     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                        o




STATE OF WASHINGTON,                                   No. 69863-0-1            5- pv,
                       Respondent,                     DIVISION ONE       ro I^f
                v.                                     UNPUBLISHED OPINION ?| f„r
TIMOTHY LOWELL ASHE,                                                               CO       '*


                      Appellant.                       FILED: April 22, 2013


          Appelwick, J. — Ashe appeals the denial of his postjudgment motion to withdraw

his plea of guilty. He argues that the trial court should have granted the motion because

the plea was premised upon a mistake regarding his eligibility to serve his sentence on

work crew. Ashe was adequately informed of the consequences of his guilty plea. We

affirm.

                                          FACTS

          In 2010, the State charged Timothy Ashe1 with three counts of assault in the
second degree. Pursuant to a plea agreement, the State dismissed two of the counts

and Ashe pleaded guilty to the remaining count. During the plea colloquy, the trial court

questioned Ashe regarding his understanding of the guilty plea and its consequences.

Ashe confirmed that he had "thoroughly gone through" and understood the statement of

defendant on plea of guilty. The plea statement listed, inter alia, the core rights given

up by pleading guilty, the standard and maximum sentence range, and other


     1 The information and other documents reflect the appellants name as "Ash."
However, in his statement on plea of guilty Ashe corrected the misspelling by adding a
handwritten "E" at the end of his name. He then signed the plea agreement and the
judgment and sentence with the name "Ashe." We have corrected the spelling of his
name accordingly.
No. 69863-0-1/2




consequences of a felony conviction. In signing the statement, Ashe also agreed that "I

make this plea freely and voluntarily" and that no one caused him to plead guilty by

threatening or promising him anything other than what was in the plea agreement. The

judge elicited verbal confirmation from Ashe that he was "freely and voluntarily entering

this plea" with a "full understanding of the consequences." The court accepted Ashe's

plea after finding that there was a factual basis to support a finding of guilty.

       The court then moved immediately to sentencing. In accordance with the terms

of the plea agreement, the State recommended a sentence of three months to be

served on work crew, with credit for one day served, plus restitution and fees. The court

accepted the recommendation and ordered Ashe to serve twelve months of community

custody. When Ashe reported for work crew, he was deemed unqualified for medical

reasons and removed from the crew. He later filed a motion for withdrawal of guilty plea

with the trial court. He asked the trial court to grant the motion pursuant to its authority

under CrR 7.8(b), which permits a trial court to relieve a party from a final order due to a

mistake in obtaining the order or for any other reason justifying relief. He asserted that

the plea agreement was based on a mistake or reliance on misinformation, because

both parties believed at the time the agreement was made that Ashe would be able to

serve on work crew.


       After a hearing on the matter, the trial court denied the motion, saying that there

was insufficient basis for withdrawal and that the judgment made clear that the work

crew sentence was conditioned upon eligibility and approval.           Ashe made a verbal

motion to the trial court requesting reconsideration of the denial on the grounds that the

contents of the judgment were irrelevant to the issue of the expectations and mutual
No. 69863-0-1/3




mistake of the parties during the plea bargaining. The trial court denied the motion to

reconsider.


      While Ashe's motion to withdraw the plea of guilty was under consideration, the

trial court converted the sentence to 90 days confinement with credit for two days

served, including the day he reported for and was disqualified from work crew. Ashe

appeals the denial of his motion to withdraw the plea of guilty and the denial of the

motion to reconsider.


                                      DISCUSSION

       Ashe argues that the trial court erred in denying his postjudgment motion to

withdraw a plea of guilty, because the parties were "mutually mistaken as to the viability

of a fundamental part of the plea agreement."        He claims he was "not adequately

informed about the sentencing consequences of his plea, and therefore the plea was

involuntary."

       A guilty plea violates constitutional due process when it is not made knowingly,

voluntarily, and intelligently. State v. Robinson, 172 Wn.2d 783, 794, 263 P.3d 1233

(2011). There must be an affirmative showing that the plea was made intelligently and

voluntarily. State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980). CrR 4.2(d)

institutes safeguards to protect these constitutional mandates by requiring trial courts to

take affirmative steps to determine that a guilty plea is made "voluntarily, competently

and with an understanding of the nature of the charge and the consequences of the

plea" and that there is a factual basis for the plea. In order for a guilty plea to be

knowing and voluntary, a defendant must be informed of all direct consequences but

need not be informed of consequences that are merely collateral. Barton, 93 Wn.2d at
No. 69863-0-1/4




305.   A consequence is direct if it "represents a definite, immediate and largely

automatic effect on the range of the defendant's punishment." ]d.

       We review a trial court's decision on a motion to withdraw a plea of guilty for

abuse of discretion.   State v. Bao Shenq Zhao. 157 Wn.2d 188, 197, 137 P.3d 835

(2006). A court abuses its discretion if its decision is manifestly unreasonable or based

upon untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d

615 (1995). A court's decision is manifestly unreasonable if it is outside the range of

acceptable choices, given the facts and the applicable legal standard. In re Marriage of

Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997). A court bases its decision on

untenable reasons if it applies an incorrect standard or the facts do not meet the

requirements of the correct standard. ]d. The untenable grounds basis applies if the

factual findings are unsupported by the record. Id.

