                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        March 17, 2020




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    In the Matter of the                                           No. 53306-5-II
    Personal Restraint of

    CHARLES DAVID McKEE,

                                Petitioner.
                                                             UNPUBLISHED OPINION



          CRUSER, J. — Charles McKee seeks relief from personal restraint imposed as a result of

his 2018 plea of guilty to conspiracy to commit second degree murder (count I), drive-by shooting

(count II), attempted first degree assault while armed with a firearm (count III), and first degree

unlawful possession of a firearm (count IX).1 The State and McKee entered into a plea agreement

as to the above crimes. Paragraph 11 of McKee’s statement of defendant on plea of guilty

contained a typed statement of “what I did in my own words that makes me guilty of this crime.”

Resp. to PRP, Attach. at 24. During McKee’s plea colloquy, the trial court asked if that typed

statement was “a true and correct statement of what you did that makes you guilty of the four

crimes with which you are charged in that cause number?” PRP, Ex. C at 3-4. McKee replied,



1
  McKee filed a motion to vacate his judgment and sentence in the trial court. That court
transferred his motion to us under CrR 7.8(c) to be considered as a personal restraint petition.
No. 53306-5-II


“Sounds close.” PRP, Ex. C at 4. When the trial court asked McKee if those were not his own

words, the deputy prosecutor stated that he typed them and that the parties needed to step back.

The trial court agreed, noting that “‘close enough’ doesn’t work in this setting.” Id. The trial court

then took its midday recess, and upon resuming the plea colloquy, the trial court again asked if the

typed statement was “a true and correct statement of what you did that makes you guilty of the

four crimes with which you are charged in that cause number?” Reply to Resp. to PRP, Ex. C at

24-25. This time McKee replied, “Correct.” Id. at 25. The trial court then found that McKee was

making his plea freely and voluntarily, accepted the plea, and set over sentencing.

       The State and McKee made a joint sentencing recommendation as follows: 120 months on

count I, 48 months on count III consecutive to count I as serious violent offenses, and a 72-month

firearm sentencing enhancement consecutive to the base sentence in count III. 2 The trial court

accepted the joint sentencing recommendation. McKee now seeks relief from the judgment and

sentence imposing those sentences.

       First, McKee argues that the trial court erred in imposing consecutive sentences for counts

I and III because the court did not recognize that it had the discretion to impose those sentences

concurrently. Because both counts were “serious violent offenses,” their sentences were to be

served consecutively under RCW 9.94A.589(1)(b). Reply to Resp. to PRP, Ex. B at 7. But

paragraph 6(k) of McKee’s statement of defendant on plea of guilty informed both him and the

court that consecutive sentences should be imposed “unless the judge finds substantial and

compelling reasons not to do so.” Resp. to PRP, Attach. at 19. And when imposing sentence, the



2
 The sentences for counts II and IX are concurrent with the sentences in counts I and III and are
not at issue here.
                                                  2
No. 53306-5-II


court acknowledged that it could deviate from the joint sentencing recommendation if it could

“articulate a reason to do so” but was unable to. Reply to Resp. to PRP, Ex. B at 28. McKee fails

to show that the trial court was unaware that it had the discretion to impose concurrent sentences.

       Second, McKee argues that his trial counsel provided ineffective assistance of counsel by

not arguing for concurrent sentences for counts I and III. To establish ineffective assistance of

counsel, he must demonstrate that his counsel’s performance fell below an objective standard of

reasonableness and that as a result of that deficient performance, the result of his case probably

would have been different. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995);

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This court

presumes strongly that trial counsel’s performance was reasonable. State v. Grier, 171 Wn.2d 17,

42, 246 P.3d 1260 (2011). And performance is not deficient if it was a legitimate trial strategy.

State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). McKee’s trial counsel decision to make

a joint sentencing recommendation including consecutive sentences for counts I and III was a

strategic decision to shorten the sentence that otherwise might have been imposed had McKee not

entered into a plea agreement. Thus, McKee does not demonstrate that his trial counsel provided

ineffective assistance.

       Third, McKee argues that he was denied due process when the deputy prosecutor typed

paragraph 11 of the statement of defendant on plea of guilty, rather than having McKee write it

out in his own words. But he does not demonstrate any denial of due process. When McKee did

not clearly adopt the typed statement as his statement, only saying it “sounds close,” the trial court

continued the plea colloquy. PRP, Ex. C at 4. Upon resuming the plea colloquy, after conferring

with his counsel, McKee unambiguously adopted the typed statement as his own. Only then did


                                                  3
No. 53306-5-II


the trial court find that McKee’s plea was freely and voluntarily made. And in this petition, McKee

does not identify any factual errors in the typed statement. He does not show he was denied due

process.

        McKee does not present grounds for relief from restraint. We therefore deny his petition

and deny his request for appointment of counsel.

        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.



                                                    CRUSER, J.
 We concur:



 WORSWICK, P.J.




 MELNICK, J.




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