                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 6, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 48787-0-II

                        Respondent,

         v.                                                  UNPUBLISHED OPINION

    DEENA M. SANDBERG,

                        Appellant.


        MAXA, A.C.J. – Deena Sandberg appeals her third degree assault conviction, claiming

that the trial court erred in denying her motion to withdraw her guilty plea. The record does not

show that Sandberg understood an essential element of the crime – that her actions had to be

intentional and not accidental. We hold that based on this record, allowing Sandberg to

withdraw her plea was necessary to correct a manifest injustice.1 Accordingly, we reverse

Sandberg’s conviction and remand to allow Sandberg to withdraw her guilty plea.

                                             FACTS

        On August 1, 2014, Sandberg and her husband went to a casino in Shelton. Sandberg

became disruptive because other people were sitting in her assigned seat. A casino supervisor



1
  Sandberg also argues that the trial court erred in denying her motion to withdraw her guilty plea
because she was not informed of a direct and a collateral consequence of her plea. Because we
reverse on other grounds, we do not address these arguments.
No. 48787-0-II


asked Sandberg to step outside to resolve the issue, but she refused. Eventually, a law

enforcement officer arrived and when Sandberg again refused to leave, the officer physically

escorted Sandberg out of the building. Sandberg tried to get away and dug her fingernails into

the officer’s arm, causing it to bleed.

       The State charged Sandberg with third degree assault. The charging information stated

that Sandberg “did intentionally assault a law enforcement officer or other employee of a law

enforcement agency who was performing her official duties at the time of the assault.” Clerk’s

Papers (CP) at 73.

       Sandberg agreed to plead guilty in exchange for the State not pursuing a bail jumping

charge, and agreeing to request a first time offender option. The plea statement listed the

elements of the offense “as in the information.” CP at 63. Sandberg’s statement of what made

her guilty of the crime was: “On 8-1-14 in Mason County, I assaulted a law enforcement

officer . . . who was performing official duties.” CP at 70.

       At the plea hearing, the trial court asked Sandberg whether she understood the offense

with which she was charged:

       THE COURT: Do you understand what it is you’re pleading guilty to? In other
       words, what conduct you did that the State alleges constitutes the crime of assault
       in the third degree?

       [DEFENSE COUNSEL]: The third, the police officer. Assaulting the police officer
       - yeah.

       MS. SANDBERG: Yeah.

       THE COURT: I’m sorry, Ma’am?

       MS. SANDBERG: Yes, on accident.

       THE COURT: Okay.


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No. 48787-0-II



       MS. SANDBERG: Not on purpose, on accident I assaulted a . . .

       THE COURT: Okay. Let me explain it.

       MS. SANDBERG: They grabbed me leaving the casino, so.

       THE COURT: Okay. I just need to explain something to you. In order for a court
       to accept a plea the Court has to find that the plea is knowingly, willful and
       voluntarily done, so I have to make a finding that you know what it is you’re
       pleading guilty to, in other words, okay, that’s something the Court has to ask you
       about, alright. Just so you know.
          So it’s assault in the third degree, and do you understand that by pleading guilty
       there’ll be no trial and no appeal of the conviction?

       [DEFENSE COUNSEL]: Do you understand that?

       MS. SANDBERG: Yes.

Report of Proceedings (RP) at 14-15. The trial court then questioned Sandberg about whether

she understood that she was giving up her trial and appeal rights, and understood the proposed

sentence and community custody, the maximum sentence it could impose, the mandatory costs

and fees, and her right to own or possess a firearm.

       Next, the trial court asked for Sandberg’s plea and Sandberg plead guilty. She also orally

confirmed her description in the plea agreement of how the crime occurred. Sandberg then

represented that she had signed the plea agreement, that she had enough time to talk with defense

counsel about it, that defense counsel went over the plea form with her, and that it was her choice

to plead guilty. The trial court then found that Sandberg’s plea was knowingly, intelligently, and

voluntarily given.

       During sentencing two months later, the trial court asked Sandberg if she had anything to

say and Sandberg responded that “[i]t was purely a accident. I was having a grand – a petit mal

seizure. . . . And it was, like, truly an accident. I didn’t mean to dig my nails into her, only


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No. 48787-0-II


‘cause I was having a seizure, you know.”2 RP at 24. The trial court perceived that Sandberg

was looking to withdraw her guilty plea, and after a break Sandberg confirmed that she would

like to petition the court to withdraw her plea. As a result, the trial court allowed defense

counsel to withdraw, appointed new defense counsel, and rescheduled sentencing to allow

Sandberg an opportunity to file a motion to withdraw her guilty plea.

        Sandberg subsequently filed a motion to withdraw her guilty plea. The trial court denied

Sandberg’s motion. The court then imposed the agreed first time offender sentence.

        Sandberg appeals the trial court’s denial of her motion to withdraw her guilty plea.

                                             ANALYSIS

A.      LEGAL PRINCIPLES

        Due process requires that a defendant’s guilty plea be knowing, intelligent, and

voluntary. State v. Robinson, 172 Wn.2d 783, 794, 263 P.3d 1233 (2011). Under CrR 4.2(d), a

trial court cannot accept a guilty plea without making a determination that the plea was made

“voluntarily, competently and with an understanding of the nature of the charge and the

consequences of the plea.”3 See also Robinson, 172 Wn.2d at 791-92.

        In order to understand the nature of the charge, “[t]he defendant must understand the

facts of his or her case in relation to the elements of the crime charged, protecting the defendant

from pleading guilty without understanding that his or her conduct falls within the charged



2
 Medical records showed that Sandberg did have seizures and, in fact, had a seizure in the
courthouse that caused her to miss a hearing.
3
 CrR 4.2(d) also requires the trial court to be “satisfied that there is a factual basis for the plea.”
Sandberg did not argue that the record failed to identify a factual basis for an intentional assault,
so we do not address this issue.


