Filed
Washington State
Court of Appeals
Division Two
November 19, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint Petition No. 52700-6-II
of:
DANIEL SCOTT MOODY, JR.,
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Personal restraint petitioner Daniel Moody seeks relief from his 2017 guilty
plea and sentence for two counts of child molestation in the second degree, commercial sex abuse
of a minor, and communication with a minor for improper purposes. In 2018, the State filed a
motion and order to correct the judgment and sentence.
Moody argues that, based on the change to his sentence, his plea was involuntary and he
was entitled to the option of withdrawing his plea, which was not given. Moody also argues that
his plea was invalid because his offender score was erroneously calculated.
We deny Moody’s petition.
FACTS
As a result of a sting operation, the State charged Moody with attempted rape of a child in
the first degree, commercial sex abuse of a minor, and communication with a minor for improper
purposes.
52700-6-II
The State then amended the information, and Moody entered guilty pleas pursuant to In re
Barr.1 He pled guilty to two counts of child molestation in the second degree (counts I, IV), crimes
Moody did not commit, in addition to commercial sex abuse of a minor (count II) and
communication with a minor for improper purposes (count III).
Moody had no prior criminal history but stipulated to the correctness of his offender score
of 9.
In Moody’s statement on his plea of guilty to the sex offenses, Moody wrote:
In May of 2017 I agreed to pay money in exchange for sex with two ficticious [sic]
children under the age of 12 in Pierce County, WA. In anticipation of this, I
communicated by text message with one of the ficticious [sic] children about my
intentions. I am pleading to counts I & IV pursuant to In re Barr. I drove to an
agreed location with intent to have sex with the ficticious [sic] children, where I
was arrested.
Pers. Restraint Pet. (PRP), Attach. (statement of defendant on plea of guilty to sex offense) at 9.
The court sentenced Moody to 108 months of confinement and 36 months of community
custody on each count. The court then entered an exceptional sentence which provided that the 36
months of community custody on counts I and II would run consecutive to each other.
Approximately one year later, the State filed a motion to correct the judgment and sentence.
The motion recognized that “the combined incarceration and community custody terms cannot
exceed the statutory maximum sentence for any count, so in [Moody’s] case the terms of
1
In re Pers. Restraint of Barr, 102 Wn.2d 265, 270, 684 P.2d 712 (1984) (allowing a defendant to
plead guilty to a charge that was not committed in order to avoid near certain conviction for a
greater offense). Here, in Moody’s statement on his plea of guilty to the sex offenses, the judge
wrote that Moody “orally stated/confirmed that he has reviewed all the evidence with his lawyer
and believes he would be convicted at trial, so he is pleading guilty to crimes he did not commit
to take advantage of the State’s offer.” Pers. Restraint Pet. (PRP), Attach. (statement of defendant
on plea of guilty to sex offense) at 9. Neither the report of proceedings from Moody’s sentencing
hearing nor his signed plea agreement is in the record.
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community custody are limited to 12 months on Counts I, II, and IV, and 0 months on Count III.”
Response to PRP, App. C at 3.
The court granted the motion and changed Moody’s sentence from 36 months of
community custody on each count to 12 months for counts I, II, and IV, and 0 months for count
III.2 The order stated that the first two counts ran consecutive to each other but counts I, III, and
IV ran concurrent with each other. The court also entered corrected findings of fact and
conclusions of law for an exceptional sentence.
Moody then filed this timely PRP.
In a declaration, Moody stated that he was not told of the change to his judgment and
sentence at the time the court changed it and was not asked whether he wished to withdraw his
guilty plea. He stated that if the State would have asked him, he would have withdrawn his guilty
plea. He also stated that the “concept of ‘same criminal conduct’ was not explained in [his] plea
agreement.” PRP, Attach. (emailed declaration of Daniel Moody) at 1.
In another declaration, Moody stated that if he “had been given notice and told that [he]
could withdraw [his] guilty plea due to the mutual mistake, [he] would have done so.” Reply in
Support of PRP, Attach. (declaration of Daniel Moody) at 1.
ANALYSIS3
I. RIGHT TO WITHDRAW PLEA AGREEMENT
Moody argues that when a plea agreement conflicts with the law, “the defendant must be
given an opportunity to withdraw the plea.” PRP at 5. Moody contends that because he was never
2
The amended judgment and sentence appears to have a scrivener’s error. It states that Moody’s
community custody is 12 months for counts I, II, and IV, and 0 months for count IV.
3
The State argues that the record is insufficient for us to review Moody’s PRP because he did not
supply the plea agreement he signed or the transcript from his sentencing hearing. We disagree.
3
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given the opportunity to withdraw his plea, we “should reverse and remand so that he can be given
the choice.” PRP at 6. In the event we require that he show prejudice, Moody argues that he has
made the necessary showing.
