                                                                            FILED
                                                                         APRIL24, 2018
                                                                  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. 34741-9-III
                     Respondent,               )         (consolidated with
                                               )         No. 34742-7-III and
      v.                                       )         No. 34743-5-III)
                                               )
CHRISTOPHER JOHN CANNATA,                      )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

      SIDDOWAY, J. — Christopher Cannata appeals the trial court’s denial of his motion

to withdraw guilty pleas, raising three challenges he is entitled to raise for the first time

on appeal. While we reject his challenges to denial of his plea withdrawal motion, he

points out an invalidity in the sentence ultimately imposed that we find sufficiently

intertwined to address in this appeal. We affirm his convictions but remand for

resentencing.

                     FACTS AND PROCEDURAL BACKGROUND

      On June 20, 2016, the day he was set for trial on multiple charges, Christopher

Cannata appeared before the Hon. John Cooney to enter guilty pleas instead. He pleaded

guilty to six charges asserted in three criminal cases. Two were charges of second

degree burglary and first degree theft for breaking into a Spokane restaurant in February
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


2015, and another two were for related second degree burglary and first degree theft

counts for a break-in committed in August 2015. The final two charges were for the

theft of a motor vehicle in August 2015 and a second degree assault with a baseball bat

committed a few days later.

      Plea negotiations on Mr. Cannata’s behalf took place in the context of his

extensive criminal history. By the time he was sentenced in these matters, Mr. Cannata

had a history of 43 convictions, 18 of which were burglaries. Given his offender score of

9-plus, the standard sentencing ranges for the crimes ranged from 43 to 57 months on the

low end, to 51 to 68 months on the high end. The State intended to request exceptional

sentences based on the rapid recidivism and free crimes aggravators, and Mr. Cannata

faced a maximum sentence of 55 years.

      Mr. Cannata’s court-appointed lawyer, Kevin Griffin, attempted to obtain a State

recommendation of a 120-month sentence, but the State refused. The best Mr. Griffin

was able to do for Mr. Cannata was to get the State’s agreement to reduce the second

degree assault charge to attempted second degree assault, preserving Mr. Cannata’s

eligibility for a drug offender sentencing alternative (DOSA). In return, the State

required Mr. Cannata to agree to its determination of his offender score and stipulate that

the facts supported the rapid recidivism and free crimes aggravators. The State insisted

on remaining free to vigorously argue for an exceptional sentence up to the statutory



                                            2
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


maximum on each count, to run consecutively. The plea agreement recognized that Mr.

Cannata would request prison-based DOSAs, to run concurrently.

       The transcript of the hearing at which Mr. Cannata entered the pleas reflects the

lawyers’ oral agreement on all material terms of the plea agreements, a thorough

advisement of Mr. Cannata by Judge Cooney, and apparent understanding and agreement

by Mr. Cannata. Mr. Cannata and Mr. Griffin signed the three statements on plea of

guilty required by CrR 4.2(g), with the standard certifications that all provisions of the

statements had been explained to and were understood by Mr. Cannata.

       Before Mr. Cannata could be sentenced, however, he notified Mr. Griffin that he

wished to withdraw his plea. Mr. Griffin prepared a motion on Mr. Cannata’s behalf,

citing CrR 4.2(f), case law on the manifest injustice standard, and a statement of Mr.

Cannata’s grounds:

       Mr. Cannata asserts that he was not advised that the state would be seeking
       more than ten years in total confinement before the plea hearing, and that
       he has never been advised about the amount of restitution the state will be
       seeking. The Defendant is respectfully arguing that he received ineffective
       assistance of counsel at the time of the guilty plea hearing, and that he
       would not have entered a guilty plea if he had been properly advised. The
       Defendant asserts that he was stunned by learning the prosecutor could seek
       as much as 55 years of confinement at sentencing, and had no time to fully
       consider the implications of the guilty plea before the hearing began.

Clerk’s Papers (CP) at 61-62.

       The plea withdrawal motion was heard by the Hon. James Triplet. The State

provided him with a transcript of the hearing at which Judge Cooney accepted the pleas.

                                              3
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


Through counsel, Mr. Cannata offered to explain why he voiced agreement and

understanding in June but now claimed not to have understood the length of sentence to

which he was exposed. Judge Triplet informed Mr. Cannata that he would want Mr.

Griffin and the prosecutor to provide their recollection of the plea negotiations as well.

      Mr. Cannata testified that he had expected the State to recommend a 120-month

sentence at the guilty plea hearing and was shocked when he learned otherwise on

reviewing plea materials presented to him that morning. He claimed he was unable to

speak to Mr. Griffin about his concern because the two of them had only five minutes

together, and the prosecutor was speaking with Mr. Griffin the entire time. Under

questioning from the court, Mr. Cannata acknowledged that Mr. Griffin came to see him

at the jail on June 19, the Sunday afternoon before he was set for trial. It was at 6:42

p.m. that day that Mr. Griffin notified the court of a tentative settlement of Mr. Cannata’s

charges and requested a plea hearing the following morning. Mr. Cannata told the court

that Mr. Griffin spent only 20 to 30 minutes with him on the Sunday afternoon, talking to

him and communicating by text message with the prosecutor. He said that Mr. Griffin

never told him the State would be asking for a 55 year sentence.

