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# I FILED DECEMBER7, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Personal Restraint of ) No. 34508-4-111 

### ) JONATHANC.MARTINEZ, ) 

### ) UNPUBLISHED OPINION Petitioner. ) ) PENNELL, J. -JonathanMartinezhas filed a personal restraintpetition (PRP), attacking his conviction and sentence for violation ofa domestic violence no-contact order. Mr. Martinez has not demonstrated any basis for relieffrom his conviction; however, he has shown a deficiency in his sentence. Specifically, the combinedterm of confinement and community custody exceeds the statutory maximum for aclass C felony. Becausethe sentence received by Mr. Martinez is belowthe standardrange, the proper remedy is remand for entry ofaBrooks 1notation. This matter is therefore remanded for this limitedpurpose. 

### FACTS OnAugust 12, 2015, Jonathan Martinezpleaded guilty to violation ofa domestic violence no-contact order. RCW 26.50.110(5). Theplea agreement called for ajoint

1Jn rePers. Restraint of Brooks, 166 Wn.2d 664,211 P.3d 1023 (2009).No. 34508-4-111 In re Pers. Restraint of Martinez
recommendation that Mr. Martinez receive a prison-based drug offender sentencing alternative (DOSA). The State also agreed to dismiss an additional charge for violation ofa no-contact order. Mr. Martinez failed to appear for sentencing on September 30, 2015. He also failed to appear for a pretrial hearing in a separate case. A bench warrantwas issued and Mr. Martinez was subsequently arrested on October 16. Because ofMr. Martinez's failure to appear and subsequent arrest, the State was no longer interested in recommending a prison-based DOSA. Instead, the prosecutor offeredto alterthe parties' agreement by agreeing not to file bailjumping charges in return for the parties'joint recommendation for a straight 60-month sentence with no DOSA. At sentencing, the State asked for a 60-month sentence consistentwith the modified plea offer. The State also sought 12 months ofcommunity custody. Defense counsel spoke at the sentencinghearing and indicated he had reviewed the terms ofthe modified plea agreement and would not oppose the State's recommendation. When given the opportunity to speak during sentencing, Mr. Martinez indicatedhe understood he had broken the law and was preparedto serve his sentence. The trial court then sentenced Mr. Martinez to 60 months ofconfinement with 12 months ofcommunity custody to follow.
2No. 34508-4-111 In re Pers. Restraint of Martinez
Mr. Martinez did not appeal hisjudgment and sentence, buthe has timely filed a PRP that was referred to this panel for review. See RAP 16.1 l(b). ANALYSIS 

### Sentence imposed exceeded statutory maximum UnderRCW 9.94A.505(5), a defendant's combined term ofconfinement and community custody cannot exceedthe statutory maximum for his orher crime of conviction.2 To safeguard against an excessive sentence, RCW 9.94A.701(9) requires that a term ofcommunity custodybereduced wheneverthe combination ofa term of community custody and "standardrange term ofconfinement" exceeds the statutory maximum sentence. When the trial court fails to act in accordance with RCW 9.94A.701(9), the remedy is remand for resentencing or amendment ofthe community custody term. See State v. Boyd, 174 Wn.2d 470, 472-73, 275 PJd 321 (2012). Mr. Martinezpleaded guilty to a class C felony. RCW 26.50.110(5). As such, his maximum term ofconfinement is 5 years. RCW 9A.20.02l(l)(c). Mr. Martinezwas sentencedto 60 months ( 5 years) ofconfinement along with 12 months ofcommunity custody. This total term of72 months exceeds the statutory maximum by 12 months.

2 Although Mr. Martinez references the EighthAmendmentto the United States Constitution in his petition, he cites no law to supportthis aspect ofhis argument. As such, this constitutional argument has not been considered. See RAP 16.7(a)(2). 3

### No. 34508-4-III In re Pers. Restraint of Martinez


### Mr. Martinez thus argues his sentence is in violation ofRCW9.94A.701(9). We agree with Mr. Martinez that his sentence is unlawful, but we do not find his case falls under RCW 9.94A.701(9). Mr. Martinez had an offender score of 10 at the time he pleaded guilty to violating
a no-contact order. A violation ofRCW26.50.110(5) has been assigned seriousness level V. RCW 9.94A.515. The standardrange for a person with an offender score of9 or
more who commits a crime assigned seriousness level Vis 72 to 96 months (6 to 8years)
. 

### • RCW 9.94A.510. Thus, Mr. Martinez was sentenced below 

### the standard range for his crime and offender score. This is significant because RCW 9.94A.701(9) only applies to terms ofconfinement within the standard range. See In re Pers. Restraintof McWilliams, 

### 182 Wn.2d 213, 217, 340 P.3d 223 (2014).3 

### As Mr. Martinez was sentenced below the standard range, RCW 9.94A.701(9) does not apply to his case. Instead, Mr. Martinez must rely on RCW 9.94A.505(5), which prohibits a trial court from imposing a combined term ofconfinement and community custody that

3 McWilliams 

### involved an exceptional sentence above the standard range for the petitioner's crime. 182 Wn.2d at 215. This case involves a sentence that is below, and thus outside, the standard sentencing range for aperson convicted ofa crime with seriousness level V and an offender score of 10. The reasoning in McWilliams 

### regarding why RCW 9.94A.701(9) only applies to sentences within the standard range applies here as well. 182 Wn.2d at 217-18. 4No. 34508-4-III In re Pers. Restraint of Martinez
exceeds the statutory maximum. See McWilliams, 182 Wn.2d at 218. Butthe proper remedy for a sentence that violates RCW 9.94A.505(5) is to remand to the trial court for inclusion of"an explicit notation in thejudgment and sentence" directing the Department ofCorrections (DOC) to modify the term ofcommunity custody to conform with the statutory maximumbased onthe amount ofconfinement actually served.4 Id. That is the remedy Mr. Martinez is entitledto here. 5 

### State's alleged violation of theplea agreement A plea agreement is a contractbetweenthe prosecutor and the defendant. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). Dueprocess requires a prosecutor to fulfill the terms ofthe agreement andrecommend the agreed upon sentence. Id. at 189. Ifa prosecutor fails to do so, a defendant may seek reliefin a personal

4 This practice is commonly referredto as a "Brooks notation." E.g. McWilliams, 182 Wn.2d at 219 (Gordon McCloud, J., dissenting). While Brooks notations are no longer common in light ofRCW 9.94A.701)(9), they remain applicable in the context of nonstandard range sentences. McWilliams, 182 Wn.2d at 218. 5 This outcome dispenses with the need to address the State's ripeness argument based on possible early release time Mr. Martinez may earn. Ifhe is released with more than 12 months remaining on the 60-month term ofconfinement, the full community custody term will be served. IfMr. Martinez is released with less than 12 months remaining on his 60-month term ofconfinement, the DOCmust adjust the term of community custody so the combined total ofconfinement and community custody does not exceed 60 months (i.e. release after 50 months would require the DOC to reduce community custody term to 10 months). See McWilliams, 182 Wn.2d at 218. 5No. 34508-4-111 In re Pers. Restraintof Martinez
restraintpetition. Id. Actual prejudice is established ifthe defendant can showthat the prosecutor failed to adhere to the terms ofthe plea agreement. Id. Whether the prosecutorbreachedthe plea agreement is analyzed by looking at the sentencing record to determine the parties' '"objective manifestations ofintent."' Id. (quoting State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003)). Ifthe plea agreement has indeedbeen breached, the defendant may either withdraw his plea and submitto a newtrial or obtain specific performance ofthe terms ofthe agreement. 

### Id at 189-90. But, ifthe defendant breached the plea agreement, the State may rescind it. State v. Thomas, 79 Wn. App. 32, 36-37, 899 P.2d 1312 (1995). Mr. Martinez argues theprosecutorbreachedthe plea agreement by not recommending a prison-basedDOSA. Theparties' original plea agreement called for the State to recommend a prison-based DOSA and dismiss the separate violation ofa domestic violence no-contact order charge. The State never made the DOSA recommendation. Itprimarily contends that defense counsel and the prosecutor renegotiated the terms ofthe agreement after Mr. Martinez failed to appear at the September 30 sentencing hearing. The State calls this a valid oral modification ofthe written plea agreement. Alternatively, the State asserts Mr. Martinezbreached the original plea agreement when he failed to appear for sentencing, relieving the State ofits
6No. 34508-4-III 

### In re Pers. Restraint of Martinez duty to make a DOSArecommendation. As another alternative, the State argues Mr. Martinez agreed to the terms ofthe modified plea agreement at the October 28 sentencing hearing and is barred from seeking review under the invited error doctrine. Because plea agreements are contracts between the defendant and the prosecutor, basic contractprinciples apply. 

