                                                                                                                          FILED
                                                                                                                 COURT
                                                                                                                           OF APPFA . S
                                                                                                                        DIVIS/ ON II
        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                               2GI5 MAR 31
                                                                                                                                  AN 8: 35
                                                         DIVISION II
                                                                                                               STI
                                                                                                                             AS INGIGN
    STATE OF WASHINGTON,                                                                    No. 45044 -5 -II
                                                                                                               By ,\

                      Appellant /Cross -Respondent,


               v.




    D. J. C.                                                                       UNPUBLISHED OPINION


                       Respondent /Cross- Appellant.



               MELNICK, J. —     D.J. C. pleaded guilty to one count of communication with a minor for

immoral purposes. The State appealed D. J. C.' s sentence, arguing that the trial court did not have

the authority to       relieve   D. J. C. from the        obligation     to   register as   a sex offender.    D. J. C. cross -


appealed, arguing that his plea was not knowing, intelligent, and voluntary because he was

misinformed of a direct consequence of his plea, and he was not informed of an essential element

of    the   crime.   D. J. C. further   argues    that   he   received   ineffective   assistance of counsel.        We reject


D. J. C.' s arguments. We affirm D. J. C.' s conviction. But because the trial court erred by ordering

that D.J. C. was not required to register as a sex offender, we remand to the trial court to vacate its


order and enter a new order requiring D.J. C. to register as a sex offender.

                                                               FACTS


               The State   charged   D. J. C.   with rape of a child      in the   second    degree.   On May 9, 2013, the

State amended the charge to communication with a minor for immoral purposes.'




1
    RCW 9. 68A. 090( 1)
45044 -5 -II




          D. J. C.   pleaded   guilty to the      amended    information.      D.J. C. signed a statement of plea of


guilty that stated he understood he was being charged with communication with a minor for

immoral     purposes, "      the elements of which are having a communication with another request [ sic]

sex."    Supplemental Clerk' s Papers ( Suppl. CP) at 13.


          At D. J. C.' s plea hearing, the trial court engaged in the following colloquy with D.J. C.:

           COURT]: [ D. J. C.], did you go through this statement with [defense counsel]?
           D. J. C.]:   Yes.
           COURT]: Did you understand it?
           D. J. C.]:   Yes, sir.
           COURT]:        Do you have any questions about it?
           D. J. C.]:   No, sir.
           COURT]:           Now, you are charged with communication of a minor for immoral
          purposes. What is your plea?
           D. J. C.]:   Guilty.
           COURT]:        Between November 7 of 2012 and January 7th of 2013 did you
          communicate with SB, who is under the age of 18?
           D. J. C.]:   Yes, Your Honor.
           COURT]: Was this for immoral purposes of a sexual nature?
           D. J. C.]:   Yes, Your Honor.
           COURT]:        Plea of guilty is accepted.

Report of Proceedings ( RP) at 3. 2

          The statement on plea of guilty also contained a paragraph stating that because of the

charge, D.J. C. would be required to register as a sex offender. However, at the sentencing hearing,

D.J. C. stated that he disagreed with the State' s assertion that he would be required to register as a

sex offender.        D.J. C. argued that registration did not serve any reasonable purpose in this case.

The trial       court gave   D.J. C.   a "   bonus"   and ordered   that he   did   not   have to   register.   RP   at   6. The


State appeals and D. J. C. cross -appeals.




2 We use initials to identify the minor victim under this court' s General Order 2011 - 1 that states
in      I] n all opinions, orders and rulings in sex crime cases, this Court shall use initials or
     part, "[

pseudonyms in place of the names of all witnesses known to have been under the age of 18 at the
time of any event in the case."


                                                               2
45044 -5 -II



                                                     ANALYSIS


I.         SEX OFFENDER REGISTRATION


           Statutory interpretation is a question of law that we review de novo. State v. Hirschfelder,

170 Wn.2d 536, 541, 242 P. 3d 876 ( 2010).                 Under former RCW 9A.44. 140( 3) ( 2002), a juvenile


could petition the court to be relieved of the duty to register as a sex offender if he demonstrated

that registration would not serve the purposes underlying the requirement for registration.

However, in 2010, the legislature repealed this provision and replaced it with RCW 9A.44. 143,


which allows a juvenile to petition to be relieved of the duty to register 24 months after the entry

of   the   adjudication.    RCW 9A.44. 143( 3)(      a).    Under the current law, any juvenile who has been

found to have committed a sex offense is required to register as a sex offender. RCW 9A.44. 130.