      Mr. Griffin was asked by the court about his recollection of events. He told the

court that 120 months had been the goal of his negotiations, but the State never agreed to

such a short sentence. He said he specifically discussed with Mr. Cannata that the State

was free to ask for up to 55 years, although “[f]rankly, I thought it was unlikely to

                                             4
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


occur.” Report of Proceedings (RP) (Aug. 25, 2016) at 33. He told the judge that he

engaged in a thorough review of the plea statements with Mr. Cannata. But advocating

for Mr. Cannata, he said that during the guilty plea hearing, “my client was having an

incredibly tough time, or appeared to be, listening to me, focusing; he was all over the

place.” Id. at 34. As for the amount of time Mr. Griffin met with Mr. Cannata on

Sunday, June 19, both Mr. Griffin and the prosecutor were able to consult their

telephones and identify 11 text messages they exchanged during the time Mr. Griffin was

with Mr. Cannata. The messages began at 2:57 p.m. and ended at 4:47 p.m.

       In providing his recollection of events, the prosecutor disputed Mr. Cannata’s

claim that he was unable to speak to Mr. Griffin on the morning Judge Cooney accepted

the plea. The prosecutor told Judge Triplet that on the morning the guilty pleas were

entered, Mr. Cannata arrived and immediately indicated he did not want to go forward

with the pleas, after which the following occurred:

               I then gave the defense ample time to discuss this. In fact, we left
       the courtroom while Mr. Griffin and Mr. Cannata discussed the case. I
       would estimate that it was at least a half-hour of time between Mr. Griffin
       and Mr. Cannata, who discussed the case prior to the hearing actually
       commencing. So in other words, the hearing started a half-hour beyond, at
       least a half-hour beyond its anticipated start time to allow Mr. Griffin and
       Mr. Cannata additional time to discuss.
               At the end of that conversation, the decision was made by Mr.
       Cannata to go through with the plea.

Id. at 29.




                                             5
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


         At the conclusion of the hearing, Judge Triplet denied the plea withdrawal motion,

stating, “[I]f I had any evidence to support an ineffective assistance or that Mr. Cannata

didn’t understand what he was doing, I wouldn’t have a problem withdrawing a plea. I

just don’t see that evidence is in this case. A binding agreement was reached.” Id. at

54-55.

         Sentencing took place before Judge Triplet the following week. Characterizing

Mr. Cannata as a prolific chronic offender, the State recommended a sentence of 40

years’ total confinement followed by one year of community custody with a court-

ordered substance abuse evaluation and follow-up treatment.1

         Mr. Griffin asked the court to impose a DOSA. Apparently recognizing that the

standard 59.5 month DOSA identified as the defense recommendation in the earlier plea

statements could be perceived as too lenient, however, he told the court that Mr. Cannata

was interested in the possibility of “back-to-back DOSAs.” Id. at 99. During Mr.

Cannata’s allocution, Mr. Cannata, too, asked whether the court could “stack” DOSAs to

arrive at a sentence that was not too lenient but would give him an opportunity for

treatment. Id. at 110.




         1
        Later in the sentencing hearing, defense counsel correctly informed the court that
community custody could not be imposed in connection with the attempted assault
conviction because it does not count as a crime against the person.

                                              6
 No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
 State v. Cannata


         The court questioned both lawyers about whether consecutive DOSAs were

 authorized by statute and how they would be served. Mr. Griffin answered that the

 Department of Corrections would not release Mr. Cannata until he had served the

 confinement portion of each sentence, so the treatment portions would be served last. He

 also expressed his belief that back-to-back DOSAs would not be considered an improper

 hybrid sentence. The prosecutor expressed uncertainty about how consecutive DOSAs

 would be handled, adding “I don’t think that’s contemplated by the statute.” Id. at 127.

         The court found compelling and substantial reasons to order an exceptional

 sentence and sentenced Mr. Cannata to the statutory maximum term on all counts. But

 he ordered some of the sentences served concurrently and ordered DOSAs for the

 attempted assault and theft of a motor vehicle convictions. The following chart

 illustrates the sentences imposed:

Case        Charges                              Maximum         Sentence
Number                                           Fine
1161-9      Second Degree Burglary               10 years, 20K   10 years             Concurrent
            First Degree Theft                   10 years, 20K   10 years
03270-5     Second Degree Burglary               10 years, 20K   10 years             Concurrent
            First Degree Theft                   10 years, 20K   10 years

            Attempted Second Degree Assault      5 years, 10K    5 years DOSA
                                                                                      Consecutive
03254-3     Theft of Motor Vehicle               10 years, 20K   10 years DOSA




                                             7
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


The result was a total standard sentence of 20 years’ total confinement and a total DOSA

of 15 years, with the first 7.5 years of the DOSA to be served in total confinement and

the second 7.5 years to be served in community custody with treatment ordered.

         While Mr. Griffin’s DOSA proposal had been for terms based on the midpoint of

the standard sentence range, no one challenged the trial court’s imposition of statutory

maximum-length DOSA terms.

         Mr. Cannata appeals.

                                         ANALYSIS

         All of Mr. Cannata’s assignments of error are raised, and can be raised, for the

first time on appeal. He challenges the trial court’s denial of his motion to withdraw his

guilty pleas on three new grounds. He claims he was denied his right to effective,

conflict-free counsel to assist him with his plea withdrawal motion. Finally, he contends

that Judge Triplet violated due process, ER 605, and the appearance of fairness doctrine

by relying on his favorable experience with Mr. Griffin in denying Mr. Cannata’s plea

withdrawal motion. We address the issues in the order stated.

