State v. Acevedo

Johnson, J.

(concurring) — I agree with the majority that Oseguera’s plea of guilty was knowing, intelligent and voluntary and “not the product of a ‘manifest’ constitutional error.” Majority at 198.1 agree with the dissent, however, that the mandatory term of community placement is a “direct consequence” of the plea in this case since Oseguera’s deportation is not a “certainty.” Dissent *205at 207. Accordingly, the constitution requires Oseguera be informed of community placement because it is a “direct consequence” of his plea. State v. Ross, 129 Wn.2d 279, 280, 916 P.2d 405 (1996). Where I part company with the majority and the dissent is that, under the facts, Oseguera was sufficiently informed.

“Knowledge of the direct consequences of a guilty plea may be satisfied from the record of the plea hearing or clear and convincing extrinsic evidence.” Ross, 129 Wn.2d at 287 (citing Wood v. Morris, 87 Wh.2d 501, 511, 554 P.2d 1032 (1976)). Here, the record demonstrates Oseguera was informed and aware that community placement was a direct consequence of his plea.

The majority acknowledges that during the plea hearing, prior to the acceptance of Oseguera’s plea, Judge Wardell engaged in the following exchange with Oseguera:

THE COURT: . . . And do you understand that when you get out of prison you would be supervised by the Department of Corrections if you remain in the country, and you would have to do what the Department of Corrections tells you ? Do you understand that?
RESPONDENT: Yes. He came to talk to me.

Majority at 186 (citing Clerk’s Papers at 38). Thus, Oseg-uera was informed as to the condition of community placement before pleading guilty, understood that condition, and acknowledged his understanding to the court at the plea hearing. That is all that is required.116

Despite this evidence the majority concludes, as did the Court of Appeals, Oseguera did not understand community placement to be one of the direct consequences of his plea. *206The Court of Appeals apparently was persuaded in part because no written warning of community placement had been provided to Oseguera as required under CrR 4.2(g). See State v. Oseguera, 88 Wn. App. 232, 236, 945 P.2d 225 (1997); see also Majority at 185 (noting a defendant ordinarily becomes aware of community placement consequence under requirements of CrR 4.2(g)).

I agree the better course is to follow the specific dictates of CrR 4.2(g) because the record would then be clear. However, failing to do so does not necessarily result in “manifest injustice” requiring withdrawal of the plea. Although CrR 4.2 contains numerous procedural safeguards designed to ensure a defendant’s constitutional rights, the rule’s procedural requirements are not constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). “Failure to adhere to the technical requirements of CrR 4.2(g) does not in itself result in a constitutional violation or amount to a manifest injustice.” Branch, 129 Wn.2d at 642.

“Whether a plea is knowingly, intelligently, and voluntarily made is determined from a totality of the circumstances.” Branch, 129 Wn.2d at 642 (citing Wood, 87 Wn.2d at 506). Here, the circumstances confirm Oseguera was fully aware community placement would be a consequence of his plea. Accordingly, Oseguera has not shown manifest injustice requiring withdrawal of the plea. Therefore, I concur.

Durham and Madsen, JJ., concur with Johnson, J.

The State also submitted evidence that Oseguera had previously been found guilty on a drug charge for which he received a prison sentence and one-year community placement. Majority at 197 (citing Clerk’s Papers at 119-24). Indeed, Oseguera was under the supervision of the Department of Corrections and serving community placement at the time of his arrest on the current charge. Majority at 197; see also State v. Oseguera, 88 Wn. App. 232, 238, 945 P.2d 225 (1997). While this evidence, without more, would be insufficient to sustain the validity of the plea, it supports the conclusion that Oseguera understood the nature of the trial court’s question and the specific terms of community placement.