                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                              June 5, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 50219-4-II

                                Respondent,                        Consolidated with
                                                                    No. 50632-7-II
        v.

 ANTHONY DENATALE,
                                                              UNPUBLISHED OPINION
                                Appellant.

       WORSWICK, J. — Anthony DeNatale appeals from his guilty plea convictions of second

degree child molestation, four counts of third degree child rape, and third degree child assault.

DeNatale contends that he should be permitted to withdraw his guilty pleas because (1) he was

misinformed about the sentencing consequences of his guilty pleas and (2) the agreed

recommended sentence was contrary to law. We affirm DeNatale’s convictions but remand for a

correction of DeNatale’s judgement and sentence to specify a minimum term of confinement as

required under RCW 9.94A.507(3)(a).

                                              FACTS

       On January 4, 2016, the State charged DeNatale with four counts of first degree child

rape. The State alleged that the offenses were domestic violence incidents and that the offenses

were aggravated by DeNatale’s use of his position of trust to facilitate the crimes. The State also

filed a persistent offender notice informing DeNatale that a first degree child rape conviction

would result in a life sentence without the possibility of parole if he had been previously

convicted of a crime listed under former RCW 9.94A.030(38)(b)(i) (2015). DeNatale has
No. 50219-4-II;
Cons. with No. 50632-7-II

previously been convicted of first degree child molestation, a crime listed under former RCW

9.94A.030(38)(b)(i).

       DeNatale ultimately agreed to plead guilty to a second amended information charging

him with one count of second degree child molestation, four counts of third degree child rape,

and one count of third degree child assault. DeNatale admitted the following in his guilty plea

statement:

       I believe I am not guilty of the amended charges, but I fully admit that I had sexual
       intercourse with E.S. when she was under the age of 12 and I was more than 24
       months older than her, and not married to her, on at least four occasions all
       happening in Pierce County between 12/1/14 and 12/21/15. I am pleading guilty
       to take advantage of the State’s offer and I believe I am guilty of the charges in the
       original information and would be found guilty at trial. E.S. is a family member.

Clerk’s Papers (CP) at 92.

       DeNatale’s guilty plea statement provided that the parties agreed to the State

recommending an exceptional sentence consisting of the statutory maximum sentence on all

counts to run consecutive, for a total of 30 years of confinement, and 5 years of community

custody on the third degree child assault charge. The trial court accepted DeNatale’s guilty pleas

to the amended charges as voluntarily made. The trial court also imposed the parties’ agreed

sentencing recommendation and entered findings of fact and conclusions of law in support of the

exceptional sentence. DeNatale’s judgment and sentence did not specify a minimum and

maximum term of confinement, instead imposing a determinate term totaling 30 years of

incarceration and 5 years of community custody.

       DeNatale appealed his guilty plea convictions. After DeNatale filed his notice of appeal,

the trial court signed a proposed motion and order to correct DeNatale’s judgment and sentence,




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No. 50219-4-II;
Cons. with No. 50632-7-II

in which the court “signal[ed] its intention to correct” the judgment and sentence in a manner

that specified minimum and maximum terms. CP at 146.

                                            ANALYSIS

      I. VOLUNTARINESS OF GUILTY PLEAS/ADVISEMENT OF SENTENCING CONSEQUENCES

       DeNatale first contends that he should be permitted to withdraw his guilty pleas because

they were involuntary as a result of being misadvised of his sentencing consequences. We

disagree.

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

intelligent. State v. Weyrich, 163 Wn.2d 554, 556, 182 P.3d 965 (2008). This standard is

reflected in CrR 4.2(d), which states in relevant part, “The court shall not accept a plea of guilty,

without first determining that it is made voluntarily, competently and with an understanding of

the nature of the charge and the consequences of the plea.” Under this rule, once a guilty plea is

accepted, the trial court must allow withdrawal of the plea “to correct a manifest injustice.” CrR

4.2(f). An involuntary plea constitutes a manifest injustice, and a defendant may raise this claim

of error for the first time on appeal. State v. Walsh, 143 Wn.2d 1, 6-8, 17 P.3d 591 (2001); State

v. Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183 (1996).

       A defendant must understand the sentencing consequences for a guilty plea to be

considered knowing and voluntary. State v. Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018).

“‘[A] guilty plea may be deemed involuntary when based on misinformation regarding a direct

consequence of the plea, regardless of whether the actual sentencing range is lower or higher

than anticipated.’” Buckman, 190 Wn.2d at 59 (alteration in original) (quoting State v. Mendoza,

157 Wn.2d 582, 591, 141 P.3d 49 (2006)). Both the statutory maximum sentence determined by



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No. 50219-4-II;
Cons. with No. 50632-7-II

the legislature and the applicable standard sentence range are direct consequences of a guilty plea

about which a defendant must be informed to satisfy due process requirements. Weyrich, 163

Wn.2d at 557; State v. Kennar, 135 Wn. App. 68, 74-75, 143 P.3d 326 (2006).

       A person convicted of any sex offense other than failure to register as a sex offender is

subject to the sentencing provisions of RCW 9.94A.507 if the person has a prior conviction for

an offense listed in former RCW 9.94A.030(38)(b) (2015). DeNatale’s second degree

molestation and third degree child rape convictions are sex offenses, and he has previously been

convicted of first degree child molestation, a crime listed under former RCW

9.94A.030(38)(b)(i). Former RCW 9.94A.030(47)(a)(i); RCW 9A.44.079; RCW 9A.44.086. He

was therefore subject to the sentencing provisions of RCW 9.94A.507.

