                                                                                     COURT
                                                                                              FILED
                                                                                                           BLS
                                                                                          DIVISION
                                                                                   2015 APR 21
                                                                                                  4        01
                                                                                   STATE OF
                                                                                   BY
                                                                                          DEPOT
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II


 STATE OF WASHINGTON,                                                  No. 44496 -8 -II


                                 Respondent,


         v.




 JOSE LUIS CASTANEDA ORTIZ,                                      UNPUBLISHED OPINION


                                 Appellant.


       WORSWICK, P. J. —      Jose Ortiz appeals the superior court' s denial of his CrR 4. 2( f) motion


to withdraw his guilty plea to four drug -related counts. Ortiz argues he should be allowed to

withdraw his guilty plea because the statement of defendant on plea of guilty misinformed him

as to the sentence it could legally impose. Ortiz also argues, and the State concedes, that the

superior court erroneously sentenced Ortiz above the statutory maximum on count II, possession

of marijuana with intent to deliver. Because Ortiz was misinformed about a direct consequence


of his plea, his term of community custody, we reverse and remand with instructions to allow

Ortiz to withdraw his plea. Because the superior court erroneously sentenced Ortiz on count II,

and in the event Ortiz chooses to not withdraw his plea, we reverse the sentence on count II and

remand   for resentencing   consistent with   this   opinion.
No. 44496 -8 -II


                                                         FACTS


A.       Charges


         The State   charged    Jose Ortiz with four       counts: (   I) possession of methamphetamine with

intent to deliver,' (   II) possession of marijuana with intent to deliver,2 ( III) possession of

oxycodone with intent to deliver,3 and ( IV) possession of heroin.4 The State charged 11 firearm

sentencing enhancements, including 5 separate 36 -month firearm enhancements on count I.5 The
State   also charged    two   school   bus   route   stop sentencing enhancements6: one on count I and one


on count II.


B.        Ortiz' s Guilty Plea and Sentence

         Ortiz pleaded guilty to all four charged counts with the 11 firearm sentencing

enhancements. As part of the plea deal, the State dropped the two school bus route stop

enhancements. Dropping these enhancements prevented a doubling of the statutory maximum

on counts I and II. See RCW 69. 50. 435( 1).


          Ortiz' s statement of defendant said that the statutory maximum was 120 months for

counts I, II, and III, but did not state the statutory maximum for count IV. The statement listed



1
    Former RCW 69.50. 401 ( 2005); RCW 69. 50. 206( d)( 2).

2
    Former RCW 69. 50. 401; former RCW 69. 50. 204( c)( 14) ( 1993).

3
    Former RCW 69. 50. 401; RCW 69. 50. 206( b)( 1)(             xiv) ( 1993).



4
    Former RCW 69. 50. 4013 ( 2003); former RCW 69. 50. 204( b)( 13).


5 RCW 9. 94A.533( 3)( b).

6 RCW 69. 50. 435( 1)( c).



                                                             2
No. 44496 -8 -II


Ortiz' s mandatory standard range sentences as 120 months for count I, 120 months for count II,

87 -115 months for count III, and 6 months for count IV. The statement said that on each count,

in addition to the confinement period, the superior court would sentence Ortiz to community

custody of "9 to 12 months or up to the period of earned release, whichever is longer" unless the

superior court found substantial and compelling reasons not to do so.

           On August 2, 2011, the superior court accepted Ortiz' s plea. During a colloquy, the

superior court informed Ortiz that pursuant to the State' s recommendation, count I would result

in " 120   months confinement ...     with 12 months of community custody to follow" and count II

would result in " a total of 120 months, with 12 months of community supervision upon your

release."    Verbatim Report of Proceedings at 1012. Following the colloquy, the superior court

accepted Ortiz' s plea to all four counts.


           The   superior court sentenced   Ortiz   on   August 26, 2011.     The superior court imposed


standard range sentences of 120 months on count I, 120 months on count II, 104 months on


count III, and 6 months on count IV. The superior court then imposed 12 months of community

custody on each of counts I —
                            III, but added a notation to the sentence that " under no

circumstances shall the total term of confinement plus the term of community custody actually

served exceed      the statutory   maximum   for    each offense."   Clerk'   s   Papers   at   68. Final judgment


was entered in August of 2011.


C.         2012 Interpretation ofRCW 9. 94A. 701( 9)

           The superior court' s imposition of community custody followed the law as it stood prior

to July 26, 2009. See In Re Pers. Restraint ofBrooks, 166 Wn.2d 664, 672 -73, 211 P. 3d 1023

 2009).     Prior to July 26, 2009, a superior court could impose a standard range sentence of



                                                           3
No. 44496 -8 -II


confinement and community custody that when combined exceeded the offense' s statutory

maximum, as long as the sentence included a Brooks notation directing that the confinement

actually served and community custody, combined, could not exceed the offense' s statutory

maximum.       166 Wn.2d at 672 -73.


