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State v. Buckman

Supreme Court of Washington, En Banc

February 1, 2018

STATE OF WASHINGTON, Respondent,
v.
BRIAN WALLACE BUCKMAN, Petitioner.

          WIGGINS, J.

         Brian Buckman pleaded guilty to second degree rape of a child. RCW 9A.44.076. After sentencing, Buckman learned that he had been misinformed of the sentencing range that applied to him. Based on this misinformation, Buckman now seeks to withdraw his plea as involuntary. Because Buckman's motion to withdraw is a collateral attack on his judgment and sentence, he must show both error-here, that his plea was involuntary-as well as actual and substantial prejudice resulting from that error.

         We conclude that Buckman's plea was involuntary because he was misinformed that he might be sentenced to life in prison despite the fact that the statute provided that a sentence of life in prison could not apply to a 17-year-old, Buckman's age at the time of the offense. But we also hold that he is not entitled to withdraw his plea because he fails to show that the misinformation provided at the time of his plea caused him actual and substantial prejudice. As a result, we deny the motion to withdraw and remand for resentencing only.

         FACTS

         When Buckman was 17 years old, he had a sexual relationship with 13-year-old K.B.S. Law enforcement learned of the relationship when Buckman was 19; Buckman was subsequently charged in superior court with second degree rape of a child. In a written statement, Buckman acknowledged "dating" K.B.S. and stated that he had not understood their relationship to be unlawful. Buckman emphasized that K.B.S.'s parents had consented to the relationship. Buckman was told that his crime carried the possibility of life in prison. Under the statutes, second degree rape of a child has a sentence range of 86 to 114 months with a maximum term of life, as well as lifetime community custody. RCW 9.94A.507(5), .510, .515; RCW 9A.20.021(a), .076(2).

         Buckman was also told about the possibility of a special sex offender sentencing alternative (SSOSA) under RCW 9.94A.670. Under a SSOSA, the court sentences a qualifying defendant to a term of confinement up to 12 months followed by a term of community custody, and imposes appropriate conditions such as undergoing appropriate sex offender treatment. If the defendant violates the conditions of community custody, the court can modify the conditions or revoke the suspended sentence. Id.

         The record before us does not disclose the discussions that led to Buckman's guilty plea. However, Buckman's sworn statement in support of his motion to set aside his guilty plea includes two relevant statements. First, Buckman asserts that he was told that the maximum sentence for his crime was life in prison and that "[u]pon this information, Buckman had pleaded guilty in exchange for a SSOSA sentence under RCW 9.94A.670." Clerk's Papers (CP) at 88. Second, the misinformation about his possible sentence "had forced his decision making to plead guilty for a lighter sentence under SSOSA's RCW 9.94A.670." CP at 90.

         On Buckman's plea form and in his colloquy with the court, the State and the trial court told him that his crime carried the possibility of life in prison. Under the statutes, second degree rape of a child has a sentence range of 86 to 114 months with a maximum term of life, as well as lifetime community custody. RCW 9.94A.507(5), .510, .515; RCW 9A.20.021(a), .076(2). However, the statute specifically does not apply to individuals who are "seventeen years of age or younger at the time of the offense." RCW 9.94A.507(2). Buckman was only 17 at the time he had a sexual relationship with K.B.S. Instead of the possibility of life in prison and lifetime community custody, he was subject to a maximum sentence of 114 months and a maximum of only 3 years of community custody. RCW 9.94A.515 (rape of a child in the second degree is a level XI crime), .510 (seriousness level XI and an offender score of I yields a sentence range of 86 to 114 months); RCW 9.94A.701(1)(a).

         Buckman was ultimately sentenced under the SSOSA. Buckman served six months in jail and was released on lifetime community custody. Buckman violated his community custody provisions and was resentenced to 114 months. At resentencing, Buckman's new attorney realized that Buckman, who was not yet 18 years old at the time of the offense, should not have been sentenced under RCW 9.94A.507.

         Buckman filed a motion to modify or correct his judgment and sentence, then filed a motion to withdraw his plea.[1] In seeking to withdraw his plea, Buckman argued that he would "never have pled guilty" had he been properly informed that he was not subject to possible life imprisonment. Suppl. Br. of Pet'r (Buckman Br. Pro Se) at 7. The State conceded that he was improperly sentenced.

         Disagreeing with both parties, the trial court held that Buckman had been properly sentenced. "Seventeen years of age or younger, " the court concluded, means on or before a person's 17th birthday. Because Buckman had passed his 17th birthday (but was not yet 18) at the time of the offense, the court concluded that Buckman was not "seventeen years of age or younger" and that RCW 9.94A.507 applied. The court thus denied both Buckman's motion to correct his sentence and his motion to withdraw his plea.

         The Court of Appeals reversed the trial court's statutory interpretation, holding that Buckman had been improperly sentenced. State v. Buckman, 195 Wn.App. 224, 229-30, 381 P.3d 79 (2016). However, the court found that Buckman had been properly informed as to the consequences of his plea for two reasons: First, the trial court told Buckman the correct sentencing range (86 to 114 months). RCW9.94A.515 (rape of a child in the second degree is a level XI crime), .510 (seriousness level XI and an offender score of I yields a sentence range of 86 to 114 months). Second, the trial court accurately told Buckman the maximum penalty for the crime charged-even though that maximum was not applicable to someone, like Buckman, who was less than 18 years old when the offense occurred. 195 Wn.App. at 230. Thus, the Court of Appeals concluded that Buckman had been properly informed, found that Buckman's plea was knowing and voluntary, and affirmed the trial court's denial of Buckman's motion to withdraw his plea. The court then remanded for resentencing only. Id.

         Buckman thereafter filed a motion for discretionary review with this court, which we granted.

         STANDARD OF REVIEW

         The standard of review in this case is de novo. Normally, we review CrR 7.8 motions to withdraw a guilty plea for abuse of discretion. See State v. Hardesty, 129 Wn.2d 303, 915 P.2d 1080 (1996) (applying an abuse of discretion standard when the decision involved factual findings). However, the request for withdrawal in this case is based on a claimed constitutional error and resulting prejudice-both of which are issues that we review de novo.[2] State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012); In re Pers. Restraint of Stenson, 174 Wn.2d 474, 488, 276 P.3d 286 (2012) (Prejudice "is a mixed question of law and fact" that we review de novo.).[3]

         ANALYSIS

         Buckman argues (1) that his plea is involuntary because he was improperly informed of his sentencing consequences and (2) that this error was prejudicial. See Buckman Br. Pro Se at 7 ("It is actual and substantial prejudice to accept a plea deal on the belie[f] that if you don't plead guilty there is a possibility you'll face the rest of your life in prison.").

         Because Buckman was misinformed of his possible sentencing consequences, we hold that his plea was involuntary. However, Buckman fails to show that a rational person in his circumstances would have declined to plead guilty and would more likely than not have gone to trial; instead, he merely asserts without explanation that he would not have pleaded guilty. Because Buckman's prejudice claim is unsupported by argument and because it makes a subjective statement unsupported by evidence, Buckman fails to meet his burden and fails to adequately show prejudice.

         We therefore hold that Buckman's plea was involuntary, but that Buckman failed to show prejudice arising from the error. We affirm the Court of Appeals on this basis and remand for resentencing.

         I. Buckman's Plea Was Involuntary Because He Was Misinformed regarding His Possible Sentencing Consequences

         "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." State v. A.N.J., 168 Wn.2d 91, 117, 225 P.3d 956 (2010). A plea is knowing and voluntary only when the person pleading guilty understands the plea's consequences, including possible sentencing consequences. In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 594-95, 316 P.3d 1007 (2014). "[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." State v. Mendoza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006).

         Here, Buckman argues that his plea was involuntary because he was misinformed of his possible sentencing consequences. See Buckman Br. Pro Se at 3. The Court of Appeals disagreed, concluding that Buckman was adequately informed because he was told both the correct sentencing range and the correct maximum punishment for the crime charged-even though those statutory consequences were not applicable to Buckman. Buckman, 195 Wn.App. at 230. We agree with Buckman.

         Buckman was plainly misinformed in two key respects. First, Buckman was told "that the maximum penalty here is life in prison . ..." Verbatim Report of Proceedings (Jan. 26, 2012) at 3 (emphasis added). This statement did not set forth the possible sentencing consequences for an abstract third party; it set forth the consequences for Buckman. And this assertion was incorrect as to Buckman; he was not subject to life in prison. That a hypothetical third party charged with the same crime might face life in prison is irrelevant. Second, Buckman was misinformed that he faced lifetime community custody. He did not; his proper community custody term was a maximum of three years. RCW 9.94A.701(1)(a). Thus, Buckman was misinformed of his possible sentencing consequences and this misinformation rendered Buckman's plea involuntary. Mendoza, 157 Wn.2d at 591.

         Whether this constitutional error was prejudicial, however, is a separate question. As neither the trial court nor the Court of Appeals found constitutional error, no court has yet considered prejudice.[4]

         II. Buckman Does Not Meet His Burden To Show That He Was Actually and Substantially Prejudiced

         A motion to withdraw a plea after judgment has been entered is a collateral attack.[5] On collateral review, when the claimed error is "a misstatement of sentencing consequences, " we require the petitioner to show "actual and substantial prejudice." Stockwell, 179 Wn.2d at 598-99. The meaning of "actual and substantial prejudice" has evolved over decades of decisions by this court, settling into the clear and stable definition we use today: the petitioner must show that the outcome of the guilty plea proceedings would more likely than not have been different had the error not occurred. Our path to this rule unfolded as follows.

         A. For over Three Decades, This Court Has Required Collateral Attacks To Show Both Error and Prejudice

         In 1982, we stated that "to prevail in a collateral attack, a petitioner must show that more likely than not he was prejudiced by the error." In re Pers. Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982). In Hagler, however, we were concerned with prejudice at trial, not at the guilty plea stage. Id. at 827 (petitioners sought relief based on jury instructions).

         In two 1987 cases, this court said in dicta that a constitutionally invalid plea constitutes prejudice at the guilty plea stage. In re Pers. Restraint of Hews, 108 Wn.2d 579, 741 P.2d 983 (1987); In re Pers. Restraint of Montoya, 109 Wn.2d 270, 744 P.2d 340 (1987). But in both cases, we found no constitutional error and thus did not need to consider the question of prejudice.[6] Since we did not find any constitutional error in either case, our discussions of prejudice in both cases were unnecessary to the outcome.

         In subsequent years we clarified that on collateral review, the defendant must show some practical effect caused by a claimed error; a constitutional error generally does not, on its own, constitute prejudice. In In re Personal Restraint of Cook, we emphasized that in a collateral attack on a conviction, appellate courts decline to take up a claimed constitutional error where the petitioner fails to demonstrate "that the alleged error gives rise to actual prejudice." 114 Wn.2d 802, 813, 792 P.2d 506 (1990). And in In re Personal Restraint of St. Pierre, we disavowed past dicta suggesting, as Hews and Montoya did, that constitutional errors are presumptively prejudicial on collateral attack. 118 Wn.2d 321, 328, 823 P.2d 492 (1992). On collateral review, we concluded, mere error is not enough. Id.

         Still, we had not yet clearly articulated what "prejudice" means at the guilty plea stage-only that this elusive prejudice must be distinct from the constitutional error. Our holding in In re Personal Restraint of Riley filled this definitional gap. 122 Wn.2d 772, 863 P.2d 554 (1993).

