FILED
NOVEMBER 24, 2015
In the Office orthe Clerk or Court
W A State Court or Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32357-9-111
Respondent, )
)
v. )
)
JOSE FIDEL MANDUJANO, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, C.1. - Jose Fidel Mandujano appeals an amended judgment and
sentence entered five months after he was initially sentenced for convictions of first
degree rape of a child and first degree child molestation. According to the State, the
amended judgment and sentence corrected what had appeared in the original judgment
and sentence to be an illegal determinate sentence by imposing a legal, indeterminate
sentence. Mr. Mandujano likens his case to In re Pers. Restraint ofMurillo, 134 Wn.
App. 521, 142 P 3d 615 (2006), in which a determinate sentence was also modified to be
indeterminate and this court held that mistakes in information provided to the defendant
when he entered his guilty plea required that the superior court allow him to withdraw his
plea.
No. 32357-9-III
State v. Mandujano
The combination of mistakes made in the statement of defendant on plea of guilty
and the overall lack of clarity as to the sentence faced by Mr. Mandujano warrants
allowing him to withdraw his guilty plea. We remand the case with instructions to the
court to allow Mr. Mandujano to withdraw it.
FACTS AND PROCEDURAL BACKGROUND
On September 17,2013, Jose Fidel Mandujano entered an Alford l plea to one
count of first degree rape of a child and one count of first degree child molestation.
Assisted by a court certified interpreter, Mr. Mandujano informed the court that he
entered into the plea voluntarily, and with full understanding of the statement of
defendant on plea of guilty to sex offense presented to the court. The plea statement
included the following information and table (a column in the table dealing with
enhancements has been eliminated due to space limitations and italicized text in the
original has been eliminated so that handwritten entries can be, and are, indicated by
italics):
Each crime with which I am charged carries a maximum sentence, a fine, and a
Standard Sentence Range as follows:
COUNT OFFENDER STANDARD RANGE COMMUNITY MAXIMUM
NO. SCORE ACTUAL CONFINEMENT CUSTODY TERM AND
J·M (not including enhancements) FINE
1 J. 4 120 160 months 36 months Life /
129-171 $50,000
I North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970).
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No. 32357-9-III
State v. Mandujano
2 J 4 69 89 months 36 months Life /
72-96 $50,000
Clerk's Papers (CP) at 56.
The section of the plea statement addressing what the prosecutor would
recommend to the judge was completed as follows (handwritten portions are again
indicated by italics):
Recommend a sentence of 129 months on Count 1 and 96 [months Jon
Count 2, to be run concurrent. Client to pay all standard court costs and
fees, a crime victim assessment, and restitution if any. Post conviction
sexual assault protection order and 36 months community custody on each
count.
CP at 59.
Preprinted sections of the plea statement included one that explained that for
certain sex offenses committed on or after September 1, 2001, the judge
will impose a maximum term of confinement either ... within the standard
range for the offense or outside the standard range if an exceptional
sentence is appropriate. The minimum term of confinement that it is
imposed may be increased by the Indeterminate Sentence Review Board if
the Board determines by a preponderance of the evidence that it is more
likely than not that I will commit sex offenses ifreleased from custody.
CP at 57. This was one section in a 10-page single spaced document in which only about
two pages worth of text had been stricken as irrelevant.
As completed and signed, the plea statement indicates that Mr. Mandujano did not
personally read it, but that his lawyer or an interpreter (or perhaps both) read it to him.
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No. 32357·9·III
State v. Mandujano
The plea statement was signed by a Spanish language interpreter, who represented that he
or she had "interpreted this document for the defendant from English into that language."
CP at 63.
The court that accepted Mr. Mandujano's guilty plea engaged in a colloquy with
him. After identifYing the charges to which Mr. Mandujano was pleading guilty as "rape
of a child in the first degree and child molestation in the first degree" the court asked, and
Mr. Mandujano answered:
THE COURT: Do you understand the first ever [sic] those carries a
standard range of 129 months to 171 months with a maximum term and
fine of life and $50,000 and the second has a standard range of 72 to 96
months with a maximum term and fine of life and $50,000. Do you
understand that?
DEFENDANT THROUGH INTERPRETER: Yes.
Report of Proceedings (RP) (Sept. 17,2013) at 4. There was no mention during the
colloquy of indeterminate sentencing or the indeterminate sentencing review board.
There was no mention of community custody.
