ALEXANDER, SANDERS, and MADSEN, JJ., dissent in part by separate opinions.
Defendant Marilyn Wakefield pleaded guilty to first degree manslaughter after the trial court indicated during plea negotiations that it would sentence her within the standard sentencing range. At the sentencing phase of trial, the court nonetheless imposed the statutory maximum penalty instead of a standard range sentence. Wakefield contends, inter alia, that her plea was *Page 467 involuntary and that the only adequate remedy is to remand her case for resentencing within the standard range. The Court of Appeals rejected this argument, but nevertheless held that Wakefield could withdraw her plea since she may have been misled by the trial court. We affirm.
FACTS On June 29, 1992, 52-year-old Marilyn Wakefield was charged with second degree murder in the death of 40-year-old Robert Brockman. Wakefield had worked as Brockman's live-in caregiver since 1991. Brockman was paralyzed from the neck down as the result of a 1986 motorcycle accident and confined to a battery operated wheelchair. He wore a neck brace with a lever near his chin that allowed him to maneuver the wheelchair. Brockman could not turn the wheelchair on and off, and relied on someone else to do this for him.
In late May 1992, Brockman's brother became worried after calling him for several days but receiving no answer. At the behest of his father, he went to Brockman's apartment along with police on June 6, 1992. Upon arriving, they immediately noticed a blanket covering the bedroom window where Brockman spent most of his time. All of the windows and doors to Brockman's apartment were locked and his van was missing. Brockman was found dead in his bedroom, still sitting in his wheelchair. His head brace had been removed and placed in his lap. His wheelchair had been turned off. A pillow case was draped over his head, approximately to the bridge of his nose. Although Wakefield was missing, she had closed Brockman's bank account the previous day. The coroner conducted an autopsy and determined that Brockman probably asphyxiated.1 He estimated that Brockman died on June 1, 1992. *Page 468
Wakefield's sister contacted police regarding a letter she had received from Wakefield. The letter, dated June 3, 1992, begins with Wakefield confessing to the murder.
It's all ended in disaster. I did a terrible thing. I killed him — the man I worked for, Bob — 4 days ago. I did that to him. I'm turning myself in tomorrow. I know for sure now that I'm crazy, crazy, crazy.
Attach. to Br. of Appellant. The letter describes a fight between Brockman and Wakefield that lasted at least two days. During this fight, Wakefield denied Brockman all access to his family.
Wakefield was found in Canada, extradited to the United States, and charged with second degree murder. Western State psychiatric hospital found Wakefield paranoid and delusional but competent to stand trial.
The trial court also found her competent after pretrial hearings. During an oral ruling on this issue, the trial court indicated that Wakefield should follow the advice of her attorneys.
A great issue that looms before me this afternoon are certainly her failure to be receptive to a plea offer that would subject her to much less jeopardy than she would if she goes forward with the trial this afternoon. . . . One of the things Ms. Wakefield said to me just a few moments ago is she is not prepared to plead guilty to anything she did not do. . . . This is one decision that we can not make for our client, no matter what the cost, we simply can not make that decision and substitute our judgment for them.
. . .
I have no doubt in my mind, Ms. Wakefield, that your attorneys are absolutely as capable of guiding you along with this case as any attorneys in this jurisdiction. I can not force you to accept their advise [sic] I can simply urge that you should, but no one can force you to accept their advise [sic].
Report of Proceedings (Dec. 8, 1993) at 25-27 (emphasis added). *Page 469
Approximately a week later, defense counsel informed the trial court that Wakefield was leaning toward accepting the plea offer but was afraid of being sent to a mental institution. Defense counsel explained that Wakefield probably would plead guilty to first degree manslaughter if she received an assurance from the court that she would be sentenced to a correctional facility. The trial court ceded to defense requests. In addition to explaining to Wakefield that she would be sent to a correctional facility, the trial judge stated that she would sentence Wakefield within the standard sentencing range.
