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                  1 ?f|1                                 SUSAN L. CARLSON
                                                       SUPREME COURT CLERK
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    IN THE SUPREME COURT OF THE STATE OF WASHINGTON




   STATE OF WASHINGTON,

                     Respondent,                               No. 93545-9


   V.                                                           En Banc


   BRIAN WALLACE BUCKMAN,                              Filed     FEB 0 1 201

                      Petitioner.




        WIGGINS, J.— Brian Buckman pleaded guilty to second degree rape of a child.

ROW 9A.44.076. After sentencing, Buckman learned that he had been misinformed

of the sentencing range that applied to him. Based on this misinformation, Buckman

now seeks to withdraw his plea as involuntary.         Because Buckman's motion to

withdraw is a collateral attack on his judgment and sentence, he must show both

error—here, that his plea was involuntary—as well as actual and substantial prejudice

resulting from that error.

        We conclude that Buckman's plea was involuntary because he was

misinformed that he might be sentenced to life in prison despite the fact that the statute

provided that a sentence of life in prison could not apply to a 17-year-old, Buckman's
state V. Buckman (Brian Wallace)
No. 93545-9

age at the time of the offense. But we also hold that he is not entitled to withdraw his

plea because he fails to show that the misinformation provided at the time of his plea

caused him actual and substantial prejudice. As a result, we deny the motion to

withdraw and remand for resentencing only.


                                        FACTS


      When Buckman was 17 years old, he had a sexual relationship with 13-year-

old K.B.S. Law enforcement learned of the relationship when Buckman was 19;

Buckman was subsequently charged in superior court with second degree rape of a

child. In a written statement, Buckman acknowledged "dating" K.B.S. and stated that

he had not understood their relationship to be unlawful. Buckman emphasized that

K.B.S.'s parents had consented to the relationship. Buckman was told that his crime

carried the possibility of life in prison. Under the statutes, second degree rape of a

child has a sentence range of 86 to 114 months with a maximum term of life, as well

as lifetime community custody. ROW 9.94A.507(5), .510, .515; ROW 9A.20.021(a),

.076(2).

      Buckman was also told about the possibility of a special sex offender

sentencing alternative (SSOSA) under ROW 9.94A.670. Under a SSOSA, the court

sentences a qualifying defendant to a term of confinement up to 12 months followed

by a term of community custody, and imposes appropriate conditions such as

undergoing appropriate sex offender treatment. If the defendant violates the

conditions of community custody, the court can modify the conditions or revoke the

suspended sentence. Id.

                                     page 2 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

      The record before us does not disclose the discussions that led to Buckman's

guilty plea. However, Buckman's sworn statement in support of his motion to set aside
his guilty plea includes two relevant statements. First, Buckman asserts that he was

told that the maximum sentence for his crime was life in prison and that "[u]pon this

information, Buckman had pleaded guilty in exchange for a SSOSA sentence under

RCW 9.94A.670." Clerk's Papers (CP) at 88. Second, the misinformation about his

possible sentence "had forced his decision making to plead guilty for a lighter

sentence under SSOSA's RCW 9.94A.670." CP at 90.

      On Buckman's plea form and in his colloquy with the court, the State and the

trial court told him that his crime carried the possibility of life in prison. Under the

statutes, second degree rape of a child has a sentence range of 86 to 114 months

with a maximum term of life, as well as lifetime community custody.               RCW

9.94A.507(5), .510, .515; RCW 9A.20.021(a), .076(2). However, the statute

specifically does not apply to individuals who are "seventeen years of age or younger

at the time of the offense." RCW 9.94A.507(2). Buckman was only 17 at the time he

had a sexual relationship with K.B.S. Instead of the possibility of life in prison and

lifetime community custody, he was subject to a maximum sentence of 114 months

and a maximum of only 3 years of community custody. RCW 9.94A.515 (rape of a

child in the second degree is a level XI crime), .510 (seriousness level XI and an

offender score of I yields a sentence range of 86 to 114 months); RCW

9.94A.701(1)(a).




                                     page 3 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

       Buckman was ultimately sentenced under the SSOSA. Buckman served six

months in jail and was released on lifetime community custody. Buckman violated his
community custody provisions and was resentenced to 114 months. At resentencing,

Buckman's new attorney realized that Buckman, who was not yet 18 years old at the

time of the offense, should not have been sentenced under RCW 9.94A.507.

       Buckman filed a motion to modify or correct his judgment and sentence, then

filed a motion to withdraw his plea.^ In seeking to withdraw his plea, Buckman argued

that he would "never have pled guilty" had he been properly informed that he was not

subject to possible life imprisonment. Suppl. Br. of Pet'r (Buckman Br. Pro Se) at 7.

The State conceded that he was improperly sentenced.

       Disagreeing with both parties, the trial court held that Buckman had been

properly sentenced. "Seventeen years of age or younger," the court concluded,

means on or before a person's 17th birthday. Because Buckman had passed his 17th

birthday (but was not yet 18) at the time of the offense, the court concluded that

Buckman was not "seventeen years of age or younger" and that RCW 9.94A.507

applied. The court thus denied both Buckman's motion to correct his sentence and

his motion to withdraw his plea.




^ The motions were brought after the judgment and sentence were entered and were thus
collateral attacks subject to GrR 7.8. In re Pars. Restraint of Stockwell, 179 Wn.2d 588, 595,
603, 316 P.3d 1007(2014)("Under GrR 4.2(f), a court must allow a defendant to withdraw a
guilty plea where withdrawal is necessary to correct a manifest injustice. However, if the
motion for withdrawal is made after the judgment, it is governed by GrR 7.8(b)."). Because
Buckman's direct appeal was not yet mandated when the motion to withdraw his plea was
filed, his collateral attack was timely.

                                           page 4 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

      The Court of Appeals reversed the trial court's statutory interpretation, holding

that Buckman had been improperly sentenced. State v. Buckman, 195 Wn. App. 224,

229-30, 381 P.3d 79 (2016). However, the court found that Buckman had been

properly informed as to the consequences of his plea for two reasons: First, the trial

court told Buckman the correct sentencing range(86 to 114 months). RCW9.94A.515

(rape of a child in the second degree is a level XI crime), .510 (seriousness level XI

and an offender score of I yields a sentence range of 86 to 114 months). Second, the

trial court accurately told Buckman the maximum penalty for the crime charged—even

though that maximum was not applicabie to someone, like Buckman, who was less

than 18 years old when the offense occurred. 195 Wn. App. at 230. Thus, the Court

of Appeals concluded that Buckman had been properly informed, found that

Buckman's plea was knowing and voluntary, and affirmed the trial court's denial of

Buckman's motion to withdraw his plea. The court then remanded for resentencing

only. Id.

       Buckman thereafter filed a motion for discretionary review with this court, which

we granted.


                              STANDARD OF REVIEW


      The standard of review in this case is de novo. Normally, we review GrR 7.8

motions to withdraw a guilty plea for abuse of discretion. See State v. Hardesty, 129

Wn.2d 303, 915 P.2d 1080(1996)(applying an abuse of discretion standard when the

decision involved factual findings). However, the request for withdrawal in this case

is based on a claimed constitutional error and resulting prejudice—both of which are

                                     page 5 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

issues that we review de novo.^ State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d

207 (2012): In re Pers. Restraint of Stenson, 174 Wn.2d 474, 488, 276 P.3d 286

(2012)(Prejudice "is a mixed question of law and fact" that we review de novo.).^

                                          ANALYSIS


        Buckman argues (1) that his plea is involuntary because he was improperly

informed of his sentencing consequences and (2)that this error was prejudicial. See

Buckman Br. Pro Se at 7 ("It is actual and substantial prejudice to accept a plea deal

on the belie[f] that if you don't plead guilty there is a possibility you'll face the rest of

your life in prison.").

        Because Buckman was misinformed of his possible sentencing consequences,

we hold that his plea was involuntary. However, Buckman fails to show that a rational

person in his circumstances would have declined to plead guilty and would more likely




2 The Court of Appeals specifically held "that the trial court did not abuse its discretion in
denying Buckman's motion to withdraw his guilty plea." Buckman, 195 Wn. App. at 230. A
trial court abuses its discretion when it bases its decision on untenable grounds or reasons.
State V. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). However, as evidenced by the
Court of Appeals' analysis, Buckman's motion rested solely on a constitutional question—
whether his plea was involuntary—which we review de novo without giving deference to the
trial court's ruling.
3 Reviewing courts vary in their willingness to engage with the factual aspects of prejudice.
Compare United States v. Rodriguez-Vega, 797 F.3d 781, 790 (9th Cir. 2015) (concluding
that sufficient "facts demonstrate[d] that [the defendant] placed a particular emphasis on
preserving her ability to remain in the United States," demonstrating prejudice even absent
an evidentiary hearing before the trial court), with Hernandez v. United States, 778 F.3d 1230,
1234 (11th Cir. 2015)("Because [the defendant] alleged facts that, if true, would prove . . .
that he was prejudiced . . . [the defendant] is entitled to an evidentiary hearing."). This court
has previously granted no deference to claims of prejudice at the guilty plea stage because
prejudice does not involve a subjective or factual inquiry. See Stockwell, 179 Wn.2d at 602;
see also In re Pers. Restraint of Yates, 180 Wn.2d 33, 40, 321 P.3d 1195 (2014) (citing
Stockwell).

