  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                            )      No. 77648-7-I

                          Respondent,
                                                )
        v.
                                                )      UNPUBLISHED OPINION
COURTNEY WAYNE DAWSON,                          )
                                                )      FILED: June 10, 2019
                          Appellant.


       VERELLEN,     J.   —   A defendant seeking to withdraw a guilty plea after entry of

judgment must prove he did not enter it knowingly, intelligently, and voluntarily.

Because Courtney Wayne Dawson’s attorneys accurately apprised him about the

plea agreement’s terms and consequences, he entered his guilty plea voluntarily,

intelligently, and knowingly. The court properly denied his CrR 7.8 motion to

withdraw his plea.

      A defendant also can withdraw his guilty plea where the State breaches the

agreement. Dawson contends Oregon, which was party to his global plea

agreement, breached by merely dismissing the charges against him and not doing

so with prejudice. Because the plea agreement did not oblige Oregon to dismiss

with prejudice, Oregon did not breach.

      Therefore, we affirm.
No. 77648-7-1/2


                                        FACTS

           Dawson flew from Colorado to Oregon and raped a woman at knifepoint.1

Dawson then drove to Washington and raped another woman at knifepoint.2 After

being arrested in Washington, Dawson confessed to raping women in both states.3

While awaiting trial, Dawson attempted to pay his second victim to recant her

statements to the police.4

       The State charged Dawson with first degree rape, first degree kidnapping,

and bribing a witness, and Oregon indicted him for first degree rape, first degree

sodomy, and first degree unlawful sexual penetration.5 In a global plea agreement

that disposed of all charges against him in both states, Dawson promised to plead

guilty only to the charges in Washington. In exchange, Washington would

recommend a 16-year sentence at the high end of the standard range, and

Oregon would dismiss all charges against him.6

       Dawson pleaded guilty. Nearly one year later, he moved to withdraw his

plea because it was based on misinformation from his attorneys and because




       1 Clerk’s Papers (CP) at 60-61. Oregon did not adjudicate Dawson’s rape
there in accordance with his plea agreement, but he admitted to the facts of that
crime for purposes of sentencing and paying restitution to the victim. CP at 54;
Report of Proceedings (RP) (June 6, 2013) at 10-11.
      2CPat24.
      ~ RP (July 19, 2013) at 10-11.
      ~ RP (June 6, 2013) at 14-15.
      ~ CP at 10-11.
      6    RP (June 6,2013) at 9-10.



                                          2
No. 77648-7-113


Oregon did not dismiss charges against him with prejudice.7 The court denied the

motion.8

       Dawson appeals.

                                     ANALYSIS

       If a defendant moves under CrR 7.8 to withdraw a guilty plea due to

claimed constitutional error, we conduct review de novo.9 We review a court’s

factual findings for substantial evidence.10 Substantial evidence supports a finding

of fact where sufficient evidence would persuade a reasonable person of the

finding.11 Unchallenged findings are verities on appeal.12 The defendant has the

burden of proving that constitutional error occurred and that substantial evidence

does not support challenged findings of fact.13

          ‘Due process requires that a guilty plea may be accepted only upon a

showing the accused understands the nature of the charge and enters the plea

intelligently and voluntarily.”14 A defendant must understand a plea’s

consequences, including possible sentencing consequences, for the plea to have




      ~ CP at 81-90,105-06.
      8    CP at 278.
      ~ State v. Buckman, 190 Wn.2d 51, 57, 409 P.3d 193 (2018).
      10   State v. A.N.J., 168 Wn.2d 91, 107, 225 P.3d 956 (2010).
      11   Id.
      12   Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611(2002).
      13   Buckman, 190 Wn.2d at 65; A.N.J., 168 Wn.2d at 107.
      14kLat59 (quoting A.N.J., 168 Wn.2d at 117).



                                          3
No. 77648-7-1/4


been made knowingly and voluntarily.15 Constitutional error occurs if a plea is not

made knowingly, intelligently, and voluntarily.16

       Dawson argues one of his three trial attorneys misinformed him about the

consequences of pleading guilty because she overstated the amount of early

release time he could accrue.17 Dawson’s sole evidence, other than his own

affidavit, is a sentence fragment in defense attorney Emily Gause’s notes from a

meeting they had on May 23, 2013.18 For context, the notes follow in their entirety.

       Meeting w/ Wayne                      5/23/13

       explained risks here Rape 1° Kidnap        10


       would run consecutive       16+ yrs

       Oregon 3 charges     100+ mm on each

       300+ mo

       WA would run consecutive to OR

       Offer: 16 years      (roughly 10 more years)

                     ISRB

              sexual deviancy eval.   -~   Bill Lennon[19J



       15Id. (citing In re. Pers. Restraint of Stockwell, 179 Wn.2d 588, 594-95, 316
P.3d 1007 (2014)).
      16 j4. at 59-60 (holding constitutional error occurred where a defendant
pleaded guilty after being misinformed about the consequences).
      17 Appellant’s Br. at 4.

        Id. (citing CP at 197); CP at 94 (arguing in his CrR 7.8 affidavit that
       18
Gause misinformed him).
     19 CP at 197.




