       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                          )      No. 71313-2-1                   tun

                       Respondent,
                                          )      DIVISION ONE
               v.



MARLON ROBERTO ALDRIDGE,                  )      UNPUBLISHED OPINION
                                                                                   c5
                       Appellant.         )      FILED: March 16, 2015             i   •••




       Becker, J. — A defendant who pleads guilty to first degree assault is

subject to a five-year mandatory minimum sentence when he admits that he shot

the victim with force and means likely to produce great bodily harm or death.

The facts so admitted are the equivalent of the facts the State would have to

prove at trial in order to justify the mandatory minimum that applies to a

defendant who, in the language of the pertinent statute, "used force or means

likely to result in death."

       Late one night in July 2012, two men got into a fight in downtown Seattle.

Appellant Marlon Aldridge approached them, and one of the men struck Aldridge

in the face and knocked him down. Aldridge hit his head on the curb. Moments

later, Aldridge got up, followed the man, and shot him in the groin. The State

charged Aldridge with one count of first degree assault with a firearm

enhancement. Because Aldridge had three prior felony convictions for controlled
No. 71313-2-1/2



substances (the most recent in 2005), the State also charged him with one count

of unlawful possession of a firearm.

      After a jury was selected, the State offered to dismiss the firearm

enhancement if Aldridge pleaded guilty and agreed to make a joint

recommendation for a high-end standard range sentence of 171 months.

Aldridge accepted the offer.

       Before sentencing, Aldridge—represented by new counsel—moved to

withdraw his plea on the ground that he was misinformed that a five-year

mandatory minimum applies automatically to assault in the first degree. The trial

court denied the motion. Aldridge appeals.

       Due process requires that a defendant's guilty plea be knowing, voluntary,

and intelligent. CrR 4.2(d); In re Pers. Restraint of Isadore. 151 Wn.2d 294, 297,

88 P.3d 390 (2004). Once a guilty plea is accepted, the trial court may allow

withdrawal of the plea only to correct a manifest injustice. CrR 4.2(d). An

involuntary guilty plea constitutes a manifest injustice. State v. Wakefield, 130

Wn.2d 464, 472, 925 P.2d 183 (1996). A plea is involuntary where the defendant

is misinformed of a direct consequence of his plea. State v. Mendoza, 157

Wn.2d 582, 584, 141 P.3d 49 (2006). A mandatory minimum sentence is a direct

consequence of a guilty plea. Wood v. Morris, 87 Wn.2d 501, 513, 554 P.2d

1032 (1976). The above-cited case law establishes that Aldridge is entitled to

withdraw his plea if he was misinformed that he was subject to a mandatory

minimum sentence.
No. 71313-2-1/3



       It is undisputed that Aldridge was informed that his plea would necessarily

subject him to a mandatory minimum sentence of five years. This is evident from

the testimony given at the plea withdrawal hearing by the attorney who

represented Aldridge at the time he entered the plea. He was asked if he

informed his client "that assault one has a mandatory minimum sentence of at

least five years of confinement?," and he answered, "Correct." He then testified

that he did not tell Aldridge that not all convictions for first degree assault result in

a mandatory minimum sentence:

       Q. And did you explain to Mr. Aldridge that that is not—that is not
          an absolute state of affairs? That in other words the statutory
          minimum period of confinement attaches only in certain cases
          when certain findings are made?
       A.   I did not do that in this case because I believe those
            circumstances do exist.


       IfAldridge was misinformed, he does not have to establish that the

information he was given was material to his decision to plead guilty. Mendoza,

157 Wn.2d at 590. The court does not "engage in a subjective inquiry into the

defendant's risk calculation and the reasons underlying his or her decision to

accept the plea bargain." Mendoza, 157 Wn.2d at 590-91. Although it may

seem that concern about a five-year mandatory minimum is pointless in the

context of an agreed recommendation for a 171-month sentence, the State does

not make that argument. The State forthrightly acknowledges that "even though

Aldridge was aware that he would serve more than five years, the five-year

mandatory minimum has additional consequences"—namely, the offender does

not earn early release credit during the five-year period. RCW 9.94A.540(2).
No. 71313-2-1/4



       A five-year mandatory minimum sentence applies to offenders convicted of

first degree assault only under two conditions: where the offender "used force or

means likely to result in death or intended to kill the victim." RCW 9.94A.540(1)(b).

This sentencing statute "indicates that the legislature intended to increase the

punitive requirement for certain assaults that are characterized by unusually (within

the world of assault) violent acts or a particularly sinister intent." In re Pers.

Restraint of Tran, 154 Wn.2d 323, 329-30, 111 P.3d 1168 (2005). If the

prosecution of Aldridge had proceeded to trial, the State would have had to prove

at least one of these conditions to the finder of fact in order to obtain a mandatory

minimum sentence. The State acknowledges these principles as the starting point

of the analysis.

       Aldridge argues that the mandatory minimum cannot be applied to him

because there was no jury finding that he either "used force or means likely to

result in death" or "intended to kill the victim." But as the State points out, Aldridge

waived the right to jury fact-finding by pleading guilty. The question is whether,

given the facts that Aldridge admitted by pleading guilty, a mandatory minimum

sentence was a direct consequence of his plea.

       Aldridge pleaded guilty to assault in the first degree "as charged in the

information." The information specifically alleged that Aldridge assaulted the

victim with "force and means likely to produce great bodily harm or death."

"Great bodily harm" is defined, among other things, as "bodily injury which

creates a probability of death." RCW 9A.04.110(4)(c). The words "a probability

of death" mean the same thing as "likely to result in death." By admitting that he
No. 71313-2-1/5



assaulted the victim with force and means likely to produce either great bodily

harm (bodily injury which creates a probability of death) or death itself, Aldridge

necessarily admitted that he "used force or means likely to result in death"—the

fact which, according to the statute, triggers a mandatory minimum sentence.

       Because Aldridge was correctly informed that the five-year minimum

would be a consequence of his plea, the trial court did not err by refusing to

permit him to withdraw it.

       In his reply brief, Aldridge asserts that the mandatory minimum was not, in

fact, applied to him in the judgment and sentence. Because this argument is

made for the first time in his reply brief, we need not consider it. Cowiche

Canvon Conservancv v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). In

any event, Aldridge does not explain what bearing the actual judgment and

sentence have on the issue of the voluntariness of his plea.

       Aldridge also argues that remand for resentencing is required because the

trial court erroneously believed it had no discretion to deviate from the agreed

recommendations of the parties at sentencing.

       The court imposed the 171-month sentence both parties had agreed to

recommend after hearing how deeply Aldridge regretted the plea:

       Okay. Thank you, sir. Okay, well I appreciate everybody's
       thoughts about this. I feel really constrained, though, to follow the
       parties' agreement and so I will sentence in accordance with the
       parties' agreement of 171 months on count 1 and 48 months and
       count 2, followed by a period of 36 months of community service.

       A trial court fails to exercise sentencing discretion when it erroneously

believes it has none. State v. McGill, 112 Wn. App. 95, 98-99, 47 P.3d 173
No. 71313-2-1/6



(2002). The court's remarks quoted above, however, do not indicate a belief that

a court must always impose the sentence that the parties to a plea agreement

have agreed to recommend. We are confident that the experienced trial judge

knew he could impose a different sentence if he found there was a good reason

to do so.


       Affirmed.




WE CONCUR:




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