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                                                               2011 JU:!     [.°11 8:[




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

STATE OF WASHINGTON,                                 No. 74344-9-1

                           Respondent,

                 V.                                  UNPUBLISHED OPINION

BRODERICK RAY YOUNG,

                           Appellant.                FILED: June 5, 2017

       SCHINDLER, J. — Broderick Ray Young appeals denial of the motion to withdraw

his guilty plea. Because the record supports the determination that defense counsel

provided effective assistance of counsel and Young knowingly, intelligently, and

voluntarily entered the plea of guilty, we affirm.

                                           FACTS

       On July 19, 2011, Broderick Ray Young attacked 63-year-old D.H. in the kitchen

of her home. Young was naked and attempted to pull D.H.'s pants down. Young told

D.H., "'You'll like this.'" D.H. fought back and pushed him into a cabinet. Young ran

out the back door. D.H. called 911. Police arrested Young a short distance from the

house.
No. 74344-9-1/2

       The State charged Young with attempted rape in the first degree in violation of

RCW 9A.44.040 and RCW 9A.28.020, count I; and burglary in the first degree in

violation of RCW 9A.52.020, count II.

       On July 28, 2011, the court ordered Young committed to Western State Hospital

(WSH)for a competency evaluation. The September 19, 2011 WSH forensic

psychological report concluded Young "appeared to be psychiatrically stable,"

"demonstrated an accurate understanding of the charges against him," and understood

the legal consequences of pleading guilty.

       Mr. Young appeared to be psychiatrically stable, with no evidence of
       psychosis, mood instability, or cognitive impairment. He demonstrated an
       accurate understanding of the charges against him and the possibility that
       he potentially faces a prison sentence if convicted. He demonstrated an
       accurate understanding of the roles of the major courtroom participants as
       well as the meaning and possible legal outcomes of his basic plea options.
       He was cooperative, pleasant, and able to remain focused during the
       interview. He demonstrated the capacity to provide relevant answers to
       stand competency interview questions as well as the capacity to learn new
       legally relevant information.

The court found Young competent to stand trial.

       On March 2, 2012, the court ordered Young committed to WSH for another

competency evaluation. The April 13, 2012 WSH forensic psychological report states

Young is competent and has a "good understanding of court proceedings"—"Mr. Young

has the capacity to understand the nature of the proceedings against him, and has the

capacity to assist in his own defense." On April 26, the court found Young competent to

stand trial.

       On May 24, Young pleaded guilty as charged. The "Statement of Defendant on

Plea of Guilty to Sex Offense" states the maximum term for the charge of attempted




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No. 74344-9-1/3

rape in the first degree and burglary in the first degree is "[I]ife" and the "judge will

impose a maximum term of confinement consisting of the statutory maximum sentence."

       In the Statement of Defendant on Plea of Guilty to Sex Offense, Young describes

in his "own words" why he is guilty of the charged crimes.

       The judge has asked me to state what I did in my own words that makes
       me guilty of this crime.
             This is my statement: Count I: Attempted rape first degree: On or
             about July 19, 2011, in Skagit County, WA, with intent to commit
             rape in the first degree, the elements of which are: to engage in
             sexual intercourse by forcible compulsion with D.H. after feloniously
             entering into the building where D.H. was situated, I did an act
             which was a substantial step towards the commission of that crime.

              Count II: First-degree burglary: On or about July 19, 2011, in
              Skagit County, WA, with intent to commit a crime against a person
              or property therein, I entered and remained unlawfully in the
              building of D.H., and while in the building I intentionally assaulted
              D.H. by means of attempting to forcibly engage in sexual
              intercourse with her.

Young also states that "[m]y lawyer has explained to me, and we have fully discussed"

the plea agreement.

       My lawyer has explained to me, and we have fully discussed, all of the
       above paragraphs and the "Offender Registration" Attachment. I
       understand them all. I have been given a copy of this "Statement of
       Defendant on Plea of Guilty." I have no further questions to ask the judge.

       During the hearing on the plea, Young told the court he understood that he was

charged with attempted rape in the first degree and burglary in the first degree and that

he was pleading guilty to those charges. Young told the court he discussed the plea

agreement with his attorney, including "the maximum penalty and the standard range."

Young said he did not have any questions about the plea agreement.

       Q.    Mr. Young, do you understand that you are charged with Attempted
       Rape in the First Degree and Burglary in the First Degree?
       A.    Yes.