The State argues that under State v. Buckman, 190 Wn.2d 51, 409 P.3d 193 (2018), Moody
is not entitled to withdraw his guilty plea because he cannot show actual and substantial prejudice.
We agree with the State.
A defendant’s guilty plea is valid if it is knowing, voluntary, and intelligent. State v.
Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006); see also CrR 4.2(d). “A plea is knowing and
voluntary only when the person pleading guilty understands the plea’s consequences, including
possible sentencing consequences.” Buckman, 190 Wn.2d at 59. “[A] guilty plea may be deemed
involuntary when based on misinformation regarding a direct consequence of the plea, regardless
of whether the actual sentencing range is lower or higher than anticipated.” Mendoza, 157 Wn.2d
at 591. “Mandatory community placement is a direct consequence of a guilty plea because it
‘produces a definite, immediate and automatic effect on a defendant’s range of punishment.’”
State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003) (quoting State v. Ross, 129 Wn.2d 279,
284, 916 P.2d 405 (1996)); see also In re Pers. Restraint of Quinn, 154 Wn. App. 816, 840, 226
P.3d 208 (2010) (concluding that the correct length of a term of community custody is a direct
consequence of a guilty plea). The voluntariness of a defendant’s waiver of the right to jury trial
is a legal question, which we review de novo. State v. Curry, 191 Wn.2d 475, 506, 423 P.3d 179
(2018); Buckman, 190 Wn.2d at 57.
The parties disagree whether Moody must show prejudice. To support his argument that
he is entitled to withdraw his plea without showing prejudice, Moody relies on State v. Miller, 110
Wn.2d 528, 756 P.2d 122 (1988), overruled in part by State v. Barber, 170 Wn.2d 854, 248 P.3d
4
52700-6-II
494 (2011). In Miller, the prosecutor inadvertently misinformed the defendant that he could
potentially receive a sentence of less than 20 years. 110 Wn.2d at 529. The defendant then pled
guilty to murder in the first degree. Miller, 110 Wn.2d at 529. The plea agreement allowed the
defendant to argue for an exceptional sentence of less than 20 years at sentencing; the State would
recommend a term of 20 years but would not agree to the exceptional downward sentence. Miller,
110 Wn.2d at 529.
Three months after entering the plea, but before the court sentenced him, the defendant
learned that he could not receive a sentence of less than 20 years. Miller, 110 Wn.2d at 529; see
former RCW 9.94A.120(4) (1985). The defendant then moved to withdraw his guilty plea, which
the trial court denied. Miller, 110 Wn.2d at 529.
On appeal, all parties agreed that the defendant’s plea was involuntary because he did not
understand the sentencing consequences of pleading guilty. Miller, 110 Wn.2d at 531. Thus, the
court only had to determine the appropriate remedy between withdrawal of the guilty plea or
granting specific performance of the agreement.4 Miller, 110 Wn.2d at 531. Miller argued that
because “the plea agreement [he entered] was not legal . . . the only appropriate remedy for the
mutual mistake underlying the agreement [was] to allow him to withdraw his guilty plea.” Miller,
110 Wn.2d at 532. The court determined that the appropriate remedy was to allow withdrawal of
the guilty plea. Miller, 110 Wn.2d at 535.
The State relies on Buckman to argue that Moody must show prejudice. In Buckman, the
defendant pled guilty pursuant to a plea agreement. 190 Wn.2d at 55. However, prior to entering
the agreement, the State had erroneously informed Buckman that the maximum sentence for his
4
But see Barber, 170 Wn.2d at 870-74 (overruling the portion of Miller allowing defendants to
enforce unlawful plea agreements).
5
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crime was life in prison.5 Buckman, 190 Wn.2d at 55. Buckman then pled guilty in exchange for
a special sex offender sentencing alternative (SSOSA) recommendation from the State. Buckman,
190 Wn.2d at 55. He received a SSOSA disposition. Buckman, 190 Wn.2d at 56.
After serving his term of confinement, the defendant was released on lifetime community
custody. Buckman, 190 Wn.2d at 56. He then violated his community custody provisions, had his
SSOSA revoked, and received a 114-month sentence. Buckman, 190 Wn.2d at 56. At
resentencing, the defendant’s new attorney realized that Buckman should never have been subject
to potential lifetime confinement. Buckman, 190 Wn.2d at 56.
The defendant then filed a CrR 7.8 motion seeking to withdraw his plea. Buckman, 190
Wn.2d at 56 n.1. The State conceded that he had been improperly sentenced, but the trial court
disagreed. Buckman, 190 Wn.2d at 56. The defendant appealed.
