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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. VINCENT OLIVER PETTIE, Appellant. No. 69697-1-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 3. 2014 Spearman, A.C.J.

— Vincent Pettie moved to withdraw his plea after he 

### pleaded guilty to third degree assault and second degree burglary. The trialcourt denied the motion. He appeals, contending the trial court's involvement rendered 

### the plea involuntary. He also claims in a statement ofadditional grounds that (1) he should be permitted to withdraw his plea because he received ineffective assistance ofcounsel; (2) the trial court improperly imposed an exceptional 

### sentence; and (3)the court improperly calculated the statutory maximum penalty
as the presumptive standard range. We conclude his claims lack meritand affirm. FACTS On October4, 2011, Vincent Pettie and John Wesley Jackson, Jr. entered 

### the office of Anthony Narancic's boarding house, where Jackson had rented two rooms, to recoverJackson's $800 security deposit. Narancic had told JacksonNo. 69697-1-1/2 

### thatthe deposit would not be returned due to damage caused to the rooms. Finding Narancic inside the office, Jackson repeatedly struck him on the head and shoulders with a metal club covered by a sock. Pettie's alleged involvement included holding Narancic while Jackson struck him and driving Jackson away from the office. Police arrested Jackson laterthatday, and Narancic identified Pettie in a photo montage. Jackson and Pettie were both charged with first degree assault. Pettie had two previous convictions for second degree attempted robbery; thus, a conviction for first degree assault or second degree assault (ifthe latterwere to be submitted to thejuryfor consideration as a lesser included offense) would result in his third strike underthe Persistent OffenderAccountabilityAct ('POAA') ofthe Sentencing Reform Act of 1981, chapter9.94A RCW. Shortly aftertrial began, Jackson reached a plea agreement. After Jackson's plea, the prosecutor notified Pettie that the State would request ajury instruction on the lesser included offense of second degree assault. The trial court set outto clarify Pettie's understanding ofthe lesser included offense when Pettie said he did not know what it meant: THE COURT: The reason Iwantto bring [the lesser included offense] up to you is, particularly as to you, that's very important because Iunderstand your [sic] facing yourthird strike.
MR. PETTIE: Yes. THE COURT: So, you might, indeed, prevail and persuade thejury thatthis wasn't an assault [inthe first degree] case because the injury wasn't enough. MR. PETTIE: Right.No. 69697-1-1/3 

### THE COURT: So, thejury could say it's okay, it's an Assault II case. And ifthey decide itwas, and you were an accomplice, it's stillyourthird strike. Verbatim Report ofProceedings (VRP) (9/12/12) at 147-48. Then Pettie stated, "I just didn't really do anything." jd. at 148. The court responded: That's between you and your lawyer. It's my job to tell you the consequences here. It's not for me to tell you whatto do about it. But, it is myjob to make sure you are informed ofthe potential consequences ofdeciding to go ahead with the trial. When you said you don't know about the lesser included, that raises a red flag for me thatyou need to know aboutthe lesser included. IcL at 148-49. The trial court also told Pettie about a defendant who had been before the court inthe past and had asserted his innocence. That defendant had been convicted and sentenced to lifewithout parole because the court did not have discretion when the crime was the defendant's third strike, jd. at 150-51. The trial court later stated, "I wantto be real clear. This is your life. It is not my job to tell you whatto do. Icannot persuade you one way or anotherwhatto do. It's between you and your lawyer." ]d at 151. He told Pettie "obviouslythis is a very serious decision."jd. at 152. Right before Pettie entered his guilty plea, the

court stated: You may full well think you did absolutely nothing wrong. It's up to 

### thejury to decide whetherthat's true or not. You and your lawyer have to talk about all ofthe evidence that willbe presented, and your lawyer gives you advice aboutwhat he thinks the likely outcome will be. And based upon his advice as to whatthe likely outcome would be, given what he anticipates allthe evidence will be, you need to make your decision. Iwantyou to be clearthat coming in on Assault II for you is the same thing as coming in on Assault Ifor you, given the circumstances. For anyone else, it would be much differentNo. 69697-1-1/4 becauseAssault Iand Assault II have very, very different standards ofranges. Counsel, what do you want to do? Are we calling thejury back in? Has he made up his mind? Does he need more time? ]a\ at 152-53. During a recess, the State and Pettie reached a plea agreement in which Pettie pleaded guilty to second degree burglary and third degree assault, avoiding his third strike. The parties agreed to the statutory maximum sentence for both charges: 120 months forthe burglary count and 60 months for the assault count, to run consecutively. Pettie stated during a colloquy that he was making his plea knowingly and voluntarily. The courtthen confirmed the same. Pettie's plea agreement included a signed statementof guilt. Shortly thereafter, both Pettie and Jackson brought motions to withdraw 