I.       MR. CANNATA WAS NOT MISINFORMED ABOUT ANY DIRECT CONSEQUENCE OF HIS
         PLEAS

         Mr. Cannata contends he was misinformed on three matters in entering his guilty

pleas:

         [H]e was misinformed that an exceptional sentence could be imposed as
         part of a DOSA sentence. Further, Cannata was misinformed about the


                                               8
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


      standard range sentence for the attempted second degree [burglary] count.
      Cannata was also misinformed about the length of the DOSA sentence for
      that count.

Br. of Appellant at 34.

      There is a strong public interest in enforcement of plea agreements that are

voluntarily and intelligently made. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001).

Yet a trial court “shall allow a defendant to withdraw the defendant’s plea of guilty

whenever it appears that the withdrawal is necessary to correct a manifest injustice.”

CrR 4.2(f). An involuntary plea constitutes a manifest injustice. State v. Wakefield,

130 Wn.2d 464, 472, 925 P.2d 183 (1996). Due process requires that a defendant must

be informed of the direct consequences of pleading guilty, in order that the plea be

knowing voluntary and intelligent. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297,

88 P.3d 390 (2004). If a defendant demonstrates that misinformation of a direct

consequence was provided, he or she need not show it was material to his plea decision

in order to obtain relief. Id. at 302. “[A] court will not speculate on the possible

outcomes had the defendant been properly advised on the direct consequences of his

plea.” In re Pers. Restraint of Bradley, 165 Wn.2d 934, 940, 205 P.3d 123 (2009) (citing

Isadore, 151 Wn.2d at 302).

      While Mr. Cannata’s present claims that he was misinformed differ from the

grounds on which he sought to withdraw his pleas in the trial court, he may raise new

challenges to the voluntariness of his plea for the first time on appeal. Walsh, 143 Wn.2d

                                             9
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


at 7-8. And when a defendant has made a package plea deal, he or she may withdraw all

of his pleas when misinformed as to direct consequences of some, but not all charges.

Bradley, 165 Wn.2d at 941. The State does not dispute that Mr. Cannata’s was a

package deal.

      Before turning to the misinformation alleged by Mr. Cannata, we touch on two

sentencing issues that are not implicated in this assignment of error. In imposing

sentence, the court imposed consecutive DOSAs, the legality of which was a matter of

first impression. Nothing in Mr. Cannata’s statement on plea of guilty informed (or

misinformed) him that back-to-back DOSAs he would later ask for were authorized by

statute, however. A challenge to the voluntariness of a plea based on misinformation

must be based on actual or implicit misinformation. It cannot be based on the plea

agreement’s failure to accurately predict whether some future request for an

unconventional sentence will prove legally viable.

      The court also imposed DOSAs for terms greater than the midpoint of the standard

range. As discussed in section IV below, we conclude this was error. But where a

defendant enters into a plea agreement knowingly and voluntarily, any sentencing error

by the trial court does not invalidate his plea; the remedy is resentencing. See In re Pers.

Restraint of Williams, 111 Wn.2d 353, 361-62, 759 P.2d 436 (1988); State v. Jennings,

106 Wn. App. 532, 541-42, 24 P.3d 430 (2001).



                                            10
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


          We turn, then, to the information Mr. Cannata was actually given and whether, as

he alleges, it was misleading.

           Mr. Cannata received accurate information about the maximum sentence
          and standard sentence range he faced for attempted second degree assault

          Mr. Cannata contends he was misinformed about the standard range for attempted

second degree assault. His statement on plea of guilty to the attempt charge included a

table containing the information:

 6.       In Considering the Consequences of My Guilty Plea, I Understand That:
          (a)   Each crime with which I am charged carries a maximum sentence, a fine, and a
                Standard Sentence Range as follows:

      COUNT NO. OFFENDER   STANDARD RANGE       PLUS            COMMUNITY      MAXIMUM TERM AND
                SCORE      ACTUAL               Enhancements*   CUSTODY        FINE
                           CONFINEMENT
                           (not including
                           enhancements)

      1         9   +      47.25 - 63 months    N/A             None           5 yrs; $10,000

      2         9   +      51 - 68 months       N/A             None           10 yrs; $20,000

      3         9   +      43 - 57 months       N/A             None           10 yrs; $20,000



CP at 40.

          Count 1 was the attempted second degree assault charged under RCW

9A.36.021(1)(c) and RCW 9A.28.020(1). It is undisputed that 47.25 to 63 months is 75

percent of the sentencing grid sentence range for a completed second degree assault, and

therefore the “standard sentence range” for the anticipatory offense under RCW




                                                 11
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


9.94A.533.2 Mr. Cannata nonetheless contends it was error to identify the “standard

range actual confinement” as “47.25-63 months” in the plea statement’s table when the

statutory maximum for the crime is 5 years. RCW 9A.20.021(1)(c).

