### FILED 

## COURT OF / kPPEALz 

## DIVISION 11 " 2015AP. 34 

### AM 9: 51 IN THE COURT OF APPEALS OF THE STATE OF

# WASHINGTO

STATE OF WASHINGTON,

v. JAMES JOHN CHAMBERS, DIVISION II
Respondent,

Appellant. No. 45392 - 4 -II Consolidated with Nos. 45399 -1 - II; 45402 - 5 -II
UNPUBLISHED OPINION

WoRSwicx, J. — James John Chambers moved under CrR 7. 8 to withdraw his 1999 

### guilty pleas to several charges thatwere included in an indivisible plea agreement underthree different cause numbers, which motion the trial court denied. Chambers appeals, asserting that 

### because his pleas are facially invalid,the trial court erred by denying his motion. In a statement
of additional grounds for review (SAG), Chambers argues that the trial court failed to comply 

### with remand instructions when denying his CrR 7.8 motion to withdraw his guilty pleas. We
affirm. FACTS In 1999, Chambers entered into an indivisible plea agreement under three different Pierce 

### County Superior Court cause numbers. State v. Chambers, 176 Wn.2d 573, 577 - 78, 583, 293 P. 3d 1185 ( 2013). In cause number 99 -1- 00817 - 2, Chambers pleaded guilty to unlawful possession of a controlled substance with intent to deliver, unlawful manufacturing of a
controlled substance, and two counts offirst degree unlawful possession of a firearm (FebruaryNo. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 - 5 -II crimes). 1 Chambers, 176 Wn.2d at 577 - 78. In cause number 99 -1- 02235 -3, Chambers pleaded guilty to unlawful possession of a controlled substance (

### May crime). Chambers, 176 Wn.2d at 

### 578. Finally, in cause number 99 -1- 05307 -1, Chambers pleaded guilty to failure to remain at an injury accident, unlawful possession ofa firearm, unlawful manufacture ofa controlled substance, and two counts offirst degree possession ofstolen property (November crimes). Chambers, 176 Wn.2d at 578 - 79. In 2008, Chambers filed a personal restraint petition with this court that challenged the validity of his sentence with respect to his February crimes. Chambers, 176 Wn.2d at 579; In re Pers. Restraint ofChambers, No. 38074 - 9 -1I, ( Wash. Ct. App. Jan. 15, 2009). We granted 

### Chambers' s 2008 petition in part,holding that hisjudgment and sentence was invalid on its face as to his convictions for two counts offirst degree unlawful possession ofa firearm. Order 

### Granting Petition in Part, In re Chambers, No. 38074 - 9 -II. Our Supreme Court accepted 

### discretionary reviewfrom our order granting Chambers' s petition in part and ordered the trial 

### court to considerwithdrawing Chambers' s guilty pleas asto all his February crimes. In re Pers. Restraint ofChambers, 171 Wn.2d 1035 (2009). On remand, the trial court granted Chambers' s motion to withdraw his guilty pleas to all his February crimes. See State v. Chambers, 163 Wn. 

### App. 54, 60, 256 P. 3d 1283 ( 2011), aff'd, 176 Wn.2d 573 ( 2013). Additionally, " [ b] ecause the State had destroyed the evidence to support


### 1 For clarity, and for consistencywith prior decisions addressing Chambers' s plea agreement, this opinion will hereafter refer to Chambers' s convictions under cause number 99 -1- 00817 - 2 as February crimes "; conviction under cause number 99 -1- 02235 -3 as " May crime "; and convictions under cause number 99 -1- 05307 -1 as " November crimes."
2No. 45392 - 4 - II Cons. wi Nos. 45399 -1 - 1I; 45402 - 5 -II the February crimes, the trial court dismissed the case on the State' s motion." Chambers, 163 

### Wn. App. at 60. The State appealed the trial court' s order granting Chambers' s motion to 

### withdraw his guilty pleas to his February crimes, arguing that Chambers' s guilty pleas to those crimes were part ofan indivisible agreement to plead guilty to his May and November crimes. Chambers, 163 Wn.App. at 60 - 61. We agreed with the State, reversed the trial court' s order 

### granting Chambers' s motion to withdraw his guilty pleasto the February crimes, and remanded for further proceedings, in which Chambers may seekto withdraw his indivisible guilty plea on
all nine counts." 