THE COURT: I can tell you this, that if the state is still interested in a plea negotiation, and I am not sure that they are at this point, but if they are interested in going along with the plea to a lesser charge, this court's sentence, this court and two other courts before me have deemed that you are competent to stand trial in this case. This court, if you were to plead guilty and you came back to this court for sentencing, or I think any other court, you would be treated as any other person who pleads guilty to that same charge is treated. You would receive a sentence that is commensurate with your offender score and the seriousness level of the charge that you have pled guilty to. I don't know the range for manslaughter 1 or 2 or whatever it is that the state has offered you, but you would be sentenced, in my opinion, in that standard range by any judge. You would certainly be sentenced within that standard range by this court, and you would be committed to the correctional center for women at Purdy.
Report of Proceedings (Dec. 8, 1993) at 4-5 (emphasis added).
Immediately following the trial court's comments regarding a standard range sentence, Wakefield spoke with her attorneys and accepted the plea arrangement. Both the State and the trial court then engaged in separate colloquies with Wakefield to ensure the voluntariness of her plea and to apprise her of the consequences of pleading guilty — including the possibility of a sentence outside the standard range. Wakefield stated for the record that *Page 470 she understood the effect of pleading guilty, including the potential for an exceptional sentence.
A sentencing hearing was held approximately a week after Wakefield pleaded guilty. With no criminal history and an offender score of zero, the standard sentencing range for Wakefield's first degree manslaughter conviction was 31 to 41 months' confinement. The maximum possible sentence outside the standard range was 10 years. During the sentencing phase of trial, defense counsel requested a 31-month sentence. Pursuant to the plea agreement, the State requested a sentence of 41 months. The trial court, however, imposed an exceptional sentence of 120 months' (10 years') imprisonment because of the victim's vulnerability and Wakefield's abuse of her position of trust. Addressing Wakefield, the trial court stated:
What I do find, and what I think the court cannot overlook, is the fact that you were dealing with an individual who could not resist you in any way, who could not fight back in any way, who could not yell for help, seek help, who couldn't do anything but sit there in that chair and understand, perhaps, for a period of time what you were doing to him.
. . . .
For that reason the court in this case, which I am not sure I have done before, is going to impose the maximum penalty of 120 months in the Department of Corrections. I do that taking into account the fact that you won't serve 120 months, you will serve two-thirds of that. . . .
. . . .
The justification for the exceptional sentence. . . is the fact that Ms. Wakefield held the position of trust with this individual, she violated that trust. He was particularly vulnerable to the conduct that caused his death, and she deliberately removed any chance or possibility that he had to seek help or to receive help from anyone on the possibility that he was alive when she left him.
Report of Proceedings (Jan. 21, 1994) at 17, 19, 21 (emphasis added). Defense counsel did not object to the *Page 471 exceptional sentence, nor did defense counsel point out that the judge had previously indicated that she would sentence Wakefield within the standard range.
On appeal, Wakefield argues that the trial judge improperly participated in the plea negotiations when she promised to sentence her within the standard range. Wakefield claims that the only appropriate remedy is to remand her case for resentencing within the standard range. Wakefield also contends that the trial court violated the real facts doctrine when it used the word "deliberately" to impose an exceptional sentence. Finally, she maintains that the trial court improperly considered the possibility of good time credits when imposing the 10-year sentence.
In an unpublished opinion, the Court of Appeals held that Wakefield could withdraw her guilty plea since there was the possibility that she had been misled by the trial court's initial assurance of a standard range sentence. The Court of Appeals found no violation of the real facts doctrine. It also upheld the exceptional sentence after determining the trial court would impose the same sentence on remand regardless of the possibility for good time credits. We agree.
