State v. Bisson
State v. Bisson
Opinion of the Court
¶1 Defendant Jonathan Bisson pleaded guilty to five counts of first degree robbery and three counts of second degree robbery. The State conceded that Bisson’s plea agreement was involuntary because he had not been clearly informed that the five deadly weapon enhancements applicable to the first degree counts had to be served consecutively to one another. At issue is the remedy for Bisson’s involuntary plea. The State contends that his only remedy is withdrawal of the entire plea (complete rescission), but Bisson maintains that he may withdraw the plea to the deadly weapon enhancements only, while letting stand the plea to the underlying offenses (partial rescission), or that, in the alternative, he may receive a sentence imposing concurrent enhancements (specific performance). The Court of Appeals concluded that Bisson was not entitled to specific performance but that he could partially withdraw his plea agreement if he could establish on
FACTS
¶3 Bisson was charged with a string of robberies committed between November 2001 and January 2002, the first occurring at a flower shop and the others at espresso stands. In the second amended information, the State charged Bisson with five counts of first degree robbery and three counts of second degree robbery, pursuant to RCW 9A.56.200(l)(b), .210, and .190. Each of the five first degree counts included an allegation that Bisson had been armed with a deadly weapon — identified as a hammer in three counts, a knife in the other two.
¶4 On June 13, 2002, when his case was called for trial, Bisson pleaded guilty to the eight counts. As required under CrR 4.2(g), Bisson completed a “Statement of Defendant on Plea of Guilty,” a form document bearing handwritten responses that Bisson had initialed.
¶5 Bisson’s statement on the plea incorporated information provided in the documents the State submitted — the State’s second amended information, the State’s plea agreement, and the sentencing guidelines scoring forms accompanying the plea agreement. Bisson acknowledged that he had been charged with, and was pleading guilty to, the crimes set forth in the second amended information. See CP at 30, 38. Consistent with the scoring forms, Bisson’s statement on the plea entered “129-171” as the standard range for the five first degree robbery counts and “63-84” as the standard range for the three second degree robbery counts. Id. at 31, 60-61. As for the applicability of deadly weapon enhancements, the statement on the plea indicated that no enhancements were applicable to the second degree robbery counts but recorded that the first degree counts carried enhancements of “24 months on each count; 5 counts total.” Id. at 31. That entry accurately repeated the information provided on the State’s calculation sheet for the deadly weapon enhancements. There, the five first degree robbery counts are treated collectively as the “current OFFENSE BEING SCORED”; the “BASE STANDARD SENTENCE RANGE” ÍS defined as “129 to 171,” the “deadly weapon enhancement” as “24,” and the resulting “standard range” as “153 to 195.” Id. at 62.
¶6 Consistent with the State’s second amended information and its plea agreement with accompanying scoring sheets, the statement on the plea did not state that the five 24-month weapon enhancements were to run consecutively to one another. Just as the State’s plea agreement provided that any mandatory enhancements “must be served consecutively to any other term and without any earned early release,” id. at 58 (emphasis added), the preprinted form for the statement on the plea provided that “[t]his additional
¶7 Bisson’s statement on the plea indicated that, at the time of the entry of the plea on June 13, 2002, the State was leaving “open” its recommended sentence. CP at 33, 58. At the oral presentation of the plea on that day, the trial court confirmed Bisson’s understanding that he was pleading guilty “to Counts I through VIII of the Second Amended Information” and that, in light of the “open recommendation,” “the prosecutor at the time of sentencing can recommend anything up to the standard range.” VRP (June 13, 2002) at 9-10 (emphasis added). Formally accepting Bisson’s plea, the trial judge stated that he had “signed the Statement of Defendant on Plea of Guilty and the Plea Agreement.” Id. at 11; see CP at 40, 58.