A    sex     offense     includes    communication          with   a    minor    for    immoral   purposes.     RCW


9A.44. 128( 10)( d).


           Here, D. J. C.   committed    the   offense   in 2012   or   2013.   Therefore, when sentencing D. J. C.,

the trial court did not have the discretion to relieve him of the requirement to register as a sex


offender. See RCW 9A.44. 130. Registration as a sex offender is mandatory. In re Pers. Restraint

of Carrier, 173 Wn. 2d 791, 808 -09, 272 P. 3d 209 ( 2012) ( " For                 purposes of sentencing, we look

to the     law in   effect at   the time the defendant      committed     the current   offense ");   RCW 9. 94A.345.


The trial court erred by ordering that D. J. C. did not have to register as a sex offender.




                                                              3
45044 -5 - II




II.          KNOWING, INTELLIGENT, AND VOLUNTARY GUILTY PLEA


             Due process requires that a guilty plea be knowing, intelligent, and voluntary. In re Pers.

Restraint of Isadore,                151 Wn.2d 294, 297, 88 P. 3d 390 ( 2004).                        We review constitutional


challenges        de   novo.        State   v.   Vance, 168 Wn.2d 754, 759, 230 P. 3d 1055 ( 2010).                D. J. C. argues


that he did not knowingly, intelligently, and voluntary plead guilty because he was not informed

that sex registration was a direct consequence of his guilty plea, and he was not informed of the

essential elements of the crime to which he pleaded guilty. The record does not support D. J. C.' s

assertions.




             A.         Direct Consequences of the Guilty Plea

              A defendant ` must be informed of all the direct consequences of his plea prior to

acceptance of a          guilty     plea. "'     State   v.   A. N.J., 168 Wn.2d 91, 113 - 14, 225 P. 3d 956 ( 2010) ( quoting


State   v.   Barton, 93 Wn.2d 301, 305, 609 P. 2d 1353 ( 1980)).                           In State v. Ward, our Supreme Court


held that the duty to register is a collateral consequence of a guilty plea because it does not enhance

a sentence or punishment.                    123 Wn. 2d 488, 869 P. 2d 1062 ( 1994) (              holding that the sex offender

registration statute imposed a registration obligation on individuals convicted prior to its

enactment).            The Court held that the duty to register is a collateral consequence of a guilty plea

because it does          not enhance a sentence or punishment.                          Ward, 123 Wn.2d, at 513 - 14.   Following

the decision in Ward, Division I of this court held that a defendant' s plea was voluntary despite

the fact that he was not given written notification of the sex offender registration requirement at


the time he entered his guilty plea. State v. Clark, 75 Wn. App. 827, 831, 880 P. 3d 562 ( 1994).

The issue arose again in A. N.J., where our Supreme Court declined to decide whether registration

as a sex offender          is   a   direct   consequence of          a guilty   plea.    168 Wn.2d   at   115. The Supreme Court


did not rule on this issue because, although defense counsel informed the defendant that the




                                                                         4
45044 -5 -II




requirement could be removed at a later date, the defendant received notification that he would

have to register. A. N.J., 168 Wn.2d at 115.


         Similar to A. N.J., we need not decide whether registration as a sex offender is a direct or


collateral consequence of a guilty plea because D. J. C. received notification that he would have to

register as a sex        offender.          D. J. C. clearly received notice that a conviction or adjudication for

communication with a minor for immoral purposes triggers the duty to register as a sex offender.

His   statement of      defendant      on plea of      guilty   contained   this   notification.   D.J. C. acknowledged that


he   reviewed     his   statement on plea of            guilty   with   his attorney    and understood    it. He signed the


statement on plea of           guilty. 3     Therefore, we reject D. J. C.' s argument and hold that his plea was

                                                   4
knowing,      intelligent,     and   voluntary.