                                         page 6 of 23
state V. Buckman (Brian Wallace)
No. 93545-9


than not have gone to trial; instead, he merely asserts without explanation that he

would not have pleaded guilty. Because Buckman's prejudice claim is unsupported

by argument and because it makes a subjective statement unsupported by evidence,

Buckman fails to meet his burden and fails to adequately show prejudice.

            We therefore hold that Buckman's plea was involuntary, but that Buckman

failed to show prejudice arising from the error. We affirm the Court of Appeals on this

basis and remand for resentencing.

     I.     Buckman's Plea Was Involuntarv Because He Was Misinformed regarding
            His Possible Sentencing Consequences

           "Due process requires that a guilty plea may be accepted only upon a showing

the accused understands the nature of the charge and enters the plea intelligently and

voluntarily." State v. A.N.J., 168 Wn.2d 91, 117, 225 P.3d 956 (2010). A plea is

knowing and voluntary only when the person pleading guilty understands the plea's

consequences, including possible sentencing consequences. In re Pers. Restraint of

Stockwell, 179 Wn.2d 588, 594-95, 316 P.3d 1007 (2014). "[A] guilty plea may be

deemed involuntary when based on misinformation regarding a direct consequence

of the plea, regardless of whether the actual sentencing range is lower or higher than

anticipated." State v. Menc/oza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006).

            Here, Buckman argues that his plea was involuntary because he was

misinformed of his possible sentencing consequences. See Buckman Br. Pro Se at

3.        The Court of Appeals disagreed, concluding that Buckman was adequately

informed because he was told both the correct sentencing range and the correct

maximum         punishment for the crime charged—even though those statutory

                                       page 7 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

consequences were not applicable to Buckman. Buckman, 195 Wn. App. at 230. We

agree with Buckman.

        Buckman was plainly misinformed in two key respects. First, Buckman was

told "that the maximum penalty here is life in prison . . . ." Verbatim Report of

Proceedings (Jan. 26, 2012) at 3(emphasis added). This statement did not set forth

the possible sentencing consequences for an abstract third party; it set forth the

consequences for Buckman. And this assertion was incorrect as to Buckman; he was

not subject to life in prison. That a hypothetical third party charged with the same

crime might face life in prison is irrelevant. Second, Buckman was misinformed that

he faced lifetime community custody. He did not; his proper community custody term

was a maximum of three years.              RCW 9.94A.701(1)(a).         Thus, Buckman was

misinformed of his possible sentencing consequences and this misinformation

rendered Buckman's plea involuntary. Mendoza, 157 Wn.2d at 591.

        Whether this constitutional error was prejudicial, however, is a separate

question. As neither the trial court nor the Court of Appeals found constitutional error,

no court has yet considered prejudice.'^




  The State suggests that the trial court "did not actually determine the motion to withdraw
[Buckman's] guilty plea." Resp't's Suppl. Br. at 16. The State concludes that we must
therefore "remand to the trial court for a full determination of the motion to withdraw the guilty
plea." Id. We disagree. The court denied Buckman's motion, giving us a decision to review.
Because we proceed under de novo review in these particular circumstances, absence of
reasoning in the trial court's denial of Buckman's motion does not foreclose our review or
require remand for a reference hearing. See supra Standard of Review.


                                          page 8 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

 II.      Buckman Does Not Meet His Burden To Show That He Was Actually and
          Substantially Prejudiced

          A motion to withdraw a plea after judgment has been entered is a collateral

attack.® On collateral review, when the claimed error is "a misstatement of sentencing

consequences," we require the petitioner to show "actual and substantial prejudice."

Stockwell, 179 Wn.2d at 598-99. The meaning of "actual and substantial prejudice"

has evolved over decades of decisions by this court, settling into the clear and stable

definition we use today: the petitioner must show that the outcome of the guilty plea

proceedings would more likely than not have been different had the error not occurred.

Our path to this rule unfolded as follows.

       A. Forever Three Decades, This Court Has Required Collateral Attacks To Show
          Both Error and Prejudice

          In 1982, we stated that "to prevail in a collateral attack, a petitioner must show

that more likely than not he was prejudiced by the error." In re Pers. Restraint of

Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982). In Hagler, however, we were

concerned with prejudice at trial, not at the guilty plea stage. Id. at 827 (petitioners

sought relief based on jury instructions).

          In two 1987 cases, this court said in dicta that a constitutionally invalid plea

constitutes prejudice at the guilty plea stage. In re Pers. Restraint of Hews, 108 Wn.2d

579, 741 P.2d 983(1987); In re Pers. Restraint of Montoya, 109 Wn.2d 270, 744 P.2d

340 (1987). But in both cases, we found no constitutional error and thus did not need




5 See supra note 1.


                                        page 9 of 23
state V. Buckman (Brian Wallace)
No. 93545-9


to consider the question of prejudice.® Since we did not find any constitutional error

in either case, our discussions of prejudice in both cases were unnecessary to the

outcome.


       In subsequent years we clarified that on collateral review, the defendant must

show some practical effect caused by a claimed error; a constitutional error generally

does not, on its own, constitute prejudice. In In re Personal Restraint of Cook, we

emphasized that in a collateral attack on a conviction, appellate courts decline to take

up a claimed constitutional error where the petitioner fails to demonstrate "that the

alleged error gives rise to actual prejudice." 114 Wn.2d 802, 813,792 P.2d 506(1990).

And in In re Personal Restraint of St. Pierre, we disavowed past dicta suggesting, as

Hews and Montoya did, that constitutional errors are presumptively prejudicial on

collateral attack. 118 Wn.2d 321, 328, 823 P.2d 492(1992). On collateral review, we

concluded, mere error is not enough. Id.

       Still,   we      had      not    yet     clearly     articulated     what      "prejudice"

means at the guilty plea stage—only that this elusive prejudice must be distinct from

the constitutional error. Our holding in In re Personal Restraint of RIley filled this

definitional gap. 122 Wn.2d 772, 863 P.2d 554 (1993).




® In Hews, we said that "actual prejudice" occurred when a plea was "constitutionally invalid."
108 Wn.2d at 588-89.        Yet we found no constitutional error, instead holding that the
petitioner's plea "satisfied constitutional requirements." Id. at 597. Similarly, in Montoya, we
stated that "[a] constitutionally invalid guilty plea gives rise to actual prejudice." 109 Wn.2d at
277. In Montoya, however, we found no constitutional error, instead holding that the
defendant made "a knowing, voluntary and intelligent choice" in entering his plea. Id. at 282.


                                         page 10 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

       We clarified that the court will use the Strlcklancf standard of proof when a

petitioner claims that inadequate assistance of counsel led to a defective plea

agreement. Strickland established a two-pronged test of inadequate assistance; a

performance prong and a prejudice prong. 466 U.S. at 687. In RIley, the petitioner

claimed to have been misinformed of the consequences of his plea and further

claimed that but for the error, he would not have pleaded guilty. 122 Wn.2d at 779.

We adopted the federal standard that the alleged prejudice must be proved by a

"reasonable probability": "In satisfying the prejudice prong, a defendant challenging a

guilty plea must show that there is a reasonable probability that, but for [the alleged

error], he would not have pleaded guilty and would have insisted on going to trial." Id.

at 780-81 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203

(1985)). Applying this standard, we held that petitioner's "bare allegation that [he]

would not have pleaded guilty if he had known all of the consequences of the plea is

not sufficient to establish prejudice." Id. at 782. We further noted that the petitioner

appeared to have suffered no iil effects: he received a favorable plea deal on "the low

end of the correct sentencing range" and "probably benefited. . . rather than being

prejudiced in any way." Id. Thus, we clearly required something more than a mere

error, and more than error coupled with a bare assertion of prejudice.® In the context



7 Strickland v. Washington, 466 U.S. 668, 104 8. Ct. 2052, 80 L. Ed. 2d 674(1984)
® Some courts have expanded the definition of a "different outcome" to include the possibility
of achieving a more favorable plea, particularly where sentencing entails deportation
consequences. See, e.g., Rodrlguez-Vega, 797 F.3d at 788 ("A petitioner may demonstrate
that there existed a reasonable probability of negotiating a better plea by identifying cases
indicating a willingness by the government to permit defendants charged with the same or a

                                       page 11 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

of a guilty plea, that meant showing that the petitioner would have refused to plead

guilty and instead would have insisted on proceeding to trial.^ Since RIley, we have
continued to require proof of actual and substantial prejudice. See, e.g., Stockwell,

179 Wn.2d at 596-97. And we have continued to apply the reasonable probability

standard in collateral challenges based on inadequate assistance of counsel. See,

e.g., State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015)("To show prejudice,

the appellant need not prove that the outcome would have been different but must

show only a "reasonable probability"—by less than a more likely than not standard—

that, but for counsel's unprofessional errors, the result of the proceedings would have

been different."); see also In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280

