                                                                FILED 


                                                           MAY 23,2013 


                                                   In the Office of the Clerk of Court 

                                                 W A State Court of Appeals, Division III 


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30283-1-III
                                             )
                           Respondent,       )
                                             )
        v.                                   )
                                             )         UNPUBLISHED OPINION
CHRISTOPHER RANDALL BORING,                  )
                                             )
                           Appellant.        )

      KORSMO,   C.J. - Christopher Boring argues that his guilty plea was invalid

because trial counsel failed to inform him about the potential sentencing consequences of

pleading guilty to crimes with aggravating circumstances. Concluding that he was aware

of the sentencing consequences, we affirm.

                                   BACKGROUND

      Mr. Boring worked as a supervisor at Hewes Marine Company (Hewes), a family-

owned business that manufactures and sells aluminum fishing boats in Colville. He had

worked there for a number of years before he was caught selling Hewes's aluminum to a

recycling company in Spokane. It was alleged that he sold more than $200,000 worth of

aluminum between August 2007 and August 2010.
No. 30283-1-III
State v. Boring

      The State charged Mr. Boring with aggravated first degree theft and aggravated

first degree trafficking in stolen property.] Both crimes were alleged to be major

economic offenses because

      [they] involved multiple victims or multiple incidents per victim; [they]
      involved ... actual monetary loss substantially greater than typical for the
      offense; [t]hey involved a high degree of sophistication or planning or
      occurred over a lengthy period of time; or [t]he defendant used his or her
      position of trust, confidence, or fiduciary responsibility to facilitate the
      commission of the current offense.

Clerk's Papers (CP) at 2.

      Mr. Boring agreed to plead guilty to the aggravated charges in exchange for the

State's agreement to recommend 48 months in prison and not file additional charges. At

the plea hearing, the judge asked Mr. Boring whether he had gone over the plea

agreement with his attorney, whether he had any questions, whether he understood that

he was waiving certain constitutional rights, and if he understood that the court would

sentence him. Mr. Boring answered yes to each question before the plea was accepted.

      The prosecutor recommended 48 months' incarceration at sentencing. The judge

noted that "[t]his is the largest-by duration, number of criminal occurrences and dollar

amounts-theft and trafficking case in [that jurisdiction] over the last twenty years," and

that "an exceptional sentence will promote respect for the law and is commensurate with


       I Mr. Boring's wife, Jody Boring, was found guilty of second degree trafficking in
stolen property at trial. Her appeal, cause no. 30280-6-III, is linked with this case for
consideration.
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No. 30283-1-111
State v. Boring

punishments imposed in other embezzlement cases over those years." CP at 151-52. The

judge concluded that justice would be best served by imposing an exceptional sentence of

72 months.

       Mr. Boring timely appealed to this court.

                                       ANALYSIS

       Mr. Boring alleges his trial counsel performed ineffectively by not warning him

about the possibility of being sentenced to more than the 48 months the plea agreement

recommended and, therefore, he should be allowed to withdraw his plea to avoid a

manifest injustice.

       Due process requires that a guilty plea be knowing, voluntary, and intelligent. In

re Pers. Restraint ofIsadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A defendant may

withdraw a guilty plea if necessary to correct a manifest injustice. Id. at 298. There are

four nonexclusive indicia that can independently establish a manifest injustice: (1) the

plea was not ratified by the defendant, (2) the plea was not voluntary, (3) effective

counsel was denied, or (4) the plea agreement was not honored. State v. Marshall, 144

Wn.2d 266,281,27 P.3d 192 (2001), abrogated by State v. Sisouvanh, 175 Wn.2d 607,

290 P.3d 942 (2012).

       There is a strong presumption of attorney competence. State v. Jamison, 105 Wn.

App. 572, 590,20 P.3d 1010 (2001). The appellant must show that (1) his counsel's

performance fell below an objective standard of reasonableness and (2) counsel's poor

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No.30283-1-III
State v. Boring

work prejudiced him, which in the context of guilty pleas means that but for counsel's

deficient performance, he would not have entered a guilty plea. Strickland v.

Washington, 466 U.S. 668,688, 104 S. Ct. 2052, 801. Ed. 2d 674 (1984); State v.

Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990).

       At the plea hearing, the court engaged in a colloquy with Mr. Boring to determine

whether his change of plea was knowing, voluntary, and intelligent. The court explained

the Statement of Defendant on Plea of Guilty. The court went on to explain the

sentencing options, stating:

       Now the penalty here we already talked about this a little bit but would be 2
       to 6 months on Count One and 6 to 12. That's the standard range we call it
       and those would run concurrently but here there's a unique feature that
       there are some aggravating factors that this is a uh large scale economic
       offense, major economic offense it's called so that means that uh in this
       instance uh the Court could uh theoretically uh enter a sentence up to the
       statutory maximum. Now these are Class B felonies?

             So that would be then ten (10) years uh or one hundred twenty (120)
       months. You understand that?

Report of Proceedings (Jul., 22, 2011) at 12. Mr. Boring responded that he understood,

and later told the court he felt like he had had the benefit of counsel, been able to

consider his options, and this was what he wanted to do.