       A motion to withdraw a plea of guilty after judgment is controlled by CrR 7.8.

State v. Lamb. 175 Wn.2d 121, 128, 285 P.3d 27 (2012) ("'If the motion for withdrawal

[of a plea of guilty] is made after judgment, it shall be governed by CrR 7.8"') (quoting

CrR4.2(f))). Ashe bases his claim on mistake under CrR 7.8(b)(1).2

      2 CrR 7.8(b)(1) through (5) lists the reasons for which a trial court may grant a
motion to withdraw a plea of guilty after judgment. The relevant parts of that rule state:

              (b) On motion and upon such terms as are just, the court may
       relieve a party from a final judgment, order or proceedings for the following
       reasons:
               (1) Mistakes, inadvertence, surprise,      excusable    neglect    or
       irregularity in obtaining a judgment or order;

              (5) Any other reason justifying relief from the operation of the
       judgment.

CrR 7.8.
No. 69863-0-1/5




      The record indicates that Ashe was aware that serving his sentence on work

crew was conditioned upon his eligibility to do so.        While making the sentencing

recommendation, the prosecutor said, "[l]f he's able to and that - in doing that on work

crew was - it would be sufficient a punishment."        In asking the court to follow the

recommendation, defense counsel said, "[Ashe] indicated to me that he felt he'd be able

to do the work crew. There was no problem with that. He's been a hard working man

whose [sic] had a business here and he continues to work hard and will take the time to

make sure he gives back to this community through the work crew time that he's - if

Your Honor's [sic] allowed him to do that here today." These statements reflect an

understanding by both parties that serving his sentence on work crew was conditioned

on eligibility and ability. Then, the judgment and sentence was entered on a standard

"Felony Judgment and Sentence - Jail One Year or Less" form.                In the section

regarding partial confinement options, including work crew, the form read, "The

defendant may serve the sentence, ifeligible and approved, in partial confinement in the

following programs. . . ." No objection was made to this language and no motion was

made to withdraw the plea at that time. The plea agreement clearly provided that jail

time was avoided only if he was eligible for and able to participate in the work crew. We

hold that Ashe's plea was knowing, voluntary, and intelligently made because he was

adequately informed of the direct consequences of his plea.

      Ashe bases his appeal on several cases where plea withdrawal was an available

remedy when a plea was based on a mutual mistake of the parties. But, the question in

this case is not whether withdrawal of a plea is an available remedy, but rather whether

the trial court abused its discretion in not granting withdrawal in this case. In several of
No. 69863-0-1/6




the cases Ashe cites, the parties agreed that the pleas were invalid. State v. Miller. 110

Wn.2d 528, 531, 756 P.2d 122 (1988), overruled on other grounds by State v. Barber.

170 Wn.2d 854, 248 P.3d 494 (2011); State v. Bisson. 156 Wn.2d 507, 509, 130 P.3d

820 (2006); Barber. 170 Wn.2d at 858. In both State v. Skiqgn. 58 Wn. App. 831, 838,

795 P.2d 169 (1990), and State v. Wilson. 102 Wn. App. 161, 169-170, 6 P.3d 637

(2000), the courts held that specific enforcement of the plea agreements would be

unjust. The holdings were based on the rule of Miller. Skiggn, 58 Wn. App. at 836;

Wilson. 102 Wn. App. at .169-170.       Miller held that, when a plea of guilty was not

knowingly made, the defendant could choose between specific enforcement of a plea

agreement or withdrawal of a guilty plea, unless there were compelling reasons not to

allow the remedy.3      110 Wn.2d at 535.       Skiggn and Wilson both permitted the

defendants to withdraw their guilty pleas because their remedy of choice, specific

enforcement, would have been unjust.        None of these cases held that a trial court

abused its discretion in denying a motion to withdraw a guilty plea.

      Ashe analogizes to one case, State v. Moore, 75 Wn. App. 166, 173, 876 P.2d

959 (1994), abrogated on other grounds by In re Pers. Restraint of Carrier. 173 Wn.2d

791, 272 P.3d 209 (2012), in which the court held, at least implicitly, that a guilty plea

was invalid and therefore allowed the defendant to withdraw the plea. However, we do

not extend the reasoning of Moore to this case. In Moore, the court allowed withdrawal

of a guilty plea "[b]ecause it is apparent that [defendant], like Miller, did not understand

all the consequences of his guilty plea." jd. However, the parties in Miller agreed that

3
  The Washington Supreme Court has since overruled this part of Miller. Specific
performance is now available only in cases where the State breaches a promise made
in a plea agreement. Barber, 170 Wn.2d at 874.
No. 69863-0-1/7




the defendant was not informed of the sentencing consequences of his plea, and that

case concerned only the available remedy. Moore is not applicable. Ashe knew that jail

was the sentence if he did not participate in the work crew. He knew that he had to be

able to do the work. He knew the consequence. He knew the condition. He mistakenly

assumed he necessarily met the condition.

       The trial court did not abuse its discretion in refusing to permit Ashe to withdraw

his plea of guilty.

       We affirm.




WE CONCUR:




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