FILED 


MAY 23,2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 30283-1-III 

) 

Respondent, ) 

) 

v. ) 

) UNPUBLISHED OPINION 

CHRISTOPHER RANDALL BORING, ) 

) 

Appellant. ) 

KORSMO, C.J. - Christopher Boring argues that his guilty plea was invalid 

because trial counsel failed to inform him about the potential sentencing consequences of 

pleading guilty to crimes with aggravating circumstances. Concluding that he was aware 

ofthe sentencing consequences, we affirm. 

BACKGROUND 

Mr. Boring worked as a supervisor at Hewes Marine Company (Hewes), a familyowned business that manufactures and sells aluminum fishing boats in Colville. He had 

worked there for a number ofyears before he was caught selling Hewes's aluminum to a 

recycling company in Spokane. It was alleged that he sold more than $200,000 worth of 

aluminum between August 2007 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 stolen property.] Both crimes were alleged to be major 

economic offenses because 

[they] involved multiple victims or multiple incidents per victim; [they] 

involved ... actual monetary loss substantially greater than typical for the 

offense; [t]hey involved a high degree ofsophistication or planning or 

occurred over a lengthy period of time; or [t]he defendant used his or her 

position oftrust, confidence, or fiduciary responsibility to facilitate the 

commission of the 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 

the plea hearing, the judge asked Mr. Boring whether he had gone over the plea 

agreement with his attorney, whether he had any questions, whether he understood that 

he was waiving certain constitutional rights, and if he understood that the court would 

sentence him. Mr. Boring answered yes to each question before the plea was accepted. 

The prosecutor recommended 48 months' incarceration at sentencing. The judge 

noted that "[t]his is the largest-by duration, number of criminal occurrences and dollar 

amounts-theft and trafficking case in [that jurisdiction] over the last twenty years," and 

that "an exceptional sentence will promote respect for the law and is commensurate with 

I Mr. Boring's wife, Jody Boring, was found guilty ofsecond degree trafficking in 

stolen property at trial. Her appeal, cause no. 30280-6-III, is linked with this case for 

consideration. 

2 

No. 30283-1-111 

State v. Boring 

punishments imposed in other embezzlement cases over those years." CP at 151-52. The 

judge concluded that justice would be best served by imposing an exceptional sentence of 

72 months. 

Mr. Boring timely appealed to this court. 

ANALYSIS 

Mr. Boring alleges his trial counsel performed ineffectively by not warning him 

about the possibility of being sentenced to more than the 48 months the plea agreement 

recommended and, therefore, he should be allowed to withdraw his plea to avoid a 

manifest injustice. 

Due process requires that a guilty plea be knowing, voluntary, and intelligent. In 

re Pers. Restraint ofIsadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A defendant may 

withdraw a guilty plea if necessary to correct a manifest injustice. Id. at 298. There are 

four nonexclusive indicia that can independently establish a manifest injustice: (1) the 

plea was not ratified by the defendant, (2) the plea was 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), abrogated by State v. Sisouvanh, 175 Wn.2d 607, 

290 P.3d 942 (2012). 

There is a strong presumption of attorney 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 of reasonableness and (2) counsel's poor 

3 

No.30283-1-III 

State v. Boring 

work prejudiced him, which in the context of guilty pleas means that but for counsel's 

deficient performance, he would not have entered a guilty plea. Strickland v. 

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). 

At the plea hearing, the court engaged in a colloquy with Mr. Boring to determine 

whether his change of plea was knowing, voluntary, and intelligent. The court explained 

the Statement of Defendant on Plea of Guilty. 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 concurrently but here 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 could uh theoretically uh enter a sentence up to the 

statutory maximum. Now these are Class B felonies? 

So that would be then ten (10) years uh or one hundred twenty (120) 

months. You understand that? 

Report of Proceedings (Jul., 22, 2011) at 12. Mr. Boring responded that he understood, 

and later told the court he felt like he had had the benefit of counsel, been able to 

consider his options, and this was what he wanted to do. 