         We clarified that the court will use the Strickland[7] standard of proof when a petitioner claims that inadequate assistance of counsel led to a defective plea agreement. Strickland established a two-pronged test of inadequate assistance: a performance prong and a prejudice prong. 466 U.S. at 687. In Riley, the petitioner claimed to have been misinformed of the consequences of his plea and further claimed that but for the error, he would not have pleaded guilty. 122 Wn.2d at 779. We adopted the federal standard that the alleged prejudice must be proved by a "reasonable probability": "In satisfying the prejudice prong, a defendant challenging a guilty plea must show that there is a reasonable probability that, but for [the alleged error], he would not have pleaded guilty and would have insisted on going to trial." Id. at 780-81 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Applying this standard, we held that petitioner's "bare allegation that [he] would not have pleaded guilty if he had known all of the consequences of the plea is not sufficient to establish prejudice." Id. at 782. We further noted that the petitioner appeared to have suffered no ill effects: he received a favorable plea deal on "the low end of the correct sentencing range" and "probably benefited. . . rather than being prejudiced in any way." Id. Thus, we clearly required something more than a mere error, and more than error coupled with a bare assertion of prejudice.[8] In the context of a guilty plea, that meant showing that the petitioner would have refused to plead guilty and instead would have insisted on proceeding to trial.[9] Since Riley, we have continued to require proof of actual and substantial prejudice. See, e.g., Stockwell, 179 Wn.2d at 596-97. And we have continued to apply the reasonable probability standard in collateral challenges based on inadequate assistance of counsel.[10] See, e.g., State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015) ("To show prejudice, the appellant need not prove that the outcome would have been different but must show only a "reasonable probability"-by less than a more likely than not standard- that, but for counsel's unprofessional errors, the result of the proceedings would have been different."); see also In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012) ("We hold that if a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to show actual and substantial prejudice.").

         Since Riley, our definition of "prejudice" at the guilty plea stage has remained stable. In Stockwell, we again required discrete prejudice on collateral review, even in the context of constitutional errors that might be presumed prejudicial on direct review. 179 Wn.2d at 600-01. In In re Personal Restraint of Davis, we stated, "To actually obtain relief on collateral review based on a constitutional error the petitioner must demonstrate by a preponderance of the evidence that the petitioner was actually and substantially prejudiced by the error." 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004); see also Hagler, 97 Wn.2d at 825-26 (stating that its holding that petitioners must show that more likely than not they were prejudiced by an error was not limited to the particular type of petition at issue). Similarly, we held in In re Personal Restraint of Yates, that error must be combined with some "practical effect" to constitute prejudice. 180 Wn.2d 33, 41, 321 P.3d 1195(2014). And we again rejected the petitioner's bare allegation that, but for the claimed error, he would have refused to plead guilty. Id. (Because Yates did not address prejudice, the court dismissed his claim that he would not have pleaded guilty.).

         The dissent disagrees with our reliance on a more probable than not standard of proof, apparently because the dissent believes that the reasonable probability standard applies to any collateral attack on a guilty plea. Dissent at 5-10. The dissent ignores, however, that the reasonable probability standard was adopted for claims of inadequate assistance of counsel and was borrowed from Strickland. Hill, 474 U.S. at 55. The dissent also ignores that we recently considered a collateral attack on a plea that was not based on inadequate assistance of counsel, holding that a petitioner must prove actual and substantial prejudice, without even mentioning the reasonable probability standard.[11] Stockwell, 179 Wn.2d 588.

         And despite the dissent's argument, we are not required to follow federal case law in articulating a standard that petitioners must meet in order to prevail on collateral attacks. The "[p]ersonal restraint procedure has its origins in the State's habeas corpus remedy, guaranteed by article 4, section 4 of the state constitution." Hagler, 97 Wn.2d at 823. While we have often looked to federal habeas corpus case law for guidance, we have always independently established our own standard of review for personal restraint petitions. Id. at 824 ("The well known and basic reasons for limiting collateral attack alluded to [by the Supreme Court] are . . . relevant to our state personal restraint petition proceedings."). As a result, the federal reasonable probability standard is not "constitutionally mandated, " as the dissent claims. Dissent at 10. Rather, we are bound by our own case law regarding the "more likely than not" standard of review applicable to petitioners on collateral review. See Hagler, 97 Wn.2d at 826.

         In sum, we have clearly and repeatedly established that the petitioner must show not only error, but also actual and substantial prejudice.[12] Prejudice at the guilty plea stage means that the defendant would more likely than not have refused to plead guilty and would have insisted on going to trial.