      During the hearing at which Mr. Cannata entered his guilty plea, Judge Cooney

orally reviewed the crimes to which Mr. Cannata was pleading guilty. He stated, as to

the attempted assault charge, “15-1-03270-5, three counts, attempted second-degree

assault from August 17 of ’15, 47.25 to 63 months, five years and 10,000. That one has

up to 12 months of community custody eligible, and the 63 months exceeds the maximum

penalty; so it’s really 60 months.” RP (Sept. 2, 2016) at 63 (emphasis added). Ignoring

the latter italicized language, Mr. Cannata argues that Judge Cooney’s statement “47.25

to 63 months” misstated the sentence range for the attempted assault, which he contends

was actually 47.25 to 60 months.

      Mr. Cannata relies on this court’s opinion in State v. Brooks, 107 Wn. App. 925,

29 P.3d 45 (2001), which construed the meaning of “standard range” in former RCW



      2
         RCW 9.94A.533(2) provides that “[f]or persons convicted of the anticipatory
offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the
standard sentence range is determined by locating the sentencing grid sentence range
defined by the appropriate offender score and the seriousness level of the completed
crime, and multiplying the range by seventy-five percent.” (Emphasis added.) Under
RCW 9.94A.515, assault 2 has a seriousness level of IV. Under the sentencing grid, the
sentence range for an offender score of 9 or more and a crime having the seriousness
level of IV is 63 to 84 months. RCW 9.94A.510. Seventy-five percent of that sentencing
range is 47.25 to 63 months.

                                          12
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


9.94A.120(6)(b) (1999), dealing with DOSA sentences. The statute provided:

      If the [midpoint of the] standard range is greater than one year . . . the judge
      may waive imposition of a sentence within the standard range and impose a
      sentence that must include a period of total confinement in a state facility
      for one-half of the midpoint of the standard range.

Brooks, 107 Wn. App. at 933 (alterations in original).

      Mr. Brooks had been convicted of attempted burglary, which—like Mr. Cannata’s

attempted second degree assault—was a class C felony with a maximum sentence of 60

months. The trial court had determined Mr. Brooks’s standard range to be 47.25 months

to 63 months, with a midpoint of 55.125 months. It ordered him to serve half that

amount—27.5625 months—in total confinement. Mr. Brooks argued that the high end

of the “standard range” as used in the DOSA statute could not exceed the statutory

maximum, and a range of 47.25 to 60 months would have a midpoint of 53.625, leading

to a period of total confinement of only 26.8125 months.

      This court agreed. It construed “standard range” by relying on the statutory

definition of “sentence range” at former RCW 9.94A.030(35) (1999)—“‘the sentencing

court’s discretionary range in imposing a nonappealable sentence’”—and on the general

proposition that a court may not provide for a term of confinement that exceeds the

statutory maximum for the crime. Brooks, 107 Wn. App. at 932. In other words, it

viewed the statutory definition of “standard range” as meaning the end result of

determining the discretionary range within which the sentencing court operates.



                                            13
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


      We have no quarrel with Brooks. But then, as now, the definition provision of the

Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, states that its definitions

apply “[u]nless the context clearly requires otherwise.” RCW 9.94A.030; and see LAWS

OF 2000,   ch. 28, § 2. Provisions of the SRA that explain how to arrive at the sentencing

court’s discretionary range use the term “standard sentence range” in a different sense

that is not adjusted for the statutory maximum sentence. In those provisions, it means

the sentence range appearing at the applicable intersection in the sentencing grid.

      For example, RCW 9.94A.530(1) provides, referring to the sentencing grids at

RCW 9.94A.510 and .517, that “[t]he intersection of the column defined by the offender

score and the row defined by the offense seriousness score determines the standard

sentence range.” (Emphasis added). It further provides that “[t]he additional time for

deadly weapon findings or other adjustments as specified in RCW 9.94A.533 shall be

added to the entire standard sentence range.” (Emphasis added). Earlier-cited RCW

9.94A.533(2) provides that for persons convicted of anticipatory offenses, “the standard

sentence range is determined by locating the sentencing grid sentence range defined by

the appropriate offender score and the seriousness level of the completed crime, and

multiplying the range by seventy-five percent.” It is RCW 9.94A.505(5) that then

provides that “[e]xcept as provided under RCW 9.94A.750(4) and 9.94A.753(4), a court

may not impose a sentence providing for a term of confinement or community custody

that exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.”

                                             14
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


      Courts, too, use “standard sentence range” in both senses, sometimes referring to

the applicable intersection in the sentencing grid that may or may not turn out to be the

court’s discretionary range. E.g., State v. Jordan, 180 Wn. 2d 456, 460, 325 P.3d 181

(2014) (“Under the SRA, the standard sentencing range for an offense is determined by

cross-referencing a defendant’s offender score with the offense’s seriousness level on the

sentencing grid provided under RCW 9.94A.510.”); State v. Haddock, 141 Wn.2d 103,

108, 3 P.3d 733 (2000) (describing “the standard range” as found at the intersection of

the offender score column and seriousness level rows of the sentencing grid); see also

WASH. STATE CASELOAD FORECAST COUNCIL, 2017 WASHINGTON STATE ADULT

SENTENCING GUIDELINES MANUAL 663 (describing “the standard sentence range” as

being the range appearing in the pertinent intersection of the columns and rows of the

sentencing grid).

      In State v. Thomas, the Supreme Court even used the term in both senses in the

same paragraph, speaking of “a” standard sentence range that is determined from the grid

and the defendant’s (“his”) standard range sentence as limited by the statutory maximum.