                                             4
No. 77648-7-115


Relying on the fragment roughly 10 more years” and his affidavit, Dawson argued

below that Gause misinformed him about the length of his sentence based on how

she calculated his potential early release time.2° The court found Dawson’s

“assertions and allegations are not credible.”21 It also found Cause “did not

misinform the defendant as to his ‘good time’ calculation.”22 Dawson challenges

only this finding as lacking substantial evidence.23

       RCW 9.94A.729(3)(c) caps the maximum aggregate early release time a

defendant may earn at 10 percent where he has been convicted of a serious

violent offense. Cause submitted an affidavit stating she “did not and would have

never informed [Dawson] that his good time was 25 [percent]” because “I was well

aware that the good time on Rape in the First Degree was 10 [percent].”24 To

support her affidavit, Cause submitted additional meeting notes and a memo

written for Dawson. Those documents show she told him the early release accrual

amount was 10 percent.25 For example, Cause’s memo goes through the

mathematical steps to demonstrate how a 16-year sentence can, with time served

and early release time, result in a sentence of approximately 13 years. In addition

to showing the math, her notes state the phrase “good time (10%)” in two different



      20   CP at 85-86, 94; RP (Sept. 27, 2017) at 7-8.
      21   CP at 268.
      22   CP at 267.
      23   Appellant’s Br. at 1.
      24   CP at 257.
      25   OP at 187-88, 190.



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No. 77648-7-1/6


calculations.26 Based on this evidence, a reasonable person could be persuaded

that Gause did not misinform Dawson. Finding of fact 8 is supported by

substantial evidence.

       In addition to finding of fact 8, the court’s unchallenged findings support its

conclusion. These findings are verities on appeal.27 Significantly, the court found

Dawson’s asserted facts were “not credible.”28 It also found that another of

Dawson’s attorneys never misinformed him about the duration of his sentence,

and that Dawson understood the consequences of pleading guilty.29 The court’s

findings show Dawson knowingly, intelligently, and voluntarily entered his plea.3°

He fails to establish a constitutional error.

       Dawson filed a statement of additional grounds in which he contends the

State breached the plea agreement because Oregon did not dismiss all charges

against him with prejudice.31

       We review unambiguous plea agreements de novo.32 Because “[a] plea

agreement is a contract with constitutional implications,” we evaluate plea



       26   CP at 188.
       27   Robel, 148 Wn.2d at 42.
       28   CP at 268.
      29    CP at 267.
       30 Dawson also argued to the trial court that he is dyslexic and,
consequently, struggled to understand the plea agreement. But the court credited
Gause’s assertion “that she never observed [Dawson] struggle mentally or display
any substantive disability.” CP at 277. Dawson does not challenge this finding of
fact on appeal.
       31 SAG at 1-2.




                                            6
No. 77648-7-1/7


agreements using basic contract principles.33 We interpret a plea agreement to

give effect to the parties’ intent as shown by their objective manifestations.34 We

consider the whole record objectively to determine whether the State breached a

plea agreement.35

       On May 29, 2013, Dawson signed a felony plea agreement stating, “Oregon

will dismiss its indictment following sentencing.”36 During his plea hearing, the

court explained Oregon’s obligation to Dawson:

       Now, there is one promise that’s been made that hasn’t been
       incorporated into this contract formation process, and that’s the
       agreement that the Oregon authorities, who are now party to this
       case, will take certain actions down there in dismissing a pending
       charge against you. Beyond that, is there any other promise that’s
       been made, any expectation that you have that we ought to put on
       the record as a part of this agreement?[371
Dawson responded, “No, sir. Not that I’m aware of. No, sir.”38


       32 State v. Church, 5 Wn. App. 2d 577, 584, 428 P.3d 150 (2018) (quoting
State v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650, cert. denied,     U.S.—, 138
                                                                      —


S. Ct. 467, 199 L. Ed. 2d 355 (2017)).
       ~ k~. (quoting State v. Townsend, 2 Wn. App. 2d 434, 438, 409 P.3d 1094
(2018)).
        34SeeStatev. Chambers, 176 Wn.2d 573, 580-81, 293 P.3d 1185 (2013)
(citing State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003)).
        ~ State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343, 349
(2006).
        36 CP at 54.

       ~ RP (June 6, 2013) at 20. Because the Oregon authorities were never
joined as parties in this Washington criminal proceeding, we note the phrase “who
are now a party to this case” appears to contain a transcription error, and it is likely
the court stated, “who are not a party to this case.” In either event, the outcome of
the appeal is the same.
       38 Id.




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No. 77648-7-1/8


       The prosecutor reiterated this obligation: “One of the conditions on this is

that the Oregon authorities, Oregon prosecutor’s office, will at the time of

sentencing dismiss the indictments that they have currently against you with

respect to a victim by the name of [M.J.S.]. Do you understand that?”39 Dawson

replied, “I do, sir.”4° Neither colloquy refers to dismissal with prejudice.

       The only evidence of a possible dismissal with prejudice is an e-mail that a

prosecutor from King County, Washington sent to Dawson’s attorneys more than

two weeks earlier stating that Oregon “has agreed to dismiss their indictments with

prejudice.”41 But Dawson provides no evidence that he knew of this e-mail at the

time of his plea hearing. And both the State and the court told Dawson

unambiguously that Oregon’s offer was to dismiss the indictments against him, not

that they would be dismissed with prejudice. Because Dawson does not show that

the parties to the plea agreement understood it as requiring dismissal with

prejudice at the time it was made, he fails to show any breach of the agreement.

       Therefore, we affirm.




WE CONCUR:




       ~ Id. at 10.
       40   Id.
       41   CP at 108.
