State of Washington v. Flint Gerad Hastings ( 2013 )

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FLINT GERAD HASTINGS, ) UNPUBLISHED OPINION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
2
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
3
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.
4
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).
5
No. 30467-1-111
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
6
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
7
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.
8
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
9
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
10
No. 30467-1-111
State v. Hastings
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.
11