### theirguiltypleas. Pettie stated that he initiallythoughtJackson would exculpate him at trial, and Jackson's guiltyplea fundamentally changed his trial strategy. Jackson's plea statement stated, "[Pettie] knew what Iwas doing and he held Mr. Narancic inplace while Iassaulted Mr. Narancic." VRP (9/12/12) at 136. Pettie 

### argued thatto allow onlyJackson to withdraw his plea would result in a manifest 

### injustice. The court denied both defendants' motions and imposed on Pettie the 180-month sentence recommended by the plea agreement. For the first time on appeal, Pettie claims that his guilty plea was 

### involuntarybecausethe trial court impermissibly pressured him intoentering a 

### plea agreement. In his statementof additional grounds, Pettie also claims (1) his 

### attorney providedineffective assistance of counsel, (2) the trial courtimproperly imposed an exceptional sentence, and (3) the court improperlyused the statutory maximum penalty as the presumptive standard range.No. 69697-1-1/5
DISCUSSION Motion to Withdraw Guilty Plea We review a trial court's decision on whether to allow a defendant to withdraw a guilty plea for abuse ofdiscretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). A court must allow a defendantto withdraw a guilty plea as necessary to correct a manifest injustice. CrR 4.2(f). A manifest injustice

occurs when a defendant's plea was involuntary. State v. Saas. 118 Wn.2d 37, 42, 820 P.2d 505 (1991). A guilty plea is involuntary if itwas obtained by mental coercion by agents ofthe state. Bradv v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). When a trial court pressures or coerces a defendant, that influence may renderthe guilty plea involuntary. State v. Wakefield, 130Wn.2d 464, 473, 925 P.2d 183 (1996). Further, it is "wholly inappropriate" for thejudge to suggest a defendant accept a plea deal. State v. Watson, 159 Wn.2d 162, 165, 149 P.3d 360 (2006). On the otherhand, a signed plea statement is strong evidence thatthe 

### defendantentered the plea voluntarily. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). An accompanying written statementby the defendantthat 

### acknowledges the defendant read and understands the plea agreement and that its contents are true is prima facie evidence thatthe pleawas voluntary. In re Keene. 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980). A defendantwho latertries to retract his admission ofvoluntariness will bear a heavy burden to convince a court that his admission was coerced. State v. Frederick, 100 Wn.2d 550, 558,No. 69697-1-1/6 674 P.2d 136 (1983). This is especially the case where there are other reasons for pleading guilty,jd. Pettie claims he involuntarily pleaded guilty due to pressure from the trial
court. He contends the trial court's statements on the record convinced him to plead guilty, where he would otherwise have elected not to do so. Pettie relies primarily on Wakefield and Watson. InWakefield, the defendant accepted a plea arrangement "[ijmmediately" afterthe court promised that she would be sentenced within the standard range if she accepted the agreement. Wakefield. 130 Wn.2d at469. Aweek prior, the trial court had mentioned to the defendantthat a plea offer "would subject herto much lessjeopardy" and urged the defendant to heed the advice ofherattorneys to plead guilty. \± at473 (quoting Report ofProceedings (Dec. 8 1993) at 26). On appeal, the court only explicitly mentioned the sentencing promise when addressing the voluntariness ofthe plea, but notthe statements made a week earlier. "We are mindful ofthe fact that a trialjudge's promise of a standard range sentence could easily sway a defendantto plead guilty." jd. at475. InWatson, the court on appeal affirmed the trial court's ruling thatthere was no undue pressure when the defendant entered his guilty plea infront of a newjudge a 

### month afterthe original trialjudge made an impermissible statement. Watson, 159 Wn.2d at 165. The originaljudge had stated "I really think you should take their offer." jd. at 163. But the court granted reviewto emphasize that itwas 

### "whollyinappropriate" forthejudge to advise the defendantto 'take [the State's plea] offer.'jd, at 165.No. 69697-1-1/7 Here, we conclude that Pettie fails to establish that the trial court's actions rendered his plea involuntary. He claims the courtconvinced him that he must 

### plead guilty by telling him it would be easierto prove second degree assault and that Pettie had a serious decision to make. He also points to the court's statements about a priordefendantwho refused a plea agreement, was convicted of his third strike, and was ultimately sentenced to lifewithout parole. But here, unlike inWakefield and Watson, the trial court merely informed Pettie ofthe consequences ofproceeding with trial. After Jackson pleaded guilty, the trial court learned that Pettie did not know what the lesser included offense meant to his case and that he had received a plea offerthat would allow him to avoid his third strike. Part of Pettie's planned defense was that Narancic's injuries
were insufficientfor a first degree assault conviction. The trial court said itraised a "red flag" that Pettie did not know aboutthe lesser included offense because Pettie's planned defense could stillresult in a conviction for second degree assault. VRP (9/12/12) at 148, 149. Unlike inWakefield, where the trial court 