TRIAL COURT INVOLVEMENT IN PLEA NEGOTIATIONS Plea agreements in Washington are governed under RCW 9.94A.080-.100. These statutes provide the prosecutor with authority to amend charges against a defendant, and also permit the prosecutor to recommend a particular sentence as part of a plea arrangement. RCW 9.94A.080 specifically provides that "[t]he court shall not participate in any discussions" regarding plea negotiations. However, the court may reject a plea bargain in "the interests of justice." RCW 9.94A.090(1). The court is not "bound by any recommendations" contained in the plea agreement, and the defendant must be informed of this prior to pleading guilty. RCW 9.94A.090(2). *Page 472 [1, 2] At all times, the defendant must understand the consequences of pleading guilty. Under Washington's Superior Court Criminal Rules (CrR), the trial court "shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." CrR 4.2(d). Seealso State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988) ("A defendant must understand the sentencing consequences for a guilty plea to be valid."). CrR 4.2(f) provides that a trial court must permit the withdrawal of a guilty plea "to correct a manifest injustice." Four nonexclusive criteria exist for determining "manifest injustice":
State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quotingState v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974)). In the present case, we are concerned primarily with whether the trial court's participation in the plea negotiations affected the voluntariness of Wakefield's plea.(1) denial of effective counsel, (2) plea . . . not ratified by the defendant or one authorized [by him] to do so, (3) plea was involuntary, (4) plea agreement was not kept by the prosecution.
[3-5] The Court of Appeals in State v. Pouncey, 29 Wn. App. 629,630 P.2d 932, review denied, 96 Wn.2d 1009 (1981) adopted the American Bar Association's standards for judicial participation in plea negotiations. These standards provide that where the prosecutor and defense are unable to reach a plea agreement, they may ask the trial judge to moderate their discussions. 3 AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE, Std. 14-3.3(c) (2d ed. 1980). Moreover, the trial judge may inquire as to the possibility of a plea arrangement if he or she has not been advised of one. Id. at Std. 14-3.3(e). However, these standards emphasize that "the judge should never through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should *Page 473 be entered." Pouncey, 29 Wn. App. at 635 (quoting 3 AMERICAN BAR ASS'N, supra Std. 14-3.3(f)). Pouncey, in analyzing the American Bar Association standards, concluded that "the appropriate appellate function is to scrutinize the available record carefully to determine whether or not the judge's presence and/or involvement [in the plea negotiations] affected the voluntariness of the defendant's plea." Pouncey, 29 Wn. App. at 637 (emphasis added). We agree with the reasoning in Pouncey and hold that where a trial court participates in plea negotiations, the critical inquiry is whether such participation resulted in an involuntary plea.
Wakefield claims that the trial court improperly participated in the plea negotiations on three different occasions. First, the trial court expressed concern over Wakefield's "failure to be receptive to a plea offer that would subject her to much less jeopardy." Report of Proceedings (Dec. 8, 1993) at 26. Second, the trial court urged Wakefield to take the advice of her attorneys. "I can not force you to accept their advise [sic]. I can simply urge that you should." Report of Proceedings (Dec. 8, 1993) at 27. Finally, the trial court indicated that it would sentence Wakefield within the standard range if she pleaded guilty. Report of Proceedings (Dec. 14, 1993) at 3-5. Wakefield argues her plea was involuntary as a result of the trial court's impromptu comments.
Wakefield relies on our decision in State v. Miller, 110 Wn.2d 528,756 P.2d 122 (1988) to argue that she should be granted "specific performance" and sentenced within the standard range. InMiller, the prosecutor inadvertently told the defendant that he could receive a sentence of less than 20 years for a first degree murder conviction. Only after Miller pleaded guilty did he learn that a statute mandated at least a 20-year sentence. He tried to withdraw his guilty plea, but the trial court denied his motion. Since it was undisputed that Miller did not understand the consequences of pleading guilty, we held that Miller could withdraw his plea or have the plea agreement *Page 474 specifically enforced. Miller, 110 Wn.2d at 536-37. "[T]he defendant's choice of remedy controls, unless there are compelling reasons not to allow that remedy."2 Miller,110 Wn.2d at 535.
