I 

' I 

1 l 

I 

FILED 

DECEMBER 7, 2017 

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 

In the Matter of the Personal Restraint of ) No. 34508-4-111 

) 

JONATHANC.MARTINEZ, ) 

) UNPUBLISHED OPINION 

Petitioner. ) 

) 

PENNELL, J. -Jonathan Martinez has filed a personal restraint petition (PRP), 

attacking his conviction and sentence for violation of a domestic violence no-contact 

order. Mr. Martinez has not demonstrated any basis for relief from his conviction; 

however, he has shown a deficiency in his sentence. Specifically, the combined term of 

confinement and community custody exceeds the statutory maximum for a class C felony. 

Because the sentence received by Mr. Martinez is below the standard range, the proper 

remedy is remand for entry of a Brooks1 notation. This matter is therefore remanded for 

this limited purpose. 

FACTS 

On August 12, 2015, Jonathan Martinez pleaded guilty to violation of a domestic 

violence no-contact order. RCW 26.50.110(5). The plea agreement called for a joint 

1 Jn re Pers. 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 

of a 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 warrant was issued and 

Mr. Martinez was subsequently arrested on October 16. Because of Mr. Martinez's 

failure to appear and subsequent arrest, the State was no longer interested in 

recommending a prison-based DOSA. Instead, the prosecutor offered to alter the parties' 

agreement by agreeing not to file bail jumping 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 consistent with the 

modified plea offer. The State also sought 12 months of community custody. Defense 

counsel spoke at the sentencing hearing and indicated he had reviewed the terms of the 

modified plea agreement and would not oppose the State's recommendation. When given 

the opportunity to speak during sentencing, Mr. Martinez indicated he understood he had 

broken the law and was prepared to serve his sentence. The trial court then sentenced 

Mr. Martinez to 60 months of confinement with 12 months of community custody to 

follow. 

2 
No. 34508-4-111 

In re Pers. Restraint of Martinez 

Mr. Martinez did not appeal his judgment and sentence, but he 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 

Under RCW 9.94A.505(5), a defendant's combined term of confinement and 

community custody cannot exceed the statutory maximum for his or her crime of 

conviction.2 To safeguard against an excessive sentence, RCW 9.94A.701(9) requires 

that a term of community custody be reduced whenever the combination of a term of 

community custody and "standard range term of confinement" 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 of the community 

custody term. See State v. Boyd, 174 Wn.2d 470, 472-73, 275 PJd 321 (2012). 

Mr. Martinez pleaded guilty to a class C felony. RCW 26.50.110(5). As such, his 

maximum term of confinement is 5 years. RCW 9A.20.02l(l)(c). Mr. Martinez was 

sentenced to 60 months ( 5 years) of confinement along with 12 months of community 

custody. This total term of 72 months exceeds the statutory maximum by 12 months. 

2 Although Mr. Martinez references the Eighth Amendment to the United States 

Constitution in his petition, he cites no law to support this aspect of his 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 ofRCW 9.94A.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 ofRCW 26.50.110(5) has been assigned seriousness 

level V. RCW 9.94A.515. The standard range for a person with an offender score of9 or 

more who commits a crime assigned seriousness level Vis 72 to 96 months (6 to 8 years) . • 

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 of confinement within the standard range. See In re Pers. Restraint of Mc Williams, 

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 of confinement and community custody that 

3 Mc Williams 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 a person convicted of a crime with 

seriousness level V and an offender score of 10. The reasoning in Mc Williams 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. 

4 
No. 34508-4-III 

In re Pers. Restraint of Martinez 

exceeds the statutory maximum. See Mc Williams, 182 Wn.2d at 218. But the 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 the judgment and sentence" directing the Department 

of Corrections (DOC) to modify the term of community custody to conform with the 

statutory maximum based on the amount of confinement actually served.4 Id. That is the 

remedy Mr. Martinez is entitled to here. 5 

State's alleged violation of the plea agreement 

A plea agreement is a contract between the prosecutor and the defendant. In re 

Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). Due process requires a 

prosecutor to fulfill the terms of the agreement and recommend the agreed upon sentence. 

Id. at 189. If a prosecutor fails to do so, a defendant may seek relief in a personal 

4 This practice is commonly referred to as a "Brooks notation." E.g. Mc Williams, 

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. Mc Williams, 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 of confinement, the full community 

custody term will be served. If Mr. Martinez is released with less than 12 months 

remaining on his 60-month term of confinement, the DOC must adjust the term of 

community custody so the combined total of confinement 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. 