### promised a more lenient sentence and the defendant relied on such a promise, here the court offered no promise to Pettie. The court simply explained that a 

### conviction for eitherassault inthe first degree or assault inthe second degree would be Pettie's third strike and used the example ofanother defendantto 

### explain thatthe court does not have discretion insentencing third-strike 

### convictions. Additionally, unlike inWatson, the courtdid not urge Pettie to take the State's offer. Rather, the trial court repeatedly told Pettie that any decision should be made between him and his attorney.No. 69697-1-1/8 This case involves facts more akin to those in State v. Pouncev, 29 Wn. App. 629, 630 P.2d 932 (1981). There, the trialjudge metwith both attorneys in his chambers and suggested, based on his understanding ofthe likelihood of a conviction, thatthe parties explore the possibility of a plea agreement, jd. at 632. Likewise, here the trial court suggested that the parties continue to work out a plea agreement after negotiations had already begun. The defendant in Pouncev

was facing a mandatory minimum term ifconvicted of first degree robbery with a deadly weapon, and thejudge noted he had no discretion in sentencing, jd at 633. The appellate court concluded thatthe trial court acted as a 'moderator' and thatthe defendant pleaded guilty for fear ofbeing convicted ofmore serious offenses with greater consequences. Id. at 637. Moreover, here, the record reflects several "other apparent reasons," Frederick, 100 Wn.2d at 558, for which Pettie pleaded guilty. First, Jackson's guilty plea impacted the way Pettie viewed his case. In his first attemptto withdraw the guilty plea, Pettie's attorney said Jackson's plea statement 

### implicating Pettie inthe crime "essentially[] changed things." VRP (10/5/12) at 3. He stated that "itwas because Mr.Jackson pled guilty and the manner in which 

### Mr. Jackson pled guilty" that Pettie ultimatelypleaded guilty. ]d at 4. Lastly, he stated that Pettie pleaded guilty "because ofMr. Jackson's plea, inthe morning 

### ofSeptember 12."jd at 5. Second, ifPettie went to trial, he faced a possible life sentence without parole. Once he became aware ofthe lesser included charge, Pettie realized that the likelihood of a life sentence was much greaterthan he 

### had originally anticipated. Jackson's guilty plea also altered his evaluation of the

8No. 69697-1-1/9 

### likelihood of a conviction because his plea statement implicated Pettie, whereas Pettie had initiallythought thatJackson would exculpate him. In sum, we conclude Pettie has not overcome the heavy burden he must show to prove his guilty plea was involuntary. Statement ofAdditional Grounds Claims Pettie's first claim in his statement ofadditional grounds is that defense counsel provided ineffective assistance because his two prior convictions for second degree attempted robbery are not "most serious offenses" under RCW 9.94A.030(32). As a result, he contends, he was not facing his third strike under the POAA ifhe were to be convicted ofeitherfirst or second degree assault. Pettie is incorrect. Under RCW 9.94A.030(32), "most serious offense" includes 

### "any ofthe followingfelonies or a felony attemptto commitany ofthe following felonies:
. .. (o) Robbery inthe second degree." Pettie's 1993 and 2004 convictions for second degree attempted robbery are most serious offenses
under the statute. 

### Next, Pettie claims thatthe trial court improperly imposed an exceptional 

### sentence beyond the standard range. The claim is predicated on Pettie's first claim in his statementofadditional grounds; he argues that an exceptional 

### sentence was improperbecause he was not in fact facing a life sentence. But, as addressed above, the parties, in negotiating a plea agreement, correctly 

### considered his priorconvictions forsecond degree attempted robbery as "most serious offenses" under RCW 9.94A.030(32). The court may impose an 

### exceptional sentence beyond the standard range ifthe parties stipulate to anNo. 69697-1-1/10 

### exceptional sentence. RCW9.94A.535(2)(a); In re Breedlove. 138Wn.2d 298, 

### 310,979 P.2d 417 (1999). Here, Pettie and the state stipulatedthat justicewas best served by anexceptional sentence. Thus, the court had the authorityto sentence Pettie to an exceptional sentence. 

### Finally, Pettie argues that the standard range was incorrect becausethe sentencing court used the statutory maximum penaltyforthe offenses as the presumptive standard sentencing range. This argument is not welltaken. Pettie's 

### offenderscore and the applicable standard range, as setforth in thejudgment and sentence, were calculated correctly. The trial court, in its discretion, did not 

### sentence Pettie withinthe standard range but instead imposed an exceptional sentence based on the plea agreement between Pettie and the State. Affirmed.



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