### Chambers, 163 Wn.App. at 62. Our Supreme Court accepted review and 

### affirmed our holding that the trial court had erred by granting Chambers' s motion to withdraw 

### his guilty pleas as to his February crimes, agreeing thatthose pleas were part ofan indivisible plea agreement. Chambers, 176 Wn.2d at 580 -83. After our Supreme Court issued its opinion, Chambers moved under CrR 7.8 to withdraw 

### his guilty pleas as to all ofthe charges contained in his indivisible plea agreement. Thetrial court denied Chambers' s motion, concluding that Chambers' s had failed to demonstrate a manifest injustice allowing him to withdraw his guilty pleas. Chambers appeals the trial court' s order denying his motion to withdraw his guilty pleas. ANALYSIS 

### Chambers contends thatthe trial court erred by denying his CrR 7.8 motion to withdraw 

### his guilty pleas to his February, May, and November crimes due to the facial invalidity ofhis judgment and sentence with respect to his February crimes offirst degree unlawful possession of a firearm. We disagree and affirm the trial court' s order denying Chambers' s motion to withdraw his guilty pleas.
3No. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 - 5 -II 

### We review atrial court' s decision to grant or deny a motion to withdraw a guilty pleafor

an abuse of discretion. State v. Forest, 125 Wn. App. 702, 706, 105 P. 3d 1045 ( 2005). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). A defendant is permitted to withdraw a guilty plea under CrR 4.2(f) " whenever it appears thatthe withdrawal is necessary to correct a
manifest injustice." CrR 7.8 governs postjudgment motions to withdraw a guilty plea and provides in relevant part:

b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 

### On motion and upon such terms as arejust,the court may 

### relieve a party from a final judgment, order, or proceeding for the following reasons:4) The judgment is void; or 

### 5) Any other reasonjustifying relieffrom the operation ofthejudgment. A defendant seeking to withdraw his or her guilty plea in a postjudgment must meetthe requirements for a plea withdrawal under both CrR 4.2(f)and CrR 7. 8. State v. Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012). In other words, to succeed on a postjudgment motion to 

### withdraw a guilty plea,the defendant must demonstrate both (1) thatwithdrawal ofthe plea is 

### necessary to correct a manifest injustice, and (2) that relieffrom the finaljudgment isjustified by one of the reasons enumerated in CrR 7. 8( b). I. MANIFEST INJUSTICE 

### A manifest injustice allowing a defendant to withdraw a guilty plea is " an injustice that is obvious, 

### directly observable, overt, [ and] not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521 P. 2d 699 ( 1974) ( citing WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY ( 1966)). A defendant carries a heavy burden in demonstrating a manifest injustice permitting the withdrawalNo. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 - 5 -1I 

### ofa guilty plea,which "burden isjustified bythe greater safeguards protecting a defendant atthe time [the defendant] enters [ his or] her guilty plea." State v. Wilson, 162 Wn. App. 409, 414, 253 P. 3d 1143 ( 2011). One ofthe ways in which a defendant may meet the burden of 

### demonstrating a manifest injustice is by showing thatthe pleawas notvoluntary. State v. Wakefield, 130 Wn.2d 464, 472, 925 P. 2d 183 ( 1996). A guilty plea is not voluntary ifthe 

### defendant was misinformed about the direct sentencing consequences ofpleading guilty. State v. A.N. J.,168 Wn.2d 91, 113 -14, 225 P. 3d 956 (2010). 

### Chambers asserts that he metthe requirement ofshowing a manifest injustice because ( 1) 

### his guilty plea convictions for first degree unlawful possession ofafirearm required him to serve 

### nearly doublethe amount oftime in custodythan he would have received had he been properly charged and sentenced," and (2) he was misinformed about the direct sentencing consequences
of his guilty pleas. Br. of Appellant at 10. On both points we disagree.

First, the record belies Chambers' s assertion that his first degree unlawful possession of a firearm convictions required him to serve more time in confinement than if he had been properly charged and sentenced for second degree unlawful possession of a firearm. Although Chambers is correct that the trial court sentenced him to 116 months for each ofhis first degree 

### unlawful possession ofafirearm convictions and thatthe statutory maximum sentence for second degree unlawful possession of a firearm was 60 months, Chambers was ordered to serve his 116 month sentences for first degree unlawful possession ofa firearm concurrent with each other and concurrent with his 149 month sentence for unlawful possession of a controlled substance with intent to deliver conviction and his 144 month sentence for unlawful manufacturing of a controlled substance. Former RCW 9.41. 040(2)( b) ( 1997); former RCW
5No. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 - 5 - II 9A.20. 021( 1)( c) ( 1982). 

### Accordingly, in light ofChambers' s concurrent sentences for his February crimes, the trial court's imposition of 116 month sentences for each ofChambers' s first degree unlawful possession of a firearm convictions did not require him to serve any more time in confinement than ifthe trial court had sentenced him to the statutory maximum of60 months 

### for second degree unlawful possession ofa firearm.2 Second, we disagree with Chambers' s assertion that he was misinformed about the direct 

### sentencing consequences ofhis guilty pleas. Chambers' s statement on plea of guilty clearly 

### shows that he was aware that the statutory maximum penalty for first degree unlawful possession ofa firearm,the crimes to which he had pleaded guilty, was ten years ofconfinement. Former RCW 9.41. 040(2)( a); former RCW 9A.20.021( 1)( b). Properly construed, Chambers' s challenge 

### to the voluntariness ofhis guilty pleas to first degree unlawful possession ofa firearm was not that he had been misadvised about the sentencing consequences ofthose crimes but, rather,that 

### those charges lacked a factual basis with which to support his guilty pleas. But Chambers did 

### not move to withdraw his guilty plea on this ground, and he does not argue it on appeal. Because 

### Chambers' s guilty pleaconvictions forfirst degree unlawful possession ofafirearm did not require him to serve any more time than ifhe had been convicted ofsecond degree unlawful possession ofafirearm, and because he was properly informed ofthe direct sentencing 