P.3d 1102(2012)("We hold that if a personal restraint petitioner makes a successful




substantially similar crime to plead guilty to a non-removable offense."). Here, Buckman does
suggest that he "may" have sought an exceptional downward sentence had he been properly
informed. Pet'r's Suppl. Br.(Buckman Br. Counsel) at 9. But a possibility is not a probability,
and Buckman bears the burden to show that his stated alternative outcome is "more likely
than not." Hagler, 97 Wn.2d at 826. He even fails to approach meeting that burden here.
Thus, we need not decide whether the likelihood of a more favorable plea deal might
constitute a different outcome at the guilty plea stage.
3 After RIley, we briefly veered from this clear standard in In re Personal Restraint of Isadora,
151 Wn.2d 294, 296, 88 P.3d 390 (2004), and in In re Personal Restraint of Bradley, 165
Wn.2d 934, 205 P.3d 123 (2009), both of which failed to require the petitioner to show actual
and substantial prejudice of any kind. We subsequently corrected this detour. We have
explained that "Isadora did not require the petitioner to show actual and substantial prejudice
because the unique circumstances of the case compelled the court to apply the direct appeal
standard rather than the personal restraint petition standard." Yates, 180 Wn.2d at 40 (citing
Stockwell, 179 Wn.2d 588). We further explained that Bradley, by citing Isadora, mistakenly
applied that same direct appeal standard. Id.
■1° We also adopted the United States Supreme Court's use of the "reasonable probability"
standard for collateral attacks based on a violation of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963). See In re Pers. Restraint of Stenson, 174 Wn.2d 474, 487,
276 P.3d 286 (2012) (applying the "reasonable probability" standard to a collateral attack
alleging a Brady violation).

                                        page 12 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

ineffective assistance of counsel claim, he has necessarily met his burden to show

actual and substantial prejudice.").

       Since RIley, our definition of "prejudice" at the guilty plea stage has remained

stable. In Stockwell, we again required discrete prejudice on collateral review, even in

the context of constitutional errors that might be presumed prejudicial on direct review.

179 Wn.2d at 600-01. In In re Personal Restraint of Davis, we stated, "To actually

obtain relief on collateral review based on a constitutional error the petitioner must

demonstrate by a preponderance of the evidence that the petitioner was actually and

substantially prejudiced by the error." 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004); see

also Hagler, 97 Wn.2d at 825-26 (stating that its holding that petitioners must show

that more likely than not they were prejudiced by an error was not limited to the

particular type of petition at issue). Similarly, we held in In re Personal Restraint of

Yates, that error must be combined with some "practical effect" to constitute prejudice.

180 Wn.2d 33, 41, 321 P.3d 1195 (2014). And we again rejected the petitioner's bare

allegation that, but for the claimed error, he would have refused to plead guilty. Id.

(Because Yates did not address prejudice, the court dismissed his claim that he would

not have pleaded guilty.).

      The dissent disagrees with our reliance on a more probable than not standard

of proof, apparently because the dissent believes that the reasonable probability

standard applies to any collateral attack on a guilty plea. Dissent at 5-10. The dissent

ignores, however, that the reasonable probability standard was adopted for claims of

inadequate assistance of counsel and was borrowed from Strickland. Hill, 474 U.S. at


                                       page 13 of 23
state V. Buckman (Brian Wallace)
No. 93545-9


55. The dissent also ignores that we recently considered a collateral attack on a plea

that was not based on inadequate assistance of counsel, holding that a petitioner must

prove actual and substantial prejudice, without even mentioning the reasonable

probability standard.'''' Stockwell, 179 Wn.2d 588.

       And despite the dissent's argument, we are not required to follow federal case

law in articulating a standard that petitioners must meet in order to prevail on collateral

attacks. The "[pjersonal restraint procedure has its origins in the State's habeas

corpus remedy, guaranteed by article 4, section 4 of the state constitution." Hagler,

97 Wn.2d at 823. While we have often looked to federal habeas corpus case law for

guidance, we have always independently established our own standard of review for

personal restraint petitions. Id. at 824("The well known and basic reasons for limiting

collateral attack alluded to [by the Supreme Court] are . . . relevant to our state

personal restraint petition proceedings."). As a result, the federal reasonable



■I"I The dissent correctly notes that petitioners alleging misinformation from a judge must meet
a higher standard than petitioners alleging misinformation from defense counsel. Dissent at
8. However, this disparity is not a result of the adoption of a "heightened standard of proof,"
but rather the application of our existing case law. Id. The fact remains that outside the
ineffective assistance of counsel or Brady contexts, petitioners alleging that their pleas were
involuntary must meet a more likely than not standard to show actual and substantial
prejudice. Buckman did not argue, let alone ask us to adopt, a new, lessened standard of
proof for involuntary plea cases. And, we decline to do so. Buckman does not have an
inherent right to collateral relief in a personal restraint petition. Davis, 152 Wn.2d at 670
("[Tjhis court has 'limited the availability of collateral relief because it undermines the
principles of finality of litigation, degrades the prominence of trial, and sometimes deprives
society of the right to punish admitted offenders.'" (quoting St. Pierre, 118 Wn.2d at 329)).
Instead, if Buckman wishes to seek collateral relief under a lessened standard of proof, he
may seek relief in a federal court with a habeas corpus petition. See Lafier v. Cooper, 566
U.S. 156, 172-74, 132 8. Ct. 1376, 182 L. Ed. 2d 398 (2012) (reversing a state court
conviction because the defendant met the reasonable probability standard applicable in
federal court, although he did not meet the applicable standard for relief in state court).


                                        page 14 of 23
state V. Buckman (Brian Wallace)
No. 93545-9


probability standard is not "constitutionally mandated," as the dissent claims. Dissent

at 10. Rather, we are bound by our own case law regarding the "more likely than not"

standard of review applicable to petitioners on collateral review. See Hagler, 97 Wn.2d

at 826.


       In sum, we have clearly and repeatedly established that the petitioner must

show not only error, but also actual and substantial prejudice.      Prejudice at the guilty

plea stage means that the defendant would more likely than not have refused to plead

guilty and would have insisted on going to trial.

       In evaluating claimed prejudice, we engage in an objective, rational person

inquiry, rather than a subjective analysis. Cf. dissent at 10."'^ In Stockwell, we clearly

applied an objective analysis, stating that "[cjonsiderations of actual and substantial

prejudice do not require insight into the defendant's state of mind and motivations, but

simply look at the practical effects that resulted from error." 179 Wn.2d at 602. We

adhered to this objective standard in Yates, where we reaffirmed that "we do not

attempt to look into the mind and motivations of the defendant when determining

whether an error resulted in prejudice." 180 Wn.2d at 41.




   This distinction between constitutional error and prejudice is consistent with the United
States Supreme Court's definition of "prejudice" at the guilty plea stage. See, e.g., Lafler,
566 U.S. at 163 (in order to show prejudice at the guilty plea stage, "a defendant must show
the outcome of the plea process would have been different" but for the constitutional error).
   The dissent incorrectly asserts that RIley employed a subjective analysis to determine if
the defendant suffered any prejudice. Dissent at 11. In Riley, we noted that the defendant
failed to "allege any prejudice." 122 Wn.2d at 782. Thus, we had no occasion to decide
whether the defendant made a prima facie case of actual prejudice, let alone establish a
subjective test to be used in future cases. Id.

                                      page 15 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

       The United States Supreme Court also employs an objective analysis in this

context. For example, in Lee v. United States, the Supreme Court examined whether

it was rational for a hypothetical individual in the defendant's position to reject a plea

and insist on going to trial.    U.S.     , 137 S. Ct. 1958, 1968-69, 198 L. Ed. 2d 476

(2017). The Court examined whether "it would be irrational for a defendant In Lee's

position to reject the plea offer in favor of trial." Id. at 1968 (emphasis added). It went

on to analyze whether "an individual," not just Lee himself, "would make the choice to

reject the plea." Id. at 1968-69. While it is true that the court performed a '"case-by-

case examination' of the 'totality of the evidence,"' this did not transform the analysis

into a subjective exercise. Id. at 1966 {quoting Williams v. Taylor, 529 U.S. 362, 391,

120 S. Ct. 1495, 146 L. Ed. 2d 389(2000)); of. dissent at 10. Instead, defendants must

"'convinced the court that a decision to reject the plea bargain would have been

rational under the circumstances.'" Dissent at 12(emphasis added)(internal quotation

marks omitted) {quoting State v. Sandoval, 171 Wn.2d 163, 175, 249 P.3d 1015

(2011)). Rationality is an objective inquiry informed by the circumstances of the

defendant. Lee, 137 S. Ct. at 1969 ("Not everyone in Lee's position would make the

choice to reject the plea.").

       Furthermore, the dissent's subjective test reduces the prejudice inquiry into a

question of mere credibility. Dissent at 13. While the defendant's credibility is certainly

material to the question of whether the defendant would have rejected a plea and

insisted on going to trial, it is not sufficient by itself to answer whether the defendant

suffered actual and substantial prejudice. This is why "[a] bare allegation that a


                                      page 16 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

petitioner would not have pleaded guilty if he had known all the consequences of the
plea is not sufficient to establish prejudice," regardless of whether that allegation is
credible or not. RIley, 122 Wn.2d at 782. Consequently, we must apply an objective

standard to determine whether Buckman suffered actual and substantial prejudice.