150 Wn.2d 666, 671, 80 P.3d 168 (2003) (“[A]lthough the grid provides a standard

sentence range for Thomas’s third count . . . of 51-68 months (the intersection of

seriousness level III and an offender score greater than 9), his standard range sentence


      3
       http://www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult
_Sentencing_Manual_2017.pdf [https://perma.cc/ZKD9-3ER9].

                                            15
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


for that count is 51-60 months, since the statutory maximum for a class C felony is five

years.” (emphasis added)).

      Mr. Cannata’s plea statement, including the information in the table reproduced

above, was in the form approved by CrR 4.2(g). That form “requires that both the

applicable standard sentence range and the statutory maximum sentence established by

the legislature be set forth,” which this court has held provides “a clear indication that

the drafters of CrR 4.2 did not believe these to be one and the same.” State v. Kennar,

135 Wn. App. 68, 74, 143 P.3d 326 (2006). Having been provided in writing and orally

with both the applicable standard range from the sentencing grid and the maximum

sentence he faced within that range, Mr. Cannata was not misinformed about the upper

limit of the sentencing court’s discretion.

       Mr. Cannata was not misinformed about the length of a DOSA sentence for
                     the attempted second degree assault count

      Mr. Cannata pleaded guilty to attempted second degree assault in the same case in

which he pleaded guilty to second degree burglary and first degree theft. Of the three

counts, the second degree burglary subjected him to the longest sentence: a standard

range of 51 to 68 months, with a maximum sentence of 10 years.

      The section of Mr. Cannata’s plea statement setting forth the parties’ sentence

recommendations indicated that Mr. Cannata would be asking for a DOSA of 59.5

months with 29.75 months to be served in confinement, and 29.75 months to be served



                                              16
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


on community custody subject to DOSA conditions. Implicit in the recommendation

was the statutory presumption of concurrent sentencing, see RCW 9.94A.589(1)(a), with

the result that the total length of his sentence would be the length of his longest sentence.

The correct midpoint for the 51 to 68 month range of the second degree burglary count is

59.5 months. The 29.75 month figure is the correct length of the terms, respectively, of

total confinement and community custody.

      Mr. Cannata’s plea statement did not set forth the number of months that would be

spent in total confinement or community custody under a DOSA sentence for the

attempted assault. The only information in the plea statement that applied to the length

of a DOSA sentence for the attempted assault was generic, appearing in the “Notification

Relating to Specific Crimes” section. It stated in relevant part that if the judge imposed

the prison-based DOSA alternative,

      [T]he sentence will consist of a period of total confinement in a state
      facility for one-half of the midpoint of the standard range, or 12 months,
      whichever is greater. During confinement, I will be required to undergo a
      comprehensive substance abuse assessment and to participate in treatment.
      The judge will also impose a term of community custody of one-half of the
      midpoint of the standard range.

CP at 44. This is an accurate statement of the law. See RCW 9.94A.662.

      Mr. Cannata nonetheless argues that this language, together with remaining

information in the plea statement, was misleading, suggesting that one-half of the

midpoint of the standard range was one-half of the midpoint of the standard range found



                                             17
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


at the applicable intersection of the sentencing grid. But as previously discussed, the

term “standard range” is used in two senses, and the language set forth above does not

imply which sense of “standard range” applies. Brooks answers that question. Because

the language in the plea statement does not say that the standard range used in

calculating the length of a DOSA is the standard range appearing in the applicable

intersection of the sentencing grid, it does not misinform.

        Mr. Cannata was not misinformed that an exceptional sentence could be
                        imposed as part of a DOSA sentence

      Finally, Mr. Cannata argues that he was “misinformed that he was subject to an

exceptional DOSA sentence.” Br. of Appellant at 36. He bases this on the fact that the

plea statement said “the judge could sentence Cannata to a prison-based DOSA

sentence,” and elsewhere “inform[ed] Cannata that he is subject to an exceptional

sentence on every count based on the presence of stipulated aggravating factors.”

Id. at 36-37.

      The plea statements addressed the fact that the court could sentence Mr. Cannata

to a prison-based DOSA because he was eligible for the sentencing alternative and the

defense would be requesting it. In the plea statement, however, the defense

recommended only a standard prison-based DOSA. The defense had explicitly agreed

not to argue for an “exceptional down,” see CP at 33, 42, and 49, and it requested

concurrent sentencing. See id.



                                            18
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


      The plea statements addressed the possibility of exceptional sentencing because

the State had disclosed its intention to “vigorously argue for any sentence[ing] up to the

statutory maximum on each count and file[,] to run consecutive.” Id. The State never

indicated it would argue for any DOSA, let alone an exceptional DOSA.

      Nowhere, then, do the plea statements discuss the possibility of a sentence that is

both a prison-based DOSA and an exceptional sentence. That possibility was raised for

the first time months later at sentencing, as a request from Mr. Cannata.

      For purposes of Mr. Cannata’s challenge to denial of his plea withdrawal motion,

he has not shown he was misinformed. He was not told in his plea statement or during

the hearing when his guilty pleas were accepted that he could receive a sentence that was

both a prison-based DOSA and an exceptional sentence. The plea statement identifies

many possibilities. The fact that the possibilities could be combined into a sentence that

would not be possible—a combination not suggested by the plea statement—is not

misinformation that constitutes a manifest injustice supporting withdrawal of a plea.

