### FILED 

### MAY 23,2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 30283-1-III ) Respondent, ) ) 

### v. ) ) UNPUBLISHED OPINION CHRISTOPHERRANDALL BORING, ) ) Appellant. ) KORSMO, C.J.

- ChristopherBoring argues thathis guilty pleawas invalid because trial counsel failed to inform him aboutthe potential sentencing consequences of pleading guilty to crimes with aggravating circumstances. Concluding thathe was aware ofthe sentencing consequences, we affirm. BACKGROUND 

### Mr. Boring worked as a supervisor at Hewes Marine Company (Hewes), a familyownedbusinessthat manufactures and sells aluminum fishing boats in Colville. He had workedthere for a number ofyears before he was caught selling Hewes's aluminum to a recycling company in Spokane. Itwas alleged that he sold more than $200,000 worth of aluminum betweenAugust2007 and August 2010.No. 30283-1-III State v. Boring The State charged Mr. Boring with aggravated first degree theft and aggravated first degree trafficking in stolenproperty.] Both crimes were alleged to be major economic offenses because [they] involved multiple victims ormultiple incidentsper victim; [they] involved

... actual monetary loss substantially greater than typical for the offense; [t]hey involved a high degree ofsophistication orplanning or occurred over a lengthy period oftime; or [t]he defendant used his orher position oftrust, confidence, or fiduciary responsibility to facilitate the commission ofthe current offense. Clerk's Papers (CP) at 2. Mr. Boring agreed to plead guilty to the aggravated charges in exchange for the State's agreement to recommend 48 months in prison and not file additional charges. At thepleahearing, thejudge asked Mr. Boring whetherhe had gone overtheplea agreement with his attorney, whetherhe had any questions, whetherhe understood that he was waiving certain constitutional rights, and ifhe understood that the courtwould sentence him. Mr. Boring answered yes to each question before the plea was accepted. The prosecutorrecommended 48 months' incarceration at sentencing. Thejudge noted that "[t]his is the largest-by duration, number ofcriminal occurrences and dollar amounts-theft and trafficking case in [thatjurisdiction] over the last twenty years," and that "an exceptional sentence will promote respect for the law and is commensurate with

I Mr. Boring'swife, Jody Boring, was found guilty ofsecond degree trafficking in stolen property attrial. Her appeal, cause no. 30280-6-III, is linked with this case for consideration. 2No. 30283-1-111 State v. Boring punishments imposed in other embezzlement cases overthose years." CP at 151-52. The judge concluded thatjustice would be best served by imposing an exceptional sentence of 72 months. Mr. Boringtimely appealed to this court. ANALYSIS Mr. Boring alleges his trial counsel performed ineffectively by not warninghim about the possibility ofbeing sentenced to more than the 48 months the plea agreement recommended and, therefore, he should be allowed to withdraw his pleato avoid a manifest injustice. Dueprocess requires that a guilty pleabeknowing, voluntary, and intelligent. In

re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A defendant may withdraw a guilty plea ifnecessary to correct a manifest injustice. Id. at 298. There are four nonexclusive indicia that can independently establish a manifest injustice: (1) the pleawas notratified by the defendant, (2) the pleawas not voluntary, (3) effective counsel was denied, or (4) the plea agreement was not honored. State v. Marshall, 144 Wn.2d 266,281,27 P.3d 192 (2001), abrogatedbyState v. Sisouvanh, 175 Wn.2d 607, 290 P.3d 942 (2012). There is a strongpresumption ofattorney competence. State v. Jamison, 105 Wn. App. 572, 590,20 P.3d 1010 (2001). The appellant must show that (1) his counsel's performance fell below an objective standard ofreasonableness and (2) counsel'spoor 3No.30283-1-III State v. Boring work prejudicedhim, which in the context ofguilty pleas means thatbut for counsel's deficientperformance, he would nothave entered a guilty plea. Stricklandv. Washington, 466 U.S. 668,688, 104 S. Ct. 2052, 801. Ed. 2d 674 (1984); State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990). Atthe pleahearing, the court engaged in a colloquy with Mr. Boring to determine whether his change ofpleawas knowing, voluntary, and intelligent. The court explained the Statement ofDefendant on Plea ofGuilty. The court went on to explain the sentencing options, stating: Now the penalty here we already talked about this a little bit but would be 2 to 6 months on Count One and 6 to 12. That's the standard range we call it and those would run concurrentlybuthere there's a unique feature that there are some aggravating factors that this is a uh large scale economic offense, major economic offense it's called so that means that uh in this instance uh the Court coulduh theoretically uh enter a sentence up to the statutory maximum. Now these are Class B felonies? So that wouldbe then ten (10) years uh or one hundred twenty (120) months. You understand that? Report ofProceedings (Jul., 22, 2011) at 12. Mr. Boringresponded that he understood, and later told the court he felt like he had had the benefit ofcounsel, been able to consider his options, and this was what he wanted to do. Additionally, the Statement ofDefendant on Plea ofGuilty recites: "Thejudge does not have to follow anyone's recommendation as to sentence....Thejudge may also impose an exceptional sentence above the standardrange ifthe State has given notice that 