¶8 When the sentencing hearing began seven weeks later on August 2, 2002, the prosecutor began by reporting that defense counsel had brought to his attention a citation error in the second amended information, the information on which Bisson had based his previously entered guilty plea. In the information, the State had incorrectly cited the deadly weapon statutes as RCW 9.94A.125 and .310— provisions that had actually been recodified in July 2001 as RCW 9.94A.602 and .510, respectively. The State’s plea agreement likewise incorrectly cited RCW 9.94A.310; because the prosecutor had used a form last revised in July 2000, the form incorrectly used citations predating the July 2001 recodification. CP at 58. Although the substance of the statutes had not changed in 2001, the legislature had changed RCW 9.94A.310 in 1998 in response to this court’s decision in In re Post Sentencing Review of Charles, 135
¶9 The State then went on to recommend at the August 2 sentencing hearing, orally and in writing, that Bisson receive base sentences of 150 months on each of the five first degree robbery counts and 75 months on each of the
¶10 The trial court reduced the State’s 75-month recommendation to 63 months on each of the three second degree robbery counts and similarly reduced the 150-month recommendation to 129 months on each of the five first degree robbery counts. When the trial court initially announced its sentencing decision, the court was under the impression that the 24-month enhancements would also be served concurrently:
And on the counts [for first degree robbery, I am going to set the term of confinement at] 129 months plus the deadly weapon enhancement, for a total of 153 .... Now, that basically is the low end of the standard range with the enhancement. And some people may think that these crimes, particularly those who went through them, might deserve more, but people often do. And just so that the record is clear, Mr. Bisson is going to serve 153 months, in excess of 12 years in prison.
Id. at 39-40. A colloquy with defense counsel and the prosecutor followed, see id. at 40-43, clarifying that Bisson’s 129-month sentences for the five first degree robbery counts would run concurrently, that they would run concurrently with the likewise concurrent 63-month terms for the three second degree crimes, and that an additional 120 months (for the five consecutive 24-month enhancements) would follow, for a total period of confinement of 20 years and 9
¶11 Bisson timely appealed the judgment and sentence. On March 3, 2003, the trial court granted Bisson’s request for appointed counsel to investigate and litigate a motion, pursuant to CrR 7.8, to withdraw his guilty plea, and on March 21, the Court of Appeals granted Bisson’s motion to stay appellate proceedings pending the trial court’s ruling on the anticipated motion to withdraw the plea. Bisson filed the motion in superior court on June 11, 2003, and two days later, filed in the Court of Appeals a personal restraint petition; two months later, Bisson amended the petition, adding claims that his counsel had been ineffective and that the police had unlawfully obtained evidence against him. On July 1, 2003, the trial court granted the State’s motion to transfer the CrR 7.8 motion to the Court of Appeals for consideration as a personal restraint petition. All three matters were thereafter consolidated for hearing in the Court of Appeals.
¶12 In his September 22, 2003, opening brief, Bisson assigned error, first, to the trial court’s acceptance of his plea of guilty to the deadly weapon enhancements and, second, to the trial court’s decision transferring to the Court of Appeals his motion to withdraw the guilty plea. Bisson contended that “there was no factual basis to support the enhancements” and that he had been “misinformed of the length of the sentence based on the enhancements.” Br. of Appellant/Pet’r at I. As to a remedy, he argued that he “should be allowed to withdraw his plea to the deadly weapon enhancements or, in the alternative, [that the court] should direct the trial court to enter an order running the enhancements concurrently” under the doctrine of specific performance. Id. at 19. On November 5,2003, the State filed a motion conceding that Bisson’s plea was involuntary: “[U]nless the record demonstrates that Bisson understood that his weapon enhancements would be consecutive to the base sentence and to one another, Bisson’s plea is involuntary. Unfortunately, the record indicates quite the
¶13 In an unpublished per curiam decision, the Court of Appeals accepted the State’s concession that Bisson’s plea had not been voluntary and agreed with the State that specific performance was not an available remedy. Bisson, 2004 Wash. App. LEXIS 962, at *1-2. As to whether the agreement could be partially rescinded (Bisson’s alternative request) or had to be rescinded in its entirety (as the State maintained), the court concluded that “[t]he correct remedy ... depended] upon Bisson’s personal perception of the severability of his decision to plead guilty to the underlying offenses from his decision to plead guilty to the weapons enhancements.” Id. at *8. The court thus remanded the matter for the trial court “to ascertain Bisson’s choice in this regard.” Id.
¶14 Having moved unsuccessfully for reconsideration, the State sought this court’s review of the Court of Appeals opinion and the order denying reconsideration. In Bisson’s response to the petition, he renewed his argument that, contrary to the Court of Appeals decision, “specific performance should be available as a remedy in this case.” Resp. to Pet. for Review at 12. We granted review at 154 Wn.2d 1012 (2005).
ISSUES
¶15 1. Is partial rescission an available remedy for Bisson’s involuntary plea, allowing him to withdraw his plea only as to the weapon enhancements, or is the remedy of rescission restricted to withdrawal of the plea agreement in its entirety?
¶16 2. In light of the State’s erroneous citations in the second amended information and the plea agreement, as
ANALYSIS
¶17 Standard of Review. Because a plea agreement is a contract, issues concerning the interpretation of a plea agreement are questions of law reviewed de novo. State v. Harrison, 148 Wn.2d 550, 556, 61 P.3d 1104 (2003); Tyrrell v. Farmers Ins. Co. of Wash., 140 Wn.2d 129, 133, 994 P.2d 833 (2000).
¶18 Available Remedies for Involuntary Plea Agreement. For a defendant’s guilty plea to be deemed voluntary and valid, the “defendant must understand the sentencing consequences” of his plea. State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988); State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338 (2003). Here, conceding that Bisson did not understand that the five deadly weapon enhancements were to run consecutively to one another, the State agreed that Bisson’s plea was involuntary and that he was entitled to a remedy. This court has held that “where the terms of a plea agreement conflict with the law or the defendant was not informed of the sentencing consequences of the plea, the defendant must be given the initial choice of a remedy to specifically enforce the agreement or withdraw the plea.” Miller, 110 Wn.2d at 536 (emphasis added); Turley, 149 Wn.2d at 399. After the defendant’s election, the burden shifts to the State:
Although the defendant has the initial choice of remedy, the trial court is not necessarily bound by the defendant’s choice. Once the defendant has opted for one of the available remedies, the State “bears the burden of demonstrating that the defendant’s choice of remedy is unjust.” [Miller, 110 Wn.2d] at 536.*518 The State’s burden requires a showing that compelling reasons exist not to allow the defendant’s choice. Id. at 535. We hold that when the plea agreement includes multiple counts or charges, the State need not make a showing of compelling reasons on each count or charge. Instead, the showing may be based on any one or all of the counts or charges. The trial court then determines whether those reasons are compelling and the defendant’s choice of withdrawal or specific performance is unjust.
Id. at 401. While the State may ordinarily “make its showing on remand,” the Turley court concluded that, because the State had not provided “compelling reasons [in its briefing or at oral argument] to refuse Turley’s choice of remedy, Turley [was] permitted to withdraw his plea of guilty [to both counts].” Id.; see also In re Pers. Restraint of Isadore, 151 Wn.2d 294, 303, 88 P.3d 390 (2004) (concluding that, because the State “ha[d] not objected to the defendant’s chosen remedy and in oral argument could not assert any reasons why specific performance would be unjust,” Isadore was entitled to specific performance of the original sentence).
¶[19 While the State argues that the sole available remedy is the withdrawal of Bisson’s entire plea (complete rescission), Bisson contends that he should be permitted to choose between the two remedies: the withdrawal of the plea to the enhancements only (partial rescission of the agreement) or a sentence imposing concurrent terms for the weapon enhancements (under the doctrine of specific performance). This court has, in fact, recently considered the narrower question of whether the remedy of withdrawal necessarily means withdrawal of the plea in its entirety. In Turley, the defendant had pleaded guilty to two counts and been sentenced to concurrent terms with no community placement. When the State learned more than three years later that one of the two charges carried a mandatory 12-month term of community placement, the State moved to amend the judgment and sentence. The trial court declined to permit Turley to withdraw his plea in its entirety, concluding instead that he was entitled to with
f20 In light of the bright-line rule stated in Turley, we hold that if Bisson initially elects the remedy of withdrawal of the plea agreement, the remedy is restricted to the withdrawal of his plea in its entirety. Under Turley, Bisson’s plea agreement can be regarded only as “indivisible” — “a ‘package deal’ ” — since the pleas to the eight counts and the five weapon enhancements were made contemporaneously, set forth in the same document, and accepted in one proceeding. 149 Wn.2d at 400. Contrary to the analysis below, our prior decisions in Turley and Isadore make irrelevant “Bisson’s personal perception of the severability of his decision to plead guilty to the underlying
¶21 In the alternative, Bisson contends that, with the trial court’s acceptance of his plea on June 13, 2002, he was entitled to the remedy of specific performance, as guaranteed in Miller. “[T]he integrity of the plea bargaining process requires that once the court has accepted the plea, it cannot ignore the terms of the bargain, unless the defendant. . . chooses to withdraw the plea.” 110 Wn.2d at 536 (emphasis added); see also Harrison, 148 Wn.2d at 556-57 (observing that, because plea agreements are contracts that “concern fundamental rights of the accused, they also implicate due process considerations that require a prosecutor to adhere to the terms of the agreement” (emphasis added)). A defendant is entitled to specific performance of the plea agreement, even “where the terms of a plea agreement conflict with the law.” Miller, 110 Wn.2d at 536; see, e.g., Isadore, 151 Wn.2d at 302-03 (permitting defendant to request specific performance of a plea agreement that erringly failed to include a mandatory term of community placement); State v. Cosner, 85 Wn.2d 45, 51-52, 530 P.2d 317 (1975) (allowing reduction in defendants’ mandatory minimum terms “in accordance with their understanding of the length thereof at the time of their pleas”). In Bisson’s view, a sentence running the five weapon enhancements concurrently with one another was an enforceable
f22 While the plea agreement indisputably included a promise of five 24-month enhancements, at issue is whether concurrent weapon enhancements constituted a term of the plea agreement that the trial court accepted on June 13, 2002. The State conceded that “Bisson was never advised that the enhancements would run consecutively to one another” and that the record contained nothing to refute Bisson’s expectation that the enhancements would run concurrently. Bisson, 2004 Wn. App. LEXIS 962, at *4; Resp’t’s Mot. To Concede Error at 5-6. That the State’s errors left this term of the plea agreement ambiguous finds support in several respects. First, a correct citation of RCW 9.94A.510 in the second amended information and the plea agreement, instead of the erroneous citation of RCW 9.94A.310, would have eliminated any possible confusion regarding earlier cases that cited RCW 9.94A.310 and provided for concurrent enhancements. Second, rather than clarifying that the weapon enhancements would run consecutively to one another, the weapon enhancement scoring sheet attached to the plea agreement did not clarify that the weapon enhancements would run consecutively to one another but simply added a 24-month enhancement to the standard range of 129-171 months to arrive at a higher “standard range” of 153-195 for each of the five counts, which by statute run concurrently. CP at 62; see RCW 9.94A.589. Finally, the trial court, having accepted Bisson’s guilty plea, interpreted the plea agreement and accompanying documents as providing for concurrent weapon enhancements; the trial court’s initial belief supports Bisson’s view that he was promised concurrent enhancements or that, at the very least, “the State prepared [an] agreement [that] allows for concurrent deadly weapon enhancements.” Resp. to Pet. for Review at 12.
¶23 The narrower question, then, is whether, in light of the State’s responsibility for the ambiguity in this “term[ ] of the bargain,” the ambiguity “should be construed against
¶24 Case law from other jurisdictions supports Bisson’s view that the ambiguity rule should be applied to the interpretation of his plea agreement. In United States v. Harvey, 791 F.2d 294 (4th Cir. 1986), at issue was whether a plea agreement had promised that the defendant would not be subject to further prosecution. The court observed
A plea agreement reasonably susceptible to different interpretations is ambiguous. The plea agreement in the instant case is reasonably susceptible to different interpretation and is therefore ambiguous. Where a statute is ambiguous, we require that it be strictly construed in favor of the accused. State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987). We find no compelling reason to adopt a different rule in interpreting ambiguous plea agreements.
State v. Wills, 244 Kan. 62, 69, 765 P.2d 1114 (1988); see State v. Tvedt, 153 Wn.2d 705, 711, 107 P.3d 728 (2005) (applying rule of lenity to ambiguous criminal statute).
f 25 While we strongly discountenance the State’s failure to clarify at the time of the plea agreement that weapon enhancements must be served consecutively to the underlying sentences and to one another, we decline to hold that specific performance is an available remedy for an ambiguous provision in a plea agreement. In the commercial
CONCLUSION
¶26 The State conceded that Bisson’s plea was involuntary. To remedy an involuntary plea agreement, a defendant is ordinarily entitled to make the initial choice between withdrawal or specific performance of the agreement. Consistent with our decision in Turley and contrary to the resolution proposed in the Court of Appeals decision below, we hold that if Bisson elects the remedy of withdrawal, he may not withdraw his plea to the weapon enhancements alone but must withdraw his plea in its entirety.
¶27 Regarding the alternative remedy of specific performance, we hold as a matter of law that the plea agreement was ambiguous as to whether Bisson’s five weapon enhancements were to be served consecutively to, or concurrently with, one another. While the State specifically conceded that “none of the documents submitted at the time of Bisson’s plea clearly stated that the weapon enhancements would be consecutive to one another,” Resp’t’s Mot. To Concede Error at 6, the State also correctly maintained that the plea agreement had not precisely provided that the enhancements would run concurrently with one another. Adhering to the principle that an ambiguous contract provision is not subject to specific performance, we affirm the Court of Appeals decision to deny Bisson’s request for a sentence running the five 24-month enhancements concurrently.
¶28 The Court of Appeals decision is therefore reversed in part and affirmed in part. We remand the matter to the trial court with instructions to permit Bisson to withdraw his plea in its entirety. As the Court of Appeals determined, Bisson’s ineffective assistance claim need not be addressed
Alexander, C.J., and Madsen, Bridge, Chambers, Fairhurst, and J.M. Johnson, JJ., concur.
See Clerk’s Papers (CP) at 30-40. CrR 4.2(g) requires a defendant entering a guilty plea to file a written statement “in substantially the form set forth” in the rule.
The scoring forms were drawn from the Washington State Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual (2001), see CP at 60-62, while the criminal history form was jointly credited to the King County Prosecutor and the Department of Corrections. See CP at 59.
Charles, 135 Wn.2d at 250. Former RCW 9.94A.310(3)(e) and (4)(e) (1995) contained the same language: “CE]nhancements ... are mandatory, shall be served in total confinement, and shall not run concurrently with any other sentencing provisions.” See Laws of 1998, ch. 235, § 1.
VRP (Aug. 2, 2002) at 9-10; see also id. at 3-4. While former RCW 9-,94A.310(3)(e) and (4)(e) (1998) provided that firearm and deadly weapon enhancements were to “run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements,” former RCW 9.94A.310 (1995) remained in effect for sentencing in cases where the events predated the 1998 amendments; consequently, cases filed after 1998 could cite RCW 9.94A.310 and authorize concurrent sentences for weapon enhancements. See, e.g., State v. Price, 103 Wn. App. 845, 859-60 & n.6, 14 P.3d 841 (2000) (agreeing that firearm enhancements under former RCW 9.94A.310(3)(e) (1996) should be served concurrently with one another since events occurred in 1997).
To the extent Division One’s earlier decision in State v. Zumwalt, 79 Wn. App. 124, 901 P.2d 319 (1995), conflicts with Turley, we disapprove Zumwalt. There, having determined that Zumwalt’s plea to a deadly weapon enhancement had been factually inadequate under CrR 4.2(d) and was thus involuntary, the court permitted Zumwalt to enter a new plea to the enhancement. Id. at 132. Because Zumwalt “presented no basis for challenging his plea to the charge of first degree robbery,” the court let stand “[t]hat portion of the plea.” Id. Zumwalt predates our decision in Turley and is, in any case, distinguishable since it did not raise the issue of the severability of the plea agreement.
Dissenting Opinion
¶29 (dissenting) — Jonathan Bisson pleaded guilty to five counts of first degree robbery, three counts of second degree robbery, and five deadly weapon enhancements. His plea was involuntary because he reasonably believed the deadly weapon enhancements would run concurrently to one another. But the majority concludes Bisson is not entitled to specific performance of the plea agreement he reasonably believed he made, asserting it was ambiguous as to whether the deadly weapon enhancements would run concurrently or consecutively.
¶[30 Due process requires construction of ambiguous plea agreements against the State and in accordance with a criminal defendant’s reasonable expectations. Bisson quite reasonably expected his deadly weapon enhancements to run concurrently with one another. And he is entitled to specific performance of that expectation.
|31 As the majority recognizes, a plea agreement is a contract with the State and due process entitles a criminal defendant to specific performance, even if its terms conflict with the law. Majority at 520. See, e.g., State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988); State v. Harrison, 148 Wn.2d 550, 556-57, 61 P.3d 1104 (2003); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 302-03, 88 P.3d 390 (2004); State v. Cosner, 85 Wn.2d 45, 50-51, 530 P.2d 317 (1975).
¶32 The majority concedes Bisson’s plea agreement implied his deadly weapon enhancements would run concurrently to one another. Majority at 511, 521. It concedes the State erroneously cited a superseded statute we construed as authorizing deadly weapon enhancements to run
¶33 It is axiomatic that due process requires courts to construe any ambiguity in a plea agreement against the government and in accordance with the defendant’s reasonable understanding of the agreement. See, e.g., United States v. Roitman, 245 F.3d 124, 126 (2d Cir. 2001); United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000); United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986); United States v. Melton, 930 F.2d 1096, 1097-98 (5th Cir. 1991); United States v. Randolph, 230 F.3d 243, 248 (6th Cir. 2000); United States v. Rourke, 74 F.3d 802, 805 (7th Cir. 1996); United States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990); United States v. Camarillo-Tello, 236 F.3d 1024, 1026 (9th Cir. 2001); United States v. Peterson, 225 F.3d 1167, 1171 (10th Cir. 2000); United States v. Nyhuis, 8 F.3d 731,
¶34 When the State relies on a statute authorizing an enhanced sentence, “due process of law requires that the information contain specific allegations to that effect, thus putting the accused person upon notice that enhanced consequences will flow with a conviction.” State v. Cosner, 85 Wn.2d at 50. Failure to provide such specific notice requires the State “to reduce their mandatory minimum terms in accordance with their understanding of the length thereof at the time of their pleas.” Id. at 51-52.
¶35 Therefore the State “ ‘must bear responsibility for any lack of clarity’ ” in Bisson’s plea agreement, not Bisson. United States v. De La Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993) (quoting United States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992), amended on reh’g, 990 F.2d 1163 (1993)). If Bisson’s plea agreement was ambiguous, as the majority concedes, he is entitled to specific performance of the plea agreement he reasonably believed he made. In other words, Bisson is entitled to serve his deadly weapon enhancements concurrently, not consecutively.
¶36 I dissent.
C. Johnson, J., concurs with Sanders, J.
Reference
- Full Case Name
- The State of Washington, Petitioner, v. Jonathan A. Bisson, Respondent
- Cited By
- 55 cases
- Status
- Published