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No. 74344-9-1/4

       Q.    And you're planning to plead guilty to those two charges this
       afternoon?
       A.    Yes.
       Q.    I have your guilty plea statement here in front of me. Have you
       gone over this document completely?
       A.    Yes.
       Q.    Do you have any questions about any part of it?
       A.    No.
       Q.    You've had a chance to discuss it with [defense counsel]?
       A.    Yes.

       Q.    This statement goes over the maximum penalty and the standard
       range. Have you reviewed that?
       A.    Yes.

       The court found Young knowingly and voluntarily entered into the Statement of

Defendant on Plea of Guilty to Sex Offense and was guilty as charged.

      I find Mr. Young's guilty pleas to be knowing and voluntary, and based on
      the facts in the guilty plea statement, those facts supporting the charges,
      find Mr. Young guilty as charged in Count 1 and Count 2.

       At the sentencing hearing on August 1, the court sentenced Young to the

"minimum term" of 110.25 months to the "maximum term" of life on count 1 and 34

months on count II, concurrent with count I.

       The judgment and sentence states the standard range sentence for attempted

rape in the first degree is 83.25 to 110.25 months and the "[m]aximum [t]erm" is "[1]ife,"

and the standard range sentence for burglary in the first degree is 26 to 34 months and

the "[m]aximum [germ" is "[lye."

       Young appealed the judgment and sentence. Young argued the court improperly

imposed the burglary antimerger statute and challenged community custody conditions.

State v. Young, 184 Wn. App. 1033, 2014 WL 6436580, at *1(2014). The State

conceded the court improperly imposed some of the community custody conditions.

Youna, 2014 WL 6436580, at *2. We accepted the State's concession and remanded


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No. 74344-9-1/5

to strike the community custody conditions but affirmed in all other respects. Young,

2014 WL 6436580, at *2, *3.

       On February 11, 2015, Young filed a pro se motion to withdraw his guilty plea.

Young states his attorney provided ineffective assistance of counsel. Young claimed

his attorney "did not explain at the time until I signed the plea agreement that it was a[n]

indeterminate sentence." Young also claimed "mental incapacitation." The court

appointed an attorney to represent Young.

       The attorney filed a motion to vacate the guilty plea and the judgment and

sentence arguing Young did not understand that by pleading guilty, he would receive an

indeterminate life sentence. Young argued his former attorney failed to advise him of

the "true risks of indeterminate sentencing" and the court did not specifically address the

indeterminate sentence during the colloquy.

       Young and his former attorney testified at the hearing on the motion to withdraw

the guilty plea. Young testified his former attorney did not discuss the indeterminate

sentence with him. The former attorney testified that he discussed the indeterminate

sentence with Young. The court admitted into evidence a number of documents,

including e-mails and notes of discussions between the attorney and Young.

       At the conclusion of the hearing, the court denied the motion to vacate the guilty

plea. The court found the former attorney advised Young "of the risks of an

indeterminate sentence" and the attorney's representation of Young did not fall below

the "objective standard of reasonableness. . . with respect to an indeterminate

sentence." Because the Statement of Defendant on Plea of Guilty clearly informed

Young of the indeterminate sentence and Young told the court he reviewed the plea



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No. 74344-9-1/6

agreement with his attorney and had no questions, the court rejected the argument that

the colloquy was inadequate. The court found Young was aware that by pleading guilty,

he would receive an indeterminate sentence.

               Based on what[defense counsel] has testified here and based on
       his notes, I'm quite satisfied that Mr. Young was aware of those
       consequences when entering his plea. And based on the language in the
       guilty plea itself I'm quite confident that Mr. Young is aware. [Defense
       counsel] testified that he went over that guilty plea, and that he read it to
       Mr. Young, and that he spent 20 minutes with him going over that plea
       before they appeared in court together and entered a plea, and that he
       didn't raise any issues with Mr. Young's competence or Mr. Young's
       failure to understand with the court at the time, and he would have done
       so had he had any of those concerns. So I just can't conclude that Mr.
       Young didn't know what he was doing and that he wasn't fully informed
       when he entered this guilty plea. So for those reasons the motion is
       denied.

       Young appeals the order denying the motion to withdraw his guilty plea.

