                                                                                                               FILED
                                                                                                          COURT OF /kPPEALz
                                                                                                             DIVISION11 "
                                                                                                     2015AP. 34 AM 9: 51

    IN THE COURT OF APPEALS OF THE STATE OF
                                                                                   WASHINGTO
                                            DIVISION II

 STATE OF WASHINGTON,                                                        No. 45392 -4 -II


                                    Respondent,                             Consolidated with
                                                                      Nos. 45399 -1 - II; 45402 -5 - II
          v.



 JAMES JOHN CHAMBERS,                                                 UNPUBLISHED OPINION


                                    Appellant.


          WoRSwicx, J. —      James John Chambers moved under CrR 7. 8 to withdraw his 1999


guilty pleas to several charges that were included in an indivisible plea agreement under three

different cause numbers, which motion the trial court denied. Chambers appeals, asserting that

because his pleas are facially invalid, the trial court erred by denying his motion. In a statement

of additional grounds   for   review ( SAG),    Chambers argues that the trial court failed to comply

with remand instructions when denying his CrR 7. 8 motion to withdraw his guilty pleas. We

affirm.



                                                    FACTS


          In 1999, Chambers entered into an indivisible plea agreement under three different Pierce

County Superior Court cause numbers. State v. Chambers, 176 Wn.2d 573, 577 -78, 583, 293

P. 3d 1185 ( 2013).   In cause number 99 -1- 00817 -2, Chambers pleaded guilty to unlawful

possession of a controlled substance with intent to deliver, unlawful manufacturing of a

controlled substance, and     two   counts of   first degree   unlawful possession of a   firearm ( February
No. 45392 -4 -II
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crimes). 1 Chambers, 176 Wn.2d at 577 -78. In cause number 99 -1- 02235 -3, Chambers pleaded


guilty to unlawful       possession of a controlled substance (      May    crime).   Chambers, 176 Wn.2d at


578. Finally, in cause number 99 -1- 05307 -1, Chambers pleaded guilty to failure to remain at an

injury accident, unlawful possession of a firearm, unlawful manufacture of a controlled

substance, and two counts of first degree possession of stolen property (November crimes).

Chambers, 176 Wn.2d at 578 -79.


         In 2008, Chambers filed a personal restraint petition with this court that challenged the


validity   of   his   sentence with respect   to his   February   crimes.   Chambers, 176 Wn.2d at 579; In re


Pers. Restraint of Chambers, No. 38074 -9 -1I, ( Wash. Ct.             App. Jan. 15, 2009). We granted

Chambers' s 2008 petition in part, holding that his judgment and sentence was invalid on its face

as to his convictions for two counts of first degree unlawful possession of a firearm. Order


Granting Petition in Part, In re Chambers, No. 38074 -9 -II. Our Supreme Court accepted

discretionary review from our order granting Chambers' s petition in part and ordered the trial

court to consider withdrawing Chambers' s guilty pleas as to all his February crimes. In re Pers.

Restraint of Chambers, 171 Wn.2d 1035 ( 2009).

           On remand, the trial court granted Chambers' s motion to withdraw his guilty pleas to all

his   February    crimes. See State    v.   Chambers, 163 Wn.       App.    54, 60, 256 P. 3d 1283 ( 2011),   aff'd,

176 Wn.2d 573 ( 2013).          Additionally, " [b] ecause the State had destroyed the evidence to support




1 For clarity, and for consistency with prior decisions addressing Chambers' s plea agreement,
this opinion will hereafter refer to Chambers' s convictions under cause number 99 -1- 00817 -2 as
 February crimes "; conviction under cause number 99 -1- 02235 -3 as " May crime "; and
convictions under cause number 99 -1- 05307 -1 as " November crimes."