II.   MR. CANNATA WAS NOT DENIED EFFECTIVE, CONFLICT-FREE COUNSEL

      Mr. Cannata argues he was denied his right to effective, conflict-free counsel to

assist him with his plea withdrawal motion. He cites a handful of cases from other

jurisdictions for the proposition that a per se conflict of interest arises with existing

counsel when a defendant raises a claim of ineffective assistance of that counsel.




                                              19
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


Alternatively, he argues that an actual conflict arose when Mr. Griffin served as a

witness against him at the plea withdrawal hearing.

      The Sixth Amendment to the United States Constitution guarantees the right to

effective assistance of counsel at all critical stages of a criminal prosecution. U.S.

CONST. AMEND. VI; State v. Harell, 80 Wn. App. 802, 804, 911 P.2d 1034 (1996). This

right “includes the right to conflict-free counsel.” In re Pers. Restraint of Gomez, 180

Wn.2d 337, 348, 325 P.3d 142 (2014). While the “Rules of Professional Conduct”

dealing with conflicts can serve as a guide to what is reasonable, they do not embody the

constitutional standard for effective assistance of counsel. Id. at 349. Rather, to

demonstrate a denial of the constitutional right to conflict-free counsel, a defendant must

show: (1) defense counsel had actual conflicting interests, and (2) the conflict of interest

“‘adversely affected’ his performance.” Id. at 348-49 (quoting Cuyler v. Sullivan, 446

U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)).

      Longstanding case law from this court rejects Mr. Cannata’s argument for a rule

finding a per se conflict in a case such as this:

      [The defendant] urges us to adopt a rule requiring the appointment of
      substitute counsel in cases in which a defendant wishes to argue his
      counsel’s ineffectiveness. In these cases, he argues, counsel is faced with
      an impossible conflict of interest unless he is allowed to withdraw, and the
      defendant is denied representation unless substitute counsel is appointed.
      However, if a defendant could force the appointment of substitute counsel
      simply by expressing a desire to raise a claim of ineffective assistance of



                                              20
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


      counsel, then the defendant could do so whenever he wished, for whatever
      reason. . . . We decline to adopt such a rule.

State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987); accord State v. Rosborough,

62 Wn. App. 341, 346-47, 814 P.2d 679 (1991).

      This case is also unlike cases that Mr. Cannata cites, such as United States v. Del

Muro, 87 F.3d 1078 (9th Cir. 1996), in which support for the type of ineffective

assistance alleged would come from third parties, outside of the existing court record.

As explained in Del Muro, in that situation the lawyer would have a disincentive to

locate and present third party evidence of his ineffectiveness. Here, the relevant

evidence would come from Mr. Cannata, Mr. Griffin and the prosecutor; and Judge

Triplet made clear that he intended to require evidence from all three. Mr. Cannata

identifies no other evidence of Mr. Griffin’s alleged ineffectiveness that needed to be

located and that Mr. Griffin would have an incentive to ignore.

      This brings us to Mr. Cannata’s argument that Mr. Griffin had an actual conflict of

interest in his role as witness. An actual conflict of interest means a conflict that affected

counsel’s performance, as opposed to a mere theoretical division of loyalties. State v.

Dhaliwal, 150 Wn.2d 559, 570, 79 P.3d 432 (2003) (citing Mickens v. Taylor, 535 U.S.

162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)). To show a violation of the Sixth

Amendment right to conflict-free counsel, the defendant must always demonstrate that

his or her attorney had a conflict of interest that adversely affected his or her



                                             21
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


performance. Id. at 570-71. Mr. Cannata does not meet his burden of proving an actual

conflict that adversely affected Mr. Griffin’s performance.

      Powerful evidence against Mr. Cannata existed apart from anything Mr. Griffin

might say. Mr. Cannata signed three plea statements that disclosed the State’s intent to

seek an exceptional sentence of up to 55 years, and did so under the certification, “My

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

understand them all. . . . I have no further questions to ask the judge.” CP at 35-36, 45,

51-52. Mr. Cannata entered his guilty pleas following exhaustive questioning by Judge

Cooney, during which Mr. Cannata acknowledged his awareness of the maximum

sentence for each crime, and that he was aware of and understood that the State was “free

to recommend up to 55 years in prison . . . the maximum consecutive sentences on

everything.” RP (June 20, 2016) at 7. During the plea withdrawal hearing, the

prosecutor contradicted Mr. Cannata’s claim that Mr. Griffin and Mr. Cannata spoke for

only 20 to 30 minutes on the Sunday afternoon when the plea was negotiated, and

contradicted the claim that Mr. Cannata and Mr. Griffin had no opportunity to speak on

the morning of the plea hearing.

      At the plea withdrawal hearing, the State correctly contended that Mr. Cannata’s

claim to have been misled about his potential sentence operated as a partial waiver of the

attorney-client privilege. The prosecutor predictably wished to question Mr. Griffin.

Judge Triplet himself understandably wanted to hear from Mr. Griffin. Regardless of

                                            22
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


who represented Mr. Cannata at the hearing on the plea withdrawal motion, Mr. Griffin

would have been examined about what he told Mr. Cannata.