   B. Buckman Conflates Prejudice with the Underlying Constitutional Error

      Buckman claims he was prejudiced by (1) the misinformation regarding his

possible sentence causing him to involuntarily plead guilty and (2) the fact that he

would not have pleaded guilty had he been properly informed. Neither contention

satisfies Buckman's burden to show prejudice.

      Buckman misunderstands the distinction between constitutional error and the

possible prejudice arising from that error. He argues that prejudice is established

"when a person makes a decision to plead guilty based on incorrect information about

the controlling sentencing consequences that will be imposed." Pet'rs Suppl. Br.

(Buckman Br. Counsel) at 8-9; see also Id. at 7 ("Actual prejudice occurs when the

error had practical effects, including undermining the procedure allowing a knowing,

intelligent, and voluntary plea decision."). For this definition of "prejudice," Buckman

relies on two cases: the United States Supreme Court's decision in Boykin v.

Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and a concurring

opinion in Stockwell, 179 Wn.2d at 603-13(Gordon McCloud, J.). Neither suffices.

      First, Boykin is inapposite. While that case established the constitutional need

for knowing and voluntary guilty pleas, it was decided on direct appeal; the defendant

was not required to show prejudice. 395 U.S. at 242. Here, in contrast, Buckman


                                    page 17 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

brings a collateral challenge, where prejudice is required. Stockwell, 179 Wn.2d at

602-03.

      Second, Buckman's reliance on a concurring opinion in Stockwell \s misplaced.

As discussed supra section 11.A, a majority of this court in Stockwell required a

showing of actual and substantial prejudice in order to withdraw a guilty plea on

collateral attack. Id. Like Buckman, Stockwell had been misinformed of his possible

sentencing consequences. Id. at 598. And like Buckman, Stockwell argued that his

plea was therefore involuntary. Id. at 594. This court denied relief for failure to show

practical consequences flowing from the error. Id. at 603.

       A concurring opinion disagreed with the majority's prejudice inquiry and would

have held that the petitioner can "prove actual and substantial prejudice to his right to

a knowing, intelligent, and voluntary plea-bargain process . .. ." Id. at 612 (Gordon

McCloud, J., concurring)(emphasis added). Under the concurring opinion, prejudice

would be inherent in the constitutional error of an involuntary plea. This approach

conflates the prejudice inquiry with the assignment of error and was rejected by the

majority. We continued to require both error and prejudicial effect in Yates. 180

Wn.2d at 41.


       We now reaffirm that "actual and substantial prejudice," as the phrase implies,

requires that there be a defect of substance, not simply of procedure.'"^ Where


  The dissent argues that misinforming Buckman of his possible sentencing consequences
was the error and that Buckman's involuntarily plea was the prejudicial effect. Dissent at 1,
14. This mistakes a legal conclusion for actual causation; the involuntary plea was the
constitutional error. Our decisions emphasize that the consequences for the defendant must

                                      page 18 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

Buckman claims that his involuntary plea "undermin[0d] the procedure allowing a

knowing, intelligent, and voluntary plea decision," his claim is inadequate. Buckman

Br. Counsel at 7(emphasis added). Since this court requires both error and prejudice,

it would be circular to conclude that prejudice is the existence of error.

   C. Buckman Offers Only a Bare Assertion of Prejudice Resulting from the Error

       Buckman also claims that he would not have pleaded guilty had he been

properly informed. Buckman Br. Pro Se at 7-8. But we require something more than

a "bare allegation that a petitioner would not have pleaded guilty" to establish

prejudice. RIley, 122 Wn.2d at 782; see a/so Yafes, 180Wn.2dat41 (concluding that

the petitioner failed to make any showing of prejudice by claiming merely "that he

would not have taken the plea deal" but for the constitutional error). Buckman is

responsible for showing that were it not for the constitutional error, a rational person

in his situation would more likely than not have rejected the plea and proceeded to

trial. Hagler, 97 Wn.2d at 826; RIley, 122 Wn.2d at 780-81; Stockwell, 179 Wn.2d at

602.


       Instead, Buckman asserts without explanation that had he "been correctly

informed . . . he would never have pled guilty." Buckman Br. Pro Se at 7. At another

point, Buckman says that he simply would not have waived his trial rights so "quickly."

Buckman Br. Counsel at 9. In the alternative, he also offers that he "may have opted

to challenge the prosecution's evidence at trial." Id. (emphasis added). Buckman




be practical, not procedural. There is no practical consequence if Buckman would have
pleaded guilty anyway. It is his burden to show otherwise.
                                     page 19 of 23
state V. Buckman (Brian Wallace)
No. 93545-9


does not discuss whether a rational person in his situation would have rejected the

plea deal and have proceeded to trial. Nor does he suggest that such a course would

have been reasonably probable, let alone more likely than not. With only the benefit

of a bald assertion, unsupported by argument or evidence, we must conclude that

Buckman fails to meet his burden to adequately show prejudice.''®

       Nor is there reason to think that a rational person in Buckman's situation would

in fact have chosen to proceed to trial. There was overwhelming evidence of the

petitioner's guilt: Buckman acknowledged "dating" and living with K.B.S., stated that

he thought their relationship was lawful, and emphasized that her parents had

consented on K.B.S.'s behalf. K.B.S. confirmed that the relationship was sexual and

claimed that it was consensual. And Buckman never claimed that he was innocent of

the crime charged; on the contrary, he comments merely that had the facts been

different, he would not have been guilty. Id.("He would not be guilty if the complainant

told him she was 14 years old. . . . He would not be guilty if KBS was 14 and wrong

about the charging date."). It is not clear how he could reasonably have hoped to



  Contrary to the dissent's assertions, we do not "act[] as a factfinder" by making a credibility
determination about Buckman's claims that he would not have pleaded guilty. Dissent at 5,
13. We also do not "completely disregard [Buckman's] clalm[s] that he . .. really believed and
actually relied on the misadvlce." Dissent at 13. Even assuming that the claims that Buckman
would not have pleaded guilty are credible, his allegations are still Insufficient to establish
prejudice under a "reasonable probability" standard, let alone a "more likely than not"
standard. See Riley, 122 Wn.2d at 782. It Is well established that "[c]ourts should not upset a
plea solely because of post hoc assertions from a defendant about how he would have
pleaded but for [the misinformation]." Lee, 137 S. Ct. at 1967. Instead, Buckman must show
that he would not have pleaded guilty, and that a rational person In his situation more likely
than not would have chosen to proceed to trial. We answer this question by looking at the
contemporaneous evidence that the defendant presents to "substantiate [his] expressed
preferences." Id.


                                        page 20 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

achieve a better outcome at trial.''® Thus, it is not clear why a rational person in his

situation would have insisted on such a course.

       One might speculate that If Buckman had been properly informed of his

possible sentence, he might have risked trial, hoping the jury would have nullified the

applicable law by refusing to find him guilty despite the strength of the evidence. See

Lee, 137 S. Ct. at 1963 (finding that it was not irrational for defendant facing possible

deportation to proceed to trial in the face of overwhelming evidence of guilt, where

defendant amply established—and the government did not dispute—that'"deportation

was the determinative issue'" in defendant's decision-making). But Buckman never

mentions this possibility, let alone argues that more likely than not he would have

taken such a gamble.

       In sum, Buckman's uncertain nod in the direction of prejudice is insufficient. He

does not meet his burden to show that a rational person in his situation would more

likely than not have insisted on proceeding to trial. Thus, we conclude that Buckman

failed to show actual and substantial prejudice sufficient to warrant relief and therefore

deny his motion to withdraw his guilty plea.




"I® While the fact that a defendant "has no realistic defense to a charge" is not a per se rule
preventing a defendant from showing prejudice, a defendant facing such a situation "will rarely
be able to show prejudice from accepting a guilty plea that offers him a better resolution than
would be likely after trial." Lee, 137 S. Ct. at 1966(emphasis added). In those circumstances,
a defendant will be hard pressed to show that a rational person more likely than not would
have rejected a plea and insisted on going to trial.

                                       page 21 of 23
state V. Buckman (Brian Wallace)
No. 93545-9

                                   CONCLUSION


      Buckman's motion to withdraw his plea is a coiiaterai attack on his judgment

and sentence. As a result, he must show both error and prejudice. We agree that

Buckman was misinformed of his possible sentencing consequences, rendering his

plea involuntary. This is a constitutional error. However, Buckman fails to show

prejudice flowing from this error; he fails to show that the error more likely than not

resulted in a different outcome at the guilty plea stage. We thus affirm the Court of

Appeals in part on the ground that Buckman fails to show that the constitutional error

was prejudicial. We deny Buckman's motion to withdraw his plea as involuntary and

remand for resentencing and for any further proceedings consistent with this opinion.




                                    page 22 of 23
state V. Buckman (Brian Wallace)
No. 93545-9




                                                   V

                                                       Z

      WE CONCUR.