### consequences ofpleading guiltyto first degree unlawful possession ofa firearm,the trial court

2 Chambers does not contend, and the record does not appear to support, that his offender score would have differed had he been charged and sentenced for second degree unlawful possession of a firearm. Former RCW 9. 94A.360 ( 1998). 6No. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 - 5 -I1 did not abuse its discretion by concluding that he failed to show a manifest injustice warranting the withdrawal ofhis guilty pleas. II. UNJUST REMEDY 

### Even assuming that Chambers had met his burden ofdemonstrating a manifest injustice with regard to his first degree unlawful possession of a firearm convictions and sentences, the 

### trial court nonetheless did not abuse its discretion by denying his motion to withdraw his guilty pleas to all the charges in his indivisible plea agreement because withdrawal of Chamber' s guilty pleas under these circumstances would be unjust to the State.

When a defendant demonstrates a manifest injustice with respect to some ofthe charges 

### included in an indivisible plea agreement, the defendant has the initial choice ofremedy between withdrawal ofthe entire plea agreement and specific performance. State v. Turley, 149 Wn.2d 395, 400 -

401, 69 P. 3d 338 ( 2003); but see State v. Barber, 170 Wn.2d 854, 873 -74, 248 P. 3d 494 2011) ( 

### excluding remedy ofspecific performance where the parties agreed to an illegal sentence based upon a mutual mistake). 

### However,atrial court is not bound bythe defendant's choice of remedy. Turley, 149 Wn.2d at 401. Rather, "[ o] nce the defendant has opted for one of the 

### available remedies, the State `bears the burden ofdemonstrating that the defendant' s choice of remedy is unjust. ' 

### Turley, 149 Wn.2d at 401 ( quoting State v. Miller, 110 Wn.2d 528, 536, 756 P. 2d 122 ( 1988), overruled on other grounds 

### by Barber, 170 Wn.2d 854). This burden requires 

### the State to showthat "compelling reasons exist not to allowthe defendant' s choice" ofremedy. Turley, 149 Wn.2d at 401. 

### And the State may base this showing on any or all ofthe charges included in the indivisible plea agreement. Turley, 149 Wn.2d at 401. " The trial court then

7No. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 -5 -II 

### determines whetherthose reasons are compelling and [whether] the defendant' s choice of
withdrawal or specific performance is unjust." Turley, 149 Wn.2d at 401. Here, the State presented compelling reasons why withdrawal of Chambers' s guilty pleas would be unjust. First,the State asserted that withdrawal ofthe indivisible plea agreement 

### would be unjust because the evidence that could be used to prosecute Chambers for his February crimes had been destroyed. Under Miller, this reason alone was sufficient for the trial court to deny Chambers' s motion to withdraw his guilty pleas. 110 Wn.2d at 535 ( " plea withdrawal may 

### be unfair ifthe prosecutor has detrimentally relied on the bargain and has lost essential witnesses

or evidence ") (citing United States v.Jerry, 487 F.2d 600 ( 3d Cir. 1973); Farnsworth v. Sanford, 115 F.2d 375 ( 5th Cir. 1940)). 

### Additionally,the State asserted that withdrawal ofChambers' s 

### guilty pleas would be unjust because the State had relied on the agreement in deciding notto prosecute him for murder in regard to his November crimes and it would be difficult to now 

### prosecute him for an alleged murderthattook place in 1999. This is also a compelling reason to 

### deny Chambers' s motion to withdraw his guilty pleas. Because the State presented compelling reasons whywithdrawal ofChambers' s guilty pleas would be unjust,the trial court did not abuse its discretion by denying Chambers' s motion to withdraw his guilty pleas. III. SAG 

### In his SAG, Chambers argues thatthe trial court erred by denying his motion to withdraw 

### his guilty pleas because our prior decision in Chambers, 163 Wn.App. 54, and our Supreme Court' s affirmance ofthat decision in Chambers, 176 Wn.2d 573, required the trial court to grant 

### his withdrawal motion. But Chambers misreads our holding in that case. We did not direct the trial court to grant his motion to withdraw his pleas as he asserts in his SAG. Rather, we
8No. 45392 - 4 -II Cons. wi Nos. 45399 -1 - II; 45402 - 5 -II 

### reversed the trial court's order granting Chambers' s motion to withdraw his guilty pleas to his February crimes and remanded for further proceedings, stating that on remand "Chambers may seekto withdraw his indivisible guilty plea" agreement with respect to all ofhis charges. Chambers, 163 Wn.App. at 62 ( emphasis added). Similarly, in affirming our decision, our Supreme Court did not direct the trial court to grant Chamber' s withdrawal motion. 

### Accordingly, this argument lacks merit. We affirm the trial court's order denying Chambers' s motion to withdraw his guiltypleas. 

### Amajority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
hanson, C.J. -

Melnick, J.

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# femoreixid, Worswick, J.