The defendant argued that (1) his plea was involuntary and (2) the error prejudiced him
because he would not have pled guilty if he had been adequately informed of his potential
consequences. Buckman, 190 Wn.2d at 58. Because Buckman “was misinformed of his possible
sentencing consequences,” the court concluded that his plea was involuntary. Buckman, 190
Wn.2d at 60.
In analyzing prejudice, the court noted that “[a] motion to withdraw a plea after judgment
has been entered is a collateral attack . . . [which] require[s] the petitioner to show ‘actual and
substantial prejudice.’” Buckman, 190 Wn.2d at 60 (quoting In re Pers. Restraint of Stockwell,
179 Wn.2d 588, 598-99, 316 P.3d 1007 (2014)). Because Buckman did not show actual and
5
Because the defendant was a minor at the time of the crime, he was subject to a maximum
sentence of 114 months. RCW 9.94A.510, .515, .701(1)(a).
6
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substantial prejudice, the court denied his motion to withdraw his plea and remanded for
resentencing. Buckman, 190 Wn.2d at 71.
We conclude that Buckman controls. Buckman clarified that defendants who seek to
withdraw a guilty plea after sentencing must show actual and substantial prejudice. Here, Moody’s
PRP seeks to withdraw his guilty plea. He filed his PRP after he was sentenced. Thus, Moody
must show actual and substantial prejudice. Buckman, 190 Wn.2d at 60.
The actual and substantial prejudice inquiry is “an objective, rational person inquiry, rather
than a subjective analysis.” Buckman, 190 Wn.2d at 66. A defendant must show that “a rational
person in [the defendant’s] situation would more likely than not have rejected the plea and
proceeded to trial.” Buckman, 190 Wn.2d at 69. Therefore, “‘[a] bare allegation that a petitioner
would not have pleaded guilty if he had known all the consequences of the plea is not sufficient to
establish prejudice.’” Buckman, 190 Wn.2d at 67 (alteration in original) (quoting In re Pers.
Restraint of Riley, 122 Wn.2d 772, 782, 863 P.2d 554 (1993)).
Here, like in Buckman, Moody asserts that if he had been correctly informed of his
sentencing consequences he would not have pled guilty. In Buckman, the court concluded that the
defendant’s assertion, without more, was insufficient. 190 Wn.2d at 69-70. Therefore, we
similarly conclude that Moody’s assertion, without more, is insufficient for him to show actual
and substantial prejudice.6
II. SAME CRIMINAL CONDUCT
Moody argues that either his “plea is invalid or the agreement that [his] offender score
[was] 9 is invalid because it was not the product or [sic] a stipulation and is not supported by the
6
Moody also argues that a rational person would have rejected the plea because it was based on
In re Barr. This assertion, without more, is also insufficient for him to show actual and substantial
prejudice.
7
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facts.” PRP at 7. Therefore, Moody contends that either we should invalidate his plea or remand
for resentencing. We disagree.
A defendant can waive a challenge to a miscalculated offender score “where the alleged
error involves an agreement to facts, later disputed, or where the alleged error involves a matter of
trial court discretion.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).
In State v. Nitsch, 100 Wn. App. 512, 518-19, 997 P.2d 1000 (2000), the defendant argued
for the first time on appeal that the two crimes he was convicted of, burglary in the first degree
and assault in the first degree, constituted the same criminal conduct. However, in his presentence
memorandum, the defendant had agreed that his offender score had been properly calculated.
Nitsch, 100 Wn. App. at 521-22.
The court stated:
This is not an allegation of pure calculation error . . . . Nor is it a case of
mutual mistake regarding the calculation mathematics. Rather, it is a failure to
identify a factual dispute for the court’s resolution and a failure to request an
exercise of the court’s discretion.
Nitsch, 100 Wn. App. at 520 (footnote omitted).
The court also recognized that in the context of plea agreements, “it may not be to the
defendant’s advantage to raise the same criminal conduct issue” at sentencing. Nitsch, 100 Wn.
App. at 523. For example, “[t]he defendant may wish to make an argument for a mitigated
sentence which is factually inconsistent with the requirements of the same criminal conduct
statute.” Nitsch, 100 Wn. App. at 523. Therefore, the court concluded that the defendant had
waived his same criminal conduct argument. Nitsch, 100 Wn. App. at 521-22.
Here, like in Nitsch, Moody stipulated that his offender score of 9 was correct based on the
current offenses. He also filed a sentencing memorandum confirming the same. Additionally,
Moody’s In re Barr plea sought to take advantage of the plea agreement, which, because he pled
8
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to crimes for which there was no factual basis, was “factually inconsistent with the requirements
of the same criminal conduct statute.” Nitsch, 100 Wn. App. at 523. Therefore, we conclude that
Moody waived his argument.
We deny Moody’s petition.
A majority of the panel having determined that this 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.
Melnick, J.
We concur:
Maxa, C.J.
Lee, J.
9