### 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 DIVISION ONE UNPUBLISHED OPINION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 ofthe 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 (counttwo). During the plea colloquy,the State informed Elliottthatthe maximum sentence he could receiveforthe burglary charge was 10 years and a $20,000 fine. The trial court adopted the agreedNo.77781-5-1/2

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 ofthe possible maximum sentence thatthe courtcould impose. And,he argues that the trial court did not inform him ofthe employment consequences thatwould follow his guilty plea. I. Due Process Due process requires that a defendant's guilty plea be knowing,voluntary, and intelligent. State v. Robinson, 172Wn.2d 783,794,263P.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 directwhen "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 2No.77781-5-1/3

crime, as this is a direct consequence of his guilty plea. State v. Weyrich, 163 Wn.2d 554,557,182P.3d 965(2008). Thedefendant need notestablish 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, 129Wn.2d at 287. Knowledge ofthe direct consequences ofa 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 ofsentencing 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' forApprendi purposes isthe maximum sentence

a judge may impose solely on the basis ofthe facts reflected in the jury verdict or admitted by the defendant." Blakely v.Washington, 542 U.S.296,303,124 S.Ct. 3No.77781-5-1/4

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). Elliottarguesthatthe standard range hefaced was 3to 9months,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 ofRCW 9.94A.535. Citing Knotek, Elliottcontendsthat no aggravating factsare presentor 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 ofan 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 ofexceptional life sentences and,thus,had 4No.77781-5-1/5 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. 163Wn.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 sentencewas5yearsforeach crime. Id. Infact,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 courtaffirmed. 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 courtaddressed essentially an identical argumentto 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 sentenceforthe offensewith which hewascharged." 135Wn.App.at71. Kennar 5No.77781-5-1/6

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 thatthetrial courtshould have informed him ofonly the applicable standard sentence range. Id. at 74. This courtdisagreed. 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 setforth. This is a clear indication thatthe drafters of CrR 4.2did 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 ofGore)). We wenton 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 atthat 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 oftheir maximum peril." Id. at 76.

6No.77781-5-1/7 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 thathe was notfacing 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 10years imprisonmentand a $20,000 fine. He alsoacknowledged thatthe range hewas"facing"wasthestandard range of 3to 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 thatwould 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 7No.77781-5-1/8

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 thatwill 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 hurdlesfor countless jobs. The only legal authority Elliott cites for the proposition that courts should inform a defendant of the employmentdifficulties 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 courtwas not required to advise Elliott on those consequences.

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### No.77781-5-1/9 Elliott's plea was knowingly,intelligently,and voluntarily entered. We affirm.

WE CONCUR:

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