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the   February   crimes,   the trial court dismissed the case      on   the State'   s motion."   Chambers, 163


Wn. App. at 60. The State appealed the trial court' s order granting Chambers' s motion to

withdraw his guilty pleas to his February crimes, arguing that Chambers' s guilty pleas to those

crimes were part of an indivisible agreement to plead guilty to his May and November crimes.

Chambers, 163 Wn.          App.   at   60 -61.   We agreed with the State, reversed the trial court' s order


granting Chambers' s motion to withdraw his guilty pleas to the February crimes, and remanded

 for further proceedings, in which Chambers may seek to withdraw his indivisible guilty plea on

all nine counts."    Chambers, 163 Wn. App. at 62. Our Supreme Court accepted review and

affirmed our holding that the trial court had erred by granting Chambers' s motion to withdraw

his guilty pleas as to his February crimes, agreeing that those pleas were part of an indivisible

plea agreement. Chambers, 176 Wn.2d at 580 -83.


         After our Supreme Court issued its opinion, Chambers moved under CrR 7. 8 to withdraw

his guilty pleas as to all of the charges contained in his indivisible plea agreement. The trial

court denied Chambers' s motion, concluding that Chambers' s had failed to demonstrate a

manifest injustice allowing him to withdraw his guilty pleas. Chambers appeals the trial court' s

order denying his motion to withdraw his guilty pleas.

                                                       ANALYSIS


         Chambers contends that the trial court erred by denying his CrR 7. 8 motion to withdraw

his guilty pleas to his February, May, and November crimes due to the facial invalidity of his

judgment and sentence with respect to his February crimes of first degree unlawful possession of

a firearm. We disagree and affirm the trial court' s order denying Chambers' s motion to

withdraw his guilty pleas.


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          We review a trial court' s decision to grant or deny a motion to withdraw a guilty plea for

an abuse of   discretion. State    v.   Forest, 125 Wn.   App.   702, 706, 105 P. 3d 1045 ( 2005).     A trial


court abuses its discretion when it bases its decision on untenable grounds or reasons. State v.


Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). A defendant is permitted to withdraw a


guilty   plea under    CrR 4. 2( f) "whenever     it appears that the withdrawal is necessary to correct a

manifest   injustice."    CrR 7. 8 governs postjudgment motions to withdraw a guilty plea and

provides in relevant part:


                     b) Mistakes;       Inadvertence;    Excusable Neglect;
                                                                     Newly Discovered
          Evidence; Fraud;       On motion and upon such terms as are just, the court may
                                etc.

          relieve a party from a final judgment, order, or proceeding for the following
          reasons:



                     4) The judgment is void; or
                     5) Any other reason justifying relief from the operation of the judgment.

A defendant seeking to withdraw his or her guilty plea in a postjudgment must meet the

requirements for a plea withdrawal under both CrR 4.2( f) and CrR 7. 8. State v. Lamb, 175


Wn.2d 121, 128, 285 P. 3d 27 ( 2012). In other words, to succeed on a postjudgment motion to


withdraw a guilty plea, the defendant must demonstrate both ( 1) that withdrawal of the plea is

necessary to correct a manifest injustice, and (2) that relief from the final judgment is justified by

one of the reasons enumerated in CrR 7. 8( b).


                                               I. MANIFEST INJUSTICE


          A manifest injustice allowing a defendant to withdraw a guilty plea is " an injustice that is

obvious,    directly   observable, overt, [ and] not obscure."     State v. Taylor, 83 Wn.2d 594, 596, 521


P. 2d 699 ( 1974) ( citing WEBSTER'        S   THIRD NEW INTERNATIONAL DICTIONARY ( 1966)). A


defendant    carries a   heavy burden in demonstrating        a manifest   injustice permitting the   withdrawal
No. 45392 -4 -II
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of a guilty plea, which "burden is justified by the greater safeguards protecting a defendant at the

time [ the defendant]      enters [    his   or]   her guilty   plea."    State v. Wilson, 162 Wn. App. 409, 414,

253 P. 3d 1143 ( 2011).          One of the ways in which a defendant may meet the burden of

demonstrating a manifest injustice is by showing that the plea was not voluntary. State v.

Wakefield, 130 Wn.2d 464, 472, 925 P. 2d 183 ( 1996).                        A guilty plea is not voluntary if the

defendant was misinformed about the direct sentencing consequences of pleading guilty. State v.

A. N.J., 168 Wn.2d 91, 113 - 14, 225 P. 3d 956 ( 2010).

          Chambers asserts that he met the requirement of showing a manifest injustice because ( 1)

his guilty plea convictions for first degree unlawful possession of a firearm required him to serve

 nearly double the amount of time in custody than he would have received had he been properly
charged and sentenced,"           and ( 2) he was misinformed about the direct sentencing consequences

of   his guilty   pleas.   Br.   of   Appellant     at   10. On both points we disagree.


          First, the record belies Chambers' s assertion that his first degree unlawful possession of

a firearm convictions required him to serve more time in confinement than if he had been

            charged and sentenced            for    second   degree      unlawful possession of a   firearm.   Although
properly


Chambers is correct that the trial court sentenced him to 116 months for each of his first degree

unlawful possession of a firearm convictions and that the statutory maximum sentence for

second degree unlawful possession of a firearm was 60 months, Chambers was ordered to serve

his 116 month sentences for first degree unlawful possession of a firearm concurrent with each

other and concurrent with his 149 month sentence for unlawful possession of a controlled

 substance with intent to deliver conviction and his 144 month sentence for unlawful

manufacturing        of a controlled substance.            Former RCW 9. 41. 040( 2)( b) ( 1997); former RCW



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9A. 20. 021( 1)(   c) (   1982).   Accordingly, in light of Chambers' s concurrent sentences for his

February crimes, the trial court' s imposition of 116 month sentences for each of Chambers' s first

degree unlawful possession of a firearm convictions did not require him to serve any more time

in confinement than if the trial court had sentenced him to the statutory maximum of 60 months

for second degree unlawful possession of a firearm.2

         Second, we disagree with Chambers' s assertion that he was misinformed about the direct


sentencing consequences of his guilty pleas. Chambers' s statement on plea of guilty clearly

shows that he was aware that the statutory maximum penalty for first degree unlawful possession

of a firearm, the crimes to which he had pleaded guilty, was ten years of confinement. Former

RCW 9. 41. 040( 2)(        a);   former RCW 9A.20. 021( 1)( b).   Properly construed, Chambers' s challenge

to the voluntariness of his guilty pleas to first degree unlawful possession of a firearm was not

that he had been misadvised about the sentencing consequences of those crimes but, rather, that

those charges lacked a factual basis with which to support his guilty pleas. But Chambers did

not move to withdraw his guilty plea on this ground, and he does not argue it on appeal. Because

Chambers' s guilty plea convictions for first degree unlawful possession of a firearm did not

require him to serve any more time than if he had been convicted of second degree unlawful

possession of a firearm, and because he was properly informed of the direct sentencing

consequences of pleading guilty to first degree unlawful possession of a firearm, the trial court




2 Chambers does not contend, and the record does not appear to support, that his offender score
would have differed had he been charged and sentenced for second degree unlawful possession
of a firearm. Former RCW 9. 94A.360 ( 1998).

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No. 45392 -4 -II
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did not abuse its discretion by concluding that he failed to show a manifest injustice warranting

the withdrawal of his guilty pleas.

                                                     II. UNJUST REMEDY


        Even assuming that Chambers had met his burden of demonstrating a manifest injustice

with regard to his first degree unlawful possession of a firearm convictions and sentences, the


trial court nonetheless did not abuse its discretion by denying his motion to withdraw his guilty

pleas to all the charges in his indivisible plea agreement because withdrawal of Chamber' s guilty

pleas under these circumstances would be unjust to the State.