                                         ANALYSIS

       Young contends the court erred in denying his motion to withdraw the guilty plea

because his attorney provided ineffective assistance of counsel and he did not

knowingly, intelligently, and voluntarily plead guilty.

       Due process requires that a plea is knowing, voluntary, and intelligent. State v.

Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49(2006). The court shall allow withdrawal of

a plea only "to correct a manifest injustice." CrR 4.2(f). The due process standard is

reflected in CrR 4.2(d). CrR 4.2(d) states a 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." CrR

7.8(b) allows for relief from judgment for "[m]istakes, inadvertence, surprise, excusable




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No. 74344-9-IR

neglect or irregularity in obtaining a judgment or order" and lajny other reason justifying

relief."

           We review a denial of a motion to withdraw a guilty plea for abuse of discretion.

State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006). A court abuses its discretion

when its decision is manifestly unreasonable or based on untenable grounds or

reasons. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705(2014). Denial of effective

assistance of counsel may amount to manifest injustice. Mendoza, 157 Wn.2d at 587.

A defendant may challenge the voluntariness of his guilty plea when he was

misinformed about sentencing consequences, resulting in a more onerous sentence.

Mendoza, 157 Wn.2d at 587.

           Young contends his attorney did not meaningfully explain the indeterminate

sentence. The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To

demonstrate ineffective assistance of counsel, a defendant must show (1) counsel's

representation was deficient, that it fell below an objective standard of reasonableness;

and (2) prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995);

see also State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015(2011). If either prong

of the test is not satisfied, our inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78,

917 P.2d 563(1996).

           The record supports the court's determination that defense counsel's

representation did not fall below the objective standard of reasonableness. The court

found the attorney explained that once Young "had served the minimum that was



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No. 74344-9-1/8

imposed by the judge[,]... the Indeterminate Sentence Review Board would review it

again every five years and evaluate whether he could be released."

      Defense counsel testified that his standard practice is to explain to his clients the

potential for an indeterminate sentence.

      Q.     . . .[D]o you have a specific recollection of how you describe an
             indeterminate sentence, the possibility with Mr. Young?
      A.     I don't have a recollection of the specific conversations, no.
      Q.     Do you have a standard practice of how you go about advising that
             potential to clients?
      A.     Yes.
      Q.     And what do you typically do?
      A.     Typically the first time I meet with a client who is charged with an
             offense that carries an indeterminate sentencing I will advise them
             that if convicted then they are facing an indeterminate sentencing.
             In this case it would be a Class A Felony. I would advise the client
             that they may face a situation where they will never be released;
             that the way it works is that the Court will set the minimum
             sentence, which they must serve. Then once they serve the
             minimum sentence then an indeterminate sentencing review board
             will make a determination whether they should continue to be
             detained or not. And the process is that the board must decide
             whether they believe more likely than not if the defendant will
             commit a future sex offense if released. If they think more likely
             than not then they will do so, then they will be detained. And if they
             are sentenced it can be extended by up to three years at a time.
             And if there's an extension of the sentence then further at a later
             date at the end of an extended sentence it would again be reviewed
             with the same standards and then continue to be reviewed until
             such point which at that point the person is either released or they
             die.
      Q.     So do you believe you had that same explanation with Mr. Young?
      A.     I think I would have.

      Defense counsel testified that he told Young he was facing an indeterminate

sentence.

      Q.     .. . Is it true that you never explained to Mr. Young the likelihood if
             he would spend the rest of his life in prison with an indeterminate
             sentence?
      A.     If I understand your question you are asking me if I told him how
             likely I thought it would be that he would actually serve a life


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No. 74344-9-1/9

               sentence?
        Q.     Yes.
        A.     I think that would be true. I did not tell him how likely it would be,
               more along the lines of telling him that he was facing an
               indeterminate sentence.

       The record also shows Young understood that he was facing an indeterminate

sentence. On October 25, 2011, defense counsel noted that Young "[w]ants to take

indeterminate sentence away." The April 13, 2012 WSH forensic psychological report

stated,"When asked how long he could be sentenced if found guilty,[Young] replied,

'Indefinite length or life.'"

