                                                                FILED 

                                                              JUNE 2,2015 

                                                     In the Office of the Clerk of Court 

                                                    WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 32533-4-111
                                               )         (consolidated with
                     Respondent,               )         No. 32538-5-111)
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
JUSTIN EDWARD MUELLER,                         )

                                               )

                     Appellant.                )


       LAWRENCE-BERREY, J. - Justin Edward Mueller appeals the trial court's denial of

his motion to withdraw his guilty plea. He alleges the plea was involuntary because the

trial court did not advise him that in pleading guilty he was forfeiting his constitutional

rights to ajury trial, to confront one's accusers, and privilege against self-incrimination.

Mr. Mueller also challenges the trial court's refusal to grant a drug offender sentencing

alternative (DOSA), RCW 9.94A.660, contending the court failed to exercise any

meaningful discretion. Because the trial court did not abuse its discretion in denying

either request, we affirm.
No. 32533-4-III; 32538-5-III
State v. Mueller


      Justin Mueller entered guilty pleas to residential burglary and possession of stolen

property in the second degree on March 12,2014. The court engaged in the following

colloquy with Mr. Mueller during the plea hearing:

              THE COURT: Did you hear or understand the rights I read this
      morning? 

              MR. MUELLER: I did Your Honor. 

              THE COURT: You've had a chance to review each of these 

      statements, you reviewed with your attorney; is that correct?
              MR. MUELLER: Yes.
              MS. WHITMIRE: With respect to the cause number ending 150-2,
      The State is amending the Information from identity theft in the first degree
      to possession of ... stolen in the second degree. The defendant is pleading
      guilty as charged on the other cause number. On 0-43-3, do you understand
      by signing this statement you are voluntarily pleading guilty to the charge of
      residential burglary.
              MR. MUELLER: Yes. 

              THE COURT: You understand that carries a standard range of 63 to 

      84 months with a maximum term and fine of 10 years and $20,000?
              MR. MUELLER: Yes.
              THE COURT: And your statement is, "On the date charged, in
      Benton County, Washington, I entered a residence at 90 Casey in Richland.
      I did not have permission to be in the residence and I intended to commit a
      theft in the residence." Is that correct?
              MR. MUELLER: Yes, Your Honor.
              THE COURT: I will accept the plea and I will sign the order for a
      PSI?             .
              MS. CORNISH: ... Okay. With regard, to 150-2, do you understand
      you are voluntarily pleading guilty to the charge of possession of stolen
      property 2nd degree?
              MR. MUELLER: Yes.
              THE COURT: And you understand that carries a standard range of
      22 to 29 months and a maximum term and fin[ e] of 5 years and $1 O,OOO?
              MR. MUELLER: Yes, your honor.

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No. 32533-4-III; 32538-5-III
State v. Mueller


             THE COURT: And your statement is, "On the date charged, in
       Benton County, Washington, I possessed an access device, credit card,
       knowing it to be stolen." Is that correct?
             MR. MUELLER: Yes, Your Honor.

Report of Proceedings (Mar. 12,2014) at 6-7.

       On April 9, 2014, Mr. Mueller filed motions to withdraw both guilty pleas,

alleging that defense counsel spent insufficient time sharing discovery and explaining

options. He claimed that due to defense counsel's "inactions," he "had no choice but to

plead guilty." Clerk's Papers (CP) at 21. At the hearing, Mr. Mueller's defense attorney

testified that she met with him multiple times and fully discussed his two charges. When

Mr. Mueller testified, he did not dispute his attorney's testimony, but focused his

complaint on the fact that he did not receive the victim impact statement until after he

entered his guilty plea. He told the court that if he had received the victim impact

statement before entering his guilty plea, he would not have pleaded guilty.

       The trial court denied Mr. Mueller's motion to withdraw his guilty pleas,

concluding the pleas were made knowingly, intelligently, and voluntarily. The court then

ordered a presentence DOSA screening.

       At sentencing, Mr. Muller asked for a DOSA. The trial court denied the request

and sentenced Mr. Mueller to 60 months for the residential burglary conviction and 22

months concurrent for the possession of stolen property conviction.

                                             3
No. 32533-4-III; 32538-5-III
State v. Mueller


                                         ANALYSIS

       Withdrawal ofGuilty Plea

       Federal and state due process require that a defendant's guilty plea be knowing,

intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,23 L.

Ed. 2d 274 (1969); State v. Mendoza, 157 Wn.2d 582,587, 141 P.3d 49 (2006). Boykin

requires that the trial record "show that in pleading guilty, the defendant understood he

was giving up three important constitutional rights: the right to a jury trial, the right to

confront one's accusers, and the privilege against self-incrimination." State v. Elmore,

139 Wn.2d 250, 269, 985 P.2d 289 (1999) (citing Boykin, 395 U.S. at 243). "Whether a

plea is knowingly, intelligently, and voluntarily made is determined from a totality of the

circumstances." State v. Branch, 129 Wn.2d 635, 642,919 P.2d 1228 (1996). CrR 4.2(d)

mandates that the trial court not accept a guilty plea without first determining that a

criminal defendant has entered into the plea voluntarily, competently, and with an

understanding of the nature of the charge and the consequences of the plea.

