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

v. ERIK VINCENT BARNES, Appellant. DIVISION ONE No. 71144-0-1 (consol. with No. 71145-8-1) UNPUBLISHED OPINION FILED: November 24, 2014 

### Dwyer, J. —Erik Barnes pleaded guilty to one count each ofunlawful 

### possession of afirearm in thefirst degree, possession of a controlled substance (methamphetamine) with intenttodeliver, and possession of a controlled substance (methamphetamine). Henow appeals, alleging that hisguilty pleas
were invalid because, priorto sentencing, he was misinformed of a direct 

### consequence of one of his pleas. In a statement ofadditional grounds, Barnes makes three additional contentions: thatthe State did not prove his prior 

### convictions, that hisjuvenile convictions should not have been counted in his offender score, and that some of his priorconvictions should have been counted
as the same criminal conduct. Finding no error, we affirm.
I 

### Barnes was charged with three offenses under two separate cause numbers. Under cause number 12-1-01700-4, he was charged with one countNo. 71144-0-1/2
each of unlawful possession of a firearm in the first degree and possession of a controlled substance (methamphetamine) with intent to deliver. Under cause number 12-1-02050-1, he was charged with one count ofpossession of a controlled substance (methamphetamine). 

### Barnes was offered a package plea deal. Each offer read: "This Plea 

### Agreement is dependent upon the defendantentering a plea ofguilty in allother
cause numbers included inthe State's plea offer." At a combined plea hearing, held on March 1, 2013, he pleaded guilty to allthree charges. The plea 

### statements indicated thatthe standard sentence ranges were 87-116 months of 

### confinement plus 18-36 months of communitycustody for the firearm charge, 60+-120 months ofconfinement plus 12 months of community custody for the 

### charge ofpossession with intent todeliver, and 12+-24months ofconfinement 

### plus 12 months ofcommunitycustodyforthepossession charge.1 Thecourt found that Barnes's guilty pleas wereknowingly, voluntarily, and intelligently entered. Sentencing was postponed to allow Barnes to be evaluated for a possible drug offender sentencing alternative (DOSA). Inits DOSA riskassessment report, the Department ofCorrections concluded that a DOSAsentence would "notappropriately mitigate [Barnes's] continued risk offuture re-offense." Barnes then moved to withdraw his guilty 

### pleas underboth cause numbers, asserting that his pleas wereinvalid fortwo
reasons. First, he claimed that he did not knowthatthe trial court had the
1Thecourtrepeated this information at the change of pleahearing, exceptthatitdid not reiterate that there would be community custody on the possession charge.No. 71144-0-1/3
discretion to deny a DOSA sentence. Second, he stated that he did not know his offender score and was "shocked" upon hearing the applicable score. The trial court conducted a factual hearing on Barnes's allegations, afterwhich it determined that Barnes had been advised about both the discretionary nature of the DOSA and his offender score. The court denied the motion and proceeded to sentencing. At sentencing, the prosecutor recommended 90 months ofconfinement on the firearm charge, 90 months ofconfinement on the possession with intent to deliver charge, and 24 months ofconfinement on the possession charge, all to 

### be served concurrently. The prosecutor also recommended 12-month terms of community custody on the two drug charges. The prosecutor advised the court 

### that—despite what itsaid inthe plea paperwork—there was no community 

### custody on the firearm charge. Bothdefense counsel and Barnes then addressed the court. Except for recommending a lower sentence on the drug 

### possession charge, defense counsel asked the court to follow the prosecutor's recommendation. Barnes asked the courtfor an appeal bond. The courtthen sentenced Barnes in accordance with the prosecutor's recommendations.
II 

### Barnes contends that his guilty plea to unlawfulpossession of a firearm is invalid because he was misinformed that 18-36 months of community custody 

### would be imposed as part of his sentence. He also contends that, because this plea was entered as part of a package deal, he is entitled to withdraw his pleas to each ofthe three offenses. We disagree. -3-No. 71144-0-1/4
"Due process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily." State v. Ross. 129 Wn.2d 279, 284, 916 P.2d 405 (1996); U.S. Const, amend. XIV, Wash. Const, art. I, § 3. This standard is reflected in CrR 4.2(d), "which mandates that the trial court 'shall not accept a plea of guilty, withoutfirst determining that it is made voluntarily, competently and with an understanding ofthe nature ofthe charge and the consequences ofthe plea.'" State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). "Under CrR 4.2(f), a court must allow a defendant to withdraw a guilty 

### plea ifnecessary to correct a manifest injustice." Inre Pers. Restraint ofIsadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). "An involuntary plea produces a manifest injustice." Isadore. 151 Wn.2d at 298. 

### Aguilty plea is notknowingly made when it isbased on misinformation 

### regarding a direct sentencing consequence. Mendoza, 157Wn.2d at 584, 590- 91; Inre Pers. Restraint of Quinn. 154 Wn. App. 816, 835, 226 P.3d 208 (2010). 

### A sentencing consequence is direct when "'theresultrepresents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Ross. 129 Wn.2d at 284 (internal quotation marks omitted) 

### (quoting State v. Barton. 93Wn.2d 301, 305, 609 P.2d 1353 (1980)). Mandatory community custody or community placement is a direct sentencing consequence 

### because it affects the punishmentflowing immediately from the guilty plea and 

### imposes significant restrictions on a defendant's constitutional freedoms. Ross. 129 Wn.2d at 285-86; Quinn. 154 Wn. App. at 836. 

### When a guilty plea isbased on misinformation, the defendant may move
-4-No. 71144-0-1/5 

### to withdraw the plea based on involuntariness—regardless ofwhetherthe actual sentencing range is lower or higherthan anticipated. Mendoza. 157 Wn.2d at 591. "However, ifthe defendant was clearly informed before sentencing that the correctly calculated offender score rendered the actual standard range lower than had been anticipated at the time ofthe guilty plea, and the defendant does not object or move to withdraw the plea on that basis before he is sentenced, the defendantwaives the right to challenge the voluntariness ofthe plea." Mendoza. 157 Wn.2d at 592. The defendant need not be expressly informed that he can withdraw his plea, see State v. Blanks. 139 Wn. App. 543, 549, 161 P.3d 455 

### (2007), nor need there be any "waiting period" between the advisement of the
error and sentencing. Blanks. 139 Wn. App. at 550. The Blanks decision controls the outcome ofthis claim oferror. In that 

### case, Blanks moved to withdraw his guiltyplea prior to sentencing. The court 

### denied Blanks's motion. Atsentencing, the court determined thattwo ofBlanks's 

### prior convictions encompassed the same criminal conduct, a difference that reduced his standard sentence range. Blanks made no further attempt to 

### withdraw his plea. On appeal, Blanks argued that he pleaded guiltybased on a misunderstanding ofthe applicable offender score. 

### The appellate court rejected his claim. As in Mendoza. itwas held that Blanks had waived the claim. 

### Blanks argues that he was not given enough time because the trial court ruled on his offender score directly before itsentenced him. 

### ButMendoza requires only the "opportunity to withdraw the plea," 

### not a waiting period. Blanks was informed of the miscalculation, it worked in his favor, and he did not move to withdraw his plea onNo. 71144-0-1/6 this basis. Therefore, [he] impliedly waived this argument. Blanks. 139 Wn. App. at 550 (citation omitted). Such was the case herein. After unsuccessfully moving to withdraw his guilty plea, Barnes learned that the actual term ofcommunity custody was less than he had believed. After learning this, both he and his attorney had an opportunity to address the court. Either could have asked the court to allow Barnes to withdraw his plea based on the lessened term ofcommunity custody, but neither did so. As in Blanks, the failure to act waived any argument that the decreased term warranted withdrawal ofthe plea. Accordingly, Barnes has not established an entitlement to appellate relief. Ill In a statement of additional grounds (SAG), Barnes makes three additional contentions. First, he contends that due process was violated when 

### his sentence was based "on the prosecutor's bare assertions or allegations of 

### priorconvictions."2 SAG at 11 (quoting State v. Hunlev, 175 Wn.2d 901, 915, 287 P.3d 584 (2012)). Giventhat Barnes affirmatively acknowledged his criminal history, we disagree. 

### When a defendant affirmativelyacknowledges the existence of prior convictions, the State is not required to presentfurther proof ofthose convictions. State v. Ross. 152 Wn.2d 220, 232-33, 95 P.3d 1225 (2004). Inthe plea 

### agreements, Barnes specifically agreed that the prosecutor's understanding of
2This is the content of his claim, though he frames it thusiy: "Mr. Barnes Due Process was violated when the sentencing court did notallow him towithdraw his plea or have a hearing to prove his offender score." SAG at 11.No. 71144-0-1/7 

### his criminal history was "accurate and complete." Therefore, there was no due process violation. Barnes's second contention is that the trial court should not have counted hisjuvenile adjudications in calculating his offender score. This claim is based
on obsolete statutory provisions. Underthe original Sentencing Reform Act (SRA), juvenile convictions did not constitute "criminal history" for crimes committed after the defendant's 23rd birthday. Former RCW 9.94A.030(11), as enacted by Laws of 1981, ch. 137, § 3. This rule was abolished in 1997. Since then, the definition of "criminal history" has been the same forjuvenile and adult convictions. Laws of 1997, ch. 338, §2(12) (now codified as RCW 9.94A.030(11)). The effect ofthese changes was clarified in 2002: A prior conviction that was not included inan offender score calculated pursuant to a former version ofthe sentencing reform act remains part ofthe defendant's criminal history. 

### Laws of 2002, ch. 107, § 2(13)(c) (now codified as RCW9.94A.030(11)(c)). For crimes committed after the effective date ofthe 2002 amendment, the former 

### rules for the "wash out" of juvenile convictions no longer apply. State v. Varqa. 151 Wn.2d 179, 193-95, 86 P.3d 139 (2004).3

3Barnes erroneously relies on twocases—State v. Smith, 118Wn.App. 288, 75 P.3d 986 (2003), and State v. Dean. 113Wn.App. 691, 54 P.3d 243 (2002)—in support of his contention that the trial court should not have used his "washed out" juvenile adjudications in sentencing him. Both are distinguishable. In those cases, the trial courts were ordered to resentence the defendants according to the law ineffect at the time the offenses at issue were committed. Since the offenses at issue in both cases were committed prior to 2002, this entailed applying a different legal provision than was properly applied in this case. -7-No. 71144-0-1/8 This change did not violate any vested rights ofdefendants who had previously committedjuvenile offenses. The 2002 SRA amendments serve only to enhance the penalty for [the defendant's] crime that he committed after the amendments' effective date. Indeed, [the defendant] could have avoided the effect ofthe 2002 SRA amendments by not committing a subsequent crime. Varqa. 151 Wn.2d at 196-97 (citations omitted). See also Landqraf v. USI Film Prods.. 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) ("Astatute does not operate 'retrospectively' merely because it.
. . upsets expectations based in prior law." (citation omitted)). Nonetheless, Barnes claims that he should be allowed to "withdraw" his 

### guilty pleas to the juvenileoffenses. This claimcannot be raised in this proceeding. It is well settled that the State is not required to prove the 

### constitutional validity of prior convictions used to calculate a defendant's offender score on a current conviction. And a criminal 

### defendant generally has no right to contestthe validity of a previous conviction in connection with a current sentencing. State v. Irish. 173 Wn.2d 787, 789-90, 272 P.3d 207 (2012) (citation omitted). A 

### defendant can only challenge a priorconviction ifitwas constitutionally invalid on its face. State v. Ammons. 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 

### (1986). The recorddoes not contain any documents relating to the juvenile convictions and there is no indication that those convictions are facially invalid. 

### Therefore, we reject Barnes's challenge to the validity ofthose convictions. 

### Finally, Barnes contends that some of hispriorconvictions should have been counted as the same criminal conduct. Moreover, he asserts that the
-8-No. 71144-0-1/9 

### purported errors in his offender score entitle him to withdraw his guiltypleas to the current offenses. We disagree. We review an offender score calculation de novo but review a "'determination ofwhat constitutes the same criminal conduct [for] abuse of discretion or misapplication ofthe law.'" State v. Mutch. 171 Wn.2d 646, 653, 254 P.3d 803 (2011) (alteration in original) (internal quotation marks omitted) (quoting State v. "Till. 139 Wn.2d 107, 122, 985 P.2d 365 (1999)). "[I]t is the defendant who must establish the crimes constitute the same criminal conduct." State v. Aldana Graciano. 176Wn.2d531, 539. 295 P.3d 219 (2013); see also 

### State v. Johnson. 180 Wn. App. 92, 104, 320 P.3d 197, review denied. 181 Wn.2d 1003(2014). Inthis case, Barnes made no attempt at the sentencing hearing to 

### establish that any of his priorconvictions constituted the same criminal conduct. In fact, the onlyinformation in the record relevant to those convictions is found in the plea statements, whicheach contained the following statementconcerning Barnes's criminal history: "Thedefendant agrees the attached Appendix A - Prosecutor's Understanding ofDefendant's Criminal History . . . and the attached 

### Sentencing Guidelines scoringform(s) are accurate and complete." Barnes did not meet his burden ofestablishing that any of his prioroffenses constituted the
same criminalconduct. Consequently, the trial court did not abuse its discretion incounting them as separate offenses.

-9No. 71144-0-1/10
As there was no error in the calculation ofhis offender score, Barnes is 

### notentitled towithdraw hisguilty pleas to the current offenses on thatbasis.45 Affirmed.

We concur: ~--<-^-T,./l, 

# (5ed*et,

4Barnesalso refers atlength to therule oflenity, which has noapplication here. 5In his statement of the case, Barnesincludes a numberofadditional allegations oferror, 

### upon which hedoes notfurtherelaborate. He has notestablishedan entitlementtoreliefon any ofthose claims. -10-