IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

No. 77781-5-1

Respondent,

V.

JAMES EDWARD ELLIOTT,

Appellant.

DIVISION ONE

UNPUBLISHED OPINION

FILED: August 5, 2019

APPELWICK, C.J. — James Elliott contends that his guilty plea was not

entered knowingly, voluntarily, and intelligently. He argues that the trial court

misinformed him of the applicable maximum sentence and neglected to inform him

of the employment consequences that would follow from his guilty plea. We

conclude that Elliot was properly advised at sentencing and that Elliott knowingly,

intelligently, and voluntarily entered the plea. We affirm.

FACTS

In March 2017, the State charged James Elliott with first degree burglary -

domestic violence. On November 3, 2017, Elliott pleaded guilty to amended

charges of residential burglary - domestic violence (count one) and third degree

malicious mischief - domestic violence (count two). During the plea colloquy, the

State informed Elliott that the maximum sentence he could receive for the burglary

charge was 10 years and a $20,000 fine. The trial court adopted the agreed
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recommendation of the parties and imposed a standard range sentence totaling

eight months in jail, which Elliott had already served. Elliott appeals.

DISCUSSION

Elliott contends that, because the court misinformed him of the

consequences of his plea, he is entitled to withdraw the plea. He argues that the

trial court misinformed him of the possible maximum sentence that the court could

impose. And, he argues that the trial court did not inform him of the employment

consequences that would follow his guilty plea.

I. Due Process 

Due process requires that a defendant's guilty plea be knowing, voluntary,

and intelligent. State v. Robinson, 172 Wn.2d 783, 794, 263 P.3d 1233 (2011). A

defendant does not knowingly plead guilty when he bases that plea on

misinformation regarding sentencing consequences. Id. at 790. The court shall

allow a defendant to withdraw his plea of guilty whenever it appears that the

withdrawal is necessary to correct a manifest injustice. Id. at 790-91; CrR 4.2(f).

And, a defendant may withdraw his guilty plea when he was not informed of a

"direct consequence" of the plea. State v. Mendoza, 157 Wn.2d 582, 588, 141

P.3d 49 (2006).

A sentencing consequence is direct when "the result represents a definite,

immediate and largely automatic effect on the range of the defendant's

punishment." Id. (quoting State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405

(1996)). A defendant must be informed of the statutory maximum for a charged

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crime, as this is a direct consequence of his guilty plea. State v. Weyrich, 163

Wn.2d 554, 557, 182 P.3d 965 (2008). The defendant need not establish a causal

link between the misinformation and his decision to plead guilty. Id.

The State bears the burden of proving the validity of a guilty plea. Ross,

129 Wn.2d at 287. Knowledge of the direct consequences of a guilty plea may be

satisfied from the record of the plea hearing or clear and convincing extrinsic

evidence. Id. An allegation that a guilty plea was not knowingly made because it

was based on misinformation of sentencing consequences is a constitutional error

that a defendant can raise for the first time on appeal. State v. Kennar, 135 Wn.

App. 68, 72-73, 143 P.3d 326 (2006); State v. Knotek, 136 Wn. App. 412, 422-23,

149 P.3d 676 (2006).

II. Maximum Sentence 

Elliott contends first that the trial court misinformed him of the maximum

term for his burglary charge.

The United States Supreme Court has held that any fact that increases the

penalty for a crime beyond the prescribed statutory maximum, besides the fact of

a prior conviction, must be submitted to a jury and proved beyond a reasonable

doubt. Apprendi v. New Jersey,'530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000); In re Pers. Restraint of Beito, 167 Wn.2d 497, 504, 220 P.3d 489

(2009). The "statutory maximum' for Apprendi purposes is the maximum sentence

a judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant." Blakely v. Washington,542 U.S. 296, 303, 124 S. Ct.

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2531, 159 L. Ed. 2d 403 (2004) (emphasis omitted) (quoting Apprendi,530 U.S. at

483).

Residential burglary is a class B felony. RCW 9A.52.025. The maximum

penalty for a class B felony is 10 years in prison and a $20,000 fine. RCW

9A.20.021(1)(b).

Elliott argues that the standard range he faced was 3 to 9 months, and that,

when the State does not seek an exceptional sentence, the court has authority to

impose a sentence above the standard range only under the parameters of RCW

9.94A.535. Citing Knotek, Elliott contends that no aggravating facts are present or

alleged here, and therefore the "maximum term" of 10 years of which the court

advised him was erroneous.

In Knotek,the defendant pleaded guilty before Blakely and was sentenced

after Blakely. 136 Wn. App. at 420-21. Blakely eliminated the possibility of

exceptional life sentences that the trial court had discussed with Knotek before

accepting her plea. Id. at 425. On appeal, Knotek argued that she was

misinformed about the maximum terms of confinement for the homicide charges

to which she pleaded guilty when the trial court told her that she faced the

possibility of an exceptional sentence above the standard sentencing range. Id. at

424. Rejecting her argument, the court held,

The record clearly shows that, regardless of Knotek's

currently claimed understanding of the sentencing consequences

when she entered her pre-Blakely plea, before the trial court

sentenced her post-Blakely,she clearly understood that Blakely had

eliminated the possibility of exceptional life sentences and, thus, had

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substantially lowered the maximum sentences that the trial court

could impose.

Id. at 425-26.