### 4

### No. 30283-1-111 State v. Boring itwill seek an exceptional sentence, the notice states aggravating circumstances upon which the requested sentence will be based, and facts supporting an exceptional sentence

are provedbeyond a reasonable doubtto a unanimousjury, to ajudge if1waivejury, or by stipulated facts." CP at 68-69. Mr. Boring signed this statement, indicating his lawyer explained the statement and that he understood the entire statement. The record strongly establishes that Mr. Boring was advised, both in writing and orally, that his pleas ofguilty could potentially result in a sentence ofup to 10 years per count. Furthermore, Mr. Boring has presented no evidence, otherthanhis bare assertions, that trial counsel did not explicitly warn him that he couldbe given a sentence longer than 48 months ifhepleaded guilty. Mr. Boring has failed to show that his trial counsel was ineffective andtherefore has not shown a manifest injustice requiring withdrawal ofhis plea. Statement of Additional Grounds Mr. Boring also filed a Statement ofAdditional Grounds (SAG) inwhich he argues five grounds for a new sentence orwithdrawal ofhis plea. He claims he was entitled to two different statutory sentencing alternatives, he received ineffective assistance ofcounsel, his Sixth Amendment right to ajurywas violated, and his sentence

was not in accordance with the sentencing grid pursuant to RCW 9.94A.51O. We will briefly address each ofthese claims.

5No. 30283-1-111 State v. Boring The first-time offender waiver is found in RCW 9.94A.650, which gives a sentencing courtthe ability to waivethe standard range sentence for nonviolent offenders convicted ofa felony for the first time. Generally, a party cannot appeal a trial court's refusal to impose an exceptional sentence orto use a sentencing alternative. E.g., State v. Friederich-Tibbets, 123 Wn.2d 250, 252,866 P.2d 1257 (1994) (exceptional sentence); State v. Frazier, 84 Wn. App. 752, 753,930 P.2d 345 (1997) (special sexual offender sentencing alternative). However, appellate review is permitted when a court either refuses to exercise discretion or relies on an impermissible basis for refusing to impose an exceptional sentence below the standard range. State v. Garcia-Martinez, 88 Wn. App. 322,330,944P.2d 1104 (1997). When a trial courtthat has considered whether there is a basis to impose an exceptional basis and determined that there is no legal or factual basis for an exceptional sentence, it has exercised its discretion and the defendant may not appeal that ruling. State v. McGill, 112 Wn. App. 95, 100,47P.3d 173 (2002). Atthe sentencing hearing, both the State and defense counsel addressed the firsttime offenderwaiver. The court considered the first-time waiver alternative, indicating that although defense counsel did not specifically requestthe waiver, the court would have declinedto apply it in any eventbecause it was not appropriate here. The court clearly consideredthe option, exercised its discretion, and Mr. Boring may not appeal that ruling.



### 6No. 30283-1-111 State v. Boring Mr. Boring also claims he qualified for theparenting sentencing alternative and the trial court erred by not sentencing himunderthat alternative. The parenting sentencing alternative is found in RCW 9.94A.655, whichprovides in part: (l)An offender is eligible for the parenting sentencing alternative if: (a) The high end ofthe standard sentence range for the current offense is greater than oneyear. Mr. Boring did not qualify for this alternative becausethe standard range for the first degree theft count was zero to three months and the standard range for the first degree trafficking count was six to twelve months. Since thehigh end ofthe standard range was not greater than one year for either ofthese offenses, Mr. Boring was not entitled tothis sentencing alternative and the trial court did not err. Mr. Boring argues next thathe received ineffective assistance ofcounsel because counsel failed to discuss appeal procedures andwithdrew six days after sentencing, leaving Mr. Boring to appeal pro se with no knowledge ofthe process. However, Mr. Boring has failed to show counsel's performance was deficient for withdrawing at that time, orthat he was prejudiced in any way. Mr. Boring also claims that underRCW 9.94A.535(3)(d) andBlakelyv. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), he shouldhave been sentenced in front ofajury ofhis peers to determine whether an exceptional sentence wasjustified. Mr. Boring is correct that normally an exceptional sentence may be imposed on the grounds that the offensewas a major economic offense only ifthe 7No.30283-1-III State v. Boring aggravating factor is found by ajury. However, he pleaded guilty to the aggravated charges. Ajury finding is not necessary where the defendantpleaded guilty to the aggravating circumstances. RCW 9.94A.537(3). Finally, Mr. Boring asserts his sentence was not in accordance with the standard sentencing grid. RCW 9.94A.SIO. His argument ignores the fact that he pleaded guilty to aggravating circumstances on each count which allowed the courtto impose an exceptional sentence above the standard range. The arguments presented in the SAG are without merit. Affirmed. A majority ofthepanel has determined this opinion will notbeprinted in the Washington Appellate Reports, but 

### itwill be filed for public record pursuantto RCW 2.06.040.

Korsmo, C.J. WE CONCUR:

# ~I?t-. 8