                                                                          FILED 

                                                                       APRIL 23, 2013 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30467-1-111
                                             )
                     Respondent,             )
                                             )
              v.                             )
                                             )
FLINT GERAD HASTINGS,                        )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      BROWN, J. - Flint G. Hastings appeals resentencing of his second and third

degree child rape convictions (counts I and II) following remand. He contends:

      (1) the trial court erred in failing to grant him specific performance based on his
      interpretation of the parties' plea agreement,
      (2) alternatively, this court should permit him to withdraw his guilty plea, and
      (3) the trial court erred in adding a Brooks1 notation regarding count II to his
      amended judgment and sentence.

In a pro se statement of additional grounds for review (SAG), Mr. Hastings contends:

      (1) the trial court erred by imposing a determinate sentence for count I,
      (2) the trial court's finding on his present or likely future ability to pay legal
      financial obligations (LFOs) is clearly erroneous, and
      (3) his prior attorney denied him effective assistance of counsel by failing to file
      an appeal notice from his original judgment and sentence.




      1   In re Pers. Restraint of Brooks, 166 Wn.2d 664,211 P.3d 1023 (2009).
No. 30467-1-111
State v. Hastings


       We affirm.

                                            FACTS

       In March 2006, the State charged Mr. Hastings with first and third degree child

rape based on allegations he had sexual intercourse with his two minor daughters for

about five years. The parties signed a written plea agreement under which Mr. Hastings

pleaded guilty to reduced charges of second and third degree child rape. The plea

agreement and Mr. Hastings's statement on guilty plea both provided the State would

recommend concurrent sentences totaling 130 months' confinement. While the

typewritten agreement originally specified the State would recommend confinement of

130 months on count I and 20 months on count II, the parties crossed out these figures

and handwrote 104 and 26 months respectively. Apparently. the parties mistakenly

assumed statutes required consecutive sentences because Mr. Hastings's crimes

involved two victims.

      At the plea hearing. the State said it had agreed to recommend consecutive

sentences totaling 130 months' confinement with 104 months on count I and 26 months

on count II. Mr. Hastings confirmed this recommendation. At sentencing, the State

repeated this recommendation without objection from Mr. Hastings. The trial court

rejected the State's recommendation and imposed 136 months' confinement with 102

months on count I and 34 months on count II. Additionally, the court imposed

community custody for up to life on count I and for 36 to 48 months on count II. The




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No. 30467-1-111
State v. Hastings


court noted "[a]1I counts shall be served consecutively: 2 different victims." Clerk's

Papers (CP) at 97.

       Mr. Hastings did not appeal. Three and a half years later, he brought a personal

restraint petition contending"the judgment and sentence was facially invalid. He argued

the trial court exceeded its statutory sentencing authority by, among other things,

imposing consecutive sentences on both counts, and ordering a combination of

confinement and community custody on count II exceeding the five year maximum

sentence. This court partially dismissed his petition and remanded for

       (1) written clarification of the judgment and sentence to reflect the court's
       basis articulated at the ... sentencing hearing for imposing consecutive
       sentences, and (2) amendment of the judgment and sentence in
       accordance with [In re Pers. Restraint of Brooks, 166 Wn.2d 664, 211
       P.3d 1023 (2009)] to explicitly state that the combination of confinement
       and community custody for count II shall not exceed the statutory
       maximum.

CP at 145; In re Pers. Restraint of Hastings, No. 29777-2-111, slip op. at 6 (Wash. Ct.

App. Aug. 17,2011) (Order DismisSing Personal Restraint Petition in Part and

Remanding to Superior Court for Clarification and Amendment of Judgment and

Sentence).

       On remand, the trial court noted it previously erred by imposing consecutive

sentences. The State argued the court had intended to impose confinement on both

counts matching the high end of the standard sentence range on count I because while
                             .
the plea agreement recited the State's recommendation of concurrent sentences

totaling 130 months' confinement, the court imposed consecutive sentences totaling



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No. 30467-1-111
State v. Hastings


136 months' confinement instead. Accordingly, the State requested concurrent

sentences totaling either 136 or 130 months' confinement. Noting an internal

discrepancy, Mr. Hastings argued the plea agreement, read literally, required the State

to recommend concurrent sentences totaling 104 months' confinement. The State

characterized this as a scrivener's error, arguing the parties previously expressed intent

for the State to recommend concurrent sentences totaling 130 months' confinement.

