State Of Washington, V. Jamal S. Baker ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80227-5-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
JAMALL SHONREE BAKER,
Appellant.
SMITH, J. — Jamall Baker pleaded guilty to first degree murder in 2010
after being found competent to stand trial. He appealed his conviction almost a
decade later, contending that cognitive impairments and memory loss had
affected his understanding of his right to appeal. We granted his motion to
enlarge the time to appeal. Because we find his guilty plea was knowing and
voluntary, we affirm but remand for Baker to be resentenced under the 24 to 48
month community custody range in effect at the time of his crime and to strike
some of the community custody provisions and legal financial obligations.
FACTS
In February 2008, Baker was arrested for the murder of Nicky
Schoonover. He was then brought to the emergency room for an overdose after
apparently ingesting multiple substances around the time of his arrest. In April,
the court ordered Baker to be evaluated by Western State Hospital for
competency. A psychologist at Western State Hospital ultimately evaluated
Baker three times, and an independent psychologist also evaluated Baker in
Citations and pin cites are based on the Westlaw online version of the cited material.
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January 2010. Both psychologists concluded that although Baker suffered from
mental illness, he was competent to stand trial. On February 19, 2010, the court
ordered that Baker was competent.
In March 2010, Baker pleaded guilty to one count of murder in the first
degree. Before entering his plea, Baker was informed that this was his first strike
under the “two strikes law” and that if he was convicted of one additional crime
that counted as a strike, he would be subject to a sentence of life without the
possibility of release. He was also informed he would face 36 months of
community custody. As part of his plea, Baker stipulated that his two prior
California burglary convictions were comparable to Washington crimes, making
them admissible for purposes of his offender score.
The court accepted Baker’s plea and sentenced him to 325 months. The
court ordered 36 months of community custody and imposed various conditions,
and it ordered Baker to pay a $100 crime lab fee, community custody supervision
costs, and interest on all legal financial obligations. Baker appeals.
ANALYSIS
Baker challenges the validity of his plea agreement. He contends that his
plea was not knowing, intelligent, and voluntary because he was misinformed
about the sentencing consequences, and he contends that this misinformation
constituted ineffective assistance of counsel. He also challenges his community
custody term and several community custody conditions and legal financial
obligations imposed by the trial court.
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Validity of Guilty Plea
Baker first contends that his plea was invalid because misinformation
about Washington’s three strikes policy, the community custody term he was
facing, and the inclusion of his out-of-state offenses in his offender score
rendered his plea involuntary. We disagree. Baker also contends that we should
consider this claim in light of his “fragile mental state” at the time. However,
Baker does not appeal the court’s findings, based on four psychological reports,
that he was competent. Accordingly, we treat his competence as a verity on
appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
To be valid, a guilty plea must be knowing, voluntary, and intelligent.
State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006); see also CrR 4.2(d).
“A plea is knowing and voluntary only when the person pleading guilty
understands the plea's consequences, including possible sentencing
consequences.” State v. Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018).
There is a strong public interest in the enforcement of voluntarily and intelligently
made plea agreements. State v. Codiga, 162 Wn.2d 912, 922, 175 P.3d 1082(2008).
In analyzing whether a defendant was informed of the consequences of
their plea, we distinguish between direct and collateral consequences of the plea
by asking “‘whether the result represents a definite, immediate and largely
automatic effect on the range of the defendant’s punishment.’” State v. A.N.J.,
168 Wn.2d 91, 114, 225 P.3d 956 (2010) (internal quotation marks omitted)
(quoting State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). On direct
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appeal, “a defendant who is misinformed of a direct consequence of pleading
guilty is not required to show the information was material to his decision to plead
guilty” to have their plea withdrawn. Mendoza, 157 Wn.2d at 589. However,
misinformation about a collateral consequence will invalidate a plea only if the
defendant shows that they “materially relied on that misinformation when
deciding to plead guilty.” In re Pers. Restraint of Reise, 146 Wn. App. 772, 787,
192 P.3d 949 (2008).
Furthermore, a defendant can establish that a guilty plea was involuntary
or unintelligent where they relied on inadequate assistance from their attorney.
State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015 (2011). To establish
ineffective assistance of counsel, the defendant must show “first, objectively
unreasonable performance, and second, prejudice to the defendant.” Sandoval,
171 Wn.2d at 169. “‘The reasonableness of counsel’s performance is to be
evaluated from counsel’s perspective at the time of the alleged error and in light
of all the circumstances.’” In re Pers. Restraint of Davis, 152 Wn.2d 647, 673,
101 P.3d 1 (2004) (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.
Ct. 2574, 91 L. Ed. 2d 305 (1986)).
1. Strike Advisement
Baker first contends that his plea is invalid because he was misinformed
about the three strikes law. Before entering his guilty plea, the court and the
attorneys advised Baker that this was a first strike under the two strikes law. In
actuality, Baker’s conviction was the first of three strikes because his crime did
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not trigger the two strikes provision. Former RCW 9.94A.030(29)(a), (33)(a)-(b)
(2006); RCW 9.94A.570.
Because the court and the lawyers misstated the strikes law, Baker was
clearly misinformed about a sentencing consequence. However, whether he had
one strike or two strikes remaining is a collateral consequence of his sentencing,
because the sentencing effect depends on possible future crimes rather than
being “‘definite, immediate and largely automatic.’” A.N.J., 168 Wn.2d at 114(internal quotation marks omitted) (quoting Barton, 93 Wn.2d at 305). Because
Baker does not contend that he “materially relied on that misinformation when
deciding to plead guilty,” this misinformation about a collateral consequence does
not render his guilty plea invalid. Reise, 146 Wn. App. at 787.
Similarly, Baker does not establish ineffective assistance of counsel
requiring a withdrawal of the plea. While the misinformation from his counsel
was objectively unreasonable and deficient assistance, Baker does not allege
that he was prejudiced by this deficient assistance. Thus, Baker’s plea is not
invalidated by the erroneous strike advisement.
Baker disagrees and contends that Padilla v. Kentucky, 559 U.S. 356,
365-66, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), rejected the distinction
between direct and collateral consequences. However, Padilla specifically
addressed ineffective assistance of counsel claims in the context of deportation
as a consequence of conviction. Padilla, 559 U.S. at 365. Furthermore, even
after Padilla, a defendant still must show prejudice to prevail on an ineffective
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assistance of counsel claim. Sandoval, 171 Wn.2d at 169. Padilla therefore
does not change our analysis.
2. Community Custody Term
Baker next contends that misinformation about his community custody
term renders his plea invalid.
“Whenever any criminal or penal statute shall be amended . . . all offenses
committed or penalties . . . incurred while it was in force shall be punished or
enforced as if it were in force, notwithstanding such amendment . . . , unless a
contrary intention is expressly declared in the amendatory . . . act.”
RCW 10.01.040. Under the statute in effect at the time of the crime in 2008,
Baker faced a range of 24 to 48 months of community custody. Former
RCW 9.94A.715(1) (2006); former RCW 9.94A.030(41) (2006) (classifying
murder in the first degree as a serious violent offense); former WAC 437-20-010
(2007). However, in 2009, the legislature amended the law to impose a fixed 36-
month community custody term. LAWS OF 2009, ch. 375, § 5. The legislature
expressly provided that this amendment would “appl[y] retroactively and
prospectively.” LAWS OF 2009, ch. 375, § 20. In State v. Snedden, 166 Wn. App.
541, 544-45, 271 P.3d 298 (2012), we affirmed that the amendment applied
retroactively because the legislature expressed its intention that it would do so.
However, in State v. Coombes, 191 Wn. App. 241, 253, 361 P.3d 270 (2015), we
held that this was an unconstitutional ex post facto law and that therefore a
defendant who committed a crime before the amendment needed to be
sentenced under the discretionary range.
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Here, Baker was accurately informed about the law as it existed at the
time of his sentencing. See State v. Kinsey, noted at 98 Wn. App. 1024, 1999
WL 1101259, at *3. (because “Kinsey was misinformed as to the meaning of the
law as it existed at the time of his plea,” there was “no unfairness or
impracticality” in determining that plea was invalid on basis of later case
explaining this meaning (emphasis added)). Thus, Baker’s plea is not involuntary
on this basis. Nor does his attorney’s explanation of the law constitute ineffective
assistance of counsel because it was not defective advice to describe the law as
it existed. State v. Butler, 17 Wn. App. 666, 675, 564 P.2d 828 (1977) (legal
advice “within the range of competence required of attorneys representing
defendants in criminal cases” does not render plea involuntary).
3. Inclusion of Out-of-State Burglaries
Baker next contends that he was misadvised about the comparability of
his out-of-state burglaries. However, the record does not support this conclusion.
“When a defendant completes a plea statement and admits to reading,
understanding, and signing it, this creates a strong presumption that the plea is
voluntary.” State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). As part of
his plea agreement, Baker “affirmatively acknowledge[d]” that his California
burglary convictions were comparable to Washington burglaries and therefore
would count in his offender score. He also agreed that “[a]ny challenge . . . to the
criminal history or scoring will constitute a breach” of his plea agreement.
Baker contends that he was misinformed and given ineffective assistance
of counsel because he was told that the California burglary convictions counted
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in his offender score. However, he makes no citation to the record that indicates
he was misinformed. To the contrary, the record indicates that he agreed to their
inclusion as part of a deal that involved the State’s agreement to forego charging
Baker with a firearm enhancement as well as five separate additional crimes.
The court then properly sentenced Baker to the standard range based on Baker’s
stipulation that his offenses were comparable. State v. Foster, 140 Wn. App.
266, 276, 166 P.3d 726 (2007) (defendant’s stipulation that out-of-state
conviction was comparable relieved the State of its burden to prove
comparability). Without any evidence that Baker was misinformed about the
nature of the deal he was accepting, we cannot conclude that his plea was
invalid. Similarly, he cannot overcome the “strong presumption that counsel was
effective” in stipulating to the comparability of these convictions when this
decision was part of an agreement that brought significant benefit to Baker.
Foster, 140 Wn. App. at 273.
We conclude that none of Baker’s asserted errors render his plea invalid.
Community Custody Term
Baker challenges the length of his community custody term. As discussed
above, Baker is constitutionally entitled to be sentenced under the 24 to 48
month community custody range in effect at the time of his crime. The State
concedes, and we agree, that on remand the court must resentence Baker in
accordance with the law in effect at the time of the crime. In re Pers. Restraint of
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Alston, 7 Wn. App. 2d 462, 472, 434 P.3d 1066 (2019).1
Community Custody Conditions
Baker next challenges several of the conditions of his community custody.
We address these in turn.
1. Alcoholics Anonymous/Narcotics Anonymous Requirement
The court ordered Baker to attend Alcoholics Anonymous or Narcotics
Anonymous meetings as part of his community custody. Baker contends that
this order violates the establishment clause of the First Amendment to the United
States Constitution because these programs are religious. While we have held
that mandating attendance at such a program would violate the establishment
clause, we did so when presented with evidence that these programs were
religious. In re Pers. Restraint of Garcia, 106 Wn. App. 625, 630, 24 P.3d 1091,
33 P.3d 750 (2001). Here, there is no information about these programs in the
record, and we are not equipped to take judicial notice that these programs are
universally religious today. See ER 201 (explaining when a court may take
judicial notice). Accordingly, we do not strike this requirement.
2. Drug Areas
The court’s community custody order directed Baker to “[s]tay out of drug
areas as defined by the supervising Community Corrections Officer.” The State
1Baker contends in passing that he must be sentenced to 36 months or
fewer on remand but does not cite to any case supporting this. “We will not
consider an inadequately briefed argument.” Norcon Builders, LLC v. GMP
Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011). However, we
note that after a remand, “a more severe sentence establishes a rebuttable
presumption of vindictiveness,” violating the defendant’s due process. State v.