        ^4^21




                                   page 23 of 23
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)




                                    No. 93545-9


      GORDON McCLOUD, J. (dissenting)—A criminal defendant must be

correctly informed ofthe nature and consequences of a guilty plea. Ifthe defendant

does not receive such advice,then the plea does not constitute a knowing,intelligent,

and voluntary waiver ofthe constitutional right to a jury trial. E.g., Brady v. United

States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). The majority

correctly "conclude[s] that Buckman's plea was involuntary because he was

misinformed [by defense counsel, the prosecutor, and the judge] that he might be

sentenced to life in prison" when he really faced a much lighter maximum sentence

of 114 months in prison if he lost at trial. Majority at 1-2. This misadvice rendered

Buckman's guilty plea constitutionally deficient.

      The majority nevertheless denies Buckman relief because it concludes that he

failed to prove enough prejudice. Id. at 2. The majority can reach this conclusion

only by disbelieving Buckman's sworn statements. Those sworn statements say that

Buckman pleaded guilty to avoid exposure to life imprisonment and that if he had
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



known that his maximum prison exposure was only 114 months, he would have gone

to trial instead.

       But our court is not in the business of making credibility decisions from a cold

record. Instead, we are required to order a reference hearing where a trial courtjudge

can evaluate the credibility of such sworn statements. RAP 16.11, 16.12. In fact,

our decisions in Riley^ and Rice^ and the United States Supreme Court's decision in

Machibroda^ say we must order such a hearing where, as here, there is a credibility

dispute on just such an issue when it is raised in just such a postconviction (personal

restraint or 28 U.S.C. § 2255) context.

       Instead of remanding for such a hearing, the majority adopts a new,

heightened standard ofproofthat dismisses the defendant's subjective understanding

at the time of the plea as irrelevant. According to the majority, only two things

matter:(1) whether a fictitious "rational" person would have rejected a plea deal if

he or she had been correctly advised and (2) whether the defendant can prove that

fictitious scenario by a"more likely than not" standard. Majority at 19. The majority



       1 In re Pers. Restraint ofRiley, 122 Wn.2d 772, 781-82, 863 P.2d 554(1993).

       2 In re Pers. Restraint ofRice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992).

       2 Machibroda v. United States, 368 U.S. 487, 494, 82 S. Ct. 510, 7 L. Ed. 2d 473
(1962).
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



acknowledges that its new rule conflicts with a significant number of United States
Supreme Court cases, including Lee,^ Frye,^ and Hill.^ See id. at 14 n.ll ("[I]f
Buckman wishes to seek collateral relief under a lessened standard of proof, he may

seek relief in a federal court with a habeas corpus petition."). The majority even

acknowledges that its new rule conflicts with precedent from this court. Riley, 122

Wn.2d at 781-82; majority at 11 ("In Riley ...[w]e adopted the federal standard that

the alleged prejudice must be proved by a 'reasonable probability.' . . ."). These

prior controlling precedents hold that a petitioner seeking to withdraw his or her

guilty plea due to misadvice from counsel is entitled to relief upon proof of personal

prejudice by a "reasonable probability"—^not the majority's heightened and totally

objective "more likely than not," rational person standard.

      I therefore dissent. I would apply the long standing, constitutionally mandated

holdings from this court and the United States Supreme Court mentioned above and

discussed in depth below. Following these decisions, Buckman has supported his

claim of actual prejudice due to misadvice with a sworn statement and sufficient



          Lee V. United States,   U.S.    , 137 S. Ct. 1958, 1964-65, 198 L. Ed. 2d 476
(2017).

      ^ Missouri v. Frye, 566 U.S. 134, 148, 132 S. Ct. 1399, 182 L. Ed. 2d 379(2012).
      6 Hill V. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



particularized facts; he is therefore entitled to a reference hearing to evaluate whether

his claim that the misadvice caused him to plead guilty is credible.

                                       Analysis


      I.     Misadvice about the Consequences of a Guilty Plea Violates a
             Defendant's Constitutional Right to a Knowing, Intelligent, and
             Voluntary Plea

      The decision to plead guilty waives a defendant's rights to a jury trial and to

present a defense. That decision has such heavy personal consequences and is of

such constitutional magnitude that the defendant must make it personally—it cannot

be made by counsel. Brookhartv. Janis, 384 U.S. 1, 7-8, 86 S. Ct. 1245, 16 L. Ed.

2d 314 (1966). It must also be knowing, intelligent, and a "voluntary act."

Machibroda,368 U.S. at 493. Critically, for a guilty plea to be knowing,intelligent,

and voluntary, the defendant must be informed of the nature and consequences of

entering that plea. Id.; Brady, 397 U.S. at 748.

      I agree with the majority that the misadvice Buckman received from defense

counsel, the prosecutor, and the judge about his sentencing exposure deprived him

ofthose rights and rendered his guilty plea involuntary. Majority at 7-8. I also agree

with the majority that this constitutional error alone does not warrant the relief that

Buckman seeks (that is, withdrawal of his guilty plea). Majority at 8. Buckman
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



must also prove prejudice. In re Pers. Restraint ofStockwell, 179 Wn.2d 588, 602-
03,316P.3d 1007 (2014)."^

      I disagree, however, with the majority's prejudice analysis. It flouts

established precedent from this court and the United States Supreme Court and

denies defendants their constitutional rights in three critical ways. First, the majority

adopts a new, heightened "more likely than not" standard that requires personal

restraint petitioners to prove more than the constitutional "reasonable probability"

standard requires. Second, the majority applies an objective analysis when the

constitution requires a subjective analysis. U.S. CONST, amends. VI, XIV. And

third, the majority acts as a fact-finder by rejecting Buckman's specific allegations

of prejudice, even though our cases say he is entitled to a reference hearing to

determine credibility.




         Contrary to the majority's suggestion, my concurrenee in Stockwell is consistent
with the majority rule in that case requiring personal restraint petitioners to prove actual
prejudice. Majority at 18. According to the majority, I would have found
"prejudice .. . inherent in the constitutional error of an involuntary plea." Id. This reading
is patently incorrect. If that were the case, I would have dissented in Stockwell since error
was conceded. Instead, I concurred with the majority's conclusion that Stockwell failed to
meet his burden of proving prejudice. 179 Wn.2d at 612 (Gordon McCloud, J.,
concurring).
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



       11.   The Majority Adopts a "More Likely Than Not," Enhanced Proof
             Standard; This Conflicts Directly with Controlling Precedent Adopting
             a "Reasonable Probability" Standard for Cases Like This

        Under Riley, which until today had been firmly established precedent

governing personal restraint petition cases like this one,"In satisfying the prejudice

prong, a defendant challenging a guilty plea [based on misadvice of counsel

regarding sentencing exposure] must show that there is a reasonableprobability that,

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

on going to trial." ^ 122 Wn.2d at 780-81 (emphasis added)(citing Hill, 474 U.S. at

59).

        We adopted this "reasonable probability" standard in that personal restraint

petition case because it is consistent with United States Supreme Court precedent

addressing a petitioner's burden of proof on similar collateral challenges. E.g.,Lee,



       ^ The majority ascribes to Riley a "likely" standard that is notably absent from that
opinion. Majority at 19. The issue in Riley was whether Riley eould withdraw his guilty
plea to robbery based on misadvice from counsel that he had no choice other than to accept
an amended plea offer that was less favorable to him than the plea originally offered. (The
amended offer authorized the prosecutor to increase the previously agreed upon sentence
due to a revised offender score calculation in exchange for the dismissal of other pending
charges.) Riley, 122 Wn.2d at 777-78. We held that Riley needed to prove by a
probability that he would not have pleaded guilty and would have insisted on going to trial
but for the misadvice. Id. at 780-81. As the majority correctly observes, '"[rjeasonable
probability'" is not "'more likely than not.'" Majority at 20 n.l5. Thus, I am unsure how
the majority derives from Riley's "reasonable probability" language a "more likely than
not" standard.


                                             6
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



137 S. Ct. at 1965 (explaining, in a collateral challenge to a guilty plea, that "when

a defendant claims that his counsel's deficient performance deprived him of a trial

by causing him to accept a plea, the defendant can show prejudice by demonstrating

a 'reasonableprobability' that, but for counsel's errors, he would not have pleaded

guilty and would have insisted on going to trial" (emphasis added)(quoting Hill,

474 U.S. at 59); Frye, 566 U.S. at 148 (holding, on review of a defendant's

postconviction motion in state court,that "in cases where a defendant complains that

ineffective assistance led him to accept a plea offer as opposed to proceeding to trial,

the defendant will have to show 'a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have insisted on going to trial'"

(emphasis added)(quoting Hill, 474 U.S. at 59)); Hill, 474 U.S. at 59 (confirming,

on habeas corpus petition, that "in order to satisfy the 'prejudice' requirement, 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"

(emphasis added)).

      To be sure, Riley and these Supreme Court cases involved claims that the

misadvice came from defense counsel, thus triggering an ineffective assistance of

counsel claim. In contrast, Buckman claims that the misadvice he received came not

just from defense counsel but also from the judge and prosecutor, thus triggering a
State V. Buchnan (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



claim that his right to a knowing,intelligent, and voluntary plea was violated directly

by the judge and State (rather than indirectly through ineffective assistance). But

this distinction between direct and indirect misadvice cases does not offer a

principled basis for changing a petitioner's burden of proof based on who provided

the misinformation. The harm felt by the petitioner is the same regardless of who

supplied the error. And from a constitutional standpoint, misadvice from the judge

is more disturbing than misadvice from defense counsel. Yet, the majority adopts a

rule that requires petitioners harmed by misadvice from the judge to meet more

exacting proof standards than if the same misadvice came from defense counsel.