The State contends that Elliott's argument "directly conflicts with our

[S]upreme [C]ourt's categorical edict in Weyrich." In Weyrich, the defendant

entered a guilty plea to three counts of first degree theft and an unlawful check

issuance charge. 163 Wn.2d at 556. Two separate statements of defendant on

plea of guilty advised Weyrich that the maximum sentence for each crime,

respectively, was 5 years. Id. His judgment and sentence also stated that the

maximum sentence was 5 years for each crime. Id. In fact, the maximum sentence

for unlawful check issuance is 5 years, but the maximum sentence for theft in the

first degree is 10 years. Id.: RCW 9A.20.021(1)(b): RCW 9A.56.030(2). Despite

the error, Weyrich was sentenced on both crimes within the correct standard

range. Id. Prior to sentencing, Weyrich moved to withdraw his pleas, which he

argued were not knowingly, voluntarily, and intelligently made. Id. The trial court

denied the motion and this court affirmed. Id. The State Supreme Court reversed,

holding that, because Weyrich was misinformed that the statutory maximum

sentence for the first degree thefts was 5 years, he should have been allowed to

withdraw his pleas. Id. at 557.

This court addressed essentially an identical argument to Elliott's in Kennar.

Kennar contended that his plea was not made knowingly, voluntarily, and

intelligently, because the trial court "misinformed him of the applicable maximum

sentence for the offense with which he was charged." 135 Wn. App. at 71. Kennar

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asserted that the applicable maximum sentence was the top end of the standard

range, not the statutory maximum sentence declared by the legislature. Id. He

argued that the trial court should have informed him of only the applicable standard

sentence range. Id. at 74.

This court disagreed. Id. at 76. We stated,

First, the guilty plea form approved by the Supreme Court and

contained in CrR 4.2(g) requires that both the applicable standard

sentence range and the statutory maximum sentence established by

the legislature be set forth. This is a clear indication that the drafters

of CrR 4.2 did not believe these to be one and the same.

Id. at 74. This court stated that "a defendant should be informed of both the

applicable standard sentence range and the statutory maximum sentence

established by the legislature for the charged offense." Id. (citing State v. Gore,

143 Wn.2d 288, 21 P.3d 262 (2001), overruled on other grounds by State v. 

Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), abrogated by Washington v. 

Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (the

subsequent history has no effect on the usage of Gore)). We went on to explain,

It is not until the sentencing hearing that the trial court makes its

determination of a defendant's offender score and the applicable

standard sentence range. At the time of the plea colloquy, the trial

court is merely operating on the basis of the information given to it

by the parties—it is not at that time making a determination that this

information is correct.

Id. at 75. Rejecting Kennar's argument, this court concluded that the procedure

he advocated for would result in defendants "being misadvised of their maximum

peril." Id. at 76.

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As in Kennar, Elliott signed the statement of defendant on plea of guilty

prepared by his attorney and required by CrR 4.2(g), thereby acknowledging that

he knew the nature of the crime charged, the maximum sentence, and the

consequences of entering the plea, including the court's authority to impose any

sentence within the designated standard range. Id. at 70. Elliott was advised in

writing that he was not facing an exceptional sentence outside the standard range.

During his plea colloquy with the trial court, Elliott stated that he understood that

the maximum term for residential burglary is 10 years imprisonment and a $20,000

fine. He also acknowledged that the range he was "facing" was the standard range

of 3 to 9 months.

We adhere to our decision in Kennar and find that, when Elliott entered his

guilty plea, he was correctly informed of the maximum term and the standard

range.

III. Employment Consequences 

Elliott argues next that he did not knowingly, intelligently, and voluntarily

plead guilty because the trial court neglected to inform him of the employment

consequences that would follow from his guilty plea.

A defendant must be informed of all the direct consequences of his plea

prior to acceptance of a guilty plea. State v. A.N.J., 168 Wn.2d 91, 113-14, 225

P.3d 956 (2010). While a defendant cannot be positively misinformed about the

collateral consequences, those collateral consequences can be undisclosed

without rendering the plea involuntary. Id. at 114. The distinction between direct

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and collateral consequences of a plea turns on whether the result represents a

definite, immediate, and largely automatic effect on the range of the defendant's

punishment. Id.

Citing Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d

747 (1970), Elliott contends, "[I]t appears the 'direct' versus 'collateral'

consequence distinction is dwindling; accordingly, this [c]ourt should find that

courts must inform a defendant of the employment consequences that will follow

upon a plea of guilty for multiple reasons." And, he asserts that "[Necause a

person's ability to earn a living is central to his ability to function in society," this

court should hold that courts must advise defendants of the employment

consequences that will follow a guilty plea.

Elliot observes that several Washington statutes ban people with felony

convictions from working in certain professions. He also asserts that a felony

conviction presents numerous hurdles for countless jobs. The only legal authority

Elliott cites for the proposition that courts should inform a defendant of the

employment difficulties he or she will face after a guilty plea is the dissent in State 

v. Heitzman, 107 N.J. 603, 608, 527 A.2d 439 (1987) (Wilentz, C.J., dissenting).

We acknowledge that a felony conviction creates difficulties for obtaining

employment. However, no authority has held that diminished employment

opportunities are a direct consequence of a plea, and we decline to do so here.

Thus, the trial court was not required to advise Elliott on those consequences.

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Elliott's plea was knowingly, intelligently, and voluntarily entered.

We affirm.

WE CONCUR:

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