          But on July 26, 2009, the legislature enacted RCW 9. 94A.701( 9), 7 which explicitly

required the superior court to reduce the term of community custody if "an offender' s standard

range term of confinement in combination with the term of community custody exceed[ ed] the

statutory maximum for the crime."

          In May of 2012, our Supreme Court decided State v. Boyd, 174 Wn.2d 470, 275 P. 3d 321

 2012). In Boyd, the Court held that for all standard range sentences imposed after RCW


9. 94A.701( 9)' s effective date, the superior court could not impose a standard range sentence of


confinement and community custody that when combined exceeded the offense' s statutory

maximum, even        if the   sentence    included   a   Brooks   notation.   174 Wn.2d at 473.


D.        Ortiz' s Pro Se Motion Challenging Sentence and Plea

          In July of 2012, Ortiz filed a pro se motion in the superior court to withdraw his guilty

plea under CrR 4.2( f)8 ( for manifest injustice) and made many arguments, two of which are

germane to this appeal.




7 This provision was enacted as RCW 9. 94A.701( 8) in 2009 and was recodified at RCW
9. 94A.701( 9) in 2010. State v. Chouap, 170 Wn. App. 114, 127 n.3, 285 P. 3d 138 ( 2012).
8
    CrR 4. 2( f) states in   part: "   The 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....   If

the motion for withdrawal is made after judgment, it shall be governed by CrR 7. 8."



                                                             4
No. 44496 -8 -II


       First, Ortiz argued that the imposition of community custody on each of counts I -III,

when combined with the confinement ordered by the superior court, exceeded the statutory

maximums on counts    I -III in   violation of   RCW 9. 94A. 701( 9).   Ortiz requested that the superior


court remedy this error by maintaining the community custody provision on each count, and

decreasing the amount of confinement to bring his sentences below the statutory maximums.

        Second, Ortiz argued that the statement of defendant falsely informed him that the

superior court could sentence him to community custody on counts I -III that, when combined

with the confinement, exceeded the statutory maximums on counts I -III. Ortiz requested the

superior court remedy this error by allowing him to choose between demanding specific

performance of the plea agreement or withdrawing his plea.

        The State responded to Ortiz' s motion by filing a CrR 7. 8( a) motion to modify Ortiz' s

sentence by removing the 12 months of community custody on counts I -III. In January of 2013,

the superior court granted the State' s motion by removing the 12 months of community custody

on counts I -III while upholding the remainder of Ortiz' s sentence.

        The superior court held a hearing on the remainder of Ortiz' s motion. At the end of the

hearing, the superior court denied Ortiz' s motion, ruling that Ortiz had failed to show a manifest

injustice under CrR 4.2. Ortiz appeals the trial court' s order denying his motion under CrR 4.2.

        After the parties filed briefing in this case, we discovered that the superior court may

have erroneously sentenced Ortiz beyond the statutory maximum on count II. Accordingly, we

requested, and the parties filed, supplemental briefing.




                                                        5
No. 44496 -8 -II


                                                       ANALYSIS


                              I. PROPER COURT RULE AND STANDARD OF REVIEW


         At the superior court, Ortiz moved to withdraw his plea under CrR 4. 2( f)for a manifest


injustice. On appeal, Ortiz argues we should consider the appeal of his CrR 4. 2( f) motion under

CrR 4. 2( f). The State argues we should consider Ortiz' s appeal under CrR 7. 8( b) and not under


CrR 4. 2( f). We agree with the State.


          Under CrR 4. 2( f),the superior 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." But motions to withdraw a plea made after the judgment and sentence have


been    entered are not governed        by   CrR 4.2( f) but   rather " shall   be   governed   by   CrR 7. 8."   CrR


4. 2( f); see State   v.   Lamb, 175 Wn.2d 121, 128, 285 P. 3d 27 ( 2012).              Meeting only CrR4.2( f)'s

manifest injustice standard is insufficient when considering a postjudgment motion to withdraw a

plea.    175 Wn.2d at 129. Thus, the proper inquiry for this court is whether Ortiz' s assignments

of error present grounds        to   withdraw a plea under      CrR 7. 8( b). See State v. Martinez -Leon, 174


Wn.     App.   753, 759, 300 P. 3d 481,       review   denied, 179 Wn.2d 1004 ( 2013).            We address Ortiz' s


arguments under CrR 7. 8( b).


