(dissenting) — The question is whether the superior court had the authority to reject a voluntary and fully informed plea of guilty to two gross misdemeanor charges filed by the State in superior court. It did not. State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980). I therefore respectfully dissent.
This was not an executory plea agreement. It was a completed plea agreement. The appropriate charges were filed; the State made its sentencing recommendation. The court, completely within its authority, rejected the State’s recommendation. The court advised Jeremy Conwell of the consequences of a plea of guilty, including the fact that the court was not bound by any agreement. Mr. Conwell nonetheless elected to plead guilty. There was nothing left for the court to do but to accept the plea. The court could not (in effect) require the State to amend the information to reflect the court’s notion of the appropriate charge. The discretion to charge is uniquely within the authority of the *468executive, here the prosecuting attorney. State v. Haner, 95 Wn.2d 858, 863, 631 P.2d 381 (1981).
The majority opinion fully and fairly sets forth the facts, but it should be emphasized that Mr. Conwell persisted with his choice to plead guilty as charged, even after being fully informed by the sentencing judge of the potential consequences of that plea. Report of Proceedings at 31.
“Few cases have considered a criminal defendant’s right to plead guilty to the crime with which he is charged.” Martin, 94 Wn.2d at 12 (Horowitz, J., concurring). Of those few, Martin is controlling and demands reversal of the superior court decision.
Mr. Conwell does not have a constitutional right to plead guilty. Martin, 94 Wn.2d at 4. But the Supreme Court by court rule, or the Legislature by statute, may grant that right. State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995). Our Supreme Court has done so. CrR 4.2 gives any defendant the right to plead not guilty, not guilty by reason of insanity, or guilty.
The State mistakenly argues nonetheless that acceptance of the plea is discretionary with the court. The State and the trial court were misled by the unfortunate use of the passive form of the verb in CrR 4.2(f), which renders the rule susceptible to misinterpretation:
If the defendant pleads guilty pursuant to a plea agreement and the court determines under RCW 9.94A.090 that the agreement is not consistent with (1) the interests of justice or (2) the prosecuting standards set forth in RCW 9.94A.430-.460, the court shall inform the defendant that the guilty plea may be withdrawn and a plea of not guilty entered.
CrR 4.2(f) (emphasis added).
The State takes this to mean that the trial court may withdraw the plea and enter a plea of not guilty on the defendant’s behalf. This is not what RCW 9.94A.090 says. It provides:
If the court determines [the plea agreement] is not consistent
*469with the interests of justice and with the prosecuting standards, the court shall, on the record, inform the defendant and the prosecutor that they are not bound by the agreement and that the defendant may withdraw the defendant’s plea of guilty, if one has been made, and enter a plea of not guilty.
RCW 9.94A.090(1) (emphasis added). Thus, the statute does not permit the triál court to do what it did here.
Neither does the court rule. The defendant has the untrammeled right to enter a plea, subject only to the protections of CrR 4.2(d). Ford, 125 Wn.2d at 923-24; Martin, 94 Wn.2d at 5. In Ford, the trial court was held to have acted properly in declining to accept a guilty plea until it was satisfied it was knowing and intelligent. Ford, 125 Wn.2d at 924-25. Once the court is satisfied a guilty plea is made competently, knowingly and voluntarily, it must accept the plea. Martin, 94 Wn.2d at 9.
Here, the trial court unambiguously established these elements on the record.
In addition, the court must establish that there is a factual basis for the plea. CrR 4.2(d). The trial court here specifically states in the record that there is “ample evidence in the police reports that I’ve reviewed to support the charges that are before the Court.” Report of Proceedings at 46.
The trial court equated a plea agreement with a guilty plea. They are not the same.
* A plea agreement is an understanding between the prosecutor and the defendant or the defendant’s attorney that the prosecutor will do certain things upon the defendant’s entering a plea. RCW 9.94A.080.
• A guilty plea is a method of determining guilt, which may be entered at the defendant’s option. CrR 4.2(a).
The plea agreement in this case was that, in exchange for a plea of guilty on the two gross misdemeanor charges, the prosecutor would request concurrent sentences with all jail time suspended except for 90 days with credit for 15 *470days served, and no additional fines other than the court costs and victim assessments. Restitution might be requested, and two years’ probation could be imposed. Report of Proceedings at 29-30.
This agreement did not confer upon Mr. Conwell the right to plead guilty. He already possessed that right as created by court rule, subject only to the court’s determination that it is freely and intelligently exercised. CrR 4.2(a), (d); Martin, 94 Wn.2d at 5.
The trial court’s discretion with respect to a plea agreement comes into play only if the court finds a proposed plea agreement is inconsistent with the interests of justice. It may then reject the agreement and inform the defendant of the defendant’s right to withdraw the plea. RCW 9.94A-.090(1). The court can reject the agreement but not the plea of guilty offered pursuant to the agreement. The decision as to whether to plead guilty remains that of the defendant. Martin, 94 Wn.2d at 5. Professor Boerner agrees.
The decision as to whether to plead guilty remains the defendant’s, assuming of course that the plea of guilty is otherwise valid. Where the plea agreement does not involve the amendment of the information or the dismissal of counts, the decision as to whether to continue with the plea of guilty in the absence of the concessions contained in the plea agreement is the defendant’s.
David Boerner, Sentencing in Washington § 12.25, at 12-50 (1985) (footnote omitted).
Professor Boerner also notes that only where judicial action is required does the court retain any preexisting authority to refuse to execute the agreement, such as amendment of the information to reduce charges or to drop charges. Boerner, supra at 12-50.