        Further, in the May 9, 2012 e-mail from defense counsel to the prosecutor about

the possibility of a plea agreement, defense counsel states, "Mr. Young very much

wants a determinate sentence and is willing to serve additional time to get a

determinate sentence." In the e-mail response, the prosecutor states:

       I have spent a considerable amount of time trying to figure out a good
       offer that would not involve a class A indeterminate sentence for your
       client and, frankly, I just can't. I have considered all the permutations of
       the burglaries, assaults, sex crimes, sexual motivation enhancements, and
       even kidnapping, but none result in an appropriate resolution that a) would
       result in his imprisonment for at least the ten years that is the current top
       of his range with his current charges, b) his being a registered sex
       offender, and c) are charges appropriate to the situation.

Defense counsel told the prosecutor that Young should be able to avoid the

indeterminate sentence but agreed to discuss the offer with Young.

       I feel [Young]should "get around" the indeterminate life sentence because
       he is less culpable than others who commit sex offenses, and because he
       should not be treated the same as someone who completed the offense.
       . . . However, if this is the best offer you are inclined to make (with victim
       input), I'll communicate it to Mr. Young. I don't know that I'll be able to do
       so today.




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No. 74344-9-1/10

      Young also contends defense counsel provided ineffective assistance of counsel

by falling to take into account his "mental illness." The record does not support the

assertion that Young was suffering from mental illness when he entered into the plea

agreement. The April 13, 2012 WSH forensic report found Young was competent to

stand trial and demonstrated a "good understanding" of the court proceedings.

      Mr. Young demonstrated a good understanding of court proceedings. His
      thought process regarding the legal system was rational and goal-
      directed. He did not evidence any bizarre or delusional beliefs regarding
      the court procedures or personnel. Mr. Young did not appear to have any
      difficulty attending to the questions asked and he was able to
      communicate effectively with the examiner. Therefore, based on his
      current presentation, it is my opinion that Mr. Young has the capacity to
      understand the nature of the proceedings against him, and has the
      capacity to assist in his own defense.

      Young also contends his defense counsel he did not explain the State's threat to

seek an exceptional sentence was "illusory." The record does not support his

argument.

       Defense counsel testified that he advised Young about the State's threat to seek

an exceptional sentence and that it was "realistic."

       Q.     And part of that threat — did you advise him that was a realistic
              threat?
       A.     I think what I would have advised him — I don't have a specific
              recollection of our conversations. But what I believe I would have
              advised him of is what the threat was, the legal basis for the threat
              was and the actual basis for the threat was what the consequences
              could be if a jury found aggravating circumstances.

       Consistent with the e-mails from the prosecutor, defense counsel testified that he

advised Young the State would likely prevail in seeking an exceptional sentence for a

sexual motivation enhancement.

       Q.     Did you believe that to be a viable threat based on the facts of the
              case?


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No. 74344-9-1/1 1

       A.    I believed that the prosecutor likely would have, in fact, sought the
             exceptional sentence that she had threatened to do, so if that's the
             question.
       Q.    My question is did you think the State would be successful in
             continuing (indistinguishable)?
       A.    Well, with regard to the sexual motivation enhancement or on the
             burglary I think that's something that likely could have been
             successful.. .. I'm not recalling right off the top of my head, I think
             it would be sexual motivation and an enhancement on the
             Burg[lary] 1. And I believe that that's something the State likely
             could have prevailed upon.

      The record supports the court's finding that the State's threat of an exceptional

sentence "actually happened," that it was not "an empty threat," and it would have

raised the mandatory minimum sentence. The court ruled, in pertinent part:

      With respect to the threat for the exceptional sentence upward by the
      State there is no doubt based on the records that that actually happened.
      [The prosecutor] sent an email from her office to [defense counsel] saying
      that if Mr. Young did not plead guilty as charged she was going to file [an]
      information charging aggravating factors that she would use as a basis for
      a request for an exceptional sentence upward. Now,for some reason I
      don't understand, Mr. Young takes the position that[defense counsel]
      should have told him that that was an empty threat. I can't imagine that
      the objective standard of reasonable conduct for a defense attorney would
      be to tell the client that that threat by the prosecutor was an empty threat.
      Because in this particular case I'm quite sure it wasn't an empty threat.
      I'm sure [the prosecutor] would have followed through with following those
      aggravating factors if she would have submitted them to the jury. And had
      the jury found them the judge would have had a basis to impose an
      exceptional sentence upward. Had that happened Mr. Young wouldn't
      have been eligible for an Indeterminate Sentence Review Board hearing
      for even longer than he currently is. His consequences would have been
      more dire than they are at this point in time. So there certainly was reason
      for [defense counsel] to explore that with Mr. Young and explain what the
      dangers were, to tell him that the exceptional sentence would be
      requested by the State and that he could be looking at more time before
      he got to the Indeterminate Sentence Review Board.