This heightened standard of proof defies logic and violates due process protections.

U.S. Const, amend. XIV.

       The majority acknowledges that its new rule is inconsistent with federal

United States Supreme Court precedent interpreting federal constitutional

protections. Majority at 14 n.11 ("[I]fBuckman wishes to seek collateral reliefunder

a lessened standard of proof, he may seek relief in a federal court with a habeas

petition."). The majority also acknowledges that under its new rule, "petitioners

alleging misinformation from a judge must meet a higher standard than petitioners

alleging misinformation from defense counsel." Id.
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



      The majority justifies its heightened standard by relying on the value of

finality. See majority at 14-15. But the Supreme Court and this court have already

rejected that as a basis for increasing the regular prejudice requirement in these

cases. According to the United States Supreme Court, "a showing of 'prejudice'

from defendants who seek to challenge the validity oftheir guilty pleas on the ground

ofineffective assistance ofcounsel will serve the fundamental interest in the finality

of guilty pleas ...." Hill,474 U.S. at 58. We agreed. We held that "for a petitioner

on collateral attack claiming ineffective assistance of counsel, no 'double prejudice'

showing above and beyond the prejudice showing required under StricklancP^

should be imposed." In re Pers. Restraint ofGrace, 174 Wn.2d 835, 845, 280 P.3d

1102(2012).

      Nor is the majority's heightened "more likely than not" standard required by

Hagler—^the decision on which the majority relies for its newfound standard.

Majority at 14-15 (citing In re Pers. Restraint ofHagler, 97 Wn.2d 818, 826, 650

P.2d 1103 (1982)). The only fact that Hagler and this case have in common is that

they both involve constitutional errors; the similarity ends there. 97 Wn.2d at 819.

{Hagler involved an erroneous jury instruction; this case involves misadvice on a



      ^ Strickland v. Washington,466 U.S. 688, 104 S. Ct. 2052,80 L. Ed.2d 674(1984).
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



plea.) This one similarity is not enough to extract from Hagler a general "more

likely than not" standard for all collateral challenges because different standards of

prejudice apply to different claims on collateral review.^® Moreover, as discussed

above,the United States Supreme Court has already decided that the proper standard

for misadvice on a guilty plea is the "reasonable probability" standard. And we

adopted that standard for collateral attacks in Riley. 122 Wn.2d at 780-81.

       III.   The Majority Adopts a Purely Objective Standard; This Conflicts
              Directly with Controlling Precedent Holding That Whether a Defendant
              Understands the Consequences of a Plea Depends on His or Her Own
              Comprehension, Not on What Weil-Educated Members of the Legal
              Profession Would Understand


       The constitutionally mandated "reasonable probability" standard is a

subjective standard. It asks whether the incorrect advice coerced or induced the

defendant's decision to give up the right to trial and relieve the State ofits burden of

proving guilt beyond a reasonable doubt. Because the decision to plead guilty is a

personal one that the defendant alone must decide, Brookhart, 384 U.S. at 7-8, the

critical question in evaluating whether a plea is constitutionally valid turns on the

defendant's own subjective understanding: whether the defendant pleaded guilty



       ^^See Stockwell, 179 Wn.2d at 607-08(Gordon McCloud,J., concurring)(describing
how the burden of proof for personal restraint petitioners depends on whether they allege
constitutional errors ofthe trial type,nonconstitutional errors, errors where harm is inherent
in proof of the error, or structural errors).

                                             10
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



"freely," "with fiill knowledge of his legal and constitutional rights and of the

consequences of his act." Wood v. Rhay,68 Wn.2d 601, 605,414 P.2d 601 (1966).

      Indeed, the United States Supreme Court recently confirmed that when

evaluating whether misadvice caused prejudice, we must apply a subjective,'"case-

by-case examination' of the 'totality of the evidence.'" Lee, 137 S. Ct. at 1966

(quoting Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, 146 L. Ed. 2d 389

(2000)). "Rather than asking how a hypothetical trial would have played out absent

the error," we must "consider[] whether there was an adequate showing that the

defendant, properly advised, would have opted to go to trial." Id. at 1965(emphasis

added).

      Rather than apply this well-established, subjectively focused analysis about

"the defendant," the majority adopts a new, totally objective analysis about the

hypothetical average defendant. Majority at 15. The majority implies that such an

objective analysis is required hyRiley. Id. at 16-17. But the majority misreads Riley.

Riley's actual language applies a subjective analysis.

      Riley explains that the focus ofthe prejudice inquiry is evaluating whether the

petitioner has proved "actual prejudice." 122 Wn.2d at 782 (citing In re Pers.

Restraint ofPeters, 50 Wn. App. 702, 708, 750 P.3d 643 (1988)(citing In re Pers.

Restraint ofHews,99 Wn.2d 80, 91, 660 P.2d 263(1983){Hews I))). This requires


                                         11
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



the petitioner to "show . . . 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."

Id. at 780-81 (emphasis added) (quoting Hill, 474 U.S. at 59). We ultimately

dismissed Riley's allegation that he would not have pleaded guilty (with correct

advice) because he provided only a "bare allegation" without any supporting facts

explaining why he placed particular emphasis on the particular misadvice he

received in deciding to plead guilty. Id. at 781-82 (citing Hill, 474 U.S. at 60). We

never said that the need for specific supporting facts transformed the subjective,

''actual prejudice" inquiry into an objective one.

      To be sure, the majority is correct that the fact-finder must consider objective

facts in order to perform a comprehensive prejudice inquiry. "Courts should not

upset a plea solely because ofpost hoc assertions form a defendant about how he

would have pleaded but for his attorney's deficiencies. Judges should instead look

to contemporaneous evidence to substantiate a defendant's express preferences."

Lee, 137 S. Ct. at 1967.

      As discussed supra. Part II, our case law requires that a defendant must prove

he or she would not have pleaded guilty and would have gone to trial by a reasonable

probability. Riley, 122 Wn.2d at 780-81. "'A "reasonable probability" is a

probability sufficient to undermine confidence in the outcome.'" Rice, 118 Wn.2d


                                          12
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



at 887 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L.

Ed. 2d 481 (1985)). Butjust because case law uses the word "reasonable" does not

turn it into a question about what a hypothetical, average, reasonable person would

have done with correct information. The focus remains on whether the defendant,

himself or herself personally, would have decided to plead guilty if he or she had

received correct advice. Riley, 122 Wn.2d at 783; Hill, 474 U.S. at 60. "A

'reasonable probability' exists ifthe defendant 'convince[s] the court that a decision

to reject the plea bargain would have been rational under the circumstances.'" State

V. Sandoval, 171 Wn.2d 163, 175, 249 P.3d 1015 (2011) (alteration in original)

(quoting Padilla v. Kentucky, 559 U.S. 356, 372,130 S. Ct. 1473, 176 L. Ed. 2d 284

(2010)). This helps the fact-finder decide whether the petitioner's claim that the

misadvice actually prejudiced him or her is credible. But this does not mean, as the

majority believes, that courts must completely disregard a petitioner's claim that he

or she really believed and actually relied on the misadvice.

      That's why we have fact-finders to decide whether the petitioner's allegations

are credible. Riley, 122 Wn.2d at 781.




                                         13
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



      IV. Applying These Rules, Buckman Is Entitled to a Reference Hearing
             before a Finder of Fact

      But this court is not the right place to make that credibility decision. Once a

personal restraint petitioner shows that he or she received misinformation about the
consequences of a plea, alleges that that misadvice caused him or her actual

prejudice, and provides particularized facts to support that allegation, he or she is
entitled to a reference hearing. Id. (quoting Hill, 474 U.S. at 60); see Rice, 118

Wn.2d at 885 ("Tf a petitioner makes at least a prima facie showing of actual

prejudice, but the merits of the contentions cannot be determined solely on the

record, the court should remand the petition for a full hearing on the merits or for a

reference hearing pursuant to RAP 16.11(a) and RAP 16.12."'(quoting Hews I, 99

Wn.2d at 88)); Machibroda,368 U.S. at 494(holding that it was error for the district

court to make factual findings on controverted facts without first conducting a

reference hearing).

      Buckman has satisfied Riley's and Rice's prerequisites for obtaining a

reference hearing. Contrary to the majority's assertion, Buckman has presented

more than a '"bare allegation'" of prejudice. Majority at 19 (quoting Riley, 122

 Wn.2d at 782). Buckman swears under penalty of perjury that he would not have

pleaded guilty if he had been correctly advised that he faced a maximum prison term


                                         14
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



ofonly 114 months,rather than life, if he was found guilty after trial. Clerk's Papers
(CP) at 88; Mot. for Discr. Review, Statement of Pet. for Review (Statement) at 4.
Specifically, Buckman swears that the possibility of spending the rest of his life in
prison was the decisive factor that "forced" him to plead guilty. CP at 90; Statement

at 5. Indeed, it was this misadvice about a possible life sentence that Buckman

explains caused his own mother to counsel him "to plead guilty and get it over with

so [he didn't] go [to] prison for the rest of [his] life." Mot. for Discr. Review,

Affidavit (Affidavit) at 1-2. According to Buckman, "had [he] been correctly

informed [he] would never had pled guilty." Suppl. Br. of Pet'r at 7.