At the sentencing hearing six weeks later, the State recommended that Mr.
Mandujano be sentenced to 129 months to life for count I and 96 months to life for count
II. Defense counsel asked the court to "go along with the recommendation." RP
(Oct. 29, 2013) at 3. After recounting Mr. Mandujano's criminal history and stating that
it would dismiss counts III and IV, the court said:
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No. 32357-9-111
State v. Mandujano
Restitution to health care authority of$949.55. Victim assessment $500.00.
Court costs $282.22. Fine of$500.00. DNA [deoxyribonucleic acid]
$100.00. DNA testing pursuant to paragraph 4.2. 129 months on Count I.
96 months on Count II, with a maximum of life.
ld.
Relevant portions of a table at section 2.3 of the judgment and sentence,
"Sentencing Data," was completed as follows (columns for the seriousness level and
enhancements have been eliminated due to space limitations):
COUNT OFFENDER STANDARD Total MAXIMUM
NO. SCORE RANGE (not STANDARD TERM
including RANGE
enhancements) (including
enhancements)
1 4 129 to 171 129 to 171 Life /
months months $50,000.00
II 4 72 to 96 72 to 96 Life /
months months $50,000.00
CP at 21.
Section 4.5 ofthe judgment and sentence was completed as follows, with
handwritten entries indicated by italics:
4.5 CONFINEMENT OVER ONE YEAR. The defendant is sentenced
as follows:
(a) CONFINEMENT. RCW 9.94A.589. Defendant is sentenced to the
following term of total confinement in the custody of the Department of
Corrections:
---'=_ months on Count I 96 months on Count II
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No. 32357-9-III
State v. Mandujano
CP at 26.
And section 4.6 was completed as follows:
4.6 [X] COMMUNITY CUSTODY.
A. The defendant shall be on community custody for the longer of:
(1) the period of early release. RCW 9.94A.728(1)(2); or
(2) the period imposed by the court as follows:
Count I for 36 months
Count II for 36 months;
(3) Sex offenses ONLY: For counts I and II, sentenced under
RCW 9.94A.507, for any period of time the defendant is released from total
confinement before the expiration of the statutory maximum.
ld.
Five months after sentencing, on February 25,2014, the parties appeared before
the sentencing judge again, for the State's presentment of an amended judgment and
sentence that it explained was being offered because the Department of Corrections had a
"problem with [Mr. Mandujano's] judgment and sentence" since the words "to life" had
not been included in the term of confinement completed by the court. RP (Feb. 25, 2014)
at 3-4. The State's proposed amended judgment and sentence modified the relevant
portions of sections 2.3, 4.5 and 4.6 as follows. Changes are underlined. Once again,
italics indicate handwriting.
Section 2.3 now read:
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No. 32357-9-II1
State v. Mandujano
COUNT OFFENDER STANDARD Total MAXIMUM
NO. SCORE RANGE (not STANDARD TERM
including RANGE
enhancements) (including
enhancements)
I 4 129 to 171 129 to 171 Life /
months to months to $50,000.00
Life Life
II 4 72 to 96 72 to 96 Life /
months to months to $50,000.00
Life Life
CP at 6.
Section 4.5 of the judgment and sentence now read:
4.5 CONFINEMENT OVER ONE YEAR. The defendant is sentenced
as follows:
(a) CONFINEMENT. RCW 9.94A.589. Defendant is sentenced to the
following term of total confinement in the custody of the Department of
Corrections:
129 months on Count I - to life months on Count II to life
CP at 11.
And section 4.6 now read:
4.6 [X] COMMUNITY CUSTODY.
A. The defendant shall be on community custody for the longer of:
(1) the period of early release. RCW 9.94A.728(1)(2); or
(2) the period imposed by the court as follows:
Count I for Life
Count II for Life;
(3) Sex offenses ONLY: For counts I and II, sentenced under
RCW 9.94A.507, for any period of time the defendant is released from total
confinement before the expiration of the statutory maximum.
7
No. 32357-9-III
State v. Mandujano
Id.
Defense counsel objected to amendment, arguing that no transcript of the
sentencing had been provided and the State had not demonstrated that any error had been
made in completing the judgment and sentence:
[DEFENSE COUNSEL]: Well, Your Honor, before we get carried
away, ... I think we have to determine whether or not there is even a basis
to file an amended judgment and sentence.
This isn't a situation where it's a scrivener's error, but instead the
original judgment and sentence reflected what the court stated at the time
sentence was imposed. So does the court have authority to amend the
judgment and sentence when in fact the State did not object to it at the time
and did not file a notice of appeal concerning the original judgment and
sentence[?]
RP (Feb. 25,2014) at 3. The prosecutor represented to the court that the sentence as
announced by the court had been "129 months to life on Count 1" and "96 months to life
on Count 2" and the only error was in the judgment and sentence. Id. at 4. Defense
counsel responded that "unless there is proof that they said that in court, there is no basis
to amend the judgment and sentence." Id.
The court rejected the defense objections and signed the amended judgment and
sentence. Mr. Mandujano appeals.
8
No. 32357-9-111
State v. Mandujano
ANALYSIS
Mr. Mandujano argues that his guilty plea was not entered knowingly,
intelligently, or voluntarily because he was misinformed about the consequences of his
plea. The issue is raised on direct appeal of the amended judgment, so the only evidence
that he was misinformed is the record of the plea hearing itself.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and
intelligent." In re Pers. Restraint a/Isadore, 151 Wn.2d 294, 297,88 P.3d 390 (2004)
(citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709,23 L. Ed. 2d 274 (1969)).
"A guilty plea is not knowingly made when it is based on misinformation of sentencing
consequences." Id. at 298. "A defendant need not be informed of all possible
consequences of his plea, but he must be informed of all direct consequences." Id.
Mr. Mandujano committed the crimes at issue between June 1, 2007, and
March 30, 2008. Under former RCW 9.94A.712(3) (2006),2 the court was required to
sentence him to the statutory maximum-life imprisonment-and to set a minimum term
within the standard sentence range, unless he qualified for an exceptional sentence.
Murillo, 134 Wn. App. at 524; RCW 9A.20.021(1)(a) (maximum sentence for class A
felonies). The term ultimately served is then subject to determination by the
indeterminate sentencing review board of the state department of corrections. Chapter
2 Recodified as RCW 9.94A.507 by LAWS OF 2008, ch. 231, § 56, effective
August 1, 2009.
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No. 32357-9-III
State v. Mandujano
9.95 RCW. The court was further required to sentence Mr. Mandujano to lifetime
community custody under the supervision of the department following his release from
total confinement. Former RCW 9.94A.712(5).
In In re Personal Restraint ofMurillo, l34 Wn. App. 521, 142 P.3d 615 (2006),
this court held that the maximum sentence of life imprisonment and lifetime community
custody following release from total confinement are both direct consequences of a
defendant's plea to a crime subject to former RCW 9.94A.712. As here, the department
of corrections saw on receiving custody of Mr. Murillo that his judgment and sentence
did not retlect his maximum sentence of life or lifetime community custody. As here, it
required that the judgment and sentence be corrected. After the sentencing court
amended the judgment and sentence as requested, Mr. Murillo filed a personal restraint
petition in which he argued that he had been misled to enter a plea that, as a result, was
not knowing and voluntary.
Mr. Murillo's plea statement was similar to Mr. Mandujano's plea statement,
which indicated that the outside "standard range of actual confinement" was the high end
of the standard range, when it is actually life imprisonment for a sex offender subject to
indeterminate sentencing. Compare l34 Wn. App. at 525 with CP 56. Like Mr.
Mandujano's plea statement, Mr. Murillo's plea statement included preprinted language
describing indeterminate sentencing for the sex offenses to which he had pleaded gUilty.
10
No. 32357-9-II1
State v. Mandujano
l34 Wn. App. at 525. Nonetheless, because Mr. Murillo's plea was accepted without
mention by the court that it must impose a maximum sentence, that the sentence within
the standard range would represent only a minimum term, or that he was subject to a life
term of community custody, this court held that Mr. Murillo must be allowed to withdraw
his plea. 3
The State argues that Murillo is distinguishable because the court at Mr.
Mandujano's change of plea hearing was clearer about the maximum term to which he
would be sentenced; that Mr. Murillo's claim, arising in a personal restraint petition, was
better supported by his testimony that he was misled; and that there was evidence that
Mr. Murillo's defense attorney misled him. Br. of Resp't at 8-10. Its efforts to
distinguish Murillo are not persuasive .