Finally, the State conceded the court must add a Brooks notation ensuring the

combination of confinement and community custody on count II does not exceed the

five year maximum sentence.

       The trial court adopted the State' plea agreement recommendation and

resentenced 2 Mr. Hastings by entering an amended judgment and sentence, and an

order clarifying the amended judgment and sentence. These documents changed both

sentences from consecutive to concurrent, reduced total confinement on both counts

from 136 to 130 months, removed all community custody on count II while maintaining

community custody for up to life on count I, and added a Brooks notation regarding

count II, stating,

       THE COMBINATION OF CONFINEMENT & COMMUNITY CUSTODY
       SHALL NOT EXCEED THE STATUTORY MAXIMUM OF FIVE (5)
       YEARS FOR A CLASS C FELONY ON COUNT 2.




       2 The order clarifying the amended judgment and sentence specifies the trial
court sentenced Mr. Hastings on both counts as a nonpersistent sex offender under
RCW 9.94A.172. But no such statute exists. Apparently. the trial court meant to cite
former RCW 9.94A.712 (2008). recodified as RCW 9.94A.507.

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No. 30467-1-111
State v. Hastings


CP at 276 (emphasis omitted). Mr. Hastings appealed. This court dismissed the

remainder of his personal restraint petition to consider the merits of his appeal. In re

Pers. Restraint of Hastings, No. 29777-2-111, slip op. at 3 (Wash. Ct. App. Apr. 2, 2012)

(Order Dismissing Personal-Restraint Petition).

                                        ANALYSIS

                                   A. Scope of Review

       The issue is whether Mr. Hastings presents reviewable error claims.

       The State argues some or all his error claims are time barred under the statutory

limitations governing collateral attacks on final judgments and sentences. But those

limitations do not apply here because Mr. Hastings appealed directly from the trial

court's decisions on remand. See RCW 10.73.090(2) (defining a collateral attack as

"any form of postconviction relief other than a direct appeal"); RAP 16.14(b) (providing

that when this court remands a personal restraint petition for the trial court to determine

its merits, the offender may directly appeal the determination and this court will review it

"in the same manner and under the same procedure as any other trial court decision").

       If a defendant fails to' appeal his or her judgment and sentence within 30 days,

the defendant waives any error claims arising from it besides those he or she may

argue in a timely collateral attack. RAP 5.2(a); State v. Roy, 126 Wn. App. 124, 130,

107 P.3d 750 (2005); State v. Gaut, 111 Wn. App. 875, 880,46 P.3d 832 (2002). The

defendant does not generaliy revive waived error claims by later appealing an amended

judgment and sentence. State v. Smissaert, 103 Wn.2d 636,642,694 P.2d 654 (1985).



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State v. Hastings


But the trial court's interim action may create new appealable issues. See RAP

2.5(c)(1). On remand, a trial court may generally "exercise independent judgment"

regarding issues the parties did not raise in a prior appeal and, where it does so, we

may review the decision in a later appeal. RAP 2.5(c)(1) cmt., 86 Wn.2d 1153 (1976);

see State v. Barberio, 121 Wn.2d 48,50-51,846 P.2d 519 (1993). While the scope of

this court's mandate can limit the trial court's discretion to resentence a defendant on

remand, State v. Kilgore, 167 Wn.2d 28, 42,216 P.3d 393 (2009) (citing State v.

Collicott, 118 Wn.2d 649,660,827 P.2d 263 (1992», the trial court otherwise retains the

power and duty to correct the defendant's sentence when it discovers an error,

Smissaert, 103 Wn.2d at 639 (citing McNutt v. Delmore, 47 Wn.2d 563, 565, 288 P.2d

848 (1955»; see also Brooks v. Rhay, 92 Wn.2d 876,877,602 P.2d 356 (1979).