      In signing his client’s plea statements, Mr. Griffin had certified, “I have read and

discussed this statement with the defendant. I believe that the defendant is competent

and fully understands the statement.” CP at 36, 45, 52. It was unsurprising, then, that he

testified that he read and discussed the statements with Mr. Cannata and believed that

Mr. Cannata fully understood them. Mr. Griffin did not have the option of providing

false answers when asked by Judge Triplet about the events leading to the entry of Mr.

Cannata’s pleas. See RPC 3.3(a)(1) (“A lawyer shall not knowingly . . . make a false

statement of fact or law to a tribunal.”). Regardless of who represented Mr. Cannata at

the hearing on the plea withdrawal motion, Mr. Griffin would have had to provide

answers he believed to be true.

      Since Mr. Griffin would have been questioned and required to provide truthful

information about what he told Mr. Cannata regardless of who acted as Mr. Cannata’s

counsel at the plea withdrawal hearing, the information Mr. Griffin provided cannot

constitute performance that was adversely affected by a conflict of interest.

      As to everything else that took place in connection with the motion, Mr. Griffin

advocated for Mr. Cannata effectively. He filed a motion to withdraw the pleas on Mr.

Cannata’s behalf that identified the applicable law and Mr. Cannata’s grounds. At the

plea withdrawal hearing, Mr. Griffin announced “our position” that Mr. Cannata’s pleas

                                            23
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


were involuntary. RP (Aug. 25, 2016) at 5. From evidence that Mr. Cannata was

distressed and lacked focus on the morning his pleas were accepted and evidence of a

suicide watch Mr. Cannata was placed on thereafter, Mr. Griffin argued that his client’s

claims of confusion and shock were credible.

       Mr. Cannata fails to identify any aspect of Mr. Griffin’s performance that was

adversely affected by an actual conflict. Instead, he relies on Harell, which predated the

decisions in Mickens and Dhaliwal, and did not involve a defendant’s burden of

demonstrating an actual conflict adversely affecting counsel’s performance. And at

Harell’s plea withdrawal hearing, his defense lawyer declined to assist Harell at all.

Harell, 80 Wn. App. at 803. The trial court’s refusal to permit withdrawal of the plea

was reversed on appeal because Harell was outright denied assistance of counsel at a

critical stage. It was not because he received representation that was adversely affected

by an actual conflict. No actual conflict is shown here.

III.   THE TRIAL COURT DID NOT VIOLATE ER 605, DUE PROCESS, OR THE APPEARANCE
       OF FAIRNESS DOCTRINE

       Finally, Mr. Cannata argues, based on comments the judge made about Mr. Griffin

during the plea withdrawal hearing, that Judge Triplet violated ER 605 and the

appearance of fairness doctrine, and denied him due process.

       As a preface to his oral decision on the plea withdrawal motion, Judge Triplet

stated that Mr. Griffin was unique in how often criminal defendants specifically asked to



                                            24
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


be represented by him. The judge said he viewed Mr. Griffin as an exceptionally careful

and zealous advocate for his clients. Immediately following these comments, however,

the judge stated:

             Now, does that mean that in a particular case that any good attorney
      couldn’t drop the ball? No. But I just want to generally have those things
      on the record regarding my experiences with how Mr. Griffin has practiced
      in my courtroom.

RP (Aug. 25, 2016) at 42. Given that the judge did not rely on those experiences for his

decision, there was no need to put them on the record. In retrospect, given the issue now

raised, it was ill-considered to do so. But the issue on appeal is whether Judge Triplet’s

statement about those experiences resulted in reversible error, not whether they were ill-

considered.

      Turning first to a claim that the comments violated ER 605, that rule states, “The

judge presiding at the trial may not testify in that trial as a witness.” The rule has been

interpreted broadly to provide that “[a] trial judge may rely on his or her own personal

knowledge only if the facts in question rise to the level of indisputably required for

judicial notice under Rule 201.” 5A KARL B. TEGLUND, WASHINGTON PRACTICE:

EVIDENCE LAW AND PRACTICE § 605.2, at 377 (6th ed. 2016). ER 605 itself provides

that “[n]o objection need be made in order to preserve the point.”

      Had Judge Triplet ruled based on an inference from his courtroom experiences that

Mr. Griffin must have been careful in this case, Mr. Cannata would have a viable



                                             25
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


argument. But when Judge Triplet’s oral decision is read as a whole and the context of

his statements about Mr. Griffin is considered, it is clear the judge did not rule based on

an inference from his courtroom experiences.

      Judge Triplet’s complimentary statements about Mr. Griffin’s representation of

criminal defendants in the past were relatively brief, taking up less than 2 full pages of

the hearing transcript. Judge Triplet immediately discounted the importance of his past

experience with Mr. Griffin, pointing out that excellent attorneys still make mistakes.

The judge then proceeded in an explanation that goes on for 13 pages of the hearing

transcript to identify the factual basis for his conclusion that Mr. Cannata’s guilty pleas

were knowing, intelligent and voluntary. The facts he identified for support included

prior proceedings in Mr. Cannata’s case, Judge Cooney’s colloquy, Mr. Cannata’s signed

plea statements, and the information about the events of June 19 and 20 provided by the

prosecutor and Mr. Griffin. During this identification of his factual findings, the judge

never again referred to his courtroom experience with Mr. Griffin. Fairly read, the

judge’s comments about his experience with Mr. Griffin were an observation made but

then set aside. Mr. Cannata does not demonstrate that Judge Triplet relied on those

courtroom experiences when denying the plea withdrawal motion.