His example is instructive on the precise issue before us:
For example, if the plea agreement is that the prosecutor will recommend a particular sentence within the presumptive sentence range for the crime to which the plea of guilty is being entered, a judicial finding that that agreement is not con*471sistent with the interests of justice or with the prosecuting standards would result in the prosecutor not being bound to make the agreed-upon recommendation, but it would not prevent the defendant from pleading guilty.
Boerner, supra at 12-50 (emphasis added).
The State focuses on the fact that the two gross misdemeanor charges originally filed in superior court were the result of plea negotiations. This would be relevant if the plea agreement here came before the court in the form of a motion to amend the charges against Mr. Conwell from second degree manslaughter to the two gross misdemeanor charges. Boerner, supra at 12-50. But it did not. The charging decision had been made—for whatever reason. The State had charged and was prepared to prove that Mr. Con-well had committed the two gross misdemeanors. Mr. Con-well conceded the State’s ability to prove those charges and indicated, unequivocally, his desire to plead guilty to them.
But once the State makes the charging decision—for whatever reasons—the court’s discretion is constrained. The trial court is expressly precluded by statute from intruding itself in plea agreement discussions: “The court shall not participate in any discussions under this section.” RCW 9.94A.080 (plea agreements).
The court can and must assure that the plea is voluntary and that the evidence is sufficient to support the charge. CrR 4.2(d). But that is it. Neither RCW 9.94A.090 nor CrR 4.2 empowers the court to substitute its judgment for the charging decision already made and filed by the prosecutor. Any other interpretation would transfer the charging decisions of the executive branch to the judicial branch.
“Although the State appears to argue to the contrary, we have been informed of no statute or rule of court which grants a trial court authority to decline a plea of guilty made competently, knowingly, voluntarily, unconditionally, unequivocally and on advice of counsel.” State v. Martin, 94 Wn.2d 1, 5, 614 P.2d 164 (1980). In a concurring opinion, Justice Horowitz makes the point that “adoption of the *472State’s assertion that it can prevent the defendant from pleading guilty in effect creates a governmental ‘right’ to jury trial which the law has never recognized.” Martin, 94 Wn.2d at 12 (Horowitz, J., concurring).
The only procedural difference between Martin and this case is minor and not at all relevant to our analysis. Mr. Martin asked the court to rule on the legal consequences of a plea of guilty to aggravated first degree murder. The State interjected that it had 30 days to file a notice of intent to request a death penalty so the court refused to advise Mr. Martin of the consequences of a plea of guilty and, of course, refused to accept a plea because of Mr. Martin’s request for advice. So although Mr. Martin stood ready to enter an unconditional plea of guilty (like Mr. Conwell), he entered no plea. Martin, 94 Wn.2d at 7.
Procedurally, the facts here are even more compelling. Mr. Conwell did not request an advisory ruling from the court on the consequences of his plea. And the court fully advised Mr. Conwell of the consequences of his plea. After being fully advised of the consequences of his plea, Mr. Conwell persisted in his desire to plead guilty. Report of Proceedings at 31. Like Mr. Martin, Mr. Conwell stood ready to enter an unconditional plea of guilty. Id.
The State also relies on State v. Ford, 125 Wn.2d 919, 891 P.2d 712 (1995). That case recognizes the Legislature’s response to Martin by restricting a defendant’s right to plead guilty during the 30-day period when the State may decide to seek the death penalty. Ford, 125 Wn.2d at 924 n.l. That amendment relates only to a capital case—a case not at issue here. It in no way erodes the controlling effect of Martin on these facts. Moreover, here, unlike Ford, Mr. Conwell completed the required statement on plea of guilty (CrR 4.2(g)) and acknowledged both his responsibility and culpability for the two charged gross misdemeanors. And, unlike Ford, the court conducted the necessary plea hearing assuring both the voluntariness of Mr. Conwell’s plea and his proper understanding of his rights and obligations. Ford, 125 Wn.2d at 922.
*473The essence of the holding in Ford is that the acceptance of a plea of guilty is conditioned only on the court’s evaluation of its voluntariness. Id. at 924. And, of course, the vol-untariness of Mr. Conwell’s plea is not at issue here.
Finally, in Ford, the State requested a continuance because of concerns over exculpatory material not yet turned over to the defense and the defendant’s understanding of the charges. This called into question the voluntariness of the plea. Id. at 922. Here, there was no reason to continue the sentencing other than the court’s refusal to accept this voluntary, unequivocal plea to the charges as filed. The State here does not suggest that Mr. Conwell’s plea was not voluntary. And with good cause, for even a cursory review of the factors outlined in Ford leads inescapably to the conclusion that this was a voluntary plea. See factors set out in Ford, 125 Wn.2d at 926.
Mabry v. Johnson3 is equally inapplicable. There, “[t]he question presented is whether a defendant’s acceptance of a prosecutor’s proposed plea bargain creates a constitutional right to have the bargain specifically enforced.” Mabry v. Johnson, 467 U.S. 504, 505, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984). The holding is that it does not. That is not the issue before us here. Mr. Conwell seeks to enforce his unconditional right to plead guilty.
The plea agreement here had been completed. The court had fully informed Mr. Conwell of the consequences of that plea. The State’s charging decision was not before the court and it therefore had no right to reject Mr. Conwell’s offer to plead guilty.
I would reverse.
Review granted at 139 Wn.2d 1015 (2000).
467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984).