       Here, Mr. Hastings did not appeal his original judgment and sentence but brought

an untimely personal restraint petition that this court partially dismissed and remanded

to the trial court. This court's mandate directed the trial court to clarify its intended basis

for imposing consecutive sentences on both counts and add a Brooks notation

regarding count II. On remand, the trial court additionally adopted the State's plea

agreement recommendation and resentenced Mr. Hastings after noting it previously

erred and considering the parties' new arguments. Thus, the trial court exercised

independent judgment when it changed both sentences from consecutive to concurrent,

reduced total confinement on both counts from 136 to 130 months, and removed all

community custody on count II. Because Mr. Hastings's specific performance, Brooks



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No. 30467-1-111
State v. Hastings


notation, and determinate sentence contentions arise from these decisions, they

present new appealable issues for our review. On the other hand, the trial court did not

exercise independent judgment regarding Mr. Hastings's plea withdrawal, LFO, or

ineffective assistance contentions, so they arise from the original judgment and

sentence and are waived issues we do not review.

                                B. Specific Performance

      The issue is whether.the trial court erred in failing to grant Mr. Hastings specific

performance based on his interpretation of the parties' plea agreement. He contends

the plea agreement required the State to recommend concurrent sentences totaling 104

months' confinement. On remand, the State recommended concurrent sentences

totaling either 136 or 130 months' confinement. The State contradicts Mr. Hastings's

contentions and alternatively argues the plea agreement is ambiguous. We interpret a

plea agreement's terms de novo. State v. Bisson, 156 Wn.2d 507, 517, 130 P.3d 820

(2006).

      A plea agreement is a contract between the defendant and the State, under

which the defendant pleads guilty in exchange for some State concession such as a

sentencing recommendation. State v. Barber, 170 Wn.2d 854, 859, 248 P.3d 494

(2011). Common law requires the State to act in good faith regarding a plea

agreement. State v. Sledge, 133 Wn.2d 828,839,947 P.2d 1199 (1997). Due process

requires the State to follow a plea agreement's terms. Id. (citing Santobello v. New

York, 404 U.S. 257, 92 S. Ct. 495,30 L. Ed. 2d 427 (1971)). The State breaches a plea



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No. 30467-1-111
State v. Hastings


agreement by, for example,failing to recommend a sentence as promised. Barber, 170

Wn.2d at 859. If the State breaches a plea agreement, the defendant may seek specific

performance or plea withdrawal. State v. Tourtellotte, 88 Wn.2d 579, 585,564 P.2d 799

(1977) (citing Santobel/o, 404 U.S. at 263).

       Mr. Hastings sought specific performance, a remedy that "entitles a defendant to

'the benefit of his original bargain.   III   Barber, 170 Wn.2d at 859 (quoting Tourte/lotte, 88

Wn.2d at 585). A court may not grant specific performance of an ambiguous plea

agreement. Bisson, 156 Wn.2d at 523-24. A plea agreement term is ambiguous if it is

"reasonably susceptible to different interpretations." Id. at 523 (internal quotation marks

omitted). When interpreting a plea agreement, we consider solely the parties' "objective

manifestations of intent." ignoring any "unexpressed subjective intent." State v. Turley,

149 Wn.2d 395, 400, 69 P.3d 338 (2003).

       Here, the plea agreer'r)ent provided the State would recommend 130 months'

total confinement. The parties expressed this intent in Mr. Hastings's statement on

guilty plea, at the plea hearing, and at the original sentencing. Further, Mr. Hastings

mentioned no contrary understanding until remand. By crossing out the typewritten

figures and handwriting others, the parties created an internal discrepancy on whether

they intended for the State to recommend concurrent or consecutive sentences. This

does not, as Mr. Hastings now argues, show the parties intended for the State to

recommend 104 months' confinement total. We ignore any suggested unexpressed

subjective intent.