         B.         Essential Elements of the Crime


         A guilty plea is not voluntary unless the defendant has been informed of all the essential

elements of     the     crime   to   which     he is pleading guilty.        In re Pers. Restraint of Hews, 108 Wn.2d

579, 590 -91, 741 P. 2d 983 ( 1987).                   The essential elements of communication with a minor for


immoral   purposes are: (        1) communication, (2) with a minor, and ( 3) for an immoral purpose. RCW


9. 68A.090( 1).         D.J. C. argues that the trial court did not inform him of the essential elements


because the statement on plea of guilty did not contain " with a minor" as an essential element of



3 A strong presumption that a guilty plea is voluntary is created when a defendant completes a plea
statement and admits to reading, understanding, and signing it. State v. Perez, 33 Wn. App. 258,
261, 654 P. 2d 708 ( 1982).


4 In his reply brief, D.J. C. argues for the first time that his plea was not knowing, voluntary, and
intelligent because he was not provided adequate notice of the specific requirements of sex
offender registration. We will not address arguments raised for the first time in reply briefs. RAP
10. 3( c). However, if the trial court fails to provide written notice to any defendant of RCW
9A.44. 130' s registration requirements, the remedy is not to allow a defendant to withdraw his or
her guilty    plea,     but   rather   to   provide actual notice of        the   registration requirement.   Clark, 75 Wn.

App. at 829.

                                                                    5
45044 -5 -II



the crime; the State concedes this error. However, the record as a whole demonstrates that D. J. C.


was    informed that     with a minor was an essential element of                   the crime.    Therefore, we reject the


State'   s concession.   See State      v.   Rodriguez, 183 Wn.       App.      947, 950, 335 P. 3d 448 ( 2014) ( rejecting


the State' s concession).


           The record establishes that D. J. C.' s statement on plea of guilty incorporated the amended

information      by reference.       Suppl. CP     at   13 ( " And I have been     given a   copy   of the charge( s) ").   That


pleading      contained all     of    the    essential   elements    of   the   crime.   In addition, prior to accepting

D.J. C.' s guilty plea, the trial court specifically asked D.J. C. if he " communicat[ ed] with SB, who

is   under   the age of 18."    RP at 3. D. J. C. responded that he did. Therefore, the record belies D.J. C.' s

assertion that he was unaware that " with a minor" was an essential element of the crime to which


he was pleading guilty. We reject the State' s concession.

           The court and the pleadings notified D.J. C. of the consequences of his guilty plea and all

of   the   essential elements of communication with a minor                      for immoral     purposes.     Thus, D.J. C.' s


guilty plea was knowing, intelligent, and voluntary.

III.       INEFFECTIVE ASSISTANCE OF COUNSEL


           D.J. C. argues that he received ineffective assistance of counsel because his counsel failed


to inform him of the direct consequences of his guilty plea and failed to inform him of all the

essential elements of          the   crime.    We review claims of ineffective assistance of counsel de novo.


A.N.J., 168 Wn.2d at 109. To prevail on an ineffective assistance of counsel claim, the defendant


must show that defense counsel' s performance was deficient and he was prejudiced by defense

counsel' s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,




                                                                 6
45044 -5 -II




80 L. Ed. 2d 674 ( 1984). To           show prejudice, "     the defendant must show that there is a reasonable


probability that, but for counsel' s errors, he would not have pleaded guilty and would have insisted

on
     going to trial."    Hill   v.   Lockhart, 474 U. S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 ( 1985).


Failure to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland,

466 U. S. at 700.


         Here, the    record    indicates that D. J. C.'   s counsel relied on   former RCW 9A.44. 140( 3) ( 2002)


when he argued to the trial court that registration did not serve any reasonable purpose in this case.

Based on an objective standard of reasonableness, counsel should have known that sex offender


registration is mandatory following a conviction for communication with a minor for immoral

purposes.      However, as discussed above, D.J. C. was informed he would have to register because


the statement on plea of guilty clearly stated that communication with a minor for immoral

purposes triggered the duty to register as a sex offender, and D.J. C. acknowledged reading and

understanding the statement. And, we have held that the remedy for not being told of the duty to

register is to subsequently provide such notice. Clark, 75 Wn. App. at 829.

         D. J. C. has not demonstrated that but for counsel' s errors, he would not have pleaded guilty

and would have insisted on going to trial. Therefore, he fails to demonstrate prejudice. Because

D. J. C. cannot demonstrate prejudice, his ineffective assistance of counsel claim fails.


         We affirm D.J. C.' s conviction, and remand to the trial court to vacate its order and enter a

new order      requiring D. J. C. to   register as a sex offender.
45044 -5 -II




        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:




   It
        Worswick, P. J.




        Sutton, J.




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