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No. 48787-0-II


crime.” State v. Codiga, 162 Wn.2d 912, 923-24, 175 P.3d 1082 (2008). This requirement

means that at a minimum, defendant must be aware of the requisite state of mind necessary to

constitute the charged crime. In re Pers. Restraint of Montoya, 109 Wn.2d 270, 278, 744 P.2d

340 (1987). But in a plea hearing the trial court is not required to orally recite the elements of

each crime or the facts that satisfy those elements, and is not required to orally question the

defendant to ascertain whether he or she understands the nature of the defense. Codiga, 162

Wn.2d at 924. Instead, the trial court can rely on the written plea agreement if the defendant

confirms that he or she read the agreement and that its statements were true. Id.

       CrR 4.2(f) states that the trial court shall allow a defendant to withdraw a guilty plea

before entry of judgment “whenever it appears that the withdrawal is necessary to correct a

manifest injustice.” See generally Robinson, 172 Wn.2d at 791-92, 794. Although “manifest

injustice” has not been definitively defined, it includes situations where the defendant’s guilty

plea was not knowing, intelligent, and voluntary. State v. A.N.J., 168 Wn.2d 91, 119, 225 P.3d

956 (2010). The defendant bears the burden of proving a manifest injustice. State v. Quy Dinh

Nguyen, 179 Wn. App. 271, 282-83, 319 P.3d 53 (2013).

       The fact that a defendant moves to withdraw a guilty plea before sentencing does not

affect the manifest injustice standard. A.N.J., 168 Wn.2d at 106. However, a defendant’s claim

that he or she did not understand the nature of the charge is more credible if a motion to

withdraw a guilty plea is made before sentencing rather than after receiving an unfavorable

sentence. See id. at 107.

       We review a trial court’s denial of a motion to withdraw a guilty plea for abuse of

discretion. State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012). A trial court abuses its



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No. 48787-0-II


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

reasons. Id.

B.        MISUNDERSTANDING THE INTENT ELEMENT OF ASSAULT

          The State charged Sandberg under RCW 9A.36.031(1)(g), which states that a person is

guilty of third degree assault if he or she assaults a law enforcement officer who was performing

his or her official duties. Although the criminal code does not define “assault” as used in RCW

9A.36.031(1)(g), to obtain a conviction under that section the State must prove that the defendant

intended to commit an assault against the officer. State v. Brown, 140 Wn.2d 456, 469-70, 998

P.2d 321 (2000).

          Consistent with this intent requirement, the information alleged that Sandberg “did

intentionally assault” a law enforcement officer. CP at 73. The plea statement stated that the

elements of the crime were “as in the information.” CP at 63. Sandberg confirmed that her

counsel had gone through the plea form with her. In certain cases, this record could be sufficient

to establish that Sandberg understood that intent was an element of the crime to which she was

pleading guilty. See Montoya, 109 Wn.2d at 278 (holding that because defense counsel read the

information to the defendant, the defendant was given adequate notice of the elements of the

crime).

          However, three circumstances indicate that the record here was not sufficient to show that

Sandberg understood that third degree assault required intentional conduct. First, the plea

statement did not list intentional conduct as an element of the crime. Instead, the plea form

simply stated that the elements were “as in the information.” CP at 63. Further, although

Sandberg confirmed that she had gone over the form with defense counsel, nothing in the record



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No. 48787-0-II


shows that Sandberg was shown or told the contents of the information. Even defense counsel’s

subsequent declaration did not expressly state that he informed Sandberg of the elements of third

degree assault.

       Second, Sandberg clearly stated at her plea hearing that her conduct was accidental.

When the trial court asked whether she understood what she was pleading guilty to and

specifically referenced third degree assault, Sandberg answered “yes” but then added “on

accident.” RP at 14. She then tried to explain: “Not on purpose, on accident I assaulted a . . . .”

RP at 14. At that point the trial court interrupted. But instead of clarifying with Sandberg that

the State had to prove intentional conduct in order to convict her, the court began discussing

other issues.

       Third, at the first sentencing hearing Sandberg again emphasized that her conduct had

been accidental and informed the trial court that her conduct was caused by a seizure. Although

the court recognized a problem, it again did not attempt to determine whether Sandberg knew

that the State was required to prove intentional conduct to convict her. And after conferring with

her counsel, Sandberg immediately informed the court that she wished to withdraw her guilty

plea. This is not a situation where Sandberg attempted to withdraw her plea only after “roll[ing]

the dice on a favorable sentence” and being disappointed. A.N.J., 168 Wn.2d at 107.

       Nothing in the record shows that Sandberg understood the facts of her case in relation to

the elements of the third degree assault. Instead, the record shows that Sandberg had a

misunderstanding of the elements of the offense and that neither the trial court nor anyone else

corrected her misunderstanding before she entered the guilty plea. Therefore, Sandberg did not




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No. 48787-0-II


make a knowing, voluntary, and intelligent decision to plead guilty and accepting her withdrawal

of the guilty plea was necessary to prevent a manifest injustice.

        We hold that based on the record in this case, the trial court erred in denying Sandberg’s

motion to withdraw her guilty plea.

                                          CONCLUSION

        We reverse Sandberg’s conviction of third degree assault, and we remand to the trial

court to allow Sandberg to withdraw her guilty plea.

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

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

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.



 We concur:




 LEE, J.




 SUTTON, J.




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