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No. 74344-9-1/12

       Young also claims the failure to interview the victim was ineffective. The record

supports the court's finding that defense counsel was not ineffective in deciding not to

interview the victim. The court's oral findings state, in pertinent part:

              With respect to [former defense counsel's]failure to interview the
      witness, obviously interviewing witnesses is an important part of defending
      in a criminal case. But in order to rise to the level of ineffective assistance
      I have to have something that tells me that the outcome would have been
      different had he done so. In this case I would have expected to see an
      interview done by [defense counsel] of the victim here saying: Well, if
      [former defense counsel] had come talk to me here's what I would have
      said, and this would have pulled the rug out from the prosecution. I don't
      have that. Quite frankly I don't think I have it. It probably doesn't exist
      and it wouldn't have helped.
              This is a victim whose statement was very strong when she
      reported this. And her description of the events to the officers was pretty
      strong. And I can't imagine that she was going to back off if anything had
      they interviewed her.

       In sum, the record supports the court's conclusion that the representation of

defense counsel did not fall below an objective standard.

       Young contends the language of the plea indicates his "actual confinement" is

limited to the standard range. But the court found the plea accurately informed Young

that he would receive an indeterminate sentence if he pleaded guilty. The court's oral

findings state, in pertinent part:

       [l]n the guilty plea statement itself, which was reviewed at the time of the
       entry of the guilty plea there is a paragraph on page 3 that talks about the
       indeterminate sentence. And it describes what happens from these kinds
       of offenses. The judge will impose a maximum term of confinement
       consisting of the statutory maximum sentence of the offense and a
        minimum term of confinement. The minimum term of confinement that is
       imposed may be increased by the Indeterminate Sentence Review Board
       if the board determines by a preponderance of the evidence that it is more
       likely than not that I will commit sex offenses if released from custody.
               The language in that guilty plea statement may not be as plane [sic]
       as  you  might like, but the fact of the matter is that it's in there.




                                              12
No. 74344-9-1/13

       The language of the Statement of Defendant on Plea of Guilty supports the

court's finding. It states the judge will impose the "statutory maximum sentence." The

Statement of Defendant on Plea of Guilty states, in pertinent part:

       Sentencing under RCW 9.94A.507: If this offense is any of the offenses
       listed. .. below, the judge will impose a maximum term of confinement
       consisting of the statutory maximum sentence of the offense and a
       minimum term of confinement either within the standard range for the
       offense or outside the standard range if an exceptional sentence is
       appropriate. The minimum term of confinement that is imposed may be
       increased by the Indeterminate Sentence Review Board if the Board
       determines by a preponderance of the evidence that it is more-likely than
       not that I will commit sex offenses if released from custody.

The Statement of Defendant on Plea of Guilty also states the "maximum term" and fine

for attempted rape in the first degree and burglary in the first degree as "[I]ife &

$50,000."

       Young contends his guilty plea was not knowing, intelligent, or voluntary because

the court did not explicitly address the indeterminate sentence during the colloquy. The

court considered and rejected this argument. The court found Young knowingly,

intelligently, and voluntarily pleaded guilty.

       [W]ith respect to the colloquy at the time of the plea[,]. . . I asked Mr.
       Young if he's gone over the guilty plea completely, if he has any questions
       about any part of it, if he's had a chance to discuss it with his attorney.
       And in response to all three of those questions Mr. Young said yes.(11

               . . . The guilty plea statement does contain the language.

       The record shows the court did not misinform Young of the consequences of

pleading guilty and he knowingly, intelligently, and voluntarily entered the plea. As the

'court notes, the Statement of Defendant on Plea of Guilty states the maximum term for



         1 During the plea colloquy when the judge asked Young,"Do you have any questions about any
part of [the plea agreement]," Young replied, "No."


                                                 13
No. 74344-9-1/14

the charged crimes is "[I]ife." And during the hearing, the court confirmed that Young

reviewed the Statement of Defendant on Plea of Guilty, discussed it with counsel, and

did not have any questions.

       We affirm denial of the motion to withdraw the guilty plea, and affirm.




WE CONCUR:




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