       Additionally, the Statement of Defendant on Plea of Guilty recites: "The judge

does not have to follow anyone's recommendation as to sentence .... The judge may also

impose an exceptional sentence above the standard range if the State has given notice that


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No. 30283-1-111
State v. Boring

it will seek an exceptional sentence, the notice states aggravating circumstances upon

which the requested sentence will be based, and facts supporting an exceptional sentence

are proved beyond a reasonable doubt to a unanimous jury, to a judge if 1 waive jury, or

by stipulated facts." CP at 68-69. Mr. Boring signed this statement, indicating his

lawyer explained the statement and that he understood the entire statement.

       The record strongly establishes that Mr. Boring was advised, both in writing and

orally, that his pleas of guilty could potentially result in a sentence of up to 10 years per

count. Furthermore, Mr. Boring has presented no evidence, other than his bare

assertions, that trial counsel did not explicitly warn him that he could be given a sentence

longer than 48 months ifhe pleaded guilty. Mr. Boring has failed to show that his trial

counsel was ineffective and therefore has not shown a manifest injustice requiring

withdrawal of his plea.

Statement ofAdditional Grounds

       Mr. Boring also filed a Statement of Additional Grounds (SAG) in which he

argues five grounds for a new sentence or withdrawal of his plea. He claims he was

entitled to two different statutory sentencing alternatives, he received ineffective

assistance of counsel, his Sixth Amendment right to a jury was violated, and his sentence

was not in accordance with the sentencing grid pursuant to RCW 9.94A.51O. We will

briefly address each of these claims.



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No. 30283-1-111
State v. Boring

       The first-time offender waiver is found in RCW 9.94A.650, which gives a

sentencing court the ability to waive the standard range sentence for nonviolent offenders

convicted of a felony for the first time. Generally, a party cannot appeal a trial court's

refusal to impose an exceptional sentence or to use a sentencing alternative. E.g., State v.

Friederich-Tibbets, 123 Wn.2d 250, 252,866 P.2d 1257 (1994) (exceptional sentence);

State v. Frazier, 84 Wn. App. 752, 753,930 P.2d 345 (1997) (special sexual offender

sentencing alternative). However, appellate review is permitted when a court either

refuses to exercise discretion or relies on an impermissible basis for refusing to impose an

exceptional sentence below the standard range. State v. Garcia-Martinez, 88 Wn. App.

322,330,944 P.2d 1104 (1997). When a trial court that has considered whether there is a

basis to impose an exceptional basis and determined that there is no legal or factual basis

for an exceptional sentence, it has exercised its discretion and the defendant may not

appeal that ruling. State v. McGill, 112 Wn. App. 95, 100,47 P.3d 173 (2002).

       At the sentencing hearing, both the State and defense counsel addressed the first-

time offender waiver. The court considered the first-time waiver alternative, indicating

that although defense counsel did not specifically request the waiver, the court would

have declined to apply it in any event because it was not appropriate here. The court

clearly considered the option, exercised its discretion, and Mr. Boring may not appeal

that ruling.



                                              6

No. 30283-1-111
State v. Boring

       Mr. Boring also claims he qualified for the parenting sentencing alternative and

the trial court erred by not sentencing him under that alternative. The parenting

sentencing alternative is found in RCW 9.94A.655, which provides in part:

              (l) An offender is eligible for the parenting sentencing alternative if:
                     (a) The high end of the standard sentence range for the
              current offense is greater than one year.

       Mr. Boring did not qualify for this alternative because the standard range for the

first degree theft count was zero to three months and the standard range for the first

degree trafficking count was six to twelve months. Since the high end of the standard

range was not greater than one year for either of these offenses, Mr. Boring was not

entitled to this sentencing alternative and the trial court did not err.

       Mr. Boring argues next that he received ineffective assistance of counsel because

counsel failed to discuss appeal procedures and withdrew six days after sentencing,

leaving Mr. Boring to appeal pro se with no knowledge of the process. However, Mr.

Boring has failed to show counsel's performance was deficient for withdrawing at that

time, or that he was prejudiced in any way.

       Mr. Boring also claims that under RCW 9.94A.535(3)(d) and Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), he should have

been sentenced in front ofajury of his peers to determine whether an exceptional

sentence was justified. Mr. Boring is correct that normally an exceptional sentence may

be imposed on the grounds that the offense was a major economic offense only if the

                                               7
No.30283-1-III
State v. Boring

aggravating factor is found by a jury. However, he pleaded guilty to the aggravated

charges. Ajury finding is not necessary where the defendant pleaded guilty to the

aggravating circumstances. RCW 9.94A.537(3).

      Finally, Mr. Boring asserts his sentence was not in accordance with the standard

sentencing grid. RCW 9.94A.SIO. His argument ignores the fact that he pleaded guilty

to aggravating circumstances on each count which allowed the court to impose an

exceptional sentence above the standard range.

      The arguments presented in the SAG are without merit.

      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.



                                                              Korsmo, C.J.

WE CONCUR:




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