                                                                 FILED
                                                             NOVEMBER 24, 2015
                                                           In the Office orthe Clerk or Court 

                                                         W A State Court or Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32357-9-111
                     Respondent,              )
                                              )
              v.                              )
                                              )
JOSE FIDEL MANDUJANO,                         )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

        SIDDOWAY, C.1. -   Jose Fidel Mandujano appeals an amended judgment and

sentence entered five months after he was initially sentenced for convictions of first

degree rape of a child and first degree child molestation. According to the State, the

amended judgment and sentence corrected what had appeared in the original judgment

and sentence to be an illegal determinate sentence by imposing a legal, indeterminate

sentence. Mr. Mandujano likens his case to In re Pers. Restraint ofMurillo, 134 Wn.

App. 521, 142 P 3d 615 (2006), in which a determinate sentence was also modified to be

indeterminate and this court held that mistakes in information provided to the defendant

when he entered his guilty plea required that the superior court allow him to withdraw his

plea.
No. 32357-9-III
State v. Mandujano


        The combination of mistakes made in the statement of defendant on plea of guilty

and the overall lack of clarity as to the sentence faced by Mr. Mandujano warrants

allowing him to withdraw his guilty plea. We remand the case with instructions to the

court to allow Mr. Mandujano to withdraw it.

                             FACTS AND PROCEDURAL BACKGROUND

        On September 17,2013, Jose Fidel Mandujano entered an Alford l plea to one

count of first degree rape of a child and one count of first degree child molestation.

Assisted by a court certified interpreter, Mr. Mandujano informed the court that he

entered into the plea voluntarily, and with full understanding of the statement of

defendant on plea of guilty to sex offense presented to the court. The plea statement

included the following information and table (a column in the table dealing with

enhancements has been eliminated due to space limitations and italicized text in the

original has been eliminated so that handwritten entries can be, and are, indicated by

italics):

        Each crime with which I am charged carries a maximum sentence, a fine, and a
        Standard Sentence Range as follows:

        COUNT         OFFENDER       STANDARD RANGE                 COMMUNITY   MAXIMUM
        NO.           SCORE          ACTUAL CONFINEMENT             CUSTODY     TERM AND
                      J·M            (not including enhancements)               FINE


        1             J. 4           120 160 months                 36 months   Life /
                                     129-171                                    $50,000


        I   North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970).


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No. 32357-9-III
State v. Mandujano



       2            J 4            69 89 months                36 months        Life /
                                   72-96                                        $50,000

Clerk's Papers (CP) at 56.

       The section of the plea statement addressing what the prosecutor would

recommend to the judge was completed as follows (handwritten portions are again

indicated by italics):

       Recommend a sentence of 129 months on Count 1 and 96 [months Jon
       Count 2, to be run concurrent. Client to pay all standard court costs and
       fees, a crime victim assessment, and restitution if any. Post conviction
       sexual assault protection order and 36 months community custody on each
       count.

CP at 59.

       Preprinted sections of the plea statement included one that explained that for

certain sex offenses committed on or after September 1, 2001, the judge

       will impose a maximum term of confinement either ... within the standard
       range for the offense or outside the standard range if an exceptional
       sentence is appropriate. The minimum term of confinement that it is
       imposed may be increased by the Indeterminate Sentence Review Board if
       the Board determines by a preponderance of the evidence that it is more
       likely than not that I will commit sex offenses ifreleased from custody.

CP at 57. This was one section in a 10-page single spaced document in which only about

two pages worth of text had been stricken as irrelevant.

       As completed and signed, the plea statement indicates that Mr. Mandujano did not

personally read it, but that his lawyer or an interpreter (or perhaps both) read it to him.



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No. 32357·9·III
State v. Mandujano


The plea statement was signed by a Spanish language interpreter, who represented that he

or she had "interpreted this document for the defendant from English into that language."

CP at 63.

       The court that accepted Mr. Mandujano's guilty plea engaged in a colloquy with

him. After identifYing the charges to which Mr. Mandujano was pleading guilty as "rape

of a child in the first degree and child molestation in the first degree" the court asked, and

Mr. Mandujano answered:

              THE COURT: Do you understand the first ever [sic] those carries a
       standard range of 129 months to 171 months with a maximum term and
       fine of life and $50,000 and the second has a standard range of 72 to 96
       months with a maximum term and fine of life and $50,000. Do you
       understand that?
              DEFENDANT THROUGH INTERPRETER: Yes.

Report of Proceedings (RP) (Sept. 17,2013) at 4. There was no mention during the

colloquy of indeterminate sentencing or the indeterminate sentencing review board.

