 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                     DIVISION ONE
                         Respondent,
                                                     No. 80641-6-I
               V.
                                                     UNPUBLISHED OPINION
 STEVEN MATTHEW FULLERTON,

                         Appellant.                 FILED: January 27, 2020


       DWYER, J.    —   Steven Fullerton appeals from his conviction for assault in

the third degree and multiple violations of a civil anti-harassment order following

a stipulated facts trial. Fullerton asserts that the trial court erred by enforcing a

mental health court contract in which he waived several constitutional rights,

including the right to a trial by jury, because it did not set forth the standard range

and statutory maximum sentences for the crimes charged. Because such

information was not required to be included in the mental health court contract

and Fullerton knowingly, intelligently, and voluntarily agreed to the terms of the

mental health court contract and waived his constitutional rights, we affirm.



       In 2017, Fullerton was charged with one count of assault in the third

degree and two counts of violating a civil anti-harassment order. Fullerton

suffers from multiple mental health disorders. Rather than undergo trial,

Fullerton agreed to participate in a mental health court program. This program
No. 80641 -6-1/2

defers prosecution in exchange for the defendant’s participation and, if the

defendant successfully completes the program, the charges against him or her

are dismissed with prejudice.

       The mental health court program contract set forth the following provisions

pertinent to this appeal:

       21. It is the Judge’s decision to determine when the defendant has
       earned the ability to complete the Program and to determine when
       termination from the Program will occur.

       22. Failure to abide by any Program rule, any positive
       urinalysis/breath test, any missed treatment session or Court
       hearing, any new violation of the law, or any failure to abide by any
       other terms or conditions of this contract will subject the defendant
       to a sanction ordered by the Court, which may consist of work
       release, confinement in the Lewis County Jail, community service,
       an increase in treatment services, or any other sanction up to and
       including termination from the Program.

       23. If the defendant is terminated from the Program, the defendant
       agrees and stipulates that the Court will determine the issue of guilt
       on the pending charge(s) solely upon a summary of the
       enforcement/investigative agency reports or declarations, witness
       statements, field test results, lab test results, or other expert testing
       or examinations such as fingerprint or handwriting comparisons,
       which constitute the basis for the prosecution of the pending
       charge(s) as contained in the Probable Cause Statement. The
       defendant further agrees and stipulates the facts presented by such
       reports, declarations, statements, and/or expert examinations are
       sufficient for the Court to find the defendant guilty of the pending
       charge(s).

       24. The defendant acknowledges, understands, and agrees to
       waive the following rights:
             a. The right to a speedy trial pursuant to CrR 3.3 (The
             defendant further agrees to a new commencement date
             of 4/1/20);
             b. The right to a public trial by an impartial jury in the
             county where the crime is alleged to have been
             committed;
             c. The right to hear and question any witness testifying
             against the defendant;


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No. 80641-6-1/3

                  d. The right at trial to have witnesses testify for the
                  defense, and for such witnesses to be made to appear at
                  no expense to the defendant; and
                  e~ The right to testify at trial.

           25. The defendant waives the right to challenge the legality of any
           investigative or custodial detention, or the legality of any search or
           seizure, or the sufficiency or Miranda[1~ warnings or voluntariness of
           any statement made, pertaining to any evidence, which forms part
           of the basis for the prosecution of the pending charge(s).

       The contract was signed by Fullerton, his defense counsel, the prosecutor,

and the court. Above Fullerton’s signature, the contract set forth the following

acknowledgement: “My attorney has explained to me, and we have fully

discussed, all of the above paragraphs. I understand them all and wish to enter

in this Mental Health Court Program Contract. I have no further questions to ask

the Judge.”

       Before Fullerton signed the agreement, he engaged in a brief colloquy

with the court about his understanding of the agreement. Specifically, the court

asked Fullerton if (1) he was voluntarily signing the agreement, (2) he understood

that he was waiving certain rights—like the right to a speedy trial—in exchange

for the opportunity to go through the mental health court program and have his

charges dismissed upon successful completion of the program, and (3) he had

reviewed the contract with his attorney and had any questions. In response,

Fullerton stated that he understood that he was waiving his rights for the chance

to participate in the program, that he had reviewed the contract with his attorney

and did not have any questions, and that he was signing the contract voluntarily.




       1   Miranda v. Arizona, 384 u.s. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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No. 80641 -6-114

       Subsequently, Fullerton was terminated from the program for violating the

terms of his contract. The trial court held a stipulated facts trial and found

Fullerton guilty of all three charges against him. The court then imposed an

exceptional sentence downward of 24 months of incarceration with credit for time

served and required Fullerton to pay a $500 crime victim compensation fund

assessment.

       Fullerton appealed to Division Two, which transferred the matter to us for

resolution.

                                           II

       Fullerton’s sole contention on appeal is that he did not knowingly,

intelligently, and voluntarily enter into the mental health court contract and that

therefore his waiver of his constitutional rights under that contract is invalid. This

is so, Fullerton asserts, because the contract did not set forth the standard range

or statutory maximum sentences for the charged offenses. Because such

information need not be included in a deferred prosecution agreement such as

the mental health court program contract, Fullerton’s contention is unavailing.

       We review a waiver of constitutional rights de novo. State v. Robinson,

171 Wn.2d 292, 301, 253 P.3d 84 (2011). A defendant’s waiver of his or her

constitutional right is valid only if made knowingly, intelligently, and voluntarily.

State v. Steciall, 124 Wn.2d 719, 724, 881 P.2d 979 (1994). Such a waiver must

be made with “sufficient awareness of the relevant circumstances and likely

consequences.” Bradyv. United States, 397 U.S. 742, 748, 90S. Ct. 1463,25 L.

Ed. 2d 747 (1970). It is the State’s burden to establish an “intentional



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No. 80641 -6-1/5

relinquishment or abandonment of a known right or privilege.” Brewer v.

Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)).

          Fullerton asserts that the mental health court program contract he signed

was similar to a guilty plea and was therefore required to inform him of the

standard range and maximum possible sentences for the crimes with which he

was charged. To support his assertion, Fullerton cites to State v. Walsh, 143

Wn.2d 1, 8, 17 P.3d 591 (2001), which sets forth the principle that a defendant

may not knowingly, intelligently, and voluntarily submit a guilty plea without being

properly informed of the sentencing consequences for the crimes charged. This

is because “[a] plea of guilty constitutes a waiver of significant rights by the

defendant, among which are the right to a jury trial, to confront one’s accusers, to

present witnesses in one’s defense, to remain silent, and to be convicted by

proof beyond all reasonable doubt.” State v. Tourtellotte, 88 Wn.2d 579, 583,

564 P.2d 799 (1977) (emphasis added) (citing Santobello v. New York, 404 U.S.

257, 260, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (Douglas, J., concurring)); see

also Brady, 397 U.S. at 748 (“[T]he plea is more than an admission of past

conduct; it is the defendant’s consent that judgment of conviction may be entered

without a trial.”). Therefore, sentencing is a direct consequence of a guilty plea,

and a defendant must be informed of the sentencing consequences for a guilty

plea to be valid. Wood v. Morris, 87 Wn.2d 501, 503, 513, 554 P.2d 1032

(1976).




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No. 80641 -6-1/6

        In contrast, a defendant entering into a deferred prosecution agreement

requiring a stipulated facts trial should the defendant breach the agreement—

such as the mental health court program contract herein—plainly does not waive

the right to be convicted by proof beyond a reasonable doubt.2 See State v.

Drum, 168 Wn.2d 23, 34, 225 P.3d 237 (2010) (“By entering a drug court

contract, a defendant is not giving up his right to an independent finding of guilt

beyond a reasonable doubt.”). “[A] stipulated facts trial, where the trial court

independently reviews the evidence and makes its own findings, is not the

equivalent of a guilty plea.” Drum, 168 Wn.2d at 39 (citing State v. Mierz, 127

Wn.2d 460, 468-69, 901 P.2d 286 (1995)). Therefore, sentencing is not a direct

consequence of a defendant’s decision to enter into a deferred prosecution

agreement—the defendant must first be found guilty of the crimes charged—and

the due process protections required in the context of guilty pleas are not

applicable. Drum, 168 Wn.2d at 39.

        The record herein is clear. The mental health court contract set forth the

rights Fullerton was waiving by participating in the mental health court program

and the consequences if Fullerton violated any terms of the contract. Fullerton

acknowledged, both verbally and in writing, that his attorney had explained to him

the rights he was waiving, that he understood those rights and did not have any

questions, and that he was voluntarily agreeing to waive those rights for the



        2 Although the mental health court program contract herein required Fullerton to stipulate
that there was sufficient evidence to find him guilty beyond a reasonable doubt, the trial court was
not bound by this stipulation. State v. Drum, 168 Wn.2d 23, 34, 225 P.3d 237 (2010). Fullerton
does not assert on appeal that there was legally insufficient evidence to support the trial court’s
judgment of guilt.


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No. 80641-6-1/7

chance to participate in the mental health court program. Fullerton’s waiver was

valid.

         Affirmed.




WE CONCUR:
