IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DAVID EDGAR WEIMER,

Appellant.

)

)

)

)

)

)

)

)

)

No. 37828-4-III

UNPUBLISHED OPINION

PENNELL, J. — David Weimer entered a guilty plea pursuant to a favorable plea

agreement that substantially reduced his projected sentencing range. After sentencing, 

Mr. Weimer discovered that, given the nature of his conviction, his maximum potential 

for early release was lower than he had understood. Mr. Weimer subsequently filed a 

motion for relief from judgment under CrR 7.8(b), arguing his plea was predicated on 

a material mistake of law. As a remedy, Mr. Weimer did not seek to withdraw his plea. 

He instead argued his sentence should be modified downward to account for the lost 

possibility of earned release time.

We agree with the trial court that Mr. Weimer has not asserted a viable claim for 

relief under CrR 7.8(b). Mistakes and remedies go hand-in-hand. When a mistake pertains 

to a guilty plea, the remedy must be specific to the plea. Typically this means withdrawal 

of the plea, though sometimes the defendant may be eligible for specific performance of a 

FILED

MARCH 24, 2022

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 37828-4-III

State v. Weimer

2

plea agreement. A mistake in a plea does not entitle a defendant to revisit an otherwise 

lawful sentence. Because Mr. Weimer has expressly declined the opportunity to revisit his 

plea, he is not entitled to relief under CrR 7.8(b).

FACTS

In 2019, the State charged David Weimer with one count of attempted first degree 

murder and one count of first degree arson after he tried to burn down the home of his 

former fiancé while she was inside sleeping. Following plea negotiations, Mr. Weimer 

pleaded guilty to the lesser charge of one count of attempted first degree assault, one 

count of first degree arson, and one count of harassment. The plea agreement specified 

the prosecutor would recommend a high-end sentence of 120 months. The trial court 

accepted the plea and subsequently sentenced Mr. Weimer to 120 months’ incarceration.1

Approximately six months after sentencing, defense counsel realized Mr. Weimer

was eligible for only one-tenth earned early release, not one-third as had been counsel’s 

previous understanding. Defense counsel shared this information with Mr. Weimer and 

he subsequently moved in the trial court under CrR 7.8(b)(1) to modify his sentence to 

100 months. Mr. Weimer argued the parties had committed a mutual mistake regarding 

 

1 At the time of sentencing, the parties jointly recommended a sentence of 

120 months.
No. 37828-4-III

State v. Weimer

3

his eligibility for early release and he had been misinformed of the sentencing 

consequences of his plea. The court denied his motion, finding earned early release had 

not been part of the plea negotiations and that the only potential remedy would be a 

motion to withdraw his guilty plea. The court entered findings of fact and conclusions of 

law reflecting its oral ruling.

Mr. Weimer timely appeals.

ANALYSIS

CrR 7.8(b)(1) provides superior courts with authority to relieve a party from final 

judgment based on “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in 

obtaining a judgment or order.” We review trial court’s CrR 7.8(b) decision for abuse of 

discretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996). Mr. Weimer 

argues the trial court abused its discretion by committing a series of legal and factual 

errors. But the core question is whether Mr. Weimer has presented a plausible basis under 

CrR 7.8(b)(1) for relief from judgment. The answer is no.

Assessing whether a final judgment has been influenced by some sort of mistake

requires discerning the type of mistake alleged. This is because the nature of the mistake 

dictates the scope of possible remedies. If the mistake was made by the defendant in 

entering a plea, the remedy is plea withdrawal. CrR 4.2(f), CrR 7.8(b)(1). If both 
No. 37828-4-III

State v. Weimer

4

parties have made a mistake in entering a plea agreement, the remedies are either plea 

withdrawal or specific performance, so long as specific performance would not be 

prohibited by law. State v. Barber, 170 Wn.2d 854, 873, 248 P.3d 494 (2011).2If a 

mistake occurs at sentencing, the remedy is a new sentencing hearing. See, e.g., State v. 

Smith, 159 Wn. App. 694, 701, 247 P.3d 775 (2011).3

The mistake alleged by Mr. Weimer pertained to his plea.4 As a result, his potential 

remedies are limited. Mr. Weimer has explicitly rejected the possibility of withdrawing 

his plea. He also does not claim a right to specific performance. Indeed, specific 

performance is not a potentially available remedy in this case, given neither the court 

 

2 Barber stated that the only “possible” remedies that have been recognized for 

an involuntary plea are “withdrawal of the plea or specific performance of the plea 

agreement.” 170 Wn.2d at 855. Barber went on to hold that the remedy of specific 

performance is limited “to the situation in which the State breaches its promise to make 

a specific charging decision or recommendation to the sentencing court.” Id. at 874. 

After Barber it is clear that specific performance is not warranted where the parties to a 

plea agreement have made a mutual mistake that would result in an illegal sentence. Id. 

But it is unclear after Barber whether specific performance could be an available remedy 

for mutual mistake in a plea agreement if the mistake would not render the defendant’s 

sentence illegal. For purposes of this opinion, we assume Berber left this possibility open.

3 Mr. Weimer has pointed to no prior cases indicating that a mistaken plea will 

justify resentencing or modification of sentence. When a party cites no authority in 

support of a proposition, we may assume none exists. DeHeer v. Seattle PostIntelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).

4 We note that convicted persons are not entitled to rely on a certain percentage of 

early release time. RCW 9.94A.7281; In re Pers. Restraint of Pullman, 167 Wn.2d 205, 

214, 218 P.3d 913 (2009).
No. 37828-4-III

State v. Weimer

5

nor the parties are empowered to modify the statutory standards for early release time. 

See RCW 9.94A.729; see also Barber, 170 Wn.2d at 873. Without a request for plea 

withdrawal or the potential for specific performance, Mr. Weimer has not identified an 

available remedy for his complaints about his plea.

This is not a case where a mistake occurred at sentencing. There is no indication 

the trial court’s sentencing decision was influenced by Mr. Weimer’s eligibility for

earned release time. This case is unlike Smith where assumptions about the availability 

of a partial confinement program impacted the trial court’s sentencing decision. Smith, 

159 Wn. App. at 701. Eligibility for early release may have been important to Mr. 

Weimer in negotiating his plea, but there is no indication the trial court shared this 

concern. Nor is there any indication the trial court chose Mr. Weimer’s 120-month 

sentence based on the assumption he would be eligible for up to a one-third early release 

reduction.

5

 Finally, there is no indication that the State knew that Mr. Weimer based his 

plea on this assumption. 

 

5 Given the lack of any statutory guarantees regarding earned release time, 

speculation about a defendant’s potential for early release is generally an inadvisable 

basis for a trial court’s sentencing decision and may be improper. See State v. Wakefield, 

130 Wn.2d 464, 478, 925 P.2d 183 (1996) (“‘The framework of the SRA [Sentencing 

Reform Act of 1981], [chapter 9.94 RCW] indicates that earned early release time is to be 

considered only after the offender has begun serving his sentence.’”) (quoting State v. 

Fisher, 108 Wn.2d 419, 429 n.6, 739 P.2d 683 (1987) (some alteration in original).
No. 37828-4-III

State v. Weimer

6

Even if Mr. Weimer had shown a mistake at sentencing, his remedy would 

be resentencing, not modification of the sentence to a specific term of incarceration. 

At resentencing, Mr. Weimer’s range would have remained 80 to 120 months. Nothing 

would have required the trial court to sentence Mr. Weimer to 100 months.

Mr. Weimer has a potential remedy for his claim that his guilty plea was based on 

a mistake of law—withdrawal of the plea. However, withdrawal of the plea would relieve 

the State of its obligations under the plea agreement and enable it to reinstate the original 

charge of attempted first degree murder. See In re Pers. Restraint of Swagerty, 186 Wn.2d 

801, 811, 383 P.3d 454 (2016); State v. Oestreich, 83 Wn. App. 648, 651, 922 P.2d 1369 

(1996). Had Mr. Weimer been convicted of attempted first degree murder, it appears his 

sentencing range would have more than doubled.

6 Mr. Weimer likely does not want to 

take the risk of facing this sentencing range. But this is the type of hard decision that 

must be made when a defendant seeks to remedy an invalid plea. Our case law 

recognizes no more than two available remedies for an invalid plea, withdrawal and 

specific performance. Barber, 170 Wn.2d at 855. There is no additional option that would 

allow Mr. Weimer to effectively amend his plea agreement’s sentencing recommendation 

 

6 The State represents that had Mr. Weimer been convicted as originally charged, 

his sentencing range would be “203.25 months to 270.75 months.” Br. of Resp’t at 28.
No. 37828-4-III

State v. Weimer

7

and tie the courts hands in order to meet his subjective expectations of the consequences 

of his plea.

The trial court appropriately recognized the only remedy available to Mr. Weimer 

was to withdraw his plea. Because Mr. Weimer insisted he did not want to withdraw 

his plea, the court appropriately exercised its discretion under CrR 7.8(b) to deny Mr. 

Weimer’s motion.

CONCLUSION

The order denying Mr. Weimer’s motion to modify his sentence is affirmed.

A majority of the 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.

_________________________________

Pennell, J.

WE CONCUR:

______________________________

Siddoway, C.J.

______________________________

Fearing, J.