### FILED 

### COURT OF APPEALS DIVISION II 2015JUN 23 

### AM 8: 32

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Personal Restraint Petition of JOHN MICHAEL TROIT, DIVISION II

Petitioner. No. 46090 - 4 -II

UNPUBLISHED OPINION

LEE, J. — 

### John Michael Troit seeks relieffrom personal restraint imposed following his conviction ofunlawful possession of a controlled substance (methamphetamine) with intent to 

### deliver. Troit contends that he received ineffective assistance ofcounsel when his trial attorney 

### failed to accurately convey a plea offerthatwould have allowed him to plead guiltyto a simple possession charge. Troit received a sentence of 100 months, which was well beyond any
standard range sentence he would have received had he pleaded guilty to possession only. 1 

### Because defense counsel did not convey the State' s offer in atimely and accurate manner, we agree that Troit received ineffective assistance. Therefore, we grant this petition, remand this matter, and direct the State to again offer him a chance to plead guilty to unlawful possession.

1 Troit' s standard range for a possession conviction would have been 12+ to 24 months, while his standard range on the possession with intent to deliver conviction was 60+ to 120 months. RCW 9. 94A.517, . 518.No. 46090 - 4 -II FACTS Troit raised this issue on direct appeal, and we recognized that the transcript ofthe 

### sentencing hearing showed some disagreement aboutthe specifics ofthe State' s plea offer. State

v. Troit, noted at 171 Wn.App. 1015, 2012 WL 5349380, at * 3 ( 2012), review denied, 176 Wn.2d 1028 ( 2013). 

### During that hearing, defense counsel assertedthatthe State had offered to recommend a sentence within the range for possession of a controlled substance while 

### maintaining the original charge ofpossession with intent to deliver. Counsel said that he told Troit thatthe recommended sentence was not compatible with his offense. The prosecuting 

### attorney responded thatthe State had offered to amend the charge to possession ofa controlled substance, which would have allowed Troit to take advantage ofthe considerably reduced
sentence range. Troit, 2012 WL 5349380, at * 2 - 3. On appeal, we observed that these facts were insufficient to show that defense counsel misstated the plea offer to Troit, but we noted that Troit 

### could submit additional evidence in a personal restraint petition and seek a reference hearing. Troit, 2012 WL 5349380, at * 3. 

### Troit responded byfiling atimely personal restraint petition and a copy ofthe State' s written plea offer. The document appeared to supportthe prosecuting attorney' s description of the offer during sentencing, but it was not without ambiguity and did not answer questions concerning how and when defense counsel communicated its terms to Troit. 

### We transferred this petition to the superior court for a reference hearing to determine the 

### terms ofthe State' s plea offer and whetherthose terms were communicated to Troit in atimely 

### manner. RAP 16.12. Following that hearing, the superior court entered written findings offact, two ofwhich described the State' s offer:
2No. 46090 - 4 -II
2. 

### The state' s written plea offer in this case stated, atthe top ofthe document, that the defendant was charged [with] Unlawful Possession of a Controlled Substance --Methamphetamine - - with Intent to Deliver. Just below that, however, the written plea offer states that the charge is " UPCS-meth" with a standard range of "12+ to 24 months," based on a noted offender score of 7.... That is the amount oftime for a standard range sentence for a charge of Unlawful Possession of a Controlled Substance --Methamphetamine, for a defendant with an offender score of 7. 3. 

### The written plea offer also states that " ifthe defendant pleads by 12/20:

Plead to as charged; Recommendation: 12+ months." The written plea offer includes increasing recommended sentences if defendant accepts the plea offer at later dates, up to 18 months, " if the defendant pleads after 1/ 13." The written plea offer is dated " 29 Nov 10," 

### and signed by [the assigned prosecutor]. Findings ofFact Following Reference Hr' g, at 2. The offer also contained the prosecutor' s handwritten notation that, regarding the offer of 12+ 

### months, she " will honor ifhe takes by Wed, 12/22 

### @ 10: 30." Findings of Fact, at 2. 

### At Troit's arraignment on November 30, 2010, an attorney fromthe Office ofAssigned Counsel tendered anot guilty plea on Troit's behalfand named the attorneywho would be 

### assignedto Troit. During the arraignment,the prosecutor stated that she had "already handed 

### defense counsel acopy ofthe state's offer, statement ofcriminal historyand offender score
worksheet." Findings of Fact, at 2. 

### Troit's pretrial /

omnibus hearingwas scheduled for 10:30 AM on December 20, 2010. He did not appear at that hearing, and it was continued to December22 at 10:30 AM. On December 20, the original date forthe hearing, defense counsel and the prosecutor metto discuss the State' s written offer,which the prosecutorthen realized "was not as she normallywould have made in a case charging Unlawful Possession ofa Controlled Substance with Intent to Deliver,to defendant with Mr. Troit' s offender score." Findings of Fact, at 3. The prosecutor agreed to 

### keep the offer open as written fortwo days, or until December22 at 10:30 AM,the date andtime 3No. 46090 - 4 -II 

### to which the pretrial /

omnibus hearing was continued. Troit did not attend the omnibus hearing on December 22. 

### While Troit was in custody, he sent defense counsel and defense counsel' s supervisor a 

### total offive "kites" complaining ofcounsel' s lack ofcontact and lack ofwork on his case.' Findings of Fact, at 3. The earliest kite, dated December 20, 2010, stated in part that it has " been

over 40 days and I have not yet heard from my attorney." Findings of Fact, at 3. 