Additionally, the Statement ofDefendant on Plea of Guilty recites: "The judge 

does not have to follow anyone's recommendation as to sentence .... The judge may also 

impose an exceptional sentence above the standard range if the State has given notice that 

4 

No. 30283-1-111 

State v. Boring 

it will seek an exceptional sentence, the notice states aggravating circumstances upon 

which the requested sentence will be based, and facts supporting an exceptional sentence 

are proved beyond a reasonable doubt to a unanimous jury, to a judge if 1 waive jury, 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 of guilty could potentially result in a sentence of up to 10 years per 

count. Furthermore, Mr. Boring has presented no evidence, other than his bare 

assertions, that trial counsel did not explicitly warn him that he could be given a sentence 

longer than 48 months ifhe pleaded guilty. Mr. Boring has failed to show that his trial 

counsel was ineffective and therefore has not shown a manifest injustice requiring 

withdrawal of his plea. 

Statement ofAdditional Grounds 

Mr. Boring also filed a Statement of Additional Grounds (SAG) in which he 

argues five grounds for a new sentence or withdrawal of his plea. He claims he was 

entitled to two different statutory sentencing alternatives, he received ineffective 

assistance of counsel, his Sixth Amendment right to a jury was violated, and his sentence 

was not in accordance with the sentencing grid pursuant to RCW 9.94A.51O. We will 

briefly address each of these claims. 

5 
No. 30283-1-111 

State v. Boring 

The first-time offender waiver is found in RCW 9.94A.650, which gives a 

sentencing court the ability to waive the standard range sentence for nonviolent offenders 

convicted of a felony for the first time. Generally, a party cannot appeal a trial court's 

refusal to impose an exceptional sentence or to 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. 

322,330,944 P.2d 1104 (1997). When a trial court that 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, 100,47 P.3d 173 (2002). 

At the sentencing hearing, both the State and defense counsel addressed the firsttime offender waiver. The court considered the first-time waiver alternative, indicating 

that although defense counsel did not specifically request the waiver, the court would 

have declined to apply it in any event because it was not appropriate here. The court 

clearly considered the option, exercised its discretion, and Mr. Boring may not appeal 

that ruling. 

6 

No. 30283-1-111 

State v. Boring 

Mr. Boring also claims he qualified for the parenting sentencing alternative and 

the trial court erred by not sentencing him under that alternative. The parenting 

sentencing alternative is found in RCW 9.94A.655, which provides in part: 

(l) An offender is eligible for the parenting sentencing alternative if: 

(a) The high end of the standard sentence range for the 

current offense is greater than one year. 

Mr. Boring did not qualify for this alternative because the 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 the high end of the standard 

range was not greater than one year for either of these offenses, Mr. Boring was not 

entitled to this sentencing alternative and the trial court did not err. 

Mr. Boring argues next that he received ineffective assistance of counsel because 

counsel failed to discuss appeal procedures and withdrew six days after sentencing, 

leaving Mr. Boring to appeal pro se with no knowledge of the process. However, Mr. 

Boring has failed to show counsel's performance was deficient for withdrawing at that 

time, or that he was prejudiced in any way. 

Mr. Boring also claims that under RCW 9.94A.535(3)(d) and Blakely v. 

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), he should have 

been sentenced in front ofajury of his peers to determine whether an exceptional 

sentence was justified. Mr. Boring is correct that normally an exceptional sentence may 

be imposed on the grounds that the offense was a major economic offense only if the 

7 
No.30283-1-III 

State v. Boring 

aggravating factor is found by a jury. However, he pleaded guilty to the aggravated 

charges. Ajury finding is not necessary where the defendant pleaded 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 court to impose an 

exceptional sentence above the standard range. 

The arguments presented in the SAG are without merit. 

Affirmed. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Korsmo, C.J. 

WE CONCUR: 

~I?t-. 

8