There was no mention of community custody.

       At the sentencing hearing six weeks later, the State recommended that Mr.

Mandujano be sentenced to 129 months to life for count I and 96 months to life for count

II. Defense counsel asked the court to "go along with the recommendation." RP

(Oct. 29, 2013) at 3. After recounting Mr. Mandujano's criminal history and stating that

it would dismiss counts III and IV, the court said:




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No. 32357-9-111
State v. Mandujano


       Restitution to health care authority of$949.55. Victim assessment $500.00.
       Court costs $282.22. Fine of$500.00. DNA [deoxyribonucleic acid]
       $100.00. DNA testing pursuant to paragraph 4.2. 129 months on Count I.
       96 months on Count II, with a maximum of life.

ld.

       Relevant portions of a table at section 2.3 of the judgment and sentence,

"Sentencing Data," was completed as follows (columns for the seriousness level and

enhancements have been eliminated due to space limitations):

       COUNT       OFFENDER         STANDARD        Total             MAXIMUM
       NO.         SCORE            RANGE (not      STANDARD          TERM
                                    including       RANGE
                                    enhancements)   (including
                                                    enhancements)

       1           4                129 to 171      129 to 171        Life /
                                    months          months            $50,000.00

       II          4                72 to 96        72 to 96          Life /
                                    months          months            $50,000.00

CP at 21.

       Section 4.5 ofthe judgment and sentence was completed as follows, with

handwritten entries indicated by italics:

       4.5 CONFINEMENT OVER ONE YEAR. The defendant is sentenced
       as follows:
       (a)     CONFINEMENT. RCW 9.94A.589. Defendant is sentenced to the
       following term of total confinement in the custody of the Department of
       Corrections:
       ---'=_ months on Count I                96 months on Count II




                                               5

No. 32357-9-III
State v. Mandujano


CP at 26.

       And section 4.6 was completed as follows:

       4.6 [X] COMMUNITY CUSTODY.
       A.     The defendant shall be on community custody for the longer of:
              (1) the period of early release. RCW 9.94A.728(1)(2); or
              (2) the period imposed by the court as follows: 

                     Count I for 36 months 

                     Count II for 36 months; 


             (3) Sex offenses ONLY: For counts I and II, sentenced under
       RCW 9.94A.507, for any period of time the defendant is released from total
       confinement before the expiration of the statutory maximum.

ld.

       Five months after sentencing, on February 25,2014, the parties appeared before

the sentencing judge again, for the State's presentment of an amended judgment and

sentence that it explained was being offered because the Department of Corrections had a

"problem with [Mr. Mandujano's] judgment and sentence" since the words "to life" had

not been included in the term of confinement completed by the court. RP (Feb. 25, 2014)

at 3-4. The State's proposed amended judgment and sentence modified the relevant

portions of sections 2.3, 4.5 and 4.6 as follows. Changes are underlined. Once again,

italics indicate handwriting.

       Section 2.3 now read:




                                          6

No. 32357-9-II1
State v. Mandujano


       COUNT      OFFENDER         STANDARD        Total           MAXIMUM
       NO.        SCORE            RANGE (not      STANDARD        TERM
                                   including       RANGE
                                   enhancements)   (including
                                                   enhancements)

       I          4                129 to 171      129 to 171      Life /
                                   months to       months to       $50,000.00
                                   Life            Life

       II         4                72 to 96        72 to 96        Life /
                                   months to       months to       $50,000.00
                                   Life            Life

CP at 6.

       Section 4.5 of the judgment and sentence now read:

       4.5 CONFINEMENT OVER ONE YEAR. The defendant is sentenced
       as follows:
       (a)     CONFINEMENT. RCW 9.94A.589. Defendant is sentenced to the
       following term of total confinement in the custody of the Department of
       Corrections:
          129 months on Count I - to life            months on Count II to life

CP at 11.

       And section 4.6 now read:

      4.6 [X] COMMUNITY CUSTODY.
      A.    The defendant shall be on community custody for the longer of:
            (1) the period of early release. RCW 9.94A.728(1)(2); or
            (2) the period imposed by the court as follows:
                   Count I for Life
                   Count II for Life;

            (3) Sex offenses ONLY: For counts I and II, sentenced under
      RCW 9.94A.507, for any period of time the defendant is released from total
      confinement before the expiration of the statutory maximum.


                                           7

No. 32357-9-III
State v. Mandujano



Id.