         In evaluating claimed prejudice, we engage in an objective, rational person inquiry, rather than a subjective analysis. Cf. dissent at 10.[13] In Stockwell, we clearly applied an objective analysis, stating that "[c]onsiderations of actual and substantial prejudice do not require insight into the defendant's state of mind and motivations, but simply look at the practical effects that resulted from error." 179 Wn.2d at 602. We adhered to this objective standard in Yates, where we reaffirmed that "we do not attempt to look into the mind and motivations of the defendant when determining whether an error resulted in prejudice." 180 Wn.2d at 41.

         The United States Supreme Court also employs an objective analysis in this context. For example, in Lee v. United States, the Supreme Court examined whether it was rational for a hypothetical individual in the defendant's position to reject a plea and insist on going to trial. ___ U.S. ___, 137 S.Ct. 1958, 1968-69, 198 L.Ed. 2D 476 (2017). The Court examined whether "it would be irrational for a defendant in Lee's position to reject the plea offer in favor of trial." Id. at 1968 (emphasis added). It went on to analyze whether "an individual, " not just Lee himself, "would make the choice to reject the plea." Id. at 1968-69. While it is true that the court performed a '"case-by-case examination' of the 'totality of the evidence, '" this did not transform the analysis into a subjective exercise. Id. at 1966 (quoting Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); cf. dissent at 10. Instead, defendants must "'convince[] the court that a decision to reject the plea bargain would have been rational under the circumstances.'" Dissent at 12 (emphasis added) (internal quotation marks omitted) (quoting State v. Sandoval, 171 Wn.2d 163, 175, 249 P.3d 1015 (2011)). Rationality is an objective inquiry informed by the circumstances of the defendant. Lee, 137 S.Ct. at 1969 ("Not everyone in Lee's position would make the choice to reject the plea.").

         Furthermore, the dissent's subjective test reduces the prejudice inquiry into a question of mere credibility. Dissent at 13. While the defendant's credibility is certainly material to the question of whether the defendant would have rejected a plea and insisted on going to trial, it is not sufficient by itself to answer whether the defendant suffered actual and substantial prejudice. This is why "[a] bare allegation that a petitioner would not have pleaded guilty if he had known all the consequences of the plea is not sufficient to establish prejudice, " regardless of whether that allegation is credible or not. Riley, 122 Wn.2d at 782. Consequently, we must apply an objective standard to determine whether Buckman suffered actual and substantial prejudice.

         B. Buckman Conflates Prejudice with the Underlying Constitutional Error

         Buckman claims he was prejudiced by (1) the misinformation regarding his possible sentence causing him to involuntarily plead guilty and (2) the fact that he would not have pleaded guilty had he been properly informed. Neither contention satisfies Buckman's burden to show prejudice.

         Buckman misunderstands the distinction between constitutional error and the possible prejudice arising from that error. He argues that prejudice is established "when a person makes a decision to plead guilty based on incorrect information about the controlling sentencing consequences that will be imposed." Pet'rs Suppl. Br. (Buckman Br. Counsel) at 8-9; see also id. at 7 ("Actual prejudice occurs when the error had practical effects, including undermining the procedure allowing a knowing, intelligent, and voluntary plea decision."). For this definition of "prejudice, " Buckman relies on two cases: the United States Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and a concurring opinion in Stockwell, 179 Wn.2d at 603-13 (Gordon McCIoud, J.). Neither suffices.

         First, Boykin is inapposite. While that case established the constitutional need for knowing and voluntary guilty pleas, it was decided on direct appeal; the defendant was not required to show prejudice. 395 U.S. at 242. Here, in contrast, Buckman brings a collateral challenge, where prejudice is required. Stockwell, 179 Wn.2d at 602-03.

         Second, Buckman's reliance on a concurring opinion in Stockwell is misplaced. As discussed supra section 11.A, a majority of this court in Stockwell required a showing of actual and substantial prejudice in order to withdraw a guilty plea on collateral attack. Id. Like Buckman, Stockwell had been misinformed of his possible sentencing consequences. Id. at 598. And like Buckman, Stockwell argued that his plea was therefore ...


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