### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, DIVISION ONE

Respondent, No. 80641-6-I V. UNPUBLISHED OPINION STEVEN MATTHEW FULLERTON,

Appellant. FILED: January 27, 2020 DWYER, J.

—Steven Fullerton appeals from his conviction for assault in the third degree and multiple violations ofa civil anti-harassment orderfollowing
a stipulated facts trial. Fullerton asserts thatthe trial court erred by enforcing a mental health court contract in which he waived several constitutional rights, including the rightto a trial byjury, because it did not setforth the standard range and statutory maximum sentences forthe crimes charged. Because such information was not required to be included in the mental health court contract and Fullerton knowingly, intelligently, and voluntarily agreed to the terms ofthe mental health court contract and waived his constitutional rights, we affirm.

In 2017, Fullerton was charged with one count of assault in the third degree and two counts ofviolating a civil anti-harassment order. Fullerton suffers from multiple mental health disorders. Ratherthan undergo trial, Fullerton agreed to participate in a mental health court program. This programNo. 80641 -6-1/2

defers prosecution in exchange forthe defendant’s participation and, ifthe defendant successfully completesthe program, the charges against him or her
are dismissed with prejudice. The mental health court program contract setforth the following provisions pertinentto this appeal: 21. It isthe Judge’s decision to determine when the defendant has earned the abilityto complete the Program and to determine when termination from the Program will occur. 22. Failure to abide byany Program rule, any positive urinalysis/breath test, any missed treatment session orCourt hearing, any newviolation ofthe law, or anyfailure to abide by any otherterms orconditions ofthis contractwill subjectthe defendant to a sanction ordered bythe Court, which may consist of work release, confinement in the Lewis CountyJail, communityservice, an increase in treatment services, orany othersanction up to and including termination from the Program. 23. Ifthe defendant isterminated from the Program, the defendant agrees and stipulates thatthe Court will determine the issue of guilt on the pending charge(s) solely upon a summary ofthe enforcement/investigative agency reports ordeclarations, witness statements, field test results, lab test results, orotherexperttesting orexaminations such as fingerprint or handwriting comparisons, which constitute the basis forthe prosecution ofthe pending charge(s) as contained in the Probable Cause Statement. The defendant further agrees and stipulates the facts presented bysuch reports, declarations, statements, and/orexpert examinations are sufficientforthe Courtto find the defendant guilty ofthe pending charge(s). 24. The defendant acknowledges, understands, and agrees to waive the following rights: a. The rightto a speedytrial pursuantto CrR 3.3 (The defendantfurther agrees to a new commencement date of4/1/20); b. The right to a publictrial by an impartial jury in the countywherethe crime is alleged to have been committed; c. The rightto hearand question anywitness testifying againstthe defendant;

2No. 80641-6-1/3 d. The right attrial to have witnesses testifyforthe defense, and for such witnesses to be made to appearat no expense to the defendant; and e~ The rightto testifyattrial. 25. The defendantwaives the rightto challenge the legality of any investigative orcustodial detention, orthe legality of anysearch or seizure, orthe sufficiencyor Miranda[1~ warnings orvoluntariness of any statement made, pertaining to any evidence, which forms part ofthe basis forthe prosecution ofthe pending charge(s). The contract was signed by Fullerton, his defense counsel, the prosecutor, and the court. Above Fullerton’s signature, the contract setforth the following acknowledgement: “My attorney has explained to me, and we have fully discussed, all ofthe above paragraphs. I understand them all and wish to enter in this Mental Health Court Program Contract. I have no furtherquestions to ask the Judge.” Before Fullerton signed the agreement, he engaged in a brief colloquy with the court about his understanding ofthe agreement. Specifically, the court asked Fullerton if (1) he was voluntarily signing the agreement, (2) he understood that he was waiving certain rights—like the rightto a speedytrial—in exchange forthe opportunityto go through the mental health court program and have his charges dismissed upon successful completion ofthe program, and (3) he had reviewed the contractwith his attorney and had any questions. In response, Fullerton stated that he understood that he was waiving his rights forthe chance to participate in the program, that he had reviewed the contractwith his attorney and did not have any questions, and that hewas signing the contract voluntarily.