5 
No. 34508-4-111 

In re Pers. Restraint of Martinez 

restraint petition. Id. Actual prejudice is established if the defendant can show that the 

prosecutor failed to adhere to the terms of the plea agreement. Id. Whether the 

prosecutor breached the plea agreement is analyzed by looking at the sentencing record to 

determine the parties' '" objective manifestations of intent."' Id. ( quoting State v. 

Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003)). If the plea agreement has indeed been 

breached, the defendant may either withdraw his plea and submit to a new trial or obtain 

specific performance of the terms of the agreement. Id at 189-90. But, if the 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 the prosecutor breached the plea agreement by not 

recommending a prison-based DOSA. The parties' original plea agreement called for the 

State to recommend a prison-based DOSA and dismiss the separate violation of a 

domestic violence no-contact order charge. The State never made the DOSA 

recommendation. It primarily contends that defense counsel and the prosecutor 

renegotiated the terms of the agreement after Mr. Martinez failed to appear at the 

September 30 sentencing hearing. The State calls this a valid oral modification of the 

written plea agreement. Alternatively, the State asserts Mr. Martinez breached the 

original plea agreement when he failed to appear for sentencing, relieving the State of its 

6 
No. 34508-4-III 

In re Pers. Restraint of Martinez 

duty to make a DOSA recommendation. As another alternative, the State argues Mr. 

Martinez agreed to the terms of the 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 contract principles 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 met here. 

The parties originally agreed to an exchange of a guilty plea for a prison-based 

DOSA recommendation and dismissal of a separate charge by the State. After Mr. 

Martinez failed to appear at sentencing, the parties modified the agreement to a guilty 

plea and no pursuance of a DOSA sentence by Mr. Martinez, in exchange for no new bail 

jumping charges, dismissal of a separate charge, and a straight 60-month term of 

confinement and 12 months of community custody. Both parties agreed to perform new 

6 Mr. Martinez cites to Ebling to argue that any oral modification of an existing 

contract must be proved by clear and convincing evidence. PRP Response Br. At 4-5. 

Ebling makes no mention of the clear and convincing standard. It only indicates that new 

consideration is required for modification of an 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 under the original plea agreement. 

There was adequate consideration for the modification of the 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 of the existing plea agreement. The State fully 

complied with the terms of the modified plea agreement. Mr. Martinez's claim fails. 

Ineffective assistance of counsel 

In order to prove ineffective assistance of counsel, 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 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

Counsel's conduct is not considered deficient if it can be characterized as legitimate 

strategy or tactics. 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 of 60 months of confinement 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 a Brooks notation 

consistent with the analysis above. Thus, his ineffective assistance argument in regard to 

8 
No. 34508-4-111 

In re Pers. Restraint of Martinez 

his sentence is duplicative with that issue. There is no need to address this aspect of his 

ineffective assistance claim. 

Mr. Martinez also argues defense counsel was deficient for not seeking to enforce 

the original plea agreement. On top of there being a valid modification of the plea 

agreement, as pointed out by the State, defense counsel's actions were a legitimate 

strategy that benefitted Mr. Martinez. The prosecutor was going to file bail jumping 

charges that defense counsel recognized would "really mess things up" for Mr. Martinez. 

State's Response to Additional Documentation Requested at Attachment A-1. Counsel 

sought to keep the DOSA recommendation on the table, but the prosecutor flatly refused. 

Defense counsel then negotiated the modified plea agreement with the prosecutor that 

resulted in the sentence Mr. Martinez is currently serving. Had defense counsel not done 

this, new bail jumping charges filed by the State might have resulted, with Mr. Martinez's 

high offender score, in an additional 60 months of confinement for that class C felony. It 

is possible, due to his symptoms from multiple sclerosis, Mr. Martinez could have had an 

affirmative defense to bail jumping.7 See RCW 9A. 76.170(2). But rather than roll the 

dice and risk five more years of incarceration, defense counsel negotiated a deal that 

7 There 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. 

9 
No. 34508-4-111 

In re Pers. Restraint of Martinez 

removed any possibility of the State pursuing bail jumping charges. Such advocacy on 

behalf of a defendant is not deficient performance. 

CONCLUSION 

We remand to the trial court for entry of a Brooks notation on the judgment and 

sentence. All remaining claims in Mr. Martinez's personal restraint petition are denied. 

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. 

WE CONCUR: 

10