsel "`   actually   and   substantially '     assist




his client in deciding whether to plead guilty. State v. Osborne, 102 ,Wn.2d 87, 99, 684 P. 2d 683

 1984) ( quoting State         v.   Cameron, 30 Wn.            App.    229, 232, 633 P. 2d 901 ( 1981)).           This includes



                                                                       5
No. 46090 -441



communicating actual offers and discussing tentative plea negotiations and the strengths and

weaknesses of defendant' s case so that the defendant knows what to expect and can make an


informed judgment about whether or not to plead guilty. State v. James, 48 Wn. App. 353, 362,

739 P. 2d 1161 ( 1987). As the James court added,


                 In conducting discussions with the prosecutor the lawyer should keep the
         accused advised of developments at all times and all proposals made by the
         prosecutor should be communicatedpromptly to the accused."

48 Wn. App. at 363 ( quoting Lyles v. State, 178 Ind. App. 398, 401, 382 N.E.2d 991 ( 1978)).

         If a defendant' s right to effective assistance of counsel in considering whether to accept a

plea bargain is denied, prejudice can be shown if loss of the plea opportunity led to a trial

resulting in conviction on more serious charges or the imposition of a more severe sentence.

Lafler   v.   Cooper,      U.S. ,      132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398 ( 2012). If the offer


was to a count less serious than the one for which the defendant was convicted, a resentencing

based on the conviction at trial may not suffice. Lafler, 132 S. Ct. at 1389. Instead,

         the proper exercise of discretion to remedy the constitutional injury may be to
         require   the   prosecution   to   reoffer   the   plea proposal.   Once this has occurred, the
         judge can then exercise discretion in deciding whether to vacate the conviction from
         trial and accept the plea or leave the conviction undisturbed. •


Lafler, 132 S. Ct. at 1389; see also State v. Hamilton, 179 Wn. App. 870, 879, 320 P.3d 142

 2014) ( remedy     for lawyer' s ineffective assistance is to put defendant in position in which he

would have been had counsel been effective).


          It is unclear exactly when defense counsel conveyed the State' s plea offer to Troit.

Counsel had that offer by November 30 at the latest, and at best he communicated that offer to

Troit sometime around December 22, the day that the original offer.expired. What is clear,

however, is that defense counsel did not accurately convey the plea offer to Troit. Counsel told

                                                              6
No. 46090 -4 -II



Troit that the State was offering to allow him to plead to " as charged' with the recommendation

of a " standard range"   sentence of   12+   months in custody. That sentence range was not the

correct standard range for unlawful possession with intent to deliver. Moreover, we agree with


Troit that it makes little sense that the State' s offer would be a guilty plea to the offense charged,

with the only possible relief being a recommended sentence well below the correct standard

range of   60+ to 120 months.


        The prejudice from counsel' s failure to promptly and accurately convey the plea offer to

Troit is evident. The loss of this plea opportunity led to Troit' s conviction on a more serious

charge and a sentence of 100 months in prison. We grant this petition and remand for the State


to reoffer the plea proposal. The trial court may then exercise its discretion to vacate the

conviction and accept the plea or leave the current conviction undisturbed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




                                                      7