While Wakefield contends she is entitled to specific performance under Miller, that case simply is not analogous.Miller involved prosecutorial breach of a plea agreement. In the present case, the trial court stated that it would sentence Wakefield within the standard range if she accepted a plea agreement. As the Court of Appeals noted,
There is no authority . . . for the proposition that the court is bound by any misstatement it may make in explaining the plea and sentencing process. Such a requirement would be particularly unwise in a case such as this where the impropriety of the court's statements was not called to the court's attention.State v. Wakefield, No. 34154-5- I, slip op. at 8 (Wash.Ct.App. May 8, 1995).
Justice Sanders, in his dissent, characterizes a plea agreement as creating a contract between the prosecutor, the defendant, and the trial court. Dissent at 480. This is wrong. While the State is bound by the plea agreement, the trial court, quite simply, is not. RCW 9.94A.090(2) clearly states that a "sentencing judge is not bound by any recommendations contained in an allowed plea agreement." The prosecutor and the defendant are the only parties to a plea agreement. In contrast, the role of the trial court is carefully circumscribed. Wakefield argues that the trial court's impromptu comments regarding a standard range sentence entitled her to specific performance. Nonetheless, a standard range sentence was not part of the plea agreement and thus cannot be specifically enforced. Even so, Wakefield is not without a remedy. A trial court must permit withdrawal of a plea agreement *Page 475 where the defendant entered the plea involuntarily. CrR 4.2(f).
The State argues that the doctrine of invited error bars Wakefield's claims because each time the trial court became involved in the plea negotiations, it was in response to a request from defense counsel. The doctrine of invited error "prohibits a party from setting up an error at trial and then complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984). See also State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979) (a defendant cannot propose a jury instruction and then challenge it on appeal). This doctrine is not applicable to the present case. Although defense counsel asked the trial judge to intervene in the plea negotiations, the judge went beyond defense counsel's requests. Defense counsel sought the judge's assurance that Wakefield would be sent to a correctional facility. The judge complied, but then went on to say — without any prompting from defense counsel — that she would sentence Wakefield within the standard range.
There appear to be no reported cases from either this jurisdiction or any other jurisdiction in which a trial judge promised a particular sentence before the defendant accepted a plea bargain, and then reneged on that promise at the time of sentencing. We are mindful of the fact that a trial judge's promise of a standard range sentence could easily sway a defendant to plead guilty. In the present case, the trial judge's involvement in the plea negotiations casts significant doubt on the voluntariness of Wakefield's plea. Given these circumstances, we hold that Wakefield may withdraw her plea and remand to the trial court for a hearing to give Wakefield this opportunity.
Since Wakefield could decline to withdraw her plea, we must determine whether her sentence violated the real facts doctrine or impermissibly took into account the possibility of good time credits. We turn now to those issues.
REAL FACTS DOCTRINE Under the real facts doctrine, a trial court may not *Page 476 impose a sentence based on the elements of a more serious crime that the State did not charge or prove. RCW 9.94A.370(2);State v. Barnes, 117 Wn.2d 701, 708, 818 P.2d 1088 (1991). In determining the appropriate sentence, the trial court can consider the presentencing reports unless the defendant objects. It can also consider the defendant's admissions at the time of sentencing. RCW 9.94A.370(2).
In the present case, the trial court could only impose an exceptional sentence based on Wakefield's conviction for first degree manslaughter; it could not consider the State's original charge of second degree murder. A conviction for second degree murder requires that the defendant intended to kill the victim. RCW 9A.32.050. A conviction for first degree manslaughter only requires that the defendant recklessly caused the victim's death. RCW 9A.32.060. Recklessness entails "disregard[ing] a substantial risk that a wrongful act may occur." RCW 9A.08.010(1)(c).
Wakefield claims that the trial court violated the real facts doctrine when it imposed an exceptional sentence. The trial court sentenced Wakefield outside the standard range because she had violated her position of trust and the victim had been particularly vulnerable. In giving its reasons for the exceptional sentence, the trial court stated that Wakefield "deliberately removed any chance or possibility that [Brockman] had to seek help." Report of Proceedings (Jan. 21, 1994) at 21. Wakefield focuses on the word "deliberately" and argues that the trial court imposed an exceptional sentence based on elements of the more serious crime of intentional murder. Throughout this case, Wakefield has repeatedly denied that she deliberately caused Brockman's death.