           When a defendant demonstrates a manifest injustice with respect to some of the charges


included in an indivisible plea agreement, the defendant has the initial choice of remedy between

withdrawal of the entire plea agreement and specific performance. State v. Turley, 149 Wn.2d

395, 400 -401, 69 P. 3d 338 ( 2003); but see State v. Barber, 170 Wn.2d 854, 873 -74, 248 P. 3d 494


 2011) (   excluding remedy of specific performance where the parties agreed to an illegal sentence

based   upon a mutual mistake).              However, a trial court is not bound by the defendant' s choice of

remedy.      Turley, 149       Wn.2d    at   401.   Rather, "[ o] nce the defendant has opted for one of the


available remedies, the State ` bears the burden of demonstrating that the defendant' s choice of

remedy is     unjust. '   Turley, 149 Wn.2d at 401 ( quoting State v. Miller, 110 Wn.2d 528, 536, 756

P. 2d 122 ( 1988),    overruled        on    other grounds   by Barber,   170 Wn. 2d 854). This burden requires


the State to show that " compelling reasons exist not to allow the defendant' s choice" of remedy.

Turley,    149 Wn.2d      at   401.   And the State may base this showing on any or all of the charges

included in the indivisible           plea agreement.      Turley,   149 Wn.2d   at   401. " The trial court then




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determines whether those reasons are compelling and [ whether] the defendant' s choice of

withdrawal or specific performance        is   unjust."     Turley, 149 Wn.2d at 401.

        Here, the State presented compelling reasons why withdrawal of Chambers' s guilty pleas

would be unjust. First, the State asserted that withdrawal of the indivisible plea agreement


would be unjust because the evidence that could be used to prosecute Chambers for his February

crimes had been destroyed. Under Miller, this reason alone was sufficient for the trial court to


deny   Chambers'   s motion   to   withdraw    his guilty   pleas.   110 Wn.2d   at   535 ( " plea withdrawal may


be unfair if the prosecutor has detrimentally relied on the bargain and has lost essential witnesses

or evidence ") ( citing   United States   v.   Jerry, 487   F. 2d 600 ( 3d Cir. 1973); Farnsworth v. Sanford,


115 F.2d 375 ( 5th Cir. 1940)).      Additionally, the State asserted that withdrawal of Chambers' s

guilty pleas would be unjust because the State had relied on the agreement in deciding not to

prosecute him for murder in regard to his November crimes and it would be difficult to now

prosecute him for an alleged murder that took place in 1999. This is also a compelling reason to

deny Chambers' s motion to withdraw his guilty pleas. Because the State presented compelling

reasons why withdrawal of Chambers' s guilty pleas would be unjust, the trial court did not abuse

its discretion by denying Chambers' s motion to withdraw his guilty pleas.

                                                     III. SAG


         In his SAG, Chambers argues that the trial court erred by denying his motion to withdraw

his guilty pleas because our prior decision in Chambers, 163 Wn. App. 54, and our Supreme

Court' s affirmance of that decision in Chambers, 176 Wn.2d 573, required the trial court to grant


his withdrawal motion. But Chambers misreads our holding in that case. We did not direct the

trial court to grant his motion to withdraw his pleas as he asserts in his SAG. Rather, we



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reversed the trial court' s order granting Chambers' s motion to withdraw his guilty pleas to his

February crimes and remanded for further proceedings, stating that on remand " Chambers may

seek to withdraw his indivisible guilty plea" agreement with respect to all of his charges.

Chambers, 163 Wn.       App.    at   62 ( emphasis   added).   Similarly, in affirming our decision, our

Supreme Court did not direct the trial court to grant Chamber' s withdrawal motion.


Accordingly, this argument lacks merit. We affirm the trial court' s order denying Chambers' s

motion to withdraw his guilty pleas.

        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:
                                                                           7  femoreixid,
                                                                                Worswick, J.




   hanson, C.J. -




 Melnick, J.




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