       Defense counsel objected to amendment, arguing that no transcript of the

sentencing had been provided and the State had not demonstrated that any error had been

made in completing the judgment and sentence:

               [DEFENSE COUNSEL]: Well, Your Honor, before we get carried
       away, ... I think we have to determine whether or not there is even a basis
       to file an amended judgment and sentence.
               This isn't a situation where it's a scrivener's error, but instead the
       original judgment and sentence reflected what the court stated at the time
       sentence was imposed. So does the court have authority to amend the
       judgment and sentence when in fact the State did not object to it at the time
       and did not file a notice of appeal concerning the original judgment and
       sentence[?]

RP (Feb. 25,2014) at 3. The prosecutor represented to the court that the sentence as

announced by the court had been "129 months to life on Count 1" and "96 months to life

on Count 2" and the only error was in the judgment and sentence. Id. at 4. Defense

counsel responded that "unless there is proof that they said that in court, there is no basis

to amend the judgment and sentence." Id.

       The court rejected the defense objections and signed the amended judgment and

sentence. Mr. Mandujano appeals.




                                            8

No. 32357-9-111
State v. Mandujano


                                       ANALYSIS

       Mr. Mandujano argues that his guilty plea was not entered knowingly,

intelligently, or voluntarily because he was misinformed about the consequences of his

plea. The issue is raised on direct appeal of the amended judgment, so the only evidence

that he was misinformed is the record of the plea hearing itself.

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

intelligent." In re Pers. Restraint a/Isadore, 151 Wn.2d 294, 297,88 P.3d 390 (2004)

(citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709,23 L. Ed. 2d 274 (1969)).

"A guilty plea is not knowingly made when it is based on misinformation of sentencing

consequences." Id. at 298. "A defendant need not be informed of all possible

consequences of his plea, but he must be informed of all direct consequences." Id.

       Mr. Mandujano committed the crimes at issue between June 1, 2007, and

March 30, 2008. Under former RCW 9.94A.712(3) (2006),2 the court was required to

sentence him to the statutory maximum-life imprisonment-and to set a minimum term

within the standard sentence range, unless he qualified for an exceptional sentence.

Murillo, 134 Wn. App. at 524; RCW 9A.20.021(1)(a) (maximum sentence for class A

felonies). The term ultimately served is then subject to determination by the

indeterminate sentencing review board of the state department of corrections. Chapter


      2 Recodified as RCW 9.94A.507 by LAWS OF 2008, ch. 231, § 56, effective
August 1, 2009.


                                            9

No. 32357-9-III
State v. Mandujano


9.95 RCW. The court was further required to sentence Mr. Mandujano to lifetime

community custody under the supervision of the department following his release from

total confinement. Former RCW 9.94A.712(5).

       In In re Personal Restraint ofMurillo, l34 Wn. App. 521, 142 P.3d 615 (2006),

this court held that the maximum sentence of life imprisonment and lifetime community

custody following release from total confinement are both direct consequences of a

defendant's plea to a crime subject to former RCW 9.94A.712. As here, the department

of corrections saw on receiving custody of Mr. Murillo that his judgment and sentence

did not retlect his maximum sentence of life or lifetime community custody. As here, it

required that the judgment and sentence be corrected. After the sentencing court

amended the judgment and sentence as requested, Mr. Murillo filed a personal restraint

petition in which he argued that he had been misled to enter a plea that, as a result, was

not knowing and voluntary.

       Mr. Murillo's plea statement was similar to Mr. Mandujano's plea statement,

which indicated that the outside "standard range of actual confinement" was the high end

of the standard range, when it is actually life imprisonment for a sex offender subject to

indeterminate sentencing. Compare l34 Wn. App. at 525 with CP 56. Like Mr.

Mandujano's plea statement, Mr. Murillo's plea statement included preprinted language

describing indeterminate sentencing for the sex offenses to which he had pleaded gUilty.




                                           10 

No. 32357-9-II1
State v. Mandujano


l34 Wn. App. at 525. Nonetheless, because Mr. Murillo's plea was accepted without

mention by the court that it must impose a maximum sentence, that the sentence within

the standard range would represent only a minimum term, or that he was subject to a life

term of community custody, this court held that Mr. Murillo must be allowed to withdraw

his plea. 3

        The State argues that Murillo is distinguishable because the court at Mr.

Mandujano's change of plea hearing was clearer about the maximum term to which he

would be sentenced; that Mr. Murillo's claim, arising in a personal restraint petition, was

better supported by his testimony that he was misled; and that there was evidence that

Mr. Murillo's defense attorney misled him. Br. of Resp't at 8-10. Its efforts to

distinguish Murillo are not persuasive .