### State v. 

### Sledge, 133 Wn.2d 828, 838, 947 P.2d 1199 (1997). Parties may mutually agree to modify an existing contract so long as the modification is supported by consideration. 

### See, e.g., Rosellini v. 

### Banchero, 83 Wn.2d 268,273,517 P.2d 955 (1974); 

### Eblingv. Gove's Cove, Inc., 34 Wn. App. 495,499,663 P.2d 132 (1983).6 That requirement has been methere. The parties originally agreed to an exchange ofa guilty plea for a prison-based DOSArecommendation and dismissal ofa separate charge by the State. AfterMr. Martinez failed to appear at sentencing, the parties modified the agreementto a guilty plea and 

### nopursuance of aDOSA sentence byMr. Martinez, in exchange for 

### no new bail jumping charges, dismissal ofa separate charge, and a straight 60-monthterm of confinement and 12 months ofcommunity custody. Bothparties agreed to perform new

6Mr. Martinez cites to 

### Eblingto argue that any oral modification ofan existing contract must beproved by clear and convincing evidence. PRP Response Br. At4-5. 

### Ebling makes no mention ofthe clear and convincing standard. It only indicates that new consideration is required for modification ofan existing contract. 34 Wn. App. at 498-99. 7

### No. 34508-4-111 In re Pers. Restraint of Martinez obligations in addition to those obligations that existed underthe original plea agreement. There was adequate consideration for the modification ofthe plea agreement. See Rosellini, 83 Wn.2d at 273 (modification supported by consideration when both parties take on new obligations in addition to those in the original contract). We agree with the State that there was a valid modification ofthe existing plea agreement. The State fully complied with the terms ofthe modified plea agreement. Mr. Martinez's claim fails. 

### Ineffective assistance of counsel In order to prove ineffective assistance ofcounsel, a petitioner must show that counsel's performance was deficient and that said deficiency resulted in prejudice. See In re Pers. Restraint of Yates, 177 Wn.2d 1, 35-36, 296 P.3d 872 (2013); see also Stricklandv. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's conduct is not considered deficient ifit can be characterized as legitimate strategy ortactics. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Mr. Martinez first argues defense counsel was deficient for not objecting to the unlawful sentence of60 months ofconfinement with an additional 12 months of community custody. As discussed above, that sentence is illegal. But, Mr. Martinez's remedy for ineffective assistance on that ground would be remand for aBrooks notation consistent with the analysis above. Thus, his ineffective assistance argument in regard to
8No. 34508-4-111 In re Pers. Restraintof Martinez
his sentence is duplicative with that issue. There is no need to address this aspect ofhis ineffective assistance claim. Mr. Martinez also argues defense counsel was deficient for not seeking to enforce the original plea agreement. Ontop ofthere being a valid modification ofthe plea agreement, as pointed outby the State, defense counsel's actions were a legitimate strategy that benefitted Mr. Martinez. Theprosecutor was going to file bailjumping charges that defense counsel recognized would "really mess things up" for Mr. Martinez. State's Response to Additional Documentation Requested at AttachmentA-1. Counsel sought to keep the DOSArecommendation on the table, butthe prosecutor flatly refused. Defense counsel then negotiated the modifiedplea agreement with the prosecutorthat resulted in the sentence Mr. Martinez is currently serving. Had defense counsel not done this, new bailjumping charges filed by the State might have resulted, with Mr. Martinez's high offender score, in an additional 60 months ofconfinement for that class C felony. 

### It is possible, due to his symptoms from multiple sclerosis, Mr. Martinez could have had an affirmative defense to bailjumping.7 See RCW 9A.76.170(2). Butratherthan roll the dice and risk five more years ofincarceration, defense counsel negotiated a deal that

7There is evidence in the record that Mr. Martinez's symptoms are debilitating and were the reason he was unable to make the September 30 sentencing hearing. 9No. 34508-4-111 In re Pers. Restraint of Martinez
removed any possibility ofthe Statepursuing bailjumping charges. Such advocacy on behalfofa defendant is not deficientperformance. CONCLUSION We remand to the trial court for entry ofa Brooks notation onthejudgment and sentence. All remaining claims in Mr. Martinez's personal restraint petition are denied. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

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