Franklin, 56 Wn. App. 915, 920, 786 P.2d 795 (1989).
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concedes, and we agree, that this is unconstitutionally vague. On remand, the
condition must either be stricken or clarified. See State v. Irwin, 191 Wn. App.
644, 652, 655, 364 P.3d 830 (2015) (striking condition barring defendant from
“‘frequent[ing] areas where minor children are known to congregate, as defined
by the’” supervising corrections officer, because without clarifying language or an
illustrative list, condition was unconstitutionally vague).
3. Possession and Consumption of Alcohol
Baker next challenges the community custody provision directing him not
to “purchase, possess[,] or consume alcohol” and not to “frequent establishments
where alcohol is the chief commodity for sale.” The statute in effect at the time
permitted the court to prohibit the consumption of alcohol as a condition of
community custody, but the State concedes that the additional requirements
related to alcohol needed to be crime related.2 Former RCW 9.94A.505(8)
(2006) (permitting crime-related prohibitions and affirmative conditions); former
RCW 9.94A.700(5)(d) (2003) (permitting prohibition on alcohol consumption).
Because the court entered no findings that the crime was alcohol-related, the
conditions other than alcohol consumption must be stricken.
2 The State contends we should not address Baker’s contentions that
certain community custody provisions are not crime-related because he did not
object to these provisions at sentencing. While we have declined to consider
arguments that conditions are not crime-related where the defendant agreed to
the conditions, State v. Casimiro, 8 Wn. App. 2d 245, 249, 438 P.3d 137, review
denied, 193 Wn.2d 1029 (2019), generally, erroneous sentences may be
challenged for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193
P.3d 678 (2008). Here, Baker did not agree to the State’s sentencing
recommendation as part of his plea agreement, and we consider all of his
challenges to community custody conditions.
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4. Substance Abuse Treatment
The court ordered Baker to participate in substance abuse treatment as
directed by the corrections officer. This provision was authorized under former
RCW 9.94A.700(5)(e) (2003) as a crime-related provision. However, the court
left blank a box indicating that a chemical dependency contributed to Baker’s
crime. On remand, the court should enter this finding or strike the condition.
5. Mental Health Treatment
The court also ordered Baker to participate in mental health treatment.
Under former RCW 9.94A.505(9) (2006), “[t]he court may order an offender . . .
to undergo a mental status evaluation and to participate in available outpatient
mental health treatment, if the court finds that reasonable grounds exist to
believe that the offender is a mentally ill person . . . and that this condition is
likely to have influenced the offense.” The court did not enter findings to this
effect. On remand, the court should do so or strike the condition.
6. Drug Paraphernalia
Finally, the court prohibited Baker from “possess[ing] drug paraphernalia.”
In State v. Sanchez Valencia, 169 Wn.2d 782, 794-95, 239 P.3d 1059 (2010), the
Washington Supreme Court held that a provision barring the possession of “‘any
paraphernalia’” was void for vagueness and noted that “‘an inventive probation
officer could envision any common place item as possible for use as drug
paraphernalia.’” Similarly, we hold that this condition is void for vagueness and
direct the trial court to strike or clarify the condition on remand.
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Legal Financial Obligations
Finally, Baker contends that the court erred by imposing crime lab fees,
interest on nonrestitution legal financial obligations, and community custody
supervision fees. Baker is indigent. At sentencing, the trial court indicated that it
did not wish to impose any additional financial obligations beyond the victim
penalty assessment, restitution, DNA (deoxyribonucleic acid) fee, and crime lab
fee. Crime lab fees and nonrestitution interest may no longer be imposed on an
indigent defendant. RCW 10.01.160(3); RCW 43.43.690; RCW 3.50.100(4)(b).
Community custody supervision fees are discretionary legal financial obligations.
RCW 9.94A.703(2). Accordingly, the court should strike these costs on remand.
State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199, review denied, 195
Wn.2d 1022 (2020).
We affirm but remand for resentencing.
WE CONCUR:
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