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No. 30467-1-111
State v. Hastings


       Considering the parties' objective manifestations of intent, we conclude the plea

agreement unambiguously required the State to recommend 130 months' confinement
                             "

total. The State substantially complied with this requirement on remand. The trial court

adopted the State's plea agreement recommendation by resentencing Mr. Hastings to

130 months' total confinement. Thus, on remand, Mr. Hastings received the benefit of

his original bargain. Therefore, the trial court did not err in failing to grant Mr. Hastings

specific performance based on his interpretation of the parties' plea agreement.

                                    C. Brooks Notation

       The issue is whether the trial court erred in adding a Brooks notation regarding

count II in Mr. Hastings's amended judgment and sentence. He contends our Supreme

Court disapproved the Brooks notation and asks us to remand for the trial court to either

reduce community custody or resentence him on count II. We review a sentence's legal

sufficiency de novo. State v. Pappas, 176 Wn.2d 188, 192,289 P.3d 634 (2012).

       Because the trial court resentenced Mr. Hastings under RCW 9.94A.507, and did

so after July 26, 2009, it had to reduce community custody on count II if the combination

of confinement and community custody on count II could exceed the five year maximum

sentence for a class C felony. RCW 9.94A.701(8)-(9), 9A.20.021(1)(c), .44.079(2);

LAws OF 2009, ch. 375, § 20. Our Supreme Court has held the Brooks notation alone

does not meet this new statutory requirement. State v. Boyd, 174 Wn.2d 470, 472-73,

275 P.3d 321 (2012) (clarifying State v. Franklin, 172Wn.2d 831, 839-41, 263 P.3d 585

(2011». The original judgment and sentence imposed 34 months' confinement and 36



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No. 30467-1-111
State v. Hastings


to 48 months' community custody on count II, exceeding the five year maximum

sentence. The trial court fixed the error by removing all community custody on count II.

While the court additionally added a Brooks notation per this court's mandate, the

language was superfluous. Notwithstanding the Brooks notation, the court met the new

statutory requirement ensuring Mr. Hastings's sentence did not exceed the maximum.

In sum, the court did not efT.

                           D. Statement of Additional Grounds

       In his pro se SAG, Mr. Hastings contends the trial court erred by imposing a

determinate sentence for count I because RCW 9.94A.507 required an indeterminate

sentence. He asks this court to grant "specific performance of the determinate standard

range sentence." SAG at 3 (emphasis omitted). We review a sentence's legal

sufficiency de novo. Pappas, 176 Wn.2d at 192.

       Because the trial court convicted Mr. Hastings of second degree child rape and

found he was a nonpersistent sex offender, it had to impose an indeterminate sentence

for count I under RCW 9.94A.507. See RCW 9.94A.507(1)(a)(i). Thus, the court had to

"impose a sentence to a maximum term and a minimum term." RCW 9.94A.507(3)(a).

The minimum term had to be "within the standard sentence range for the offense,"

which was 102 to 136 months' confinement. RCW 9.94A.507(3)(c)(i), .510. The court

imposed a minimum term of 130 months' confinement. The maximum term had to be

"the statutory maximum sentence for the offense," which was life imprisonment. RCW

9.94A.507(3)(b), 9A.20.021 (1)(a), .44.076(2). The court imposed a maximum term of



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No. 30467-1-111
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community custody for up to life. Specifically, the court imposed community custody for

"any period of time the person's released from total confinement before the expiration of

the [life] maximum sentence." CP at 277; accord RCW 9.94A507(5). Mr. Hastings

confuses the unique nature of this sentence type. State agencies call it "determinate

plus" because it involves both determinate and indeterminate components. JOHN C.

STEIGER, WASH. STATE CASELOAD FORECAST COUNCIL, 2012 WASHINGTON STATE ADULT

SENTENCING GUIDELINES MANUAL § 3, at 24-25 (version 20121231,2012). Therefore, the

court properly sentenced Mr. Hastings under RCW 9.94A507 for count I.

       Affirmed.

       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.



                                                   Brown, J.

WE CONCUR:




Kulik, J.                                          Siddoway, AC.J.




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