[6] We recently held in State v. Chadderton, 119 Wn.2d 390,832 P.2d 481 (1992) that "when someone recklessly causes the death of a particularly vulnerable person entrusted to his or her care, the factors of abuse of trust and victim vulnerability may properly serve to justify an enhanced sentence for first degree manslaughter." Chadderton, 119 Wn.2d at 392. Chadderton worked as an aid in *Page 477 a nursing home. One of Chadderton's patients suffered a broken hip after he pushed her into a wheelchair. A series of illnesses resulted from the hip injury, and the patient subsequently died. Chadderton pleaded guilty to first degree manslaughter, and the trial court imposed an exceptional sentence based on the victim's vulnerability and the defendant's abuse of trust. We reversed the exceptional sentence and remanded for further factfinding because it was unclear if the circumstances surrounding the victim's deathamounted to an abuse of trust. In particular, it was unclear from the record whether Chadderton forcefully placed the victim into the wheelchair or "brutally hurled her . . . from a distance of several feet." Chadderton, 119 Wn.2d at 400.
[7] Unlike Chadderton, the trial court in the present case had extensive information regarding the events surrounding the death of Robert Brockman, including Wakefield's letter of confession. In her letter, Wakefield states that she deliberately denied Brockman all access to his family, and deliberately cut off all lines of communication that Brockman had to the outside world. These deliberate acts went hand in hand with Wakefield's reckless behavior, and it makes sense that the trial court would take them into account. There is no indication, however, that the trial court considered the elements of second degree murder, instead of first degree manslaughter, when it sentenced Wakefield. Thus, we find no violation of the real facts doctrine.
GOOD TIME CREDITS [8-10] The trial court imposed the maximum penalty of 120 months (10 years) "taking into account the fact that you won't serve 120 months, you will serve two-thirds of that." Report of Proceedings (Jan. 21, 1994) at 19. This was an oral statement and was not included in the trial court's written findings of facts and conclusions of law justifying the exceptional sentence.
This court has held that a trial court may not rely on *Page 478 the possibility of early release for good time credits when imposing an exceptional sentence.
The framework of the SRA [Sentencing Reform Act of 1981] indicates that earned early release time is to be considered only after the offender has begun serving his sentence. See RCW 9.94A.150(1). Moreover, it would be inappropriate to impose a sentence outside the presumptive range based on an entirely speculative prediction of the likely behavior of an offender while in confinement.State v. Fisher, 108 Wn.2d 419, 429 n. 6, 739 P.2d 683 (1987).See also State v. Buckner, 74 Wn. App. 889, 899, 876 P.2d 910 (1994), rev'd, 125 Wn.2d 915, 890 P.2d 460 (1995); State v. Ross,71 Wn. App. 556, 861 P.2d 473, 883 P.2d 329 (1993), reviewdenied, 123 Wn.2d 1019 (1994). However, a trial court's reliance on the availability of good time credits when imposing an exceptional sentence does not automatically result in a reversal of the sentence. If overwhelming aggravating factors exist to justify an exceptional sentence, the sentence will be upheld even if the trial court improperly relied on the possibility of good time credits. Fisher, 108 Wn.2d at 429-30; Ross,71 Wn. App. at 575.
In the present case, the trial court merely commented at the sentencing hearing that Wakefield likely would serve less time, but did not justify the exceptional sentence on this basis. The trial court imposed the exceptional sentence relying solely on the aggravating factors of abuse of trust and victim vulnerability. Moreover, even if the trial court initially considered the possibility for early release when imposing the exceptional sentence, it would in all probability impose the same sentence on remand given the circumstances of this case. Thus, resentencing is unnecessary.
DOLLIVER, SMITH, GUY, JOHNSON, and TALMADGE, JJ., concur.