      Mr. Cannata argues alternatively that Judge Triplet’s statements about his

favorable experience with Mr. Griffin violated the appearance of fairness doctrine. “The

appearance of fairness doctrine seeks to insure public confidence by preventing a biased

                                             26
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


or potentially interested judge from ruling on a case.” In re Marriage of Meredith, 148

Wn. App. 887, 903, 201 P.3d 1056 (2009). In reviewing a claimed violation, we

presume that a trial judge properly discharges his or her official duties without bias or

prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). To

overcome the presumption, a party “must provide specific facts establishing bias.” Id.

      Mr. Cannata does not provide specific facts establishing a biased ruling on his plea

withdrawal motion.4 During the course of the plea withdrawal hearing, Judge Triplet

was complimentary of both the prosecutor and Mr. Griffin, explaining that he would not

require either to be sworn before hearing their recollection of relevant events.

      Mr. Cannata is essentially arguing here, as he did under ER 605, that Judge Triplet

was relying on his favorable courtroom experience with Mr. Griffin to believe Mr.

Griffin over Mr. Cannata. The argument is not really an appearance of fairness

argument; it is premised on a contention that the judge believed certain facts about Mr.

Griffin, not that he was biased in Mr. Griffin’s favor. If Judge Triplet had been biased in

Mr. Griffin’s favor, he would have granted the relief Mr. Griffin was requesting, which

was that Mr. Cannata be allowed to withdraw his pleas.



      4
          An appearance of fairness objection has been deemed waived when not raised in
the trial court, see State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998), but Mr.
Cannata makes several arguments why we should not apply RAP 2.5(a). Without
necessarily agreeing with his arguments, we exercise our discretion to review the
appearance of fairness issue.

                                            27
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


      In any event, the argument fails for the same reason the essentially identical ER

605 argument fails: fairly read, Judge Triplet’s ruling was based on relevant facts, not on

his prior experience with Mr. Griffin.

      Finally, Mr. Cannata argues that Judge Triplet’s disclosed opinion of Mr. Griffin

deprived him of due process. But he relies only on reasons mirroring his ER 605 and

appearance of fairness contentions. His argument that judges violate due process by

relying on personal knowledge in resolving a legal dispute fails because, as we

determined in addressing ER 605, he does not demonstrate Judge Triplet’s reliance on

personal knowledge. His argument that due process was violated by the judge’s alleged

partiality fails for the further reason that there are only a few extraordinary situations

where due process—as distinguished from common law, statute, or the professional

standards of the bench and bar—requires recusal of a judge. Tatham v. Rogers, 170 Wn.

App. 76, 91-92, 283 P.3d 583 (2012). Mr. Cannata’s plea withdrawal hearing before

Judge Triplet does not fall within those extraordinary situations. See id. at 91 (due

process requires recusal where the judge has a financial interest in the suit, where the

judge was responsible for deciding whether a defendant should be charged (i.e. a “‘one-

man grand jury’ process” (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99

L. Ed. 942 (1955)), and where someone “‘with a personal stake in a [proceeding has]




                                             28
No. 34741-9-III (consol. w/ No. 34742-7-III, No. 34743-5-III)
State v. Cannata


had a significant and disproportionate influence in placing the judge on the case’”

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884, 129 S. Ct. 2252, 173 L.

Ed. 2d 1208 (2009))).

IV.   REMAND FOR RESENTENCING IS REQUIRED BY THE IMPROPER TERM OF THE DOSA
       SENTENCES

      As pointed out by the State, Mr. Cannata did not assign error to the two DOSA

sentences imposed by Judge Triplet. In unsuccessfully arguing that he was misinformed

about the term of a DOSA sentence, however, Mr. Cannata makes the legitimate point

that the sentence the judge ultimately imposed for attempted assault exceeded the

statutorily-permitted term of one-half the midpoint of the standard range. In his reply

brief, Mr. Cannata argues that we should construe his assignment of error to denial of

plea withdrawal motion as presenting an intertwined challenge to the sentences. Reply

Br. at 10-15.

      Good reason exists for construing Mr. Cannata’s assignments of error as

challenging the DOSA sentences for attempted assault and theft of a motor vehicle. We

remand for resentencing, at which any DOSA sentence imposed must be for a term equal

to the midpoint of the standard sentence range as construed in Brooks. We do not reach

the issue of whether consecutive DOSA sentences are legal. It was Mr. Cannata who

asked for consecutive DOSA sentencing, recognizing that Judge Triplet would likely




                                           29
No. 34741-9-111 (consol. w/No. 34742-7-111, No. 34743-5-111)
State v. Cannata


view concurrent DOSA sentencing as too lenient. This is a closer legal issue, and the

parties are free to argue it further at the time of resentencing. 5

       We affirm the convictions but remand for resentencing consistent with this

opm1on.

       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.


                                                      ~d/A;w
                                                      doway,J. ~ .~·
WE CONCUR:




Fearing, J.




       5In this connection, we deny Mr. Cannata's motion to supplement the record on
appeal with information on the Department of Corrections' calculation of Mr. Cannata's
sentence. That information can be brought to the attention of the court at the time of
resentencing.

                                               30