      The majority flatly rejects these specific and sworn statements because the

majority deems them to be self-serving. Majority at 11-12. But as I understand it,

"the old common-law rule that made parties incompetent to serve as witnesses in

their own cases" "was discarded long ago." Dalton v. Battaglia, 402 F.3d 729, 735

(7th Cir. 2005). Instead of supporting outright dismissal,"a witness's potential self-

interest in testifying about matters for which he or she has direct knowledge goes to

the weight and credibility ofthe testimony, not to its admissibility." Id. Until today,

contemporary decisions from this court have been consistent with that rule.

According to those decisions, whether a petitioner's own assertion of prejudice is

credible depends on the totality of the circumstances, including the timing of when

                                          15
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



the motion for withdrawal was made in relation to the discovery of the error. See

State V. A.N.J., 168 Wn.2d 91, 106, 225 P.3d 956 (2010); State v. Robinson, 172

Wn.2d 783, 792, 263 P.3d 1233 (2011).

      The majority's concern that Buckman's allegation of prejudice may not be

credible is precisely why a reference hearing is necessary: "[T]he purpose of a

reference hearing is to resolve genuine factual disputes." Rice, 118 Wn.2d at 886.

Some factors weigh against believing Buckman: for example, his motion to

withdraw his guilty plea was filed only after he violated the terms of his reduced

SSOSA (special sex offender sentencing alternative) sentence and after that reduced

sentence was revoked. But other factors weigh in favor ofbelieving him: Buckman's

delay in withdrawing his guilty plea may be innocent since it was only upon the

appointment of new counsel for the SSOSA revocation hearing that Buckman

discovered he was misadvised. For this reason, following Riley and Rice, we must

remand the case to the trial court for an evidentiary hearing. RAP 16.11, 16.12.

      Even the State concedes that remand for an evidentiary hearing is a proper

course in this case. Resp't's Suppl. Br. at 16.




                                         16
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



      The majority insists it can outright reject Buckman's specific allegations of
prejudice without remanding for a reference hearing because of Stockwell, Yates,^^
and Riley. Majority at 19. But none of these cases support the majority's position.
Stockwell's and Yates's claims of prejudice were dismissed because they were

unreasonable, not because they were self-serving. And Riley's claim was dismissed

because it lacked an allegation of subjective prejudice and any supportive facts.

      In Stockwell, we held that misadvice that the maximum sentence was lower

than it really was (20 years rather than life) could not, logically, have coerced

Stockwell's guilty plea—^because the misadvice about a lower sentence than

statutorily allowed could not have scared Stockwell into pleading guilty more than

correct advice about a longer possible sentencing consequence would have. 179

Wn.2d at 603. Perhaps recognizing this, Stockwell did not even claim that the

misinformation caused actual prejudice. Id. Thus, we rejected Stockwell's argument

for a presumption ofprejudice as unreasonable, not because it was supported by self-

serving statements (actually, it was not) as the majority believes.

      We dismissed Yates's claim of prejudice for similar reasons. In Yates, Yates

pleaded guilty to 13 counts of murder and 1 count of attempted murder in exchange



      "/« re Pers. Restraint of Yates, 180 Wn.2d 33, 40, 321 P.3d 1195 (2014).

                                          17
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



for dismissal ofa 14th murder charge and the prosecutor's decision to forgo the death

penalty. 180 Wn.2d at 35. As part ofthis plea deal, Yates received a total sentence
of over 408 years—several lifetimes in prison. Id. at 36. Years later, Yates

challenged his plea on the ground that he was misinformed about his maximum

sentencing exposure on 2 of those 13 convictions. Id. at 36-37. And he was:

specifically, Yates was told that he would receive(and did receive)two determinate
20-year sentences for two of the murders when the correct statutory maximum was

really two indeterminate life sentences with a minimum of 20 years for each. Id.
We recognized that while Yates would have received a higher term of years under

the correct indeterminate sentencing scheme, he might have actually served less time

because of the more discretionary concurrent sentence and parole rules of

indeterminate sentencing. Id. at 40 n.2, 46-47 (Gordon McCloud, J., concurring).

But either way, Yates was going to be serving the rest of his life in prison on the 11

other murder convictions. It was therefore unreasonable for him to claim that the

 misinformation affected his decision to plead guilty when he knew he would be

serving a life sentence regardless. And, in fact, he made no such assertion; he did

 not claim prejudice at all. Id. at 36-37, 40.

       Buckman's case is materially different.        Unlike Stockwell and Yates,

Buckman received misadvice that tended to coerce a plea—because he was told that


                                           18
State V. Biickman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



the prison exposure he would face if he lost after trial was so much higher than it

really was. Stockwell and Yates did not receive similar misadvice that tended to

discourage going to trial. Thus, neither Stockwell nor Yates authorizes the majority

to dismiss Buckman's petition rather than remand for a reference hearing.^^

       Nor does Riley. To the contrary, Riley requires us to grant Buckman a

reference hearing. Riley pleaded guilty to robbery with a deadly weapon under the

mistaken belief that the standard range for that conviction was 81 to 94 months.

Actually, it was 101 to 126 months due to Riley's high offender score. Riley, 122

Wn.2d at 774. The trial court originally imposed a sentence of 87 months, within

the lower but incorrect sentence range. Id. at 776. When the State discovered that

sentencing error, it sought to correct it. Riley claimed that his defense attorney, at



         Our decision min re Personal Restraint ofFawcett, 147 Wn.2d 298, 53 P.3d 972
(2002), is also inapposite, which is probably why the majority does not mention it. In
Fawcett, as in Stockwell and Yates, we held that Fawcett failed to prove prejudice based on
the particular facts of that case. Fawcett was misinformed that he would receive a
maximum one-year community custody term if he pleaded guilty, but he received a
mandatory two-year term instead. Id. at 299. After Fawcett violated his community
placement, he sought to withdraw his guilty plea due to the misadvice. Id. at 301-02. We
held that Fawcett could not prove prejudice based on those facts because he would have
been in the same situation regardless of whether he received the one-year community
placement term as promised, since he violated the terms of his release within the first two
months of release rather than after the first year. Id. at 302. In contrast, Buckman claims
he would not have pleaded guilty and would have gone to trial. This means Buckman could
have received zero prison time had thejury acquitted him versus the maximum 114 months
he now faces under a corrected sentence.



                                            19
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



that later date, incorrectly informed him that(1) he had no choice but to allow the

State to correct the sentence and (2) he could not withdraw his guilty plea. Id. at

777-79. We acknowledged that Riley's claim of misadvice conflicted with the letter

his attorney wrote to him; that letter advised Riley that he could object to the

sentence correction but that it was advisable for him to consent because the State

was offering to dismiss three pending charges in exchange. Id. at 776-77. But we

did not dismiss Riley's claim based on that factual dispute, and we did not choose to

believe one version ofthat factual dispute over the other. Instead, we explained that

a reference hearing was not necessary because Riley failed to allege any prejudice

resulting from his counsel's alleged misinformation. Id. at 781-82. All Riley

claimed was that his lawyer misadvised him. Id. at 781. He did not claim that it

affected his own decision to accept the revised plea deal: "[Riley did] not insist on

going to trial on the many charges against him." Id. Nor did he "allege special

circumstances that would support a conclusion that he placed any special emphasis

on the standard range sentence as originally calculated by the prosecutor." Id. at

782.


       Unlike Riley, Buckman specifically alleges that he (and his mother) placed

special emphasis on the erroneous advice that he would face life in prison if he went

to trial and lost. CP at 90; Affidavit at 1-2. He also specifically alleges that if he


                                         20
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



"had been correctly informed [he] would never had pled guilty." Supp. Br. of Pet'r

at 7. Under Riley, any debate regarding the credibility of Buckman's allegations
must be addressed at a reference hearing. 122 Wn.2d at 782 ("In order for a

petitioner in a personal restraint proceeding to be entitled to an evidentiary
hearing .. ., the petitioner must present at least a prima facie case showing actual

prejudice.").

       The fact that Buckman did not have a perfect defense to raise at trial does not

automatically make his sworn assertion that he would have gone to trial

unreasonable. The United States Supreme Court's recent decision in Lee confirms

this. Lee was an immigrant who claimed he received misadvice about the

immigration consequences of pleading guilty. Specifically, he alleged that he was

not told that a guilty plea would subject him to mandatory deportation despite having

lived in this country for 35 years since childhood. According to Lee, his lawyer told

him just the opposite; that he would not be deported. Lee, 137 S. Ct. at 1963. Lee,

however, did not have a viable trial defense. Id. at 1965-66. Nevertheless, the

United States Supreme Court held that where the decision to reject a plea offer and

proceed to trial is based on the possibility of obtaining a better result—even the most

 unlikeliest of possibilities (e.g., jury nullification)—^that decision could still be

rational and credible. Id. at 1968-69. Lee is applicable here since the United States


                                          21
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



Supreme Court did not limit its holding to misadvice about immigration
consequences. Following Lee, the fact that Buckman's trial defense was not a slam

dunk does not automatically defeat his claim that the misadvice coerced his plea.