       . Before the change of plea hearing, Mr. Mandujano had reviewed the 10-page plea

statement. The portions of the statement that had been completed with sentence range

information specific to him were wrong. The standard range of actual confinement

indicated that the outside of the range was the high end of the standard range rather than

life. CP at 56 (§ 6(a)). It was this same error in his initial judgment and sentence that the




        3This court also held that Mr. Murillo could request specific performance of the
illegal determinate sentence depending on the results of an evidentiary hearing following
remand based on State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). Murillo, 134
Wn. App. at 533. Miller has since been overruled on that point. State v. Barber, 170
Wn.2d 854, 248 P 3d 494 (2011). Mr. Mandujano seeks only to withdraw his plea.

                                            11 

No. 32357-9-111
State v. Mandujano


department of corrections required to be corrected. 4 The disclosure of the community

custody he faced stated "36 months." Id. at 59 (§ 6(g)). The disclosure of the sentence

that would be recommended by the prosecutor said "Recommend a sentence of 129

months on Count 1 and 96 months on Count 2, to be run concurrent," with no indication

these were minimums and no mention of a lifetime maximum. Id. Given these problems

with the plea statement, the fact that Mr. Mandujano confirmed that he had reviewed it

does not help the State. The preprinted portions of the 10-page document provided

conflicting (and correct) information about indeterminate sentencing-it cannot

overcome the case-specific mistakes in this case any more than they did in Murillo.

       The court's single statement to Mr. Mandujano about the sentence he faced is also

not clear enough to overcome the misleading information in the plea statement. To

repeat, the court stated:

       Do you understand the first ever [sic] those carries a standard range of 129
       months to 171 months with a maximum term and fine of life and $50,000
       and the second has a standard range of 72 to 96 months with a maximum
       term and fine of life and $50,000. Do you understand that?

RP (Sept. 17,2013) at 4. Mr. Mandujano's criminal history included in his judgment and

sentence indicates that his only prior conviction had been for distribution of

methamphetamine, a crime for which there is also a standard range and a maximum term,



       Following correction, the first amended judgment and sentence identifies the
       4
"STANDARD RANGE (not including enhancements)" as "129-171 months to Life" and
"72-96 months to Life." CP at 6.

                                           12 

No. 32357-9-III
State v. Mandujano


but for which he would have received a determinate sentence. Given Mr. Mandujano's

lack of experience with indeterminate sentencing, the court's reference to a "maximum

term ... of life" could have been understood to refer to the statutory maximum, not a

mandatory maximum that would be imposed on Mr. Mandujano.

       The absence of testimony from Mr. Mandujano as to what he was told by his

lawyer and subjectively believed about the sentence he faced does not detract from his

challenge. In In re Personal Restraint ofIsadore, 151 Wn.2d 294, 300, 88 P.3d 309

(2004), the Washington Supreme Court adhered to a historical analytical framework

under which it determines whether a guilty plea is voluntary in the constitutional sense by

examining whether a defendant was informed of all direct consequences of his plea. It

explicitly rejected an analysis that requires an appellate court to inquire into the

materiality of those direct consequences in a defendant's subjective decision to plead

gUilty. Id. at 302.

       A reviewing court cannot determine with certainty how a defendant arrived
       at his personal decision to plead guilty, nor discern what weight a defendant
       gave to each factor relating to the decision. If the test is limited to an
       assertion of materiality by the defendant, it is of no consequence as any
       defendant could make that after-the-fact claim.

Id We can decide the issue of constitutional voluntariness without testimony from Mr.

Mandujano.




                                            13 

No. 32357-9-II1
State v. Mandujano


       Finally, the testimony of defense counsel does not appear to have been given

weight in the balance in Murillo, since Mr. Murillo's lawyer testified inconsistently.

While he initially provided a declaration stating that he had failed to explain the lifetime

maximum sentence to his client, he later corrected himself, explaining that after

reviewing transcripts and refreshing his recollection, he had'" informed Mr. Murillo that

the plea would result in an indeterminate sentence with life being the top end.'" 134 Wn.

App. at 529. In this case, Mr. Mandujano's trial lawyer did not provide testimony as to

what he told his client but he did appear when the amended judgment was presented and

protested, arguing that the initial sentence had been the agreed sentence. Evidence as to

defense counsel's advice is not a basis for distinguishing this case from Murillo.

       We remand the case with instructions to the court to allow Mr. Mandujano to

withdraw his plea.

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

Washington Appellate Reports, but it will be filed for public record pursuant to .

RCW 2.06.040.
                                                   ~,~/.                          C-~
                                                   c:r/~aA
                                               Siddoway, C.!.          ~      J




WE CONCUR:



Fe:t.~ 1;J.                                   Lawrence-Berrey, J.



                                            14 