       RCW 9.94A.507(3)(a) provides, “Upon a finding that the offender is subject to

sentencing under this section, the court shall impose a sentence to a maximum term and a

minimum term.” Under RCW 9.94A.507(3)(b), the trial court is required to sentence the

offender to a maximum term consisting of the statutory maximum sentence for the offense. And

under RCW 9.94A.507(3)(c), the trial court is required to impose a minimum sentence that is

either within the standard sentence range for the offenses or outside the range pursuant to the

provisions of RCW 9.94A.535. Former RCW 9.94A.535(2)(a) (2013) authorizes a trial court to

impose an exceptional sentence if:

       The defendant and the state both stipulate that justice is best served by the
       imposition of an exceptional sentence outside the standard range, and the court
       finds the exceptional sentence to be consistent with and in furtherance of the
       interests of justice and the purposes of the sentencing reform act.




                                                 4
No. 50219-4-II;
Cons. with No. 50632-7-II

RCW 9.94A.589 authorizes a trial court to impose consecutive sentences under the exceptional

sentence provisions of RCW 9.94A.535.

       DeNatale asserts that he must be permitted to withdraw his guilty pleas because he was

not informed that his convictions were subject to an indeterminate sentence under RCW

9.94A.507. But DeNatale’s signed guilty plea statement stated that he was subject to

indeterminate sentencing under RCW 9.94A.507 for any sex offense if he had a prior conviction

for certain offenses, including first degree child molestation. And, as part of his plea agreement,

DeNatale stipulated to having been previously convicted of first degree child molestation.

DeNatale’s guilty plea statement further stated that, pursuant to RCW 9.94A.507, the trial court

would “impose a maximum term of confinement consisting of the statutory maximum sentence

of the offense and a minimum term of confinement either within the standard range for the

offense or outside the standard range if an exceptional sentence is appropriate.” CP at 86.

       DeNatale’s guilty plea statement averred, and the trial court confirmed at the plea

hearing, that he had read and reviewed this guilty plea statement with his attorney. When a

defendant completes a written plea statement and admits to reading, understanding, and signing

the statement, a strong presumption arises that the plea was voluntary. State v. Smith, 134 Wn.2d

849, 852, 953 P.2d 810 (1998); State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996).

DeNatale’s claim that he was not informed about the sentencing consequences of pleading guilty

to the State’s amended charges is without merit. Accordingly, he does not demonstrate that his

plea was involuntary on that basis.




                                                 5
No. 50219-4-II;
Cons. with No. 50632-7-II

                            II. LEGALITY OF EXCEPTIONAL SENTENCE

       Next, DeNatale contends that he must be permitted to withdraw his guilty pleas because

he agreed to a sentence that was contrary to law. We disagree.

       A defendant may elect to withdraw a guilty plea when the parties have agreed to a

sentence that is contrary to law. State v. Barber, 170 Wn.2d 854, 872-74, 248 P.3d 494 (2011).

Here, the parties agreed to a recommended exceptional sentence consisting of the statutory

maximum on all counts to run consecutive, for a total of 30 years of incarceration and 5 years of

community custody.

       DeNatale argues that the agreed recommended exceptional sentence is contrary to RCW

9.94A.507’s requirement of an indeterminate sentence consisting of a minimum and maximum

term of incarceration. But RCW 9.94A.507(3)(c)(i) permits a trial court to impose a minimum

term outside the standard range pursuant to RCW 9.94.535. And RCW 9.94A.589 permits a trial

court to impose consecutive sentences pursuant to RCW 9.94.535. DeNatale stipulated that

justice was best served by the imposition of an exceptional sentence under former RCW

9.94A.535(2)(a). Although the parties agreed to a recommended sentence that was the functional

equivalent of a determinate sentence, DeNatale cites no authority supporting the proposition that

RCW 9.94A.507(3)(c)(i) prohibits a trial court from imposing an exceptional minimum sentence

under former RCW 9.94A.535 that amounts to the statutory maximum sentence for the offenses.

Therefore, we hold that the parties’ agreed recommendation to the statutory maximum sentence

on all counts to run consecutively was not contrary to law.

       That the trial court failed to specify a minimum term of confinement in DeNatale’s

judgment in sentence does not undermine the voluntariness of DeNatale’s pleas because he was



                                                6
No. 50219-4-II;
Cons. with No. 50632-7-II

properly informed of the direct sentencing consequences of pleading guilty to the State’s

amended charges and because the parties recommended, and the trial court imposed, a sentence

that was lawful in effect despite any error in form. Accordingly, DeNatale does not demonstrate

that his pleas were involuntary.

        Although the parties’ agreed sentencing recommendation was not contrary to law, the

State concedes, and we agree, that the trial court erred by failing to specify a minimum term of

confinement in DeNatale’s judgment and sentence as required under RCW 9.94A.507(3)(a).

Accordingly, we affirm DeNatale’s convictions but remand for a correction of his judgment and

sentence to specify a minimum term of confinement amounting to the statutory maximum for the

offenses.

        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.



                                                                       Worswick, J.
 We concur:



 Maxa, C.J.




 Lee, J.




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