      The fact that Buckman received what seems like a good deal does not render

his allegation of prejudice automatically unreasonable either. That's because when

misadvice relates to something other than the defendant's prospects of success at

trial—as was the case here—^the defendant does not have to prove that he or she

would have gotten an acquittal or lower sentence by going to trial. Id. at 1965.

Whether a defendant received an objectively better deal by pleading guilty rather

than going to trial is irrelevant. Id. What matters is whether the defendant actually

would have rejected the plea if he or she had received correct advice about the

consequences oftaking a chance at trial. Id. at 1967.

      V.     Buckman, as a Personal Restraint Petitioner, Is Not Automatically
             Entitled to Relief


      Even though we cannot automatically deny Buckman relief, he is not

automatically entitled to relief either. Buckman argues that he is entitled to

automatic relief under two separate lines of cases: the Bradley^^ and Isadore^^ line.


        In re Pers. Restraint ofBradley, 165 Wn.2d 934, 205 P.3d 123 (2009).

        In re Pers. Restraint oflsadore, 151 Wn.2d 294, 302, 88 P.3d 390(2004).

                                         22
State V. Buckman (Brian Wallace), No,93545-9
(Gordon McCloud, J., dissenting)



and the Montoya^^ and Hews II line. I agree with the majority that neither line

provides Buckman with automatic relief.

             A. Buckman Would Have Been Entitled to Relief Automatically If He
                Had Raised This Claim at Trial or on Direct Appeal

      If Buckman had moved to withdraw his guilty plea in the trial court, he would

have been automatically entitled to relief; a defendant seeking withdrawal of his or

her guilty plea prior to sentencing "need not establish a causal link between the

misinformation and his decision to plead guilty." State v. Weyrich, 163 Wn.2d 554,

557, 182 P.3d 965 (2008)(per curiam)(citing State v. Mendoza, 157 Wn.2d 582,

590, 141 P.3d 49(2006));Isadore, 151 Wn.2d at 302; see also CrR 4.2(f).

      Buckman probably would have been entitled to automatic relief if he had

sought to withdraw his guilty plea in a direct appeal because he claims he did not

discover the error until after sentencing. Mendoza, 157 Wn.2d at 591-92 (holding

that no prejudice finding is necessary ifthe claim is brought on direct appeal and the

defendant did not learn of the error until after sentencing); accord State v. Walsh,

143 Wn.2d 1, 7, 17 P.3d 591 (2001); State v. Ross, 129 Wn.2d 279,287-88,916 P.2d




        In re Pers. Restraint ofMendoza Montoya, 109 Wn.2d 270,744 P.2d 340(1987).

        In re Pers. Restraint ofHews, 108 Wn.2d 579, 741 P.2d 983(1987){Hews II).

                                         23
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



405 (1996); Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427

(1971)(granting relief despite the absence of prejudice).

       Buckman,however, did not move to withdraw his plea prior to sentencing and

did not challenge the validity of his plea on direct appeal. His claim reaches this

court in a postconviction challenge, which we treat as a personal restraint petition.'^
              B. Personal Restraint Petitioners Like Buckman Generally Must Prove
                 Prejudice

       A personal restraint petitioner challenging the validity of his or her guilty plea

on grounds of misadvice must generally prove that the misadvice caused actual and

substantial prejudice, i.e., that it coerced or induced the plea. Stockwell, 179 Wn.2d

at 602-03.


       Buckman relies on several past decisions from this court for a contrary rule

that he does not need to prove prejudice. But his reliance on those cases is

misplaced. In Stockwell, we recognized that our case law concerning a personal



           Although this case caption is entitled "State v. Buckman" rather than in relation
to a personal restraint petition, the title results from the procedural posture of this case.
Buckman filed the underlying motion with the trial court pursuant to CrR 4.2. But because
he filed it after sentencing, the motion was actually govemed by CrR 7.8. As the Court of
Appeals correctly noted, CrR 7.8(c)(2) directs the trial court to treat motions such as this
one as personal restraint petitions. State v. Buckman, 195 Wn. App. 224,229 n.4, 381 P.3d
79 (2016), review granted, 187 Wn.2d 1008, 386 P.3d 1097 (2017). Because Buckman's
request should have been classified as a personal restraint petition, we treat it as such.
Accord majority at 4 n.1.

                                            24
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



restraint petitioner's burden to prove prejudice has not always been clear. 179
Wn.2d at 602-03. This confusion, we explained, stemmed primarily from our

decision in Bradley. Id. at 603. Although Bradley involved a personal restraint

petition, we did not require Bradley to prove prejudice before allowing him to
withdraw his guilty plea. 165 Wn.2d at 939. Instead, we ruled that "[tjhis court

does not require a defendant to show that the misinformation was material to the
plea." Id. We cited/Wore, 151 Wn.2d at 302, for this rule. Bradley, 165 Wn.2d
at 939.


       Isadore, however, involved a unique situation. In Isadore, we explained that

we were not requiring Isadore, a personal restraint petitioner, to prove prejudice

because ofthe unique circumstances giving rise to his request to withdraw his guilty

plea. 151 Wn.2d at 299-300. In pleading guilty, Isadore relied on the State's

promise that he would not be subject to any term of community placement. Id. at

297. After more than a year had passed and after the deadline for filing direct appeals

 had expired, the Department of Corrections modified Isadore's sentence to include

 a term of community placement. Id. at 299-300. Obviously, that violated his plea

 agreement. But because Isadore never had an opportunity to correct the error on

 direct appeal (the sentence modification occurred well after that period), we treated

 his claim as if it were a direct appeal. Id. at 299. We applied direct appeal standards

                                           25
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



and held that Isadore did not have to prove prejudice. Id. We explained that

"[wjhere the petitioner has not had a prior opportunity for judicial review, we do not
apply the heightened threshold requirements applicable to personal restraint
petitions." Id.

       Although Bradley relied on Isadore's no-prejudice rule, the unique

circumstances giving rise to that rule were not present in Bradley. In Bradley, the

claimed error was a miscalculated offender score that could have been discovered

and corrected on appeal. 165 Wn.2d at 938.

      In any case, we have backed off from Bradley's automatic prejudice rule.

Stockwell, 179 Wn.2d at 600,602-03. After Stockwell, a personal restraint petitioner

seeking to withdraw a guilty plea must generally prove prejudice absent unique

circumstances, such as those in Isadore, which are not present here. Buckman's

reliance on the Isadore and Bradley line of cases to support his argument for

automatic relief is therefore misplaced.

       As mentioned above, Buckman also relies on the Montoya and Hews II line

of cases. These cases are also limited to specific facts. In both Montoya and Hews

II, we held that when the error relates to an essential element of the crime, "[a]

constitutionally invalid guilty plea gives rise to actual prejudice," even in a personal




                                           26
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



restraint petition. Montoya, 109 Wn.2dat277; accordHews II, 108 Wn.2dat581-

82 ("[T]o show 'actual prejudice,'" Hews must show "he did not understand the
requisite elements ofthe crime or that his conduct satisfied those elements."(quoting

Hews I, 99 Wn.2d at 88)).

      Buckman claims that he was misadvised of sentence consequences, not

elements. Thus, Montoya'^ and He^vs IPs automatic relief rule does not apply

directly to Buckman's situation either.

       Following our ^osX-Stockwell precedent, then, Buckman must prove actual

and substantial prejudice resulting from the misadvice. As discussed above, he has

alleged sufficient particularized facts to support his allegation of prejudice to merit

a reference hearing.

                                       Conclusion


       This case involves a straightforward application of our holdings in Riley and

Rice. Under Riley, a personal restraint petitioner seeking to withdraw his or her

guilty plea based on misadvice must prove by a reasonable probability that he or she


          The majority flatly dismisses Montoya and Hews II as nonpreeedential "dieta."
Majority at 9-10. Whether the Montoya and Hews IPs automatic relief exception for
certain personal restraint petitioners should be given stare decisis protection is not an issue
we need to address in this ease. Buckman is not raising misadvice regarding an essential
element of the crime. The majority's dismissal of Montoya and Hews IPs automatic
prejudice exception as nonpreeedential "dicta" is therefore unnecessary and illadvised in a
case where that exception is not in conflict and not being challenged.

                                             27
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)



would not have pleaded guilty but for that misadvice. Buckman has presented sworn

statements explaining how misadvice from his defense counsel, the judge, and the

prosecutor coerced him into pleading guilty and how he would have proceeded to

trial, instead, without that misadvice. If Buckman's statements are credible, then he

has presented sufficient evidence to satisfy Riley. Under Riley and Rice, Buckman's

specific and detailed factual allegations entitle him to a reference hearing.

Therefore, this case should be remanded to the trial court for a reference hearing

pursuant to RAP 16.11 and 16.12 to determine the credibility of Buckman's

allegations of prejudice.

      For the foregoing reasons, 1 respectfully dissent.




                                         28
State V. Buckman (Brian Wallace), No. 93545-9
(Gordon McCloud, J., dissenting)




                                     29