Under CrR 7. 8( b),        a defendant may withdraw a plea based on proof of:

                               1)   Mistakes,     inadvertence,      surprise,        excusable      neglect      or


                   irregularity in obtaining a judgment or order;
                            2) Newly discovered evidence which by due diligence could not
                   have been discovered in time to move for a new trial under rule 7. 5; •
                           3) Fraud ( whether heretofore denominated intrinsic or extrinsic),
                   misrepresentation, or other misconduct of an adverse party;
                               4) The judgment is void; or
                               5) Any other reason justifying relief from the operation of the
                   judgment.
No. 44496 -8 -II


          This court ordinarily reviews a superior court' s denial of a CrR 7. 8( b) motion for relief

from judgment for abuse of discretion. Martinez -Leon, 174 Wn. App. at 759. A superior court

abuses its discretion when it adopts a view that no reasonable person would take, applies the


wrong legal standard, or relies on unsupported facts. Salas v. Hi -Tech Erectors, 168 Wn.2d 664,

668 -69, 230 P. 3d 583 ( 2010).        But when the superior court bases an otherwise discretionary

decision solely on application of the law to particular facts, the issue is one of law, which this

court reviews de novo. Martinez -Leon, 174 Wn. App. at 759.

                       II. MISINFORMATION IN THE STATEMENT OF DEFENDANT


          Ortiz argues we should allow him to withdraw his plea due to the misinformation in the

statement of defendant. We agree.9

          Under due process, a defendant' s plea must be knowing, intelligent, and voluntary. State

v.   Mendoza, 157 Wn.2d 582, 587, 141 P. 3d 49 ( 2006).            A guilty plea is involuntary whenever it

is " based on misinformation regarding a direct consequence of the plea, regardless of whether

the actual sentencing    range   is lower   or   higher than   anticipated."   157 Wn. 2d   at   591.   Mandatory

community custody is      a   direct   consequence of a plea.      157 Wn.2d    at   588. Where a plea


agreement is based on misinformation, the defendant generally may choose specific performance

of the agreement or withdrawal of the guilty plea. State v. Walsh, 143 Wn.2d 1, 8 -9, 17 P. 3d 591

 2001).


          The statement of defendant on plea of guilty told Ortiz he would be sentenced to 9 -12

months of community custody in addition to the statutory maximum, when such a sentence


9 The State argues that Ortiz waived this argument by failing to raise it at the hearing on his
motion to withdraw his guilty plea. We hold Ortiz sufficiently raised this issue in his motion to
withdraw his guilty plea for us to consider it.

                                                          7
No. 44496 -8 -II


violated   RCW 9. 94A.701( 9). See Boyd, 174 Wn.2d               at   472 -73.    In addition, the trial court told


Ortiz that he would be sentenced to community custody in addition to the statutory maximum.

This misinformed Ortiz about community custody, which is a direct consequence of his plea.

Mendoza, 157 Wn.2d at 587. The punishment Ortiz would receive under the correct statutory

maximum, 120 months of confinement, is less than what he would receive under the erroneous

                                                                                                                10
sentencing information: 120            months confinement plus        9 - 12   months of   community custody.


Thus, we hold that misinformation regarding community custody warrants providing Ortiz the

choice to withdraw his plea.

                                       III. ERRONEOUS SENTENCE ON COUNT II


          Ortiz argues, and the State concedes, that by sentencing Ortiz to 120 months of

confinement on count II, the superior court erroneously exceeded that offense' s statutory

maximum. We accept the State' s concession.


          Whether a sentencing court has exceeded its statutory authority is a question of law we

review    de   novo.   State    v.   Mann, 146 Wn.   App. 349,   357, 189 P. 3d 843 ( 2008). A challenge to a


sentence may be raised for the first time on appeal, and we have the duty and power to correct an

erroneous sentence upon its discovery. State v. Julian, 102 Wn. App. 296, 304, 9 P. 3d 851

 2000).




10 The State argues that this did not qualify as misinformation because Ortiz' s 2011 plea
correctly informed Ortiz of the law as it stood at that time, prior to our Supreme Court' s 2012
holding    in Boyd that Ortiz' s        sentence violated   RCW 9. 94A. 701( 9).       But Ortiz pleaded guilty in
2011, and Boyd' s holding interprets a statutory requirement that has applied to all sentences
imposed after RCW 9. 94A.701( 9)' s 2009 enactment. See Boyd, 174 Wn.2d at 472 -73. The
State'   s argument    fails.
No. 44496 -8 -II


        As discussed above, possession with intent to deliver marijuana has a statutory maximum

of 60 months of confinement. Because the superior court sentenced Ortiz to 120 months for this


offense, it exceeded the offense' s statutory maximum. Thus, we reverse Ortiz' s sentence.

        We reverse the superior court' s denial of Ortiz' s motion and remand with instructions for


the superior court to provide Ortiz with an opportunity to choose whether to withdraw his plea.11

We also reverse Ortiz' s sentence on count II and remand for resentencing on that count.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




11 Ortiz argues his plea was involuntary because the State coerced him into pleading guilty by
promising to give Ortiz' s son early release in exchange for Ortiz' s guilty plea. Because we hold
that Ortiz may withdraw his plea due to misinformation, we do not consider this argument.



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