       CrR 4.2(1) provides that the court shall allow a defendant to withdraw a guilty plea

as necessary to correct a manifest injustice. A manifest injustice is one that is "obvious,

directly observable, overt, not obscure." State v. Taylor, 83 Wn.2d 594,596,521 P.2d

699 (1974). This is a demanding standard, justified by the safeguards protecting the



                                               4

No. 32533-4-III; 32538-5-II1
State v. Mueller


defendant at the time the plea is entered. Branch, 129 Wn.2d at 641. The defendant

bears the burden of demonstrating a manifest injustice. State v. Osborne, 102 Wn.2d 87,

97,684 P.2d 683 (1984).

       Mr. Mueller contends that the trial court erred by denying his motion to withdraw

his guilty plea because he did not enter into the agreement voluntarily or knowingly.

Specifically, he argues his guilty pleas are invalid because the trial court failed to

specifically enumerate his Boykin rights and find a waiver thereof Mr. Mueller is wrong.

Our Supreme Court has held:

       [T]here is no constitutional requirement that there be express articulation
       and waiver of the three rights referred to in Boykin by the defendant at the
       time of acceptance of his guilty plea if it appears from the record ... that
       the accused's plea was intelligently and voluntarily made, with knowledge
       of its consequences.

Woodv. Morris, 87 Wn.2d 501, 506, 554 P.2d 1032 (1976).

       Here, the record shows that Mr. Mueller understood the constitutional rights he

waived by his gUilty plea. Both plea forms enumerate all of the constitutional rights he

waived. Mr. Mueller stated twice that he reviewed the statements on the plea of gUilty

with his lawyer. And immediately above Mr. Mueller's signature is the statement: "My

lawyer has explained to me, and we have fully discussed, all of the above paragraphs ....

I understand them all." CP at 15. Mr. Muller's signature on the statements is "strong


                                              5

No. 32533-4-III; 32538-5-III
State v. Mueller


evidence" that the plea was voluntary. Branch, 129 Wn.2d at 642. "When a defendant

completes a plea statement and admits to reading, understanding, and signing it, this

creates a strong presumption that the plea is voluntary." State v. Smith, 134 Wn.2d 849,

852,953 P.2d 810 (1998).

       In view of this record, Mr. Mueller fails to demonstrate that withdrawing his pleas

is necessary to correct a manifest injustice. The trial court did not abuse its discretion by

denying Mr. Mueller's motion to withdraw his guilty plea.

       Sentencing: DOSA

       Mr. Mueller next contends that the sentencing court abused its discretion in

refusing to consider his eligibility for a prison-based DOSA by categorically refusing to

consider this sentencing alternative. This argument also fails.

       Generally, a sentencing court's decision to deny a DOSA sentence is not

reviewable. State v. Grayson, 154 Wn.2d 333,338, III P.3d 1183 (2005). However, an

offender may always challenge the procedure by which a sentence is imposed. Grayson,

154 Wn.2d at 338. When a trial court categorically refuses to consider a DOSA, the court

fails to exercise discretion and is subject to reversal. Grayson, 154 Wn.2d at 343. Such

is not the case here.




                                              6

No. 32533-4-III; 32538-5-II1
State v. Mueller


       The trial court ordered the Department of Corrections to complete a DOSA

screening, which included a risk assessment and presentence investigation. At

sentencing, the court listened to the arguments of the State and the defense and stated on

the record that it had reviewed the risk assessment, which had deemed Mr. Mueller "a

marginal candidate for a Prison-based DOSA." CP at 31. The risk assessment also noted

that Mr. Mueller had a "lengthy adult criminal record" and frequently violated the

conditions of his community custody. CP at 28. Under the category of "Issues and

Community Concerns," the risk assessment noted: "Within a three month period in 2011,

[Mr. Mueller] committed five felonies. He is now before the court on two additional

felonies; both of which he minimizes his criminal behavior in." CP at 31. Although the

court did not state its reasons for denying Mr. Muller's request for a DOSA, this record

refutes Mr. Mueller's claim that that the court categorically refused to consider his DOSA

request. Because the court did not refuse to consider him for a prison-based DOSA, it did

not abuse its discretion.




                                             7

No. 32533-4-111; 32538-5-111
State v. Mueller


      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



                                                 L~'-"ir~L."-- ~~c.. 

                                                 Lawrence-Berrey, 1.

WE CONCUR: 





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