. Before the change of plea hearing, Mr. Mandujano had reviewed the 10-page plea
statement. The portions of the statement that had been completed with sentence range
information specific to him were wrong. The standard range of actual confinement
indicated that the outside of the range was the high end of the standard range rather than
life. CP at 56 (§ 6(a)). It was this same error in his initial judgment and sentence that the
3This court also held that Mr. Murillo could request specific performance of the
illegal determinate sentence depending on the results of an evidentiary hearing following
remand based on State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). Murillo, 134
Wn. App. at 533. Miller has since been overruled on that point. State v. Barber, 170
Wn.2d 854, 248 P 3d 494 (2011). Mr. Mandujano seeks only to withdraw his plea.
11
No. 32357-9-111
State v. Mandujano
department of corrections required to be corrected. 4 The disclosure of the community
custody he faced stated "36 months." Id. at 59 (§ 6(g)). The disclosure of the sentence
that would be recommended by the prosecutor said "Recommend a sentence of 129
months on Count 1 and 96 months on Count 2, to be run concurrent," with no indication
these were minimums and no mention of a lifetime maximum. Id. Given these problems
with the plea statement, the fact that Mr. Mandujano confirmed that he had reviewed it
does not help the State. The preprinted portions of the 10-page document provided
conflicting (and correct) information about indeterminate sentencing-it cannot
overcome the case-specific mistakes in this case any more than they did in Murillo.
The court's single statement to Mr. Mandujano about the sentence he faced is also
not clear enough to overcome the misleading information in the plea statement. To
repeat, the court stated:
Do you understand the first ever [sic] those carries a standard range of 129
months to 171 months with a maximum term and fine of life and $50,000
and the second has a standard range of 72 to 96 months with a maximum
term and fine of life and $50,000. Do you understand that?
RP (Sept. 17,2013) at 4. Mr. Mandujano's criminal history included in his judgment and
sentence indicates that his only prior conviction had been for distribution of
methamphetamine, a crime for which there is also a standard range and a maximum term,
Following correction, the first amended judgment and sentence identifies the
4
"STANDARD RANGE (not including enhancements)" as "129-171 months to Life" and
"72-96 months to Life." CP at 6.
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No. 32357-9-III
State v. Mandujano
but for which he would have received a determinate sentence. Given Mr. Mandujano's
lack of experience with indeterminate sentencing, the court's reference to a "maximum
term ... of life" could have been understood to refer to the statutory maximum, not a
mandatory maximum that would be imposed on Mr. Mandujano.
The absence of testimony from Mr. Mandujano as to what he was told by his
lawyer and subjectively believed about the sentence he faced does not detract from his
challenge. In In re Personal Restraint ofIsadore, 151 Wn.2d 294, 300, 88 P.3d 309
(2004), the Washington Supreme Court adhered to a historical analytical framework
under which it determines whether a guilty plea is voluntary in the constitutional sense by
examining whether a defendant was informed of all direct consequences of his plea. It
explicitly rejected an analysis that requires an appellate court to inquire into the
materiality of those direct consequences in a defendant's subjective decision to plead
gUilty. Id. at 302.
A reviewing court cannot determine with certainty how a defendant arrived
at his personal decision to plead guilty, nor discern what weight a defendant
gave to each factor relating to the decision. If the test is limited to an
assertion of materiality by the defendant, it is of no consequence as any
defendant could make that after-the-fact claim.
Id We can decide the issue of constitutional voluntariness without testimony from Mr.
Mandujano.
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No. 32357-9-II1
State v. Mandujano
Finally, the testimony of defense counsel does not appear to have been given
weight in the balance in Murillo, since Mr. Murillo's lawyer testified inconsistently.
While he initially provided a declaration stating that he had failed to explain the lifetime
maximum sentence to his client, he later corrected himself, explaining that after
reviewing transcripts and refreshing his recollection, he had'" informed Mr. Murillo that
the plea would result in an indeterminate sentence with life being the top end.'" 134 Wn.
App. at 529. In this case, Mr. Mandujano's trial lawyer did not provide testimony as to
what he told his client but he did appear when the amended judgment was presented and
protested, arguing that the initial sentence had been the agreed sentence. Evidence as to
defense counsel's advice is not a basis for distinguishing this case from Murillo.
We remand the case with instructions to the court to allow Mr. Mandujano to
withdraw his plea.
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.
~,~/. C-~
c:r/~aA
Siddoway, C.!. ~ J
WE CONCUR:
Fe:t.~ 1;J. Lawrence-Berrey, J.
14