### Troit testified atthe reference hearing that his attorney eventually informed him thatthe State' s offer was to "plead as charged" and that at sentencing the attorneys would askfor an exceptional sentence downward. Findings of Fact, at 3. Troit also testified that he told his 

### attorney that he wanted to think about the offer. Troit added that he never sawthe State' s written offer until he received it through public records requests filed with the prosecutor' s office and the Office ofAssigned Counsel. 

### Troittestified at his sentencing hearing that his attorney relayed a plea offerto him during their firstvisit,and he testified atthe reference hearing thatthis visit did not take place 

### until 40 days after his arrest. Troit's kites referred to this lack ofattorney contact andthis length of time.

### During his allocution atthe time ofsentencing, Troit stated that he asked his attorney aboutthe deal during his second visit,which was the day before trial. Troittold the sentencing 

### judge that his attorney stated thatthe offer he had communicated earlierwas a mistake and that 

### the only question was `whether a lesser included charge would be given to thejury.



### 2 Inthis context, a kite is awritten note sent by inmates to variouspeople out ofcustody, including their attorneys. 4No. 46090 - 4 -II At the sentencing 

### hearing, defense counsel attempted to clarify the plea offer. " The original offer was to plea as charged, but to accept a sentence within a range that was for simple possession, and so the offer, as I understood it,was to plea as charged, but the amount oftime

was not what —

compatible with what he would have done, and that' s what I told Mr. Troit." Findings of Fact, at 4. The prosecutor then stated, "[ Defense counsel] came to me and said 

### specifically, if I understand it right,you're offering him possession with a 12 - plus to 24 month

sentence instead ofdelivery, and I said yes, that is correct." Findings of Fact, at 4. The court' s final finding is as follows: 18. Based on the above findings of fact, all of which are based on unrefuted testimony and exhibits, the undersigned finds that the offer as 

### communicated to Mr.Troit by his attorneywas to enter aplea "as charged ", and that the attorneys would agree to recommend a " standard range" sentence of 12 +months in custody. That standard range was notthe correct standard range for a charge of Unlawful Possession of a Controlled Substance with Intent to Deliver -- Methamphetamine, for an offender with Mr. Troit' s offender score of 7. Mr. Troit' s standard range for that charge was 60+ 

### to 120 months in custody. Findings of Fact, at 4. As stated, Troit was convicted of possession with intent to deliver and received a sentence of 100 months. ANALYSIS To succeed on a claim of ineffective assistance ofcounsel, a petitioner must show that his counsel' s performance was deficient and thatthe deficiency was prejudicial. In re Pers. Restraint ofReise, 146 Wn.App. 772, 787 - 88, 192 P. 3d 949 (2008). 

### In a plea bargaining
context, effective assistance of counsel requires that counsel "` actually and substantially ' assist 

### his client in deciding whetherto plead guilty. State v. Osborne, 102 , Wn.2d 87, 99, 684 P.2d 683 1984) ( quoting State v. Cameron, 30 Wn.App. 229, 232, 633 P.2d 901 ( 1981)). This includes
5No. 46090 - 441 

### communicating actual offers and discussing tentative plea negotiations and the strengths and weaknesses ofdefendant' s case so that the defendant knows what to expect and can make an informedjudgment about whether or notto plead guilty. State v.James, 48 Wn.App. 353, 362, 739 P.2d 1161 ( 1987). As the James court added,



### In conducting discussions with the prosecutor the lawyer should keep the accused advised of developments at all times and all proposals made by the prosecutor should be communicatedpromptly to the accused." 

### 48 Wn.App. at 363 (quoting Lyles v. State, 178 Ind. App. 398, 401, 382 N.E.2d 991 ( 1978)). Ifa defendant' s rightto effective assistance ofcounsel in considering whether to accept a 

### plea bargain is denied, prejudice can be shown ifloss ofthe plea opportunity led to atrial resulting in conviction on more serious charges orthe imposition ofa more severe sentence. Lafler v. Cooper, U.S. , 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398 ( 2012). Ifthe offer was to a count less serious than the one for which the defendantwas convicted, a resentencing 

### based on the conviction at trial may not suffice. Lafler, 132 S. Ct. at 1389. Instead, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the 

### judge canthen exercisediscretion in deciding whethertovacatethe conviction from trial and accept the plea or leave the conviction undisturbed. • 

### Lafler, 132 S. Ct.at 1389; see also State v. Hamilton, 179 Wn.App. 870, 879, 320 P.3d 142 2014) (

### remedy for lawyer's ineffective assistance isto put defendant in position in which he would have been had counsel been effective). 

### It is unclear exactlywhen defense counsel conveyed the State' s plea offer to Troit. Counsel had that offer by November 30 atthe latest,and at best he communicated that offerto Troit sometime around December 22, the daythat the original offer.expired. What is clear, however, isthat defense counsel did not accurately conveythe plea offerto Troit. Counsel told 6No. 46090 - 4 -II 

### Troitthatthe State was offering to allow him to plead to "as charged' with the recommendation
of a " standard range" sentence of 12+ months in custody. That sentence range was notthe correct standard range for unlawful possession with intent to deliver. Moreover, we agree with Troit that it makes little sense that the State' s offer would be a guilty plea to the offense charged, 

### with the only possible reliefbeing a recommended sentence well belowthe correct standard
range of 60+ to 120 months. The prejudice from counsel' s failure to promptly and accurately conveythe plea offer to Troit is evident. The loss ofthis plea opportunity led to Troit' s conviction on a more serious charge and a sentence of 100 months in prison. We grant this petition and remand for the State 

### to reofferthe plea proposal. The trial court maythen exercise its discretion to vacate the conviction and accept the plea or leave the current conviction undisturbed. 

### A majorityofthe panel having determinedthatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

7