1 Miranda v. Arizona, 384 u.s. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3No. 80641 -6-114

Subsequently, Fullerton was terminated from the program forviolating the terms of his contract. The trial court held a stipulated facts trial and found Fullerton guilty of all three charges against him. The court then imposed an exceptional sentence downward of 24 months of incarceration with creditfortime served and required Fullerton to pay a $500 crime victim compensation fund assessment. Fullerton appealed to Division Two, which transferred the matterto us for resolution. II Fullerton’s sole contention on appeal is that he did not knowingly, intelligently, and voluntarily enter into the mental health court contract and that therefore hiswaiverof his constitutional rights underthat contract is invalid. This is so, Fullerton asserts, because the contract did not set forth the standard range orstatutory maximum sentences forthe charged offenses. Because such information need not be included in a deferred prosecution agreement such as the mental health court program contract, Fullerton’s contention is unavailing. We review awaiverof constitutional rights de novo. State v. Robinson, 171 Wn.2d 292, 301, 253 P.3d 84 (2011). A defendant’s waiverof his or her constitutional right is valid only if made knowingly, intelligently, and voluntarily. State v. Steciall, 124 Wn.2d 719, 724, 881 P.2d 979 (1994). Such awaiver must be made with “sufficient awareness ofthe relevant circumstances and likely consequences.” Bradyv. United States, 397 U.S. 742, 748, 90S. Ct. 1463,25 L. Ed. 2d 747 (1970). It isthe State’s burden to establish an “intentional

4No. 80641 -6-1/5

relinquishment orabandonment of a known right or privilege.” Brewerv. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). Fullerton asserts thatthe mental health court program contract he signed
was similarto a guilty plea and was therefore required to inform him ofthe standard range and maximum possible sentencesforthe crimes with which he
was charged. To support his assertion, Fullerton citesto State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001), which setsforth the principlethat a defendant may not knowingly, intelligently, and voluntarilysubmit a guilty pleawithout being properly informed ofthe sentencing consequences forthe crimes charged. This is because “[a] plea of guilty constitutes a waiverof significant rights bythe defendant, among which are the rightto ajurytrial, to confront one’s accusers, to present witnesses in one’s defense, to remain silent, and to be convicted by proofbeyond all reasonable doubt.” State v. Tourtellotte, 88 Wn.2d 579, 583, 564 P.2d 799 (1977) (emphasis added) (citing Santobello v. NewYork, 404 U.S. 257, 260, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (Douglas, J., concurring)); see also Brady, 397 U.S. at 748 (“[T]he plea is more than an admission of past conduct; it isthe defendant’s consentthatjudgment of conviction may be entered without atrial.”). Therefore, sentencing is a direct consequence of a guilty plea, and a defendant must be informed ofthe sentencing consequences fora guilty pleato be valid. Wood v. Morris, 87 Wn.2d 501, 503, 513, 554 P.2d 1032 (1976).

5No. 80641 -6-1/6

In contrast, a defendant entering into a deferred prosecution agreement requiring a stipulated facts trial should the defendant breach the agreement— such asthe mental health court program contract herein—plainly does not waive the rightto be convicted by proof beyond a reasonable doubt.2 See State v. Drum, 168 Wn.2d 23, 34, 225 P.3d 237 (2010) (“By entering a drug court contract, a defendant is not giving up his right to an independentfinding of guilt beyond a reasonable doubt.”). “[A] stipulated factstrial, where the trial court independently reviews the evidence and makes its own findings, is notthe equivalent of a guilty plea.” Drum, 168 Wn.2d at 39 (citing State v. Mierz, 127 Wn.2d 460, 468-69, 901 P.2d 286 (1995)). Therefore, sentencing is not a direct consequence of a defendant’s decision to enter into a deferred prosecution agreement—the defendant must first be found guilty ofthe crimes charged—and the due process protections required in the context of guilty pleas are not applicable. Drum, 168 Wn.2d at 39. The record herein is clear. The mental health court contract set forth the rights Fullerton was waiving by participating in the mental health court program and the consequences if Fullerton violated anyterms ofthe contract. Fullerton acknowledged, both verbally and in writing, that his attorney had explained to him the rights he was waiving, that he understood those rights and did not have any questions, and that he was voluntarily agreeing to waive those rights forthe

2 Although the mental health court program contract herein required Fullerton to stipulate thatthere was sufficient evidenceto find him guilty beyond a reasonable doubt, the trial court was not bound bythis stipulation. State v. Drum, 168Wn.2d 23, 34, 225 P.3d 237 (2010). Fullerton does not assert on appeal thatthere was legally insufficient evidence to supportthe trial court’s judgment of guilt. 6No. 80641-6-1/7

chance to participate in the mental health court program. Fullerton’s waiverwas valid. Affirmed.

WE CONCUR: